EX-4.3



 





Exhibit 4.3




 





FORM OF RIGHTS AGREEMENT




dated as of





, 2008



between




MAXUM PETROLEUM HOLDINGS, INC.




and




AMERICAN STOCK TRANSFER & TRUST COMPANY




Rights Agent




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 1.

	 	Certain Definitions
	 	 	1	 
	 
	 	 	 	 	 	 
	Section 2.

	 	Appointment of Rights Agent
	 	 	6	 
	 
	 	 	 	 	 	 
	Section 3.

	 	Issuance of Rights Certificates
	 	 	6	 
	 
	 	 	 	 	 	 
	Section 4.

	 	Form of Rights Certificates
	 	 	8	 
	 
	 	 	 	 	 	 
	Section 5.

	 	Countersignature and Registration
	 	 	9	 
	 
	 	 	 	 	 	 
	Section 6.

	 	Transfer, Split-Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost
or Stolen Rights Certificates
	 	 	10	 
	 
	 	 	 	 	 	 
	Section 7.

	 	Exercise of Rights; Purchase Price; Expiration Date of Rights
	 	 	11	 
	 
	 	 	 	 	 	 
	Section 8.

	 	Cancellation and Destruction of Rights Certificates
	 	 	12	 
	 
	 	 	 	 	 	 
	Section 9.

	 	Reservation and Availability of Capital Stock
	 	 	13	 
	 
	 	 	 	 	 	 
	Section 10.

	 	Preferred Stock Record Date
	 	 	14	 
	 
	 	 	 	 	 	 
	Section 11.

	 	Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights
	 	 	14	 
	 
	 	 	 	 	 	 
	Section 12.

	 	Certificate of Adjusted Purchase Price or Number of Shares
	 	 	22	 
	 
	 	 	 	 	 	 
	Section 13.

	 	Consolidation, Merger or Sale or Transfer of Assets,
Cash Flow or Earning Power
	 	 	22	 
	 
	 	 	 	 	 	 
	Section 14.

	 	Fractional Rights and Fractional Shares
	 	 	24	 
	 
	 	 	 	 	 	 
	Section 15.

	 	Rights of Action
	 	 	25	 
	 
	 	 	 	 	 	 
	Section 16.

	 	Agreement of Rights Holders
	 	 	25	 
	 
	 	 	 	 	 	 
	Section 17.

	 	Rights Certificate Holder Not Deemed a Stockholder
	 	 	26	 
	 
	 	 	 	 	 	 
	Section 18.

	 	Concerning the Rights Agent
	 	 	26	 
	 
	 	 	 	 	 	 
	Section 19.

	 	Merger or Consolidation or Change of Name of Rights Agent
	 	 	27	 
	 
	 	 	 	 	 	 
	Section 20.

	 	Duties of Rights Agent
	 	 	27	 
	 
	 	 	 	 	 	 
	Section 21.

	 	Change of Rights Agent
	 	 	29	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 22.

	 	Issuance of New Rights Certificates
	 	 	30	 
	 
	 	 	 	 	 	 
	Section 23.

	 	Redemption and Termination
	 	 	30	 
	 
	 	 	 	 	 	 
	Section 24.

	 	Exchange
	 	 	31	 
	 
	 	 	 	 	 	 
	Section 25.

	 	Notice of Certain Events
	 	 	32	 
	 
	 	 	 	 	 	 
	Section 26.

	 	Notices
	 	 	33	 
	 
	 	 	 	 	 	 
	Section 27.

	 	Supplements and Amendments
	 	 	34	 
	 
	 	 	 	 	 	 
	Section 28.

	 	Successors
	 	 	34	 
	 
	 	 	 	 	 	 
	Section 29.

	 	Determinations and Actions by the Board, etc
	 	 	34	 
	 
	 	 	 	 	 	 
	Section 30.

	 	Benefits of this Agreement
	 	 	35	 
	 
	 	 	 	 	 	 
	Section 31.

	 	Severability
	 	 	35	 
	 
	 	 	 	 	 	 
	Section 32.

	 	Governing Law
	 	 	35	 
	 
	 	 	 	 	 	 
	Section 33.

	 	Counterparts
	 	 	35	 
	 
	 	 	 	 	 	 
	Section 34.

	 	Descriptive Headings
	 	 	36	 






ii









 





EXHIBITS




	 	 	 	 	 
	Exhibit A
	 	—
	 	Form of Certificate of Designation, Preferences and
Rights of Series A Junior Participating Preferred Stock

	 	 	 	 	 

	Exhibit B
	 	—
	 	Form of Rights Certificate

	 	 	 	 	 

	Exhibit C
	 	—
	 	Form of Summary of Rights







iii









 





RIGHTS AGREEMENT





     RIGHTS AGREEMENT, dated as of [•], 2008 (this “Agreement”), between Maxum Petroleum
Holdings, Inc., a Delaware corporation (the “Company”), and American Stock Transfer & Trust
Company, a New York corporation (the “Rights Agent”).






W I T N E S S E T H:



     WHEREAS, on [•], 2008 (the “Rights Dividend Declaration Date”), the Board of Directors
of the Company (the “Board”) authorized and declared a dividend distribution of one Right
(as hereinafter defined) for each share of Common Stock of the Company outstanding at the close of
business on [•], 2008 (the “Record Date”), and has authorized the issuance of one Right (as
such number may hereinafter be adjusted pursuant to the provisions of Section 11(p) hereof) for
each share of Common Stock issued between the Record Date (whether originally issued or delivered
from the Company’s treasury) and the Distribution Date (as hereinafter defined), each Right
initially representing the right to purchase 1/1000th of a share of Series A Junior
Participating Preferred Stock, par value $0.01 per share, of the Company (the “Preferred
Stock”) having the rights, powers and preferences set forth in the form of Certificate of
Designation, Preferences and Rights attached hereto as Exhibit A, upon the terms and subject to the
conditions hereinafter set forth (the “Rights”).



     NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereby agree as follows:



     Section 1. Certain Definitions. For purposes of this Agreement, the following terms
have the meanings indicated:



          (a) “Acquiring Person” shall mean any Person who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of 15% or more of the
shares of Common Stock then outstanding, but shall not include (i) the Company, (ii) any Subsidiary
of the Company, (iii) any employee benefit plan of the Company, or of any Subsidiary of the
Company, or any Person or entity organized, appointed or established by the Company for or pursuant
to the terms of any such plan, (iv) any Sponsor, (v) any Person who becomes the Beneficial Owner of
15% or more of the shares of Common Stock then outstanding as a result of a reduction in the number
of shares of Common Stock outstanding due to the repurchase of shares of Common Stock by the
Company unless and until such Person, after becoming aware that such Person has become the
Beneficial Owner of 15% or more of the then outstanding shares of Common Stock, acquires beneficial
ownership of additional shares of Common Stock representing 1% or more of the shares of Common
Stock then outstanding or (vi) any such Person who has reported or is required to report such
ownership on Schedule 13G under the Exchange Act (or any comparable or successor report) or on
Schedule 13D under the Exchange Act (or any comparable or successor report) which Schedule 13D does
not state any intention to or reserve the right to control or influence the management or policies
of the Company or engage in any of the actions specified in Item 4 of such schedule (other than the
disposition of the Common Stock), who inadvertently becomes the Beneficial Owner of 15% or more of
the shares of Common Stock then outstanding (but less than 20%) and, within 10 Business Days of
being requested by the Company to advise it regarding the same, certifies to




 









 







the Company that such Person acquired shares of Common Stock in excess of 14.9% inadvertently
or without knowledge of the terms of the Rights and who or which, together with all Affiliates and
Associates, thereafter does not acquire additional shares of Common Stock while the Beneficial
Owner of 15% or more of the shares of Common Stock then outstanding; provided,
however, that if the Person requested to so certify fails to do so within 10 Business Days
or breaches or violates such certification, then such Person shall become an Acquiring Person
immediately after such 10 Business Day period or such breach or violation.




          (b) “Act” shall mean the Securities Act of 1933, as amended.




          (c) “Adjustment Shares” shall have the meaning set forth in Section 11(a)(ii) hereof.




          (d) “Affiliate” and “Associate” shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under the Exchange Act and the term
“person” as used therein shall mean any person or entity.




          (e) “Agreement” shall have the meaning set forth in the preamble to this Agreement, as
it may from time to time be supplemented, amended, renewed, restated or extended pursuant to the
applicable provisions hereof.




          (f) A Person shall be deemed the “Beneficial Owner” of, and shall be deemed to
“beneficially own,” any securities:





          (i) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, owns or has the right to acquire (whether such right is exercisable immediately
or only after the passage of time or upon the satisfaction of one or more conditions
(whether or not within the control of such Person), compliance with regulatory requirements
or otherwise) pursuant to any agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange rights, other rights, warrants
or options, or otherwise; provided, however, that a Person shall not be
deemed the “Beneficial Owner” of, or to “beneficially own,” (A) securities tendered pursuant
to a tender or exchange offer made by such Person or any of such Person’s Affiliates or
Associates until such tendered securities are accepted for purchase or exchange, (B)
securities issuable upon exercise of Rights at any time prior to the occurrence of a
Triggering Event, or (C) securities issuable upon exercise of Rights from and after the
occurrence of a Triggering Event which Rights were acquired by such Person or any of such
Person’s Affiliates or Associates prior to the Distribution Date or pursuant to Section 3(a)
or Section 22 hereof (the “Original Rights”) or pursuant to Section 11(i) hereof in
connection with an adjustment made with respect to any Original Rights;




          (ii) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of or has “beneficial ownership” of (as
determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange
Act), including pursuant to any agreement, arrangement or understanding, whether or not in
writing; provided, however, that a Person shall not be



2









 






deemed the “Beneficial Owner” of, or to “beneficially own,” any security under this
subparagraph (ii) as a result of an agreement, arrangement or understanding (whether or not
in writing) to vote such security if such agreement, arrangement or understanding: (A)
arises solely from a revocable proxy given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable provisions of the
General Rules and Regulations under the Exchange Act; and (B) is not reportable by such
Person on Schedule 13D under the Exchange Act (or any comparable or successor report); or




          (iii) which are beneficially owned, directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person (or any of such Person’s Affiliates
or Associates) has any agreement, arrangement or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting (except pursuant to a revocable proxy as
described in the proviso to subparagraph (ii) of this paragraph (e)) or disposing of any
voting securities of the Company; provided, however, that nothing in this
paragraph (e) shall cause a Person engaged in business as an underwriter of securities to be
the “Beneficial Owner” of, or to “beneficially own,” any securities acquired through such
Person’s participation in good faith in a firm commitment underwriting until the expiration
of forty days after the date of such acquisition, and then only if such securities continue
to be owned by such Person at such expiration of forty days.



          (g) “Board” shall have the meaning set forth in the recitals to this Agreement.




          (h) “Business Day” shall mean any day other than a Saturday, Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by law or executive order
to close.




          (i) “Close of Business” on any given date shall mean 5:00 P.M., New York City time, on
such date; provided, however, that if such date is not a Business Day, it shall
mean 5:00 P.M., New York City time, on the next succeeding Business Day.




          (j) “Common Stock” shall mean the Common Stock, par value $0.01 per share, of the
Company or any other shares of capital stock of the Company into which such stock shall be
reclassified or changed, except that “Common Stock” when used with reference to any Person other
than the Company shall mean the capital stock of such Person with the greatest voting power, or the
equity securities or other equity interest having power to control or direct the management, of
such Person.




          (k) “Common Stock Equivalents” shall have the meaning set forth in Section 11(a)(iii)
hereof.




          (l) “Company” shall have the meaning set forth in the preamble to this Agreement until
a successor corporation or entity shall have become such or until a Principal Party shall assume,
and thereafter be liable for, all obligations and duties of the Company hereunder pursuant to the
applicable provisions of this Agreement, and thereafter, “Company” shall mean such successor or
Principal Party, respectively.




3









 








          (m) “Current Market Price” shall have the meaning set forth in Section 11(d)(i)
hereof.




          (n) “Current Value” shall have the meaning set forth in Section 11(a)(iii) hereof.




          (o) “Distribution Date” shall have the meaning set forth in Section 3(a) hereof.




          (p) “Equivalent Preferred Stock” shall have the meaning set forth in Section 11(b)
hereof.




          (q) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.




          (r) “Exchange Ratio” shall have the meaning set forth in Section 24 hereof.




          (s) “Expiration Date” shall have the meaning set forth in Section 7(a) hereof.





          (t) “Final Expiration Date” shall mean the date upon which the Rights expire and shall
be the earlier of 5:00 P.M., New York City time on
[Ÿ], 2018 or such later date as may be
established by the Board prior to the expiration of the Rights, unless the Rights are previously
redeemed, exchanged or terminated.




          (u) “NASDAQ” shall have the meaning set forth in Section 11(d)(i) hereof.




          (v) “Original Rights” shall have the meaning set forth in Section 1(e)(i) hereof.




          (w) “Person” shall mean any individual, firm, corporation, partnership, limited
liability company, trust, association, syndicate or other entity and includes an unincorporated
group of persons who, by formal or informal agreement or arrangement (whether or not in writing),
have embarked on a common purpose or act.




          (x) “Preferred Stock” shall have the meaning set forth in the recitals to this
Agreement, and, to the extent that there are not a sufficient number of shares of Series A Junior
Participating Preferred Stock authorized to permit the full exercise of the Rights, any other
series of preferred stock of the Company designated for such purpose containing terms substantially
similar to the terms of the Series A Junior Participating Preferred Stock.




          (y) “Principal Party” shall have the meaning set forth in Section 13(b) hereof.




          (z) “Purchase Price” shall have the meaning set forth in Section 4(a) hereof.




          (aa) “Record Date” shall have the meaning set forth in the recitals to this Agreement.




4









 








          (bb) “Redemption Price” shall have the meaning set forth in Section 23(a) hereof.




          (cc) “Rights” shall have the meaning set forth in the recitals to this Agreement.




          (dd) “Rights Agent” shall have the meaning set forth in the preamble of this
Agreement.




