exv4w3






Exhibit 4.3




RIGHTS AGREEMENT




Dated as of April 29, 1994



between



ALPHA 1 BIOMEDICALS, INC.



and



AMERICAN STOCK TRANSFER & TRUST COMPANY



as Rights Agent



 









 





     RIGHTS AGREEMENT dated as of April 29, 1994, between ALPHA 1 BIOMEDICALS, INC., a
Delaware corporation (the “Company”), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York
corporation, as Rights Agent (the “Rights Agent”).



          The Board of Directors of the Company has authorized and declared a dividend of one Right (as
hereinafter defined) for each share of Common Stock, par value $.001 per share, of the Company
(the “Common Stock”) outstanding at the Close of Business (as hereinafter defined) on April 29,
1994 (the “Record Date”), and has authorized the issuance of one Right (as such number may
hereafter be adjusted pursuant to the provisions of this Rights Agreement) with respect to each
share of Common Stock that shall become outstanding between the Record Date and the earliest of
the Distribution Date, the Redemption Date or the Expiration Date (as such terms are hereinafter
defined); provided, however, that Rights may be issued with respect to shares of Common Stock that
shall become outstanding after the Distribution Date and prior to the earlier of the Redemption
Date or the Expiration Date in accordance with the provisions of Section 23. Each Right shall
initially represent the right to purchase one one-thousandth (1/1,000) of a share of Series A
Participating Cumulative Preferred Stock, par value $.001 per share, of the Company (the
“Preferred Shares”), having the powers, rights and preferences set forth in the Certificate of
Designation attached as Exhibit A.




          Accordingly, 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 Rights Agreement, the
following terms have the meanings indicated:




          “Acquiring Person” shall mean any Person who or which, alone or together with all Affiliates
and Associates of such Person, shall be the Beneficial Owner of more than 25% of the Common Shares
then outstanding, but shall not include (a) the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any of its Subsidiaries, or any Person holding Common
Shares for or pursuant to the terms of any such employee benefit plan or (b) any such Person who
has become such a Beneficial Owner solely because (i) of a change in the aggregate number of Common
Shares outstanding since the last date on which such Person acquired Beneficial Ownership of any
Common Shares or (ii) it acquired such Beneficial Ownership in the good faith belief that such
acquisition would not (x) cause such Beneficial Ownership to exceed 25% of the Common Shares then
outstanding and such Person relied in good faith in computing the percentage of its Beneficial
Ownership on publicly filed reports or documents of the Company which are inaccurate or out-of-date
or (y) otherwise cause a Distribution Date or the adjustment provided for in Section 11 (a) to
occur. Notwithstanding clause (b) of the prior sentence, if any Person that is not an Acquiring



 









 




Person due to such clause (b) does not reduce its percentage of Beneficial Ownership of Common
Shares to 25% or less by the Close of Business on the fifth Business Day after notice from the
Company (the date of notice being the first day) that such Person’s Beneficial Ownership of Common
Shares so exceeds 25%, such Person shall, at the end of such five Business Day period, become an
Acquiring Person (and such clause (b) shall no longer apply to such Person). For purposes of this
definition, the determination whether any Person acted in “good faith” shall be conclusively
determined by the Board of Directors of the Company, acting by a vote of those directors of the
Company whose approval would be required to redeem the Rights under Section 24.




          “Affiliate” and “Associate”, when used with
reference to any Person, shall have the respective meanings ascribed to such terms in Rule l2b-2 of
the General Rules and Regulations under the Exchange Act, as in effect on the date of this Rights
Agreement.




          A Person shall be deemed the “Beneficial Owner” of, and shall be deemed to “beneficially own”,
and shall be deemed to have “Beneficial Ownership” of, any securities:





     (i) which such Person or any of such Person’s Affiliates or Associates is deemed to
“beneficially own” within the meaning of Rule 13d-3 of the General Rules and Regulations
under the Exchange Act, as in effect on the date of this Rights Agreement;




     (ii) which such Person or any of such Person’s Affiliates or Associates has (A) the
right to acquire (whether such right is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or understanding (written or oral), or upon the
exercise of conversion rights, exchange rights, rights (other than the Rights), warrants or
options, or otherwise; provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, or to have Beneficial Ownership of, securities tendered
pursuant to a tender or exchange offer made by or on behalf of such Person or any of such
Person’s Affiliates or Associates until such tendered securities are accepted for purchase
or exchange thereunder, or (B) the right to vote pursuant to any agreement, arrangement or
understanding (written or oral); provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, or to have Beneficial Ownership of any security
if (1) the agreement, arrangement or understanding (written or oral) to vote such security
arises solely from a revocable proxy or consent given to such Person in response to a public
proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules
and regulations under the Exchange



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Act and (2) the beneficial ownership of such security is not also then reportable 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 with
which such Person or any of such Person’s Affiliates or Associates has any agreement,
arrangement or understanding (written or oral) for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy as described in clause (ii)(B) of this
definition) or disposing of any securities of the Company.


Notwithstanding the foregoing, nothing contained in this definition shall cause a Person ordinarily
engaged in business as an underwriter of securities to be the “Beneficial Owner” of, or to
“beneficially own”, any securities acquired in a bona fide firm commitment underwriting pursuant to
an underwriting agreement with the Company.




          “Book Value”, when used with reference to Common Shares issued by any Person, shall mean the
amount of equity of such Person applicable to each Common Share, determined (i) in accordance with
generally accepted accounting principles in effect on the date as of which such Book Value is to be
determined, (ii) using all the consolidated assets and all the consolidated liabilities of such
Person on the date as of which such Book Value is to be determined, except that no value shall be
included in such assets for goodwill arising from consummation of a business combination, and (iii)
after giving effect to (A) the exercise of all rights, options and warrants to purchase such Common
Shares (other than the Rights), and the conversion of all securities convertible into such Common
Shares, at an exercise or conversion price, per Common Share, which is less than such Book Value
before giving effect to such exercise or conversion (whether or not exercisability or
convertibility is conditioned upon occurrence of a future event), (B) all dividends and other
distributions on the capital stock of such Person declared prior to the date as of which such Book
Value is to be determined and to be paid or made after such date, and (C) any other agreement,
arrangement or understanding (written or oral), or transaction or other action prior to the date as
of which such Book Value is to be determined which would have the effect of thereafter reducing
such Book Value.




          “Business Combination” shall have the meaning set forth in Section 11 (c) (I).




          “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in the Borough of Manhattan, The City of New York, are authorized
or obligated by law or executive order to close.




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          “Certificate of Designation” shall mean the Certificate of Designation of Series A
Participating Cumulative Preferred Stock setting forth the powers, preferences, rights,
qualifications, limitations, and restrictions of such series of Preferred Stock of the
company, a copy of which is attached as Exhibit A.




          “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, “Close of Business” shall
mean 5:00 p.m., New York City time, on the next succeeding Business Day.




          “Common Shares”, when used with reference to the Company prior to a Business Combination,
shall mean the shares of Common Stock of the Company or any other shares of capital stock of
the Company into which the Common Stock shall be reclassified or changed. “Common Shares”,
when used with reference to any Person (other than the Company prior to a Business
Combination), shall mean shares of capital stock of such Person (if such Person is a
corporation) of any class or series, or units of equity interests in such Person (if such
Person is not a corporation) of any class or series, the terms of which do not limit (as a
maximum amount and not merely in proportional terms) the amount of dividends or income
payable or distributable on such class or series or the amount of assets distributable on such
class or series upon any voluntary or involuntary liquidation, dissolution or winding up of
such Person and do not provide that such class or series is subject to redemption at the
option of such Person, or any shares of capital stock or units of equity interests into which
the foregoing shall be reclassified or changed; provided, however, that, if at any time there
shall be more than one such class or series of capital stock or equity interests of such
Person, “Common Shares” of such Person shall include all such classes and series substantially
in the proportion of the total number of shares or other units of each such class or series
outstanding at such time.




          “Common Stock” shall have the meaning set forth in the introductory paragraph of this
Rights Agreement.




          “Company” shall have the meaning set forth in the heading of this Rights Agreement;
provided, however, that if there is a Business Combination, “Company” shall have the meaning
set forth in Section 11 (c) (III) .




          The term “control” with respect to any Person shall mean the power to direct the
management and policies of such Person, directly or indirectly, by or through stock ownership,
agency or otherwise, or pursuant to or in connection with an agreement, arrangement or
understanding (written or oral) with one or more other Persons by or through stock ownership,
agency or otherwise; and the terms “controlling” and “controlled” shall have meanings
correlative to the foregoing.




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




          “Exchange Act” shall mean the Securities Exchange Act of 1934, as in effect on the date in
question, unless otherwise specifically provided.




          “Exchange
Consideration” shall have the meaning set forth in
Section 11 (b) (I).




