Exhibit 4.1 




RIGHTS AGREEMENT


between


U.S. PRECIOUS METALS, INC.


and


INTERWEST TRANSFER COMPANY, INC.

as Rights Agent


Dated as of March 17, 2009








EXHIBITS


	
  

 	
  

 	
  

 
	
 Exhibit A

 	
 -

 	
 Form of
 Certificate of Designations

 
	
 Exhibit B

 	
 -

 	
 Form of
 Right Certificate

 
	
 Exhibit C

 	
 -

 	
 Form of
 Summary of Rights

 


2






RIGHTS
AGREEMENT


          This
Rights Agreement, dated as of March 17, 2009 (as amended, supplemented or
otherwise modified from time to time, this “Agreement”) between U.S.
Precious Metals, Inc., a Delaware corporation (the “Company”), and Interwest
Transfer Company, Inc. (the “Rights Agent”).


W I T N E S S E T H


          WHEREAS,
the Board of Directors of the Company (the “Board”) has on March 17,
2009, authorized and declared a dividend of one preferred stock purchase right
(a “Right”)
for each share of the Common Stock (as defined below) outstanding as of the
close of business (as defined below) on April 10, 2009 (the “Record Date”);


          WHEREAS,
each Right represents the right to purchase one one-thousandth (subject to
adjustment as provided herein) of a share of Preferred Stock (as defined
below), upon the terms and subject to the conditions herein set forth; and


          WHEREAS,
the Board has further authorized and directed the issuance of one Right
(subject to adjustment as provided herein) with respect to each share of Common
Stock that shall become outstanding between the Record Date and the earlier of
the Distribution Date and the Expiration Date (as such terms are hereinafter
defined); provided, however, that Rights may be issued with
respect to shares of Common Stock that shall become outstanding after the
Distribution Date and prior to the Expiration Date in accordance with Section 22.


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


	
  

 	
  

 
	
 1.

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

 






	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 “Acquiring
 Person” means any Person who or which shall be the Beneficial
 Owner of fifteen percent (15%) or more of the shares of Common Stock then
 outstanding on or after the date hereof, but shall not include an Exempted
 Entity or Grandfathered Stockholder; provided, however, that if
 the Board determines in good faith that a Person who would otherwise be an
 “Acquiring Person” has become such inadvertently (including, without
 limitation, because (i) such Person was unaware that it beneficially owned a
 percentage of Common Stock that would otherwise cause such Person to be an
 “Acquiring Person” or (ii) such Person was aware of the extent of its
 Beneficial Ownership of Common Stock but had no actual knowledge of the
 consequences of such Beneficial Ownership under this Agreement) and without
 any intention of changing or influencing control of the Company, then such
 Person shall not be deemed to be or to have become an “Acquiring Person” for
 any purposes of this Agreement unless and until such Person shall have failed
 to divest itself, as soon as practicable, if the Company so requests, of
 Beneficial Ownership of a sufficient number of shares of Common Stock so that
 such Person would no longer otherwise qualify as an “Acquiring Person”.
 Notwithstanding the foregoing, no Person shall be deemed an “Acquiring
 Person” as the result of an acquisition of shares of Common Stock by the
 Company which, by reducing the number of shares outstanding, increases the
 proportionate number of shares beneficially owned by such Person to fifteen
 percent (15%) or more of the shares of Common Stock then outstanding; provided,
 however, that if a Person shall become the Beneficial Owner of fifteen
 percent (15%) or more of the shares of Common Stock then outstanding by
 reason of such share acquisitions by the Company and thereafter becomes the
 Beneficial Owner of any additional shares of Common Stock (other than
 pursuant to a dividend or distribution paid or made by the Company on the
 outstanding Common Stock or pursuant to a split or subdivision of the
 outstanding Common Stock), then such Person shall be deemed to be an
 “Acquiring Person,” subject to the proviso set forth in the first sentence of
 this Section 1(a),
 unless upon the consummation of the acquisition of such additional shares of
 Common Stock such Person does not beneficially own fifteen percent (15%) or
 more of the shares of Common Stock then outstanding. The phrase “then
 outstanding”, when used with reference to a Person’s Beneficial
 Ownership of securities of the Company, shall mean the number of such
 securities then issued and outstanding together with the number of such
 securities not then actually issued and outstanding which such Person would
 be deemed to beneficially own hereunder.

 


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 (b)

 	
 “Affiliate”
 and “Associate”
 have the respective meanings ascribed to such terms in Rule 12b-2 of the
 General Rules and Regulations under the Exchange Act.

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

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

 






	
  

 	
  

 	
  

 
	
  

 	
 (i)

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

 
	
  

 	
  

 	
  

 
	
  

 	
 (ii)

 	
 which such
 Person or any of such Person’s Affiliates or Associates has (A) the
 right to acquire (whether such right is exercisable immediately or only after
 the passage of time) pursuant to any agreement, arrangement or understanding
 (other than customary agreements with and between underwriters and selling
 group members with respect to a bona fide public offering of securities),
 written or otherwise, or upon the exercise of conversion rights, exchange
 rights, rights (other than the Rights), warrants or options, or otherwise; provided,
 however, that a Person shall not be deemed the Beneficial Owner of, or
 to beneficially own, (x) securities tendered pursuant to a tender or
 exchange offer made by or on behalf of such Person or any of such Person’s
 Affiliates or Associates until such tendered securities are accepted for
 purchase or exchange, (y) securities which such Person has a right to acquire
 on the exercise of Rights at any time prior to the time a Person becomes an
 Acquiring Person or (z) securities issuable upon exercise of Rights from
 and after the time a Person becomes an Acquiring Person if such 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 or Section 22
 hereof (the “Original Rights”) or pursuant to Section 11(i) or Section
 11(n) with respect to an adjustment to the Original Rights; or
 (B) the right to vote pursuant to any agreement, arrangement or
 understanding, written or otherwise; provided, however, that a
 Person shall not be deemed the Beneficial Owner of, or to beneficially own,
 any security by reason of such agreement, arrangement or understanding if the
 agreement, arrangement or understanding to vote such security (1) arises
 solely from a revocable proxy or consent given to such Person in response to
 a public proxy or consent solicitation made pursuant to, and in accordance
 with, the applicable rules and regulations promulgated under the Exchange Act
 and (2) is not also then reportable on Schedule 13D under the
 Exchange Act (or any comparable or successor report); or

 


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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 to the extent contemplated by the proviso to Section 1(c)(ii)(B))
 or disposing of such securities of the Company;

 



provided, however, that
(x) nothing in this Section 1(c) 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 (40) days after the date of such acquisition, and then only
if such securities continue to be owned by such Person at such expiration of
forty (40) days; (y) no Person who is an officer, director, or employee of
an Exempted Entity or Grandfathered Stockholder shall be deemed, solely by
reason of such Person’s status or authority as such, to be the “Beneficial
Owner” of, to have “Beneficial Ownership” of or to “beneficially own” any
securities that are “beneficially owned” (as defined in this Section 1(c)),
including, without limitation, in a fiduciary capacity, by an Exempted Entity
or Grandfathered Stockholder or by any other such officer, director or employee
of an Exempted Entity or Grandfathered Stockholder, as applicable; and
(z) a Person shall not be deemed the “Beneficial Owner” of, to have
“Beneficial Ownership” of or to beneficially own, shares of Common Stock (or
securities convertible into, exchangeable into or exercisable for Common Stock)
held by such Person in trust accounts, managed accounts and the like, or
otherwise held in a fiduciary capacity, that are Beneficially Owned by third
Persons who are not Affiliates or Associates of such Person.


	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 “Business
 Day” means any day other than a Saturday, a Sunday, or a day on
 which banking institutions in the State of New York, or the State in which
 the principal office of the Rights Agent is located, are authorized or
 obligated by law or executive order to close.

 
	
  

 	
  

 	
  

 
	
  

 	
 (e)

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

 


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 (f)

 	
 “Common
 Stock” when used with reference to the Company means, its common
 stock, par value $0.00001 per share. “Common Stock” when used with reference to
 any Person other than the Company means the capital stock (or, in the case of
 an unincorporated entity, the equivalent equity interest) with the greatest
 voting power of such other Person or, if such other Person is a subsidiary of
 another Person, the Person or Persons which ultimately control such
 first-mentioned Person.

 
	
  

 	
  

 	
  

 
	
  

 	
 (g)

 	
 “Distribution
 Date” means the earlier of (i) the tenth (10th)
 day after the Stock Acquisition Date or (ii) the tenth (10th)
 Business 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
 of the commencement by any Person, other than an Exempted Entity, of, or of
 the first public announcement of the intention of such Person, other than an
 Exempted Entity, to commence, a tender or exchange offer the consummation of
 which would result in any Person, other than an Exempted Entity, becoming the
 Beneficial Owner of fifteen percent (15%) or more of the shares of Common
 Stock then outstanding (including, in the case of both clause (i) and (ii),
 any such date which is after the date of this Agreement and prior to the
 issuance of the Rights). 

 
	
  

 	
  

 	
  

 
	
  

 	
 (h)

 	
 “Exchange
 Act” means the Securities Exchange Act of 1934, as amended and in
 effect on the date of this Agreement.

 
	
  

 	
  

 	
  

 
	
  

 	
 (i)

 	
 “Exempted
 Entity” means (1) the Company, (2) any Subsidiary of the
 Company (in the case of subclauses (1) and (2) including, without
 limitation, in its fiduciary capacity), (3) any employee benefit plan of
 the Company or of any Subsidiary of the Company and (4) any entity or
 trustee holding Common Stock for or pursuant to the terms of any such plan or
 for the purpose of funding any such plan or funding other employee benefits
 for employees of the Company or of any Subsidiary of the Company.

 
	
  

 	
  

 	
  

 
	
  

 	
 (j)

 	
 “Grandfathered
 Stockholder” means any Person that would otherwise be deemed an
 “Acquiring Person” upon the adoption of this Agreement; provided, however,
 that any Grandfathered Stockholder shall not be deemed an “Acquiring Person”
 for purposes of this Agreement only for so long as neither it nor any of its
 Affiliates or Associates acquire beneficial ownership of any additional
 shares of outstanding Common Stock after adoption of this Agreement (other
 than pursuant to a dividend or distribution paid or made by the Company on
 the outstanding Common Stock or pursuant to a split or subdivision of the
 outstanding Common Stock), and in the event that any Grandfathered
 Stockholder (or its Affiliates or Associates) does so acquire beneficial
 ownership of additional shares of outstanding Common Stock, then such Person
 shall no longer be deemed a Grandfathered Stockholder and shall be deemed an
 “Acquiring Person.”

 
	
  

 	
  

 	
  

 
	
  

 	
 (k)

 	
 “Nasdaq”
 means The Nasdaq Stock Market’s Global Select Market or Global Market, as
 applicable.

 
	
  

 	
  

 	
  

 
	
  

 	
 (l)

 	
 “NYSE”
 means the New York Stock Exchange, Inc.

 


6







	
  

 	
  

 	
  

 
	
  

 	
 (m)

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

 
	
  

 	
  

 	
  

 
	
  

 	
 (n)

 	
 “Preferred
 Stock” means the Series A Preferred Stock, par value $0.00001 per
 share, of the Company having the rights and preferences set forth in the
 Certificate of Designations attached to this Agreement as Exhibit A and,
 to the extent that there are not a sufficient number of shares of Preferred
 Stock authorized to permit the full exercise of the Rights, any other series
 of preferred stock of the Company designated for such purpose containing
 terms substantially similar to the terms of the Preferred Stock.

 
	
  

 	
  

 	
  

 
	
  

 	
 (o)

 	
 “Securities
 Act” means the Securities Act of 1933, as amended and in effect on
 the date of this Agreement.

 
	
  

 	
  

 	
  

 
	
  

 	
 (p)

 	
 “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) or 13(g) of the Exchange Act) by the
 Company or an Acquiring Person that an Acquiring Person has become such or
 such earlier date as a majority of the Board shall become aware of the
 existence of an Acquiring Person.

 
	
  

 	
  

 	
  

 
	
  

 	
 (q)

 	
 “Subsidiary”
 of any Person shall mean any corporation or other entity of which securities
 or other ownership interests having ordinary voting power sufficient to elect
 a majority of the board of directors or other persons performing similar
 functions are beneficially owned, directly or indirectly, by such Person, and
 any corporation or other entity that is otherwise controlled by such Person.

