exv4w1






Exhibit 4.1




Shareholder Protection Rights Agreement




by and between



Post Holdings, Inc.



and



Computershare Trust Company, N.A., rights agent



dated as of ______________________, 20__







 









 








Table of Contents




	 	 	 	 	 
	 	 	Page
	Section 1. Certain Definitions
	 	 	1	 
	 
	 	 	 	 
	Section 2. Appointment of Rights Agent
	 	 	5	 
	 
	 	 	 	 
	Section 3. Issue of Right Certificates
	 	 	6	 
	 
	 	 	 	 
	Section 4. Form of Right Certificates
	 	 	8	 
	 
	 	 	 	 
	Section 5. Countersignature and Registration
	 	 	9	 
	 
	 	 	 	 
	Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates
	 	 	9	 
	 
	 	 	 	 
	Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights
	 	 	10	 
	 
	 	 	 	 
	Section 8. Cancellation and Destruction of Right Certificates
	 	 	12	 
	 
	 	 	 	 
	Section 9. Reservation and Availability of Shares of Preferred Stock
	 	 	12	 
	 
	 	 	 	 
	Section 10. Preferred Stock Record Date
	 	 	13	 
	 
	 	 	 	 
	Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights
	 	 	14	 
	 
	 	 	 	 
	Section 12. Certificate of Adjusted Purchase Price or Number of Shares
	 	 	19	 
	 
	 	 	 	 
	Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power
	 	 	20	 
	 
	 	 	 	 
	Section 14. Fractional Rights and Fractional Shares
	 	 	21	 
	 
	 	 	 	 
	Section 15. Rights of Action
	 	 	23	 
	 
	 	 	 	 
	Section 16. Agreement of Right Holders
	 	 	23	 
	 
	 	 	 	 
	Section 17. Right Certificate Holder Not Deemed a Shareholder
	 	 	24	 
	 
	 	 	 	 
	Section 18. Concerning the Rights Agent
	 	 	24	 
	 
	 	 	 	 
	Section 19. Merger or Consolidation or Change of Name of Rights Agent
	 	 	24	 
	 
	 	 	 	 
	Section 20. Duties of Rights Agent
	 	 	25	 
	 
	 	 	 	 
	Section 21. Change of Rights Agent
	 	 	26	 
	 
	 	 	 	 
	Section 22. Issuance of New Right Certificates
	 	 	27	 
	 
	 	 	 	 
	Section 23. Redemption and Termination
	 	 	27	 
	 
	 	 	 	 
	Section 24. Exchange
	 	 	28	 
	 
	 	 	 	 
	Section 25. Notice of Proposed Actions
	 	 	30	 
	 
	 	 	 	 
	Section 26. Notices
	 	 	31	 
	 
	 	 	 	 
	Section 27. Supplements and Amendments
	 	 	31	 
	 
	 	 	 	 
	Section 28. Successors
	 	 	32	 
	 
	 	 	 	 
	Section 29. Determinations and Actions by the Board, etc.
	 	 	32	 
	 
	 	 	 	 
	Section 30. Benefits of This Agreement
	 	 	32	 
	 
	 	 	 	 
	Section 31. Severability
	 	 	32	 
	 
	 	 	 	 
	Section 32. Governing Law
	 	 	32	 






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	 	 	Page
	Section 33. Counterparts
	 	 	32	 
	 
	 	 	 	 
	Section 34. Descriptive Headings
	 	 	33	 
	 
	 	 	 	 
	Section 35. Force Majeure
	 	 	33	 






Table of Exhibits




	 	 	 

	Exhibit A

	 	Form of Right Certificate
	 
	 	 
	Exhibit B

	 	Summary of Preferred Stock Purchase Rights
	 
	 	 
	Exhibit C

	 	Form of Certificate of Designations for Series __ Junior
Participating Cumulative Preferred Stock











ii









 








Shareholder Protection Rights Agreement




     This Shareholder Protection Rights Agreement, dated as of ____________, 20___ (the
“Agreement”) is entered into between Post Holdings, Inc., a Missouri corporation (the
“Company”), and Computershare Trust Company, N.A., as rights agent (the “Rights
Agent,” which term shall include any successor Rights Agent hereunder).



Recitals




     A. On _________, 20__, the Board of Directors of the Company authorized and declared a
dividend distribution of one right (a “Right”) for each share of Common Stock outstanding
at the Close of Business on _____________, 201__ (the “Record Date”), other than shares of
such Common Stock held in the Company’s treasury on such date, and authorized the issuance of one
Right in respect of each share of Common Stock issued between the Record Date (whether originally
issued or issued from the Company’s treasury) and the Distribution Date, each Right representing
the right to purchase one one-ten thousandth of a share of Series __ Junior Participating
Cumulative Preferred Stock of the Company having the rights, powers and preferences set forth in
the form of Certificate of Designations attached hereto as Exhibit C, upon the terms and
subject to the conditions hereinafter set forth.



     B. The Company desires to appoint the Rights Agent to act as provided herein, and the Rights
Agent is willing to so act.



Agreements




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



     Section 1. Certain Definitions.



     For purposes of this Agreement, the following terms have the meanings indicated:




     (a) “Acquiring Person” shall mean any Person who or which, without the Prior Written
Approval of the Company becomes the Beneficial Owner of ___% or more of the outstanding shares of
Common Stock of the Company, but shall not include:



                    (i) the Company, any Subsidiary of the Company, any employee benefit plan or
compensation arrangement of the Company or any Subsidiary of the Company, or any entity holding
securities of the Company to the extent organized, appointed or established by the Company or any
Subsidiary of the Company for or pursuant to the terms of any such employee benefit plan or
compensation arrangement, or



                    (ii) any Person who or which the Board of Directors determines has become a Person who would
otherwise be an “Acquiring Person” inadvertently, without any plan or intention to obtain, change
or influence control of the Company (including (A) because such Person was unaware it beneficially
owned ___% of the Common Stock or (B) such Person was aware of the extent of its Beneficial
Ownership of Common Stock but had no actual knowledge of the consequences of becoming such a
Beneficial Owner under this Agreement), so long as such Person, individually or together with the
Affiliates and Associates of such Person, promptly (in the judgment of the Board of Directors)
divests or promptly (in the judgment of the Board of Directors) enters into, and delivers to the
Company, an irrevocable commitment promptly to divest, and thereafter promptly (in the judgment of
the Board of Directors) divests (without exercising or retaining any power, including voting, with
respect to such securities), sufficient securities of the Company or, in the case solely of
Derivative Common Stock,



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such Person shall (x) terminate the subject derivative transaction or transactions or
otherwise dispose of the subject derivative security or securities and (y) establish to the
satisfaction of the Board of Directors that such Derivative Common Stock is no longer beneficially
owned with any intention of obtaining, changing or influencing the control of the Company, so that
such Person would not otherwise be an “Acquiring Person;” provided, that any such determinations or
judgments by the Board of Directors shall be made in its sole discretion and shall be final and
binding.




                    If any Person may avoid being an “Acquiring Person” by divesting securities or Derivative
Common Stock of the Company as described in the preceding sentence, then such Person shall not be
considered to have become an “Acquiring Person” until the date that the Board of Directors
determines that such divestiture has not occurred as promptly as practicable.



                    Notwithstanding the foregoing, or anything else contained in this Agreement, no Person shall
become an “Acquiring Person” as the result of an acquisition of Common Stock by the Company which,
by reducing the amount of Common Stock outstanding, increases the Beneficial Ownership of Common
Stock by such Person to ___% or more of the outstanding shares of Common Stock; provided, however,
that if a Person becomes the Beneficial Owner of ___% or more of the outstanding shares of Common
Stock by reason of purchases by the Company and shall, after such purchases by the Company, become
the Beneficial Owner of any additional shares of Common Stock representing more than 1.0% of the
Common Stock outstanding, then such Person shall be deemed to be an Acquiring Person.




     (b) “Affiliate” and “Associate” shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date hereof.




     (c) “Articles of Incorporation” shall mean the Restated Articles of Incorporation of
the Company, as amended from time to time.




     (d) 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 beneficially owns,
directly or indirectly as determined pursuant to Rule 13d-3 and 13d-5 of the General Rules and
Regulations under the Exchange Act, as in effect on the date hereof;



                    (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 or
occurrence of conditions) pursuant to any agreement, arrangement or understanding (written or
oral), or upon the exercise of conversion rights, exchange rights, rights (other than these
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, (1)
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
payment or exchange thereunder or cease to be subject to withdrawal by the tendering security
holder, or (2) securities issuable upon exercise of Rights at any time prior to the occurrence of a
Section 11(b) Event or Section 13 Event, or (B) the right to vote or dispose of, including 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 under this clause (B) if the agreement, arrangement or understanding
(written or oral) to vote such security (1) arises solely from a revocable proxy or consent given
in response to a public proxy or consent solicitation made generally to all holders of Common Stock
pursuant to, and in accordance



2









 




with, the applicable rules and regulations under the Exchange Act and (2) the Beneficial
Ownership of such security is not also then reportable by such person on Schedule 13D under the
Exchange Act (or any comparable or successor report); or




                    (iii) which are beneficially owned, directly or indirectly, by any other Person or any of such
Person’s Affiliates or Associates 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 or consent as described in clause
(B) of subparagraph (ii) of this paragraph (d)) or disposing of any securities of the Company; or



                    (iv) which are the subject of, or the reference securities for, or that underlie, any
Derivative Interest of such Person or any of such Person’s Affiliates or Associates, with the
number of securities deemed beneficially owned being the notional or other number of shares of
securities specified in the documentation evidencing the Derivative Interest as being subject to be
acquired upon the exercise or settlement of the Derivative Interest or as the basis upon which the
value or settlement amount of such Derivative Interest is to be calculated in whole or in part or,
if no such number of securities is specified in such documentation, as determined by the Board of
Directors in its sole discretion to be the number of securities to which the Derivative Interest
relates.



                    Notwithstanding the foregoing, nothing contained in this definition shall cause a Person to be
deemed the “Beneficial Owner” of, or to “beneficially own,” or to have “Beneficial Ownership” of,
any securities (A) if the Person is ordinarily engaged in the business as an underwriter of
securities and has acquired such securities in a bona fide firm commitment underwriting pursuant to
an underwriting agreement with the Company until the expiration of 40 days after the date of such
acquisition, (B) if such Person is a “clearing agency” (as defined in Section 3(a)(23) of the
Exchange Act) and has acquired such securities solely as a result of such status, or (C) solely by
virtue of any actions taken by such Person as an officer or director of the Company in such
capacity.



                    Notwithstanding anything in this definition of Beneficial Ownership to the contrary, the
phrase “then outstanding,” when used with reference to a Person’s Beneficial Ownership of
securities of the Company, shall mean the number of such securities then issued and outstanding
together with the number of such securities not then actually issued and outstanding which such
Person would be deemed to own beneficially hereunder.




     (e) “Board of Directors” shall mean the Board of Directors of the Company as
constituted from time to time.




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




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




     (h) “Common Stock” shall mean the common stock, par value $0.01 per share, of the
Company, except that “Common Stock” when used with reference to any Person other than the Company
shall mean the capital stock with the greatest voting power of such Person or the equity
securities or other equity interest having power to control or direct the management of such
Person or, if such Person is a Subsidiary of another Person,



3









 






of the Person which ultimately controls such first-mentioned Person and which has issued and
outstanding such capital stock, equity securities or equity interests.




     (i) “Common stock equivalent” shall have the meaning set forth in Section 11(c).




     (j) “Current market price” shall have the meaning set forth in Section 11(f).




     (k) “Derivative Common Stock” shall mean shares of Common Stock that are deemed
beneficially owned by an Acquiring Person solely as a result of the application of clause (iv) of
the definition of “Beneficial Owner” and “beneficial ownership”.




     (l) “Derivative Interest” shall mean any derivative securities (as defined in Rule
16a-1 of the General Rules and Regulations under the Exchange Act) that increase in value as the
value of the underlying equity increases, including, but not limited to, a long convertible
security, a long call option and a short put option position, in each case, regardless of whether
(x) such interest conveys any voting rights in such security, (y) such interest is required to
be, or is capable of being, settled through delivery of such security or (z) transactions hedge
the economic effect of such interest; provided that, for the purposes of the definition of
Derivative Interest, the term “derivative security” shall also include any security or instrument
that would not otherwise constitute a “derivative security” as a result of any feature that would
make any conversion, exercise or similar right or privilege of such security or instrument
becoming determinable only at some future date or upon the happening of a future occurrence, in
which case the determination of the amount of securities into which such security or instrument
would be convertible or exercisable shall be made assuming that such security or instrument is
immediately convertible or exercisable at the time of such determination. A derivative interest
shall not include any interest, right, option or security set forth in Rule 16a-1(c)(1)-(5) or
(7) of the General Rules and Regulations under the Exchange Act.




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




     (n) “Equivalent preferred stock” shall have the meaning set forth in Section 11(d).




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




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




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




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




     (s) “Number of Adjustment Shares” shall have the meaning set forth in Section 11(b).




     (t) “Person” shall mean any individual, firm, corporation, partnership, trust
association, limited liability company, limited liability partnership, or other entity and shall
include any successor (by merger or otherwise) of any such entity.




     (u) “Preferred Stock” shall mean the Series __ Junior Participating Cumulative
Preferred Stock, par value $0.01 per share, of the Company.




