Exhibit 4.1





Exhibit 4.1




EMS TECHNOLOGIES, INC.




Amended and Restated Shareholder Rights Plan

Dated as of August 6, 2009 and Amended and Restated as of

January 4, 2011




Table of Contents




	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	1 Certain Definitions
	 	 	3	 
	2 Authority to Appoint Rights Agent
	 	 	10	 
	3 Issue of Rights Certificates
	 	 	10	 
	4 Form of Rights Certificates
	 	 	12	 
	5 Registration
	 	 	13	 
	6 Transfer, Split Up, Combination and Exchange of Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates
	 	 	14	 
	7 Exercise of Rights; Purchase Price; Expiration Date of Rights
	 	 	15	 
	8 Cancellation and Destruction of Rights Certificates
	 	 	17	 
	9 Reservation and Availability of Capital Stock
	 	 	18	 
	10 Record Date for Securities Issued Upon Exercise
	 	 	19	 
	11 Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights
	 	 	20	 
	12 Certificate of Adjusted Purchase Price or Number of Shares
	 	 	30	 
	13 Consolidation, Merger or Sale or Transfer of Assets or Earning Power
	 	 	31	 






 


 









 





	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	14 Fractional Rights and Fractional Shares
	 	 	34	 
	15 Rights of Action
	 	 	35	 
	16 Agreement of Rights Holders
	 	 	35	 
	17 Rights Certificate Holder Not Deemed a Shareholder
	 	 	36	 
	18 Indemnification of Corporate Officers
	 	 	36	 
	19 Issuance of New Rights Certificates
	 	 	37	 
	20 Redemption and Termination
	 	 	37	 
	21 Notice of Certain Events
	 	 	39	 
	22 Notices
	 	 	40	 
	23 Supplements and Amendment; Substituted Plan
	 	 	41	 
	24 Successors
	 	 	41	 
	25 Determinations and Actions by the Board of Directors, etc.
	 	 	41	 
	26 Intentionally Omitted
	 	 	42	 
	27 Benefits of this Plan
	 	 	42	 
	28 Severability
	 	 	42	 
	29 Governing Law
	 	 	42	 
	30 Descriptive Headings
	 	 	42	 
	 
	 	 	 	 
	Exhibit A — Form of Rights Certificate
	 	 	 	 
	Exhibit B — Form of Summary of Rights
	 	 	 	 





 


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AMENDED AND RESTATED SHAREHOLDER RIGHTS PLAN




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



(a) “Acquiring Person” shall mean any Person or group of Persons acting together, directly or
indirectly, through any contract, arrangement, understanding, relationship or otherwise, who or
which, together with all Affiliates and Associates of such Person(s), shall be the Beneficial Owner
of 20% or more of the shares of Common Stock then outstanding, but shall not include (i) the
Company, (ii) any Subsidiary of the Company, or (iii) any employee benefit plan of the Company or
any Subsidiary of the Company, or any Person or entity organized, appointed or established by the
Company acting in accordance with and for or pursuant to the terms of any such plan.



Notwithstanding the foregoing, “Acquiring Person” shall not include any such Person who has
reported or is required to report such ownership (but less than 25%) on Schedule 13G under the
Exchange Act (or any comparable or successor report) or on Schedule 13D under the Exchange Act (or
any comparable or successor report) which Schedule 13D does not state any intention to or reserve
the right to control or influence the management or policies of the Company or engage in any of the
actions specified in Item 4 of such Schedule (other than the disposition of the Common Stock) and
within 10 Business Days of being requested by the Company to advise it regarding the same,
certifies to the Company that such Person acquired Common Stock equal to or exceeding 20%
inadvertently or without knowledge of the terms of the Rights and who, together with all Affiliates
and Associates, thereafter does not acquire additional Common Stock while the Beneficial Owner of
20% or more of the Common Stock then outstanding; provided, however, that if the Person requested
to so certify fails to do so within 10 Business Days, then such Person shall become an Acquiring
Person immediately after such 10 Business Day Period. Notwithstanding the foregoing, no Person
shall become an “Acquiring Person” solely as the result of an acquisition of Common Stock by the
Company which, by reducing the number of shares outstanding, increases the proportionate number of
shares beneficially owned by a Person to 20% or more of the Common Stock of the Company then
outstanding as determined above; provided, however, that if a Person becomes the Beneficial Owner
of 20% or more of the Common
Stock of the Company then outstanding (as determined above) solely by reason of purchases of
Common Stock by the Company and shall, after becoming aware of such purchases by the Company or of
the resulting decrease in the number of outstanding shares of the Common Stock, become the
Beneficial Owner of any additional Common Stock by any means whatsoever, then such Person shall be
deemed to be an “Acquiring Person”.


 


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




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



(d) “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as
amended and in effect on the date of this Plan (the “Exchange Act”).



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




(i) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange rights, rights, warrants or options,
or otherwise; provided, however, that a Person shall not be deemed the “Beneficial Owner” of, or to
“beneficially own,” (A) securities tendered pursuant to a tender or exchange offer made by such
Person or any of such Person’s Affiliates or Associates until such tendered securities are accepted
for purchase or exchange, (B) securities issuable upon exercise of Rights at any time prior to the
occurrence of a Triggering Event, or (C) securities issuable upon exercise of Rights from and after
the occurrence of a
Triggering Event which Rights were acquired by such Person or any of such Person’s Affiliates
or Associates prior to the Distribution Date or pursuant to Section 3(a) or Section 19 hereof (the
“Original Rights”) or pursuant to Section 11(a)(i) hereof in connection with an adjustment made
with respect to any Original Rights;




(ii) which such Person or any of such person’s Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of or has “beneficial ownership” of (as
determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange
Act, or any comparable or successor rule), including pursuant to any agreement, arrangement
or understanding, whether or not in writing; provided, however, that a Person shall not be
deemed the “Beneficial Owner” of, or to “beneficially own,” any security under this
subparagraph (ii) as a result of an agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding: (A) arises solely from a revocable
proxy given in response to a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the General Rules and Regulations under the
Exchange Act, and (B) is not also then reportable by such Person on Schedule 13D under the
Exchange Act (or any comparable or successor report);


 


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(iii) which are beneficially owned, directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person (or any of such Person’s Affiliates or
Associates) has any agreement, arrangement or understanding (whether or not in writing), for the
purpose of acquiring, holding, voting (except pursuant to a revocable proxy as described in the
provision to subparagraph (ii) of this paragraph (e)) or disposing of any voting securities of the
Company; or




(iv) in respect of which such Person or any of such Person’s Affiliates or Associates
has a Synthetic Long Position that has been disclosed in a filing by such Person or any of
such Person’s Affiliates or Associates with the Securities and Exchange Commission pursuant
to Regulation 13D-G or Regulation 14D under the Exchange Act in respect of which Common
Shares are the “subject security” (as such term is used in such Regulations);



provided, however, that nothing in this paragraph (e) shall cause a Person engaged in business as
an underwriter of securities to be the “Beneficial Owner” of, or to “beneficially own,” any
securities acquired through such Person’s participation in good faith in a firm commitment
underwriting until the expiration of forty days after the date of such
acquisition.



For all purposes of this Plan, any calculation of the number of shares of Common Stock outstanding
at any particular time, including any calculation for purposes of determining the particular
percentage of such outstanding shares of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under
the Exchange Act as in effect on the date hereof.




(f) “Board” shall mean the Board of Directors of the Company.



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


 


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(h) “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.



(i) “Common Stock” shall mean the common stock, $.10 per share par value, of the Company,
except that “Common Stock” or “common stock” when used with reference to any Person other than the
Company that shall be organized in corporate form shall mean the capital stock of such Person or
other equity security of with the greatest per share voting power of such Person, or if such Person
is a Subsidiary of or is controlled by another Person, the Person that ultimately controls such
first-mentioned Person. “Common Stock” when used with reference to any Person other than the
Company that shall not be organized in corporate form shall mean units of beneficial interest which
shall represent the right to participate in profits, losses, deductions and credits of such Person
and which shall be entitled to exercise the greatest voting power per unit of such Person.




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



(k) “Company” shall mean EMS Technologies, Inc., a Georgia corporation, until a successor
corporation shall have
become such or until a Principal Party shall assume, and thereafter be liable for, all
obligations and duties of the Company hereunder, pursuant to the applicable provisions of this
Plan, and thereafter “Company” shall mean such successor corporation or Principal Party.




(1) “Current Market Price” shall have the meaning set forth in Section ll(d) hereof.




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




(n) “Director” shall mean any member of the Board.




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




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




(q) “Exchange Act” shall have the meaning set forth in Section l(d) hereof.




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


 


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(s) “Fair Value Offer” shall have the meaning set forth in section ll(a)(ii)(A) hereof.




(t) “Final Expiration Date” shall mean the Close of Business on August 6, 2014.




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



(v) “Person” shall mean any individual, firm, corporation, partnership, unincorporated
association, syndicate or other entity.



(w) “Plan” shall mean this Amended and Restated Shareholder Rights Plan as originally
effective on August 6, 2009 and amended by an amendment and restatement on January 4, 2011, and as
it may from time to time be supplemented or amended pursuant to the applicable provisions hereof.