 
	
  

 	
  

 	
  

 
	
  

 	
 (r)

 	
 “Trading
 Day” means a day on which the principal national securities
 exchange on which the security is listed or admitted to trading is open for
 the transaction of business or, if the security is not listed or admitted to
 trading on any national securities exchange, a Business Day.

 






	
  

 	
  

 
	
 2.

 	
 Appointment
 of Rights Agent. The Company hereby appoints the
 Rights Agent to act as agent for the Company in accordance with the terms and
 conditions hereof, and the Rights Agent hereby accepts such appointment. The
 Company may from time to time appoint such co-Rights Agents as it may deem
 necessary or desirable upon ten (10) days’ prior notice to the Rights Agent.
 The Rights Agent shall have no duty to supervise, and shall in no event be
 liable for the acts or omissions of any such co-Rights Agent.

 
	
  

 	
  

 
	
 3.

 	
 Issuance of
 Right Certificates. 

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Until the
 Distribution Date, (x) the Rights will be evidenced (subject to the
 provisions of Section 3(b) hereof) by the certificates for Common Stock
 registered in the names of the holders thereof and not by separate Right
 Certificates (as defined below), and (y) the Rights will be transferable
 only in connection with the transfer of Common Stock. As soon as practicable
 after the Distribution Date, the Company will prepare and execute, the Rights
 Agent will countersign, and the Company will send or cause to be sent (and
 the Rights Agent will, if requested, send) by first-class, insured,
 postage-prepaid mail, to each record holder of Common Stock as of the close
 of business on the Distribution Date, other than any Acquiring Person or any
 Associate or Affiliate of an Acquiring Person, at the address of such holder
 shown on the records of the Company, a Right Certificate, in substantially
 the form of Exhibit B hereto (the “Right Certificate”),
 evidencing one Right (subject to adjustment as provided herein) for each
 share of Common Stock so held. As of and after the Distribution Date, the
 Rights will be evidenced solely by such Right Certificates.

 


7








	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 As promptly
 as practicable following the Record Date, the Company will send a copy of a
 Summary of Rights to Purchase Shares of Preferred Stock, in substantially the
 form of Exhibit C hereto (the “Summary of Rights”), by
 first-class mail, to each record holder of Common Stock as of the close of
 business on the Record Date, other than any Acquiring Person or any Associate
 or Affiliate of any Acquiring Person, at the address of such holder shown on
 the records of the Company; provided, however, the Company will
 send a copy of the Summary of Rights by first-class, postage-prepaid mail to
 each record holder who so requests upon receipt of the electronic mail. With
 respect to shares of Common Stock outstanding as of the Record Date, until
 the Distribution Date, the Rights associated with such shares will be
 evidenced by the share certificate for such shares of Common Stock registered
 in the names of the holders thereof together with the Summary of Rights.
 Until the Distribution Date (or, if earlier, the Expiration Date), the
 surrender for transfer of any certificate for Common Stock outstanding on the
 Record Date, with or without a copy of the Summary of Rights, shall also constitute
 the transfer of the Rights associated with the Common Stock represented
 thereby.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 Rights shall
 be issued in respect of all shares of Common Stock issued or disposed of
 (including, without limitation, upon disposition of Common Stock out of
 treasury stock or issuance or reissuance of Common Stock out of authorized
 but unissued shares) after the Record Date but prior to the earlier of the
 Distribution Date and the Expiration Date, or in certain circumstances
 provided in Section 22 hereof, after the Distribution Date.
 Certificates issued for Common Stock (including, without limitation, upon
 transfer of outstanding Common Stock, disposition of Common Stock out of
 treasury stock or issuance or reissuance of Common Stock out of authorized
 but unissued shares) after the Record Date but prior to the earlier of the
 Distribution Date and the Expiration Date shall have impressed on, printed
 on, written on or otherwise affixed to them the following legend:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 “This
 certificate also evidences and entitles the holder hereof to certain rights
 as set forth in a Rights Agreement between U.S. Precious Metals, Inc. and
 Interwest Transfer Company, Inc., as Rights Agent, dated as of March 17,
 2009, as the same may be amended, supplemented or otherwise modified from
 time to time (the “Rights Agreement”), the terms of which
 are hereby incorporated herein by reference and a copy of which is on file at
 the principal executive offices of U.S. Precious Metals, Inc. Under certain
 circumstances, as set forth in the Rights Agreement, such Rights will be
 evidenced by separate certificates and will no longer be evidenced by this
 certificate. U.S. Precious Metals, Inc. will mail to the holder of this
 certificate a copy of the Rights Agreement without charge after receipt of a
 written request therefor. Under certain circumstances, as set forth in the
 Rights Agreement, Rights owned by or transferred to any Person who is or
 becomes an Acquiring Person (as defined in the Rights Agreement) and certain
 transferees thereof will become null and void and will no longer be
 transferable.”

 


8








	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 With respect
 to such certificates containing the foregoing legend, until the Distribution
 Date, the Rights associated with the Common Stock represented by such
 certificates shall be evidenced by such certificates alone, and the surrender
 for transfer of any such certificate, except as otherwise provided herein,
 shall also constitute the transfer of the Rights associated with the Common
 Stock represented thereby. In the event that the Company purchases or
 otherwise acquires any Common Stock after the Record Date but prior to the
 Distribution Date, any Rights associated with such Common Stock shall be
 deemed cancelled and retired so that the Company shall not be entitled to
 exercise any Rights associated with the shares of Common Stock which are no
 longer outstanding. Notwithstanding Sections 3(c) and (d), the omission of a
 legend shall not affect the enforceability of any part of this Agreement or
 the rights of any holder of the Rights.

 






	
  

 	
  

 	
  

 	
  

 
	
 4.

 	
 Form of
 Right Certificates. The Right Certificates (and the
 forms of election to purchase shares and of assignment to be printed on the
 reverse thereof) shall be substantially in the form set forth in Exhibit B hereto
 and may have such marks of identification or designation and such legends,
 summaries or endorsements printed thereon as the Company may deem appropriate
 and as are not inconsistent with the provisions of this Agreement, or as may
 be required to comply with any applicable law or with any rule or regulation
 made pursuant thereto or with any rule or regulation of the NYSE or of any
 other stock exchange or automated quotation system on which the Rights may
 from time to time be listed, or to conform to usage. Subject to the
 provisions of Sections 11 and 22 hereof, the Right Certificates shall
 entitle the holders thereof to purchase such number of one one-thousandths of
 a share of Preferred Stock as shall be set forth therein at the Purchase
 Price (as determined pursuant to Section 7), 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.

 
	
  

 	
  

 	
  

 	
  

 
	
 5.

 	
 Countersignature
 and Registration. 

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (a)

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

 


9







	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Following
 the Distribution Date, the Rights Agent will keep or cause to be kept, at an
 office or agency designated for such purpose, books for registration and
 transfer of the Right Certificates issued hereunder. Such books shall show
 the names and addresses of the respective holders of the Right Certificates,
 the number of Rights evidenced on its face by each of the Right Certificates
 and the date of each of the Right Certificates. 

 
	
  

 	
  

 	
  

 	
  

 
	
 6.

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

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Subject to
 the provisions of this Agreement, at any time after the close of business on
 the Distribution Date, and prior to the close of business on the Expiration
 Date, any Right Certificate or Right Certificates may be transferred, split
 up, combined or exchanged for another Right Certificate or Right
 Certificates, entitling the registered holder to purchase a like number of
 one one-thousandths of a share of Preferred Stock (or, following such time,
 other securities, cash or assets as the case may be) as the Right Certificate
 or Right Certificates surrendered then entitled such holder to purchase. Any
 registered holder desiring to transfer, split up, combine or exchange any
 Right Certificate or Right Certificates shall make such request in writing
 delivered to the Rights Agent, and shall surrender the Right Certificate or
 Right Certificates to be transferred, split up, combined or exchanged at the
 office or agency of the Rights Agent designated for such purpose. Thereupon
 the Rights Agent, subject to the provisions of this Agreement, shall
 countersign and deliver to the Person entitled thereto a Right Certificate or
 Right Certificates, as the case may be, as so requested. The Company may
 require payment of a sum sufficient to cover any tax or governmental charge
 that may be imposed in connection with any transfer, split up, combination or
 exchange of Right Certificates.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Subject to
 the provisions of this Agreement, at any time after the Distribution Date and
 prior to the Expiration Date, upon receipt by the Company and the Rights
 Agent of evidence reasonably satisfactory to them of the loss, theft,
 destruction or mutilation of a Right Certificate, and, in case of loss, theft
 or destruction, of indemnity or security reasonably satisfactory to them
 (which may include the posting of a lost instrument bond in an amount
 sufficient to indemnify both the Company and the Rights Agent), and, at the
 Company’s request, reimbursement to the Company and the Rights Agent of all
 reasonable expenses incidental thereto, and upon surrender to the Rights
 Agent and cancellation of the Right Certificate if mutilated, the Company
 will make and deliver a new Right Certificate of like tenor to the Rights
 Agent for delivery to the registered holder in lieu of the Right Certificate
 so lost, stolen, destroyed or mutilated.

 


10








	
  

 	
  

 	
  

 	
  

 
	
 7.

 	
 Exercise of
 Rights, Purchase Price; Expiration Date of Rights.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Except as
 otherwise provided herein, the Rights shall become exercisable on the
 Distribution Date, and thereafter the registered holder of any Right
 Certificate may, subject to Section 11(a)(ii) hereof and except
 as otherwise provided herein, exercise the Rights evidenced thereby in whole
 or in part upon surrender of the Right Certificate, with the form of election
 to purchase on the reverse side thereof duly executed, to the Rights Agent at
 the office or agency of the Rights Agent designated for such purpose,
 together with payment of the Purchase Price for each one one-thousandth of a
 share of Preferred Stock (or other securities, cash or assets, as the case
 may be) as to which the Rights are exercised, at any time which is both after
 the Distribution Date and prior to the time (the “Expiration Date”) that is
 the earliest of (i) the close of business on March 17, 2010 (the “Final
 Expiration Date”), (ii) the time at which the Rights are
 redeemed as provided in Section 23 hereof (the “Redemption
 Date”) or (iii) the time at which such Rights are exchanged
 as provided in Section 24 hereof.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 The purchase
 price (the “Purchase Price”) shall be initially $10.00 for each one
 one-thousandth of a share of Preferred Stock purchasable upon the exercise of
 a Right. The Purchase Price and the number of one one-thousandths of a share
 of Preferred Stock or other securities or property to be acquired upon
 exercise of a Right shall be subject to adjustment from time to time as
 provided in Sections 11 and 13 hereof and shall be payable in lawful
 money of the United States of America in accordance with Section 7(c).

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 Except as
 otherwise provided herein, upon receipt of a Right Certificate representing
 exercisable Rights, with the form of election to purchase duly executed,
 accompanied by payment of the aggregate Purchase Price for the number of
 shares of Preferred Stock to be purchased and an amount equal to any
 applicable transfer tax required to be paid by the holder of such Right
 Certificate in accordance with Section 6 hereof, in cash or by
 certified check, cashier’s check or money order payable to the order of the
 Company, the Rights Agent shall thereupon promptly:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (i)

 	
 (A)
 requisition from any transfer agent of the Preferred Stock or make available
 if the Rights Agent is the transfer agent for the Preferred Stock
 certificates for the number of shares of Preferred Stock to be purchased (and
 the Company hereby irrevocably authorizes its transfer agent to comply with
 all such requests), or (B) requisition from the depositary agent
 appointed by the Company depositary receipts representing interests in such
 number of one one-thousandths of a share of Preferred Stock as are to be
 purchased, in which case certificates for the Preferred Stock represented by
 such receipts shall be deposited by the transfer agent with the depositary
 agent (and the Company hereby directs the depositary agent to comply with
 such request);

 


11








	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (ii)

 	
 when
 appropriate, requisition from the Company the amount of cash to be paid in
 lieu of issuance of fractional shares in accordance with Section 14 hereof;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (iii)

 	
 promptly
 after receipt of such certificates or depositary receipts, cause the same to
 be delivered to or upon the order of the registered holder of such Right
 Certificate, registered in such name or names as may be designated by such
 holder; and

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (iv)

 	
 when
 appropriate, after receipt, promptly deliver such cash to or upon the order
 of the registered holder of such Right Certificate.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 Except as
 otherwise provided herein, in case the registered holder of any Right
 Certificate shall exercise less than all the Rights evidenced thereby, a new
 Right Certificate evidencing Rights equivalent to the exercisable Rights
 remaining unexercised shall be issued by the Rights Agent to the registered
 holder of such Right Certificate or to his duly authorized assigns, subject
 to the provisions of Section 14 hereof.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 Notwithstanding
 anything in this Agreement to the contrary, neither the Rights Agent nor the
 Company shall be obligated to undertake any action with respect to a
 registered holder of Rights upon the occurrence of any purported transfer or
 exercise of Rights pursuant to Section 6 hereof or this Section 7
 unless such registered holder shall have (i) completed and signed the
 certificate contained in the form of assignment or election to purchase set
 forth on the reverse side of the Right Certificate surrendered for such
 transfer or exercise and (ii) provided such additional evidence of the
 identity of the Beneficial Owner (or former Beneficial Owner) thereof as the
 Company shall reasonably request.