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




          “Major Part”, when used with reference to the assets of the Company and its Subsidiaries as of
any date, shall mean assets (i) having a fair market value aggregating 50% or more of the total
fair market value of all the assets of the Company and its Subsidiaries (taken as a whole) as of
the date in question, (ii) accounting for 50% or more of the total value (net of depreciation and
amortization) of all the assets of the Company and its Subsidiaries
(taken as a whole) as would be
shown on a consolidated or combined balance sheet of the Company and its Subsidiaries as of the
date in question, prepared in accordance with generally accepted accounting principles then in
effect, or (iii) accounting for 50% or more of the total amount of earnings before interest, taxes,
depreciation and amortization or revenues of the Company and its
Subsidiaries (taken as a whole) as
would be shown on, or derived from, a consolidated or combined statement of income of the Company
and its Subsidiaries for the period of 12 months ending on the
last day of the Company’s monthly
accounting period next preceding the date in question, prepared in accordance with generally
accepted accounting principles then in effect.




          “Market Value”, when used with reference to Common Shares on any date, shall be deemed to be
the average of the daily closing prices, per share, of such Common Shares for the period which is
the shorter of (1) 30 consecutive Trading Days immediately prior to the date in question or (2) the
number of consecutive Trading Days beginning on the Trading Day immediately after the date of the
first public announcement of the event requiring a determination of the Market Value and ending on
the Trading Day immediately prior to the record date of such event; provided, however, that, in the
event that the Market Value of such Common Shares is to be determined in whole or in part during a
period following the announcement by the issuer of such Common Shares of any action of the type
described in Section 12(a) that would require an adjustment thereunder, then, and in each such
case, the Market Value of such Common Shares shall be appropriately adjusted to reflect the effect
of such action on the market price of such Common Shares. The closing price for each Trading Day
shall be the closing price quoted on the composite tape for securities listed on the New York Stock
Exchange, or, if such securities




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are not quoted on such composite tape or if such securities are not listed on such exchange, on the
principal United States securities exchange registered under the Exchange Act (or any recognized
foreign stock exchange) on which such securities are listed, or, if such securities are not listed
on any such exchange, the average of the closing bid and asked quotations with respect to a share
of such securities on the National Association of Securities Dealers, Inc. Automated Quotations
System (“NASDAQ”) or such other system then in use, or if no such quotations are available, the
average of the closing bid and asked priced as furnished by a professional marketmaker making a
market in such securities selected by the Board of Directors of the Company. If on any such
Trading Day no marketmaker is making a market in such securities, the closing price of such
securities on such Trading Day shall be deemed to be the fair value of such securities as
determined in good faith by the Board of Directors of the Company (whose determination shall be
described in a statement filed with the Rights Agent and shall be binding on the Rights Agent, the
holders of Rights and all other Persons); provided, however, that for the purpose of determining
the closing price of the Preferred Shares for any Trading Day on which there is no such market
maker for the Preferred Shares, the closing price on such Trading Day shall be deemed to be the
Formula Number (as defined in the Certificate of Designation) times the closing price of the Common
Shares of the Company on such Trading Day.




          “Person” shall mean an individual, corporation, partnership, joint venture, association,
trust, unincorporated organization or other entity.




          “Preferred Shares” shall have the meaning set forth in the introductory paragraph of this
Rights Agreement. Any reference in this Rights Agreement to Preferred Shares shall be deemed to
include any authorized fraction of a Preferred Share, unless the context otherwise requires.




          “Principal Party” shall mean the Surviving Person in a Business Combination; provided,
however, that, if such Surviving Person is a direct or indirect Subsidiary of any other Person,
“Principal Party” shall mean the Person which is the ultimate parent of such Surviving Person and
which is not itself a Subsidiary of another Person. In the event ultimate control of such
Surviving Person is shared by two or more Persons, “Principal Party” shall mean that Person that is
immediately controlled by such two or more Persons.




          “Purchase Price” with respect to each Right shall mean $16.00, as such amount may from time to
time be adjusted as provided herein, and shall be payable in lawful money of the United States of
America. All references herein to the Purchase Price shall mean the Purchase Price as in effect at
the time in question.




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          “Record Date” shall have the meaning set forth in the introductory paragraph of this Rights
Agreement.




          “Redemption Date” shall have the meaning set forth in Section 24 (c).




          “Redemption Price” with respect to each Right shall mean $.01, as such amount may from time to
time be adjusted in accordance with Section 12. All references herein to the Redemption Price
shall mean the Redemption Price as in effect at the time in question.




          “Registered Common Shares” shall mean Common Shares which are, as of the date of consummation
of a Business Combination, and have continuously been for the 12 months immediately preceding such
date, registered under Section 12 of the Exchange Act.




          “Right Certificate” shall mean a certificate evidencing a Right in substantially the
form attached as Exhibit B.




          “Rights” shall mean the rights to purchase Preferred Shares (or other securities) as provided
in this Rights Agreement.




          “Securities Act” shall mean the Securities Act of 1933, as in effect on the date in question,
unless otherwise specifically provided.




          “Subsidiary” shall mean a Person, at least a majority of the total outstanding voting power
(being the power under ordinary circumstances (and not merely upon the happening of a contingency)
to vote in the election of directors of such Person (if such Person is a corporation) or to
participate in the management and control of such Person (if such Person is not a corporation)) of
which is owned, directly or indirectly, by another Person or by one or more other Subsidiaries of
such other Person or by such other Person and one or more other Subsidiaries of such other Person.




          “Surviving Person” shall mean (1) the Person which is the continuing or surviving Person in a
consolidation or merger specified in Section 11(c) (I) (i) or
11(c) (I) (ii) or (2) the Person to which
the Major Part of the assets of the Company and its Subsidiaries is sold, leased, exchanged or
otherwise transferred or disposed of in a transaction specified in
Section 11(c) (I) (iii); provided,
however, that, if the Major Part of the assets of the Company and its Subsidiaries is sold, leased,
exchanged or otherwise transferred or disposed of in one or more related transactions specified in
Section 11 (c) (I) (iii) to more than one Person, the “Surviving Person” in such case shall mean
the Person that acquired assets of the Company and/or its Subsidiaries with




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the greatest fair market value in such transaction or transactions.




          “Trading Day” shall mean a day on which the principal national securities exchange (or
principal recognized foreign stock exchange, as the case may be) on which any securities or Rights,
as the case may be, are listed or admitted to trading is open for the transaction of business or,
if the securities or Rights in question are not listed or admitted to trading on any national
securities exchange (or recognized foreign stock exchange, as the case may be), a Business Day.




          SECTION 2: Appointment of Rights Agent. The Company hereby appoints the Rights Agent
to act as agent for the Company in accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Company may from time to time appoint one or more
co-Rights Agents as it may deem necessary or desirable (the term “Rights Agent” being used herein
to refer, collectively, to the Rights Agent together with any such co-Rights Agents). In the event
the Company appoints one or more co-Rights Agents, the respective duties of the Rights Agent and
any co-Rights Agents shall be as the Company shall determine.




          SECTION 3: Issue of Rights and Right Certificates.




               (a) One Right shall be associated with each
Common Share outstanding on the Record Date, each additional Common Share that shall become
outstanding between the Record Date and the earliest of the Distribution Date, the Redemption Date
or the Expiration Date and each additional Common Share with which Rights are issued after the
Distribution Date but prior to the earlier of the Redemption Date or the Expiration Date as
provided in Section 23; provided, however, that if the number of outstanding Rights are combined
into a smaller number of outstanding Rights pursuant to Section 12
(a), the appropriate
fractional Right determined pursuant to such Section shall thereafter be associated with each such
Common Share.



               (b) Until the earlier of (i) such time as the
Company learns that a Person has become an Acquiring Person or (ii) the Close of Business on such
date, if any, as may be
designated by the Board of Directors of the Company following the commencement of, or first public
disclosure of an intent to commence, 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 of its
Subsidiaries, or any Person holding Common Shares for or pursuant to the terms of any such employee
benefit plan) for outstanding Common Shares, if upon consummation of such tender or exchange offer
such Person could be the Beneficial Owner of more than 25% of



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the outstanding Common Shares (the Close of Business on the earlier of such dates being the
“Distribution Date”), (x) the Rights will be evidenced by the certificates for Common Shares
registered in the names of the holders thereof and not by separate Right Certificates and (y) the
Rights, including the right to receive Right Certificates, will be transferable only in connection
with the transfer of Common Shares. As soon as practicable after the Distribution Date, the Rights
Agent will send, by first-class, postage-prepaid mail, to each recordholder of Common Shares as of
the Distribution Date, at the address of such holder shown on the records of the Company, a Right
Certificate evidencing one whole Right for each Common Share (or for the number of Common Shares
with which one whole Right is then associated if the number of Rights per Common Share held by such
record holder has been adjusted in accordance with the proviso in
Section 3 (a)). If the number of
Rights associated with each Common Share has been adjusted in accordance with the proviso in
Section 3(a), at the time of distribution of the Right Certificates the Company may make any
necessary and appropriate rounding adjustments so that Right Certificates representing only whole
numbers of Rights are distributed and cash is paid in lieu of any fractional Right in accordance
with Section 15 (a). As of and after the Distribution Date, the Rights will be evidenced solely by
such Right Certificates.