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




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




(z) “Record Date” shall mean August 7, 2009.




(aa) “Redemption Price” shall have the meaning set forth in Section 20(a).



(bb) “Right” shall mean the right to purchase one share of Common Stock (subject to
adjustment) as provided herein




(cc) “Rights Agent” shall have the meaning set forth in Section 2 hereof.




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



(ee) “Rights Dividend Declaration Date” shall mean August 6, 2009, the original effective date
of this Plan.




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



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



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


 


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



(jj) “Stock Acquisition Date” shall mean the first date of public announcement (which, for
purposes of this definition, shall include, without limitation, a report filed pursuant to Section
13(d) under the Exchange Act) by the Company or an Acquiring Person that an Acquiring Person has
become such without the consent of a majority of the Directors.



(kk) “Subsidiary” shall mean, with reference to any Person, any corporation of which an amount
of voting securities sufficient to elect at least a majority of the directors of such
corporation is beneficially owned, directly or indirectly, by such Person, or otherwise
controlled by such Person.




(ll) “Substitute Consideration” shall have the meaning set forth in Section ll(a)(iii) hereof.




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




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



(oo) “Synthetic Long Position” means any option, warrant, convertible security, stock
appreciation right or other contractual right, whether or not presently exercisable, which has an
exercise or conversion privilege or a settlement payment or mechanism at a price related to Common
Shares or a value determined in whole or part with reference to, or derived in whole or in part
from, the market price or value of Common Shares, whether or not such right is subject to
settlement in whole or in part in Common Shares, and which increases in value as the value of
Common Shares increases or which provides to the holder of such right an opportunity, directly or
indirectly, to profit or share in any profit derived from any increase in the value of Common
Shares, but shall not include:




(i) rights of a pledgee under a bona fide pledge of Common Stock;




(ii) rights of all holders of Common Stock to receive shares of Common Stock pro rata, or
obligations to dispose of Common Stock, as a result of a merger, exchange offer, or
consolidation involving the Company;


 


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(iii) rights or obligations to surrender shares of Common Stock, or have shares of Common
Stock withheld, upon the receipt or exercise of a derivative security or the receipt or
vesting of equity securities, in order to satisfy the exercise price or the tax withholding
consequences of receipt, exercise or vesting;




(iv) interests in broad-based index options, broad-based index futures, and broad-based
publicly traded market baskets of stocks approved for trading by the appropriate federal
governmental authority;




(v) interests or rights to participate in employee benefit plans of the Company held by
employees or former employees of the Company; or




(vi) options granted to an underwriter in a registered public offering for the purpose of
satisfying over-allotments in such offering.



The number of shares of Common Stock in respect of which a Person has a Synthetic Long Position
shall be the notional or other number of such shares specified in a filing by such Person or any of
such Person’s Affiliates or Associates with the Securities and Exchange Commission pursuant to
Regulation 13D-G or Regulation 14D under the Exchange Act in respect of which Common Stock is the
“subject security” (as such term is defined in such Regulations) or in the documentation evidencing
the Synthetic Long Position as being subject to be acquired upon the exercise or settlement of the
applicable right or as the basis upon which the value or settlement amount of such right, or the
opportunity of the holder of such right to profit or share in any profit, is to be calculated in
whole or in part or, if no such number of shares of Common Stock is specified in such filing or
documentation, as determined by a majority of the Directors to be the number of shares of Common
Stock to which the Synthetic Long Position relates.




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




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




(rr) “Uncertificated Share Balances” shall have the meaning set forth in Section 3(a) hereof.


 


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Section 2. Authority to Appoint Rights Agent.



The Company may appoint a rights agent (or one or more co-rights agents) to act as agent for
the Company and the holders of the Rights (who, in accordance with Section 3 hereof, shall prior to
the Distribution Date also be the holders of the Common Stock) in accordance with the terms and
conditions hereof (the “Rights Agent”), and may amend or supplement this Plan in accordance with
Section 23 hereof in any manner necessary or
desirable to induce such Rights Agent to accept its appointment hereunder.




Section 3. Issue of Rights Certificates.



(a) Until the earliest of (i) the Close of Business on the tenth day after the Stock
Acquisition Date, (ii) the Close of Business on the tenth day (or such later date as may be
determined by action of the Board prior to 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 of the Company or of any Subsidiary of the
Company, or any person or entity organized, appointed or established by the Company acting in
accordance with and for or pursuant to the terms of any such plan) is first published or sent or
given within the meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange
Act, if upon consummation thereof, such Person would be the Beneficial Owner of 20% or more of the
shares of Common Stock then outstanding, (iii) the Close of Business on the tenth day after the
occurrence of any of the events described in Section ll(a)(ii)(B), or (iv) the Close of Business on
the tenth day after the date that an offer to effect any of the transactions described in Section
13(a) made, encouraged or supported by an Acquiring Person is first announced, published, sent or
given (the earliest of (i), (ii), (iii) and (iv) being herein referred to as the “Distribution
Date”), (x) the Rights will be evidenced (subject to the provisions of paragraph (b) of this
Section 3) by the certificates for the Common Stock or, in the case of uncertificated shares, the
balances indicated in the book-entry account system of the transfer agent for the Common Stock (the
“Uncertificated Share Balances”), registered in the names of the holders of the Common Stock (which
shares of Common Stock shall be deemed also to be certificates for Rights) and not by separate
certificates, and (y) the Rights will be transferable only in connection with the transfer of the
underlying shares of Common Stock (including a transfer to the Company). As soon as practicable
after the Distribution Date, the Company will send by first class, insured, postage prepaid mail,
to each record holder of the Common Stock as of the Close of Business on the Distribution Date, at
the address of such holder shown on the records of the Company, one or more rights certificates, in
substantially the form of Exhibit A hereto (the “Rights Certificates”), evidencing one Right for
each share of Common Stock so held, subject to adjustment as provided herein.
In the event that an adjustment in the number of Rights per share of Common Stock has been
made pursuant to Section ll(p) hereof, at the time of distribution of the Rights Certificates, the
Company shall make the necessary and appropriate rounding adjustments (in accordance with Section
14(a) hereof) so that Rights Certificates representing only whole numbers of Rights are distributed
and cash is paid in lieu of any fractional Rights. As of and after the Distribution Date, the
Rights will be evidenced solely by such Rights Certificates.


 


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(b) Upon the request of any record holder of the Common Stock, the Company will send a copy of
a Summary of Rights, in substantially the form attached hereto as Exhibit B (the “Summary of
Rights”), by first class, postage prepaid mail, to such holder at the address of such holder shown
on the records of the Company. With respect to shares of Common Stock outstanding as of the Record
Date, until the Distribution Date the Rights will be evidenced by the certificates for the Common
Stock or, in the case of uncertificated shares, by the Uncertificated Share Balances, and the
registered holders of the Common Stock shall also be the registered holders of the associated
Rights. Until the earlier of the Distribution Date or the Expiration Date, the transfer of any
shares of Common Stock in respect of which Rights have been issued shall also constitute the
transfer of the Rights associated with such shares of Common Stock.



(c) Except as may otherwise be determined by the Board, Rights shall be issued in respect of
all shares of Common Stock which are issued (whether originally issued or from the Company’s
treasury) after the Record Date but prior to the earlier of the Distribution Date or the Expiration
Date, and in the event of such a determination by the Board, no other provisions of this Plan shall
apply to any shares of Common Stock which the Board has determined to be issued without Rights. Any
certificates representing such shares of Common Stock shall also be deemed to be certificates for
Rights, and shall bear the following legend:




This certificate also evidences and entitles the holder hereof to certain Rights as set
forth in the Stockholder Rights Plan of EMS Technologies, Inc. (the “Company”) dated as of
August 6, 2009, as it may be from time to time amended (the “Plan”), the terms of which are
hereby incorporated herein by reference and a copy of which is on
file at the principal offices of the Company. Under certain circumstances, as set forth in
the Plan, such Rights will be evidenced by separate certificates and will no longer be
evidenced by this certificate. The Company will mail to the holder of this certificate a
copy of the Plan, as in effect on the date of mailing, without charge promptly after receipt
of a written request therefor. Under certain circumstances set forth in the Plan, Rights
issued to or held by any Person who is, was or becomes an Acquiring Person or any Affiliate
or Associate thereof (as such terms are defined in the Plan), whether currently held by or
on behalf of such Person or by any subsequent holder, may become null and void.


 


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With respect to such certificates containing the foregoing legend, until the earlier of (i) the
Distribution Date or (ii) the Expiration Date, the Rights associated with the Common Stock
represented by such certificates shall be evidenced by such certificates alone and registered
holders of Common Stock shall also be the registered holders of the associated Rights, and the
transfer of any of such certificates shall also constitute the transfer of the Rights associated
with the Common Stock represented by such certificates. In the event that the Company purchases or
acquires any shares of Common Stock after the Record Date but prior to the earlier of the
Distribution Date or the Expiration Date, any Rights associated with such shares of Common Stock
shall be deemed cancelled and retired so that the Company shall not be entitled to exercise any
Rights associated with the shares of Common Stock no longer outstanding.




Section 4. Form of Rights Certificates.