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



4









 






     (w) “Prior Written Approval of the Company” shall mean prior express written consent
of the Company to the actions in question, executed on behalf of the Company by a duly authorized
officer of the Company following express approval by action of at least a majority of the members
of the Board of Directors then in office.




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




     (y) “Record Date” shall have the meaning set forth in the recitals.




     (z) “Registrar” shall have the meaning set forth in Section 5(a).




     (aa) “Right” shall have the meaning set forth in the recitals.




     (bb) “Right Certificate” shall have the meaning set forth in Section 3(a).




     (cc) “Rights Agent” shall have the meaning set forth in the introduction.




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




     (ee) “Section 11(b) Event” shall have the meaning set forth in Section 11(b).




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




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




     (hh) “Stock Acquisition Date” shall mean the earlier of (i) the first date of public
announcement by the Company or a Person that a Person has become an Acquiring Person, or (ii) the
date on which the Company first has notice, direct or indirect, or otherwise determines that a
Person has become an Acquiring Person; provided, however, that, if such Person is determined not
to have become an Acquiring Person pursuant to Section 1(a), then no Stock Acquisition Date shall
be deemed to have occurred.




     (ii) “Subsidiary” shall mean, with respect to any Person, any other Person of which
voting securities or other ownership interests, in the absence of contingencies, to elect a
majority of the board of directors (or other persons performing similar functions) of such other
Person are at the time directly or indirectly owned by such Person or one or more of such
Person’s Subsidiaries, except that “Subsidiary” when used with reference to the Company shall
mean any Person of which either a majority of the Common Stock or a majority of the voting equity
securities or a majority of the equity interests is owned, directly or indirectly, by the
Company.




     (jj) “Trading Day” shall have the meaning set forth in Section 11(f)(i).




     (kk) “Trading Regulation” shall mean any rule or regulation of any national
securities exchange or quotation system on which the Common Stock or the Rights may from time to
time be listed or traded.




     (ll) “Trust” shall have the meaning set forth in Section 24(f).




     (mm) “Trust Agreement” shall have the meaning set forth in Section 24(f).



     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 such Co-Rights Agents as it may deem necessary or desirable,
upon ten (10) days prior written notice to the Rights Agent. The Rights Agent shall have no duty
to



5









 




supervise, and shall in no event be liable for, the acts or omissions of any such co-Rights
Agent. In the event the Company appoints one or more Co-Rights Agents, the respective duties of the
Rights Agents and any Co-Rights Agents shall be as the Company shall determine.




          Section 3. Issue of Right Certificates.




          (a) Until the earlier of (i) the Close of Business on the tenth Business Day after the Stock
Acquisition Date or (ii) the Close of Business on the tenth Business Day (or such later date as
may be determined by action of the Board of Directors but in no event later than the tenth
Business Day after such time as any Person becomes an Acquiring Person) after the date that a
tender or exchange offer by any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan or compensation arrangement of the Company or of any Subsidiary of the
Company, or any entity holding securities of the Company to the extent organized, appointed or
established by the Company or any Subsidiary of the Company for or pursuant to the terms of any
such employee benefit plan or compensation arrangement) is first published or sent or given
within the meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act,
without the Prior Written Approval of the Company, which tender or exchange offer would result in
any such Person becoming an Acquiring Person (including any such date which is after the date of
this Agreement and prior to the issuance of the Rights) (the earlier of the dates referred to in
clauses (i) or (ii), the “Distribution Date”; provided, that if the foregoing results in
the Distribution Date being prior to the Record Date, the Distribution Date shall be the Record
Date), without giving effect to any restrictions set forth in the Articles of Incorporation, (x)
the Rights will be evidenced (subject to the provisions of paragraph (b) of this Section 3) by
the certificates for the Common Stock registered in the names of the holders of the Common Stock
(which certificates for Common Stock shall be deemed also to be Right Certificates) or, for
Common Stock held in book-entry accounts, through the direct registration service of the
Company’s transfer agent by such book-entry accounts (together with a direct registration
transaction advice or such other notification as the Board of Directors in its discretion may
determine with respect to such shares), and not by separate Right Certificates, as more fully set
forth below, and (y) the Rights (and the right to receive certificates therefor) will be
transferable only in connection with the transfer of the underlying shares of Common Stock, as
more fully set forth below. As soon as practicable after the Company has notified the Rights
Agent of the occurrence of the Distribution Date, the Company shall prepare and execute, and the
Rights Agent shall countersign and (i) send, at the expense of the Company, by first class,
insured, postage prepaid mail, to each record holder of the Common Stock as of the Close of
Business on the Distribution Date, at the address of such holder shown on the records of the
Company, a right certificate, in substantially the form of Exhibit A (the “Right
Certificate”), evidencing one Right for each share of Common Stock so held, subject to
adjustment as provided herein or (ii) credit the book-entry account of such holder with such
Rights and send a direct registration transaction advice or such other notification as the Board
of Directors in its discretion may determine with respect to such Rights to such holder. As of
and after the Distribution Date, the Rights will be evidenced solely by such Right Certificates
or book-entry credits. In the event the Company elects to distribute any Rights by crediting
book-entry accounts, the provisions of this Agreement that reference Right Certificates shall be
interpreted to reflect that the Rights are credits to the book-entry accounts, that separate
Right Certificates are not issued with respect to some or all of the Rights, and that any legend
required on a Right Certificate may be placed on the direct registration transaction advice or
such other notification as the Board of Directors in its discretion may determine with respect to
such Rights. The absence of specific language regarding book-entry accounts and credits in any
provision of this Agreement shall not be interpreted to mean that the foregoing sentence is not
applicable as appropriate to such provision.



6









 






          (b) As soon as practicable after the Record Time, the Company will make a summary of the
terms of the Rights in substantially the form of Exhibit B available to any holder of
Rights who may so request from time to time prior to the Expiration Time. With respect to
certificates for the Common Stock outstanding as of the Record Date, until the Distribution Date
(or the earlier redemption, expiration or termination of the Rights), the Rights will be
evidenced by such certificates for the Common Stock registered in the names of the holders of the
Common Stock and the registered holders of the Common Stock shall also be registered holders of
the associated Rights. With respect to Common Stock held in book-entry accounts outstanding as
of the Record Date, until the Distribution Date (or the earlier redemption, expiration or
termination of the Rights), the Rights will be held in book-entry accounts and represented by the
related transaction advice or such other notification as the Board of Directors in its discretion
may determine and the registered holders of the Common Stock shall also be registered holders of
the associated Rights. Until the Distribution Date (or the earlier redemption, expiration or
termination of the Rights), the surrender for transfer of any of the certificates for the Common
Stock or book-entry accounts holding Common Stock outstanding in respect of which Rights have
been issued shall also constitute the transfer of the Rights associated with the Common Stock
represented by such certificate or held in such book-entry accounts.




          (c) Certificates for the Common Stock issued after the Record Date but prior to the earlier
of the Distribution Date or the redemption, expiration or termination of the Rights shall be
deemed also to be certificates for Rights and shall have impressed, printed or written on or
otherwise affixed to them a legend in substantially the following form:




          This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Shareholder Protection Rights Agreement dated as of
_________, 20___ between Post Holdings, Inc., a Missouri corporation (the
“Company”), and Computershare Trust Company, N.A. (the “Rights Agreement”), as it
may from time to time be supplemented or amended, the terms of which are
incorporated herein by 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 may expire or may be redeemed, exchanged or be
evidenced by separate certificates and no longer be evidenced by this certificate.
The Company will mail to the holder of this certificate a copy of the Rights
Agreement, as in effect on the date of mailing, without charge promptly after
receipt of a written request therefor. Under certain circumstances, Rights issued to
or held by Acquiring Persons or their Affiliates or Associates (as defined in the
Rights Agreement) and any subsequent holder of such Rights may become null and void.



          Each book-entry account for such Common Stock that shall so become outstanding or shall be
transferred or exchanged after the Record Date but prior to the earlier of the Distribution Date or
the redemption, expiration or termination of the Rights shall also be deemed to include the
associated Rights, and the direct registration transaction advice or such other notification as the
Board of Directors in its discretion may determine with respect to such shall bear a legend in
substantially the following form:





          Each security covered by this [advice/ownership statement] also evidences and
entitles the holder hereof to certain Rights as set forth in the Shareholder
Protection Rights Agreement between Post Holdings, Inc., a Missouri corporation (the
“Company”), and Computershare Trust Company, N.A. (the “Rights Agreement”), as it
may from time to time be supplemented or amended, the terms of which are
incorporated herein by reference and a copy of which is on file at the principal
executive offices of the Company. Under certain circumstances, as set forth in



7









 






the Rights Agreement, such Rights may expire or may be redeemed, exchanged or
be evidenced by separate certificates and no longer be evidenced by this [direct
registration transaction advice/ownership statement]. The Company will mail to the
holder hereof a copy of the Rights Agreement, as in effect on the date of mailing,
without charge promptly after receipt of a written request therefor. Under certain
circumstances, Rights issued to or held by Acquiring Persons or their Affiliates or
Associates (as defined in the Rights Agreement) and any subsequent holder of such
Rights may become null and void.



          With respect to such certificates or direct registration transaction advices containing the
foregoing legend, until the Distribution Date (or the earlier redemption, expiration or termination
of the Rights), the Rights associated with the Common Stock represented by such certificates or
held in such book-entry accounts shall be evidenced by such certificates or held in such book-entry
accounts (together with the direct registration transaction advice or such other notification as
the Board of Directors in its discretion may determine with respect to such shares) alone, and the
surrender for transfer of any of such certificates, whether by transfer of physical certificates or
book-entry transfer, except as otherwise provided herein, shall also constitute the transfer of the
Rights associated with the Common Stock represented by such certificates or direct registration
transaction advices.



          In the event that the Company purchases or acquires any Common Stock after the Record Date but
prior to the Distribution Date, any Rights associated with such Common Stock shall be deemed
cancelled and retired so that the Company shall not be entitled to exercise any Rights associated
with shares of Common Stock which are no longer outstanding.



          Notwithstanding this Section or otherwise, the omission of a legend shall not affect the
enforceability of any part of this Agreement or the rights of any holder of the Rights.



          Section 4. Form of Right Certificates.




          (a) The Right Certificates (and the forms of election to purchase shares and of assignment
to be printed on the reverse thereof) shall be in substantially the same form as Exhibit
A and may have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to comply with any applicable law, rule
or regulation 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 customary usage. Subject to the provisions of Section 11
and Section 22, the Right Certificates, whenever issued, shall be dated as of the Record Date,
and on their face shall entitle the holders thereof to purchase such number of one one-ten
thousandths of a share of Preferred Stock as shall be set forth therein at the price per one
one-ten thousandth of a share as set forth therein (the “Purchase Price”), but the number
and identity of such shares and the Purchase Price shall be and remain subject to adjustment as
provided herein.




          (b) Any Right Certificate issued pursuant hereto that represents Rights beneficially owned
by (i) an Acquiring Person or any Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such Associate or Affiliate) which becomes a
transferee after the Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) which becomes a transferee prior to or concurrently with
the Acquiring Person becoming such and which receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the Acquiring Person (or any such Associate or
Affiliate) to holders of equity interests in such Acquiring Person (or such Associate or
Affiliate) or to any Person with whom such Acquiring Person (or such Associate or Affiliate) has
any continuing plan, agreement, arrangement or



8









 






understanding regarding either the transferred Rights, shares of Common Stock or the Company
or (B) a transfer which a majority of the Board of Directors has determined to be part of a plan,
agreement, arrangement or understanding which has as a primary purpose or effect the avoidance of
Section 7(e), and any Right Certificate issued pursuant to Section 6, Section 11 or Section 22
upon transfer, exchange, replacement or adjustment of any other Right Certificate referred to in
this sentence, shall contain (to the extent feasible) the following legend, or a legend
substantially to the following effect:




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



          The failure to print the foregoing legend on any such Right Certificate or any defect therein
shall not affect in any manner whatsoever the application or interpretation of the provisions of
Section 7(e).



          Section 5. Countersignature and Registration.




          (a) The Right Certificates shall be executed on behalf of the Company by its Chairman of the
Board or the President or a Vice President and by the Secretary or an Assistant Secretary or the
Treasurer or Assistant Treasurer, either manually or by facsimile signature, and shall have
affixed thereto the Company’s seal or a facsimile thereof. The Right Certificates shall be
countersigned manually or by facsimile signature by the Rights Agent or the registrar or
co-registrar for the Common Stock (the “Registrar”) and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company whose manual or facsimile
signature is affixed to the Right Certificates shall cease to be such officer of the Company
before countersignature by the Rights Agent or the Registrar and issuance and delivery by the
Company, such Right Certificates, nevertheless, may be countersigned by the Rights Agent or the
Registrar, issued and delivered with the same force and effect as though the person who signed
such Right Certificates had not ceased to be such officer of the Company. Any Right Certificate
may be signed on behalf of the Company by any person who, at the actual date of the execution of
such Right Certificate, shall be a proper officer of the Company to sign such Right Certificate,
although at the date of the execution of this Agreement any such person was not such an officer.




          (b) Following the Distribution Date, the Rights Agent will keep or cause to be kept, at its
stockholder services office or such other office designated for such purpose, 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 on its face 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.