          (c) With respect to any certificate for Common Shares, until the earliest of the Distribution
Date, the Redemption Date or the Expiration Date, the Rights associated with the Common Shares
represented by any such certificate shall be evidenced by such certificate alone, the registered
holders of the Common Shares shall also be the registered holders of the associated Rights and the
surrender for transfer of any such certificate shall also constitute the transfer of the Rights
associated with the Common Shares represented thereby.




          (d) Certificates issued for Common Shares
after the Record Date (including, without limitation, upon transfer or exchange of outstanding
Common Shares), but prior to the earliest of the Distribution Date, the Redemption Date or the
Expiration Date, may have printed on, written on or otherwise affixed to them the following legend:





               This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement dated as of April 29,
1994, as it may be amended from time to time (the “Rights Agreement”)
between Alpha 1 Biomedicals, Inc. (the “Company”) and American Stock
Transfer & Trust Company, as Rights Agent (the “Rights Agent”), the terms of
which are hereby incorporated herein by



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reference and a copy of which is on file at the principal executive
offices of the Company. 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
without charge after receipt of a written request therefor. Rights
beneficially owned by Acquiring Persons or their Affiliates or Associates
(as such terms are defined in the Rights Agreement) and by any subsequent
holder of such Rights are null and void and nontransferable.


Notwithstanding this paragraph (d), the omission of a legend shall not affect the enforceability of
any part of this Rights Agreement or the rights of any holder of Rights.




          SECTION 4. Form of Right Certificates. The Right Certificates (and the form of
election to purchase and form of assignment to be printed on the reverse side thereof) shall be in
substantially the form set forth as Exhibit B 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 Rights 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 Sections 7, 11 and 23, the Right
Certificates, whenever issued, shall be dated as of the Distribution Date, and on their face shall
entitle the holders thereof to purchase such number of Preferred Shares as shall be set forth
therein for the Purchase Price set forth therein, subject to adjustment from time to time as herein
provided.




          SECTION 5. Execution, Countersignature and Registration




               (a) The Right Certificates shall be executed on behalf of the Company by the Chairman of the
Board, the Chief Executive Officer, the President, the Treasurer or a Vice President (whether
preceded by any additional title) of the Company, either manually or by facsimile signature, and
have affixed thereto the Company’s seal or a facsimile thereof which shall be attested by the
Secretary, an Assistant Secretary or a Vice President (whether preceded by any additional title,
provided that such Vice President shall not have also executed the Right Certificates) of the
Company, either manually or by facsimile signature. The Right



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Certificates shall be manually countersigned by the Rights Agent and shall be not be valid or
obligatory for any purpose unless so countersigned. In case any officer of the Company who shall
have signed any of the Right Certificates shall cease to be such an officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company, such Right
Certificates may nevertheless 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 Right Certificates had
not ceased to be such an officer of the Company; and Right Certificate may be signed on behalf of
the Company by any person who, at the actual date of execution of such Right Certificate, shall be
a proper officer of the Company to sign such Right Certificate, although at the date of execution
of this Rights Agreement any such person was not such an officer of the Company.




               (b) Following the Distribution Date, the
Rights Agent will keep or cause to be kept, at its principal office in New York, New York, books
for registration and transfer of the Right Certificates issued hereunder. Such books shall show
the names and addresses of the respective holders of the Right Certificates, the number of Rights
evidenced by each of the Right Certificates, the certificate number of each of the Right
Certificates and the date of each of the Right Certificates.



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




               (a) Subject to the provisions of Sections 7(e) and 15, at any time after the Distribution
Date, and at or prior to the Close of Business on the earlier of the Redemption Date or the
Expiration Date, any Right Certificate or Right Certificates may be transferred, split-up, combined
or exchanged for another Right Certificate or Right Certificates representing, in the aggregate,
the same number of Rights as the Right Certificate or Right Certificates surrendered then
represented. Any registered holder desiring to transfer, split-up, combine or exchange any Right
Certificate shall make such request in writing delivered to the Rights Agent and shall surrender
the Right Certificate or Right Certificates to be transferred, split-up, combined or exchanged at
the principal office of the Rights Agent; provided, however, that neither the Rights Agent nor the
Company shall be obligated to take any action whatsoever with respect to the transfer of any Right
Certificate surrendered for transfer until the registered holder shall have completed and signed
the certification contained in the form of assignment on the reverse side of such Right Certificate
and shall have provided such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or



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Affiliates or Associates thereof as the Company shall reasonably request. Thereupon the
Rights Agent shall, subject to Sections 7(e) and 15, countersign and deliver to the Person
entitled thereto a Right Certificate or Right Certificates, as the case may be, as so requested.
The Company may require payment 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 Right
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 valid Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably satisfactory to them, and, at the
Company’s request, 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 Right
Certificate if mutilated, the Company will make a new Right Certificate of like tenor and deliver
such new Right Certificate to the Rights Agent for delivery to the registered owned in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.



               (c) Notwithstanding any other provision
hereof, the Company and the Rights Agent may amend this Rights Agreement to provide for
uncertificated Rights in addition to or in place of Rights evidenced by Right Certificates.



          SECTION 7. Exercise of Rights; Expiration Date of Rights.




               (a) Subject to Section 7(e) and except as
otherwise provided herein (including Section 11), each Right shall entitle the registered holder
thereof, upon exercise thereof as provided herein, to purchase for the Purchase Price, at any time
after the Distribution Date and at or prior to the earlier of (i) the Close of Business on the 10th
anniversary of the date of this Rights Agreement (the Close of Business on such date being the
“Expiration Date”), or (ii) the Redemption Date, one one-thousandth (1/1,000) of a Preferred Share,
subject to adjustment from time to time as provided in Sections 11 and 12.



               (b) The registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date, upon surrender of the Right Certificate,
with the form of election to purchase on the reverse side thereof duly executed, to the Rights
Agent at the principal office of the Rights Agent in New York, New York, together with payment of
the Purchase Price for each one one-thousandth (1/1,000) of a Preferred Share as to which the



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Rights are exercised, at or prior to the earlier of (i) the Expiration Date or (ii) the Redemption
Date.




          (c) Upon receipt of a Right Certificate
representing exercisable Rights, with the form of election to purchase duly executed,
accompanied by payment of the Purchase Price for the Preferred Shares to be purchased together with
an amount equal to any applicable transfer tax, in lawful money of the United States of America, in
cash or by certified check or money order payable to the order of the Company, the Rights Agent
shall thereupon (i) either (A) promptly requisition from any transfer agent of the Preferred Shares
(or make available, if the Rights Agent is the transfer agent) certificates for the number of
Preferred Shares 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 Preferred
Shares with a depositary agent under a depositary arrangement, promptly requisition from the
depositary agent depositary receipts representing the number of one one-thousandth (1/1,000) of a
Preferred Share to be purchased (in which case certificates for the Preferred Shares to be
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 all such requests, (ii) when
appropriate, promptly requisition from the Company the amount of cash to be paid in lieu of
issuance of fractional shares in accordance with Section 15, (iii) promptly 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 Right Certificate, registered in such name or names as may be designated
by such holder, and (iv) when appropriate, after receipt promptly deliver such cash to or upon the
order of the registered holder of such Right Certificate.




          (d) In case the registered holder of any Right Certificate shall exercise fewer than all the
Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent and delivered to the registered holder of
such Right Certificate or to his duly authorized assigns, subject to the provisions of Section 15.




          (e) Notwithstanding anything in this Rights Agreement to the contrary, any Rights that are at
any time beneficially owned by an Acquiring Person or any Affiliate or Associate of an Acquiring
Person shall be null and void and nontransferable, and any holder of any such Right (including any
purported transferee or subsequent holder) shall not have any right to exercise or transfer any
such Right.




          (f) Notwithstanding anything in this Rights Agreement to the contrary, neither the
Rights Agent nor the




 - 13 - 









 




Company shall be obligated to undertake any action with respect to a registered holder of any
Right Certificates 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 Right 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 thereof as the Company shall
reasonably request.