(a) The Rights Certificates (and the forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be substantially in the form set forth in Exhibit A
hereto and may have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Plan, or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to conform to usage. Subject to the provisions
of Section 11 and Section 19 hereof, the Rights Certificates, whenever distributed, shall be dated
as of the Record Date and
on their face shall entitle the holders thereof to purchase such number of shares of Common
Stock as shall be set forth therein at the price set forth therein (such exercise price per share,
the “Purchase Price”), but the amount and type of securities purchasable upon the exercise of each
Right and the Purchase Price thereof shall be subject to adjustment as provided herein.


 


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(b) Any Rights Certificate issued pursuant to Section 3(a) or Section 19 hereof that
represents Rights beneficially owned by: (i) an Acquiring Person or any Associate or Affiliate of
an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person becomes such, or (iii) a transferee
of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom such Acquiring Person has any
continuing agreement, arrangement or understanding regarding the transferred Rights or (B) a
transfer which is part of a plan, arrangement or understanding which has as a primary purpose or
effect avoidance of Section 7(e) hereof, and any Rights Certificate issued pursuant to Section 6 or
Section 11 hereof upon transfer, exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the extent feasible) the following
legend, modified as applicable to such Person:



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




Section 5. Registration.



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


 


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(b) Following the Distribution Date, the Company or the Rights Agent, if any, will keep or
cause to be kept, at the principal executive office of the Company or at the principal shareholder
services office or offices of the Rights Agent designated for such purposes, as the case may be,
books for registration and transfer of the Rights Certificates issued hereunder. Such books shall
show the names and addresses of the respective holders of the Rights Certificates, the number of
Rights evidenced on its face by each of the Rights Certificates and the date of each of the Rights
Certificates.



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



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


 


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




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



(a) Subject to Section 7(e) hereof, the registered holder of any Rights Certificate may
exercise the Rights evidenced thereby (except as otherwise provided herein, including without
limitation the restrictions on exercisability set forth in Section 9(c), Section ll(a)(iii) and
Section 20(a) hereof) in whole or in part at any time after the Distribution
Date upon surrender of the Rights Certificate, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, to the Company or the Rights Agent, if any,
at the principal executive office of the Company or the principal shareholder services office or
offices of the Rights Agent designated for such purposes, as the case may be, together with payment
of the aggregate Purchase Price with respect to the total number of shares of Common Stock (or
other securities, cash or other assets, as the case may be) as to which such surrendered Rights are
then exercisable, at or prior to the earlier of (i) the Final Expiration Date or (ii) the time at
which the Rights are redeemed as provided in Section 20 hereof (the earlier of (i) or (ii) being
herein referred to as the “Expiration Date”). Except for those provisions herein which expressly
survive the termination of this Plan, this Plan shall terminate at such time as the Rights are no
longer exercisable hereunder.



(b) The Purchase Price for each share of Common Stock pursuant to the exercise of a Right
shall initially be $45.00, and shall be subject to adjustment from time to time as provided in
Sections 11 and 13(a) hereof and shall be payable in accordance with paragraph (c) below.


 


15









 





(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of
election to purchase and the certificate duly executed, accompanied by payment, with respect to
each Right so exercised, of the Purchase Price per share of Common Stock (or, following a
Triggering Event, other securities, cash or other assets, as the case may be) to be purchased as
set forth below and an amount equal to any applicable transfer tax, the Company shall promptly
(i)(A) requisition from any transfer agent of the shares of Common Stock, if any (but only to the
extent such transfer agent expressly assumes such duty), or, if none, from the Company’s Secretary,
as the case may be, the total number of shares of Common Stock to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number of shares of Common Stock issuable upon
exercise of the Rights hereunder with a depository agent, requisition from the depository agent
depository receipts representing such number of shares of Common Stock as are to be purchased (in
which case the shares of Common Stock represented by such receipts shall be deposited by the
transfer agent (but only to the extent such
transfer agent expressly assumes such duty), or, if none, from the Company’s Secretary, as the
case may be, with the depository agent) and the Company will direct the depository agent to comply
with such request, (ii) when appropriate, requisition the amount of cash, if any, to be paid in
lieu of fractional shares of Common Stock in accordance with Section 14 hereof, (iii) after receipt
of such shares or depository receipts for shares of Common Stock, cause the same to be delivered to
or upon the order of the registered holder of such Rights Certificate, registered in such name or
names as may be designated by such holder, and (iv) after receipt thereof, deliver such cash, if
any, to or upon the order of the registered holder of such Rights Certificate. The payment of the
Purchase Price (as such amount may be reduced pursuant to Section ll(a)(iii) hereof) may be made
(x) in cash or by certified check, cashier’s check or bank draft payable to the order of the
Company or (y) if the Board so determines, by delivery of shares of Common Stock (accompanied by
appropriate stock powers executed in blank) evidencing a number of shares of Common Stock equal to
the then Purchase Price divided by the closing price (as determined pursuant to Section ll(d)
hereof) per share of Common Stock on the Trading Day immediately preceding the date of such
exercise. In the event that the Company is obligated to issue other securities of the Company, pay
cash and/or distribute other property pursuant to Section ll(a) hereof, the Company will make all
arrangements necessary so that such other securities, cash and/or other property are available for
distribution, if and when appropriate. The Company reserves the right to require, prior to the
occurrence of a Section ll(a)(ii) Event or a Section 13 Event, that upon exercise of any Rights, an
appropriate number of Rights be exercised so that any Common Stock issuable hereunder shall only be
issued as whole shares.



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


 


16









 





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



(f) Notwithstanding anything in this Plan to the contrary, the Company shall not be obligated
to undertake any action with respect to a registered holder upon the occurrence of any purported
exercise as set forth in this Section 7 unless such registered holder shall have (i) completed and
signed the certificate following the form of election to purchase set forth on the reverse side of
the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of
the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.




Section 8. Cancellation and Destruction of Rights Certificates.



All Rights Certificates surrendered for the purpose of exercise, transfer, Split up,
combination or exchange shall, upon surrender to the Company or any of its agents, be cancelled by
it, and no Rights Certificates shall be issued in lieu thereof except as expressly permitted by any
of the provisions
of this Plan. The Company shall cancel and retire any other Rights Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof.


 


17









 





Section 9. Reservation and Availability of Capital Stock.



(a) The Company shall use reasonable efforts to cause to be reserved and kept available out of
its authorized and unissued shares of Common Stock (and, following the occurrence of a Triggering
Event, other securities) or out of its authorized and issued Common Stock held in its treasury, the
number of shares of Common Stock (and, following the occurrence of a Triggering Event, other
securities) that, as provided in this Plan, including Section ll(a)(iii) hereof, will be sufficient
to permit the exercise in full of all outstanding Rights.



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



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


 


18









 





(d) The Company shall take all such action as may be necessary to ensure that all shares of
Common Stock (and, following the occurrence of a Triggering Event, other securities), delivered
upon exercise of Rights shall, at the time of delivery thereof (subject to payment of the Purchase
Price), be duly and validly authorized and issued and that all shares shall be fully paid and
nonassessable.



(e) The Company shall pay when due and payable any and all federal and state transfer taxes
and charges which may be payable in respect of the issuance or delivery of the Rights Certificates
and of any shares of Common Stock (or other securities, as the case may be) issued upon the
exercise of Rights. The Company shall not, however, be required to pay any transfer tax which may
be payable in respect of any transfer or delivery of Rights Certificates to a Person other than, or
the issuance or delivery of a number of shares of Common Stock (or other securities, as the case
may be) in respect of a name other than that of, the registered holder of the Rights Certificates
evidencing Rights surrendered for exercise, or to issue or deliver a number of shares of Common
Stock (or other securities, as the case may be) in a name other than that of the registered holder
upon the exercise of any Rights until such tax shall have been paid (any such tax being payable by
the holder of such
Rights Certificate at the time of surrender), or until it has been established to the
Company’s satisfaction that no such tax is due.




Section 10. Record Date for Securities Issued Upon Exercise.



Each Person in whose name shares of Common Stock (or other securities, as the case may be) are
issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of
record of such shares of Common Stock (or other securities, as the case may be) represented thereby
on, and any certificate or Uncertificated Share Balance evidencing such share shall be dated, the
date upon which the Rights Certificate evidencing such Rights was duly surrendered and payment of
the Purchase Price (and all applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Common Stock (or other securities, as
the case may be) transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such stock (or other securities, as the case may be) on, and such
certificate or Uncertificated Share Balance shall be dated, the next succeeding Business Day on
which the Common Stock (or other securities, as the case may be) transfer books of the Company are
open. Prior to the exercise of the Rights evidenced thereby, the holder of a Rights Certificate
shall not be entitled to any rights of a shareholder of the Company with respect to stock 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.


 


19









 






Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights.