          (a) Subject to the provisions of Sections 4(b), 7(e), 11 and 14, at any time after the Close
of Business on the Distribution Date, and at or prior to the Close of Business on the Expiration
Date, any Right Certificate or Right Certificates may be transferred, split up, combined or
exchanged for another Right Certificate or Right Certificates, entitling the registered holder to
purchase a like number of shares of Preferred Stock (or other securities, cash or other assets,
as the case may be), as the Right Certificate or Right Certificates surrendered then entitled
such holder to purchase. 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, with the forms of



9









 






assignment and certificate contained therein duly executed, at the shareholder services
office of the Rights Agent or such office designated for such purpose. The Right Certificates
are transferable only on the registry books of the Rights Agent. Neither the Rights Agent nor
the Company shall be obligated to take any action whatsoever with respect to the transfer of any
such surrendered Right Certificate until the registered holder shall have (i) properly completed
and signed the certificate contained in the form of assignment on the reverse side of such Right
Certificate, (ii) provided such additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) thereof and the Affiliates and Associates of such Beneficial Owner (or
former Beneficial Owner) as the Company or the Rights Agent shall reasonably request and (iii)
paid 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. Thereupon, the
Rights Agent shall 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 from
the Rights holder of a sum sufficient to cover any such 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 Right Certificate, and, in case of loss,
theft or destruction, of indemnity or security satisfactory to them, and reimbursement to the
Company and the Rights Agent of all reasonable expenses incidental thereto, and upon surrender to
the Rights Agent and cancellation of the Right Certificate if mutilated, the Company will make
and deliver a new Right Certificate of like tenor to the Rights Agent for countersignature and
delivery to the registered owner in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.



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




          (a) 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 and the
certificate set forth on the reverse side thereof properly completed and duly executed, to the
Rights Agent at the shareholder services office of the Rights Agent or such office designated for
such purpose, together with payment of the Purchase Price for each one one-ten thousandth of a
share of Preferred Stock as to which the Rights are exercised, at or prior to the Close of
Business on the Expiration Date. The “Expiration Date”, as used in this Agreement, shall
be the earliest of (i) the Final Expiration Date, (ii) the time at which the Rights are redeemed
as provided in Section 23, (iii) the time at which the Rights are exchanged as provided in
Section 24, or (iv) immediately prior to the effective time of a consolidation, merger or
statutory share exchange in which the Common Stock is converted into, or into the right to
receive, another security, cash or other consideration that does not constitute a Section 13
Event. Provided that a Stock Acquisition Date has not occurred prior to such date, the “Final
Expiration Date”, as used in this Agreement, shall be ______, 20___ subject to amendment as
provided herein.




          (b) The Purchase Price for each one one-ten thousandth of a share of Preferred Stock
pursuant to the exercise of a Right shall, as of the date hereof, be $______ and shall be subject
to adjustment from time to time as provided in Sections 11 and 13 and shall be payable in lawful
money of the United States of America in accordance with paragraph (c) below.




          (c) Upon receipt of a Right Certificate, with the form of election to purchase and the
certificate properly completed and duly executed, accompanied by payment of the Purchase Price
for each one one-ten thousandth of a share of Preferred Stock to be purchased and an amount equal
to any applicable tax or



10









 






governmental charge required to be paid by the holder of the Rights pursuant hereto in
accordance with Section 9 by certified check, bank draft or money order payable to the order of
the Company or the Rights Agent, the Rights Agent shall, subject to Section 20(k), thereupon
promptly (i) either (A) requisition from any transfer agent of the shares of Preferred Stock (or
make available, if the Rights Agent is the transfer agent) certificates for the number of shares
(or make entries in the book-entry account system of the transfer agent) of Preferred Stock to be
purchased and the Company hereby irrevocably authorizes any such transfer agent to comply with
all such requests, or (B) if the Company, in its sole discretion, shall have elected to deposit
the shares of Preferred Stock issuable upon exercise of the Rights hereunder into a depositary,
requisition from the depositary agent depositary receipts representing such number of one one-ten
thousandths of a share of Preferred Stock as are to be purchased (in which case certificates for
the shares of Preferred Stock represented by such receipts shall be deposited by the transfer
agent with the depositary agent) and the Company hereby authorizes and directs such depositary
agent to comply with all such requests, (ii) promptly after receipt of such certificates or
depositary receipts (or confirmation or written notice that an entry has been made in the
book-entry account system of the transfer agent) 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, (iii) when appropriate, requisition from the Company the amount of
cash to be paid in lieu of issuance of fractional shares in accordance with Section 14, (iv)
after receipt of any such cash, promptly deliver such cash to or upon the order of the registered
holder of such Right Certificate, (v) when appropriate, requisition from the Company the amount
of cash or securities issuable upon exercise of a Right pursuant to the adjustment provisions of
Section 11 or the exchange provisions of Section 24, and (vi) after receipt of any such cash or
securities, promptly deliver such cash or securities to or upon the order of the registered
holder of such Right Certificate, of any such cash or securities.




          (d) In case the registered holder of any Right Certificate shall exercise less than all the
Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be prepared, executed and delivered by the Rights Agent to the
registered holder of such Right Certificate or to such holder’s duly authorized assigns, subject
to the provisions of Sections 6 and 14.




          (e) Notwithstanding anything in this Agreement to the contrary, upon the first occurrence of
a Section 11(b) Event or a Section 13 Event, any Rights that are or were at any time on or after
the earlier of the Stock Acquisition Date or the Distribution Date beneficially owned by (i) an
Acquiring Person or any Associate or Affiliate of an Acquiring Person, (ii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) which becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) which becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and which receives such Rights pursuant to either (A) a transfer (whether or
not for consideration) from the Acquiring Person (or any such Associate or Affiliate) to holders
of equity interests in such Acquiring Person (or any such Associate or Affiliate) or to any
Person with whom such Acquiring Person (or such Associate or Affiliate) has any continuing plan,
agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock
or the Company or (B) a transfer which a majority of the Board of Directors has determined to be
part of a plan, agreement, arrangement or understanding which has as a primary purpose or effect
the avoidance of this Section 7(e), and any subsequent transferees of such Persons, shall be null
and void without any further action, and no holder of such Rights shall have any rights
whatsoever with respect to such Rights, or any Right Certificate which formerly evidenced such
Rights, and neither the Company nor the Rights Agent shall have any obligation whatsoever with
respect to such Rights or any Right Certificate, whether under any provision of this Agreement or
otherwise. The Company shall use all reasonable efforts to ensure that the provisions of this
Section 7(e) and Section 4(b) are



11









 






complied with, but shall have no liability to any holder of Rights or any other Person as a
result of its failure to make any determination under this Section 7(e) or Section 4(b) with
respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder.




          (f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action with respect to a registered holder upon
the occurrence of any purported exercise as set forth in this Section 7 unless the certificate
contained in the appropriate form of election to purchase set forth on the reverse side of the
Right Certificate surrendered for such exercise shall have been properly completed and duly
executed by the registered holder thereof and the Company shall have been provided with 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.



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



          Section 9. Reservation and Availability of Shares of Preferred Stock.




          (a) Subject to the Company’s rights under Section 11(c), the Company covenants and agrees
that it will cause to be reserved and kept available out of its authorized and unissued shares of
Preferred Stock or its authorized and issued shares of Preferred Stock held in its treasury, the
number of shares of Preferred Stock that will be sufficient to permit the exercise in full of all
outstanding Rights and, after the occurrence of a Section 11(b) Event or a Section 13 Event,
shall so reserve and keep available a sufficient number of shares of Preferred Stock, Common
Stock and/or other securities which may be required to permit the exercise in full of the Rights
pursuant to this Agreement.




          (b) The Company covenants and agrees that it will take all such action as may be necessary
to ensure that all shares of Preferred Stock and/or other securities delivered upon exercise of
Rights shall, at the time of delivery of the certificates for such shares or other securities
(subject to payment of the Purchase Price), be duly and validly authorized and issued and fully
paid and nonassessable shares or securities.




          (c) If the Company determines that registration under the Securities Act is required, then
the Company shall use its reasonable best efforts to (i) file, as soon as practicable following
the earliest date after the first occurrence of a Section 11(b) Event on which the consideration
to be delivered by the Company upon exercise of the Rights has been determined in accordance with
Section 11(b) and Section 11(c), a registration statement under the Securities Act, with respect
to the securities purchasable upon exercise of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as practicable after such filing, and (iii)
cause such registration statement to remain effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the earlier of (1) the Expiration Date or (2) the date
as of which the Rights are no longer exercisable for such securities. The Company will also take
such action as may be appropriate under the “blue sky laws” of the various states. The Company
may temporarily suspend, for a period of time not to exceed ninety (90) days after the date set
forth in clause (i) of the first sentence of this



12









 






Section 9(b), the exercisability of the Rights in order to prepare and file such
registration statement and permit it to become effective. Upon any such suspension, the Company
shall issue a public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the suspension is no
longer in effect. In addition, if the Company determines that a registration statement should be
filed under the Securities Act or any securities laws following the Distribution Date, the
Company may temporarily suspend the exercisability of the Rights in each relevant jurisdiction
until such time as a registration statement has been declared effective and, upon any such
suspension, the Company shall issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public announcement at such time as the
suspension is no longer in effect. Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any jurisdiction if the requisite qualification
in such jurisdiction shall not have been obtained or be obtainable or the exercise thereof shall
not be permitted under applicable law or a registration statement shall not have been declared
effective.




          (d) The Company further covenants and agrees that it will pay when due and payable any and
all federal and state transfer taxes and charges which may be payable in respect of the issuance
or delivery of the Right Certificates or of any shares of Preferred Stock and/or other securities
upon the exercise of Rights. The Company shall not, however, be required to pay any tax or charge
which may be payable in respect of any transfer involved in the transfer or delivery of Right
Certificates (or entry in the book-entry account system of the transfer agent) or the issuance or
delivery of certificates or depositary receipts for Preferred Stock and/or other securities in a
name other than that of the registered holder of the Right Certificate evidencing Rights
surrendered for exercise, nor shall the Company be required to issue or deliver any certificates
(or entry in the book-entry account system of the transfer agent) or depositary receipts for
            shares of Preferred Stock and/or other securities upon the exercise of any Rights until any such
tax or charge shall have been paid (any such tax or charge 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 or charge is due.



          Section 10. Preferred Stock Record Date . Each Person (other than the Company) in whose name any certificate (or entry in the
book-entry account) for shares of Preferred Stock (or other securities) is issued (or in whose name
a book-entry account for such securities is held) upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the Preferred Stock (or other securities)
represented thereby on, and such certificate (or, in the case of securities held in book-entry
form, the related direct transaction registration advice) shall be dated, the date upon which the
Right Certificate evidencing such Rights was duly surrendered (or the transfer of the book-entry
accounts effected) and payment of the Purchase Price (and any applicable taxes and charges) was
made; provided, however, that if the date of such surrender (or transfer in book-entry form) and
payment is a date upon which the Preferred Stock (or other securities) transfer books of the
Company are closed, such person shall be deemed to have become the record holder of such shares on,
and such certificate (or, in the case of securities held in book-entry form, the related direct
registration transaction advice or such other notification as the Board of Directors in its
discretion may determine) shall be dated, the next succeeding Business Day on which the Preferred
Stock (or other securities) transfer books of the Company are open. Prior to the exercise of the
Rights evidenced thereby, the holder of a Right Certificate (or book-entry account) shall not be
entitled to any rights of a shareholder of the Company with respect to shares for which the Rights
shall be exercisable, including, without limitation, the right to vote, to receive dividends or
other distributions or to exercise any preemptive rights, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided herein.



13









 





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




          (a) In the event the Company shall at any time after the date of this Agreement (i) declare
a dividend on the Preferred Stock payable in shares of Preferred Stock, (ii) subdivide the
outstanding Preferred Stock, (iii) combine the outstanding Preferred Stock into a smaller number
of shares or (iv) issue any shares of its capital stock in a reclassification of the Preferred
Stock (including any such reclassification in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation), except as otherwise provided in this
Section 11, the Purchase Price in effect at the time of the record date for such dividend or the
time of the effective date of such subdivision, combination or reclassification, and the number
and kind of shares of capital stock, including Preferred Stock, issuable upon exercise of a
Right, shall be proportionately adjusted so that the holder of any Right exercised after such
time, upon payment of the aggregate consideration such holder would have had to pay to exercise
such Right prior to such time, shall be entitled to receive the aggregate number and kind of
shares of capital stock, including Preferred Stock, which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Stock transfer books of the
Company were open, such holder would have owned upon such exercise and been entitled to receive
by virtue of such dividend, subdivision, combination or reclassification.




          (b) In the event any Person becomes an Acquiring Person (“Section 11(b) Event”),
then proper provision shall be made so that each holder of a Right, subject to Section 7(e) and
Section 24 hereof and except as provided below, shall after the later of the occurrence of such
event and the effective date of an appropriate registration statement pursuant to Section 9, have
a right to receive, upon exercise thereof at the then current Purchase Price multiplied by the
then number of one one-ten thousandths of a share of Preferred Stock for which a Right is then
exercisable in accordance with the terms of this Agreement, in lieu of shares of Preferred Stock,
such number of shares of Common Stock of the Company as shall equal the result obtained by (y)
multiplying the then current Purchase Price by the then number of one one-ten thousandths of a
share of Preferred Stock for which a Right is then exercisable and dividing that product by (z)
50% of the current market price per one share of Common Stock (determined pursuant to Section
11(f) on the date of the occurrence of the Section 11(b) Event) (such number of shares being
referred to as the “Number of Adjustment Shares”).