 
	
  

 	
  

 	
  

 	
  

 
	
 8.

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

 
	
  

 	
  

 	
  

 	
  

 
	
 9.

 	
 Availability
 of Shares of Preferred Stock. 

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 The Company
 covenants and agrees that it will cause to be reserved and kept available out
 of its authorized and unissued shares of Preferred Stock or any shares of
 Preferred Stock held in its treasury, the number of shares of Preferred Stock
 that will be sufficient to permit the exercise in full of all outstanding
 Rights.

 


12








	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 So long as
 the shares of Preferred Stock (and, following the time that a Person becomes
 an Acquiring Person, shares of Common Stock and other securities) issuable
 upon the exercise of Rights may be listed or admitted to trading on the NYSE
 or listed on any other national securities exchange or quotation system, 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
 or admitted to trading on the NYSE or listed on any other exchange or
 quotation system upon official notice of issuance upon such exercise.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 From and
 after such time as the Rights become exercisable, the Company shall use its
 best efforts, if then necessary to permit the issuance of shares of Preferred
 Stock (and following the time that a Person first becomes an Acquiring
 Person, shares of Common Stock and other securities) upon the exercise of
 Rights, to register and qualify such shares of Preferred Stock (and following
 the time that a Person first becomes an Acquiring Person, shares of Common
 Stock and other securities) under the Securities Act and any applicable state
 securities or “Blue Sky” laws (to the extent exemptions therefrom are not
 available), cause such registration statement and qualifications to become
 effective as soon as possible after such filing and keep such registration
 and qualifications effective until the earlier of (x) the date as of
 which the Rights are no longer exercisable for such securities and (y) the
 Expiration Date. The Company may temporarily suspend, for a period of time
 not to exceed ninety (90) days, the exercisability of the Rights in
 order to prepare and file a registration statement under the Securities Act
 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. Notwithstanding any provision
 of this Agreement to the contrary, the Rights shall not be exercisable in any
 jurisdiction unless the requisite qualification or exemption in such
 jurisdiction shall have been obtained and until a registration statement
 under the Securities Act (if required) shall have been declared effective.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (d)

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

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (e)

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

 


13








	
  

 	
  

 	
  

 	
  

 
	
 10.

 	
 Preferred
 Stock Record Date. Each Person in whose name any
 certificate for Preferred Stock is issued upon the exercise of Rights shall
 for all purposes be deemed to have become the holder of record of the shares
 of Preferred Stock represented thereby on, and such certificate shall be
 dated, the date upon which the Right Certificate evidencing such Rights was
 duly surrendered and payment of the Purchase Price (and any applicable
 transfer taxes or charges) was made; provided, however, that if
 the date of such surrender and payment is a date upon which the Preferred
 Stock transfer books of the Company are closed, such Person shall be deemed
 to have become the record holder of such shares on, and such certificate
 shall be dated, the next succeeding Business Day on which such transfer books
 are open. Prior to the exercise of the Rights evidenced thereby, the holder
 of a Right Certificate shall not be entitled to any rights of a holder of
 Preferred Stock for which the Rights shall be exercisable, including, without
 limitation, the right to vote or to receive dividends or other distributions,
 and shall not be entitled to receive any notice of any proceedings of the
 Company, except as provided herein.

 
	
  

 	
  

 	
  

 	
  

 
	
 11.

 	
 Adjustment
 of Purchase Price, Number and Kind of Shares and Number of Rights.
 The Purchase Price, the number of shares of Preferred Stock or other
 securities or property purchasable upon exercise of each Right and the number
 of Rights outstanding are subject to adjustment from time to time as provided
 in this Section 11.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 (i) In the
 event the Company shall at any time after the date of this Agreement (A)
 declare a dividend on the Preferred Stock payable in shares of Preferred
 Stock, (B) subdivide the outstanding shares of Preferred Stock,
 (C) combine the outstanding shares of Preferred Stock into a smaller
 number of shares of Preferred Stock or (D) issue any shares of its
 capital stock in a reclassification of the shares of Preferred Stock
 (including any such reclassification in connection with a consolidation or
 merger in which the Company is the continuing or surviving corporation),
 except as otherwise provided in this Section 11(a), 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, as the case may
 be, and the number and kind of shares of capital stock issuable on such date,
 shall be proportionately adjusted so that the holder of any Right exercised
 after such time shall be entitled to receive the aggregate number and kind of
 shares of capital stock which, if such Right had been exercised immediately
 prior to such date and at a time when the Preferred Stock transfer books of
 the Company were open, the holder would have owned upon such exercise and
 been entitled to receive by virtue of such dividend, subdivision, combination
 or reclassification; provided, however, that in no event shall
 the consideration to be paid upon the exercise of one Right be less than the
 aggregate par value of the shares of capital stock of the Company issuable
 upon exercise of one Right.

 


14








	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (ii)

 	
 Subject to Section 24
 of this Agreement and except as otherwise provided in this Section 11(a)(ii)
 and Section 11(a)(iii),
 in the event that any Person becomes an Acquiring Person, each holder of a
 Right shall thereafter have the right to receive, upon exercise thereof at a
 price equal to the then-current Purchase Price, in accordance with the terms
 of this Rights Agreement and in lieu of shares of Preferred Stock, such
 number of shares of Common Stock (or at the option of the Company, such
 number of one one-thousandths of a share of Preferred Stock) as shall equal
 the quotient obtained by dividing (A) the product obtained by multiplying
 (1) the then-current Purchase Price and (2) the number of one
 one-thousandths of a share of Preferred Stock for which a Right is then
 exercisable by (B) fifty percent (50%) of the then-current per share
 market price of the Common Stock (determined pursuant to Section 11(d) hereof) on
 the date of the occurrence of such event; provided, however,
 that the Purchase Price (as so adjusted) and the number of shares of Common
 Stock so receivable upon exercise of a Right shall thereafter be subject to
 further adjustment as appropriate in accordance with Section 11(f) hereof.
 Notwithstanding anything in this Agreement to the contrary, however, from and
 after the time (the “invalidation time”) when any Person first
 becomes an Acquiring Person, any Rights that are beneficially owned by
 (x) any Acquiring Person (or any Affiliate or Associate of any Acquiring
 Person), (y) a transferee of any Acquiring Person (or any Affiliate or
 Associate of any Acquiring Person) who becomes a transferee after the
 invalidation time or (z) a transferee of any Acquiring Person (or any
 Affiliate or Associate of any Acquiring Person) who became a transferee prior
 to or concurrently with the invalidation time pursuant to either (I) a
 transfer from the Acquiring Person to holders of its equity securities or to
 any Person with whom it has any continuing agreement, arrangement or
 understanding, written or otherwise, regarding the transferred Rights or
 (II) a transfer that the Board has determined is part of a plan,
 arrangement or understanding, written or otherwise, which has the purpose or
 effect of avoiding the provisions of this Section 11(a)(ii), and
 subsequent transferees of such Persons, shall be void without any further
 action and any holder of such Rights shall thereafter have no rights
 whatsoever with respect to such Rights under any provision of this Agreement.
 The Company shall use all reasonable efforts to ensure that the provisions of
 this Section 11(a)(ii)
 are complied with, but shall have no liability to any holder of Right
 Certificates or other Person as a result of its failure to make any
 determinations with respect to an Acquiring Person or its Affiliates,
 Associates or transferees hereunder. From and after the invalidation time, no
 Right Certificate shall be issued pursuant to Section 3 or Section 6
 hereof that represents Rights that are or have become void pursuant to the
 provisions of this Section 11(a)(ii), and any Right
 Certificate delivered to the Rights Agent that represents Rights that are or
 have become void pursuant to the provisions of this Section 11(a)(ii) shall
 be cancelled. From and after the occurrence of an event specified in Section
 13(a) hereof, any Rights that theretofore have not been exercised
 pursuant to this Section 11(a)(ii) shall thereafter
 be exercisable only in accordance with Section 13 and not pursuant to this Section 11(a)(ii).

 


15








	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (iii)

 	
 The Company
 may at its option substitute for a share of Common Stock issuable upon the
 exercise of Rights in accordance with Section 11(a)(ii) such number
 or fractions of shares of Preferred Stock having an aggregate current market
 value equal to the current per share market price of a share of Common Stock.
 In the event that there shall be an insufficient number of Common Stock
 authorized but unissued (and unreserved) to permit the exercise in full of
 the Rights in accordance with Section 11(a)(ii), the Board shall,
 with respect to such deficiency, to the extent permitted by applicable law
 and any material agreements then in effect to which the Company is a party
 (A) determine the excess of (x) the value of the shares of Common
 Stock issuable upon the exercise of a Right in accordance with Section 11(a)(ii)
 (the “Current
 Value”) over (y) the then-current Purchase Price multiplied
 by the number of one one-thousandths of shares of Preferred Stock for which a
 Right was exercisable immediately prior to the time that the Acquiring Person
 became such (such excess, the “Spread”), and (B) with respect to
 each Right (other than Rights which have become void pursuant to Section 11(a)(ii)),
 make adequate provision to substitute for the shares of Common Stock issuable
 in accordance with Section 11(a)(ii) upon exercise
 of the Right and payment of the applicable Purchase Price, (1) cash,
 (2) a reduction in such Purchase Price, (3) shares of Preferred
 Stock or other equity securities of the Company (including, without
 limitation, shares or fractions of shares of preferred stock which, by virtue
 of having dividend, voting and liquidation rights substantially comparable to
 those of the shares of Common Stock, are deemed in good faith by the Board to
 have substantially the same value as the shares of Common Stock (such shares
 of preferred stock and shares or fractions of shares of preferred stock are
 hereinafter referred to as “Common Stock equivalents”), (4) debt
 securities of the Company, (5) other assets or (6) any combination
 of the foregoing, having a value which, when added to the value of the shares
 of Common Stock actually issued upon exercise of such Right, shall have an
 aggregate value equal to the Current Value (less the amount of any reduction
 in such Purchase Price), where such aggregate value has been determined by
 the Board upon the advice of a nationally recognized investment banking firm
 selected in good faith by the Board; provided, however, if the
 Company shall not make adequate provision to deliver value pursuant to clause
 (B) above within thirty (30) days following the date that the
 Acquiring Person became such (the “Section 11(a)(ii) Trigger Date”),
 then the Company shall be obligated to deliver, to the extent permitted by
 applicable law and any material agreements then in effect to which the
 Company is a party, 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, such number or fractions of shares
 of Preferred Stock (to the extent available) and then, if necessary, cash,
 which shares and/or cash have an aggregate value equal to the Spread. 

 



16






	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 If within
 the thirty (30)-day period referred to above 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,
 then, if the Board so elects, such thirty (30) day period may be
 extended to the extent necessary, but not more than ninety (90) days
 after the Section 11(a)(ii) Trigger Date, in order that the Company may
 seek stockholder approval for the authorization of such additional shares
 (such thirty (30)-day period, as it may be extended, is hereinafter called the
 “Substitution
 Period”). To the extent that the Company determines that some
 action need be taken pursuant to the second and/or third sentence of this Section 11(a)(iii),
 the Company (x) shall provide, subject to Section 11(a)(ii) hereof
 and the last sentence of this Section 11(a)(iii) 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 second sentence and to determine the value thereof. In the event of any
 such suspension, the Company shall issue a public announcement stating that
 the exercisability of the Rights has been temporarily suspended, as well as a
 public announcement at such time as the suspension is no longer in effect.
 For purposes of this Section 11(a)(iii), the value of the
 shares of Common Stock shall be the current per share market price (as determined
 pursuant to Section 11(d)(i)) on the Section 11(a)(ii) Trigger
 Date and the per share or fractional value of any Common Stock equivalent
 shall be deemed to equal the current per share market price of the Common
 Stock. The Board may, but shall not be required to, establish procedures to
 allocate the right to receive shares of Common Stock upon the exercise of the
 Rights among holders of Rights pursuant to this Section 11(a)(iii).