               (g) The Company may temporarily suspend, for a period of time not to exceed 90 calendar days
after the Distribution Date, the exercisability of the Rights in order to prepare and file a
registration statement under the Securities Act, on appropriate form, with respect to the Preferred
Shares purchasable upon exercise of the Rights and permit such registration statement to become
effective; provided, however, that no such suspension shall remain effective after, and the Rights
shall without any further action by the Company or any other Person become exercisable immediately
upon, the effectiveness of such registration statement. Upon any such suspension, the Company
shall issue a public announcement stating that the exercisability of the Rights has been
temporarily suspended and shall issue a further public announcement at such time as the suspension
is no longer in effect. Notwithstanding any provision herein to the contrary, the Rights shall not
be exercisable in any jurisdiction if the requisite qualification under the blue sky or securities
laws of such jurisdiction shall not have been obtained or the exercise of the Rights shall not be
permitted under applicable law.



          SECTION 8. Cancellation and Destruction of Right Certificates. All Right
Certificates surrendered or presented for the purpose of exercise, transfer, split-up, combination
or exchange shall, and any Right Certificate representing Rights that have become null and void and
nontransferable pursuant to Section 7(e) surrendered or presented for any purpose shall, if
surrendered or presented to the Company or to any of its agents, be delivered to the Rights Agent
for cancellation or in cancelled form, or, if surrendered or presented to the Rights Agent, shall
be cancelled by it, and no Right Certificates shall be issued in lieu thereof except as expressly
permitted by this Rights Agreement. The Company shall deliver to the Rights Agent for cancellation
and retirement, and the Rights Agent shall so cancel and retire, any Right Certificate purchased or
acquired by the Company. The Rights Agent shall deliver all canceled Right Certificates to the
Company, or shall, at the written request of the Company, destroy such canceled Right Certificates,
and in such case shall deliver a certificate of destruction thereof to the Company.




 - 14 - 









 





          SECTION 9. Reservation and Availability of Preferred Shares.




               (a) The Company covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued Preferred Shares or any authorized and issued Preferred Shares held
in its treasury, free from preemptive rights or any right of first refusal, a number of Preferred
Shares sufficient to permit the exercise in full of all outstanding Rights.



               (b) In the event that there shall not be
sufficient Preferred Shares issued but not outstanding or authorized but unissued to permit
the exercise or exchange of Rights in accordance with Section 11, the Company covenants and agrees
that it will take all such action as may be necessary to authorize additional Preferred Shares for
issuance upon the exercise or exchange of Rights pursuant to Section 11; provided, however, that if
the Company is unable to cause the authorization of additional Preferred Shares, then the
Company shall, or in lieu of seeking any such authorization, the Company may, to the extent
necessary and permitted by applicable law and any agreements or instruments in effect prior to the
Distribution Date to which it is a party, (A) upon surrender of a Right, pay cash equal to the
Purchase Price in lieu of issuing Preferred Shares and requiring
payment therefor, (B) upon due
exercise of a Right and payment of the Purchase Price for each Preferred Share as to which such
Right is exercised, issue equity securities having a value equal to the value of the Preferred
Shares which otherwise would have been issuable pursuant to Section 11, which value shall be
determined by a nationally recognized investment banking firm selected by the Board or (C) upon due
exercise of a Right and payment of the purchase Price for each Preferred Share as to which such
Right is exercised, distribute a combination of Preferred Shares, cash and/or other equity and/or
debt securities having an aggregate value equal to the value of the Preferred Shares which
otherwise would have been issuable pursuant to Section 11, which value shall be determined by a
nationally recognized investment banking firm selected by the Board. To the extent that any legal
or contractual restrictions (pursuant to agreements or instruments in effect prior to the
Distribution Date to which it is party) prevent the Company from paying the full amount payable in
accordance with the foregoing sentence, the Company shall pay to holders of the Rights as to which
such payments are being made all amounts which are not then restricted on a pro rata basis as such
payments become permissible under such legal or contractual restrictions until such payments have
been paid in full.



               (c) The Company covenants and agrees that it will take all such action as may be necessary to
ensure that



 - 15 - 









 




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




               (d) So long as the Preferred Shares issuable upon the exercise or exchange of Rights are to be
listed on any national securities exchange, the Company covenants and agrees to use its best
efforts to cause, from and after such time as the Rights become exercisable or exchangeable, all
Preferred Shares reserved for such issuance to be listed on such securities exchange upon official
notice of issuance upon such exercise or exchange.



               (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 Right Certificates or of any
Preferred Shares or Common Shares or other securities upon the exercise or exchange of the 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 Right Certificates to a Person other than, or in respect of the
issuance or delivery of certificates for the Preferred Shares or Common Shares or other securities,
as the case may be, in a name other than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or exchange or to issue or deliver any certificates for
Preferred Shares or Common Shares or other securities, as the case may be, upon the exercise or
exchange of any Rights until any such tax shall have been paid (any such tax being payable by the
holder of such Right Certificate 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 Shares Record Date. Each Person in whose name any certificate
for Preferred Shares or Common Shares or other securities is issued upon the exercise or exchange
of Rights shall for all purposes be deemed to have become the holder of record of the Preferred
Shares or Common Shares or other securities, as the case may be, represented thereby on, and such
certificate shall be dated, the date upon which the Right Certificate evidencing such Rights was
duly surrendered and payment of any Purchase Price (and any applicable transfer taxes) was made;
provided, however, that, if the date of such surrender and payment is a date upon which the
transfer books of the Company for the Preferred Shares or Common Shares or other securities, as the
case may be, are closed, such Person shall be deemed to have become the record holder of such
Preferred Shares or Common Shares or other securities, as the case may be, on, and such certificate
shall be dated, the next succeeding Business Day on which the





 - 16 - 












 





transfer books of the Company for the Preferred Shares or Common Shares or other
securities, as the case may be, are open.


          SECTION 11. Adjustments in Rights After There Is an Acquiring Person; Exchange of Rights
for Shares; Business Combinations.


               (a) Upon a Person becoming an Acquiring
Person, proper provision shall be made so that each holder of a Right, except as provided
in Section 7(e), shall thereafter have a right to receive, upon exercise thereof for the Purchase
Price in accordance with the terms of this Rights Agreement, such number of one one-thousandth
(1/1,000) of a Preferred Share as shall equal the result obtained by multiplying the Purchase Price
by a fraction, the numerator of which is the number of one one-thousandth (1/1,000) of a Preferred
Share for which a Right is then exercisable and the denominator of which is 50% of the Market Value
of the Common Shares on the date on which a Person becomes an Acquiring Person. As soon as
practicable after a Person becomes an Acquiring Person (provided the Company shall not have elected
to make the exchange permitted by Section 11(b)(I) for all outstanding Rights), the Company
covenants and agrees to use its best efforts to:



          (I) prepare and file a registration statement under the Securities Act, on an appropriate
form, with respect to the Preferred Shares purchasable upon exercise of the Rights;



          (II) cause such registration statement to become effective as soon as practicable after
such filing;



          (III) cause such registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the Expiration Date; and



          (IV) qualify or register the Preferred Shares purchasable upon exercise of the Rights under
the blue sky or securities laws of such jurisdictions as may be necessary or appropriate.



          (b)
(I) The Board of Directors of the Company may, at its option, at any time after a Person
becomes an Acquiring Person, mandatorily exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that shall have become null and void and
nontransferable pursuant to the provisions of Section 7(e)) for consideration per Right consisting
of one-half of the securities that would be issuable at such time upon the exercise of one Right in
accordance with Section 11(a) or, if applicable, Section 9(b) (the consideration issuable per Right



- 17 -








 




pursuant to this Section 11 (b) (I) being the “Exchange Consideration”). The Board of Directors
of the Company may, at its option, issue, in substitution for Preferred Shares, Common Shares in an
amount per Preferred Share equal to the Formula Number (as defined in the Certificate of
Designation) if there are sufficient Common Shares issued but not outstanding or authorized but
unissued. If the Board of Directors of the Company elects to exchange all the Rights for Exchange
Consideration pursuant to this Section 11 (b) (l) prior to the physical distribution of the Rights
Certificates, the Company may distribute the Exchange Consideration in lieu of distributing Right
Certificates, in which case for purposes of this Rights Agreement holders of Rights shall be deemed
to have simultaneously received and surrendered for exchange Right Certificates on the date of such
distribution.




          (II) Any action of the Board of Directors of the Company ordering the exchange of any Rights
pursuant to Section 11(b)(I) shall be irrevocable and, immediately upon the taking of such action
and without any further action and without any notice, the right to exercise any such Right
pursuant to Section 11 (a) shall terminate and the only right thereafter of a holder of such Right
shall be to receive the Exchange Consideration in exchange for each such Right held by such holder
or, if the Exchange Consideration shall not have been paid or issued, to exercise any such Right
pursuant to Section 11 (c) (I). 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
holders of such Rights at their last addresses as they appear upon the registry books of the Rights
Agent. 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 exchange will state the method by which
the exchange of the Rights for the Exchange Consideration 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 shall have become null and
void and nontransferable pursuant to the provisions of Section 7(e)) held by each holder of Rights.