          (c) In the event that there shall not be sufficient treasury shares or authorized but
unissued shares of Common Stock to permit the exercise in full of the Rights in accordance with
the foregoing Section 11(b), and the Rights become so exercisable, notwithstanding any other
provision of this Agreement, to the extent necessary and permitted by applicable law and any
agreements in effect on the date hereof to which the Company is a party, each Right shall
thereafter represent the right to receive, upon exercise thereof at the then current Purchase
Price, multiplied by the then number of one one-ten thousandths of a share of Preferred Stock for
which a Right is then exercisable, in accordance with the terms of this Agreement, a number of
shares, or units of shares, of (y) Common Stock, and (z) preferred stock (or other equity
securities) of the Company, including, but not limited to, Preferred Stock, equal in the
aggregate to the Number of Adjustment Shares where the Board of Directors shall have in good
faith deemed such shares or units, other than the shares of Common Stock, to have at least the
same value and voting rights as the Common Stock (a “common stock equivalent”); provided,
however, if there are unavailable sufficient shares (or fractions of shares) of Common Stock
and/or common stock equivalents, then the Company shall take all such action as may be necessary
to authorize additional shares of Common Stock or common stock equivalents for issuance upon
exercise of the Rights, including the calling of a meeting of shareholders; and provided,
further, that if the Company is unable to cause sufficient shares of Common Stock and/or common
stock equivalents to be available for issuance upon



14









 






exercise in full of the Rights, then the Company, to the extent necessary and permitted by
applicable law and any agreements or instruments in effect on the date thereof to which it is a
party, shall make provision to pay an amount in cash or other consideration (including, without
limitation, debt securities or assets or a combination of any of the foregoing) equal to twice
the Purchase Price (as adjusted pursuant to this Section 11), in lieu of issuing shares of Common
Stock and/or common stock equivalents. To the extent that the Company determines that some action
needs to be taken pursuant to this Section 11(c), the Board of Directors by action of at least a
majority of its members then in office may suspend the exercisability of the Rights for a period
of up to sixty (60) days following the date on which the Section 11(b) Event shall have occurred,
in order to decide the appropriate form of distribution to be made pursuant to this Section 11(c)
and to determine the value thereof. In the event of any such suspension, the Company shall issue
a public announcement stating that the exercisability of the Rights has been temporarily
suspended. The Board of Directors may, but shall not be required to, establish procedures to
allocate the right to receive Common Stock and common stock equivalents upon exercise of the
Rights among holders of Rights, which such allocation may be, but is not required to be,
pro-rata.




     (d) If the Company shall fix a record date for the issuance of rights (other than any Rights
hereunder) or warrants to all holders of Preferred Stock entitling them (for a period expiring
within 90 calendar days after such record date) to subscribe for or purchase Preferred Stock (or
securities having the same or more favorable rights, privileges and preferences as the Preferred
Stock (“equivalent preferred stock”)) or securities convertible into Preferred Stock or
equivalent preferred stock, at a price per share of Preferred Stock or per share of equivalent
preferred stock or having a conversion or exercise price per share, as the case may be, less than
the current market price per share of Preferred Stock (as determined pursuant to Section 11(f))
on such record date, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such date by a
fraction, the numerator of which shall be the number of shares of Preferred Stock outstanding on
such record date plus the number of shares of Preferred Stock which the aggregate offering price
of the total number of shares of Preferred Stock or equivalent preferred stock to be offered
(and/or the aggregate initial conversion price of the convertible securities so to be offered)
would purchase at such current market price, and the denominator of which shall be the number of
shares of Preferred Stock outstanding on such record date plus the number of additional shares of
Preferred Stock and/or equivalent preferred stock to be offered for subscription or purchase (or
into which the convertible securities so to be offered are initially convertible). In case such
subscription price may be paid in a consideration, part or all of which shall be in a form other
than cash, the value of such consideration shall be as determined in good faith by a majority of
the Board of Directors, whose determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes. Shares of Preferred Stock owned by or held
for the account of the Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a record date is fixed; and
in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted
to be the Purchase Price which would then be in effect if such record date had not been fixed.




     (e) If the Company shall fix a record date for the making of a distribution to all holders
of Preferred Stock (including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation) of evidences of
indebtedness, cash (other than a regular periodic cash dividend out of earnings or retained
earnings of the Company), assets (other than a dividend payable in Preferred Stock, but including
any dividend payable in stock other than Preferred Stock) or convertible securities, subscription
rights or warrants (excluding those referred to in Section 11(d)), the Purchase Price to be in
effect after such record date shall be determined by multiplying the Purchase Price in effect
immediately



15









 






prior to such record date by a fraction, the numerator of which shall be the current market
price for one share of Preferred Stock (as determined pursuant to Section 11(f)) on such record
date less the fair market value (as determined in good faith by a majority of the Board of
Directors, whose determination shall be described in a statement filed with the Rights Agent and
shall be conclusive for all purposes) of the portion of the assets or evidences of indebtedness
so to be distributed or of such convertible securities, subscription rights or warrants
applicable to one share of Preferred Stock, and the denominator of which shall be such current
market price for one share of Preferred Stock (as determined pursuant to Section 11(f)). Such
adjustments shall be made successively whenever such a record date is fixed; and in the event
that such distribution is not so made, the Purchase Price shall again be adjusted to be the
Purchase Price which would then be in effect if such record date had not been fixed.




     (f) (i) For the purpose of any computation hereunder, the “current market price” of any
security (a “Security” for purposes of this Section 11(f)(i)) on any date shall be deemed to be
the average of the daily closing prices per share of such Security for the 30 consecutive Trading
Days immediately prior to, but not including, such date; provided, however, that in the event
that the current market price per share of such Security is determined during a period following
the announcement by the issuer of such Security of (A) a dividend or distribution on such
Security payable in shares of such Security or securities convertible into shares of such
Security or (B) any subdivision, combination or reclassification of such Security, and prior to
the expiration of 30 Trading Days after but not including the ex-dividend date for such dividend
or distribution or the record date for such subdivision, combination or reclassification, then,
and in each such case, the current market price shall be appropriately adjusted by the Board of
Directors to reflect the current market price per share equivalent of such Security. The closing
price for each day shall be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular way, in either case
as reported in the principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the Security is not listed or
admitted to trading on the New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to trading on the
principal national securities exchange on which the Security is listed or admitted to trading or,
if the Security is not listed or admitted to trading on any national securities exchange, the
last quoted price, or if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, or, if on any such date the Security is not so quoted and if such bid
and asked prices are not available, the average of the closing bid and asked prices as furnished
by a professional market maker making a market in the Security selected by a majority of the
Board of Directors. If on any such date no market maker is making a market in the Security, the
fair value of such Security on such date as determined in good faith by a majority of the Board
of Directors shall be used, which determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes. The term “Trading Day” shall mean a day on
which the principal national securities exchange on which the Security is listed or admitted to
trading is open for the transaction of business or, if the Security is not listed or admitted to
trading on any national securities exchange, a Business Day. If the Security is not publicly held
or not so listed or traded, “current market price” shall mean the fair value as determined in
good faith by a majority of the Board of Directors, which determination shall be described in a
statement filed with the Rights Agent and conclusive for all purposes or, if at the time of such
determination there is an Acquiring Person, by a nationally recognized investment banking firm
selected by the Board of Directors, which shall have the duty to make such determination in a
reasonable and objective manner, whose determination shall be described in a statement filed with
the Rights Agent and conclusive for all purposes.



16









 





               (ii) For the purpose of any computation hereunder, the “current market price” per share (or
one one-ten thousandth of a share) of Preferred Stock shall be determined in the same manner as set
forth above for the Common Stock in clause (i) of this Section 11(f) (other than the last sentence
thereof). If the current market price per share (or one one-ten thousandth of a share) of
Preferred Stock cannot be determined in the manner provided above or if the Preferred Stock is not
publicly held or listed or traded in a manner described in clause (i) of this Section 11(f), the
“current market price” per share of Preferred Stock shall be conclusively deemed to be an amount
equal to 10,000 (as such number may be appropriately adjusted for such events as stock splits,
stock dividends and recapitalizations with respect to the Common Stock occurring after the date of
this Agreement) multiplied by the current market price per share of the Common Stock and the
“current market price” per one one-ten thousandth of a share of Preferred Stock shall be equal to
the current market price per share of the Common Stock (as appropriately adjusted). If neither the
Common Stock nor the Preferred Stock is publicly held or so listed or traded, “current market
price” per share shall mean the fair value per share as determined in good faith by the Board of
Directors, which determination shall be described in a statement filed with the Rights Agent and
conclusive for all purposes, or, if at the time of such determination there is an Acquiring Person,
by a nationally recognized investment banking firm selected by the Board of Directors, which shall
have the duty to make such determination in a reasonable and objective manner, whose determination
shall be described in a statement filed with the Rights Agent and conclusive for all purposes.




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




     (h) In the event that at any time, as a result of an adjustment made pursuant to Section
11(a) or (b) hereof, the holder of any Right shall be entitled to receive upon exercise of such
Right any shares of capital stock of the Company other than shares of Preferred Stock, thereafter
the number of such other shares 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 with respect to the shares of Preferred Stock contained in Section 11(a), (b), (c),
(d), (e), (g), (i), (j), (k), (l), (m), (n) and (o), inclusive, and the provisions of Sections 7,
9, 10, 13 and 14 with respect to the shares of Preferred Stock shall apply on like terms to any
such other shares.




     (i) All Rights originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price,
the number of one one-ten thousandths of a share of Preferred Stock or other capital stock of the
Company purchasable from time to time hereunder upon exercise of the Rights, all subject to
further adjustment of the Purchase Price.




     (j) Unless the Company shall have exercised its election as provided in Section 11(k), upon
each adjustment of the Purchase Price as a result of the calculations made in Section 11(d) and
(e), each Right outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of one one-ten
thousandths of a share of Preferred Stock (calculated to the nearest one ten-thousandth) obtained
by (i) multiplying (A) the number of one one-ten thousandths of a share of Preferred Stock
covered by a Right immediately prior to the adjustment by (B) the



17









 






Purchase Price in effect immediately prior to such adjustment of the Purchase Price and (ii)
dividing the product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.




          (k) The Company may elect on or after the date of any adjustment of the Purchase Price to
adjust the number of Rights, in substitution for any adjustment in the number of shares of
Preferred Stock purchasable upon the exercise of a Right. Each of the Rights outstanding after
such adjustment of the number of Rights shall be exercisable for the number of one one-ten
thousandths of a share of Preferred Stock for which such Right was exercisable immediately prior
to such adjustment. Each Right held of record prior to such adjustment of the number of Rights
shall become that number of Rights (calculated to the nearest ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to adjustment of the Purchase Price by
the Purchase Price in effect immediately after such adjustment. The Company shall make a public
announcement of its election to adjust the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be made. This record date
may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Right
Certificates have been issued, shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon each adjustment of the number of
Rights pursuant to this Section 11(k), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Right Certificates on such record date Right Certificates
evidencing, subject to Section 14, the additional Rights to which such holders shall be entitled
as a result of such adjustment, or, at the option of the Company, shall cause to be distributed
to such holders of record in substitution and replacement for the Right Certificates held by such
holders prior to the date of adjustment, and upon surrender thereof, if required by the Company,
new Right Certificates evidencing all the Rights to which such holders shall be entitled after
such adjustment. Right Certificates so to be distributed shall be issued, executed and
countersigned in the manner provided for herein (and may bear, at the option of the Company, the
adjusted Purchase Price) and shall be registered in the names of the holders of record of the
Right Certificates on the record date specified in the public announcement.




          (l) Irrespective of any adjustment or change in the Purchase Price or the number of shares
of Preferred Stock issuable upon the exercise of the Rights, the Right Certificates theretofore
and thereafter issued may continue to express the Purchase Price and the number of shares which
were expressed in the initial Right Certificates issued hereunder.




          (m) Before taking any action that would cause an adjustment reducing the Purchase Price
below the then par value, if any, of the shares of Common Stock or other securities and below one
one-ten thousandth of the then par value, if any of the Preferred Stock, issuable upon exercise
of the Rights, the Company shall take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally issue fully paid and
nonassessable shares of such Preferred Stock, Common Stock or other securities at such adjusted
Purchase Price. If upon any exercise of the Rights, a holder is to receive a combination of
Common Stock and common stock equivalents, a portion of the consideration paid upon such
exercise, equal to at least the then par value of a share of Common Stock of the Company, shall
be allocated as the payment for each share of Common Stock of the Company so received.




          (n) In any case in which this Section 11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuing to the holder of any Right exercised after such
record date the shares of Preferred Stock and other capital stock or securities of the Company,
if any, issuable upon such exercise over and above the shares of Preferred Stock and other
capital stock or securities of the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided, however, that the Company shall



18









 






deliver to such holder a due bill or other appropriate instrument evidencing such holder’s
right to receive such additional shares upon the occurrence of the event requiring such
adjustment.