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




(a)(i) In the event the Company shall at any time after the date this Plan is adopted (A)
declare a dividend on the Common Stock payable in shares of Common Stock, (B)
subdivide the outstanding Common Stock, (C) combine the outstanding Common Stock into a
smaller number of shares, or (D) issue any shares of its capital stock in a reclassification
of the Common 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 ll(a) and Section 7(e) hereof, the Purchase Price in
effect at the time of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and the number of shares of Common Stock (or
the number and kind of other securities, as the case may be), shall be proportionately
adjusted so that if a holder of Rights after such time were to exercise that number of
Rights which would result in the aggregate amount of the Purchase Price payable upon such
exercise (at the Purchase Price then in effect) being equal to the amount of the Purchase
Price that was payable prior to such time upon exercise of a Right, the holder would be
entitled to receive the aggregate number of shares of Common Stock (or the number and kind
of other securities, as the case may be) which, if a Right had been exercised immediately
prior to such time and at a time when the Common Stock (or other securities, as the case may
be) transfer books of the Company were open, the holder would have owned upon such exercise
and been entitled to receive by virtue of such dividend, subdivision, combination or
reclassification. If an event occurs which would require an adjustment under both this
Section ll(a)(i) and Section ll(a)(ii) hereof, the adjustment provided for in this Section
ll(a)(i) shall be in addition to, and shall be made prior to, any adjustment required
Pursuant to Section ll(a)(ii) hereof.


 


20









 






(ii) In the event:




(A) any Person or group of Persons shall at any time after the Rights Dividend Declaration
Date, without the consent of a majority of the Directors, become an Acquiring Person unless
the event causing the 20% threshold to be crossed is a transaction set forth in Section
13(a) hereof, or is an acquisition of shares of Common Stock pursuant to a tender offer or
an exchange offer for all outstanding shares of Common Stock at a price and on terms
determined by at least a majority of the Directors after receiving advice from one or more
investment banking firms, to be (a) at a price
which is fair to shareholders (taking into account all factors which such members of the
Board deem relevant including, without limitation, prices which could reasonably be achieved
if the Company or its assets were sold on an orderly basis designed to realize maximum
value) and (b) otherwise in the best interests of the Company and its shareholders (such
offer herein referred to as a “Fair Value Offer”), or




(B) any Acquiring Person whose acquisition of 20% or more of the Company’s Common Stock has
been consented to by a majority of the Directors, or any Associate or Affiliate of any such
Acquiring Person, shall, without the consent of a majority of the Directors, (1) acquire,
directly or indirectly, in one or a series of transactions, an additional 2% or more of the
Company’s Common Stock, (2) sell, purchase, lease, exchange, mortgage, pledge, transfer or
otherwise acquire or dispose of, in one or a series of transactions, to, from or with the
Company or any of its Subsidiaries, assets on terms and conditions less favorable to the
Company than the Company would be able to obtain in arm’s length negotiation with an
unaffiliated third party, other than pursuant to a transaction set forth in Section 13(a)
hereof, (3) sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire
or dispose of, in one or a series of transactions, to, from or with the Company or any of
its Subsidiaries (other than incidental to the lines of business, if any, engaged in as of
the date of this Plan between the Company and such Acquiring Person or Associate or
Affiliate thereof) assets having an aggregate fair market value of more than $5,000,000,
other than pursuant to a transaction set forth in Section 13(a) hereof, (4) receive any
compensation from the Company or any of the Company’s Subsidiaries other than compensation
for full-time employment as a regular employee at rates in accordance with the Company’s or
such Subsidiary’s normal practices, or (5) receive the benefit, directly or indirectly
(except resulting from a requirement of law or governmental regulation), of any loans,
advances, guarantees, pledges or other financial assistance or any tax credits or other tax
advantage provided by the Company or any of its Subsidiaries.


 


21









 





then, ten days following the first occurrence of a Section ll(a)(ii) Event, proper provision shall
be made so that each
holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the
right to receive, upon exercise thereof at the then current Purchase Price in accordance with the
terms of this Plan such number of shares of Common Stock of the Company as shall equal the result
obtained by (x) multiplying the then current Purchase Price by the then number of shares of Common
Stock for which a Right was exercisable immediately prior to the first occurrence of a Section
ll(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall
thereafter be referred to as the “Purchase Price” for each Right and for all purposes of this Plan)
by 50% of the Current Market Price per share of Common Stock on the date of such first occurrence
(such number of shares, the “Adjustment Shares”); provided that, in no event shall the Company
issue or be obligated to issue Common Stock at a Purchase Price per share of Common Stock that is
less than the per share par value of the Common Stock as the same may be adjusted from time to
time; and provided further that after the occurrence of any Section ll(a)(ii) event, the Company,
by action of a majority of the Directors in office at the time, may permit the Rights to be
exercised, or may require and specify that the Rights may only be exercised, for 50% of the shares
of Common Stock (or cash or other securities or assets to be substituted for the Adjustment Shares
pursuant to Section ll(a)(iii) below) that would otherwise be purchasable pursuant to the preceding
clauses of this Section ll(a)(ii) in consideration of the surrender to the Company of the Rights so
exercised and without payment of the Purchase Price(except to the extent, if any, as may, in the
opinion of the Company’s legal counsel, be necessary in order that the Company may validly and
legally thereupon issue fully paid and nonassessable shares of Common Stock), and all Rights so
exercised under this proviso without payment of the Purchase Price shall be deemed to have been
exercised in full and shall be cancelled.


 


22









 





(iii) In the event that the number of shares of Common Stock which are authorized by the
Company’s articles of incorporation but not outstanding or reserved for issuance for purposes other
than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) of this Section ll(a), the Company shall: (A)
determine the excess of (i) the value of the Adjustment Shares issuable upon the exercise of a
Right (the “Current Value”) over (2) the Purchase Price (such excess being referred to as the
“Spread”), and (B) with respect
to each Right, make adequate provision to substitute for the Adjustment Shares, upon payment
of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) other equity
securities of the Company (including, without limitation, shares, or units of shares of preferred
stock, if any exists at such time), which the Board has deemed to have the same value as shares of
Common Stock (such shares of preferred stock being referred to as “Common Stock Equivalents”)), (4)
debt securities of the Company, (5) other assets, or (6) any combination of the foregoing
(whichever substituted, the “Substitute Consideration”), having an aggregate value equal to the
Current Value, where such aggregate value has been determined by the Board based upon the advice of
a nationally recognized investment banking firm selected by the Board; provided, however, if the
Company shall not have made adequate provision to deliver value pursuant to clause (B) above within
thirty (30) days following the date of the first occurrence of a Section ll(a)(ii) Event (such date
being referred to herein as the “Section ll(a)(ii) Trigger Date”), then, subject to subsection (k)
hereof, the Company shall be obligated to deliver, upon the surrender for exercise of a Right and
without requiring payment of the Purchase Price, shares of Common Stock (to the extent available)
and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread.
If the Board shall determine in good faith that it is likely that sufficient additional shares of
Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30)
day period set forth above may be extended to the extent necessary, but not more than ninety (90)
days after the Section ll(a)(ii) Trigger Date, in order that the Company may seek shareholder
approval for the authorization of such additional shares (such period, as it may be extended, being
referred to herein as the “Substitution Period”). To the extent that the Company determines that
some action need be taken pursuant to the first and/or second sentences of this Section ll(a)(iii),
the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply
uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the
expiration of the Substitution Period in order to seek any authorization of additional shares
and/or to decide the appropriate form of distribution to be made pursuant to such first sentence
and to determine the value thereof. In the event of any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has been temporarily suspended,
as well as a public
announcement at such time as the suspension is no longer in effect. For purposes of this
Section ll(a)(iii), the value of the Common Stock shall be the Current Market Price per share of
the Common Stock on the Section ll(a)(ii) Trigger Date and the value of any Common Stock Equivalent
shall be deemed to have the same value as the Common Stock on such date.


 


23









 





(b) In case the Company shall fix a record date for issuance of rights, options or warrants to
all holders of Common Stock, entitling them to subscribe for or purchase (for a period expiring
within forty-five (45) calendar days after such record date) Common Stock (or shares having the
same rights, privilege and preferences as the shares of Common Stock (“Equivalent Common Stock”))
or securities convertible into Common Stock or Equivalent Common Stock at a price per share of
Common Stock or per share of Equivalent Common Stock (or having a conversion price per share, if a
security convertible into Common Stock or Equivalent Common Stock) less than the Current Market
Price per share of Common Stock on such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding on such record date, plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of Common Stock and/or Equivalent Common
Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities
so to be offered) would purchase at such Current Market Price, and the denominator of which shall
be the number of shares of Common Stock outstanding on such record date, plus the number of
additional shares of Common Stock and/or Equivalent Common Stock to be offered for subscription or
purchase (or into which the convertible securities so to be offered are initially convertible). In
case such subscription price may be paid by delivery of consideration part or all of which may be
in a form other than cash, the value of such consideration shall be as determined in good faith by
the Board whose determination shall be conclusive for all purposes. Shares of Common 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.