               (c) (I) In the event that, following a
Distribution Date, directly or indirectly, any transactions specified in the following clause (i),
(ii) or (iii) of this Section 11(c) (each such transaction being a “Business Combination”) shall be
consummated:


     (i) the Company shall consolidate with, or merge with and into, any
Acquiring Person or any Affiliate or Associate of an Acquiring Person;


- 18 -








 




     (ii) any Acquiring Person or any Affiliate or Associate of an Acquiring
Person shall merge with and into the Company and, in connection with such merger,
all or part of the Common Shares shall be changed into or exchanged for capital
stock or other securities of the Company or of any Acquiring Person or Affiliate or
Associate of an Acquiring Person or cash or any other property; or


     (iii) the Company shall sell, lease, exchange or otherwise transfer or
dispose of (or one or more of its Subsidiaries shall sell, lease, exchange or
otherwise transfer or dispose of), in one or more transactions, the Major Part of
the assets of the Company and its Subsidiaries (taken as a whole) to any Acquiring
Person or any Affiliate or Associate of an Acquiring Person,


then, in each such case, proper provision shall be made so that each holder of a
Right, except as provided in Section 7(e), shall thereafter have the right to receive, upon the exercise thereof for
the Purchase Price in accordance with the terms of this Rights Agreement, the securities specified
below (or, at such holder’s option, the securities specified in Section 11 (a)) :


     (A) If the Principal Party in such Business Combination has Registered Common
Shares outstanding, each Right shall thereafter represent the right to receive, upon
the exercise thereof for the Purchase Price in accordance with the terms of this
Rights Agreement, such number of Registered Common Shares of such Principal Party,
free and clear of all liens, encumbrances or other adverse claims, as shall have an
aggregate Market Value equal to the result obtained by multiplying the Purchase
Price by two;


     (B) If the Principal Party involved in such Business Combination does not have
Registered Common Shares outstanding, each Right shall thereafter represent the
right to receive, upon the exercise thereof for the Purchase Price in accordance
with the terms of this Rights Agreement, at the election of the holder of such Right
at the time of the exercise thereof, any of:


     (1) such number of Common Shares of the Surviving Person in such
Business Combination as shall have an aggregate Book Value immediately after
giving effect to such Business Combination equal to the result


- 19 -








 







obtained by multiplying the Purchase Price by two;




     (2) such number of Common Shares of the Principal Party in such
Business Combination (if the Principal Party is not also the Surviving
Person in such Business Combination) as shall have an aggregate Book Value
immediately after giving effect to such Business Combination equal to the
result obtained by multiplying the Purchase Price by two; or




     (3) if the Principal Party in such Business Combination is an
Affiliate of one or more Persons which has Registered Common Shares
outstanding, such number of Registered Common Shares of whichever of such
Affiliates of the Principal Party has Registered Common Shares with the
greatest aggregate Market Value on the date of consummation of such
Business Combination as shall have an aggregate Market Value on the date of
consummation of such Business Combination equal to the result obtained by
multiplying the Purchase Price by two.



               (II) The Company shall not consummate any
Business Combination unless each issuer of Common Shares for which Rights may be exercised, as set
forth in this Section 11(c), shall have sufficient authorized Common Shares that have not been
issued or reserved for issuance (and which shall, when issued upon exercise thereof in accordance
with this Rights Agreement, be validly issued, fully paid and nonassessable and free of preemptive
rights, rights of first refusal or any other restrictions or limitations on the transfer or
ownership thereof) to permit the exercise in full of the Rights in accordance with this Section 11
(c) and unless prior thereto:




     (i) a registration statement under the Securities Act on an appropriate form,
with respect to the Rights and the Common Shares of such issuer purchasable upon
exercise of the Rights, shall be effective under the Securities Act; and




     (ii) the Company and each such issuer shall have:




     (A) executed and delivered to the Rights Agent a supplemental
agreement providing for the assumption by such issuer of the obligations set
forth in this Section 11(c)



- 20 -









 




(including the obligation of such issuer to issue Common Shares upon the
exercise of Rights in accordance with the terms set forth in Sections
11(c) (I) and 11(c) (III)) and further providing that such issuer, at its
own expense, will use its best efforts to:


     (1) cause a registration statement under the Securities Act
on an appropriate form, with respect to the Rights and the Common
Shares of such issuer purchasable upon exercise of the Rights, to
remain effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the Expiration Date;


     (2) qualify or register the Rights and the Common Shares of
such issuer purchasable upon exercise of the Rights under the blue
sky or securities laws of such jurisdictions as may be necessary or
appropriate; and


     (3) list the Rights and the Common Shares of such issuer
purchasable upon exercise of the Rights on each national securities
exchange on which the Common Shares were listed prior to the
consummation of the Business Combination or, if the Common Shares
were not listed on a national securities exchange prior to the
consummation of the Business Combination, on a national securities
exchange;


     (B) furnished to the Rights Agent a written opinion of independent
counsel stating that such supplemental agreement is a valid, binding and
enforceable agreement of such issuer; and


     (C) filed with the Rights Agent a certificate of a nationally
recognized firm of independent accountants setting forth the number of
Common Shares of such issuer which may be purchased upon the exercise of
each Right after the consummation of such Business Combination.


               (III) After consummation of any Business Combination and subject to the provisions of Section
11 (c) (II), (i) each issuer of Common Shares for which Rights may be exercised as set forth in this
Section 11(c) shall be


- 21 -








 





liable for, and shall assume, by virtue of such Business Combination, all the obligations and
duties of the Company pursuant to this Rights Agreement, (ii) the terms “Company” shall thereafter
be deemed to refer to such issuer, (iii) each such issuer shall take such steps in connection with
such consummation as may be necessary to assure that the provisions hereof (including the
provisions of Sections 11 (a) and 11 (c)) shall thereafter be applicable, as nearly as reasonably
may be, in relation to its Common Shares thereafter deliverable upon the exercise of the Rights,
and (iv) the number of Common Shares of each such issuer thereafter receivable upon exercise of any
Right shall be subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions of Sections 11 and 12 and the provisions of Sections 7,
9 and 10 with respect to the Preferred Shares shall apply, as nearly as reasonably may be, on like
terms to any such Common Shares.




               SECTION 12. Certain Adjustments.



               (a) To preserve the actual or potential
economic value of the Rights, if at any time after the date of this Rights Agreement there shall be
any change in the Common Shares or the Preferred Shares, whether by reason of stock dividends,
stock splits, recapitalizations, mergers, consolidations, combinations or exchanges of securities,
split-ups, split-offs, spin-offs, liquidations, other similar changes in capitalization, any
distribution or issuance of cash, assets, evidences of indebtedness or subscription rights, options
or warrants to holders of Common Shares or Preferred Shares, as the case may be (other than
distribution of the Rights or regular quarterly cash dividends) or otherwise, then, in each such
event the Board of Directors of the Company shall make such appropriate adjustments in the number
of Preferred Shares (or the number and kind of other securities) issuable upon exercise of each
Right, the Purchase Price and Redemption Price in effect at such time and the number of Rights
outstanding at such time (including the number of Rights or fractional Rights associated with each
Common Share) such that following such adjustment such event shall not have had the effect of
reducing or limiting the benefits the holders of the Rights would have had absent such event.



               (b) If, as a result of an adjustment made
pursuant to Section 12(a), the holder of any Right thereafter exercised shall become entitled to
receive any securities other than Preferred Shares, thereafter the number of such securities so
receivable upon exercise of any Right shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions of Sections 11 and 12 and the
provisions of Sections 7, 9 and 10



- 22 -









 





with respect to the Preferred Shares shall apply, as nearly as reasonably may be, on like
terms to any such other securities.


               (c) All Rights originally issued by the
Company subsequent to any adjustment made to the amount of Preferred Shares or other
securities relating to a Right shall evidence the right to purchase, for the Purchase Price, the
adjusted number and kind of securities purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.


               (d) Irrespective of any adjustment or change in the Purchase Price or the number of Preferred
Shares or number or kind of other securities issuable upon the exercise of the Rights, the
Right Certificates theretofore and thereafter issued may continue to express the terms which were
expressed in the initial Right Certificates issued hereunder.


               (e) In
any case in which action taken pursuant to Section 12 (a) requires that an adjustment
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 issuing to the holder of any Right exercised after such record
date the Preferred Shares and/or other securities, if any, issuable upon such exercise over and
above the Preferred Shares and/or other securities, if any, issuable before giving effect 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 securities upon
the occurrence of the event requiring such adjustment.



          SECTION 13. Certificate of Adjustment. Whenever an adjustment is made as provided in
Section 11 or 12, 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 Shares a copy of such certificate
and (c) mail a brief summary thereof to each holder of a Right Certificate (or, prior to the
Distribution Date, of the Common Shares) in accordance with Section 25. The Rights Agent shall be
fully protected in relying on any such certificate and on any adjustment therein contained.


          SECTION 14. Additional Covenants.