          (o) Anything in this Section 11 to the contrary notwithstanding, the Company shall be
entitled to make such reductions in the Purchase Price, in addition to those adjustments
expressly required by this Section 11, as and to the extent that in their good faith judgment a
majority of the Board of Directors shall determine to be advisable in order that any (i)
consolidation or subdivision of the Preferred Stock, (ii) issuance wholly for cash of any
Preferred Stock at less than the then current market price, (iii) issuance wholly for cash of
Preferred Stock or securities which by their terms are convertible into or exchangeable for
Preferred Stock, (iv) stock dividends or (v) issuance of rights, options or warrants referred to
hereinabove in this Section 11, hereafter made by the Company to the holders of its Preferred
Stock, shall not be taxable to such shareholders.




          (p) Anything in this Agreement to the contrary notwithstanding, in the event that at any
time after the date of this Agreement and prior to the Distribution Date, the Company shall (i)
declare or pay any dividend on the Common Stock payable in shares of Common Stock or (ii) effect
a subdivision, combination or consolidation of the Common Stock (by reclassification or otherwise
than by payment of dividends in shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in any such case (y) the number of one one-ten thousandths of a share of
Preferred Stock purchasable after such event upon proper exercise of each Right shall be
determined by multiplying the number of one one-ten thousandths of a share of Preferred Stock so
purchasable immediately prior to such event by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately before such event and the denominator of which
is the number of shares of Common Stock outstanding immediately after such event, and (z) each
share of Common Stock outstanding immediately after such event shall have issued with respect to
it that number of Rights which each share of Common Stock outstanding immediately prior to such
event had issued with respect to it.



          The adjustments provided for in this Section 11(p) shall be made successively whenever such a
dividend is declared or paid or such a subdivision, combination or consolidation is effected.




          (q) The Company covenants and agrees that it shall not, at any time after the Distribution
Date and so long as the Rights have not been redeemed pursuant to Section 23 or exchanged
pursuant to Section 24, (i) consolidate with, (ii) merge with or into, or (iii) sell or transfer,
in one or more transactions, assets or earning power aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) to, any other Person, if at
the time of or immediately after such consolidation, merger or sale there are any rights,
warrants or other instruments or securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be afforded by the Rights.




          (r) The Company covenants and agrees that, after the Stock Acquisition Date, it will not,
except as permitted by Sections 23 and 24, take any action the purpose or effect of which is to
diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights;
provided, however, that the issuance of additional Rights pursuant hereto, including without
limitation, by action of the Board of Directors under Section 22, shall not be deemed to violate
this Section 11(r).



          Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an adjustment is made or any event affecting the Rights or their exercisability
(including without limitation an event which causes any Rights to become null and void) occurs, as
provided in Sections 11 or 13, the Company shall (a) promptly prepare a certificate setting forth
such adjustment, and a brief statement of the facts and computations accounting for such adjustment
or describing such event, (b) promptly file with the Rights Agent and with each transfer agent for
the Preferred Stock and the Common Stock a copy of such certificate and (c) include a brief summary
thereof in a



19









 




mailing to each holder of a Right Certificate in accordance with Section 26, or prior to the
Distribution Date, disclose a brief summary in a filing under the Exchange Act; provided, however,
that the failure to give, or any defect in, any such disclosure shall not affect the legality or
validity of such adjustment. The Rights Agent shall be fully protected in relying on any such
certificate and on any adjustments therein contained.




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




          (a) In the event that, directly or indirectly, at any time after a Person has become an
Acquiring Person, (x) the Company shall consolidate with, or merge with and into, any other
Person, (y) any Person shall consolidate with or merge with and into the Company, and the Company
shall be the continuing or surviving corporation of such consolidation or merger and, in
connection with such consolidation or merger, all or part of the Common Stock shall be changed
into or exchanged for stock or other securities of any other Person (or the Company) or cash or
any other property, or (z) the Company shall sell, or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one or more transactions, assets or earning
power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person other than to the Company or one or more of its
wholly-owned Subsidiaries, then, and in each such case, proper provision shall be made so that
(i) each holder of a Right, subject to Section 7(e), shall thereafter have the right to receive,
upon the exercise thereof at the then current Purchase Price multiplied by the then number of one
one-ten thousandths of a share of Preferred Stock for which a Right is then exercisable (or if a
Section 11(b) Event has occurred prior to the first occurrence of a Section 13 Event, multiplying
the number of such one one-ten thousandths of a share for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(b) Event by the Purchase Price in
effect immediately prior to such first occurrence) in accordance with the terms of this
Agreement, in lieu of Preferred Stock, such number of shares of freely tradable Common Stock of
the Principal Party, free and clear of liens, rights of call or first refusal, encumbrances or
other adverse claims, as shall be equal to the result obtained by (A) multiplying the then
current Purchase Price by the number of one one-ten thousandths of a share of Preferred Stock for
which a Right is then exercisable (or if a Section 11(b) Event has occurred prior to the first
occurrence of a Section 13 Event, multiplying the number of such one one-ten thousandths of a
share for which a Right was exercisable immediately prior to the first occurrence of a Section
11(b) Event by the Purchase Price in effect immediately prior to such first occurrence), and
dividing that product by (B) 50% of the current market price per share of the Common Stock of
such Principal Party (as determined pursuant to Section 11(f)) on the date of consummation of
such consolidation, merger, sale or transfer; (ii) the Principal Party shall thereafter be liable
for, and shall assume, by virtue of such consolidation, merger, sale or transfer, all the
obligations and duties of the Company pursuant to this Agreement; (iii) the term “Company” shall
thereafter be deemed to refer to such Principal Party, it being specifically intended that the
provisions of Section 11, except for the provisions of 11(b), shall apply to such Principal
Party; and (iv) such Principal Party shall take such steps (including, but not limited to, the
authorization and reservation of a sufficient number of shares of its Common Stock to permit
exercise of all outstanding Rights in accordance with this Section 13(a)) in connection with such
consummation as may be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the shares of its Common Stock
thereafter deliverable upon the exercise of the Rights.




          (b) “Principal Party” shall mean:



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



20









 





                    (ii) in the case of any transaction described in clause (z) of the first sentence of Section
13(a) hereof, the Person that is the party receiving the greatest portion of the assets or earning
power transferred pursuant to such transaction or transactions; provided, however, that in any case
described in clause (i) or (ii) in this Section 13(b), (x) if the Common Stock of such Person is
not at such time and has not been continuously over the preceding 12-month period registered under
Section 12 of the Exchange Act, and such Person is a direct or indirect Subsidiary or Affiliate of
another Person, “Principal Party” shall refer to such other Person; (y) in case such Person is a
Subsidiary, directly or indirectly, or Affiliate of more than one Person, the Common Stocks of all
of which are and have been so registered, “Principal Party” shall refer to whichever of such
Persons is the issuer of the Common Stock having the greatest aggregate market value, and (z) in
case such Person is, or is owned directly or indirectly by, a partnership or joint venture formed
by two or more Persons that are not owned, directly or indirectly, by the same Person, the rules
set forth in (x) and (y) above shall apply to each of the chains of ownership having an interest in
such joint venture as if such party were a “Subsidiary” of both or all of such joint venturers and
the Principal Parties in each such chain shall bear the obligations set forth in this Section 13 in
the same ratio as their direct or indirect interests in such Person bear to the total of such
interests.




          (c) The Company shall not consummate any such consolidation, merger, sale or transfer unless
(i) the Principal Party shall have a sufficient number of shares of its authorized Common Stock
which have not been issued or reserved for issuance to permit the exercise in full of the Rights
in accordance with this Section 13, (ii) all rights of first refusal or preemptive rights in
respect of the issuance of Common Stock of such Principal Party upon exercise of outstanding
Rights have been waived, (iii) there are no rights, warrants, instruments or securities
outstanding or any plan, agreement, arrangement or transaction which, as a result of the
consummation of such transaction, would eliminate or substantially diminish the benefits intended
to be afforded by the Rights, (iv) such transaction shall not result in a default by such
Principal Party under this Agreement, and (v) prior thereto the Company and each Principal Party
and each other Person who may become a Principal Party as a result of such consolidation, merger,
sale or transfer shall have executed and delivered to the Rights Agent a supplemental agreement
providing for the terms set forth in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of any consolidation, merger, sale or
transfer of assets mentioned in paragraph (a) of this Section 13, the Principal Party will:



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



                    (ii) use its best efforts to qualify or register the Rights and the securities purchasable
upon exercise of the Rights under the “blue sky laws” of such jurisdictions as may be necessary or
appropriate; and



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



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



          Section 14. Fractional Rights and Fractional Shares.



21









 






          (a) The Company shall not be required to issue fractions of Rights or to distribute Right
Certificates which evidence fractional Rights. In lieu of such fractional Rights, the Company
shall pay or cause to be paid 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 the purposes of this Section 14(a),
the current market value of a whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price for any Trading Day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Rights are not listed or admitted to trading on the New York Stock Exchange,
as reported in the principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the principal national securities exchange on which the Rights
are listed or admitted to trading or, if the Rights are not listed or admitted to trading on any
national securities exchange, the last quoted price or, not so quoted, the average of the high
bid and low asked prices in the over-the-counter market or, if on any such date the Rights are
not quoted by any such organization, the average of the closing bid and asked prices as furnished
by a professional market maker making a market in the Rights selected by a majority of the Board
of Directors. If on any such date no such market maker is making a market in the Rights, the
fair value of the Rights on such date as determined in good faith by a majority of the Board of
Directors shall be used and conclusive for all purposes, or, if at the time of such determination
there is an Acquiring Person, by a nationally recognized investment banking firm selected by the
Board of Directors, which shall have the duty to make such determination in a reasonable and
objective manner, which determination shall be described in a statement filed with the Rights
Agent and conclusive for all purposes.




          (b) The Company shall not be required to issue fractions of shares of Preferred Stock (other
than fractions which are integral multiples of one one-ten thousandth of a share of Preferred
Stock) upon exercise of the Rights or to distribute certificates which evidence fractional shares
of Preferred Stock (other than fractions which are integral multiples of one one-ten thousandth
of a share of Preferred Stock). Fractions of shares of Preferred Stock in integral multiples of
one one-ten thousandth of a share of Preferred Stock may, at the election of the Company, be
evidenced by depositary receipts, pursuant to an appropriate agreement between the Company and a
depositary selected by it, provided that such agreement shall provide that the holders of such
depositary receipts shall have all the rights, privileges and preferences to which they are
entitled as beneficial owners of the shares of Preferred Stock represented by such depositary
receipts. In lieu of fractional shares of Preferred Stock that are not integral multiples of one
one-ten thousandth of a share of Preferred Stock, the Company may pay to the registered holders
of Right Certificates at the time such Right Certificates are exercised as herein provided an
amount in cash equal to the same fraction of the current market value of a one one-ten thousandth
of a share of Preferred Stock. For purposes of this Section 14(b), the current market value of
one one-ten thousandth of a share of Preferred Stock shall be one one-ten thousandth of the
closing price of a share of Preferred Stock (as determined pursuant to Section 11(f)(ii)) for the
Trading Day immediately prior to the date of such exercise.




          (c) Following the occurrence of one of the transactions or events specified in Section 11
giving rise to the right to receive common stock equivalents (other than Preferred Stock) or
other securities upon the exercise of a Right, the Company shall not be required to issue
fractions of shares or units of such common stock equivalents or other securities upon exercise
of the Rights or to distribute certificates which evidence fractional shares of such common stock
equivalents or other securities. In lieu of fractional shares or units of such common stock
equivalents or other securities, the Company may pay to the registered holders of Right



22









 





Certificates at the time such Rights are exercised as herein provided an amount in cash
equal to the same fraction of the current market value of a share or unit of such common stock
equivalent or other securities. For purposes of this Section 14(c), the current market value
shall be determined in the manner set forth in Section 11(f) for the Trading Day immediately
prior to the date of such exercise and, if such common stock equivalent is not traded, each such
common stock equivalent shall have the value of one one-ten thousandth of a share of Preferred
Stock.




          (d) Except as otherwise expressly provided in this Section 14, the holder of a Right by the
acceptance of the Right expressly waives such holder’s right to receive any fractional Rights or
any fractional share upon exercise of Rights.



          Section 15. Rights of Action. All rights of action in respect of this Agreement, except for rights of action given to the
Rights Agent under Section 18 or Section 20, are vested in the respective registered holders of the
Right Certificates (and, prior to the Distribution Date, the registered holders of Common Stock);
and any registered holder of any Right Certificate (or, prior to the Distribution Date, of the
Common Stock), without the consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Common Stock), may, in such holder’s own
behalf and for such holder’s own benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company to enforce, or otherwise act in respect of, such holder’s right
to exercise the Rights evidenced by such Right Certificate in the manner provided in such Right
Certificate and in this Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or threatened violations
of, the obligations of any Person subject to this Agreement. Holders of Rights shall be entitled to
recover the reasonable costs and expenses, including attorneys’ fees, incurred by them in any
action to enforce the provisions of this Agreement.



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




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




          (b) after the Distribution Date, the Right Certificates are transferable only on the
registry books of the Rights Agent if surrendered at the stockholder services office of the
Rights Agent or such office designated for such purpose, duly endorsed or accompanied by a proper
instrument of transfer and with the appropriate forms and certificates properly completed and
fully executed; and




          (c) subject to Section 6 and Section 7(f), the Company and the Rights Agent may deem and
treat the Person in whose name the Right Certificate (or, prior to the Distribution Date, the
associated Common Stock) is registered as the absolute owner thereof and of the Rights evidenced
thereby (notwithstanding any notations of ownership or writing on the Right Certificate or the
associated Common Stock certificate or book-entry registration advice 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; and




          (d) notwithstanding anything in this Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of a Right or other Person as a result of its
inability to perform any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, judgment, decree or ruling (whether interlocutory or final)
issued by a court of competent jurisdiction or by a



23









 






governmental, self-regulatory, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of such obligation.