 








	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 In case the
 Company shall fix a record date for the issuance of rights, options or
 warrants to all holders of Preferred Stock entitling them (for a period
 expiring within forty-five (45) days after such record date) to subscribe for
 or purchase Preferred Stock (or shares having similar rights, privileges and preferences
 as the Preferred Stock (“equivalent preferred shares”)) or
 securities convertible into Preferred Stock or equivalent preferred shares at
 a price per share of Preferred Stock or equivalent preferred shares (or
 having a conversion price per share, if a security convertible into shares of
 Preferred Stock or equivalent preferred shares) less than the then-current
 per share market price of the Preferred Stock (determined pursuant to Section
 11(d) hereof) on such record date, the Purchase Price to be in
 effect after such record date shall be determined by multiplying (i) the
 Purchase Price in effect immediately prior to such record date by (ii) a
 fraction (A) the numerator of which shall be the number of shares of
 Preferred Stock and equivalent preferred shares outstanding on such record
 date plus the number of shares of Preferred Stock and equivalent preferred
 shares which the aggregate offering price of the total number of such shares
 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 (B) the denominator of which shall be the number of shares
 of Preferred Stock and equivalent preferred shares outstanding on such record
 date plus the number of additional shares of Preferred Stock and/or
 equivalent preferred shares to be offered for subscription or purchase (or
 into which the convertible securities so to be offered are initially
 convertible); provided, however, that in no event shall the
 consideration to be paid upon the exercise of one Right be less than the
 aggregate par value of the shares of capital stock of the Company issuable
 upon exercise of one Right. In case such subscription price may be paid in a
 consideration part or all of which shall be in a form other than cash, the
 value of such consideration shall be as determined in good faith by the
 Board, whose determination shall be described in a statement filed with the
 Rights Agent and which shall be binding on the Rights Agent. Shares of Preferred
 Stock and equivalent preferred shares 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, options 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.

 


17







	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 In case the
 Company shall fix a record date for the making of a distribution to all
 holders of the Preferred Stock (including any such distribution made in
 connection with a consolidation or merger in which the Company is the
 continuing or surviving corporation) of evidences of indebtedness or assets
 (other than a regular quarterly cash dividend or a dividend payable in
 Preferred Stock) or subscription rights or warrants (excluding those referred
 to in Section
 11(b) hereof), the Purchase Price to be in effect after such
 record date shall be determined by multiplying (i) the Purchase Price in
 effect immediately prior to such record date by (ii) a fraction (A) the
 numerator of which shall be the then-current per share market price of the
 Preferred Stock (determined pursuant to Section 11(d) hereof) on such record
 date, less the fair market value (as determined in good faith by the Board
 whose determination shall be described in a statement filed with the Rights
 Agent and shall be binding on the Rights Agent) of the portion of such assets
 or evidences of indebtedness so to be distributed or of such subscription
 rights or warrants applicable to one share of Preferred Stock, and (B) the
 denominator of which shall be such current per share market price of the
 Preferred Stock; provided, however, that in no event shall the
 consideration to be paid upon the exercise of one Right be less than the
 aggregate par value of the shares of capital stock of the Company to be
 issued upon exercise of one Right. Such adjustments shall be made
 successively whenever such a record date is fixed; and in the event that such
 distribution is not so made, the Purchase Price shall again be adjusted to be
 the Purchase Price which would then be in effect if such record date had not
 been fixed.

 


18








	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 (i) Except
 as otherwise provided herein, for the purpose of any computation hereunder,
 the “current per share market price” of any security (a “Security” for the purpose
 of this Section 11(d)(i))
 on any date shall be deemed to be the average of the daily closing prices per
 share of such Security for the thirty (30) consecutive Trading Days
 immediately prior to such date; provided, however, that in the
 event that the current per share market price of the Security is determined
 during a period following the announcement by the issuer of such Security of
 (A) a dividend or distribution on such Security payable in shares of
 such Security or securities convertible into such shares, or (B) any
 subdivision, combination or reclassification of such Security, and prior to
 the expiration of thirty (30) Trading Days 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 per
 share market price shall be appropriately adjusted to reflect the current
 market price per share equivalent of such Security. The closing price for
 each day shall be the last sale price, regular way, or, in case no such sale
 takes place on such day, the average of the closing bid and asked prices,
 regular way, in either case as reported by (w) the principal
 consolidated transaction reporting system with respect to securities listed
 or admitted to trading on the NYSE or, (x) if the Security is not listed
 or admitted to trading on the NYSE, as reported in the principal consolidated
 transaction reporting system with respect to securities listed on the
 principal national securities exchange on which the Security is listed or
 admitted to trading or, if (y) the Security is not listed or admitted to
 trading on any national securities exchange, the last quoted price or, if not
 so quoted, the average of the high bid and low asked prices in the
 over-the-counter market, as reported by Nasdaq or such other system then in
 use, or, (z) if on any such date the Security is 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 Security selected by the
 Board.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (ii)

 	
 For the
 purpose of any computation hereunder, if the Preferred Stock is publicly
 traded, the “current per share market price” of the Preferred Stock shall be
 determined in accordance with the method set forth in Section 11(d)(i). If
 the Preferred Stock is not publicly traded but the Common Stock is publicly
 traded, the “current per share market price” of the Preferred Stock shall be
 conclusively deemed to be the current per share market price of the Common
 Stock, as determined pursuant to Section 11(d)(i), multiplied by one
 thousand (appropriately adjusted to reflect any stock split, stock dividend
 or similar transaction occurring after the date hereof). If neither the
 Common Stock nor the Preferred Stock is publicly traded, “current per share
 market price” shall mean the fair value per share as determined in good faith
 by the Board, whose determination shall be described in a statement filed
 with the Rights Agent and shall be binding on the Rights Agent.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 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 not
 required to be made by reason of this Section 11(e) shall be carried forward
 and taken into account in any subsequent adjustment. All calculations under
 this Section
 11 shall be made to the nearest cent or to the nearest one
 ten-thousandth of a share of Preferred Stock or share of Common Stock or
 other share or security as the case may be. Notwithstanding the first
 sentence of this Section 11(e), any adjustment
 required by this Section 11 shall be made no later than
 the earlier of (i) three years from the date of the transaction which
 requires such adjustment or (ii) the Expiration Date.

 


19








	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (f)

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

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (g)

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

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (h)

 	
 Unless the
 Company shall have exercised its election as provided in Section 11(i), upon
 each adjustment of the Purchase Price as a result of the calculations made in
 Section
 11(b) and (c), each Right outstanding immediately
 prior to the making of such adjustment shall thereafter evidence the right to
 purchase, at the adjusted Purchase Price, that number of one one-thousandths
 of a share of Preferred Stock (calculated to the nearest one ten-thousandth
 of a share of Preferred Stock) equal to the quotient obtained by dividing (A)
 the product obtained by multiplying (1) the number of one
 one-thousandths of a share of Preferred Stock purchasable upon the exercise
 of a Right immediately prior to such adjustment by (2) the Purchase
 Price in effect immediately prior to such adjustment of the Purchase Price by
 (B) 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 pursuant
 to Sections
 11(b) or 11(c) hereof to adjust the number of
 Rights, in substitution for any adjustment in the number of one
 one-thousandths of a share of Preferred Stock purchasable upon the exercise
 of a Right. Each of the Rights outstanding after such adjustment of the
 number of Rights shall be exercisable for the number of one one-thousandths
 of a share of Preferred Stock for which a Right was exercisable immediately
 prior to such adjustment. Each Right held of record prior to such adjustment
 of the number of Rights shall become that number of Rights (calculated to the
 nearest one ten-thousandth) equal to the quotient obtained by dividing (A)
 the Purchase Price in effect immediately prior to adjustment of the Purchase
 Price by (B) 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 Right Certificates have been
 issued, shall be at least ten (10) days later than the date of the
 public announcement. If Right Certificates have been issued, upon each
 adjustment of the number of Rights pursuant to this Section 11(i), the
 Company may, as promptly as practicable, cause to be distributed to holders
 of record of Right Certificates on such record date Right Certificates
 evidencing, subject to Section 14 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 Right Certificates held by
 such holders prior to the date of adjustment, and upon surrender thereof, if
 required by the Company, new Right Certificates evidencing all the Rights to
 which such holders shall be entitled as a result of such adjustment. Right
 Certificates so to be distributed shall be issued, executed and countersigned
 in the manner provided for herein and shall be registered in the names of the
 holders of record of Right Certificates on the record date specified in the
 public announcement.

 


20








	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (j)

 	
 Irrespective
 of any adjustment or change in the Purchase Price or the number of one
 one-thousandths of a share of Preferred Stock issuable upon the exercise of
 the Rights, the Right Certificates theretofore and thereafter issued may
 continue to express the Purchase Price and the number of one one-thousandths
 of a share of Preferred Stock which were expressed in the initial Right
 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 Preferred Stock or other
 shares of capital stock issuable upon exercise of the Rights, the Company
 shall take any corporate action which may, in the opinion of its counsel, be
 necessary in order that the Company may validly and legally issue fully paid
 and nonassessable shares of Preferred Stock or other such shares at such
 adjusted Purchase Price.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (l)

 	
 In any case
 in which this Section 11 shall require that an adjustment in the
 Purchase Price be made effective as of a record date for a specified event,
 the Company may elect to defer until the occurrence of such event the issuing
 to the holder of any Right exercised after such record date the Preferred
 Stock, Common Stock or other capital stock or securities of the Company, if
 any, issuable upon such exercise over and above the Preferred Stock, Common
 Stock or 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 upon the occurrence of the
 event requiring such adjustment.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (m)

 	
 Notwithstanding
 anything in this Section 11 to the contrary, the
 Company shall be entitled to make such adjustments in the Purchase Price, in
 addition to those adjustments expressly required by this Section 11, as and to
 the extent that it in its sole discretion shall determine to be advisable in
 order that any consolidation or subdivision of the Preferred Stock, issuance
 (wholly for cash) of any shares of Preferred Stock at less than the current
 market price, issuance (wholly for cash) of Preferred Stock or securities
 which by their terms are convertible into or exchangeable for Preferred
 Stock, dividends on Preferred Stock payable in shares of Preferred Stock or
 issuance of rights, options or warrants referred to hereinabove in Section 11(b),
 hereafter made by the Company to holders of its Preferred Stock shall not be
 taxable to such stockholders.

 


21








	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (n)

 	
 Notwithstanding
 anything in this Agreement to the contrary, in the event that at any time
 after the date of this Agreement and prior to the Distribution Date, the
 Company shall (i) declare or pay any dividend on the Common Stock
 payable in Common Stock or (ii) effect a subdivision, combination or
 consolidation of the Common Stock (by reclassification or otherwise than by
 payment of a dividend payable in Common Stock) into a greater or lesser
 number of shares of Common Stock, then in any such case, the number of Rights
 associated with each share of Common Stock then outstanding, or issued or
 delivered thereafter, 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 product obtained by multiplying (A) the number of
 Rights associated with each share of Common Stock immediately prior to such
 event by (B) a fraction (1) the numerator of which shall be the total number
 of shares of Common Stock outstanding immediately prior to the occurrence of
 the event and (2) the denominator of which shall be the total number of
 shares of Common Stock outstanding immediately following the occurrence of
 such event.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (o)

 	
 The Company
 agrees that, after the earlier of the Distribution Date or the Stock
 Acquisition Date, it will not, except as permitted by Sections 23, 24
 or 27
 hereof, take (or permit any Subsidiary to take) any action if at the time
 such action is taken it is reasonably foreseeable that such action will
 diminish substantially or eliminate the benefits intended to be afforded by
 the Rights.

 
	
  

 	
  

 	
  

 	
  

 
	
 12.

 	
 Certificate
 of Adjusted Purchase Price or Number of Shares.
 Whenever an adjustment is made as provided in Section 11 or 13
 hereof, the Company shall promptly (a) prepare a certificate setting
 forth such adjustment, and a brief statement of the facts accounting for such
 adjustment, (b) file with the Rights Agent and with each transfer agent
 for the Common Stock or the Preferred Stock a copy of such certificate and
 (c) mail a brief summary thereof to each holder of a Right Certificate
 in accordance with Section 25 hereof (if so required
 under Section 25
 hereof). The Rights Agent 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.

 


22






	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
 13.

 	
 Consolidation,
 Merger or Sale or Transfer of Assets or Earnings Power.
 