               (a) Notwithstanding any other provision of this Rights Agreement, no adjustment to the
number of Preferred Shares (or fractions of a share) or other securities for which a Right is
exercisable or the number of Rights outstanding or associated with each Common Share or any similar
or other adjustment shall be made or be effective if


- 23 -








 




such adjustment would have the effect of reducing or limiting the benefits the holders of the
Rights would have had absent such adjustment, including, without limitation, the benefits under
Sections 11 and 12, unless the terms of this Rights Agreement are amended so as to preserve such
benefits.


               (b) The Company covenants and agrees that,
after the Distribution Date, except as permitted by Section 26, it will not take (or permit
any Subsidiary of the Company to take) any action if at the time such action is taken it is
intended or reasonably foreseeable that such action will reduce or otherwise limit the benefits
the holders of the Rights would have had absent such action, including, without limitation, the
benefits under Sections 11 and 12. Any action taken by the Company during any period after any
Person becomes an Acquiring Person but prior to the Distribution Date shall be null and void
unless such action could be taken under this Section 14(b) from and after the Distribution Date.
The Company shall not consummate any Business Combination if any issuer of Common Shares for which
Rights may be exercised after such Business Combination in accordance with Section 11(c) shall
have taken any action that reduces or otherwise limits the benefits the holders of the Rights
would have had absent such action, including, without limitation, the benefits under Sections 11
and 12.


          SECTION 15. Fractional Rights and Fractional Shares.


               (a) The Company may, but shall not be required
to, issue fractions of Rights or distribute Right Certificates which evidence fractional Rights.
In lieu of such fractional Rights, the Company may pay to the registered holders of the Right
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 15 (a), the current market value of a whole Right shall be the closing price of the Rights
(as determined pursuant to the second and third sentences of the definition of Market Value
contained in Section 1) for the Trading Day immediately prior to the date on which such fractional
Rights would have been otherwise issuable.


               (b) The Company may, but shall not be required to, issue fractions of Preferred Shares upon
exercise of the Rights or distribute certificates which evidence fractional Preferred Shares. In
lieu of fractional Preferred Shares, the Company may elect to (i) utilize a depository arrangement
as provided by terms of the Preferred Shares or (ii) in the case of a fraction of a Preferred Share
(other than one one-thousandth (1/1,000) of a Preferred Share or any integral multiple thereof),
pay to the registered holders of Right Certificates at the time such Rights are exercised as herein


- 24 -








 




provided an amount in cash equal to the same fraction of the current market value of one
Preferred Share, if any are outstanding and publicly traded (or the Formula Number times the
current market value of one Common Share if the Preferred Shares are not outstanding and publicly
traded). For purposes of this Section 15 (b), the current market value of a Preferred Share (or
Common Share) shall be the closing price of a Preferred Share (or Common Share) (as determined
pursuant to the second and third sentences of the definition of Market Value continued in Section
1) for the Trading Day immediately prior to the date of such exercise. If, as a result of an
adjustment made pursuant to Section 12 (a), the holder of any Right thereafter exercised shall
become entitled to receive any securities other than Preferred Shares, the provisions of this
Section 15(b) shall apply, as nearly as reasonably may be, on like terms to such other securities.




               (c) The Company may, but shall not be required to, issue fractions of Common Shares upon
exchange of Rights pursuant to Section 11(b), or to distribute certificates which evidence
fractional Common Shares. In lieu of such fractional Common Shares, the Company may pay to the
registered holders of the Right Certificates with regard to which such fractional Common Shares
would otherwise be issuable an amount in cash equal to the same fraction of the current Market
Value of one Common Share as of the date on which a Person became an Acquiring Person.



               (d) The holder of Rights by the acceptance of the Rights expressly waives his right to receive
any fractional Rights or any fractional shares upon exercise of a Right except as provided in this
Section 15.



          SECTION 16. Rights of Action.



               (a) All rights of action in respect of this Rights Agreement are vested in the
respective registered holders of the Right Certificates (and, prior to the Distribution Date, the
registered holders of the Common Shares); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Shares), without the consent of the Rights Agent or
of the holder of any other Right Certificate (or, prior to the Distribution Date, of the Common
Shares) may, in his own behalf and for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Right Certificate in the manner provided in such
Right Certificate and in this Rights 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 Rights Agreement and shall be
entitled to



- 25 -









 




specific performance of the obligations of any Person under, and injunctive relief against
actual or threatened violations of the obligations of any Person subject to, this Rights
Agreement.




               (b) Any holder of Rights who prevails in an action to enforce the provisions of this Rights
Agreement shall be entitled to recover the reasonable costs and expenses, including attorneys’
fees, incurred in such action.



          SECTION 17. Transfer and Ownership of Rights and Right Certificates.




               (a) Prior to the Distribution Date, the Rights will be transferable only in connection with
the transfer of the Common Shares.



               (b) After the Distribution Date, the Right Certificates will be transferable, subject to
Section 7(e), only on the registry books of the Rights Agent if surrendered at the principal office
of the Rights Agent, duly endorsed or accompanied by a proper instrument of transfer.



               (c) The Company and the Rights Agent may deem and treat the Person in whose name a Right
Certificate (or, prior to the Distribution Date, the associated Common Shares certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificates or the associated certificate for
Common Shares made by anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be affected by any notice to the
contrary.



          SECTION 18. Right Certificate Holder Not Deemed a Stockholder. No holder, as such,
of any Right Certificate shall be entitled to vote or receive dividends or be deemed, for any
purpose, the holder of the Preferred Shares or of 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 Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a stockholder of the Company, including, without
limitation, 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, or to receive dividends or
other distributions or subscription rights, or otherwise, until the Right or Rights evidenced by
such Right Certificate shall have been exercised in accordance with the provisions hereof.








- 26 -









 








          SECTION 19. Concerning the Rights Agent.




               (a) The Company agrees to pay 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 other disbursements incurred in the administration and execution of
this Rights Agreement and the exercise and performance of its duties hereunder.



               (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 Rights
Agreement in reliance upon any Right Certificate or certificate for the Common Shares 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 20. Merger or Consolidation or Change of Rights Agent.




               (a) Any corporation into which the Rights Agent or any successor Rights Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger or consolidation to
which the Rights Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the stock transfer or corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this Rights Agreement without the
execution or filing of any paper or any further act on the part of any of the parties hereto;
provided that such corporation would be eligible for appointment as a successor Rights Agent under
the provisions of Section 22. In case, at the time such successor Rights Agent shall succeed to
the agency created by this Rights Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the countersignature of
the predecessor Rights Agent and deliver such Right Certificates so countersigned; and, in case at
that time any of the Right Certificates shall not have been countersigned, any successor Rights
Agent may countersign such Right Certificates either in the name of the predecessor Rights Agent or
in the name of the successor Rights Agent; and in all such cases such Right Certificates shall have
the full force provided in the Right Certificates and in this Rights Agreement.



               (b) In case at any time the name of the Rights Agent shall be changed and at such time any of
the Right



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



          SECTION 21. Duties of Rights Agent. The Rights Agent undertakes the duties and
obligations imposed by this Rights Agreement upon the following terms and conditions, by all of
which the Company and the holders of Right Certificates (or, prior to the Distribution Date, of
the Common Shares), 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 authorization and protection
to the Rights Agent as to any action taken, suffered or omitted by it in good faith and in
accordance with such opinion.



               (b) Whenever in the performance of its duties under this Rights Agreement the Rights Agent
shall deem it necessary or desirable that any fact or matter (including, without limitation, the
identity of any Acquiring Person) be proved or established by the Company prior to taking,
refraining from 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 any one of the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Financial Officer, a Vice President (whether preceded
by any additional title), the Treasurer or the 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 Rights Agreement in reliance upon such
certificate.



               (c) The Rights Agent shall be liable hereunder only for its own negligence, bad faith or
wilful 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 Rights Agreement or in the Right Certificate (except as to its
countersignature thereof) or be required to verify the same, but all such statements and recitals
are and shall be deemed to have been made by the Company only.



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               (e) The Rights Agent shall not be under any responsibility in respect of the validity of this
Rights 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 Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Rights Agreement or in any Right Certificate; nor shall it
be responsible for any adjustment required under the provisions of Section 11 or 12 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 Right 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 Preferred Shares or Common Shares to be issued pursuant to this Rights Agreement
or any Right Certificate or as to whether any Preferred Shares or Common Shares 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 Rights Agreement.


               (g) The Rights Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from any one of the Chairman of the Board, the Chief
Executive Officer, the President, a Vice President (whether preceded by any additional title), the
Secretary or the Treasurer of the Company, 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 the Rights Agent under this Rights Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other capacity for the Company or for any other
legal entity.


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               (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 reasonable care was exercised in the selection and continued
employment thereof.