          Section 17. Right Certificate Holder Not Deemed a Shareholder. No holder, as such, of any Right Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of Preferred Stock, Common Stock or any other securities of
the Company which may at any time be issuable on the exercise of the Rights represented thereby,
nor shall anything contained herein or in any Right Certificate be construed to confer upon the
holder of any Right Certificate, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as provided in Section 25), or to receive
dividends 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.



          Section 18. Concerning the Rights Agent. The Company agrees to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties hereunder. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss, liability, or expense,
incurred without gross negligence, bad faith or willful misconduct on the part of the Rights Agent,
for anything done or omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending against any claim
of liability.



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



          Section 19. Merger or Consolidation or Change of Name of Rights Agent. Any Person into which the Rights Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any Person resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a party, or any Person succeeding to the
shareholder services business of the Rights Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto, provided that such Person would be
eligible for appointment as a successor Rights Agent under the provisions of Section 21. In case at
the time such successor Rights Agent shall succeed to the agency created by this 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 Agreement.



24









 





          In case at any time the name of the Rights Agent shall be changed and at such time any of the
Right 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 Agreement.



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




          (a) The Rights Agent may consult with legal counsel (who may be legal counsel for the
Company), and the opinion of such counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in good faith and in accordance with
such opinion.




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




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




          (d) The Rights Agent shall not be liable for or by reason of any of the statements of fact
or recitals contained in this Agreement or in the Right Certificates (except 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.




          (e) The Rights Agent shall not be under any responsibility in respect of the validity of
this Agreement or the execution and delivery hereof (except the due execution hereof by the
Rights Agent) or in respect of the validity or execution of any 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 Agreement or in any Right Certificate; nor shall it be
responsible for any adjustment required under the provisions of Sections 11 or 13 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 to the Rights Agent of any such adjustment);
nor shall it by any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Preferred Stock or other securities to be issued
pursuant to this Agreement or any Right Certificate or as to whether any shares of Preferred
Stock or other securities will, when 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



25









 






as may reasonably be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.




          (g) The Rights Agent is hereby authorized and directed to accept instructions with respect
to the performance of its duties hereunder from the Chairman of the Board, the Chief Executive
Officer, the President, Chief Financial Officer, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the Company, and to apply to such officers
for advice or instructions in connection with its duties, and it shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with instructions of any
such officer.




          (h) The Rights Agent and any shareholder, director, affiliate, officer, employee, agent or
representative 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 Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or for any other Person.




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




          (j) No provision of this Agreement shall require the Rights Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be reasonable grounds for believing
that repayment of such funds or adequate indemnification against such risk or liability is not
reasonably assured to it.




          (k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise
or transfer, the certificate attached to the form of assignment or form of election to purchase,
as the case may be, has either not been completed or indicates an affirmative response to clause
1, clause 2 and/or, in the case of the certificate attached to the form of election to purchase,
clause 3 thereof, the Rights Agent shall not take any further action with respect to such
requested exercise of transfer without first consulting with the Company.



          Section 21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may resign and be discharged from its duties
under this Agreement upon 30 days’ notice in writing mailed to the Company and, in the event that
the Rights Agent or one of its Affiliates is not also the transfer agent for the Company, to each
transfer agent of the Common Stock and Preferred Stock by registered or certified mail. In the
event the transfer agency relationship in effect between the Company and the Rights Agent
terminates, the Rights Agent will be deemed to have resigned automatically and be discharged from
its duties under this Agreement as of the effective date of such termination, and the Company shall
be responsible for sending any required notice. The Company may remove the Rights Agent or any
successor Rights Agent upon 30 days’ notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the Common Stock and Preferred
Stock by registered or certified mail, and to the holders of the Right Certificates by first-class
mail or, prior to the Distribution Date, through any filing made by the Company pursuant to the
Exchange Act. 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 such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent



26









 




or by the holder of a Right Certificate (which holder shall, with such notice, submit such
holder’s Right Certificate for inspection by the Company), then the registered holder of any Right
Certificate 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) a corporation or other entity organized and doing business under the laws of the United States
or of any state, in good standing, which is authorized under such laws to exercise corporate trust
or stock transfer 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 $25,000,000, or (b) an affiliate of a corporation or other entity described in clause (a) of
this sentence. After appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer to the successor
Rights Agent any property at the time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Not later than the effective date of
any such appointment the Company shall file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Common Stock and Preferred Stock, and mail a notice thereof in
writing to the registered holders of the Right Certificates or, prior to the Distribution Date,
through any filing made by the Company pursuant to the Exchange Act. Failure to give any notice
provided for this Section 21, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.




          Section 22. Issuance of New Right Certificates.





          (a) Notwithstanding any of the provisions of this 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 a majority of the Board of Directors then in office to reflect any
adjustment or change in the Purchase Price and the number or kind or class of shares of stock or
other securities or property purchasable under the Right Certificates made in accordance with the
provisions of this Agreement.




          (b) In addition, in connection with the issuance or sale of Common Stock following the
Distribution Date and prior to the redemption, exchange or expiration of the Rights, the Company
(i) shall with respect to shares of Common Stock so issued or sold pursuant to the exercise of
stock options or under any employee benefit plan or arrangement, or upon the exercise, conversion
or exchange of securities or other rights or options to acquire Common Stock hereinafter issued
by the Company, and (ii) may, in any other case, if deemed necessary or appropriate by the Board
of Directors, issue Right Certificates representing the appropriate number of Rights in
connection with such issuance or sale; provided, however, that (A) no such Right Certificates
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 Certificates would be issued, and (B) no 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 23. Redemption and Termination.




          (a) The Board of Directors then in office may, at its option, at any time prior to the
earlier of (i) the Close of Business on the Stock Acquisition Date or (ii) the Close of Business
on the Final Expiration Date, elect to redeem all but not less than all of the then outstanding
Rights at a redemption price of $0.001 per Right, as appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date hereof (such redemption
price being hereinafter referred to as the “Redemption Price”). Notwithstanding anything
contained in this Agreement to the contrary, the Rights shall not be exercisable after the first



27









 






occurrence of a Section 11(b) Event until such time as the Company’s right of redemption
hereunder has expired. The redemption of the Rights by the Board of Directors may be made
effective at such time, on such basis, in such form and with such conditions as the Board of
Directors in its sole discretion may establish.




          (b) Immediately upon the action of a majority of the Board of Directors then in office
electing to redeem the Rights, evidence of which shall be promptly filed with the Rights Agent,
or, when appropriate, immediately upon the time or satisfaction of such conditions as the Board
of Directors may have established, and without any further action and without any notice, the
right to exercise the Rights will terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price. The Company shall promptly give public
disclosure of any such redemption; provided, however, that the failure to give, or any defect in,
any such disclosure shall not affect the legality or validity of such redemption. Within 10 days
after the action of the Board of Directors 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 Stock. Any notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice of redemption will state
the method by which the payment of the Redemption Price will be made. Amounts payable shall be
rounded down to the nearest one cent.




          (c) Neither the Company nor any of its Affiliates or Associates may redeem, acquire or
purchase for value any Rights at any time in any manner other than that specifically set forth in
this Section 23 or in Section 24 and other than in connection with the purchase of Common Stock
prior to the Distribution Date.



          Section 24. Exchange.




          (a) The Board of Directors may, at its option, at any time after any Person becomes an
Acquiring Person, exchange all or part of the then outstanding and exercisable Rights (which
shall not include Rights that have become null and void pursuant to the provisions of Section
7(e) hereof) for Common Stock at an exchange ratio of one share of Common Stock per Right,
appropriately adjusted to reflect adjustments in the number of Rights pursuant to Section 11 of
this Agreement (such exchange ratio being hereinafter referred to as the “Exchange
Ratio”). Notwithstanding the foregoing, the Board of Directors shall not be empowered to
effect such exchange at any time after any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan or compensation arrangement of the Company or any such
Subsidiary, or any entity holding securities of the Company to the extent organized, appointed or
established by the Company or any such Subsidiary for or pursuant to the terms of any such
employee benefit plan or compensation arrangement), together with all Affiliates and Associates
of such Person, becomes the Beneficial Owner of 50% or more of the Common Stock then outstanding.




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



28









 






notice of exchange will state the method by which the exchange of Common Stock for Rights
will be effected and, in the event of any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the provisions of Section 7(e)) held by each
holder of Rights.




          (c) In any exchange pursuant to this Section 24, the Company, at its option, may substitute
Preferred Stock (or equivalent preferred stock, as such term is defined in Section 11(d) hereof)
for Common Stock exchangeable for Rights, at the initial rate of one one-ten thousandth of a
share of Preferred Stock (or equivalent preferred stock) for each share of Common Stock, as
appropriately adjusted to reflect adjustments in the voting rights of the Preferred Stock
pursuant to the terms thereof, so that the fraction of a share of Preferred Stock delivered in
lieu of each share of Common Stock shall have the same voting rights as one share of Common
Stock.




          (d) In the event that there shall not be sufficient shares of Common Stock or Preferred
Stock (or equivalent preferred stock) issued but not outstanding or authorized but unissued to
permit any exchange of Rights, as contemplated in accordance with this Section 24, the Company
shall either (i) take all such action as may be necessary to authorize additional shares of
Common Stock or Preferred Stock (or equivalent preferred stock) for issuance upon exchange of the
Rights (provided that if such approval is not obtained the Company will take the action specified
in clause (ii) of this sentence), or (ii) take such action as shall be necessary to ensure and
provide, as and when and to the maximum extent permitted by applicable law and without exposing
directors to personal liability in connection therewith (as determined by the Board of Directors)
and any agreements or instruments in effect on the Stock Acquisition Date (and remaining in
effect) to which it is a party, that each Right shall thereafter constitute the right to receive
debt or equity securities or other assets (or a combination thereof) having a fair value equal to
the product of the current market price of a share of Common Stock (as determined pursuant to
Section 11(f)) on the date of the Section 11(b) Event multiplied by the Exchange Ratio in effect
on the date of the Section 11(b) Event, where the fair value of such debt or equity securities or
other assets (or a combination thereof) shall be as determined in good faith by the Board of
Directors after consultation with a nationally recognized investment banking firm.




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




          (f) Upon or prior to effecting an exchange pursuant to this Section 24, or as promptly as
reasonably practicable thereafter, the Board of Directors of the Company may direct the Company
to enter into a trust agreement in such form and with such terms as the Board of Directors of the
Company shall approve (the “Trust Agreement”). If the Board of Directors so directs, the
Company shall enter into the Trust Agreement and shall issue to the trust created by such
agreement (the “Trust”) all or part (as determined by the Board of Directors) of the
Common Stock, fractional Preferred Stock or other securities, if any, subject to exchange in
accordance with this Section to (x) all holders of outstanding and exercisable Rights subject to
exchange in accordance with Section 24(a), which shall not include Rights that have become void
pursuant to the provisions of Section 7(e), or (y) some portion of such holders (which may
consist of holders who have not taken proper



29









 






steps to certify or otherwise demonstrate to the satisfaction of the Company that the Rights
held by them have not become void pursuant to the provisions of Section 7(e)), and all Persons
entitled to receive such shares or other securities (and any dividends or distributions made
thereon after the date on which such shares or other securities are deposited in the Trust) shall
be entitled to receive such shares or other securities only from the Trust and solely upon
compliance with the relevant terms and provisions of the Trust Agreement. Prior to effecting an
exchange and registering shares of Common Stock (or other such securities) in any Person’s name,
including any nominee or transferee of a Person, the Company may require (or cause the trustee of
the Trust to require), as a condition thereof, that any holder of Rights provide evidence,
including, without limitation, the identity of the Beneficial Owners and their Affiliates and
Associates (or former Beneficial Owners and their Affiliates and Associates) as the Company or
the Rights Agent shall reasonably request in order to determine if such Rights are void. If any
Person shall fail to comply with such request, the Company shall be entitled conclusively to deem
the Rights formerly held by such Person to be void pursuant to Section 7(e) and not transferable
or exercisable or exchangeable in connection herewith. Any shares of Common Stock or other
securities issued at the direction of the Board of Directors in connection herewith shall be
validly issued, fully paid and nonassessable shares of Common Stock or other securities (as the
case may be), and the Company shall be deemed to have received as consideration for such issuance
a benefit having a value that is at least equal to the aggregate par value of the shares so
issued.



          Section 25. Notice of Proposed Actions.