          (ee) “Rights Certificate” shall have the meaning set forth in Section 3(a) hereof.




          (ff) “Rights Dividend Declaration Date” shall have the meaning set forth in the
recitals to this Agreement.




          (gg) “Section 11(a)(ii) Event” shall mean any event described in Section 11(a)(ii)
hereof.




          (hh) “Section 11(a)(ii) Trigger Date” shall have the meaning set forth in Section
11(a)(iii) hereof.




          (ii) “Section 13 Event” shall mean any event described in clauses (x), (y) or (z) of
Section 13(a) hereof.




          (jj) “Sponsor” shall mean NCA II Management, LLC, RBCP Energy Fund Investments, LP,
Waud Capital Partners, L.L.C. and their respective Affiliates and Associates.




          (kk) “Spread” shall have the meaning set forth in Section 11(a)(iii) hereof.




          (ll) “Stock Acquisition Date” shall mean the first date of public announcement (which,
for purposes of this definition, shall include a report filed or amended pursuant to Section 13(d)
under the Exchange Act) by the Company or an Acquiring Person that an Acquiring Person has become
such.




          (mm) “Subsidiary” shall mean, with reference to any Person, any corporation or other
entity of which an amount of securities or other ownership interest having ordinary voting power
sufficient to elect at least a majority of the directors or other Persons having similar functions
of such corporation or other entity are at the time, directly or indirectly, beneficially owned, or
otherwise controlled by such Person.




          (nn) “Substitution Period” shall have the meaning set forth in Section 11(a)(iii)
hereof.




          (oo) “Summary of Rights” shall have the meaning set forth in Section 3(b) hereof.




          (pp) “Trading Day” shall have the meaning set forth in Section 11(d)(i) hereof.




5









 








          (qq) “Triggering Event” shall mean any Section 11(a)(ii) Event or any Section 13
Event.




     Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent
to act as rights agent for the Company and the holders of the Rights (who, in accordance with
Section 3 hereof, shall prior to the Distribution Date also be the holders of the Common Stock) in
accordance with the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such co-rights agents as it may deem
necessary or desirable.



     Section 3. Issuance of Rights Certificates.



          (a) Until the earlier of (i) the Close of Business on the 10th Business Day (or
such specified or unspecified later date as may be determined by the Board before the occurrence of
the Distribution Date) after the Stock Acquisition Date (or, if the 10th Business Day
(or such later date) after the Stock Acquisition Date occurs before the Record Date, the Close of
Business on the Record Date), or (ii) the close of business on the 10th Business Day (or
such specified or unspecified later date as may be determined by the Board before the occurrence of
the Distribution Date) after the date that a tender or exchange offer by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, any Person or entity organized, appointed or established by the Company
for or pursuant to the terms of any such plan, or any Sponsor) is first published or sent or given
within the meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act,
if, upon consummation thereof, such Person would become an Acquiring Person (the earlier of (i) and
(ii) being herein referred to as the “Distribution Date”), (x) the Rights will be evidenced
(subject to the provisions of paragraph (b) or (c) of this Section 3) by the balances indicated in
the book-entry account system of the transfer agent for the Common Stock registered in the names of
the holders of the Common Stock (which shares of Common Stock shall also be deemed to represent
certificates for Rights) or, in the case of certificated shares, the certificates for the Common
Stock registered in the names of the holders of the Common Stock (which certificates for Common
Stock shall also be deemed to be certificates for Rights), and not by separate certificates, and
(y) the Rights will be transferable only in connection with the transfer of the underlying shares
of Common Stock (including a transfer to the Company). As soon as practicable after the
Distribution Date, the Rights Agent will send by first-class, insured, postage-prepaid mail, to
each record holder of the Common Stock as of the Close of Business on the Distribution Date, at the
address of such holder shown on the records of the Company, one or more rights certificates, in
substantially the form of Exhibit B hereto (the “Rights Certificates”), evidencing one
Right for each share of Common Stock so held, subject to adjustment as provided herein. In the
event that an adjustment in the number of Rights per share of Common Stock has been made pursuant
to Section 11(p) hereof, at the time of distribution of the Rights Certificates, the Company shall
make the necessary and appropriate rounding adjustments (in accordance with Section 14(a) hereof)
so that Rights Certificates representing only whole numbers of Rights are distributed and cash is
paid in lieu of any fractional Rights. As of and after the Distribution Date, the Rights will be
evidenced solely by such Rights Certificates. The Company shall promptly notify the Rights Agent
in writing upon the occurrence of the Distribution Date. Until such notice is received by the
Rights Agent, the Rights Agent may presume conclusively for all purposes that the Distribution Date
has not occurred.





6











 





          (b) The Company will make available, as promptly as practicable following the Record Date, a
copy of a Summary of Rights, in substantially the form attached hereto as Exhibit C (the
“Summary of Rights”) to any holder of Rights who may so request from time to time prior to
the Expiration Date. With respect to the Common Stock outstanding as of the Record Date, or issued
subsequent to the Record Date, unless and until the Distribution Date shall occur, the Rights will
be evidenced by the balances indicated in the book-entry account system of the transfer agent for
the Common Stock or, in the case of certificated shares, such certificates for the Common Stock,
and the registered holders of the Common Stock shall also be the registered holders of the
associated Rights. Until the earlier of the Distribution Date or the Expiration Date, the transfer
of any shares of Common Stock in respect of which Rights have been issued shall also constitute the
transfer of the Rights associated with such shares of Common Stock.




          (c) Rights shall be issued in respect of all shares of Common Stock which are issued (whether
originally issued or from the Company’s treasury) after the Record Date but prior to the earlier of
the Distribution Date or the Expiration Date and shall bear the following legends:





          (i) Confirmation and account statements sent to holders of shares of Common Stock in
book-entry form (which shares of Common Stock shall also be deemed to represent certificates
for Rights) shall bear the following legend:





The shares of Common Stock, par value $0.01 per share, of Maxum Petroleum
Holdings, Inc. (the “Company”) entitles the holder hereof to certain
Rights as set forth in the Rights Agreement between the Company and the
Rights Agent thereunder (the “Rights Agent”) dated as of [•], 2008,
as it may be amended, restated, renewed or extended from time to time (the
“Rights Agreement”), the terms of which are hereby incorporated
herein by reference and a copy of which is on file at the principal offices
of the Rights Agent. Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by separate certificates and
will no longer be evidenced by the shares to which this statement relates.
The Rights Agent will mail to the holder of shares to which this statement
relates a copy of the Rights Agreement, as in effect on the date of mailing,
without charge, promptly after receipt of a written request therefor. Under
certain circumstances set forth in the Rights Agreement, Rights beneficially
owned (as such term is defined in the Rights Agreement) by any Person who
is, was or becomes an Acquiring Person or any Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement), whether currently held
by or on behalf of such Person or by any subsequent holder, may become null
and void.



     With respect to shares of Common Stock in book-entry form for which there has been sent
a confirmation or account statement containing the foregoing legend, until the earlier of
(A) the Distribution Date or (B) the Expiration Date, the Rights associated with the Common
Stock represented by such shares of Common Stock shall be evidenced by such shares of Common
Stock alone and registered holders of Common Stock shall also



7









 






be the registered holders of the associated Rights, and the transfer of any of such shares of Common Stock shall also constitute the transfer of the Rights associated with
such shares of Common Stock.




          (ii) In the case of certificated shares, certificates representing shares of Common
Stock (which certificates shall also be deemed to be certificates for Rights) shall bear the
following legend if such certificates are issued after the Record Date but prior to the
earlier of the Distribution Date or the Expiration Date:





This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Rights Agreement between Maxum Petroleum
Holdings, Inc. (the “Company”) and the Rights Agent thereunder (the
“Rights Agent”) dated as of [•], 2008, as it may be amended,
restated, renewed or extended from time to time (the “Rights
Agreement”), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal offices of the
Rights Agent. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and will
no longer be evidenced by this certificate. The Rights Agent will mail to
the holder of this certificate a copy of the Rights Agreement, as in effect
on the date of mailing, without charge, promptly after receipt of a written
request therefor. Under certain circumstances set forth in the Rights
Agreement, Rights beneficially owned (as such term is defined in the Rights
Agreement) by any Person who is, was or becomes an Acquiring Person or any
Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement), whether currently held by or on behalf of such Person or by any
subsequent holder, may become null and void.



     With respect to such certificates containing the foregoing legend, until the earlier of
(A) the Distribution Date or (B) the Expiration Date, the Rights associated with the Common
Stock represented by such certificates shall be evidenced by such certificates alone and
registered holders of Common Stock shall also be the registered holders of the associated
Rights, and the transfer of any of such certificates shall also constitute the transfer of
the Rights associated with the Common Stock represented by such certificates.



     Section 4. Form of Rights Certificates.



          (a) The Rights Certificates (and the forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be substantially in the form set forth in Exhibit B
hereto and may have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to comply with any applicable law or with
any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange
on which the Rights may from time to time be listed, or to conform to usage. Subject to the
provisions of Section 11 and Section 22 hereof, the Rights Certificates, whenever distributed,
shall be dated as of the Record Date and on their face shall entitle the holders thereof to
purchase such number of 1/1000th of a share of Preferred Stock as shall be set



8









 






forth therein at the price set forth therein (such exercise price per 1/1000th of a
share, the “Purchase Price”), but the amount and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof shall be subject to adjustment as provided
herein.




          (b) Any Rights Certificate issued pursuant to Section 3(a), Section 11(i) or Section 22 hereof
that represents Rights beneficially owned by (i) an Acquiring Person or any Associate or Affiliate
of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person becomes such, or (iii) a transferee
of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom such Acquiring Person has any
continuing agreement, arrangement or understanding (whether or not in writing) regarding the
transferred Rights or (B) a transfer which the Board, in its sole discretion, has determined is
part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance
of Section 7(e) hereof, and any Rights Certificate issued pursuant to Section 6 or Section 11
hereof upon transfer, exchange, replacement or adjustment of any other Rights Certificate referred
to in this sentence, shall contain (to the extent feasible) the following legend:





The Rights represented by this Rights Certificate are or were beneficially
owned by a Person who was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined in the Rights
Agreement). Accordingly, this Rights Certificate and the Rights represented
hereby may become null and void in the circumstances specified in Section
7(e) of the Rights Agreement.



     Section 5. Countersignature and Registration.



          (a) The Rights Certificates shall be executed on behalf of the Company by its Chairman of the
Board, its Chief Executive Officer, its President or any Vice President (or more senior officer) of
the Company, either manually or by facsimile signature, and shall have affixed thereto the
Company’s seal or a facsimile thereof which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile signature. The Rights Certificates shall
be countersigned by the Rights Agent, either manually or by facsimile signature and shall not be
valid for any purpose unless so countersigned. In case any officer of the Company who shall have
signed any of the Rights Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company, such Rights
Certificates, nevertheless, may be countersigned by the Rights Agent and issued and delivered by
the Company with the same force and effect as though the person who signed such Rights Certificates
had not ceased to be such officer of the Company; and any Rights Certificates may be signed on
behalf of the Company by any person who, at the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company to sign such Rights Certificate, although at
the date of the execution of this Rights Agreement any such person was not such an officer.




9









 








          (b) Following the Distribution Date, the Rights Agent will keep, or cause to be kept, at its
principal office or offices designated as the appropriate place for surrender of Rights
Certificates upon exercise or transfer, books for registration and transfer of the Rights
Certificates issued hereunder. Such books shall show the names and addresses of the respective
holders of the Rights Certificates, the number of Rights evidenced on its face by each of the
Rights Certificates and the date of each of the Rights Certificates.




     Section 6. Transfer, Split-Up, Combination and Exchange of Rights Certificates; Mutilated,
Destroyed, Lost or Stolen Rights Certificates.



          (a) Subject to the provisions of Section 4(b), Section 7(e) and Section 14 hereof, at any time
after the Close of Business on the Distribution Date, and at or prior to the Close of Business on
the Expiration Date, any Rights Certificate or Certificates (other than Rights Certificates
representing Rights that may have been exchanged pursuant to Section 24 hereof) may be transferred,
split up, combined or exchanged for another Rights Certificate or Certificates, entitling the
registered holder to purchase a like number of 1/1000th of a share of Preferred Stock
(or, following a Triggering Event, Common Stock, other securities, cash or other assets, as the
case may be) as the Rights Certificate or Certificates surrendered then entitles such holder (or
former holder in the case of a transfer) to purchase. Any registered holder desiring to transfer,
split up, combine or exchange any Rights Certificate or Certificates shall make such request in
writing delivered to the Rights Agent, and shall surrender the Rights Certificate or Certificates
to be transferred, split up, combined or exchanged at the principal office or offices of the Rights
Agent designated for such purpose. Neither the Rights Agent nor the Company shall be obligated to
take any action whatsoever with respect to the transfer of any such surrendered Rights Certificate
until the registered holder shall have completed and signed the certificate contained in the form
of assignment on the reverse side of such Rights Certificate and shall have provided such
additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall reasonably request. Thereupon the Rights
Agent shall, subject to Section 4(b), Section 7(e), Section 14 hereof and Section 24 hereof,
countersign and deliver to the Person entitled thereto a Rights Certificate or Rights Certificates,
as the case may be, as so requested. The Company may require payment from the holder of a Rights
Certificate of a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Rights Certificates.




          (b) Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to
them of the loss, theft, destruction or mutilation of a Rights Certificate, and, in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to them, and reimbursement
to the Company and the Rights Agent of all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the Rights Certificate, if mutilated, the Company
will execute and deliver a new Rights Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered owner in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated.




10









 








     Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.



          (a) Subject to Section 7(e) hereof, at any time after the Distribution Date the registered
holder of any Rights Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein, including the restrictions on exercisability set forth in Section 9(c), Section
11(a)(iii) and Section 23(a) hereof) in whole or in part upon surrender of the Rights Certificate,
with the form of election to purchase and the certificate on the reverse side thereof duly
executed, to the Rights Agent at the principal office or offices of the Rights Agent designated for
such purpose, together with payment of the aggregate Purchase Price with respect to the total
number of 1/1000th of a share of Preferred Stock (or other securities, cash or other
assets, as the case may be) as to which such surrendered Rights are then exercisable, at or prior
to the earlier of (i) the Final Expiration Date or (ii) the time at which the Rights are redeemed
or exchanged as provided in Section 23 and Section 24 hereof (the earlier of (i) and (ii) being
herein referred to as the “Expiration Date”).