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 In the
 event, directly or indirectly, at any time after any Person has become an
 Acquiring Person, (i) the Company shall merge with and into any other
 Person (other than one or more of its wholly-owned Subsidiaries),
 (ii) any Person (other than one or more of its wholly-owned
 Subsidiaries), shall consolidate with the Company, or any Person (other than
 one or more of its wholly-owned Subsidiaries), shall merge with and into the
 Company and the Company shall be the continuing or surviving corporation of
 such merger and, in connection with such merger, all or part of the Common
 Stock shall be changed into or exchanged for stock or other securities of any
 other Person (or of the Company) or cash or any other property, or
 (iii) the Company shall sell or otherwise transfer (or one or more of
 its Subsidiaries shall sell or otherwise transfer), in one or more
 transactions, assets or earning power aggregating to fifty percent (50%) or
 more of the assets or earning power of the Company and its Subsidiaries
 (taken as a whole) to any other Person (other than the Company or one or more
 of its wholly-owned Subsidiaries), then, and in each such case, proper
 provision shall be made so that:

 








	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (i)

 	
 each holder
 of record of a Right (other than Rights which have become void pursuant to Section 11(a)(ii))
 shall thereafter have the right to receive, upon the exercise thereof at a
 price equal to the then-current Purchase Price multiplied by the number of
 one one-thousandths of a share of Preferred Stock for which a Right was
 exercisable (whether or not such Right was then exercisable) immediately
 prior to the time that any Person first became an Acquiring Person (each as
 subsequently adjusted thereafter pursuant to Section 11(a)(i), 11(b),
 11(c),
 11(f),
 11(h),
 11(i)
 and 11(m)),
 in accordance with the terms of this Agreement and in lieu of Preferred
 Stock, such number of validly issued, fully paid and non-assessable and
 freely tradeable shares of Common Stock of the Principal Party (as defined
 below) not subject to any liens, encumbrances, rights of first refusal or
 other adverse claims, as shall be equal the quotient obtained by dividing (A)
 the product obtained by multiplying (1) the then-current Purchase Price by
 (2) the number of one one-thousandths of a share of Preferred Stock for which
 a Right was exercisable immediately prior to the time that any Person first
 became an Acquiring Person (as subsequently adjusted thereafter pursuant to Section 11(a)(i),
 11(b),
 11(c),
 11(f),
 11(h),
 11(i)
 and 11(m))
 by (B) fifty percent (50%) of the then-current per share market price of the
 Common Stock of such Principal Party (determined pursuant to Section 11(d)(i)
 hereof) on the date of consummation of such consolidation, merger, sale or
 transfer; provided that the Purchase Price and the number of shares of
 Common Stock of such Principal Party issuable upon exercise of each Right
 shall be further adjusted as provided in Section 11(f) of this Agreement to
 reflect any events occurring in respect of such Principal Party after the
 date of such consolidation, merger, sale or transfer;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (ii)

 	
 such
 Principal Party shall thereafter be liable for, and shall assume, by virtue
 of such consolidation, merger, sale or transfer, all the obligations and
 duties of the Company pursuant to this Agreement;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (iii)

 	
 the term “Company”
 as used herein shall thereafter be deemed to refer to such Principal Party;
 and

 


23








	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (iv)

 	
 such
 Principal Party shall take such steps (including, but not limited to, the
 reservation of a sufficient number of its shares of its Common Stock) in
 connection with such 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 the shares of its Common Stock
 thereafter deliverable upon the exercise of the Rights; provided that,
 upon the subsequent occurrence of any consolidation, merger, sale or transfer
 of assets or other extraordinary transaction in respect of such Principal
 Party, each holder of a Right shall thereupon be entitled to receive, upon
 exercise of a Right and payment of the Purchase Price as provided in this Section
 13(a), such cash, shares, rights, warrants and other property
 which such holder would have been entitled to receive had such holder, at the
 time of such transaction, owned the Common Stock of the Principal Party
 receivable upon the exercise of a Right pursuant to this Section 13(a), and
 such Principal Party shall take such steps (including, but not limited to,
 reservation of shares of stock) as may be necessary to permit the subsequent
 exercise of the Rights in accordance with the terms hereof for such cash,
 shares, rights, warrants and other property.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 “Principal
 Party” shall mean:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (i)

 	
 in the case
 of any transaction described in clauses (i) or (ii) of the first
 sentence of Section 13(a) hereof: (A) the Person that is the issuer
 of the securities into which the shares of Common Stock are converted in such
 merger or consolidation, or, if there is more than one such issuer, the
 issuer of the shares of Common Stock of which have the greatest aggregate
 market value of shares outstanding, or (B) if no securities are so
 issued, (x) the Person that is the other party to the merger, if such
 Person survives said merger, or, if there is more than one such Person, the
 Person the shares of Common Stock of which have the greatest aggregate market
 value of shares outstanding or (y) if the Person that is the other party
 to the merger does not survive the merger, the Person that does survive the
 merger (including the Company if it survives) or (z) the Person
 resulting from the consolidation; and

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (ii)

 	
 in the case
 of any transaction described in clause (iii) of the first sentence in Section
 13(a) hereof, the Person that is the party receiving the greatest
 portion of the assets or earning power transferred pursuant to such
 transaction or transactions, or, if each Person that is a party to such transaction
 or transactions receives the same portion of the assets or earning power so
 transferred or if the Person receiving the greatest portion of the assets or
 earning power cannot be determined, whichever of such Persons is the issuer
 of Common Stock having the greatest aggregate market value of shares
 outstanding; provided, however, that in any such case described
 in the foregoing clause (b)(i) or (b)(ii), if the Common Stock of such Person
 is not at such time or has not been continuously over the preceding twelve
 (12)-month period registered under Section 12 of the Exchange Act, then
 (1) if such Person is a direct or indirect Subsidiary of another Person
 the Common Stock of which is and has been so registered, the term “Principal
 Party” shall refer to such other Person, or (2) if such Person is a
 Subsidiary, directly or indirectly, of more than one Person, and the Common
 Stock of all of such persons have been so registered, the term “Principal
 Party” shall refer to whichever of such Persons is the issuer of
 Common Stock having the greatest aggregate market value of shares
 outstanding, or (3) if such Person is owned, directly or indirectly, by
 a joint venture formed by two or more Persons that are not owned, directly or
 indirectly, by the same Person, the rules set forth in clauses (1) and
 (2) above shall apply to each of the owners having an interest in the
 venture as if the Person owned by the joint venture was a Subsidiary of both
 or all of such joint venturers, and the Principal Party in each such case
 shall bear the obligations set forth in this Section 13 in the same
 ratio as its interest in such Person bears to the total of such interests.

 


24








	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 The Company
 shall not consummate any consolidation, merger, sale or transfer referred to
 in Section
 13(a) hereof unless prior thereto the Company and the Principal
 Party involved therein shall have executed and delivered to the Rights Agent
 an agreement confirming that the requirements of Sections 13(a) and (b) hereof
 shall promptly be performed in accordance with their terms and that such
 consolidation, merger, sale or transfer of assets shall not result in a
 default by the Principal Party under this Agreement as the same shall have
 been assumed by the Principal Party pursuant to Sections 13(a) and (b) hereof
 and providing that, as soon as practicable after executing such agreement
 pursuant to this Section 13, the Principal Party
 will:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (i)

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

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (ii)

 	
 use its best
 efforts, if the Common Stock of the Principal Party shall be listed or
 admitted to trading on the NYSE or on another national securities exchange,
 to list or admit to trading (or continue the listing of) the Rights and the
 securities purchasable upon exercise of the Rights on the NYSE or such
 securities exchange, or, if the Common Stock of the Principal Party shall not
 be listed or admitted to trading on the NYSE or a national securities
 exchange, to cause the Rights and the securities receivable upon exercise of
 the Rights to be reported by such other system then in use;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (iii)

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

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (iv)

 	
 obtain
 waivers of any rights of first refusal or preemptive rights in respect of the
 Common Stock of the Principal Party subject to purchase upon exercise of
 outstanding Rights.

 


25








	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 In case the
 Principal Party has a provision in any of its authorized securities or in its
 certificate of incorporation or by-laws or other instrument governing its
 affairs, which provision would have the effect of (i) causing such
 Principal Party to issue (other than to holders of Rights pursuant to this Section 13),
 in connection with, or as a consequence of, the consummation of a transaction
 referred to in this Section 13, shares of Common Stock
 or Common Stock equivalents of such Principal Party at less than the
 then-current market price per share thereof (determined pursuant to Section
 11(d) hereof) or securities exercisable for, or convertible into,
 Common Stock or Common Stock equivalents of such Principal Party at less than
 such then-current market price, or (ii) providing for any special
 payment, tax or similar provision in connection with the issuance of the
 Common Stock of such Principal Party pursuant to the provisions of Section 13,
 then, in such event, the Company hereby agrees with each holder of Rights
 that it shall not consummate any such transaction unless prior thereto the
 Company and such Principal Party shall have executed and delivered to the
 Rights Agent a supplemental agreement providing that the provision in
 question of such Principal Party shall have been canceled, waived or amended,
 or that the authorized securities shall be redeemed, so that the applicable
 provision will have no effect in connection with, or as a consequence of, the
 consummation of the proposed transaction.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 The Company
 covenants and agrees that it shall not, at any time after a Person first
 becomes an Acquiring Person enter into any transaction of the type
 contemplated by Sections 13(a)(i) - (iii) hereof if (x) at
 the time of or immediately after such consolidation, merger, sale, transfer
 or other transaction there are any rights, warrants or other instruments or
 securities outstanding or agreements in effect which would substantially
 diminish or otherwise eliminate the benefits intended to be afforded by the
 Rights, (y) prior to, simultaneously with or immediately after such
 consolidation, merger, sale, transfer or other transaction, the stockholders
 of the Person who constitutes, or would constitute, the Principal Party for
 purposes of Section 13(b) hereof shall have received a distribution of
 Rights previously owned by such Person or any of its Affiliates or Associates
 or (z) the form or nature of organization of the Principal Party would
 preclude or limit the exercisability of the Rights.

 
	
  

 	
  

 	
  

 	
  

 
	
 14.

 	
 Fractional
 Rights and Fractional Shares. 

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (a)

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

 


26








	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (b)

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

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 The Company
 shall not be required to issue fractions of shares of Common Stock or to
 distribute certificates which evidence fractional shares of Common Stock upon
 the exercise or exchange of Rights. In lieu of such fractional shares of
 Common Stock, the Company shall pay to the registered holders of the Right
 Certificates at the time such Rights are exercised or exchanged for shares of
 Common Stock as herein provided an amount in cash equal to the same fraction
 of the current market value of a whole share of Common Stock (as determined
 in accordance with Section 11(d)(i) hereof) for the
 Trading Day immediately prior to the date of such exercise or exchange.

 


27







	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 The holder
 of a Right by the acceptance of the Right expressly waives the right to
 receive any fractional Rights or any fractional shares upon exercise or
 exchange of a Right (except as provided above).

 
	
  

 	
  

 	
  

 
	
 15.

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

 
	
  

 	
  

 	
  

 
	
 16.

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

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

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

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 after the
 Distribution Date, the Right Certificates are transferable only on the
 registry books of the Rights Agent if surrendered at the office or agency of
 the Rights Agent designated for such purpose, duly endorsed or accompanied by
 a proper instrument of transfer; and

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 the Company
 and the Rights Agent may deem and treat the Person in whose name the Right
 Certificate (or, prior to the Distribution Date, the 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 Right Certificates or the Common Stock certificate made by anyone other
 than the Company or the Rights Agent) for all purposes whatsoever, and
 neither the Company nor the Rights Agent, subject to Section 7(e) hereof, shall
 be affected by any notice to the contrary.

 
	
  

 	
  

 	
  

 
	
 17.

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

 


28









	
  

 	
  

 	
  

 
	
 18.

 	
 Concerning
 the Rights Agent.

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 The Company
 agrees to pay to the Rights Agent compensation for all services rendered by
 it hereunder in accordance with the fee schedule between the Company and the
 Rights Agent which is on file with the Rights Agent (the “Fee
 Schedule”). From time to time, on demand of the Rights Agent and
 in accordance with the Fee Schedule, the Company agrees to pay to the Rights
 Agent its expenses and counsel fees and other disbursements incurred in the
 administration and execution of this Agreement and the exercise and
 performance of its duties hereunder. The Company also agrees to indemnify the
 Rights Agent for, and to hold it harmless against, any loss, liability or
 expense, incurred without gross negligence, bad faith or willful misconduct
 on the part of the Rights Agent, for anything done or omitted by the Rights
 Agent in connection with the acceptance and administration of this Agreement,
 including the costs and expenses of defending against any claim of liability
 arising therefrom, directly or indirectly.