          (a) In case the Company shall propose at any time after the Distribution Date (i) to pay any
dividend payable in stock of any class to the holders of the Preferred Stock or to make any other
distribution to the holders of the Preferred Stock (other than a regular periodic cash dividend
out of earnings or retained earnings of the Company), (ii) to offer to the holders of the
Preferred Stock rights or warrants to subscribe for or to purchase any additional shares of
Preferred Stock or shares of stock of any other class or any other securities, rights or options,
(iii) to effect any reclassification of the Preferred Stock (other than a reclassification
involving only the subdivision of outstanding shares of Preferred Stock), (iv) to effect any
consolidation or merger into or with, or to effect any sale or other transfer (or to permit one
or more of its Subsidiaries to effect any sales or other transfer), in one or more transactions,
of 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a
whole) to, any other Person, (v) to effect the liquidation, dissolution or winding up of the
Company, or (vi) to declare or pay any dividend on the Common Stock payable in Common Stock or to
effect a subdivision, combination or consolidation of the Common Stock (by reclassification or
otherwise than by payment of dividends in Common Stock), then, in each such case, the Company
shall give to each holder of a Right, in accordance with Section 26, a notice of such proposed
action, which shall specify the record date for the purposes of such stock dividend, distribution
of rights or warrants, or the date on which such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to take place and the date of participation
therein by the holders of the Common Stock and/or Preferred Stock, if any such date is to be
fixed. Such notice shall be so given in the case of any action covered by clauses (i) or (ii)
above at least ten days prior to the record date for determining holders of the Preferred Stock
for purposes of such action, and in the case of any such other action, at least ten days prior to
the date of the taking of such proposed action or the date of participation therein by the
holders of Preferred Stock, whichever shall be the earlier. The failure to give notice required
by this Section 25 or any defect therein shall not affect the legality or validity of the action
taken by the Company or the vote upon any such action.




          (b) In case a Section 11(b) Event shall occur, then the Company shall as soon as practicable
thereafter give to each holder of a Right Certificate, in accordance with Section 26, a notice of
the occurrence of such



30









 






event, which shall specify the event and the consequences of the event to holders of Rights
under Section 11(b).




          (c) Failure to give notice required by this Section 25 or any defect therein shall not
affect the legality or validity of the action taken by the Company or the vote on any such
action.



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


Post Holdings, Inc.

2503 S. Hanley Road

St. Louis, Missouri 63144

Attention: Secretary




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


Computershare Trust Company, N.A.

250 Royall Street

Canton, MA 02021

Attention: Client Services




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



          Section 27. Supplements and Amendments.





          (a) The Company may from time to time supplement or amend this Agreement without the
approval of any holders of Right Certificates in any manner which the Company may deem necessary
or desirable, including, without limitation, in order (i) to cure any ambiguity, (ii) to correct
or supplement any provision contained herein which may be defective or inconsistent with any
other provisions herein, (iii) to shorten or lengthen any time period hereunder (including
without limitation to extend the Final Expiration Date), (iv) to increase or decrease the
Purchase Price, or (v) to make any other change.




          (b) Notwithstanding anything set forth in Section 27(a), from and after such time as any
Person becomes an Acquiring Person, the Company may supplement or amend this Agreement to make
any changes which the Company may deem necessary or desirable (i) that shall not materially
adversely affect the interests of the holders of Rights or (ii)(A) in order to cure any
ambiguity; (B) to correct or supplement any provision contained herein that may be inconsistent
with any other provisions herein or otherwise defective, including, without limitation, any
change in order to satisfy any applicable law, rule or regulation, including, without limitation,
any Trading Regulation on any applicable exchange so as to allow trading of the Company’s
securities thereon; or (C) to shorten or lengthen any time period herein; provided, however, that
this Agreement may not be supplemented or amended to lengthen pursuant to clause (ii)(C) of this
subsection, (x)



31









 






the time period relating to the when the Rights may be redeemed at such time as the Rights
are not then redeemable, or (y) any other time period unless such lengthening is for the purpose
of protecting, enhancing or clarifying the rights of, and/or the benefits to, the holders of the
Rights.




          (c) Upon the delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the terms of this Section
27, the Rights Agent shall execute such supplement or amendment. Notwithstanding anything herein
to the contrary, any supplement or amendment that adversely affects the Rights Agent’s own
duties, obligations or immunities under this Agreement shall require the prior written consent of
the Rights Agent, which shall not be unreasonably withheld.



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



          Section 29. Determinations and Actions by the Board, etc. The Board of Directors shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the Board of Directors or
to the Company, or as may be necessary or advisable in the administration of this Agreement,
including, without limitation, the right and power to (i) interpret the provisions of this
Agreement and (ii) make all determinations deemed necessary or advisable for the administration of
this Agreement. All such actions, interpretations, calculations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the foregoing) done or made by the
Board of Directors shall (x) be final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties, and (y) not subject the Board of Directors to any
liability to the holders of the Rights. The Rights Agent shall be entitled to assume that the
Board of Directors acted in good faith and shall be fully protected and incur no liability in
reliance thereon.



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



          Section 31. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is the intent of the parties
hereto to enforce the remainder of the terms, provisions, covenants and restrictions of this
Agreement to the maximum extent permitted by law.



          Section 32. Governing Law. This Agreement and each Right Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of Missouri and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State; except that the rights, duties and obligations of the Rights
Agent shall be governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts.



          Section 33. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts
shall for all purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument. A signature to this Agreement transmitted
electronically shall have the same authority, effect, and enforceability as an original signature.



32









 





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



          Section 35. Force Majeure. Notwithstanding anything to the contrary contained herein, the Rights Agent shall not be liable
for any delays or failures in performance resulting from acts beyond its reasonable control
including, without limitation, acts of God, terrorist acts, labor difficulties, war, or civil
unrest.



[The remainder of this page has been left blank intentionally.]






33









 








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



	 	 	 	 	 	 	 	 	 	 	 

	Attest:	 	 	 	Post Holdings, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	Name:

	 	 

	 	 	 	Name:
	 	 

	 	 
	Title:

	 	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Attest:	 	 	 	Computershare Trust Company, N.A.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	Name:

	 	 

	 	 	 	Name:
	 	 

	 	 
	Title:

	 	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 







34












 





Exhibit A

[ Form of Right Certificate]




			
	 	 	 
	Certificate No. R-                    
	 	                    Rights





NOT EXERCISABLE AFTER THE EXPIRATION DATE. AT THE OPTION OF THE COMPANY, THE RIGHTS ARE SUBJECT TO
REDEMPTION AT $0.001 PER RIGHT OR EXCHANGE FOR COMMON STOCK, UNDER THE CIRCUMSTANCES AND ON
THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED
IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL
AND VOID.




Right Certificate

Post Holdings, Inc.




     This certifies that                , or registered assigns, is the registered owner of the number of Rights
set forth above, each of which entitles the owner thereof, subject to the terms, provisions and
conditions of the Shareholder Protection Rights Agreement dated as of ____________, 20__ (the
“Rights Agreement”) between Post Holdings, Inc., a Missouri corporation (the “Company”), and
Computershare Trust Company, N.A. (the “Rights Agent”), to purchase from the Company at any time
after the Distribution Date (as such term is defined in the Rights Agreement) and prior to 5:00
p.m. St. Louis, Missouri time on the Expiration Date, as that term is defined in the Rights
Agreement, at the stockholder services office (or such office designated for such purpose) of the
Rights Agent, or its successor as Rights Agent, one one-ten thousandth of a fully paid,
nonassessable share of Series __ Junior Participating Cumulative Preferred Stock, par value $0.01
per share (“Preferred Stock”), of the Company, at a purchase price of $_______ per one one
ten-thousandth share (the “Purchase Price”) upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed. The number of Rights evidenced by
this Right Certificate (and the number of shares which may be purchased upon exercise of each
Right) and the Purchase Price set forth above, are the number and Purchase Price as of _______,
20__ based on the shares of Preferred Stock of the Company as constituted at such date.



     The Purchase Price and the number of shares of Preferred Stock which may be purchased upon the
exercise of each of the Rights evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events as provided in the Rights Agreement. In certain
circumstances described in the Rights Agreement, the Rights evidenced hereby may entitle the
registered holder thereof to purchase securities of an entity other than the Company or securities
of the Company other than Preferred Stock or assets of the Company, all as provided in the Rights
Agreement.



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



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



A-1









 





     Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate
may be redeemed by the Company at its option at a redemption price of $0.001 per Right on or prior
to the Stock Acquisition Date (as defined in the Rights Agreement). In addition, subject to the
provisions of the Rights Agreement, each Right evidenced by this Certificate may be exchanged by
the Company at its option for one share of Common Stock or one one-ten thousandth of a share of
Preferred Stock per Right (or, in certain cases, other securities or assets of the Company),
subject in each case to adjustment in certain events as provided in the Rights Agreement following
the Stock Acquisition Date and prior to the time an Acquiring Person, as that term is defined in
the Rights Agreement, becomes the Beneficial Owner (as defined in the Rights Agreement) of 50% or
more of the Common Stock of the Company then outstanding.



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



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



     This Right Certificate shall not be valid or obligatory for any purpose until it shall have
been countersigned (either manually or by facsimile) by the Rights Agent.



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



     Dated as of                     , 20                    .



	 	 	 

	Attest:

	 	Post Holdings, Inc.
	 
	 	 
	By:                                                            

	 	By:                                                            
	Name:                                                            

	 	Name:                                                            
	Title:                                                            

	 	Title:                                                            
	 
	 	 
	Countersigned:
	 	 
	 
	 	 
	Computershare Trust Company, N.A., as Rights Agent
	 	 
	 
	 	 
	By:                                                            
	 	 
	Authorized signature
	 	 






A-2









 






[Form of Reverse Side of Right Certificate]




Form of Assignment



(To be executed by the registered holder if such holder desires to transfer the Right Certificate.)


FOR VALUE RECEIVED               
                    
                    
                    
                    
                           hereby sells, assigns and



transfers unto     
                    
                    
                    
                    
                    
                                    



(Please print name and address of transferee)



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



Dated:                      , 20                    



By:                                                            



Signature



(Signature must conform in all respects to name of holder as specified on the face of this Right
Certificate)



Signature Guaranteed:




     Signatures must be guaranteed by a member or a participant in the Securities Transfer Agent
Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program.



A-3









 





CERTIFICATE



(To be completed if true)



The undersigned hereby represents, for the benefit of the Company and all holders of Rights and
shares of Common Stock, that the Rights evidenced by this Rights Certificate are not, and, to the
knowledge of the undersigned, have never been, Beneficially Owned by an Acquiring Person or an
Affiliate or Associate thereof (as each such term is defined in the Rights Agreement).



Dated:                      , 20                    



By:                                                            



Signature



(Signature must conform in all respects to name of holder as specified on the face of this Right
Certificate)




NOTICE



In the event the certification set forth above is not completed in connection with a purported
assignment, the Company will deem the Beneficial Owner of the Rights evidenced by the enclosed
Rights Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as each such
term is defined in the Rights Agreement) or a transferee of any of the foregoing and accordingly
will deem the Rights evidenced by such Right Certificate to be null and void and not transferable
or exercisable.







A-4









 








[To be attached to each Rights Certificate]




FORM OF ELECTION TO PURCHASE



(To be executed if holder desires to exercise the Right Certificate.)


To Post Holdings, Inc.:




     The undersigned hereby irrevocably elects to exercise Rights represented by this Right
Certificate to purchase the shares of Preferred Stock or such other securities or assets as may
then be issuable upon the exercise of such Rights and requests that certificates for such shares be
issued in the name of:


Name:                    



Address                                        



Social security or taxpayer identification number:                    



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



Name:                    



Address                                        



Social security or taxpayer identification number:                    



Dated:                     , 20                    



By:                    



Signature



(Signature must conform in all respects to name of holder as specified on the face of this Right
Certificate)



Signature Guaranteed:



Signatures must be guaranteed by a member or a participant in the Securities Transfer Agent
Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program.



(To be completed if true)



The undersigned hereby represents, for the benefit of the Company and all holders of Rights and
shares of Common Stock, that the Rights evidenced by the attached Rights Certificate are not, and,
to the knowledge of the undersigned, have never been, beneficially owned by an Acquiring Person or
an Affiliate or Associate thereof (as each such term is defined in the Rights Agreement).



Dated:                      , 20                    



By:                                        



Signature



(Signature must conform in all respects to name of holder as specified on the face of this Right
Certificate)







A-5









 







NOTICE



In the event the certification set forth above is not completed in connection with a purported
exercise, the Company will deem the Beneficial Owner of the Rights evidenced by the attached Right
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement) or a transferee of any of the foregoing and accordingly will deem the Rights
evidenced by such Rights Certificate to be null and void and not transferable or exercisable.










A-6









 








Exhibit B

Summary of Preferred Stock Purchase Rights




     On __________, 20__, the Board of Directors of Post Holdings, Inc. (the “Company”) declared a
dividend distribution of one preferred stock purchase right (a “Right”) for each outstanding share
of Common Stock, par value $0.01 per share, of the Company (the “Common Stock”). The dividend
distribution is payable on ___________, 20__ to the shareholders of record as of the close of
business on that date. Except as set forth below, each Right entitles the registered holder to
purchase from the Company one one-ten thousandth of a share of Series ___ Junior Participating
Cumulative Preferred Stock, par value $0.01 per share, of the Company (the “Preferred Stock”) at a
price of $_______ per one one-ten thousandth of a share of Preferred Stock (the “Purchase Price”),
subject to adjustment. The description and terms of the Rights are set forth in a Shareholder
Protection Rights Agreement (“the Rights Agreement”) between the Company and Computershare Trust
Company, N.A., as Rights Agent (the “Rights Agent”).