 


24









 





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



(d) For the purpose of any computation hereunder, other than computations made pursuant to
Section ll(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall
be deemed to be the average of the daily closing prices per share of such Common Stock for the
thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of
computations made pursuant to Section ll(a)(iii) hereof, the “Current Market Price” per share of
Common Stock on any date shall be deemed to be the average of the daily closing prices per share of
such Common Stock for the ten (10) consecutive Trading Days immediately following such date;
provided, however, that in the event that the Current Market Price per share of the Common Stock is
determined during a period following the announcement by the issuer of such Common Stock of (i) a
dividend or distribution on such Common Stock payable in shares of such Common Stock or securities
convertible into shares of such Common Stock (other than the Rights), or (ii) any subdivision,
combination or reclassification of such Common
Stock, and prior to the expiration of the requisite thirty (30) Trading Day or ten (10)
Trading Day period, as set forth above, after 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



 


25









 






properly adjusted to take into account
ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or,
in case no such sale takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange on which the shares
of Common Stock are listed or admitted to trading or, if the shares of Common Stock are not listed
or admitted to trading on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc., Automated Quotation System or
such other system then in use, or, if on any such date the shares of Common Stock are not quoted by
any such organization, the average of the Closing bid and asked prices as furnished by a
professional market maker making a market in the Common Stock selected by the Board. If on any such
date no market maker is making a market in the Common Stock, the fair value of such stock on such
date as determined in good faith by the Board shall be used. The term “Trading Day” shall mean a
day on which the principal national securities exchange on which the shares of Common Stock are
listed or admitted to trading is open for the transaction of business or, if the shares of Common
Stock are not listed or admitted to trading on any national securities exchange, a Business Day. If
the Common Stock is not publicly held or not so listed or traded, Current Market Price per share
shall mean the fair value per share as determined in good faith by the Board whose determination
shall be conclusive for all purposes. The Current Market Price of any fraction of a share of Common
Stock hereunder shall be determined by multiplying the Current Market Price per share of Common
Stock, determined in accordance with this paragraph, by such fraction.



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


 


26









 





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



(g) All Rights originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, that
number of shares of Common Stock purchasable from time to time hereunder (or, if applicable,
preferred stock) upon exercise of the Rights, all subject to further adjustment as provided herein.



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



(i) The Company may elect on or after the date of any adjustment of the Purchase Price to
adjust the number of Rights, in lieu of any adjustment in the number of shares of Common Stock
purchasable upon the exercise of a Right. In that event, each of the Rights outstanding after the
adjustment in the number of Rights shall be exercisable for that number of shares of Common Stock
for which a Right was exercisable immediately prior to such adjustment; and each Right held of
record prior to such adjustment of the number of Rights shall become the number of Rights
(calculated to the nearest one-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 adjustment of the Purchase Price. The Company shall make a public announcement of its
election to adjust the number of Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. This record date may be the date on
which the Purchase Price is adjusted or any day thereafter, but, if the Rights Certificates have
been issued, shall be at least ten



 


27









 






(10) days later than the date of the public announcement. If
Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this
Section ll(i), the Company shall, as promptly as practicable, cause to be distributed to holders of
record of Rights Certificates on such record date Rights Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders shall be entitled as a result of
such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of
record in substitution and replacement for the Rights Certificates held by such holders prior to
the date of adjustment, and upon surrender thereof, if required by the Company, new Rights
Certificates evidencing all the Rights to which such holders shall be entitled after such
adjustment. All costs associated with such adjustments, including without limitation any taxes
required to be paid on account of such adjustment, shall be borne by the Company. Rights
Certificates so to be distributed shall be issued and executed in the manner provided for herein
(and may bear, at the option of the Company, the adjusted Purchase Price) and shall be registered
in the names of the holders of record of Rights Certificates on the record date specified in the
public announcement.



(j) Irrespective of any adjustment or change in the Purchase Price or the stock issuable upon
the exercise of the Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the Purchase Price per share of Common Stock and the shares of
Common Stock which were expressed in the initial Rights Certificates issued hereunder.



(k) Before taking any action that would cause an adjustment reducing the Purchase Price below
the then par value, if any, of the shares of Common Stock issuable upon exercise of the Rights, the
Company shall take any corporate action, including using its reasonable best efforts to obtain any
required shareholder approval, which may, in the opinion of its counsel, be necessary in order that
the Company may validly and loyally issue fully paid and nonassessable shares of Common Stock at
such adjusted Purchase Price.



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


 


28









 





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



(n) The Company shall not, at any time after the Distribution Date, (i) consolidate with any
other Person (other than a Subsidiary of the Company in a transaction in compliance with Section
11(o)), (ii) merge with or into any other Person (other than a Subsidiary of the Company in a
transaction in compliance with Section 11(o)), or (iii) sell or transfer (or permit any Subsidiary
to sell or transfer), in one transaction or a series of related 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 or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which is in compliance with Section 11(o)), if (x)
at the time of or immediately after such consolidation, merger or sale there are any provisions of
the Company’s articles of incorporation or bylaws or 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 to the holders of the Rights or (y)
prior to, simultaneously with or immediately after such consolidation, merger or sale, the
shareholders of the Person who constitutes, or would constitute, the “Principal Party” for purposes
of Section 13(a) hereof shall have received a distribution of Rights previously owned by such
Person or any of its Affiliates and Associates.



(o) After the Distribution Date, the Company shall not, except as permitted by Section 20 or
Section 23 hereof, take (or permit any Subsidiary to take) any action if at the time such action is
taken it is reasonably foreseeable that such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the Rights.


 


29









 





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




Section 12. Certificate of Adjusted Purchase Price or Number of Shares.



Whenever an adjustment is made as provided in Section 11 and Section 13 hereof, the Company
shall (a) promptly prepare a certificate setting forth such adjustment and a brief statement of the
facts accounting for such adjustment, (b) promptly file with the Rights Agent, if any, or if no
Rights Agent has been appointed, with the Company’s Secretary, and with each transfer agent for the
Common Stock, a copy of such certificate, and mail a brief summary thereof to each holder of a
Rights Certificate (or, if prior to the Distribution Date, to each holder of shares of Common
Stock) in accordance with Section 22 hereof. Notwithstanding the foregoing sentence, the failure of
the Company to give such notice shall not affect the validity of or the force or effect of or the
requirement for such adjustment. The Rights Agent, if any, shall be fully protected in relying on
any such certificate and on any adjustment therein contained and shall not be deemed to have
knowledge of any such adjustment unless and until it shall have received such certificate.




 


30












 





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



(a) In the event that, following or simultaneously with the Distribution Date, directly or
indirectly, (x) the Company shall consolidate with, or merge with and into, any other Person, and
the Company shall not be the continuing or surviving corporation of such consolidation or merger,
(y) any Person shall consolidate with, or merge with or into, the Company, and the Company shall
be the continuing or surviving corporation of such consolidation or merger and, in connection with
such consolidation or merger, all or part of the outstanding shares of Common Stock shall be
changed into or exchanged for stock or other securities of any other Person or cash or any other
property, or (z) the Company shall sell or otherwise transfer
(or one or more of its Subsidiaries shall sell or otherwise transfer), in one transaction or a
series of related transactions, assets 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 Person or Persons,
then, and in each such case (except as may be contemplated by Section 13(d) hereof), proper
provision shall be made so that: (i) each holder of a Right, except as provided in Section 7(e)
hereof, shall thereafter have the right to receive, upon the exercise thereof at the then current
Purchase Price in accordance with the terms of this Plan, such number of validly authorized and
issued, fully paid, non-assessable and freely tradeable shares of Common Stock of the Principal
Party, not subject to any liens, encumbrances, rights of first refusal or other adverse claims, as
shall be equal to the result obtained by (1) multiplying the then current Purchase Price by the
number of shares of Common Stock (or, if applicable, preferred stock) for which a Right is
exercisable immediately prior to the first occurrence of a Section 13 Event (or, if a Section
ll(a)(ii) Event has occurred prior to the first occurrence of a Section 13 Event, multiplying the
number of shares of Common Stock (or, if applicable, preferred stock) for which a Right was
exercisable immediately prior to the first occurrence of a Section ll(a)(ii) Event by the Purchase
Price in effect immediately prior to such first occurrence), and dividing that product (which,
following the first occurrence of a Section 13 Event, shall be referred to as the “Purchase Price”
for each Right and for all purposes of this Plan) by (2) 50% of the Current Market Price per share
of the Common Stock of such Principal Party on the date of consummation of such Section 13 Event;
(ii) such Principal Party shall thereafter be liable for, and shall assume, by virtue of
such Section 13 Event, all the obligations and duties of the Company pursuant to this Plan; (iii)
the term “Company” shall thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof shall apply only to such Principal
Party following the first occurrence of a Section 13 Event; (iv) such Principal Party shall take
such steps (including, but not limited to, the reservation of a sufficient number of shares of its
Common Stock) in connection with the consummation of any such transaction as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be,
in relation to its shares of Common Stock thereafter deliverable upon the exercise of the Rights;
and (v) the provisions of Section ll(a)(ii) hereof shall be of no effect
following the first occurrence of any Section 13 Event.


 


31









 






(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), the Person that is the issuer of any securities into which shares of Common Stock of
the Company are converted in such merger or consolidation, and if no securities are so issued, the
Person that is the other party to such merger or consolidation; and



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



(c) The Company shall not consummate any such consolidation, merger, sale or transfer unless
the Principal Party shall have a sufficient number of authorized shares of its Common Stock which
have not been issued or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent, if any, or if no Rights Agent shall have been
appointed,
to the Company’s Secretary, a supplemental agreement providing for the terms set forth in
Paragraphs (a) and (b) of this Section 13 and further providing that, as soon as practicable after
the date of any consolidation, merger or sale of assets mentioned in paragraph (a) of this Section
13, the Principal Party:



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


 


32









 





(ii) will 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 ll(a)(ii) Event, the Rights which have not theretofore been exercised shall
thereafter become exercisable in the manner described in Section 13(a).