          (b) The Purchase Price for each 1/1000th of a share of Preferred
Stock pursuant to
the exercise of a Right initially shall be $[•], shall be subject to adjustment from time to time
as provided in Sections 11 and 13(a) hereof and shall be payable in accordance with paragraph (c)
below.




          (c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of
election to purchase and the certificate duly executed, accompanied by payment, with respect to
each Right so exercised, of the Purchase Price per 1/1000th of a share of Preferred
Stock (or other shares, securities, cash or other assets, as the case may be) to be purchased as
set forth below and an amount equal to any applicable transfer tax, the Rights Agent shall, subject
to Sections 7(f) and 20(k) hereof, thereupon promptly (i) (A) requisition from any transfer agent
of the shares of Preferred Stock (or make available, if the Rights Agent is the transfer agent for
such shares) certificates for the total number of 1/1000th of a share of Preferred Stock
to be purchased and the Company hereby irrevocably authorizes its transfer agent to comply with all
such requests, or (B) if the Company shall have elected to deposit the total number of shares of
Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition
from the depositary agent depositary receipts representing such number of 1/1000th of a
share of Preferred Stock as are to be purchased (in which case certificates for the shares of
Preferred Stock represented by such receipts shall be deposited by the transfer agent with the
depositary agent) and the Company will direct the depositary agent to comply with such request,
(ii) requisition from the Company the amount of cash, if any, to be paid in lieu of fractional
shares in accordance with Section 14 hereof, (iii) after receipt of such certificates or depositary
receipts, cause the same to be delivered to or, upon the order of the registered holder of such
Rights Certificate, registered in such name or names as may be designated by such holder, and (iv)
after receipt thereof, deliver such cash, if any, to or upon the order of the registered holder of
such Rights Certificate. The payment of the Purchase Price (as such amount may be reduced pursuant
to Section 11(a)(iii) hereof) shall be made in cash or by certified bank check or bank draft
payable to the order of the Company. In the event that the Company is obligated to issue other
securities (including Common Stock) of the Company, pay cash and/or distribute other property
pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such
other securities, cash and/or other property are available for distribution by the Rights Agent, if
and when appropriate. The Company reserves the right to require prior to the



11









 






occurrence of a Triggering Event that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock would be issued.




          (d) In case the registered holder of any Rights Certificate shall exercise less than all the
Rights evidenced thereby, a new Rights Certificate evidencing the Rights remaining unexercised
shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder
of such Rights Certificate, registered in such name or names as may be designated by such holder,
subject to the provisions of Section 14 hereof.




          (e) Notwithstanding anything in this Agreement to the contrary, from and after the first
occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring Person
or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or
of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes
such, or (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives
such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring
Person to holders of equity interests in such Acquiring Person or to any Person with whom the
Acquiring Person has any continuing agreement, arrangement or understanding (whether or not in
writing) regarding the transferred Rights or (B) a transfer which the Board has determined is part
of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of
this Section 7(e), shall become null and void without any further action and no holder of such
Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of
this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the
provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no
liability to any holder of Rights Certificates or any other Person as a result of its failure to
make any determinations with respect to an Acquiring Person or any of its Affiliates, Associates or
transferees hereunder.




          (f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action with respect to a registered holder upon the
occurrence of any purported exercise as set forth in this Section 7 unless such registered holder
shall have (i) completed and signed the certificate contained in the form of election to purchase
set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii)
provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial
Owner) or Affiliates or Associates of such Beneficial Owner as the Company shall reasonably
request.




     Section 8. Cancellation and Destruction of Rights Certificates. All Rights Certificates
surrendered for the purpose of exercise, transfer, split-up, combination or exchange shall, if
surrendered to the Company or any of its agents, be delivered to the Rights Agent for cancellation
or in cancelled form, or, if surrendered to the Rights Agent, shall be cancelled by it, and no
Rights Certificates shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Agreement. The Company shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any other Rights Certificate purchased
or acquired by the Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Rights Certificates to the Company, or shall, at the



12









 







written request of the Company, destroy such cancelled Rights Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.



     Section 9. Reservation and Availability of Capital Stock.



          (a) The Company covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued shares of Preferred Stock (and, following the occurrence of a
Triggering Event, out of its authorized and unissued shares of Common Stock and/or other securities
or out of its authorized and issued shares held in its treasury), the number of shares of Preferred
Stock (and, following the occurrence of a Triggering Event, Common Stock and/or other securities)
that, as provided in this Agreement including Section 11(a)(iii) hereof, will be sufficient to
permit the exercise in full of all outstanding Rights.




          (b) So long as the shares of Preferred Stock (and, following the occurrence of a Triggering
Event, Common Stock and/or other securities) issuable and deliverable upon the exercise of the
Rights may be listed on any national securities exchange, the Company shall use its commercially
reasonable efforts to cause, from and after such time as the Rights become exercisable, all shares
reserved for such issuance to be listed on such exchange upon official notice of issuance upon such
exercise.




          (c) The Company shall use its commercially reasonable efforts to (i) file, as soon as
practicable following the earliest date after the first occurrence of a Section 11(a)(ii) Event on
which the consideration to be delivered by the Company upon exercise of the Rights has been
determined in accordance with Section 11(a)(iii) hereof, a registration statement under the Act,
with respect to the securities purchasable upon exercise of the Rights on an appropriate form, (ii)
cause such registration statement to become effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective (with a prospectus at all times meeting
the requirements of the Act) until the earlier of (A) the date as of which the Rights are no longer
exercisable for such securities, and (B) the date of the expiration of the Rights. The Company
will also take such action as may be appropriate under, or to ensure compliance with, the
securities or “blue sky” laws of the various states in connection with the exercisability of the
Rights. The Company may temporarily suspend, for a period of time not to exceed 90 days after the
date set forth in clause (i) of the first sentence of this Section 9(c), the exercisability of the
Rights in order to prepare and file such registration statement and permit it to become effective.
Upon any such suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a public announcement at
such time as the suspension has been rescinded. In addition, if the Company shall determine that a
registration statement is required following the Distribution Date, the Company may temporarily
suspend the exercisability of the Rights until such time as a registration statement has been
declared effective. Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the requisite qualification in such jurisdiction
shall not have been obtained, the exercise thereof shall not be permitted under applicable law, or
a registration statement shall not have been declared effective.




          (d) The Company covenants and agrees that it will take all such action as may be necessary to
ensure that all 1/1000th of a share of Preferred Stock (and, following the occurrence of
a Triggering Event, Common Stock and/or other securities) delivered upon



13









 






exercise of Rights shall, at the time of delivery of the certificates for such shares (subject
to payment of the Purchase Price), be duly and validly authorized and issued and fully paid and
nonassessable.




          (e) The Company further covenants and agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be payable in respect of the issuance or
delivery of the Rights Certificates and of any certificates for a number of 1/1000th of
a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) upon the
exercise of Rights. The Company shall not, however, be required to pay any transfer tax which may
be payable in respect of any transfer or delivery of Rights Certificates to a Person other than, or
the issuance or delivery of a number of 1/1000th of a share of Preferred Stock (or
Common Stock and/or other securities, as the case may be) in respect of a name other than that of
the registered holder of the Rights Certificates evidencing Rights surrendered for exercise, nor
shall the Company be required to issue or deliver any certificates (or make any entries in the
book-entry account system of the transfer agent) for a number of 1/1000th of a share of
Preferred Stock (or Common Stock and/or other securities, as the case may be) in a name other than
that of the registered holder upon the exercise of any Rights until such tax shall have been paid
(any such tax being payable by the holder of such Rights Certificates at the time of surrender) or
until it has been established to the Company’s satisfaction that no such tax is due.




     Section 10. Preferred Stock Record Date. Each person in whose name any certificate or
entry in the book-entry account system of the transfer agent for a number of 1/1000th of
a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) is issued
upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of
such fractional shares of Preferred Stock (or Common Stock and/or other securities, as the case may
be) represented thereby on, and such certificate or entry in the book-entry account system shall be
dated, the date upon which the Rights Certificate evidencing such Rights was duly surrendered and
payment of the Purchase Price (and all applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a date upon which the Preferred
Stock (or Common Stock and/or other securities, as the case may be) transfer books of the Company
are closed, such Person shall be deemed to have become the record holder of such shares (fractional
or otherwise) on, and such certificate or entry in the book-entry account system shall be dated,
the next succeeding Business Day on which the Preferred Stock (or Common Stock and/or other
securities, as the case may be) transfer books of the Company are open. Prior to the exercise of
the Rights evidenced thereby, the holder of a Rights Certificate shall not be entitled to any
rights of a stockholder of the Company with respect to shares for which the Rights shall be
exercisable, including the right to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings
of the Company, except as provided herein.



     Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights.
The Purchase Price, the number and kind of shares covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this Section 11.




     (a) (i) In the event the Company shall at any time after the date of this Agreement (A)
declare a dividend on the Preferred Stock payable in shares of Preferred



14









 






Stock, (B) subdivide or split the outstanding shares of Preferred Stock, (C) combine or
consolidate the outstanding shares of Preferred Stock into a smaller number of shares,
through a reverse stock split or otherwise, or (D) issue any shares of its capital stock in
a reclassification of the Preferred Stock (including any such reclassification in connection
with a consolidation or merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11(a) and Section 7(e) hereof,
the Purchase Price in effect at the time of the record date for such dividend or of the
effective date of such subdivision, split, combination, consolidation or reclassification,
and the number and kind of shares of Preferred Stock or capital stock, as the case may be,
issuable on such date, shall be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive, upon payment of the Purchase Price
then in effect, the aggregate number and kind of shares of Preferred Stock or capital stock,
as the case may be, which, if such Right had been exercised immediately prior to such date
and at a time when the Preferred Stock transfer books of the Company were open, such holder
would have owned upon such exercise and been entitled to receive by virtue of such dividend,
subdivision, split, combination, consolidation or reclassification. If an event occurs
which would require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii)
hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and
shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.




          (ii) In the event any Person shall, at any time after the Rights Dividend Declaration
Date, become an Acquiring Person, unless the event causing such Person to become an
Acquiring Person is a transaction set forth in Section 13(a) hereof, then, promptly
following the later of the occurrence of such event and the Record Date, proper provision
shall be made so that each holder of a Right (except as provided below and in Section 7(e)
hereof) shall thereafter have the right to receive, upon exercise thereof at the then
current Purchase Price in accordance with the terms of this Agreement, in lieu of a number
of 1/1000th of a share of Preferred Stock, such number of shares of Common Stock
of the Company as shall equal the result obtained by (x) multiplying the then current
Purchase Price by the then number of 1/1000th of a share of Preferred Stock for
which a Right was exercisable immediately prior to the first occurrence of a Section
11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence,
shall thereafter be referred to as the “Purchase Price” for each Right and for all
purposes of this Agreement) by 50% of the Current Market Price (determined pursuant to
Section 11(d) hereof) per share of Common Stock on the date of such first occurrence (such
number of shares, the “Adjustment Shares”).




          (iii) In the event that the number of treasury shares and shares of Common Stock which
are authorized by the Company’s Amended and Restated Certificate of Incorporation, as
amended, but not outstanding or reserved for issuance for purposes other than upon exercise
of the Rights, is not sufficient to permit the exercise in full of the Rights in accordance
with the foregoing subparagraph (ii) of this Section 11(a), the Company shall (A) determine
the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current
Value”), and (B) with respect to each Right (subject to Section 7(e) hereof), make
adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and
payment of the applicable Purchase Price, (1) cash, (2) a



15









 






reduction in the Purchase Price, (3) Common Stock or other equity securities of the
Company (including shares, or units of shares, of preferred stock, such as the Preferred
Stock, which the Board has deemed to have essentially the same value or economic rights as shares of Common Stock (such shares of preferred stock being referred to as “Common
Stock Equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having an aggregate value equal to the Current Value (less the
amount of any reduction in the Purchase Price), where such aggregate value has been
determined by the Board based upon the advice of a nationally recognized investment banking
firm selected by the Board; provided, however, that if the Company shall not
have made adequate provision to deliver value pursuant to clause (B) above within 30 days
following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the
date on which the Company’s right of redemption pursuant to Section 23(a) expires (the later
of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger Date”),
then the Company shall be obligated to deliver, upon the surrender for exercise of a Right
and without requiring payment of the Purchase Price, shares of Common Stock (to the extent
available) and then, if necessary, cash, which shares and/or cash have an aggregate value
equal to the Spread. For purposes of the preceding sentence, the term “Spread”
shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board
determines in good faith that it is likely that sufficient additional shares of Common Stock
could be authorized for issuance upon exercise in full of the Rights, the 30 day period set
forth above may be extended to the extent necessary, but not more than 90 days after the
Section 11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for
the authorization of such additional shares (such 30 day period, as it may be extended, is
herein called the “Substitution Period”). To the extent that the Company determines
that action should be taken pursuant to the first and/or third sentences of this Section
11(a)(iii), the Company (1) shall provide, subject to Section 7(e) hereof, that such action
shall apply uniformly to all outstanding Rights, and (2) may suspend the exercisability of
the Rights until the expiration of the Substitution Period in order to seek such stockholder
approval for such authorization of additional shares and/or to decide the appropriate form
of distribution to be made pursuant to such first sentence and to determine the value
thereof. In the event of any such suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in effect. For purposes of
this Section 11(a)(iii), the value of each Adjustment Share shall be the Current Market
Price per share of the Common Stock on the Section 11(a)(ii) Trigger Date and the per share
or per unit value of any Common Stock Equivalent shall be deemed to equal the Current Market
Price per share of the Common Stock on such date.