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 The Rights
 Agent shall be protected and shall incur no liability for, or in respect of
 any action taken, suffered or omitted by it in connection with, its
 administration of this Agreement in reliance upon any Right Certificate or
 certificate for the Preferred Stock or Common Stock or for other securities
 of the Company, instrument of assignment or transfer, power of attorney,
 endorsement, affidavit, letter, notice, direction, consent, certificate,
 statement, or other paper or document reasonably believed by it to be genuine
 and to be signed, executed and, where necessary, verified or acknowledged, by
 the proper Person or Persons, or otherwise upon the advice of counsel as set
 forth in Section 20 hereof.

 
	
  

 	
  

 	
  

 
	
 19.

 	
 Merger or
 Consolidation or Change of Rights Agent. 

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

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

 


29








	
  

 	
  

 	
  

 
	
  

 	
 (b)

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

 
	
  

 	
  

 	
  

 
	
 20.

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

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

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

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

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

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 The Rights
 Agent shall be liable hereunder to the Company and any other Person only for
 its own gross negligence, bad faith or willful misconduct.

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

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

 
	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 The Rights
 Agent shall not be under any responsibility in respect of the validity of
 this Agreement or the execution and delivery hereof (except the due execution
 hereof by the Rights Agent) or in respect of the validity or execution of any
 Right Certificate (except its countersignature thereof); nor shall it be
 responsible for any breach by the Company of any covenant or condition
 contained in this Agreement or in any Right Certificate; nor shall it be
 responsible for any change in the exercisability of the Rights (including the
 Rights becoming void pursuant to Section 11(a)(ii) hereof) or any
 adjustment in the terms of the Rights (including the manner, method or amount
 thereof) provided for in Sections 3, 11, 13, 23 and 24, or the ascertaining of
 the existence of facts that would require any such change or adjustment
 (except with respect to the exercise of Rights evidenced by Right
 Certificates after receipt of a certificate furnished pursuant to Section 12,
 describing such change or adjustment); nor shall it by any act hereunder be
 deemed to make any representation or warranty as to the authorization or
 reservation of any shares of Preferred Stock or other securities to be issued
 pursuant to this Agreement or any Right Certificate or as to whether any
 shares of Preferred Stock or other securities will, when issued, be validly
 authorized and issued, fully paid and nonassessable.

 


30








	
  

 	
  

 	
  

 
	
  

 	
 (f)

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

 
	
  

 	
  

 	
  

 
	
  

 	
 (g)

 	
 The Rights
 Agent is hereby authorized and directed to accept instructions with respect
 to the performance of its duties hereunder from any person reasonably
 believed by the Rights Agent to be one of the Authorized Officers, and to
 apply to such Authorized Officers for advice or instructions in connection
 with its duties, and it shall not be liable for any action taken or suffered
 by it in good faith in accordance with instructions of any such Authorized
 Officer or for any delay in acting while waiting for those instructions. Any
 application by the Rights Agent for written instructions from the Company
 may, at the option of the Rights Agent, set forth in writing any action
 proposed to be taken or omitted by the Rights Agent under this Agreement and
 the date on and/or after which such action shall be taken or such omission
 shall be effective. The Rights Agent shall not be liable for any action taken
 by, or omission of, the Rights Agent in accordance with a proposal included
 in any such application on or after the date specified in such application
 (which date shall not be less than five (5) Business Days after the date any
 Authorized Officer of the Company actually receives such application, unless
 any such Authorized Officer shall have consented in writing to an earlier
 date) unless, prior to taking any such action (or the effective date in the
 case of an omission), the Rights Agent shall have received written
 instructions in response to such application specifying the action to be
 taken or omitted.

 
	
  

 	
  

 	
  

 
	
  

 	
 (h)

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

 
	
  

 	
  

 	
  

 
	
  

 	
 (i)

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

 


31








	
  

 	
  

 	
  

 
	
  

 	
 (j)

 	
 If, with
 respect to any Right Certificate surrendered to the Rights Agent for exercise
 or transfer, the certificate contained in the form of assignment or the form
 of election to purchase set forth on the reverse thereof, as the case may be,
 has not been completed to certify the holder is not an Acquiring Person (or
 an Affiliate or Associate thereof) or a transferee thereof, the Rights Agent
 shall not take any further action with respect to such requested exercise or
 transfer without first consulting with the Company.

 
	
  

 	
  

 	
  

 
	
  

 	
 (k)

 	
 In the event
 that the Rights Agent shall be uncertain as to its duties or rights hereunder
 or shall receive instructions, claims or demands which, in its opinion, are
 in conflict with any of the provisions of this Agreement, it shall be
 entitled to refrain from taking any action until the questions regarding its
 duties and rights are clarified to its satisfaction or it shall be directed
 otherwise by a final judgment of a court of competent jurisdiction.

 
	
  

 	
  

 	
  

 
	
  

 	
 (l)

 	
 Notwithstanding
 any provision to the contrary, the Rights Agent is obligated only to perform
 the duties specifically set forth in this Agreement, which shall be deemed
 purely ministerial in nature. Under no circumstances will the Rights Agent be
 deemed to be a fiduciary to any Party or any other person under this
 Agreement. The Rights Agent will not be responsible or liable for the failure
 of any Party to perform in accordance with this Agreement. The Rights Agent
 shall neither be responsible for, nor chargeable with, knowledge of the terms
 and conditions of any other agreement, instrument, or document other than
 this Agreement, whether or not an original or a copy of such agreement has
 been provided to the Rights Agent; and the Rights Agent shall have no duty to
 know or inquire as to the performance or nonperformance of any provision of
 any such agreement, instrument, or document. References in this Agreement to
 any other agreement, instrument, or document are for the convenience of the
 parties, and the Rights Agent has no duties or obligations with respect
 thereto. This Agreement sets forth all matters pertinent to the services to
 be provided by the Rights Agent contemplated hereunder, and no additional
 obligations of the Rights Agent shall be inferred or implied from the terms
 of this Agreement or any other agreement. The Rights Agent shall be under no
 duty to inquire into or investigate the validity, accuracy or content of any
 notice, instruction or request. The Rights Agent shall have no duty or
 obligation to make any calculations of any kind hereunder.

 


32








	
  

 	
  

 
	
 21.

 	
 Change of
 Rights Agent. The Rights Agent or any successor
 Rights Agent may resign and be discharged from its duties under this
 Agreement upon fifteen (15) days’ notice in writing mailed to the Company and
 to each transfer agent of the Common Stock or the Preferred Stock by
 registered or certified mail, and, following the Distribution Date, to the
 holders of the Right Certificates by first-class mail. In the event the
 transfer agency relationship in effect between the Company and the Rights
 Agent terminates, the Rights Agent will be deemed to resign automatically on
 the effective date of such termination; and any required notice will be sent
 by the Company. The Company may remove the Rights Agent or any successor
 Rights Agent upon fifteen (15) days’ notice in writing, mailed to the Rights
 Agent or successor Rights Agent, as the case may be, and to each transfer
 agent of the Common Stock or the Preferred Stock by registered or certified
 mail, and, following the Distribution Date, to the holders of the Right
 Certificates by first-class mail. If the Rights Agent shall resign or be
 removed or shall otherwise become incapable of acting, the Company shall
 appoint a successor to the Rights Agent. If the Company shall fail to make
 such appointment within a period of fifteen (15) days after giving notice of
 such removal or after it has been notified in writing of such resignation or
 incapacity by the resigning or incapacitated Rights Agent or by the holder of
 a Right Certificate (who shall, with such notice, submit his Right
 Certificate for inspection by the Company), then the registered holder of any
 Right Certificate may apply to any court of competent jurisdiction for the
 appointment of a new Rights Agent. Any successor Rights Agent, whether
 appointed by the Company or by such a court, shall be (A) a corporation
 organized and doing business under the laws of the United States or any State
 thereof, which is authorized under such laws to exercise corporate trust or
 stock transfer powers and is subject to supervision or examination by federal
 or state authority and which has at the time of its appointment as Rights
 Agent a combined capital and surplus of at least $50 million or (B) an
 affiliate of a corporation described in clause (A) of this sentence. After
 appointment, the successor Rights Agent shall be vested with the same powers,
 rights, duties and responsibilities as if it had been originally named as
 Rights Agent without further act or deed; but the predecessor Rights Agent
 shall deliver and transfer to the successor Rights Agent any property at the
 time held by it hereunder, and execute and deliver any further assurance,
 conveyance, act or deed necessary for the purpose. Not later than the
 effective date of any such appointment the Company shall file notice thereof
 in writing with the predecessor Rights Agent and each transfer agent of the
 Common Stock or the Preferred Stock, and, following the Distribution Date,
 mail a notice thereof in writing to the registered holders of the Right
 Certificates. Failure to give any notice provided for in this Section 21,
 however, or any defect therein, shall not affect the legality or validity of
 the resignation or removal of the Rights Agent or the appointment of the
 successor Rights Agent, as the case may be.

 
	
  

 	
  

 
	
 22.

 	
 Issuance of
 New Right Certificates. Notwithstanding any of the
 provisions of this Agreement or of the Rights to the contrary, the Company
 may, at its option, issue new Right Certificates evidencing Rights in such
 forms as may be approved by its 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 Right Certificates made in
 accordance with the provisions of this Agreement. In addition, in connection
 with the issuance or sale of Common Stock following the Distribution Date and
 prior to the Expiration Date, the Company may with respect to shares of
 Common Stock so issued or sold pursuant to (i) the exercise of stock options,
 (ii) under any employee plan or arrangement, (iii) the exercise, conversion
 or exchange of securities, notes or debentures issued by the Company or (iv)
 a contractual obligation of the Company, in each case existing prior to the
 Distribution Date, issue Right Certificates representing the appropriate
 number of Rights in connection with such issuance or sale.

 


33








	
  

 	
  

 	
  

 
	
 23.

 	
 Redemption.
 

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 The Board
 may, at any time prior to such time as any Person first becomes an Acquiring
 Person, redeem all but not less than all the then-outstanding Rights at a
 redemption price of $0.001 per Right, appropriately adjusted to reflect any
 stock split, stock dividend or similar transaction occurring after the date
 hereof (the “Redemption Price”). The redemption of the Rights may be made
 effective at such time, on such basis and with such conditions as the Board
 in its sole discretion may establish. 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 as determined pursuant to
 Section
 11(d)(i) hereof) or any other form of consideration deemed
 appropriate by the Board.

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Immediately
 upon the action of the Board ordering the redemption of the Rights pursuant
 to Section
 23(a) (or at such later time as the Board may establish for the
 effectiveness of such redemption), and without any further action and without
 any notice, the right to exercise the Rights will terminate and the only
 right thereafter of the holders of Rights shall be to receive the Redemption
 Price. The Company shall promptly give public notice of any such redemption; provided,
 however, that the failure to give, or any defect in, any such notice
 shall not affect the validity of such redemption. Within ten (10) days after
 such action of the Board ordering the redemption of the Rights (or such later
 time as the Board may establish for the effectiveness of such redemption),
 the Company shall mail a notice of redemption to all the holders of the
 then-outstanding Rights at their last addresses as they appear upon the
 registry books of the Rights Agent or, prior to the Distribution Date, on the
 registry books of the transfer agent for the Common Stock. Any notice which
 is mailed in the manner herein provided shall be deemed given, whether or not
 the holder receives the notice. Each such notice of redemption shall state
 the method by which the payment of the Redemption Price will be made.

 
	
  

 	
  

 	
  

 
	
 24.

 	
 Exchange.
 

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 The Board
 may, at its option, at any time after any Person first becomes an Acquiring
 Person, exchange all or part of the then-outstanding and exercisable Rights
 (which shall not include Rights that have not become effective or that have
 become void pursuant to the provisions of Section 11(a)(ii) hereof)
 for shares of Common Stock at an exchange ratio of one share of Common Stock
 (or one-thousandth of a share of Preferred Stock) per Right, appropriately
 adjusted to reflect any stock split, stock dividend or similar transaction
 occurring after the date hereof (such amount per Right being hereinafter
 referred to as the “Exchange Ratio”). Notwithstanding the
 foregoing, the Board shall not be empowered to effectuate such exchange at
 any time after an Acquiring Person becomes the Beneficial Owner of shares of
 Common Stock aggregating fifty percent (50%) or more of the shares of Common
 Stock then outstanding. From and after the occurrence of an event specified
 in Section
 13(a) hereof, any Rights that theretofore have not been exchanged
 pursuant to this Section 24(a) shall thereafter be
 exercisable only in accordance with Section 13 and may not be exchanged
 pursuant to this Section 24(a). The exchange of the Rights
 by the Board may be made effective at such time, on such basis and with such
 conditions as the Board in its sole discretion may establish.