(d) Notwithstanding anything in this Plan to the contrary, Section 13 shall not be applicable
to a transaction described in subparagraphs (x) and (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons (or a wholly owned subsidiary of any such Person or Persons)
who acquired shares of Common Stock pursuant to a Fair Value Offer, (ii) the price per share of
Common Stock offered in such transaction is not less than the price per share of Common Stock paid
to all holders of shares of Common Stock whose shares were purchased pursuant to such Fair Value
Offer, and (iii) the form of consideration being offered to the remaining holders of shares of
Common Stock pursuant to such transaction is cash. Upon consummation of any such transaction
contemplated by this Section 13(d), all Rights hereunder shall expire.



(e) The provisions of this Section 13 shall be applicable to a transaction described in
subparagraphs (x), (y), and (z) of Section 13(a) regardless of the business form of the Principal
Party (e.g., corporation, partnership, or other form). In the event that the Principal Party is an
entity other than a
corporation, the term “Common Stock,” as used in reference to the Principal Party in this Section
13 or otherwise, shall be construed to refer to the equity securities or other equity interest
having power to control or direct the management of, or
representing the fundamental economic interest in, such Principal Party.


 


33









 






Section 14. Fractional Rights and Fractional Shares.



(a) The Company shall not be required to issue fractions of Rights or to distribute Rights
Certificates which evidence fractional Rights. In lieu of such fractional Rights, there may be paid
to the registered holders of the Rights Certificates with regard to which such fractional Rights
would otherwise be issuable an amount in cash equal to the same fraction of the current market
value of a whole Right. For purposes of this Section 14(a), the current market value of a whole
Right shall be the closing price of the Rights for the Trading Day immediately prior to the date on
which such fractional Rights would have been
otherwise issuable. The closing price of the Rights
for any 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 on the
principal national securities exchange on which the Rights are listed or admitted to trading, or if
the Rights are not listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System or such other system then in use or, if on any such date the Rights are
not quoted by any such organization, the average of the closing bid and asked prices as furnished
by a professional market maker selected by the Board making a market in the Rights. If on any such
date no such market maker is making a market in the Rights, then the fair value of the Rights on
such date as determined in good faith by the Board shall be used.



(b) The Company shall not be required to issue fractions of shares of Common Stock (or other
securities) upon exercise of the Rights or to distribute fractional shares of Common Stock (or
other securities). In lieu of fractional shares of Common Stock (or other securities), the Company
may pay to the registered holders of Rights Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of the current market value of a share
of Common Stock (or other securities). For purposes of this Section
14(b), the current market value of one share of Common Stock shall be the closing price per
share of Common Stock (as determined pursuant to Section ll(d) hereof) for the Trading Day
immediately prior to the date of such exercise, and the current market value of any other
securities shall be determined utilizing the principles of Section ll(d) hereof as applied by the
Board in its sole discretion.



(c) The holders of Rights by the acceptance of the Rights expressly waive any right to receive
any fractional Rights and/or any fractional shares upon exercise of a Right.


 


34









 






Section 15. Rights of Action.



All rights of action in respect of this Plan are vested in the respective registered holders
of the Rights Certificates (and, prior to the Distribution Date, the registered holders of the
Common Stock); and any registered holder of any Rights Certificate (or, prior to the Distribution
Date, of the Common Stock), without the consent of the holder of any other Rights 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 Rights Certificate in the manner provided in such Rights Certificate and
in this Plan. 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 Plan and shall be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened violations of the obligations
hereunder of any Person subject to this Plan.




Section 16. Agreement of Rights Holders.



Every holder of a Right by accepting the same consents and agrees with the Company 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 Rights Certificates are transferable only on the registry
books of the Company, if surrendered at the principal office of the Company, or, if a Rights Agent
is appointed by the Company hereunder, only on the registry books of said Rights Agent, if
surrendered at the principal shareholder services office or offices of the Rights Agent designated
for such purposes, in either case duly endorsed or accompanied by a proper instrument of transfer
and with the appropriate forms and certificates fully executed;



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


 


35









 





(d) Notwithstanding anything in this Plan to the contrary, neither the Company nor any Rights
Agent appointed by the Company 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 Plan by reason of any
preliminary or permanent injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of such obligation; provided, however, the Company
must use its best efforts to have any such order, decree or ruling lifted or otherwise overturned
as soon as possible.




Section 17. Rights Certificate Holder Not Deemed a Shareholder.



No holder, as such, of any Rights Certificate shall be entitled to vote, receive dividends or
be deemed for any purpose the holder of the number of shares of 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
Rights Certificate be construed to confer upon the holder of any Rights Certificate, as such, any
of the rights of a shareholder 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 21 hereof), or to receive dividends or subscription rights or otherwise,
until the Right or Rights evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions hereof.




Section 18. Indemnification of Corporate Officers.



(a) The Company shall indemnify its officers for and hold them harmless against any loss,
liability or expense incurred without negligence, bad faith or willful misconduct on
the part of such officers for anything done or omitted by such officers in connection with the
acceptance and administration of this Plan, including the costs and expenses of defending against
any claim of liability arising therefrom, directly or indirectly, and will promptly reimburse such
officers for any legal or other expenses reasonably incurred in investigating or defending any such
1066, expense, claim, damage or liability.



(b) The Company’s officers shall be protected by the indemnity provided in this Section 18
and shall incur no liability for or in respect of any action taken, suffered or omitted by any of
them in connection with their administration of this Plan in reliance upon any Rights Certificate
or certificate for Common Stock or for other securities of the Company, instrument or assignment of
transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by such officer to be genuine and to be
signed, executed and, where necessary, verified or acknowledged by the proper Person or Persons.


 


36









 






Section 19. Issuance of New Rights Certificates.



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




Section 20. Redemption and Termination; Exchange.



(a) The Board may, at its option, at any time prior to the earlier of (i) such time as any
Person becomes an Acquiring Person without the consent of a majority of the Directors, (ii) a
Triggering Event, or (iii) the Final Expiration Date, redeem all but not less than all the then
outstanding Rights at a redemption price of $.01 per Right, as such amount may be 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”). The Company
may, at its option, pay the Redemption Price in cash, shares of Common Stock (based on the Current
Market Price of the Common Stock at the time of redemption) or any other form of consideration
deemed appropriate by the Board.


 


37









 





(b) Immediately upon the action of the Board ordering the redemption of the Rights 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 (without
the payment of any interest thereon) for each Right so held. Promptly after
such action of the Board 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 each holder’s last address as it appears upon the registry books of the Company. 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. The failure to give any notice required by this
Section 20(b) or any defect therein shall not affect the legality of or validity of any redemption
hereunder.



(c) The Board may, at its option, at any time after the Distribution Date, exchange all or
part of the then outstanding and exercisable Rights (which shall not include Rights that have
become void pursuant to the provisions of Section 7(e) hereof) for Common Stock at an exchange
ratio of one share of Common Stock per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the Rights Dividend Declaration Date(such
number of shares of Common Stock issuable in exchange for one Right being referred to herein as the
“Exchange Shares”),subject to payment by exchanging holders of Rights of such amount, if any, as
may, in the opinion of the Company’s legal counsel, be necessary in order that the Company may
validly and legally thereupon issue fully paid and nonassessable shares of Common Stock.
Notwithstanding the foregoing, the Board shall not be empowered to effect such exchange at any time
after any Acquiring Person, together with all Affiliates and Associates of such Person, becomes the
beneficial owner of 50% or more of the Common Stock then outstanding.



(d) Immediately upon the action of the Board ordering the exchange of any Rights pursuant to
subsection (c) of this Section 20, 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 the Exchange Shares. The Company shall promptly give public notice of any such
exchange; provided, however, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company promptly shall mail a notice of any such
exchange to all of the holders of such Rights in accordance with Section 22 hereof. Each such
notice of exchange will state the method by which the exchange of the Common Stock for Rights will
be effected and, in the event of
any partial exchange, the number of Rights which will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights which have become void
pursuant to the provisions of Section 7(e) hereof) held by each holder of Rights.


 


38









 





(e) In the event that there shall not be sufficient shares of Common Stock issued but not
outstanding, or authorized but unissued, to permit any exchange of Rights as contemplated in
accordance with this Section 20, the Company shall either take such action as shall be necessary to
authorize additional shares of Common Stock, or take such action specified in Section 11(a)(iii)
hereof as shall be necessary to substitute for each Exchange Share other consideration having value
equal to the Current Market Price per share of the Common Stock as of the date such substitution
is authorized by the Board.




Section 21. Notice of Certain Events.