          (b) In case the Company shall fix a record date for the issuance of rights, options or
warrants to all holders of Preferred Stock entitling them to subscribe for or purchase (for a
period expiring within 45 days after such record date) Preferred Stock (or shares having the same
rights, privileges and preferences as the shares of Preferred Stock (“Equivalent Preferred
Stock”)) or securities convertible into Preferred Stock or Equivalent Preferred Stock at a
price per share of Preferred Stock or per share of Equivalent Preferred Stock (or having a
conversion price per share, if a security convertible into Preferred Stock or Equivalent Preferred
Stock) less than the Current Market Price (as determined pursuant to Section 11(d) hereof) per



16









 






share of Preferred Stock on such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be the number of shares of Preferred
Stock outstanding on such record date, plus the number of shares of Preferred Stock which the
aggregate offering price of the total number of shares of Preferred Stock and/or Equivalent
Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such Current Market Price, and the denominator of
which shall be the number of shares of Preferred Stock outstanding on such record date, plus the
number of additional shares of Preferred Stock and/or Equivalent Preferred Stock to be offered for
subscription or purchase (or into which the convertible securities so to be offered are initially
convertible). In case such subscription price may be paid by delivery of consideration, part or
all of which may be in a form other than cash, the value of such consideration shall be as
determined in good faith by the Board, whose determination shall be described in a statement filed
with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights.
Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed, and in the event that such rights or warrants are not so
issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.




          (c) In case the Company shall fix a record date for a distribution to all holders of Preferred
Stock (including any such distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation), cash (other than a regular quarterly cash dividend out
of the earnings or retained earnings of the Company), assets (other than a dividend payable in
Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or
evidences of indebtedness, or of subscription rights or warrants (excluding those referred to in
Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the Current Market Price (as determined pursuant to
Section 11(d) hereof) per share of Preferred Stock on such record date, less the fair market value
(as determined in good faith by the Board, whose determination shall be described in a statement
filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to
be distributed or of such subscription rights or warrants applicable to a share of Preferred Stock,
and the denominator of which shall be such Current Market Price (as determined pursuant to Section
11(d) hereof) per share of Preferred Stock. Such adjustments shall be made successively whenever
such a record date is fixed, and in the event that such distribution is not so made, the Purchase
Price shall be adjusted to be the Purchase Price which would have been in effect if such record
date had not been fixed.





     (d) (i) For the purpose of any computation hereunder, other than computations made
pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on
any date shall be deemed to be the average of the daily closing prices per share of such
Common Stock for the 30 consecutive Trading Days immediately prior to such date, and for
purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market
Price per share of Common Stock on any date shall be deemed to be the average of the daily
closing prices per share of such Common Stock for the 10 consecutive Trading Days
immediately following such date; provided, however, that in



17









 






the event that the Current Market Price per share of the Common Stock is determined
during a period following the announcement by the issuer of such Common Stock of (A) a
dividend or distribution on such Common Stock payable in shares of such Common Stock or
securities convertible into shares of such Common Stock (other than the Rights), or (B) any
subdivision, combination, consolidation, reverse stock split or reclassification of such
Common Stock, and the ex-dividend date for such dividend or distribution, or the record date
for such subdivision, combination, consolidation, reverse stock split or reclassification
shall not have occurred prior to the commencement of the requisite 30 Trading Day or 10
Trading Day period, as set forth above, then, and in each such case, the Current Market
Price shall be properly adjusted to take into account ex-dividend trading. The closing
price for each day shall be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or, if the shares of
Common Stock are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading or, if the shares of Common Stock are not
listed or admitted to trading on any national securities exchange, the last quoted price or,
if not so quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers Automated Quotation
System (“NASDAQ”) or such other system then in use, or, if on any such date the shares of Common Stock are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market in the
Common Stock selected by the Board. If on any such date no market maker is making a market
in the Common Stock, the fair value of such shares on such date as determined in good faith
by the Board shall be used. The term “Trading Day” shall mean a day on which the
principal national securities exchange on which the shares of Common Stock are listed or
admitted to trading is open for the transaction of business or, if the shares of Common
Stock are not listed or admitted to trading on any national securities exchange, a Business
Day. If the Common Stock is not publicly held or not so listed or traded, Current Market
Price per share shall mean the fair value per share as determined in good faith by the
Board, whose determination shall be described in a statement filed with the Rights Agent and
shall be conclusive for all purposes.




          (ii) For the purpose of any computation hereunder, the Current Market Price per share of
Preferred Stock shall be determined in the same manner as set forth above for the Common
Stock in clause (i) of this Section 11(d) (other than the last sentence thereof). If the
Current Market Price per share of Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly held or listed or traded in a
manner described in clause (i) of this Section 11(d), the Current Market Price per share of
Preferred Stock shall be conclusively deemed to be an amount equal to 1,000 (as such number
may be appropriately adjusted for such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock occurring after the date of this
Agreement) multiplied by the Current Market Price per share of the Common Stock. If neither
the Common Stock nor the Preferred Stock is publicly held or so listed or traded, Current
Market Price per share of the Preferred Stock shall mean the



18









 






fair value per share as determined in good faith by the Board, whose determination
shall be described in a statement filed with the Rights Agent and shall be conclusive for
all purposes.



          (e) Anything herein to the contrary notwithstanding, no adjustment in the Purchase Price shall
be required unless such adjustment would require an increase or decrease of at least 1% in the
Purchase Price; provided, however, that any adjustments which by reason of this
Section 11(e) are not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent or
to the nearest ten-thousandth of a share of Common Stock or other share or one-millionth of a share
of Preferred Stock, as the case may be. Notwithstanding the first sentence of this Section 11(e),
any adjustment required by this Section 11 shall be made no later than the earlier of (i) 3 years
from the date of the transaction which mandates such adjustment, or (ii) the Expiration Date.




          (f) If as a result of an adjustment made pursuant to Section 11(a)(ii) or Section 13(a)
hereof, the holder of any Right thereafter exercised shall become entitled to receive any shares of
capital stock other than Preferred Stock, thereafter the number of such other shares so receivable
upon exercise of any Right and the Purchase Price thereof shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect
to the Preferred Stock contained in Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m),
and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred Stock shall
apply on like terms to any such other shares.




          (g) All Rights originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the
number of 1/1000th of a share of Preferred Stock purchasable from time to time hereunder
upon exercise of the Rights, all subject to further adjustment as provided herein.




          (h) Unless the Company shall have exercised its election as provided in Section 11(i), upon
each adjustment of the Purchase Price as a result of the calculations made in Sections 11(b) and
(c), each Right outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of 1/1000th
of a share of Preferred Stock (calculated to the nearest one-millionth) obtained by (i) multiplying
(x) the number of 1/1000th of a share covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect immediately prior to such adjustment of the
Purchase Price, and (ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.




          (i) The Company may elect on or after the date of any adjustment of the Purchase Price to
adjust the number of Rights, in lieu of any adjustment in the number of 1/1000th of a
share of Preferred Stock purchasable upon the exercise of a Right. Each of the Rights outstanding
after the adjustment in the number of Rights shall be exercisable for the number of
1/1000th of a share of Preferred Stock for which a Right was exercisable immediately
prior to such adjustment. Each Right held of record prior to such adjustment of the number of
Rights shall become that number of Rights (calculated to the nearest 1/1000th) obtained
by dividing the Purchase Price in effect immediately prior to adjustment of the Purchase Price by




19









 







the Purchase Price in effect immediately after adjustment of the Purchase Price. The Company
shall make a public announcement of its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Purchase Price is adjusted or any day thereafter,
but, if the Rights Certificates have been issued, shall be at least 10 days later than the date of
the public announcement. If Rights Certificates have been issued, upon each adjustment of the
number of Rights pursuant to this Section 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Rights Certificates on such record date Rights
Certificates evidencing, subject to Section 14 hereof, the additional Rights to which such holders
shall be entitled as a result of such adjustment, or, at the option of the Company, shall cause to
be distributed to such holders of record in substitution and replacement for the Rights
Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein (and may bear, at the option of the
Company, the adjusted Purchase Price) and shall be registered in the names of the holders of record
of Rights Certificates on the record date specified in the public announcement.




          (j) Irrespective of any adjustment or change in the Purchase Price or the number of
1/1000th of a share of Preferred Stock issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may continue to express the Purchase Price
per 1/1000th of a share and the number of 1/1000th of a share which were
expressed in the initial Rights Certificates issued hereunder.




          (k) Before taking any action that would cause an adjustment reducing the Purchase Price below
the then stated value, if any, of the number of 1/1000th of a share of Preferred Stock
issuable upon exercise of the Rights, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly and legally issue fully
paid and nonassessable such number of 1/1000th of a share of Preferred Stock at such
adjusted Purchase Price.




          (l) In any case in which this Section 11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuance to the holder of any Right exercised after such
record date the number of 1/1000th of a share of Preferred Stock and other capital stock
or securities of the Company, if any, issuable upon such exercise over and above the number of
1/1000th of a share of Preferred Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to
such adjustment; provided, however, that the Company shall deliver to such holder a
due bill or other appropriate instrument evidencing such holder’s right to receive such additional
shares (fractional or otherwise) or securities upon the occurrence of the event requiring such
adjustment.




          (m) Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled
to make such reductions in the Purchase Price, in addition to those adjustments expressly required
by this Section 11, as and to the extent that in their good faith judgment the Board shall
determine to be advisable in order that any (i) consolidation or subdivision of the




20









 







Preferred Stock, (ii) issuance wholly for cash of any shares of Preferred Stock at less than
the Current Market Price, (iii) issuance wholly for cash of shares of Preferred Stock or securities
which by their terms are convertible into or exchangeable for shares of Preferred Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants referred to in this Section 11, hereafter
made by the Company to holders of its Preferred Stock shall not be taxable to such stockholders.




          (n) The Company covenants and agrees that it shall not, at any time after the Distribution
Date, (i) consolidate with any other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), (ii) merge with or into any other Person
(other than a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof),
or (iii) other than pursuant to a pro rata dividend and/or distribution to all of the then current
holders of Common Stock, sell or transfer (or permit any Subsidiary to sell or transfer), in one
transaction, or a series of related transactions, assets, cash flow or earning power aggregating
more than 50% of the assets or earning power of the Company and its Subsidiaries (taken as a whole)
to any other Person or Persons (other than the Company and/or any of its Subsidiaries in one or
more transactions each of which complies with Section 11(o) hereof), if (x) at the time of or
immediately after such consolidation, merger or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the Rights or (y) prior to,
simultaneously with or immediately after such consolidation, merger or sale, the stockholders of
the Person who constitutes, or would constitute, the “Principal Party” for purposes of Section
13(a) hereof shall have received a distribution of Rights previously owned by such Person or any of
its Affiliates and Associates.




          (o) The Company covenants and agrees that, after the Distribution Date, it will not, except as
permitted by Section 23 or Section 27 hereof, take (or permit any Subsidiary to take) any action if
at the time such action is taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be afforded by the Rights.




          (p) Anything in this Agreement to the contrary notwithstanding, except as provided in the
following sentence, in the event that the Company shall at any time after the Rights Dividend
Declaration Date and prior to the Distribution Date (i) declare a dividend on the outstanding
shares of Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding shares of
Common Stock, or (iii) combine the outstanding shares of Common Stock into a smaller number of
shares, through a reverse stock split or otherwise, the number of Rights associated with each share
of Common Stock then outstanding, or issued or delivered thereafter but prior to the Distribution
Date, shall be proportionately adjusted so that the number of Rights thereafter associated with
each share of Common Stock following any such event shall equal the result obtained by multiplying
the number of Rights associated with each share of Common Stock immediately prior to such event by
a fraction the numerator which shall be the total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the denominator of which shall be the total
number of shares of Common Stock outstanding immediately following the occurrence of such event.





21












 





     Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an adjustment is made
as provided in Section 11 and Section 13 hereof, the Company shall (a) promptly prepare a
certificate setting forth such adjustment and a brief statement of the facts accounting for such
adjustment, (b) promptly file with the Rights Agent, and with each transfer agent for the Preferred
Stock and the Common Stock, a copy of such certificate and (c) if a Distribution Date has occurred,
mail a brief summary thereof to each holder of a Rights Certificate (or, if prior to the
Distribution Date, to each holder of a share of Common Stock) in accordance with Section 26 hereof.
The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment
therein contained.



     Section 13. Consolidation, Merger or Sale or Transfer of Assets, Cash Flow or Earning Power.



          (a) In the event that, following the Stock Acquisition Date, directly or indirectly, (x) the
Company shall consolidate with, or merge with and into, any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section 11(o) hereof), and the Company shall
not be the continuing or surviving corporation of such consolidation or merger, (y) any Person
(other than a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof)
shall consolidate with, or merge with or into, the Company, and the Company shall be the continuing
or surviving corporation of such consolidation or merger and, in connection with such consolidation
or merger, all or part of the outstanding shares of Common Stock shall be changed into or exchanged
for stock or other securities of any other Person or cash or any other property, or (z) the Company
shall, other than pursuant to pro rata dividend and/or distribution to all of the then current
holders of Common Stock, sell or otherwise transfer (or one or more of its Subsidiaries) shall sell
or otherwise transfer), in one transaction or a series of related transactions, assets, cash flow
or earning power aggregating more than 50% of the assets, cash flow or earning power of the Company
and its Subsidiaries (taken as a whole) to any Person or Persons (other than the Company or any
Subsidiary of the Company in one or more transactions each of which complies with Section 11(o)
hereof), then, and in each such case, proper provision shall be made so that: (i) each holder of a
Right, except as provided in Section 7(e) hereof, shall thereafter have the right to receive, upon
the exercise thereof at the then current Purchase Price in accordance with the terms of this
Agreement, such number of validly authorized and issued, fully paid, non-assessable and freely
tradeable shares of Common Stock of the Principal Party (as such term is hereinafter defined), not
subject to any liens, encumbrances, rights of first refusal or other adverse claims, as shall be
equal to the result obtained by (1) multiplying the then current Purchase Price by the number of
1/1000th of a share of Preferred Stock for which a Right is exercisable immediately
prior to the first occurrence of a Section 13 Event (or, if a Section 11(a)(ii) Event has occurred
prior to the first occurrence of a Section 13 Event, multiplying the number of such
1/1000th of a share for which a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event by the Purchase Price in effect immediately prior to such
first occurrence of a Section 11(a)(ii) Event), and (2) dividing that product (which, following the
first occurrence of a Section 13 Event, shall be referred to as the “Purchase Price” for each Right
and for all purposes of this Agreement) by 50% of the Current Market Price (determined pursuant to
Section 11(d)(i) hereof)
per share of the Common Stock of such Principal Party on the date of consummation of such
Section 13 Event; (ii) such Principal Party shall thereafter be liable for, and shall assume, by
virtue of such Section 13 Event, all the obligations and duties of the Company pursuant to this




22









 







Agreement; (iii) the term “Company” shall thereafter be deemed to refer to such Principal Party, it
being specifically intended that the provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section 13 Event; (iv) such Principal Party
shall take such steps (including the reservation of a sufficient number of shares of its Common
Stock) in connection with the consummation of any such transaction as may be necessary to assure
that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be, in
relation to its shares of Common Stock thereafter deliverable upon the exercise of the Rights; and
(v) the provisions of Section 11(a)(ii) hereof shall be of no effect following the first occurrence
of any Section 13 Event.