 


34








	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Immediately
 upon the effectiveness of the action of the Board ordering the exchange of
 any Rights pursuant to Section 24(a) and without any further
 action and without any notice, the right to exercise such Rights shall
 terminate and the only right thereafter of a holder of such Rights shall be
 to receive that number of shares of Common Stock equal to the number of such
 Rights held by such holder multiplied by the Exchange Ratio. The Company
 shall promptly give public notice of any such exchange; provided, however,
 that the failure to give, or any defect in, such notice shall not affect the
 validity of such exchange. The Company shall promptly mail a notice of any
 such exchange to all of the holders of the Rights so exchanged at their last
 addresses as they appear upon the registry books of the Rights Agent. Any
 notice which is mailed in the manner herein provided shall be deemed given,
 whether or not the holder receives the notice. Each such notice of exchange
 will state the method by which the exchange of the shares of Common Stock for
 Rights will be effected and, in the event of any partial exchange, the number
 of Rights which will be exchanged. Any partial exchange shall be effected pro
 rata based on the number of Rights (other than Rights which have become void
 pursuant to the provisions of Section 11(a)(ii) hereof) held by each
 holder of Rights.

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 The Company
 may at its option substitute and, in the event that there shall not be
 sufficient shares of Common Stock issued but not outstanding or authorized
 but unissued (and unreserved) to permit an exchange of Rights as contemplated
 in accordance with this Section 24, the Company shall substitute
 to the extent of such insufficiency, for each share of Common Stock that
 would otherwise be issuable upon exchange of a Right, a number of shares of Preferred
 Stock or fraction thereof (or equivalent preferred shares as such term is
 defined in Section 11(b)) such that the current per share market price
 (determined pursuant to Section 11(d) hereof) of one share of
 Preferred Stock (or equivalent preferred share) multiplied by such number or
 fraction is equal to the current per share market price of one share of
 Common Stock (determined pursuant to Section 11(d) hereof) as of the date of
 such exchange.

 
	
  

 	
  

 	
  

 
	
 25.

 	
 Notice of
 Certain Events. 

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 In case the
 Company shall at any time after the earlier of the Distribution Date or the
 Stock Acquisition Date propose (i) to pay any dividend payable in stock of
 any class to the holders of its Preferred Stock or to make any other
 distribution to the holders of its Preferred Stock (other than a regular
 quarterly cash dividend), (ii) to offer to the holders of its Preferred Stock
 rights or warrants to subscribe for or to purchase any additional shares of
 Preferred Stock or shares of stock of any class or any other securities,
 rights or options, (iii) to effect any reclassification of its Preferred
 Stock (other than a reclassification involving only the subdivision or
 combination of outstanding Preferred Stock), (iv) to effect the liquidation,
 dissolution or winding up of the Company, or (v) to declare or pay any
 dividend on the Common Stock payable in Common Stock or to effect a
 subdivision, combination or consolidation of the Common Stock (by
 reclassification or otherwise than by payment of dividends in Common Stock),
 then, in each such case, the Company shall give to each holder of a Right
 Certificate, in accordance with Section 26 hereof, a notice of such
 proposed action, which shall specify the record date for the purposes of such
 stock dividend, or distribution or offering of rights or warrants, or the
 date on which such liquidation, dissolution, reclassification, subdivision,
 combination, consolidation or winding up is to take place and the date of
 participation therein by the holders of the Common Stock and/or Preferred
 Stock, if any such date is to be fixed, and such notice shall be so given in
 the case of any action covered by clause (i) or (ii) above at least ten (10)
 days prior to the record date for determining holders of the Preferred Stock
 for purposes of such action, and in the case of any such other action, at
 least ten (10) days prior to the date of the taking of such proposed action
 or the date of participation therein by the holders of the Common Stock
 and/or Preferred Stock, whichever shall be the earlier.

 


35







	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 In case any
 event described in Section 11(a)(ii) or Section 13 shall occur, the
 Company shall as soon as practicable thereafter give to each holder of a
 Right Certificate (or if occurring prior to the Distribution Date, the
 holders of the outstanding Common Stock) in accordance with Section 26
 hereof, a notice of the occurrence of such event, which notice shall describe
 such event and the consequences of such event to holders of Rights under Section
 11(a)(ii) and Section 13 hereof.

 
	
  

 	
  

 	
  

 
	
 26.

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

 



U.S. Precious Metals, Inc.

171 Walnut Crest Run

Sanford, Florida 32771

Attention: M. Jack Kugler

Fax: (407) 566-9321

Email: JackKugler@aol.com


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


Interwest Transfer Company,
Inc.

1981 Murray Holladay Road, Suite 100

Salt Lake City, UT 84117

Attn: Julie Felix

Fax: (801) 277-3147

Email: Julie@interwesttc.com


36






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


	
  

 	
  

 
	
 27.

 	
 Supplements
 and Amendments. Except as otherwise provided in this
 Section
 27, for so long as the Rights are then redeemable, the Company may
 in its sole and absolute discretion, and the Rights Agent shall if the
 Company so directs, supplement or amend any provision of this Agreement in
 any respect without the approval of any holders of the Rights. At any time
 when the Rights are no longer redeemable, except as otherwise provided in
 this Section
 27, the Company may, and the Rights Agent shall, if the Company so
 directs, supplement or amend this Agreement without the approval of any
 holders of Rights in order to (i) cure any ambiguity, (ii) correct or
 supplement any provision contained herein which may be defective or
 inconsistent with any other provisions herein, (iii) shorten or lengthen any
 time period hereunder, or (iv) change or supplement the provisions hereunder
 in any manner which the Company may deem necessary or desirable; provided,
 however, that no such supplement or amendment shall adversely affect
 the interests of the holders of Rights as such (other than an Acquiring
 Person or an Affiliate or Associate of an Acquiring Person), and no such
 amendment may cause the Rights again to become redeemable or cause this
 Agreement again to become amendable other than in accordance with this
 sentence. Notwithstanding anything contained in this Agreement to the
 contrary, no supplement or amendment shall be made which decreases the
 Redemption Price. Upon the delivery of a certificate from an appropriate
 officer of the Company which states that the supplement or amendment is in
 compliance with the terms of this Section 27, the Rights Agent shall
 execute such supplement or amendment provided that any such supplement
 or amendment does not amend Sections 18, 19, 20 or 21 hereof in a manner
 adverse to the Rights Agent.

 
	
  

 	
  

 
	
 28.

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

 
	
  

 	
  

 
	
 29.

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

 
	
  

 	
  

 
	
 30.

 	
 Determinations
 and Actions by the Board. The Board shall have the
 exclusive power and authority to administer this Agreement and to exercise
 the rights and powers specifically granted to the Board or to the Company, or
 as may be necessary or advisable in the administration of this Agreement,
 including, without limitation, the right and power to (i) interpret the
 provisions of this Agreement and (ii) make all determinations deemed
 necessary or advisable for the administration of this Agreement (including, without
 limitation, a determination to redeem or not redeem the Rights or to amend
 this Agreement). All such actions, calculations, interpretations and
 determinations (including, for purposes of clause (y) below, all omissions
 with respect to the foregoing) that are done or made by the Board in good
 faith, shall (x) be final, conclusive and binding on the Company, the Rights
 Agent, the holders of the Rights, as such, and all other parties, and (y) not
 subject the Board to any liability to the holders of the Rights.

 


37








	
  

 	
  

 
	
 31.

 	
 Severability.
 If any term, provision, covenant or restriction of this Agreement or
 applicable to this Agreement is held by a court of competent jurisdiction or
 other authority to be invalid, void or unenforceable, the remainder of the terms,
 provisions, covenants and restrictions of this Agreement shall remain in full
 force and effect and shall in no way be affected, impaired or invalidated; provided,
 however, that notwithstanding anything in this Agreement to the
 contrary, if any such term, provision, covenant or restriction is held by
 such court or authority to be invalid, void or unenforceable and the Board
 determines in its good faith judgment that severing the invalid language from
 this Agreement would adversely affect the purpose or effect of this
 Agreement, the right of redemption set forth in Section 23 hereof shall be
 reinstated (with prompt notice to the Rights Agent) and shall not expire
 until the close of business on the tenth (10th) Business Day
 following the date of such determination by the Board. Without limiting the
 foregoing, if any provision requiring a specific group of directors of the
 Company to act is held to by any court of competent jurisdiction or other
 authority to be invalid, void or unenforceable, such determination shall then
 be made by the Board in accordance with applicable law and the Company’s
 certificate of incorporation and bylaws (in each case, as amended, restated
 or otherwise modified from time to time).

 
	
  

 	
  

 
	
 32.

 	
 Governing
 Law. This Agreement and each Right Certificate
 issued hereunder shall be deemed to be a contract made under the laws of the
 State of Delaware and for all purposes shall be governed by and construed in
 accordance with the laws of such State applicable to contracts to be made and
 performed entirely within such State. The parties hereby waive all rights to
 a trial by jury.

 
	
  

 	
  

 
	
 33.

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

 
	
  

 	
  

 
	
 34.

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

 
	
  

 	
  

 
	
 35.

 	
 Force
 Majeure. Notwithstanding anything to the contrary
 contained herein, the Rights Agent shall not be liable for any delays or
 failures in performance resulting from acts beyond its reasonable control
 including, without limitation, acts of God, terrorist acts, shortage of
 supply, breakdowns or malfunctions, interruptions or malfunction of computer
 facilities, or loss of data due to power failures or mechanical difficulties
 with information storage or retrieval systems, labor difficulties, war, or
 civil unrest.

 
	
  

 	
  

 
	
 36.

 	
 Miscellaneous.
 Any reference to a “day” herein means a calendar day, unless otherwise
 provided herein. Unless otherwise specifically stated herein, any reference
 to “Section” herein is a reference to a section of this Agreement.

 


38






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


	
  

 	
  

 	
  

 
	
  

 	
  

 	
 COMPANY:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 U.S.
 Precious Metals, Inc.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
      /s/
 Jesus Oliveras

 
	
  

 	
  

 	 

 
	
  

 	
  

 	
 Name: Jesus
 Oliveras

 
	
  

 	
  

 	
 Title: Chief
 Financial Officer

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 RIGHTS AGENT:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Interwest
 Transfer Company, Inc.

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
      /s/
 Kurtis D. Hughes

 
	
  

 	
  

 	 

 
	
  

 	
  

 	
 Name:Kurtis
 D. Hughes

 
	
  

 	
  

 	
 Title: Vice
 President

 


39






EXHIBIT A

TO RIGHTS AGREEMENT


U.S.
PRECIOUS METALS, INC.


CERTIFICATE
OF DESIGNATIONS OF PREFERRED STOCK


(Pursuant to Section 151 of the General
Corporation Law of the State of Delaware)


          U.S.
Precious Metals, Inc., a Delaware corporation (the “Company”), hereby certifies
that the following resolution was duly adopted by the Board of Directors of the
Company (the “Board”) as required by Section 151 of the General Corporation
Law of the State of Delaware (the “DGCL”) on March 17, 2009:


          RESOLVED,
that pursuant to the authority vested in the Board in accordance with the
provisions of the Company’s Amended and Restated Certificate of Incorporation
(as amended, the “Certificate of Incorporation”), the Board
hereby creates a series of preferred stock, par value $0.00001 per share, of
the Company, to be designated the “Series A Preferred Stock” and hereby adopts
the resolution establishing the designations, number of shares, preferences,
voting powers and other rights and the restrictions and limitations thereof, of
the shares of such series as set forth below:


	
  

 	
  

 	
  

 
	
 1.

 	
 Designation
 and Amount. The shares of such series shall be
 designated as “Series A Preferred Stock” (the “Series A Preferred Stock”)
 and the number of shares constituting the Series A Preferred Stock shall be
 100,000. Such number of shares may be increased or decreased by resolution of
 the Board; provided, however, that no decrease shall reduce the
 number of shares of Series A Preferred Stock to a number less than the sum of
 the number of shares then outstanding plus the number of shares reserved for
 issuance upon the exercise of outstanding options, rights or warrants or upon
 the conversion of any outstanding securities issued by the Company
 convertible into Series A Preferred Stock.