(a) In case the Company shall propose, at any time after the Distribution Date, (i) to pay any
dividend payable in shares of any class to the holders of Common Stock or to make any other
distribution to the holders of Common Stock (other than a regular quarterly cash dividend out of
earnings or retained earnings of the Company), or (ii) to offer to the holders of Common Stock
rights or warrants to subscribe for or to purchase any additional shares of Common Stock or shares
of stock of any class or any other securities, rights or options, or (iii) to effect any
reclassification of its Common Stock (other than a reclassification involving only the subdivision
of outstanding shares of Common Stock), or (iv) to effect any consolidation or merger into or with
any other Person (other than a Subsidiary of the Company in a transaction which complies with
Section ll(o) hereof), or to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one transaction or a series of related
transactions, of more than 50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to
any other Person or Persons (other than the Company and/or any of its Subsidiaries in one or more
transactions each of which complies with Section ll hereof), or (v) to effect the liquidation,
dissolution or winding up of the Company, then, in each such case, the Company shall give to each
holder of a Rights Certificate, to the extent feasible and, in accordance
with Section 22 hereof, a notice of such proposed action, which shall specify the record date for
the purposes of such stock dividend, distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation, dissolution, or winding up is
to take place and the date of participation therein by the holders of the shares of Common Stock,
if any such date is to be fixed, and such notice shall be so given in the case of any action
covered by clause (i) or (ii) above at least twenty (20) days prior to the record date for
determining holders of the shares of Common Stock for purposes of such action, and in the case of
any such other action, at least twenty (20) days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of the shares of Common Stock, whichever
shall be the earlier.


 


39









 





(b) If any event set forth in Section ll(a)(ii) hereof shall occur, then, (i) the Company
shall as soon as practicable thereafter give to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 22 hereof, a notice of the occurrence of such event, which
shall specify the event and the consequences of the event to holders of Rights under Section
ll(a)(ii) hereof, and (ii) all references in the preceding paragraph to Common Stock shall, to the
extent appropriate, also be deemed thereafter to refer to other securities.



(c) The failure to give any notice required by this Section 21 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.




Section 22. Notices.



Notices or demands authorized by this Plan to be given or made to or on the Company shall be
sufficiently given or made if sent by first class mail, postage prepaid, addressed (until another
address is sent as provided below to the holders of the Rights) as follows:




EMS Technologies, Inc.

660 Engineering Drive

Technology Park/Atlanta

Norcross, Georgia 30092

Attention: Chairman of the Board of Directors



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


 


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Section 23. Supplements and Amendment; Substituted Plan.



For so long as the Rights are then redeemable, the Company may supplement or amend any
provision of this Plan, terminate this Plan or adopt a new rights plan in substitution for this
Plan and all Rights outstanding hereunder (in which case this Plan and all such Rights shall
thereafter become null and void), without the approval of any holders of shares of Common Stock or
any payment of the Redemption Price of the Rights. From and after the time that the Rights are no
longer redeemable, the Company may supplement or amend this Plan, without the approval of any
holders of Rights Certificates only 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 effect compliance with, or take advantage of, any changes in law
affecting the legality or enforceability of plans or arrangements such as this Plan, or (iv) to
change or supplement the provisions hereunder in regard to matters or questions arising hereunder
which the Company may deem necessary or desirable; provided that no such supplement or amendment
shall (A) adversely affect the interests of the holders of Rights (other than any interest of an
Acquiring Person or an Affiliate or Associate of an Acquiring Person), (B) cause the Rights to
again become redeemable, or (C) cause this Plan to again become amendable other than amendments
expressly permitted by this sentence. Prior to the time that the Rights are no longer redeemable,
the interests of the holders of Rights shall be deemed coincident with the interests of the holders
of Common Stock.




Section 24. Successors.



All the covenants and provisions of this Plan by or for the benefit of the Company shall bind
and inure to the benefit of its successors and assigns hereunder.




Section 25. Determinations and Actions by the Board of Directors, etc.



For all purposes of this Plan, any calculation of the number of shares of Common Stock
outstanding at any particular time, including for purposes of determining the particular percentage
of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be
made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange Act, subject in all events to the provisions of Section l(e) hereof
including specifically, the last proviso thereof. The Board (or, as set forth herein, certain
specified members thereof) shall have the exclusive power and authority to administer this Plan and
to exercise all rights and powers specifically granted to the Board (or, as set forth herein,
certain specified members thereof) or to the Company, or as may be necessary or advisable in the
administration of this Plan, including, without limitation,- the right and power to (i) interpret
the provisions of this Plan, and (ii) make all determinations deemed necessary or advisable for the
administration of this Plan (including but not limited to a determination to redeem or not redeem
the Rights, to consent to a transaction in which a Person becomes an Acquiring Person, to amend the
Plan or to remit the Substitute Consideration or Spread payable). All such actions, calculations,
interpretations and determinations (including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board (or, as set forth herein, certain
specified members thereof) in good faith, shall (x) be final, conclusive and binding on the
Company, the holders of the Rights and all other parties, and (y) not subject the Board (or, as set
forth herein, certain specified members thereof) to any liability to the holders of the Rights.


 


41









 






Section 26. Intentionally Omitted.




Section 27. Benefits of this Plan.



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




Section 28. Severability.



If any term, provision, covenant or restriction of this Plan is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable (including without limitation
the last proviso to Section l(e)), the remainder of the terms, provisions, covenants and
restrictions of this Plan shall remain in full force and effect and shall in no way be affected,
impaired or invalidated; provided, however, that in the event of such a holding by such court or
authority, this Plan may be amended to take into account such holding including by way of
illustration but not limitation, an amendment raising the percentage of beneficial ownership
specified in Section l(a) or Section ll(a)(ii).




Section 29. Governing Law.



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




Section 30. Descriptive Headings.



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




 


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EXHIBIT A




[Form of Face Side of Rights Certificate]




			
	 	 	 
	Certificate No. R-
	 	Rights






NOT EXERCISABLE AFTER AUGUST 6, 2014, OR EARLIER IF REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT
TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
AMENDED AND RESTATED SHAREHOLDER RIGHTS PLAN. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY
OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS PLAN) AND ANY SUBSEQUENT HOLDER
OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR
WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE AMENDED AND RESTATED SHAREHOLDER
RIGHTS PLAN). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME
NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH PLAN.]*



Rights Certificate




EMS TECHNOLOGIES, 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 Amended and Restated Shareholder Rights Plan, dated as of August
6, 2009, as amended and restated on January 4, 2011 (the “Rights Plan”), of EMS Technologies, Inc.,
a Georgia corporation (the “Company”), to purchase from the Company at any time prior to 5:00 P.M.
Eastern time on August 6, 2014, at the principal executive office of the Company or the offices of
the Rights Agent, if any, designated for such purpose, one fully paid and nonassessable share of
common stock, par value $.10 per share (the “Common Stock”), of the Company, at a purchase price of
$45.00 per Right (the “Purchase Price”), upon presentation and surrender of this Rights Certificate
with a Form of Election to Purchase and related Certificate duly executed. The number of Rights
evidenced by this Rights Certificate (and the amount of securities constituting a Right which may
be purchased upon exercise thereof) set forth above, and the Purchase Price set
forth above, are the amount of
securities constituting a Right and Purchase Price as of August 6, 2009, based on the Common Stock
as constituted as of such date.





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



 


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In the circumstances and subject to the conditions specified in the Rights Plan, the Company
may (i) at the sole discretion of the Directors (as defined in the Rights Plan), permit or require
the Rights to be exercised for 50% of the shares otherwise purchasable but without payment of the
Purchase Price (except to the extent of any requirements as to payment of par value), and (ii) at
the sole discretion of the Board of Directors, exchange each Right (other than those that have
become void as specified below), for one share of Common Stock without payment except to the extent
of any requirements as to payment of par value.



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



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



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


 


44









 





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



Subject to the provisions of the Rights Plan, the Rights evidenced by this Certificate may be
redeemed at any time prior to the earlier of (i) such time as any Person becomes an Acquiring
Person without the consent of a majority of the Directors, (ii) a Triggering Event, or (iii) the
Final Expiration Date by the Company, at its option at a redemption price of $.01 per Right
(payable in cash, Common Stock or other consideration deemed appropriate by the Board.



The Company is not required to issue fractional shares of Common Stock upon the exercise of
any Right or Rights evidenced thereby, but in lieu thereof a cash payment will be made, as provided
in the Rights Plan.



No holder of this Rights Certificate shall be entitled to vote or receive dividends on or be
deemed for any purpose the holder of shares of Common Stock or any other securities of the Company
which may at any time be issuable on the exercise hereof, nor shall anything contained in the
Rights Plan 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 Plan), or to receive dividends or
subscription rights until the Right or Rights evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Plan.



This Rights Certificate shall not be valid or effective for any purpose until it shall have
been executed by the Company.




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



Dated as of                                         ,




	 	 	 	 	 	 	 	 	 	 	 
	ATTEST:	 	EMS TECHNOLOGIES, INC.
	 
	 	 	 	 	 	 	 	 	 	 
	Title

	 	
	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Title	 	 





 


45









 





[Form of Reverse Side of Rights Certificate]




FORM OF ASSIGNMENT




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



FOR VALUE RECEIVED

hereby sells, assigns and transfers unto



(Please print name and address of transferee)




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



Dated:                     ,




Signature




Signature Guaranteed:




Certificate




The undersigned hereby certifies by checking the appropriate boxes that:



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



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



Dated:                     ,




Signature



 


46









 





NOTICE




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



FORM OF ELECTION TO PURCHASE




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




To: EMS TECHNOLOGIES, INC.