               (j) The Company agrees to indemnify and to hold the Rights Agent harmless against any loss,
liability, damage or expense (including reasonable fees and expenses of legal counsel) which the
Rights Agent may incur resulting from its actions as Rights Agent pursuant to this Rights
Agreement; provided, however, that the Rights Agent shall not be indemnified or held harmless with
respect to any such loss, liability, damage or expense incurred by the Rights Agent as a result of,
or arising out of, its own negligence, bad faith or wilful misconduct. In no case shall the
Company be liable with respect to any action, proceeding, suit or claim against the Rights Agent
unless the Rights Agent shall have notified the Company, by letter or by facsimile confirmed by
letter, of the assertion of any action, proceeding, suit or claim against the Rights Agent,
promptly after the Rights Agent shall have notice of any such assertion of an action, proceeding,
suit or claim or have been served with the summons or other first legal process giving information
as to the nature and basis of the action, proceeding, suit or claim. The company shall be entitled
to participate at its own expense in the defense of any such action, proceeding, suit or claim,
and, if the Company so elects, the Company shall assume the defense of any such action, proceeding,
suit or claim. In the event that the Company assumes such defense, the Company shall not
thereafter be liable for the fees and expenses of any additional counsel retained by the Rights
Agent, so long as the Company shall retain counsel satisfactory to the Rights Agent, in the
exercise of its reasonable judgment, to defend such action, proceeding, suit or claim. The Rights
Agent agrees not to settle any litigation in connection with any action, proceeding, suit or claim
with respect to which it may seek indemnification from the Company without the prior written
consent of the Company.


          SECTION 22.
Change of Rights Agent. The Rights Agent or any successor Rights Agent
may resign and be discharged from its duties under this Rights Agreement upon 30 days’ notice in
writing mailed to the Company and to each transfer agent of the Common Shares and the Preferred
Shares by registered or certified mail, and to the registered holders of the Right Certificates
(or, prior to the Distribution Date, of the Common Shares) by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon 30


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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 Shares and the Preferred Shares by registered or certified
mail, and to the registered holders of the Right Certificates (or, prior to the Distribution Date,
of the Common Shares) 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 Right Certificate (or, prior to the
Distribution Date, of the Common Shares) (who shall, with such notice, submit his Right Certificate
or, prior to the Distribution Date the certificate representing his Common Shares, for inspection
by the Company), then the registered holder of any Right Certificate (or, prior to the Distribution
Date, of the Common Shares) may apply to any court of competent jurisdiction for the appointment of
a new Rights Agent. Any successor Rights Agent, whether appointed by the Company or by such a
court, shall be a corporation organized and doing business under the laws of the United States or
of the State of New York (or of any other state of the United States so long as such corporation is
authorized to conduct a stock transfer or corporate trust business in the State of New York), in
good standing, having a principal office in the State of New York, which is authorized under such
laws to exercise stock transfer or corporate trust powers and is subject to supervision or
examination by Federal or state authority and which has at the time of its appointment as Rights
Agent a combined capital and surplus of at least $50,000,000; provided that the principal transfer
agent for the Common Shares shall in any event be qualified to be the Rights Agent. 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 Shares and the Preferred Shares, and mail a notice thereof in
writing to the registered holders of the Right Certificates (or, prior to the Distribution Date, of
the Common Shares). Failure to give any notice provided for in this Section 22, 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.


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     SECTION 23. Issuance of Additional Rights and Right Certificates.
Notwithstanding any of the provisions of this Rights Agreement or of the Rights to the contrary,
the Company may, at its option, issue new Right Certificates evidencing Rights in such form as may
be approved by its Board of Directors to reflect any adjustment or change made in accordance with
the provisions of this Rights Amendment. In addition, in connection with the issuance or sale of
Common Shares following the Distribution Date and prior to the earlier of the Redemption Date and
the Expiration Date, the Company (a) shall, with respect to Common Shares so issued or sold
pursuant to the exercise of stock options or under any employee plan or arrangement, or upon the
exercise, conversion or exchange of securities, notes or debentures issued by the Company, and (b)
may, in any other case, if deemed necessary or appropriate by the Board of Director of the Company,
issue Right Certificates representing the appropriate number of Rights in connection with such
issuance or sale; provided, however, that (i) no such Right 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
Right Certificate would be issued, and (ii) no such Right Certificate shall be issued if, and to
the extent that, appropriate adjustment shall otherwise have been made in lieu of the issuance
thereof.



     SECTION 24. Redemption and Termination.



          (a) The Board of Directors of the Company may, at its option, at any time prior to the
earlier of (i) such time as a Person becomes an Acquiring Person and (ii) the Expiration Date,
order the redemption of all, but not fewer than all, the then outstanding Rights at the Redemption
Price and the Company, at its option, may pay the Redemption Price either in cash or Common Shares
or other securities of the Company deemed by the Board of Directors of the Company, in the exercise
of its sole discretion, to be at least equivalent in value to the Redemption Price; provided,
however, that, in addition to any other limitations contained herein on the right to redeem
outstanding Rights (including the occurrence of any event or the expiration of any period after
which the Rights may no longer be redeemed), for the 120-day period after any date of a change
(resulting from a proxy or consent solicitation) in a majority of the Board of Directors of the
Company in office at the commencement of such solicitation, the Rights may only be redeemed if (A)
there are directors then in office who were in office at the commencement of such solicitation and
(B) the Board of Directors of the Company, with the concurrence of a majority of such directors
then in office, determines that such redemption is, in their judgment, in the best interests of the
Company and its stockholders.




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          (b) Notwithstanding any other provision of the Agreement, in the event that a Person
would otherwise become an Acquiring Person as a result of the acquisition of Beneficial Ownership
of Common Shares pursuant to an all-cash tender offer for all outstanding Common Shares which meets
all of the following requirements:





     (1) on or prior to the date such offer is commenced within the meaning of Rule l4d-2 (a)
of the General Rules and Regulations under the Exchange Act, such Person has, and has
provided to the Company, firm written commitments from responsible financial institutions,
which have been accepted by such Person (or one of its Affiliates),
to provide, subject only
to customary terms and conditions, funds for such offer which, when added to the amount of
cash and cash equivalents which such Person then has available and has irrevocably committed
in writing to the Company to utilize for purposes of such offer, will be sufficient to pay
for all Common Shares outstanding on a fully diluted basis pursuant to the offer and the
second-step transaction required by clause (v) below and all related expenses, together with
copies of all written materials prepared by such Person for such financial institutions in
connection with obtaining such financing commitments;




     (2) after the consummation of such offer, such Person, alone or together with any of
its Affiliates and Associates, owns Common Shares representing a majority of the then
outstanding Common Shares;




     (3) such offer remains open for at least 45 Business Days; provided, however, that (x)
if there is any increase in the price of such offer, such offer must remain open for at
least an additional 20 Business Days after the last such increase, (y) such offer must
remain open for at least 20 Business Days after the date that any bona fide alternative
offer is made which, in the opinion of one or more investment banking firms designated by
the Company, provides for consideration per share in excess of that provided for in such
offer, and (z) such offer must remain open for at least 20 Business Days after the date on which such
Person reduces the per share price offered in accordance with clause (5) (y) below; provided
further, however, that such offer need not remain open, as a result of this clause (3),
beyond (i) the time which any other offer satisfying the criteria set forth in clauses (1)
through (5) is then required to be kept open under this clause (3), or (ii) the scheduled
expiration date, as such date may be extended by public announcement on or prior to the then
scheduled expiration date, of any other tender or exchange offer for Common Shares with
respect to which



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the Board of Directors has agreed to redeem the Rights immediately prior to acceptance for payment
of Common Shares thereunder (unless such other offer is terminated prior to its expiration without
any Common Shares having been purchased thereunder);




     (4) such offer is accompanied by a written opinion, in customary form, of a nationally
recognized investment banking firm which is addressed to the holders of Common Shares other than
such Person and states that the price to be paid to holders pursuant to the offer is fair from a
financial point of view to such holders and includes any written presentation of such firm showing
the analysis and range of values underlying such conclusions; and




     (5) prior to or on the date that such offer is commenced within the meaning of Rule 14d-2 (a)
of the General Rules and Regulations under the Exchange Act, such Person makes an irrevocable
written commitment to the Company (x) to consummate a transaction or transactions promptly upon the
completion of such offer, whereby all Common Shares not purchased in such offer will be acquired at
the same price per share paid in such offer, subject only to the condition that the Board of
Directors shall have granted any approvals required to enable such Person to consummate such
transaction or transactions following consummation of such offer without obtaining the vote of any
other stockholder, (y) that such Person will not make any amendment to the original offer which
reduces the per share price offered (other than a reduction to reflect any dividend declared by the
Company after the commencement of such offer or any material change in the capital structure of the
Company initiated by the Company after the commencement of such offer, whether by way of
recapitalization, reorganization, repurchase or otherwise), changes the form of consideration
offered, or reduces the number of shares being sought or which is in any other respect materially
adverse to the Company’s stockholders, and (z) that neither such Person nor of any its Affiliates
or Associates will make any offer for any equity securities of the Company for a period of six
months after the commencement of the original offer if such original offer does not result in the
tender of the number of Common Shares required to be purchased pursuant to clause (2) above, unless
another tender offer by another party for all outstanding Common Shares is commenced that (a)
constitutes an offer satisfying the criteria set forth in clauses (1) through (5) or (b) is
approved by the Board of Directors of the Company (in which event, any new offer by such Person or
of any of its Affiliates or