     Until the earlier to occur of (i) the close of business on the tenth business day following
the date of public announcement or the date on which the Company first has notice or determines
that a person or group of affiliated or associated persons (other than the Company, any subsidiary
of the Company, any employee benefit plan of the Company) (an “Acquiring Person”) has acquired, or
obtained the right to acquire, __% or more of the Common Stock without the prior express written
consent of the Company executed on behalf of the Company by a duly authorized officer of the
Company following express approval by action of at least a majority of the members of the Board of
Directors then in office (the “Stock Acquisition Date”) or (ii) the close of business on the tenth
business day (or such later date as may be determined by action of the Board of Directors but not
later than the tenth business day after such time as any such person or group becomes an Acquiring
Person) following the commencement of a tender offer or exchange offer, without the prior written
consent of the Company, by a person (other than the Company, any subsidiary of the Company, any
employee benefit plan of the Company) which, upon consummation, would result in such person’s
beneficial ownership of __% or more of the outstanding shares of voting stock of the Company (the
earlier of the dates in clause (i) or (ii) above being called the “Distribution Date”), the Rights
will be evidenced, with respect to any of the Common Stock certificates outstanding as of the
Record Date, by such Common Stock certificates.



     The Rights Agreement provides that, until the Distribution Date (or earlier redemption or
expiration of the Rights), the Rights will be transferred with and only with the Company’s Common
Stock. Until the Distribution Date (or earlier redemption, exchange or expiration of the Rights),
new Common Stock certificates issued after the Record Date upon transfer or new issuances of Common
Stock will contain a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption, exchange or expiration of the Rights), the surrender for
transfer of any certificates for shares of Common Stock outstanding as of the Record Date, even
without such notation or a copy of this Summary of Rights, will also constitute the transfer of the
Rights associated with the Common Stock represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights (“Right Certificates”)
will be mailed to holders of record of the Common Stock as of the close of business on the
Distribution Date and such separate certificates alone will then evidence the Rights.



     The Rights are not exercisable until the Distribution Date. The Rights will expire, if not
previously exercised, on ______________, 20___ (the “Final Expiration Date”), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed or exchanged by the Company.



     The Purchase Price payable, and the number of shares of Preferred Stock or other securities or
property issuable, upon exercise of the Rights are subject to adjustment from time to time to
prevent dilution in the case of specified events, including (i) in the event of a stock dividend
on, or a subdivision, combination or reclassification of the Preferred Stock, (ii) upon the grant
to holders of the Preferred Stock of certain rights or warrants to



B-1









 




subscribe for or purchase Preferred Stock at a price, or securities convertible into Preferred
Stock with a conversion price, less than the then-current market price of the Preferred Stock or
(iii) upon the distribution to holders of the Preferred Stock of evidences of indebtedness, cash or
assets (excluding regular periodic cash dividends or dividends payable in Preferred Stock) or of
subscription rights or warrants (other than those referred to above).




     The number of outstanding Rights and the number of one one-ten thousandths of a share of
Preferred Stock issuable upon exercise of each Right are also subject to adjustment in the event of
a stock split of the Common Stock or a stock dividend on the Common Stock payable in shares of
Common Stock or subdivisions, consolidations or combinations of the Common Stock occurring, in any
such case, prior to the Distribution Date.



     Shares of Preferred Stock or fractions thereof purchasable upon exercise of the Rights will
not be redeemable. Each share of Preferred Stock will have a preferential dividend in an amount
equal to the greater of $100 or 10,000 times any dividend declared on each share of Common Stock.
In the event of liquidation, the holders of the Preferred Stock will receive a preferred
liquidation payment per share of equal to $10,000 per share, plus an amount equal to accrued and
unpaid dividends and distributions, whether or not declared. Each share of Preferred Stock will
have 10,000 votes per share, voting together with the Common Stock. In the event of any merger,
consolidation or other transaction in which shares of Common Stock are converted or exchanged, each
share of Preferred Stock will be entitled to receive 10,000 times the amount and type of
consideration received per share of Common Stock. The rights of the Preferred Stock as to
dividends, liquidation and voting, and in the event of mergers and consolidations, are protected by
customary antidilution provisions.



     Because of the nature of the Preferred Stock’s dividend and liquidation rights, the value of
the one one-ten thousandth interest in a share of Preferred Stock purchasable upon exercise of each
Right should approximate the value of one share of Common Stock.



     If any person or group (other than the Company, any subsidiary of the Company or any employee
benefit plan of the Company) acquires beneficial ownership of ____% or more of the Common Stock
without the prior written consent of the Board of Directors, each Right, except those held by such
persons, would entitle each holder of a Right to acquire such number of shares of the Common Stock
as shall equal the result obtained by multiplying the then current Purchase Price by the number of
one one-ten thousandths of a share of Preferred Stock for which a Right is then exercisable and
dividing that product by 50% of the then current per-share market price of Common Stock.



     If any person or group (other than the Company, any subsidiary of the Company or any employee
benefit plan of the Company) acquires more than ___% but less than 50% of the outstanding Common
Stock without prior written consent of the Board of Directors, each Right, except those held by
such persons, may be exchanged by the Board of Directors for one share of Common Stock.



     If, after a person has become an Acquiring Person, the Company were acquired in a merger or
other business combination transaction where the Company is not the surviving corporation or where
Common Stock is exchanged or changed or 50% or more of the Company’s assets or earnings power is
sold in one or several transactions, each Right would entitle the holders thereof (except for the
Acquiring Person) upon exercise to receive such number of shares of the acquiring company’s common
stock as shall be equal to the result obtained by multiplying the then current Purchase Price by
the number of one one-ten thousandths of a share of Preferred Stock for which a Right is then
exercisable and dividing that product by 50% of the then current market price per share of the
common stock of the acquiring company on the date of such merger or other business combination
transaction.



B-2









 





     With certain exceptions, no adjustment in the Purchase Price will be required until cumulative
adjustments require an adjustment of at least 1% in such Purchase Price. No fractional shares of
Preferred Stock will be issued (other than fractions which are integral multiples of one one-ten
thousandth of a share of Preferred Stock, which may, at the election of the Company, be evidenced
by depositary receipts), and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Stock on the last trading day prior to the date of exercise.



     At any time prior to the date an Acquiring Person becomes such, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a price of $0.001 per Right (the
“Redemption Price”). The redemption of the Rights may be made effective at such time, on such
basis, in such form, and with such conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive the Redemption Price.



     The terms of the Rights may be amended by the Board of Directors of the Company without the
consent of the holders of the Rights in any manner which it may deem necessary or desirable;
provided, however, that the after such time as any person becomes an Acquiring Person, the Company
may supplement or amend the Rights Agreement to make such changes (i) that shall not materially
adversely affect the interests of the holders of Rights or (ii)(a) in order to cure any ambiguity;
(b) to correct or supplement any provision contained in the agreement that may be inconsistent with
any other provisions or otherwise defective, or (c) subject to certain exceptions, to shorten or
lengthen any time period therein.



     Until a Right is exercised, the holder thereof, as such, will have no rights as a shareholder
of the Company, including, without limitation, the right to vote or to receive dividends.



     A copy of the Rights Agreement has been filed with the Securities and Exchange Commission as
an Exhibit to a Registration Statement on Form 8-A. A copy of the Rights Agreement is available
free of charge from the Company. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights Agreement, as the same may be
amended from time to time, which is hereby incorporated herein by reference.



B-3









 





Exhibit C

Form of

Certificate of Designation, Preferences and Rights of

Series __ Junior Participating Cumulative Preferred Stock

of

Post Holdings, Inc.




Pursuant to Section 351.180 of



The General and Business Corporation Law of Missouri



          We,                     , [NAME OF OFFICE], and                     , [NAME OF OFFICE], of Post Holdings, Inc. a corporation organized
and existing under the General and Business Corporation Law of Missouri, in accordance with the
provisions of Section 351.180 thereof, DO HEREBY CERTIFY:




          That pursuant to the authority conferred upon the Board of Directors by the Restated Articles
of Incorporation (the “Restated Articles”), of the Company, the said Board of Directors on
______________, 20___, adopted the following resolution (the “Resolution”) creating a series of
__________________ (______________) shares of Preferred Stock designated as Series __ Junior
Participating Cumulative Preferred Stock, par value $0.01 per share, a copy of which Resolution was
set forth in a certificate of designations that was executed by the Company’s President,
acknowledged and filed with the Office of the Secretary of State, State of Missouri (the
“Certificate of Designation”), setting forth the powers, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations, or restrictions thereof, as
follows:




          Section 1. Designation and Amount.




          The shares of such series shall be designated as the “Series ___ Junior Participating
Cumulative Preferred Stock,” par value $0.01 per share, and the number of shares constituting such
series shall be ____________. Such number of shares may be increased or decreased by resolution of
the Board of Directors; provided, that no decrease shall reduce the number of shares of Series __
Junior Participating Cumulative Preferred Stock to a number less than that of the shares then
outstanding plus the number of shares issuable upon exercise of outstanding rights, options or
warrants or upon conversion of outstanding securities issued by the Company.




          Section 2. Dividends and Distributions.




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






C-1









 







share of Series ___ Junior Participating Cumulative Preferred Stock. In the event the Company
shall at any time after ____________ 20__ (the “Rights Declaration Date”) declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which holders of shares of Series
__ Junior Participating Cumulative Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.




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




          (C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series __
Junior Participating Cumulative Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the determination of holders
of shares of Series __ Junior Participating Cumulative Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series __
Junior Participating Cumulative Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of Directors may, in
accordance with applicable law, fix a record date for the determination of holders of shares of
Series __ Junior Participating Cumulative Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be not more than such number of days
prior to the date fixed for the payment thereof as may be allowed by applicable law.




          Section 3. Voting Rights.




          The holders of shares of Series E Junior Participating Cumulative Preferred Stock shall have
the following voting rights:




          (A) Each share of Series __ Junior Participating Cumulative Preferred Stock shall entitle the
holder thereof to _______ votes on all matters submitted to a vote of the holder of the Common
Stock. In the event the Company shall at any time after the Rights Declaration Date declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of votes to which holders of shares of
Series __ Junior Participating Cumulative Preferred Stock were entitled






C-2









 







immediately prior to such event under the preceding sentence shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.




          (B) Except as otherwise provided herein, in the Company’s Restated Articles of Incorporation,
and except as otherwise provided by law, the holders of shares of Series __ Junior Participating
Cumulative Preferred Stock, the holders of shares of Common Stock, and the holders of shares of any
other capital stock of the Company having general voting rights, shall vote together as one class
on all matters submitted to a vote of shareholders of the Company.




          (C) Except as otherwise set forth herein or in the Company’s Restated Articles of
Incorporation, and except as otherwise provided by law, holders of Series __ Junior Participating
Cumulative Preferred Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.




          Section 4. Certain Restrictions.




          (A) Whenever dividends or distributions payable on the Series __ Junior Participating
Cumulative Preferred Stock as provided in Section 2 are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not declared, on shares of Series __
Junior Participating Cumulative Preferred Stock outstanding shall have been paid in full, the
Company shall not:





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




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




               (iii) except as permitted in Section 4(A)(iv) below, redeem or purchase or otherwise
acquire for consideration shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series __ Junior Participating
Cumulative Preferred Stock, provided that the Company may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange for shares of any stock of the
Company ranking junior (either as to dividends or upon dissolution, liquidation or winding
up) to the Series __ Junior Participating Cumulative Preferred Stock; and




               (iv) purchase or otherwise acquire for consideration any shares of Series __ Junior
Participating Cumulative Preferred Stock, or any shares of stock ranking on a parity with
the Series __ Junior Participating Cumulative Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the Board of Directors, after consideration
of the respective annual dividend rates and other



C-3









 






relative rights and preferences of the respective series and classes, shall determine
in good faith will result in fair and equitable treatment among the respective series or
classes.



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




          Section 5. Reacquired Shares.




          Any shares of Series __ Junior Participating Cumulative Preferred Stock purchased or otherwise
acquired by the Company in any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. The Company shall cause all such shares upon their cancellation to be
authorized but unissued shares of Preferred Stock which may be reissued as part of a new series of
Preferred Stock, subject to the conditions and restrictions on issuance set forth herein.




          Section 6. Liquidation, Dissolution or Winding Up.




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




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




          (C) In the event the Company shall at any time after the Rights Declaration Date declare or
pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a






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dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to such event.




          Section 7. Consolidation, Merger, etc.




          In case the Company shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of Series __ Junior
Participating Cumulative Preferred Stock shall at the same time be similarly exchanged or changed
in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to
___________ times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Company shall at any time after the Rights Declaration
Date declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of shares of Series __ Junior
Participating Cumulative Preferred Stock shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that are outstanding
immediately prior to such event.




          Section 8. Redemption.




          The shares of Series __ Junior Participating Cumulative Preferred Stock shall not be
redeemable.




          Section 9. Ranking.




          The Series __ Junior Participating Cumulative Preferred Stock shall rank junior to all other
series of the Company’s Preferred Stock as to the payment of dividends and the distribution of
assets, unless the terms of any such series shall provide otherwise.




          Section 10. Fractional Shares.




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




          IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do affirm the
foregoing as true under the penalties of perjury this       th day of        , 20      .




	 	 	 

	 

	 	Post Holdings, Inc.
	 
	 	 
	Attest:

	 	By:              
                   
                   
                   
         
Name:                                                                                






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	By:                                                            

	 	Title:             
                   
                   
                   
          
	Name:                                                            
	 	 
	Title:                                                            
	 	 







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