          (b) “Principal Party” shall mean:





          (i) in the case of any transaction described in clause (x) or (y) of the first sentence
of Section 13(a) hereof, the Person that is the issuer of any securities into which shares
of Common Stock of the Company are converted in such merger or consolidation, and if no
securities are so issued, the Person that is the other party to such merger or
consolidation; and




          (ii) in the case of any transaction described in clause (z) of the first sentence of
Section 13(a) hereof, the Person that is the party receiving the greatest portion of the
assets, cash flow or earning power transferred pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the Common Stock of such
Person is not at such time and has not been continuously over the preceding 12 month period
registered under Section 12 of the Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and has been so registered,
“Principal Party” shall refer to such other Person; and (2) in case such Person is a
Subsidiary, directly or indirectly, of more than one Person, the Common Stock of two or more
of which are and have been so registered, “Principal Party” shall refer to whichever of such
Persons is the issuer of the Common Stock having the greatest aggregate market value.



          (c) The Company shall not consummate any such consolidation, merger, sale or transfer unless
the Principal Party shall have a sufficient number of authorized shares of its Common Stock which
have not been issued or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent a supplemental
agreement providing for the terms set forth in paragraphs (a) and (b)
of this Section 13 and further
providing that, as soon as practicable after the date of any consolidation, merger or sale of
assets mentioned in paragraph (a) of this Section 13, the Principal Party will:





          (i) prepare and file a registration statement under the Act, with respect to the Rights
and the securities purchasable upon exercise of the Rights on an appropriate form, and will
use its commercially reasonable efforts to cause such registration
statement to (A) become effective as soon as practicable after such filing and (B)
remain effective (with a prospectus at all times meeting the requirements of the Act) until
the Expiration Date;



23









 






          (ii) take all such other action as may be necessary to enable the Principal Party to
issue the securities purchasable upon exercise of the Rights, including the registration or
qualification of such securities under all requisite securities laws of jurisdictions of the
various states and the listing of such securities on such exchanges and trading markets as
may be necessary or appropriate; and




          (iii) deliver to holders of the Rights historical financial statements for the
Principal Party and each of its Affiliates which comply in all respects with the
requirements for registration on Form 10 (or any successor form) under the Exchange Act.



          (d) The provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers. In the event that a Section 13 Event shall occur at
any time after the occurrence of a Section 11(a)(ii) Event, the Rights which have not theretofore
been exercised shall thereafter become exercisable in the manner described in Section 13(a).




     Section 14. Fractional Rights and Fractional Shares.



          (a) The Company shall not be required to issue fractions of Rights, except prior to the
Distribution Date as provided in Section 11(p) hereof, or to distribute Rights Certificates which
evidence fractional Rights. In lieu of such fractional Rights, the Company shall pay to the
registered holders of the Rights Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same fraction of the current market value of
a whole Right. For purposes of this Section 14(a), the current market value of a whole Right shall
be the closing price of the Rights for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price of the Rights for any
Trading Day shall be the last sale price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular way, in either case as reported in
the principal consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the Rights are not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national securities exchange on
which the Rights are listed or admitted to trading, or if the Rights are not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter market, as reported by NASDAQ
or such other system then in use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a professional market
maker making a market in the Rights, selected by the Board. If on any such date no such market
maker is making a market in the Rights, the fair value of the Rights on such date as determined in
good faith by the Board shall be used.




          (b) The Company shall not be required to issue fractions of shares of Preferred Stock (other
than fractions which are integral multiples of one one-thousandth of a share of Preferred Stock)
upon exercise of the Rights or to distribute certificates which evidence fractional shares of
Preferred Stock (other than fractions which are integral multiples of one one-thousandth of a share
of Preferred Stock). In lieu of fractional shares of Preferred Stock that are




24









 







not integral
multiples of one one-thousandth of a share of Preferred Stock, the Company may pay to the
registered holders of Rights Certificates at the time such Rights are exercised as herein provided
an amount in cash equal to the same fraction of the current market value of one one-thousandth of a
share of Preferred Stock. For purposes of this Section 14(b), the current market value of one
one-thousandth of a share of Preferred Stock shall be one one-thousandth of the closing price of a
share of Preferred Stock (as determined pursuant to Section 11(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.




          (c) Following the occurrence of a Triggering Event, the Company shall not be required to issue
fractions of shares of Common Stock upon exercise of the Rights or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of fractional shares of Common Stock, the
Company may pay to the registered holders of Rights Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction of the current market
value of one share of Common Stock. For purposes of this Section 14(c), the current market value
of one share of Common Stock shall be the closing price per share of Common Stock (as determined
pursuant to Section 11(d)(i) hereof) on the Trading Day immediately prior to the date of such
exercise.




          (d) The holder of a Right by the acceptance of the Rights expressly waives such holder’s right
to receive any fractional Rights or any fractional shares upon exercise of a Right, except as
permitted by this Section 14.




     Section 15. Rights of Action. All rights of action in respect of this Agreement, excepting the rights
of action given to the Rights Agent under Section 18 hereof, are vested in the respective
registered holders of the Rights Certificates (and, prior to the Distribution Date, the registered
holders of the Common Stock); and any registered holder of any Rights Certificate (or, prior to the
Distribution Date, of the Common Stock), without the consent of the Rights Agent or of the holder
of any other Rights Certificate (or, prior to the Distribution Date, of the Common Stock), may, in
the holder’s own behalf and for the holder’s own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company to enforce, or otherwise act in respect of, the
holder’s right to exercise the Rights evidenced by such Rights Certificate in the manner provided
in such Rights Certificate and in this Agreement. Without limiting the foregoing or any remedies
available to the holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and shall be entitled to
specific performance of the obligations hereunder and injunctive relief against actual or
threatened violations of the obligations hereunder of any Person subject to this Agreement.



     Section 16. Agreement of Rights Holders.
Every holder of a Right by accepting the same consents and agrees with the Company and the
Rights Agent and with every other holder of a Right that:



          (a) prior to the Distribution Date, the Rights will be transferable only in connection with
the transfer of shares of Common Stock;




          (b) after the Distribution Date, the Rights Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal office or offices of the




25









 







Rights Agent
designated for such purposes, duly endorsed or accompanied by a proper instrument of transfer and
with the appropriate forms and certificates fully executed;




          (c) subject to Section 6(a) and Section 7(f) hereof, the Company and the Rights Agent may deem
and treat the person in whose name a Rights Certificate (or, prior to the Distribution Date, the
associated balance indicated in the book-entry account system of the transfer agent for the Common
Stock or, in the case of certificated shares, the associated Common Stock certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Rights Certificates or the associated balance indicated in
the book-entry account system of the transfer agent for the Common Stock or, in the case of
certificated shares, the associated Common Stock certificate, made by anyone other than the Company
or the Rights Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent,
subject to the last sentence of Section 7(e) hereof, shall be required to be affected by any notice
to the contrary; and




          (d) notwithstanding anything in this Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of a Right or other Person as a result of its
inability to perform any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction
or by a governmental, regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation; provided, however, the
Company must use its commercially reasonable efforts to have any such order, decree or ruling
lifted or otherwise overturned as soon as possible.




     Section 17. Rights Certificate Holder Not Deemed a Stockholder. No holder, as such, of any Rights
Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the holder of
the number of 1/1000th of a share of Preferred Stock or any other securities of the
Company which may at any time be issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Rights Certificate be construed to confer upon the holder
of any Rights Certificate, as such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in Section 25 hereof), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights evidenced by such Rights
Certificate shall have been exercised in accordance with the provisions hereof.



     Section 18. Concerning the Rights Agent.



          (a) The Company agrees to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and disbursements and other disbursements incurred in the administration
and execution of this Agreement and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without gross negligence, bad faith or willful misconduct (each as
determined by a court of competent jurisdiction) on the part of the



26









 






Rights Agent, for anything done
or omitted by the Rights Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against any claim of liability in the
premises.




          (b) The Rights Agent shall be protected and shall incur no liability for or in respect of any
action taken, suffered or omitted by it in connection with its administration of this Agreement in
reliance upon any Rights Certificate or the balance indicated in the book-entry account system of
the transfer agent for the Common Stock or, in the case of certificated shares, certificate for
Common Stock, or for other securities of the Company, instrument of assignment or transfer, power
of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement, or
other paper or document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper Person or Persons.




     Section 19. Merger or Consolidation or Change of Name of Rights Agent.



          (a) Any Person into which the Rights Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any Person resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a party, or any Person succeeding to the
corporate trust, stock transfer or other stockholder services business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the parties hereto; but
only if such Person would be eligible for appointment as a successor Rights Agent under the
provisions of Section 21 hereof. In case at the time such successor Rights Agent shall succeed to
the agency created by this Agreement, any of the Rights Certificates shall have been countersigned
but not delivered, any such successor Rights Agent may adopt the countersignature of a predecessor
Rights Agent and deliver such Rights Certificates so countersigned; and in case at that time any of
the Rights Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor or in the name of the
successor Rights Agent; and in all such cases such Rights Certificates shall have the full force
provided in the Rights Certificates and in this Agreement.




          (b) In case at any time the name of the Rights Agent shall be changed and at such time any of
the Rights Certificates shall have been countersigned but not delivered, the
Rights Agent may adopt the countersignature under its prior name and deliver Rights
Certificates so countersigned; and in case at that time any of the Rights Certificates shall not
have been countersigned, the Rights Agent may countersign such Rights Certificates either in its
prior name or in its changed name; and in all such cases such Rights Certificates shall have the
full force provided in the Rights Certificates and in this Agreement.




     Section 20. Duties of Rights Agent. The Rights Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, by all of which the Company and the holders
of Rights Certificates, by their acceptance thereof, shall be bound:



          (a) The Rights Agent may consult with legal counsel (who may be legal counsel for the
Company), and the opinion of such counsel shall be full and complete



27









 






authorization and protection
to the Rights Agent as to any action taken or omitted by it in good faith and in accordance with
such opinion.




          (b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem
it necessary or desirable that any fact or matter (including the identity of any Acquiring Person
and the determination of Current Market Price) be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by the Chairman of the Board, the Chief Executive Officer, the President,
any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full
authorization to the Rights Agent for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.




          (c) The Rights Agent shall be liable hereunder only for its own negligence, bad faith or
willful misconduct.




          (d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Rights Certificates or be required to verify the
same (except as to its countersignature on such Rights Certificates), but all such statements and
recitals are and shall be deemed to have been made by the Company only.




          (e) The Rights Agent shall not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Rights Certificate; nor shall it be
responsible for any adjustment required under the provisions of Section 11, Section 13 or Section
24 hereof or responsible for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such adjustment (except with respect
to the exercise of Rights evidenced by Rights Certificates after actual notice of any such
adjustment); nor shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any shares of Common Stock or Preferred Stock to be
issued pursuant to this Agreement or any Rights Certificate or as to whether any shares of Common
Stock or Preferred Stock will, when so issued, be validly authorized and issued, fully paid and
nonassessable.




          (f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Rights Agent for the carrying out or performing by
the Rights Agent of the provisions of this Agreement.




          (g) The Rights Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer
or any Assistant Treasurer of the Company, and to apply to such officers




28









 







for advice or instructions
in connection with its duties, and it shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such officer.




          (h) The Rights Agent and any stockholder, director, officer or employee of the Rights Agent
may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not Rights Agent under
this Agreement. Nothing herein shall preclude the Rights Agent from acting in any other capacity
for the Company or for any other Person.




          (i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or through its attorneys or agents, and the
Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct; provided, however, reasonable care was exercised in the
selection and continued employment thereof.




          (j) No provision of this Agreement shall require the Rights Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties hereunder
(other than internal costs incurred by the Rights Agent in providing services to the Corporation in
the ordinary course of its business as Rights Agent) or in the exercise of its rights if there
shall be reasonable grounds for believing that repayment of such funds or adequate indemnification
against such risk or liability is not reasonably assured to it.




          (k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or
transfer, the certificate attached to the form of assignment or form of election to purchase, as
the case may be, has either not been completed or indicates an affirmative response to clause (1)
and/or (2) thereof, the Rights Agent shall not take any further action with respect to such
requested exercise or transfer without first consulting with the Company.




     Section 21. Change of Rights Agent.
The Rights Agent or any successor Rights Agent may resign and be discharged from its duties
under this Agreement upon 30 days’ notice in writing mailed to the Company, and to each transfer
agent of the Common Stock and Preferred Stock, by registered or certified mail, and, if such
resignation occurs after the Distribution Date, to the registered holders of the Rights
Certificates by first-class mail. The Company may remove the Rights Agent or any successor Rights
Agent upon 30 days’ notice in writing, mailed to the Rights Agent or successor Rights Agent, as the
case may be, and to each transfer agent of the Common Stock and Preferred Stock, by registered or
certified mail, and, if such removal occurs after the Distribution Date, to the holders of the
Rights Certificates by first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to the Rights Agent.
If the Company shall fail to make such appointment within a period of 30 days after giving notice
of such removal or after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Rights Certificate (who shall, with
such notice, submit his Rights Certificate for inspection by the Company), then any registered
holder of any Rights Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent.