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



Please insert social security or other identifying number:



(Please print name and address)




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



Please insert social security or other identifying number:



(Please print name and address)




Dated:                     ,




Signature




Signature Guaranteed:



Certificate





The undersigned hereby certifies by checking the appropriate boxes that:



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


 


47









 





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



Dated:                     ,



Signature




Signature Guaranteed:




NOTICE




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



EXHIBIT B




EMS TECHNOLOGIES, INC.




SUMMARY OF RIGHTS TO PURCHASE COMMON STOCK




On July 27, 2009, the Board of Directors (the “Board”) of EMS Technologies, Inc. (the
“Company”) declared a dividend distribution of one Right for each outstanding share of Company
Common Stock to shareholders of record at the close of business on August 7, 2009. The description
and terms of the Rights are set forth in a Shareholder Rights Plan, as amended and restated (the
“Plan”), adopted by the Board. Subject to becoming exercisable as described below, each Right
entitles its registered holder to purchase from the Company one share of Common Stock at a Purchase
Price of $45.00, subject to adjustment.



Initially, the Rights will be attached to all Common Stock certificates or, in the case of
uncertificated shares, the associated balance in the book-entry system of the transfer agent for
the Common Stock, representing shares then outstanding, and no separate Rights Certificates will be
distributed. The Rights will separate from the Common Stock on the “Distribution Date” (as defined
in the next paragraph), and separate Rights Certificates will be distributed as soon as practicable
thereafter to record holders of the Common Stock at the close of business on the Distribution Date.
As of and after the Distribution Date, the separate Rights Certificates alone will represent the
Rights. Except as otherwise determined by the Board, all shares of Common Stock issued prior to the
Distribution Date will be issued with Rights.


 


48









 





The Distribution Date will occur on the earliest of (i) 10 days following the date (the “Stock
Acquisition Date”) of a public announcement that a person or group of affiliated or
associated persons (an “Acquiring Person”) has acquired, or obtained the right to acquire,
without the consent of a majority of the Board, beneficial ownership of 20% or more of the
outstanding shares of Common Stock, except in certain inadvertent acquisitions not involving any
intention of exercising control, (ii) 10 days (or such later date as may be determined by action of
the Board prior to such time as any Person becomes an Acquiring Person) following the commencement
of a tender offer or exchange offer that would result in a person or group beneficially owning 20%
or more of such outstanding shares of Common Stock, (iii) with respect to any Acquiring Person
whose acquisition of 20% or more of the outstanding shares of Common Stock of the Company was
consented to by a majority of the Board, 10 days following the date that such person, without the
consent of a majority of the Board, thereafter acquires an additional 2% of the outstanding shares
of Common Stock of the Company or engages in certain self-dealing transactions with the Company, or
(iv) 10 days following the date that an offer, made, encouraged or supported by an Acquiring
Person, to acquire the Company in a merger or other business combination transaction in which the
Company is not the surviving corporation or to sell or transfer 50% or more of the Company’s assets
or earning power is first announced, published, sent or given. For the purposes of the Plan,
“beneficial ownership” includes rights under certain derivative or synthetic arrangements having
characteristics of a long position in the Common Stock.



Until the Distribution Date, (i) the Rights will be evidenced by the shares of Common Stock
and will be transferred with and only with such shares, (ii) any new Common Stock certificates
issued after August 7, 2009, will contain a legend incorporating the Plan by reference, and (iii)
the surrender for transfer of any shares of Common Stock outstanding will also constitute the
transfer of the Rights associated with the Common Stock represented by such certificate. The
Rights are not exercisable until the Distribution Date and will expire at the close of business on
August 6, 2014, unless earlier redeemed by the Company as described below. If at any time prior to
the Expiration Date,




(1) a Person becomes the beneficial owner of 20% or more of the then outstanding shares of
Common Stock without the consent of a majority of the Board (except pursuant to an offer for
all outstanding shares of Common Stock which a majority of the Board determines to be fair
to and
otherwise in the best interests of the Company and its shareholders, or in certain
inadvertent acquisitions not involving any intent to exercise control), or


 


49









 






(2) a Person who has become the beneficial owner of 20% or more of the then outstanding
 shares of Common Stock with the consent of a majority of the Board thereafter acquires an
additional 2% or more of the outstanding shares of Common Stock of the Company without such
consent or engages in certain self-dealing transactions with the Company without such
consent,




then beginning ten days after such event, each holder of a Right will have the right to
receive, upon exercise of the Right and payment of the Purchase Price, Common Stock (or, in
certain circumstances and subject to certain limitations, cash, property or other securities
of the Company) having a value equal to two times the Purchase Price of the Right, but in no
case exceeding one share for each $.10 of Purchase Price paid by the holder. Alternatively,
in such event and with the approval of a majority of the Board, each holder of a Right will
have the right, or may be permitted only, to receive shares of Common Stock having a value
equal to the Purchase Price upon surrender of the Right to the Company and without payment
of the Purchase Price, subject to any requirements as to the payment of par value.
Notwithstanding any of the foregoing, upon the occurrence of any of the events set forth in
this paragraph, all Rights that are, or (under certain circumstances specified in the Plan)
were, beneficially owned by any Acquiring Person or its associates or affiliates will be
null and void.



For example, at a Purchase Price of $45.00 per Right, each Right not owned by an Acquiring
Person (or by certain related parties) following an event set forth in the preceding paragraph
would entitle its holder to purchase $90.00 worth of Common Stock (or other consideration, as noted
above) for $45.00. Assuming that the Common Stock had a per share value of $15.00 at such time,
the holder of each valid Right would be entitled to purchase six shares of Common Stock for $45.00.



If at any time following or simultaneously with the Distribution Date, (i) the Company is
acquired in a merger or other business combination transaction in which the Company is not the
surviving corporation, or (ii) 50% or more of the Company’s assets or earning power is sold or
transferred, each
holder of a Right (except Rights which have become void as set forth above) will have the
right upon exercise of the Right to receive common stock (or other securities or property, as the
case may be) of the acquiring company having a value equal to two times the Purchase Price of the
Right.


 


50









 





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



With certain exceptions, no adjustment in the Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price. The Company is not required to issue
fractional shares of Common Stock and in lieu thereof an adjustment in cash may be made based on
the market price of the Common Stock on the last trading date prior to the date of exercise.



At any time prior to the earlier of the time any Person becomes an Acquiring Person without
the consent of a majority of the Directors, a Triggering Event or the Expiration Date, the Board
may redeem the outstanding Rights at a redemption price of $0.01 per Right (the “Redemption Price”)
(payable in cash, Common Stock or other consideration deemed appropriate by a majority of the
Board). Immediately upon the action of the Board electing to redeem the outstanding Rights, the
right to exercise the outstanding Rights will terminate and the holders of outstanding Rights will
only have the right to receive the Redemption Price. Also, the Board may, at any time after the
Distribution Date, elect to exchange all or a portion of outstanding Rights (other than Rights that
have become void as set forth above) for Common Stock at a ratio of one share of Common Stock for
each Right (subject to any requirements as to payment of par value), whereupon the right to
exercise the affected Rights will terminate and their holders will only have the right to receive
the exchange shares. The Company shall promptly give notice of redemption or exchange to all Rights
holders by first-class mail.



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.
Shareholders may, depending upon the circumstances, recognize taxable income in the event that the
Rights become exercisable for Common Stock (or other consideration) of the Company or for
securities of an acquiring company as set forth above.


 


51









 





For so long as the Rights are then redeemable, the Company may supplement or amend any
provision of the Plan, terminate the Plan or adopt a new rights plan in substitution for the Plan
and all Rights outstanding under the Plan (in which case the Plan and all such Rights shall
thereafter become null and void), without the approval of any holders of shares of Common Stock or
any payment of the Redemption Price of the Rights. From and after the time that the Rights are no
longer redeemable, the Company may supplement or amend the Plan, without the approval of any
holders of Rights Certificates, only in order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained in the Plan which may be defective or inconsistent with any
other provisions herein, (iii) to effect compliance with, or take advantage of, any changes in law
affecting the legality or enforceability of plans or arrangements such as the Plan, or (iv) to
change or supplement the provisions of the Plan in regard to matters or questions arising
thereunder which the Company may deem necessary or desirable; provided that no such supplement or
amendment shall (i) adversely affect the interests of the holders of Rights (other than any
interest of an Acquiring Person or an Affiliate or Associate of an Acquiring Person), (ii) cause
the Rights to again become redeemable, or (iii) cause the Plan to again become amendable other than
amendments expressly permitted by this sentence.



Copies of the Plan will be filed with the Securities and Exchange Commission as an Exhibit to
a report filed by the Company on Form 8-K dated July 27, 2009, as it may be amended from time to
time. Copies of the Plan are 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
Plan, which is incorporated herein by reference. Capitalized terms used but not defined in this
summary description of the Rights have the meanings ascribed to
such terms in the Plan.




 


52