- 34 -









 






Associates must be at a price no less than that provided for in such approved offer);


then in such case, the Board of Directors of the Company shall, after making such
investigation of the merits of such offer and exploring such alternatives to such offer as it deems
in the best interest of shareholders under the circumstances, shall order the redemption of all,
but not fewer than all, of the then outstanding Rights at the Redemption Price and the Company, at
its option, may pay the Redemption Price either in cash or Common Shares or other securities of the
Company deemed by the Board of Directors of the Company, in the exercise of its sole discretion to
be at least equivalent in value to the Redemption Price; provided, however, that, in addition to
any other limitations contained herein on the right to redeem outstanding Rights (including the
occurrence of any event or the expiration of any period after which the Rights may no longer be
redeemed), for the 120-day period after any date of a change (resulting from a proxy or consent
solicitation) in a majority of the Board of Directors of the Company in office at the commencement
of such solicitation, the Rights may only be redeemed if (A) there are directors then in office who
were in office at the commencement of such solicitation and (B) the Board of Directors of the
Company, with the concurrence of a majority of such directors then in office, determines that such
redemption is, in their judgment, in the best interests of the Company and its stockholders.




          (c) Immediately upon the action of the Board of Directors of the Company ordering the
redemption of the Rights (the date of such redemption, whether effected pursuant to either
paragraph (a) or (b) of this Section 24, being the “Redemption Date”), and without any further
action and without any notice, the right to exercise the Rights will terminate and the only right
thereafter of the registered holders of Rights shall be to receive the Redemption Price. Within 10
Business Days after the action of the Board of Directors of the Company ordering the redemption of
the Rights, the Company shall give notice of such redemption to the holders of the then outstanding
Rights by mailing such notice to all such holders at their last addresses as they appear 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 Shares. Each such notice of redemption will state the method by
which payment of the Redemption Price will be made. The notice, if mailed in the manner herein
provided, shall be conclusively presumed to have been duly given, whether or not the holder of
Rights receives such notice. In any case, failure to give such notice by mail, or any defect in
the notice, to any particular holder of Rights shall not affect the sufficiency of the notice to
other holders of Rights.




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     SECTION 25. Notices. Notices or demands authorized by this Agreement to be given or
made by the Rights Agent or by the holder of a Right Certificate (or, prior to the Distribution
Date, of the Common Shares) 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 with the
Rights Agent) as follows:


Alpha 1 Biomedicals, Inc.

Two Democracy Center

6903 Rockledge Drive

Suite 1200

Bethesda, MD 20817

Attention: President



Subject to the provisions of Section 22, any notice or demand authorized by this Rights Agreement
to be given or made by the Company or by the holder of a Right Certificate (or, prior to the
Distribution Date, of the Common Shares) 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 with the Company) as follows:



American Stock Transfer & Trust Company

40 Wall Street

46th Floor

New York, New York 10005

Attention: Geraldine Zarbo



Notices or demands authorized by this Rights Agreement to be given or made by the Company or the
Rights Agent to any holder of a Right Certificate (or, prior to the Distribution Date, of the
Common Shares) 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 Rights
Agent or, prior to the Distribution Date, on the registry books of the Rights Agent or, prior to
the Distribution Date, on the registry books of the transfer agent for the Common Shares.




     SECTION 26. Supplements and Amendments. At any time prior to the Distribution Date
and subject to the last sentence of this Section 26, the Company may, and the Rights Agent shall if
the Company so directs, supplement or amend any provision of this Rights Agreement (including,
without limitation, the date on which the Distribution Date shall occur, the time during which the
Rights may be redeemed pursuant to Section 24 or any provision of the Certificate of Designation)
without the approval of any holder of the Rights. From and after the Distribution Date and subject
to applicable law, the Company may, and the Rights Agent shall if the Company so directs, amend
this Rights Agreement without the approval of any holders of Rights Certificates (i) to cure any



- 36 -









 




ambiguity or to correct or supplement any provision contained herein which may be defective or
inconsistent with any other provision of this Rights Agreement or (ii) to make any other provisions
in regard to matters or questions arising hereunder which the Company may deem necessary or
desirable and which shall not adversely affect the interests of the holders of Right Certificates
(other than an Acquiring Person or an Affiliate or Associate of an Acquiring Person). Any
supplement or amendment adopted during any period after any Person has become an Acquiring Person
but prior to the Distribution Date shall be null and void unless such supplement or amendment could
have been adopted under the prior sentence from and after the Distribution Date. Any supplement or
amendment to this Rights Agreement duly approved by the Company that does not amend Sections 19,
20, 21 or 22 in a manner adverse to the Rights Agent shall become effective immediately upon
execution by the Company, whether or not also executed by the Rights Agent. Notwithstanding
anything contained in this Rights Agreement to the contrary, during the 120-day period after any
date of a change (resulting from a proxy or consent solicitation) in a majority of the Board of
Directors of the Company in office at the commencement of such solicitation, this Rights Agreement
may be supplemented or amended only if (A) there are directors then in office who were in office at
the commencement of such solicitation and (B) the Board of Directors of the Company, with the
concurrence of a majority of such directors then in office, determines that such supplement or
amendment is, in their judgment, in the best interests of the Company and its stockholders and,
after the Distribution Date, the holders of the Right Certificates. In addition, notwithstanding
anything to the contrary contained in this Rights Agreement, no supplement or amendment to this
Rights Agreement shall be made which (a) reduces the Redemption Price (except as required by
Section 12 (a)) or (b) provides for an earlier Expiration Date.




     SECTION 27. Successors. All the covenants and provisions of this Rights 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 28. Benefits of Rights Agreement; Determinations and Actions by the Board
of Directors, etc.



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




- 37 -









 




Certificates (and, prior to the Distribution Date, of the Common Shares).




          (b) Except as explicitly otherwise provided in this Rights Agreement, the Board of Directors
of the Company shall have the exclusive power and authority to administer this Rights Agreement and
to exercise all rights and powers specifically granted to the Board of Directors of the Company or
to the Company, or as may be necessary or advisable in the administration of this Rights Agreement,
including, without limitation, the right and power to (i) interpret the provisions of this Rights
Agreement and (ii) make all determinations deemed necessary or advisable for the administration of
this Rights Agreement (including, without limitation, a determination to redeem or not redeem the
Rights or to amend this Rights Agreement and a determination of whether there is an Acquiring
Person).




          (c) Nothing contained in this Rights Agreement shall be deemed to be in derogation of the
obligation of the Board of Directors of the Company to exercise its fiduciary duty. Without
limiting the foregoing, nothing contained herein shall be construed to suggest or imply that the
Board of Directors shall not be entitled to reject any tender offer, or to recommend that holders
of Common Shares reject any tender offer, or to take any other action (including, without
limitation, the commencement, prosecution, defense or settlement of any litigation and the
submission of additional or alternative offers or other proposals) with respect to any tender offer
that the Board of Directors believes is necessary or appropriate in the exercise of such fiduciary
duty.




     SECTION 29. Severability. If any term, provision, covenant or restriction of this
Rights 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
Rights Agreement shall remain in full force and effect and shall in no way be affected, impaired or
invalidated.



     SECTION 30. Governing Law. This Rights Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the law of the State of Delaware and
for all purposes shall be governed by and construed in accordance with the law of such State
applicable to contracts to be made and performed entirely within such State.



     SECTION
31. Counterparts; Effectiveness. This Rights 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.
This Rights



- 38 -









 




Agreement shall be effective as of the Close of Business on the date hereof.




     SECTION 32. Descriptive Headings. Descriptive headings of the several Sections of
this Rights Agreement are inserted for convenience only and shall not control or affect the meaning
or construction of any of the provisions of this Rights Agreement.



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



	 	 	 	 	 
	 	ALPHA 1 BIOMEDICALS, INC.

 	 
	 	By  	/s/ Vincent F. Simmon
 	 
	 	 	Name:  	Vincent F. Simmon  	 
	 	 	Title:  	President and CEO 	 
	 
	 	AMERICAN STOCK TRANSFER & TRUST 

COMPANY, as Rights Agent

 	 
	 	By  	/s/ Herbert J. Lemmer
 	 
	 	 	Name:  	Herbert J. Lemmer  	 
	 	 	Title:  	Vice President 	 
	 




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