29









 




Any successor Rights Agent, whether appointed by the Company or
by such a court, shall be (a) a legal business entity organized and doing business under the laws
of the United States or any State thereof, in good standing, having an office in the State of New
York, which is authorized under such laws to exercise corporate trust, stock transfer or
stockholder services powers and which has at the time of its appointment as Rights Agent a combined
capital and surplus of at least $50,000,000 or (b) an affiliate of a legal business entity
described in clause (a) of this sentence. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had been originally named
as Rights Agent without further act or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time held by it hereunder, and execute
and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Common Stock and the Preferred
Stock, and, if such appointment occurs after the Distribution Date, mail a notice thereof in
writing to the registered holders of the Rights Certificates. Failure to give any notice provided
for in this Section 21, however, or any defect therein, shall not affect the legality or validity
of the resignation or removal of the Rights Agent or the appointment of the successor Rights Agent,
as the case may be.




     Section 22. Issuance of New Rights Certificates. Notwithstanding any of the provisions of this
Agreement or of the Rights to the contrary, the Company may, at its option, issue new Rights
Certificates evidencing Rights in such form as may be approved by the Board to reflect any
adjustment or change in the Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Rights Certificates made in accordance with the
provisions of this Agreement. In addition, in connection with the issuance or sale of shares of
Common Stock following the Distribution Date and prior to the redemption or expiration of the
Rights, the Company (a) shall, with respect to shares of Common Stock so issued or sold pursuant to
the exercise of stock options or under any employee plan or arrangement, granted or awarded as of
the Distribution Date, or upon the exercise, conversion or exchange of securities hereinafter
issued by the Company, and (b) may, in any other case, if deemed necessary or appropriate by the
Board, issue Rights Certificates
representing the appropriate number of Rights in connection with such issuance or sale;
provided, however, that (i) no such Rights Certificate shall be issued if, and to
the extent that, the Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or the Person to whom such
Rights Certificate would be issued, and (ii) no such Rights Certificate shall be issued if, and to
the extent that, appropriate adjustment shall otherwise have been made in lieu of the issuance
thereof.



     Section 23. Redemption and Termination.



          (a) The Board may, at its option, at any time prior to the earlier of (i) the Close of
Business on the 10th Business Day (or such specified or unspecified later date as may be
determined by the Board before the Rights cease to be redeemable) following the Stock Acquisition
Date (or, if the Stock Acquisition Date shall have occurred prior to the Record Date, the Close of
Business on the 10th Business Day following the Record Date), or (ii) the Final
Expiration Date, (x) redeem all but not less than all of the then outstanding Rights at a
redemption price of $0.001 per Right, as such amount may be appropriately adjusted to reflect




30









 







any
stock split, stock dividend or similar transaction occurring after the date hereof (such redemption
price being hereinafter referred to as the “Redemption Price”) or (y) amend this Agreement
to change the Final Expiration Date to another date, including an earlier date. Notwithstanding
anything contained in this Agreement to the contrary, the Rights shall not be exercisable after the
first occurrence of a Section 11(a)(ii) Event until such time as the Company’s right of redemption
hereunder has expired. The Company may, at its option, pay the Redemption Price in cash, shares of
Common Stock (based on the Current Market Price, as defined in Section 11(d)(i) hereof, of the
Common Stock at the time of redemption) or any other form of consideration deemed appropriate by
the Board.




          (b) Immediately upon the action of the Board ordering the redemption of the Rights, evidence
of which shall have been filed with the Rights Agent and without any further action and without any
notice, the right to exercise the Rights will terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price for each Right so held. Promptly after
the action of the Board ordering the redemption of the Rights, the Company shall give notice of
such redemption to the Rights Agent and the holders of the then outstanding Rights by mailing such
notice to all such holders at each holder’s last address as it appears upon the registry books of
the Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent
for the Common Stock. Any notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice of redemption will state
the method by which the payment of the Redemption Price will be made.




     Section 24. Exchange.




          (a) The Board may, at its option, at any time after any Person becomes an Acquiring Person,
exchange all or part of the then outstanding and exercisable Rights (which shall not include Rights
that have become void pursuant to the provisions of Section 7(e) hereof) for Common Stock at an
exchange ratio of one share of Common Stock per Right, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date hereof (such exchange ratio
being hereinafter referred to as the “Exchange Ratio”). Notwithstanding the foregoing, the
Board shall not be empowered to effect such exchange at any time after any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the Company or any such
Subsidiary, any entity holding Common Stock for or pursuant to the terms of any such plan, or any
Sponsor), together with all Affiliates and Associates of such Person, becomes the Beneficial Owner
of 50% or more of the Common Stock  then outstanding.




          (b) Immediately upon the action of the Board ordering the exchange of any Rights pursuant to
subsection (a) of this Section 24 and without any further action and without any notice, the right
to exercise such Rights shall terminate and the only right thereafter of a holder of such Rights
shall be to receive that number of shares of Common Stock equal to the number of such Rights held
by such holder multiplied by the Exchange Ratio. The Company shall promptly give public notice of
any such exchange; provided, however, that the failure to give, or any defect in,
such notice shall not affect the validity of such exchange. The Company promptly shall mail a
notice of any such exchange to all of the holders of such Rights at their last addresses as they
appear upon the registry books of the Rights Agent. Any notice which is



31









 






mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the notice. Each such
notice of exchange will state the method by which the exchange of the Common Stock for Rights will
be effected and, in the event of any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the provisions of Section 7(e) hereof) held by each
holder of Rights.




          (c) In any exchange pursuant to this Section 24, the Company, at its option, may substitute
Preferred Stock (or Equivalent Preferred Stock, as such term is defined in paragraph (b) of Section
11 hereof) for Common Stock exchangeable for Rights, at the initial rate of one one-thousandth of a
share of Preferred Stock (or Equivalent Preferred Stock) for each share of Common Stock, as
appropriately adjusted to reflect stock splits, stock dividends and other similar transactions
after the date hereof.




          (d) In the event that there shall not be sufficient shares of Common Stock issued but not
outstanding or authorized but unissued to permit any exchange of Rights as contemplated in
accordance with this Section 24, the Company shall take all such action as may be necessary to
authorize additional shares of Common Stock for issuance upon exchange of the Rights.




          (e) The Company shall not be required to issue fractions of shares of Common Stock or, in the
case of certificated shares, to distribute certificates which evidence fractional shares of Common
Stock. In lieu of such fractional shares of Common Stock, there shall be paid to the registered
holders of the Rights Certificates with regard to which such fractional shares of Common Stock
would otherwise be issuable, an amount in cash equal to the
same fraction of the current market value of a whole share of Common Stock. For the purposes
of this subsection (e), the current market value of a whole share of Common Stock shall be the
closing price of a share of Common Stock (as determined pursuant to the second sentence of Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of exchange pursuant to this
Section 24.




     Section 25. Notice of Certain Events.



          (a) In case the Company shall propose, at any time after the Distribution Date, (i) to pay any
dividend payable in stock of any class to the holders of Preferred Stock or to make any other
distribution to the holders of Preferred Stock (other than a regular quarterly cash dividend out of
earnings or retained earnings of the Company), or (ii) to offer to the holders of Preferred Stock
rights or warrants to subscribe for or to purchase any additional shares of Preferred Stock or
shares of stock of any class or any other securities, rights or options, or (iii) to effect any
reclassification of its Preferred Stock (other than a reclassification involving only the
subdivision of outstanding shares of Preferred Stock), or (iv) to effect any consolidation or
merger into or with any other Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), or, other than pursuant to a pro rata dividend and/or
distribution to all of the then current holders of Common Stock, to effect any sale or other
transfer (or to permit one or more of its Subsidiaries to effect any sale or other transfer), in
one transaction or a series of related transactions, of more than 50% of the assets, cash flow or
earning power of the Company and its Subsidiaries (taken as a whole) to any other Person or



32









 






Persons
(other than the Company and/or any of its Subsidiaries in one or more transactions each of which
complies with Section 11(o) hereof), or (v) to effect the liquidation, dissolution or winding up of
the Company, then, in each such case, the Company shall give to each holder of a Rights
Certificate, to the extent feasible and in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the shares of Preferred Stock, if any such date is to be
fixed, and such notice shall be so given in the case of any action covered by clause (i) or (ii)
above at least 20 days prior to the record date for determining holders of the shares of Preferred
Stock for purposes of such action, and in the case of any such other action, at least 20 days prior
to the date of the taking of such proposed action or the date of participation therein by the
holders of the shares of Preferred Stock, whichever shall be the earlier.




          (b) In case any of the events set forth in Section 11(a)(ii) hereof shall occur, then, in any
such case, (i) the Company shall as soon as practicable thereafter give to each holder of a Rights
Certificate, to the extent feasible and in accordance with Section 26 hereof, a notice of the
occurrence of such event, which shall specify the event and the consequences of the event to
holders of Rights under Section 11(a)(ii) hereof, and (ii) all references in the preceding
paragraph to Preferred Stock shall be deemed thereafter to refer to Common Stock and/or, if
appropriate, other securities.




     Section 26. Notices.
Notices or demands authorized by this Agreement to be given or made by the Rights Agent or by
the holder of any Rights Certificate to or on the Company shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is filed in writing by
the Rights Agent with the Company) as follows:


Maxum Petroleum Holdings, Inc.

1455 East Putnam Avenue

Old Greenwich, Connecticut 06870

Attention: Corporate Secretary



With a copy to:



Kirkland & Ellis LLP

Citigroup Center

153 East 53rd Street

New York, New York 10022

Attention: Christian Nagler, Esq.




     Subject to the provisions of Section 21, any notice or demand authorized by this Agreement to
be given or made by the Company or by the holder of any Rights Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing by the Rights Agent with the Company) as follows:



33









 




American Stock Transfer & Trust Company

59 Maiden Lane, Plaza Level

New York, New York 10038

Attention: Client Administration



With a copy to:



[•]

Attention: [•]

[•] (facsimile)

[•] (telephone)





     Notices or demands authorized by this Agreement to be given or made by the Company or the
Rights Agent to the holder of any Rights Certificate (or, if prior to the Distribution Date, to the
holder of shares of Common Stock) shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address of such holder as shown on the registry
books of the Company.



     Section 27. Supplements and Amendments. Prior to the Distribution Date, the Company and the Rights
Agent shall, if the Company so directs, supplement or amend any provision of this Agreement without
the approval of any holders of shares of Common Stock. From and after the Distribution Date, the
Company and the
Rights Agent shall, if the Company so directs, supplement or amend this Agreement without the
approval of any holders of Rights Certificates in order (i) to cure any ambiguity, (ii) to correct
or supplement any provision contained herein which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time period hereunder or (iv) to change or
supplement the provisions hereunder in any manner which the Company may deem necessary or desirable
and which shall not adversely affect the interests of the holders of Rights Certificates (other
than an Acquiring Person or an Affiliate or Associate of an Acquiring Person). Upon the delivery
of a certificate from an appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this Section 27, the Rights Agent shall
execute such supplement or amendment. Prior to the Distribution Date, the interests of the holders
of Rights shall be deemed coincident with the interests of the holders of Common Stock.
Notwithstanding anything herein to the contrary, this Agreement may not be amended (other than
pursuant to clauses (i) or (ii) of the preceding sentence) at a time when the Rights are not
redeemable. Notwithstanding anything herein to the contrary, the Rights Agent may, but shall not
be obligated to, enter into any supplement or amendment that affects the Rights Agent’s own rights,
duties, obligations or immunities under this Agreement.



     Section 28. Successors. All the covenants and provisions of this Agreement by or for the benefit of
the Company or the Rights Agent shall bind and inure to the benefit of their respective successors
and assigns hereunder.



     Section 29. Determinations and Actions by the Board, etc. For all purposes of this Agreement, any
calculation of the number of shares of Common Stock or any other class of capital stock outstanding
at any particular time, including for purposes of determining the particular percentage of such
outstanding shares of Common Stock of which any Person is the



34









 




Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under
the Exchange Act. The Board shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the Board, or as may be
necessary or advisable in the administration of this Agreement, including the right and power to
(i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary
or advisable for the
administration of this Agreement (including a determination to redeem or not redeem the Rights or
to amend the Agreement). All such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect to the foregoing) which
are done or made by the Board in good faith, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights and all other parties, and (y) not subject the
Board, or any of the directors on the Board to any liability to the holders of the Rights.




     Section 30. Benefits of this Agreement. Nothing in this Agreement shall be construed to give to
any Person other than the Company, the Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date, registered holders of the Common Stock) any
legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of
the Company, the Rights Agent and the registered holders of the Rights Certificates (and,
prior to the Distribution Date, registered holders of the Common Stock).



     Section 31. Severability. If any term, provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated; provided,
however, that notwithstanding anything in this Agreement to the contrary, if any such term,
provision, covenant or restriction is held by such court or authority to be invalid, void or
unenforceable and the Board determines in its good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose or effect of this Agreement, the
right of redemption set forth in Section 23 hereof shall be reinstated and shall not expire until
the Close of Business on the 10th Business Day following the date of such determination
by the Board. Without limiting the foregoing, if any provision requiring a specific group of
directors of the Company to act is held by any court of competent jurisdiction or other
authority to be invalid, void or unenforceable, such determination shall then be made by the Board
in accordance with applicable law and the Company’s Amended and Restated Certificate of
Incorporation and By-laws.



     Section 32. Governing Law. This Agreement, each Right and each Rights Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such State applicable to
contracts made and to be performed entirely within such State.



     Section 33. Counterparts. This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument.



35









 





     Section 34. Descriptive Headings.
Descriptive headings of the several sections of this Agreement are inserted for convenience only
and shall not control or affect the meaning or construction of any of the provisions hereof.


[Signature page follows]




36









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as
of the day and year first above written.



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	MAXUM PETROLEUM HOLDINGS, INC.
	 
	 	 	 	 	 	 	 	 
	Attest:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By

	 	 	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	 	 	 	 	Name:	 	 
	Title:

	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	AMERICAN STOCK TRANSFER & TRUST COMPANY
	Attest:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	 	 	 	 	Name:	 	 
	Title:

	 	 	 	 	 	Title:
	 	 







 











 





Exhibit A




FORM OF

CERTIFICATE OF DESIGNATION, PREFERENCES AND

RIGHTS OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK




of




Maxum Petroleum Holdings, Inc.




Pursuant to Section 151 of the General Corporation Law

of the State of Delaware




     We, the undersigned officers of Maxum Petroleum Holdings, Inc., a Delaware corporation (the
“Corporation”), pursuant to the provisions of Sections 103 and 151 of the General
Corporation Law of the State of Delaware, do hereby state and certify that pursuant to the
authority vested in the Board of Directors of the Corporation (the “Board”) by the Amended
and Restated Certificate of Incorporation of the Corporation, the
Board on [•], 2008, duly adopted
the following resolution creating a series of [•] shares of Preferred Stock designated as Series A
Junior Participating Preferred Stock:



     RESOLVED, that pursuant to the authority vested in the Board in accordance with the provisions
of its Amended and Restated Certificate of Incorporation, a series of Preferred Stock of the
Corporation be and hereby is created, and that the designation and amount thereof and the voting
powers, preferences and relative, participating, optional and other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof are as follows:



     Section 1 Designation and Amount. The shares of such series shall be designated as “Series
A Junior Participating Preferred Stock” and the number of shares constituting such series shall be
[•].



     Section 2 Dividends and Distributions.



     (A) Subject to the prior and superior rights of the holders of any shares of any series of
Preferred Stock ranking prior and superior to the shares of Series A Junior Participating Preferred
Stock with respect to dividends, the holders of shares of Series A Junior Participating Preferred
Stock shall be entitled to receive, when, as and if declared by the Board out of funds legally
available for the purpose, quarterly dividends payable in cash on the day of      ,        , and in each
year (each such date being referred to herein as a “Quarterly Dividend Payment Date”),
commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Junior Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $0.01 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all cash
dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared
on the common stock, par value $0.01 per share, of the Corporation (the “Common Stock”),
since the immediately preceding Quarterly Dividend Payment Date, or, with respect to



A-1









 




the first
Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of
Series A Junior Participating Preferred Stock. In the event the Corporation shall at any time
after the Rights Dividend Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock, through a reverse stock split or otherwise, into a smaller number of
shares, then in each such case the amount to which holders of shares of Series A Junior
Participating Preferred Stock were entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.




     (B) The Corporation shall declare a dividend or distribution on the Series A Junior
Participating Preferred Stock as provided in Paragraph (A) above immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $0.01 per share on the Series A Junior
Participating Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.



     (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series A Junior Participating Preferred Stock, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Junior Participating Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares
of Series A Junior Participating Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board may fix a record
date for the determination of holders of shares of Series A Junior Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon, which record date shall
be no more than 30 days prior to the date fixed for the payment thereof.



     Section 3 Voting Rights. The holders of shares of Series A Junior Participating Preferred Stock shall have the following
voting rights:



     (A) Subject to the provision for adjustment hereinafter set forth, each share of Series A
Junior Participating Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters
submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at
any time after the Rights Dividend Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common



A-2









 




Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares, through a reverse stock split or
otherwise, then in each such case the number of votes per share to which holders of shares of
Series A Junior Participating Preferred Stock were entitled immediately prior to such event shall
be adjusted by multiplying such number by a fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately prior to such event.





(B) Except as otherwise provided herein or by law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of shares of Common Stock shall vote together as one
class on all matters submitted to a vote of stockholders of the Corporation.




(C) (i) If at any time dividends on any Series A Junior Participating Preferred Stock shall
be in arrears in an amount equal to 6 quarterly dividends thereon, the occurrence of such
contingency shall mark the beginning of a period (herein called a “default period”)
which shall extend until such time when all accrued and unpaid dividends for all previous
quarterly dividend periods and for the current quarterly dividend period on all shares of
Series A Junior Participating Preferred Stock then outstanding shall have been declared and
paid or set apart for payment. During each default period, all holders of Preferred Stock
(including holders of the Series A Junior Participating Preferred Stock) with dividends in
arrears in an amount equal to 6 quarterly dividends thereon, voting as a class, irrespective
of series, shall have the right to elect 2 directors.




     (ii) During any default period, such voting right of the holders of Series A Junior
Participating Preferred Stock may be exercised initially at a special meeting called
pursuant to subparagraph (iii) of this Section 3(C) or at any annual meeting of
stockholders, and thereafter at annual meetings of stockholders; provided that such
voting right shall not be exercised unless the holders of 10% in number of shares of
Preferred Stock outstanding shall be present in person or by proxy. The absence of a quorum
of the holders of Common Stock shall not affect the exercise by the holders of Preferred
Stock of such voting right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default period, they shall have the
right, voting as a class, to elect directors to fill such vacancies, if any, in the Board as
may then exist up to 2 directors or, if such right is exercised at an annual meeting, to
elect 2 directors. If the number which may be so elected at any special meeting does not
amount to the required number, the holders of the Preferred Stock shall have the right to
make such increase in the number of directors as shall be necessary to permit the election
by them of the required number. After the holders of the Preferred Stock shall have
exercised their right to elect directors in any default period and during the continuance of
such period, the number of directors shall not be increased or decreased except by vote
of the holders of Preferred Stock as herein provided or pursuant to the rights of any equity
securities ranking senior to or pari passu with the Series A Junior Participating Preferred
Stock.




     (iii) Unless the holders of Preferred Stock shall, during an existing default period,
have previously exercised their right to elect directors, the Board may order, or any
stockholder or stockholders owning in the aggregate not less than 10% of the total



A-3









 






number of shares of Preferred Stock outstanding, irrespective of series, may request, the calling of a
special meeting of the holders of Preferred Stock, which meeting shall thereupon be called
by the President, a Vice-President or the Secretary of the Corporation. Notice of such
meeting and of any annual meeting at which holders of Preferred Stock are entitled to vote
pursuant to this Paragraph (C)(iii) shall be given to each holder of record of Preferred
Stock by mailing a copy of such notice to him at his last address as the same appears on the
books of the Corporation. Such meeting shall be called for a time not earlier than 20 days
and not later than 60 days after such order or request or in default of the calling of such
meeting within 60 days after such order or request, such meeting may be called on similar
notice by any stockholder or stockholders owning in the aggregate not less than 10% of the
total number of shares of Preferred Stock outstanding. Notwithstanding the provisions of
this Paragraph (C)(iii), no such special meeting shall be called during the period within 60
days immediately preceding the date fixed for the next annual meeting of the stockholders.




     (iv) In any default period, the holders of Common Stock, and other classes of stock of
the Corporation if applicable, shall continue to be entitled to elect the whole number of
directors until the holders of Preferred Stock shall have exercised their right to elect 2
directors voting as a class, after the exercise of which right (x) the directors so elected
by the holders of Preferred Stock shall continue in office until their successors shall have
been elected by such holders or until the expiration of the default period, and (y) any
vacancy in the Board may (except as provided in Paragraph (C)(ii) of this Section 3) be
filled by vote of a majority of the remaining directors theretofore elected by the holders
of the class of stock which elected the director whose office shall have become vacant.
References in this Paragraph (C) to directors elected by the holders of a particular class
of stock shall include directors elected by such directors to fill vacancies as provided in
clause (y) of the foregoing sentence.




     (v) Immediately upon the expiration of a default period, (x) the right of the holders
of Preferred Stock as a class to elect directors shall cease, (y) the term of any directors
elected by the holders of Preferred Stock as a class shall terminate, and (z) the number of
directors shall be such number as may be provided for in the certificate of incorporation or
by-laws irrespective of any increase made pursuant to the provisions of Paragraph (C)(ii) of
this Section 3 (such number being subject, however, to change thereafter in any manner
provided by law or in the certificate of incorporation or by-laws). Any vacancies in the
Board effected by the provisions of clauses (y) and (z) in the preceding sentence may be
filled by a majority of the remaining directors.



     (D) Except as set forth herein, holders of Series A Junior Participating Preferred Stock shall
have no special voting rights and their consent shall not be required (except to the extent they
are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate
action.



     Section 4 Certain Restrictions.



     (A) Whenever quarterly dividends or other dividends or distributions payable on the Series A
Junior Participating Preferred Stock as provided in Section 2 are in arrears, thereafter and



A-4









 




until
all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have been paid in full, the Corporation
shall not:





     (i) declare or pay dividends on, make any other distributions on, or redeem or purchase
or otherwise acquire for consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;




     (ii) declare or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred Stock, except dividends paid ratably on the
Series A Junior Participating Preferred Stock and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts to which the holders of all
such shares are then entitled;




     (iii) redeem or purchase or otherwise acquire for consideration shares of any stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred Stock; provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the Series A Junior
Participating Preferred Stock; or




     (iv) purchase or otherwise acquire for consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of stock ranking on a parity with the Series A
Junior Participating Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board) to all holders of such shares upon
such terms as the Board, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes, shall determine
in good faith will result in fair and equitable treatment among the respective series or
classes.



     (B) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation
could, under Paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.



     Section 5 Reacquired Shares. Any shares of Series A Junior Participating Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or resolutions of the Board, subject to the
conditions and restrictions on issuance set forth herein.



     Section 6 Liquidation, Dissolution or Winding Up.



A-5









 





     (A) Upon any liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of Series A Junior
Participating Preferred Stock shall have received an amount equal to $1,000 per share of Series A
Junior Participating Preferred Stock, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment (the “Series A
Liquidation Preference”). Following the payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of Common Stock shall
have received an amount per share (the “Common Adjustment”) equal to the quotient obtained
by dividing (i) the Series A Liquidation Preference by (ii) 1,000 (as appropriately adjusted as set
forth in subparagraph (C) below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number in clause (ii), the
“Adjustment Number”). Following the payment of the full amount of the Series A Liquidation
Preference and the Common Adjustment in respect of all outstanding shares of Series A Junior
Participating Preferred Stock and Common Stock, respectively, holders of Series A Junior
Participating Preferred Stock and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of the Adjustment Number
to 1 with respect to such Preferred Stock and Common Stock, on a per share basis, respectively.



     (B) In the event, however, that there are not sufficient assets available to permit payment in
full of the Series A Liquidation Preference and the liquidation preferences of all other series of
preferred stock, if any, which rank on a parity with the Series A Junior Participating Preferred
Stock, then such remaining assets shall be distributed ratably to the holders of such parity shares
in proportion to their respective liquidation preferences. In the event, however, that there are
not sufficient assets available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.



     (C) In the event the Corporation shall at any time after the Rights Dividend Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, through a reverse stock split or otherwise, then in
each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.



     Section 7 Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case the shares of Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 1,000 times the aggregate amount of stock, securities,



A-6









 




cash and/or
any other property (payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any time after the
Rights Dividend Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, through a reverse stock split or otherwise, then in each
such case the amount set forth in the preceding sentence with respect to the exchange or change of
shares of Series A Junior Participating Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.




     Section 8 No Redemption. The shares of Series A Junior Participating Preferred Stock shall
not be redeemable.



     Section 9 Ranking. The Series A Junior Participating Preferred Stock shall rank junior to
all other series of the Corporation’s Preferred Stock as to the payment of dividends and the
distribution of assets, unless the terms of any such series shall provide otherwise.



     Section 10 Amendment. At any time when any shares of Series A Junior Participating
Preferred Stock are outstanding, neither the Amended and Restated Certificate of Incorporation of the
Corporation nor this Certificate of Designation shall be amended in any manner which would
materially alter or change the powers, preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely without the affirmative vote of the
holders of a majority or more of the outstanding shares of Series A Junior Participating Preferred
Stock, voting separately as a class.



     Section 11 Fractional Shares. Series A Junior Participating Preferred Stock may be issued in fractions of a share which shall
entitle the holder, in proportion to such holder’s fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all other rights of
holders of Series A Junior Participating Preferred Stock.



A-7









 





     IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do affirm the
foregoing as true under the penalties of perjury this
[•] day of [•] 2008.




	 	 	 
	 

	 	 
	 

	 	Name:
	 

	 	Title:






	 	 	 	 	 
	Attest:
	 	 	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 







A-8









 








Exhibit B




Form of Rights Certificate




Certificate No. R-                    



NOT
EXERCISABLE AFTER 5:00 P.M., NEW YORK CITY TIME ON [•], 2018 OR EARLIER IF THE RIGHTS ARE
PREVIOUSLY REDEEMED, EXCHANGED OR TERMINATED. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION
OF THE COMPANY, AT $.001 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE
RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS
REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME
AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED
IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY
MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]1




Rights Certificate




Maxum Petroleum Holdings, Inc.



This certifies that
                                        
, or registered assigns, is the registered owner of
the number of Rights set forth above, each of which entitles the owner thereof, subject to the
terms, provisions and conditions of the Rights Agreement, dated as of
[•], 2008 (the
“Rights Agreement”), as it may be amended, restated, renewed or extended from time to time,
between Maxum Petroleum Holdings, Inc., a Delaware corporation (the “Company”), and
American Stock Transfer & Trust Company, a New York corporation (the “Rights Agent”), to
purchase from the Company at any time prior to 5:00 P.M., New York
City time on [•], 2018,
unless the Rights are previously redeemed, exchanged or terminated, at the office or offices of the
Rights Agent designated for such purpose, or its successors as Rights Agent, one one-thousandth of
a fully paid, non-assessable share of Series A Junior Participating Preferred Stock (the
“Preferred Stock”) of the Company, at a purchase price of $[•] per one one-thousandth
of a share (the “Purchase Price”), upon presentation and surrender of this Rights
Certificate with the Form of Election to Purchase and related Certificate duly executed. The
number of Rights evidenced by this Rights Certificate (and the number of shares which may be
purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above,
are the number and Purchase Price as of
[•], 2008, based on the Preferred Stock as
constituted at such






 




			
	1	 	The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.





B-1









 




date. The Company reserves the right to require prior to the occurrence of a Triggering Event (as such term is defined in the Rights Agreement) that a number of Rights be exercised so that
only whole shares of Preferred Stock will be issued.



Upon the occurrence of a Section 11(a)(ii) Event (as such term is defined in the Rights
Agreement), if the Rights evidenced by this Rights Certificate are beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement), (ii) a transferee of any such Acquiring Person, Associate or
Affiliate, or (iii) under certain circumstances specified in the Rights Agreement, a transferee of
a person who, after such transfer, became an Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right
with respect to such Rights from and after the occurrence of such Section 11(a)(ii) Event.



As provided in the Rights Agreement, the Purchase Price and the number and kind of shares of
Preferred Stock or other securities, which may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification and adjustment upon the happening
of certain events, including Triggering Events.



This Rights Certificate is subject to all of the terms, provisions and conditions of the
Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Rights Certificates, which limitations of
rights include the temporary suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the Rights Agreement are on file at the
above-mentioned office of the Rights Agent and are also available upon written request to the
Rights Agent.



This Rights Certificate, with or without other Rights Certificates, upon surrender at the
office of the Rights Agent designated for such purpose, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of 1/1000th of a share of Preferred Stock as the Rights
evidenced by the Rights Certificate or Rights Certificates surrendered shall have entitled such
holder to purchase. If this Rights Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Rights Certificate or Rights Certificates for the
number of whole Rights not exercised.



Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate
may be redeemed by the Company at its option at any time prior to the earlier of the Close of
Business on (A) the 10th Business Day following the Stock Acquisition Date (as such time
period may be extended pursuant to the Rights Agreement), and (B) the Final Expiration Date at a
redemption price of $0.001 per Right.



No fractional shares of Preferred Stock will be issued upon the exercise of any Right or
Rights evidenced hereby (other than fractions which are integral multiples of one one-thousandth of
a share of Preferred Stock, which may, at the election of the Company, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made, as provided in the Rights



B-2









 






Agreement. The Company, at its election, may require that a number of Rights be exercised so
that only whole shares of Preferred Stock would be issued.




     No holder of this Rights Certificate shall be entitled to vote or receive dividends or be
deemed for any purpose the holder of shares of Preferred Stock or of any other securities of the
Company which may at any time be issuable on the exercise hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of directors or upon
any matter submitted to stockholders at any meeting thereof, or to give consent to or withhold
consent from any corporate action, or, to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights Certificate shall have
been exercised as provided in the Rights Agreement.



     This Rights Certificate shall not be valid or obligatory for any purpose until it shall have
been countersigned by the Rights Agent.



B-3









 





     WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.



Dated as of                      ___, ___.




	 	 	 	 	 	 	 	 	 
	ATTEST:	 	 	 	MAXUM PETROLEUM HOLDINGS, INC.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 	 	 	 	 	 	 
	Secretary	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 
	Countersigned:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	AMERICAN STOCK TRANSFER & TRUST COMPANY	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	Authorized Signature	 	 	 	 	 	 






[Form of Reverse Side of Rights Certificate]




FORM OF ASSIGNMENT




(To be executed by the registered holder if such

holder desires to transfer the Rights Certificate.)





     FOR VALUE RECEIVED
                                        
                                       
                    
                                       
                                     

hereby sells, assigns and transfers unto
                                        
                                       
                                          
                          
     



 



(Please print name and address of transferee)




 



this Rights Certificate, together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint
                                        
 Attorney, to transfer the within Rights
Certificate on the books of the within named Company, with full power of substitution.




Dated:
                                        
,
__




	 	 	 
	 
	 

Signature

	 	 







B-4












 





Signature Guaranteed:




Certificate




     The undersigned hereby certifies by checking the appropriate boxes that:


(1) this Rights Certificate [   ] is [   ] is not being sold, assigned and transferred by or on behalf
of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such Acquiring
Person (as such terms are defined pursuant to the Rights Agreement);



(2) after due inquiry and to the best knowledge of the undersigned, it [   ] did [   ] did not acquire
the Rights evidenced by this Rights Certificate from any Person who is, was or subsequently became
an Acquiring Person or an Affiliate or Associate of an Acquiring Person.




	 	 	 	 	 
	Dated:
                    ,
                    

	 	 
	 	           
               
               
               
             

	 

	 	 	 	Signature:






(d) Signature Guaranteed:




B-5









 





NOTICE




     The signature to the foregoing Assignment and Certificate must correspond to the name as
written upon the face of this Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.



B-6









 





FORM OF ELECTION TO PURCHASE




(To be executed if holder desires to exercise Rights
represented by the Rights Certificate.)




To: Maxum Petroleum Holdings, Inc.



The
undersigned hereby irrevocably elects to exercise                      Rights represented by this Rights
Certificate to purchase the shares of Preferred Stock issuable upon the exercise of the Rights (or
such other securities of the Company or of any other person which may be issuable upon the exercise
of the Rights) and requests that certificates for such shares be issued in the name of and
delivered to:



Please insert social security
or other identifying number




	 	 	 	 	 
	 
	 	 	 	 
	 
	 

	 	(Please print name and address)	 	 





 



 

If such number of Rights shall not be all the Rights evidenced by this Rights Certificate, a new
Rights Certificate for the balance of such Rights shall be registered in the name of and delivered
to:




Please insert social security
or other identifying number




	 	 	 	 	 
	 
	 	 	 	 
	 
	 

	 	(Please print name and address)	 	 






      




      




      




Dated:
                    ,
                    




	 	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Signature:






Signature Guaranteed:




B-7









 





Certificate




     The undersigned hereby certifies by checking the appropriate boxes that:


(1) the Rights evidenced by this Rights Certificate [   ] are [   ] are not being exercised by or on
behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined pursuant to the Rights Agreement);



(2) after due inquiry and to the best knowledge of the undersigned, it [   ] did [   ] did not acquire
the Rights evidenced by this Rights Certificate from any Person who is, was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.




Dated:
                    ,
                    




	 	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Signature:






Signature Guaranteed:




B-8









 





NOTICE




     The signature to the foregoing Election to Purchase and Certificate must correspond to the
name as written upon the face of this Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.



B-9









 





Exhibit C




FORM OF

SUMMARY OF RIGHTS TO PURCHASE

PREFERRED STOCK2





     On [•], 2008, the Board of Directors (the “Board”) of Maxum Petroleum Holdings,
Inc. (the “Company”) authorized and declared a dividend distribution of one right (a
“Right”) for each outstanding share of Common Stock, par value $0.01 per share, of the
Company (the “Common Stock”), to stockholders of record at the close of business on
[•], 2008 (the “Record Date”). Each Right entitles the registered holder to purchase
from the Company a unit consisting of one one-thousandth of a share (a “Unit”) of Series A
Junior Participating Preferred Stock, par value $0.01 per share (the “Preferred Stock”) at
a purchase price of $[•] per Unit, subject to adjustment (the “Purchase Price”). The
description and terms of the Rights are set forth in a Rights Agreement (the “Rights
Agreement”), dated as of [•], 2008, between the Company and American Stock Transfer &
Trust Company, a New York corporation, as Rights Agent.



     Initially, the Rights will be attached to the shares of Common Stock underlying the balances
indicated in the book-entry account system of the transfer agent for the Common Stock or, in the
case of certificated shares, all Common Stock certificates representing shares then outstanding,
and no separate rights certificates (“Rights Certificates”) will be distributed. Subject
to certain exceptions specified in the Rights Agreement, the Rights will separate from the Common
Stock and a distribution date (a “Distribution Date”) will occur upon the earlier of (i) 10
business days (or such later date as the Board shall determine) following a public announcement
that a person or group of affiliated or associated persons (an “Acquiring Person”) has
acquired beneficial ownership of 15% or more of the outstanding shares of Common Stock (the
“Stock Acquisition Date”), other than as a result of repurchases of stock by the Company or
certain inadvertent actions by institutional or certain other stockholders or (ii) 10 business days
(or such later date as the Board shall determine) following the commencement of a tender offer or
exchange offer that would result in a person or group becoming an Acquiring Person. Until the
Distribution Date, (i) the Rights will be evidenced by the balances indicated in the book-entry
account system of the transfer agent for the Common Stock registered in the names of the holders of
the Common Stock or, in the case of certificated shares, the Common Stock certificates, and will be
transferred with and only with such shares or, in the case of certificated shares, Common Stock
certificates, (ii) confirmation and account statements sent to the holders of shares of Common
Stock in book-entry form or, in the case of certificated shares, new Common Stock certificates
issued after the Record Date, will contain a notation incorporating the Rights Agreement by
reference and (iii) the transfer of any shares of Common Stock or, in the case of certificated
shares, certificates for Common Stock, outstanding will also constitute the transfer of the Rights
associated with such shares of Common Stock or, in the case of certificated shares, the Common
Stock represented by such certificates. Pursuant to the Rights





 




			
	2	 	Depending upon the resolution of the issues represented by the
bracketed language in the form of Rights Agreement, this summary shall be
conformed to adequately reflect the definitive Rights Agreement.




C-1









 









Agreement, the Company reserves the right to require prior to the occurrence of a Triggering
Event (as defined below) that, upon any exercise of Rights, a number of Rights be exercised so that
only whole shares of Preferred Stock will be issued.





     The
Rights are not exercisable until the Distribution Date and will
expire at 5:00 P.M., New
York City time on [•], 2018 unless such date is extended or the Rights are previously
redeemed, exchanged or terminated.



     As soon as practicable after the Distribution Date, Rights Certificates will be mailed to
holders of record of the Common Stock as of the close of business on the Distribution Date and,
thereafter, the separate Rights Certificates alone will represent the Rights.



     In the event that a person or group of affiliated or associated persons becomes an Acquiring
Person, each holder of a Right will thereafter have the right to receive, upon exercise, Common
Stock (or, in certain circumstances, cash, property or other securities of the Company) having a
value equal to two times the exercise price of the Right. Notwithstanding any of the foregoing,
following the occurrence of the event set forth in this paragraph, all Rights that are, or (under
certain circumstances specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person will be null and void. However, Rights are not exercisable following the occurrence of the
event set forth above until such time as the Rights are no longer redeemable by the Company as set
forth below.



     For example, at an exercise price of $[•] per Right, each Right not owned by an
Acquiring Person (or by certain related parties) following the event set forth in the preceding
paragraph would entitle its holder to purchase $[•] worth of Common Stock (or other
consideration, as noted above) for $[•]. Assuming that the Common Stock had a per share
value of $[•] at such time, the holder of each valid Right would be entitled to purchase
[•] shares of Common Stock for $[•].



     In the event that, at any time following the Stock Acquisition Date, (i) the Company engages
in a merger or other business combination transaction in which the Company is not the surviving
corporation, (ii) the Company engages in a merger or other business combination transaction in
which the Company is the surviving corporation and the Common Stock of the Company is changed or
exchanged, or (iii) other than pursuant to a pro rata dividend and/or distribution to all of the
then current holders of Common Stock, 50% or more of the Company’s assets, cash flow or earning
power is sold or transferred, each holder of a Right (except Rights which have previously been
voided as set forth above) shall thereafter have the right to receive, upon exercise, common stock
of the acquiring company having a value equal to two times the exercise price of the Right. The
events set forth in this paragraph and in the second preceding paragraph are referred to as the
“Triggering Events.”



     At any time after a person becomes an Acquiring Person and prior to the acquisition by such
person or group of 50% or more of the outstanding Common Stock, the Board may exchange the Rights
(other than Rights owned by such person or group which have become void), in whole or in part, for
Common Stock or Preferred Stock at an exchange ratio of one share of Common Stock, or one
one-thousandth of a share of Preferred Stock (or of a share of a



C-2









 




class or series of the Company’s preferred stock having equivalent rights, preferences and
privileges), per Right (subject to adjustment).




     The Purchase Price payable, and the number of Units of Preferred Stock or other securities or
property issuable, upon exercise of the Rights are subject to adjustment from time to time to
prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Stock, (ii) if holders of the Preferred Stock are granted
certain rights or warrants to subscribe for Preferred Stock or convertible securities at less than
the current market price of the Preferred Stock, or (iii) upon the distribution to holders of the
Preferred Stock of evidences of indebtedness or assets (excluding regular quarterly cash dividends)
or of subscription rights or warrants (other than those referred to above).



     With certain exceptions, no adjustment in the Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price. No fractional Units will be issued and,
in lieu thereof, an adjustment in cash will be made based on the market price of the Preferred
Stock on the last trading date prior to the date of exercise.



     At any time until 10 business days following the Stock Acquisition Date, the Company may
redeem the Rights in whole, but not in part, at a price of $0.001 per Right (payable in cash,
Common Stock or other consideration deemed appropriate by the Board) or amend the Rights Agreement
to change the Final Expiration Date to another date, including an earlier date. Immediately upon
the action of the Board ordering redemption of the Rights, the Rights will terminate and the only
right of the holders of Rights will be to receive the $0.001 redemption price.



     Until a Right is exercised, the holder thereof, as such, will have no separate rights as a
stockholder of the Company, including the right to vote or to receive dividends in respect of
Rights. While the distribution of the Rights will not be taxable to stockholders or to the
Company, stockholders may, depending upon the circumstances, recognize taxable income in the event
that the Rights become exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company or in the event of the redemption of the Rights as set forth
above.



     Any of the provisions of the Rights Agreement may be amended by the Board prior to the
Distribution Date. After the Distribution Date, the provisions of the Rights Agreement may be
amended by the Board in order to cure any ambiguity, to make changes which do not adversely affect
the interests of holders of Rights, or to shorten or lengthen any time period under the Rights
Agreement. The foregoing notwithstanding, no amendment may be made at such time as the Rights are
not redeemable.



     A copy of the Rights Agreement has been or will be filed with the Securities and Exchange
Commission as an Exhibit to a Registration Statement on Form 8-A/Current Report on Form 8-K. A
copy of the Rights Agreement is available free of charge from the Rights Agent. This summary
description of the Rights does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is incorporated herein by reference.



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