 
	
  

 	
  

 	
  

 
	
 2.

 	
 Dividends
 and Distributions.

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Subject to
 the rights of holders of any shares of any series of Preferred Stock (or
 similar stock) ranking prior or superior to the Series A Preferred Stock, the
 holders of shares of Series A Preferred Stock, in preference to the holders
 of the Company’s Common Stock, par value $0.00001 per share (the “Common
 Stock”), and of any other stock of the Company ranking junior to
 the Series A Preferred Stock, shall be entitled to receive, when, as and if
 declared by the Board out of funds legally available for the purpose,
 quarterly dividends payable in cash on the last day of each fiscal quarter of
 the Company (each such date, a “Dividend Payment Date”), commencing on
 the first Dividend Payment Date after the first issuance of a share or
 fraction of a share of Series A Preferred Stock (the “Issue Date”), in an amount
 per share (rounded to the nearest cent) equal to the greater of (a) $1.00 or
 (b) subject to adjustment as set forth herein, 1,000 times the aggregate per
 share amount of all cash dividends plus 1,000 times the aggregate per share
 amount (payable in kind) of all non-cash dividends or other distributions
 other than a dividend payable in shares of Common Stock or a subdivision of
 the outstanding shares of Common Stock (by reclassification or otherwise),
 declared on the Common Stock since the immediately preceding Dividend Payment
 Date or, with respect to the first Dividend Payment Date, since the first
 issuance of any share or fraction of a share of Series A Preferred Stock. In
 the event the Company shall at any time after the Issue Date declare and pay
 any dividend on the Common Stock payable in shares of Common Stock, or effect
 a subdivision or combination or consolidation of the outstanding shares of
 Common Stock (by reclassification or otherwise than by payment of a dividend
 in shares of Common Stock) into a greater or lesser number of shares of
 Common Stock, then in each such case the amount to which holders of shares of
 Series A Preferred Stock were entitled immediately prior to such event under
 clause (b) of the preceding sentence shall be adjusted by multiplying such
 amount by a fraction, the numerator of which is the number of shares of
 Common Stock outstanding immediately after such event and the denominator of
 which is the number of shares of Common Stock that were outstanding
 immediately prior to such event.

 


40








	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 The Company
 shall declare a dividend or distribution on the Series A Preferred Stock as
 provided in Section 2(a) immediately after it declares a dividend or
 distribution on the Common Stock (other than a dividend payable in shares of
 Common Stock); provided, however, that, in the event no
 dividend or distribution shall have been declared on the Common Stock during
 the period between any Dividend Payment Date and the next subsequent Dividend
 Payment Date, a dividend of $1.00 per share on the Series A Preferred Stock
 shall nevertheless be payable, when, as and if declared, on such subsequent
 Dividend Payment Date.

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 Dividends
 shall begin to accrue and be cumulative, whether or not declared, on
 outstanding shares of Series A Preferred Stock from the Dividend Payment Date
 next preceding the date of issue of such shares, unless the date of issue of
 such shares is prior to the record date for the first Dividend Payment Date,
 in which case dividends on such shares shall begin to accrue from the date of
 issue of such shares, or unless the date of issue is a Dividend Payment Date
 or is a date after the record date for the determination of holders of shares
 of Series A Preferred Stock entitled to receive a quarterly dividend and
 before such Dividend Payment Date, in either of which events such dividends
 shall begin to accrue and be cumulative from such Dividend Payment Date. Accrued
 but unpaid dividends shall not bear interest. Dividends paid on the shares of
 Series A Preferred Stock in an amount less than the total amount of such
 dividends at the time accrued and payable on such shares shall be allocated
 pro rata on a share-by-share basis among all such shares at the time
 outstanding. The Board may fix a record date for the determination of holders
 of shares of Series A Preferred Stock entitled to receive payment of a
 dividend or distribution declared thereon, which record date shall be not
 more than 60 days prior to the date fixed for the payment thereof.

 


41








	
  

 	
  

 	
  

 	
  

 
	
 3.

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

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Subject to
 adjustment as set forth herein and except as otherwise provided in the
 Certificate of Incorporation or required by law, each share of Series A
 Preferred Stock shall entitle the holder thereof to 1,000 votes on all
 matters upon which the holders of the Common Stock of the Company are
 entitled to vote. In the event the Company shall at any time after the Issue
 Date declare or pay any dividend on the Common Stock payable in shares of
 Common Stock, or effect a subdivision or combination or consolidation of the
 outstanding shares of Common Stock (by reclassification or otherwise than by
 payment of a dividend in shares of Common Stock) into a greater or lesser
 number of shares of Common Stock, then in each such case the number of votes
 per share to which holders of shares of Series A Preferred Stock were
 entitled immediately prior to such event shall be adjusted by multiplying
 such number by a fraction, the numerator of which is the number of shares of
 Common Stock outstanding immediately after such event and the denominator of
 which is the number of shares of Common Stock that were outstanding
 immediately prior to such event.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Except as
 otherwise provided herein, in the Certificate of Incorporation and except as
 otherwise required by law, the holders of shares of Series A Preferred Stock
 and the holders of shares of Common Stock and any other capital stock of the
 Company having general voting rights shall vote together as one class on all
 matters submitted to a vote of stockholders of the Company.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (c)

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

 
	
  

 	
  

 	
  

 	
  

 
	
 4.

 	
 Certain
 Restrictions.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (a)

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

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (i)

 	
 declare or
 pay dividends, or make any other distributions, on any shares of stock
 ranking junior (either as to dividends or upon liquidation, dissolution or
 winding up) to the Series A Preferred Stock; 

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (ii)

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

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (iii)

 	
 redeem or
 purchase or otherwise acquire for consideration shares of any stock ranking
 junior (either as to dividends or upon liquidation, dissolution or winding
 up) to the Series A Preferred Stock, provided that the Company may at any
 time redeem, purchase or otherwise acquire shares of any such junior stock in
 exchange for shares of any stock of the Company ranking junior (as to
 dividends and upon dissolution, liquidation or winding up) to the Series A
 Preferred Stock or rights, warrants or options to acquire such junior stock;
 or

 


42








	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 (iv)

 	
 purchase or
 otherwise acquire for consideration any shares of Series A Preferred Stock,
 except in accordance with a purchase offer made in writing or by publication
 (as determined by the Board) to all holders of such shares upon such terms as
 the Board.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (b)

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

 






	
  

 	
  

 	
  

 
	
 5.

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

 
	
  

 	
  

 	
  

 
	
 6.

 	
 Liquidation,
 Dissolution or Winding Up.

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Upon any
 liquidation, dissolution or winding up of the Company, no distribution shall
 be made to the holders of the Common Stock or of shares of any other stock of
 the Company ranking junior, upon liquidation, dissolution or winding up, to
 the Series A Preferred Stock unless, prior thereto, the holders of shares of
 Series A Preferred Stock shall have received the greater of (A) $1,000 per
 share, plus an amount equal to accrued and unpaid dividends and distributions
 thereon, whether or not declared, to the date of such payment, or (B) an aggregate
 amount per share, subject to the provision for adjustment hereinafter set
 forth, equal to 1,000 times the aggregate amount to be distributed per share
 to holders of shares of Common Stock. In the event the Company shall at any
 time after the Issue Date declare or pay any dividend on the Common Stock
 payable in shares of Common Stock, or effect a subdivision or combination or
 consolidation of the outstanding shares of Common Stock (by reclassification
 or otherwise than by payment of a dividend in shares of Common Stock) into a
 greater or lesser number of shares of Common Stock, then in each such case
 the aggregate amount to which holders of shares of Series A Preferred Stock
 were entitled immediately prior to such event under the preceding sentence shall
 be adjusted by multiplying such amount by a fraction the numerator of which
 is the number of shares of Common Stock outstanding immediately after such
 event and the denominator of which is the number of shares of Common Stock
 that were outstanding immediately prior to such event.

 


43







	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 Neither the
 merger or consolidation of the Company into or with another entity nor the
 merger or consolidation of any other entity into or with the Company (nor the
 sale of all or substantially all of the assets of the Company) shall be
 deemed to be a liquidation, dissolution or winding up of the Company within
 the meaning of this Section 6.

 
	
  

 	
  

 	
  

 
	
 7.

 	
 Consolidation,
 Merger, etc. In case the Company shall enter into
 any consolidation, merger, combination or other transaction in which the
 shares of Common Stock are converted into, exchanged for or changed into
 other stock or securities, cash and/or any other property, then in any such
 case each share of Series A Preferred Stock shall at the same time be
 similarly converted into, exchanged for or changed into an amount per share
 (subject to the provision for adjustment hereinafter set forth) equal to
 1,000 times the aggregate amount of stock, securities, cash and/or any other
 property (payable in kind), as the case may be, into which or for which each
 share of Common Stock is converted, exchanged or converted. In the event the
 Company shall at any time after the Issue Date declare or pay any dividend on
 the Common Stock payable in shares of Common Stock, or effect a subdivision
 or combination or consolidation of the outstanding shares of Common Stock (by
 reclassification or otherwise than by payment of a dividend in shares of
 Common Stock) into a greater or lesser number of shares of Common Stock, then
 in each such case the amount set forth in the preceding sentence with respect
 to the conversion, exchange or change of shares of Series A Preferred Stock
 shall be adjusted by multiplying such amount by a fraction, the numerator of
 which is the number of shares of Common Stock outstanding immediately after
 such event and the denominator of which is the number of shares of Common
 Stock that were outstanding immediately prior to such event.

 
	
  

 	
  

 	
  

 
	
 8.

 	
 No
 Redemption. The shares of Series A Preferred Stock
 shall not be redeemable from any holder.

 
	
  

 	
  

 	
  

 
	
 9.

 	
 Rank.
 The Series A Preferred Stock shall rank, with respect to the payment of
 dividends and the distribution of assets upon liquidation, dissolution or
 winding up of the Company, senior to the Common Stock.

 
	
  

 	
  

 	
  

 
	
 10.

 	
 Amendment.
 If any proposed amendment to the Certificate of Incorporation (including this
 Certificate of Designations) would alter, change or repeal any of the
 preferences, powers or special rights given to the Series A Preferred Stock
 so as to affect the Series A Preferred Stock adversely, then the holders of
 the Series A Preferred Stock shall be entitled to vote separately as a class
 upon such amendment, and the affirmative vote of two-thirds of the
 outstanding shares of the Series A Preferred Stock, voting separately as a
 class, shall be necessary for the adoption thereof, in addition to such other
 vote as may be required by the DGCL.

 
	
  

 	
  

 	
  

 
	
 11.

 	
 Fractional
 Shares. Series A Preferred Stock may be issued in
 fractions of a share which are integral multiples of one one-thousandth of a
 share of Series A Preferred Stock that shall entitle the holder, in
 proportion to such holder’s fractional shares to exercise voting rights,
 receive dividends, participate in distributions and to have the benefit of
 all other rights of holders of Series A Preferred Stock.

 


 [Signature appears
on the following page]


44






          IN
WITNESS WHEREOF, this Certificate of Designations has been executed on behalf
of the Company on March 17, 2009.


	
  

 	
  

 
	
  

 	 

 
	
  

 	
 Name: Jesus
 Oliveras

 
	
  

 	
 Title: Chief
 Financial Officer

 


45






EXHIBIT B

TO RIGHTS AGREEMENT


RIGHT
CERTIFICATE


	
  

 	
  

 	
  

 
	
 Certificate No. R-___

 	
  

 	
 ___
 Rights

 



THE RIGHTS REPRESENTED BY
THIS RIGHT CERTIFICATE ARE NOT EXERCISABLE AFTER MARCH 17, 2010 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.001PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS OWNED BY OR
TRANSFERRED TO ANY PERSON WHO IS OR BECOMES AN ACQUIRING PERSON (AS DEFINED IN
THE RIGHTS AGREEMENT) AND CERTAIN TRANSFEREES THEREOF WILL BECOME NULL AND VOID
AND WILL NO LONGER BE TRANSFERABLE.


RIGHT
CERTIFICATE


U.S.
PRECIOUS METALS, INC.


          This
Rights Certificate certifies that or its 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 and conditions of the Rights Agreement, dated
March 17, 2009 (as the same may be amended from time to time, the “Rights
Agreement”), between U.S. Precious Metals, Inc., a Delaware
corporation (the “Company”), and Interwest Transfer Company,
Inc. (the “Rights Agent”), to purchase from the Company at any time after
the Distribution Date (as defined in the Rights Agreement) and prior to 5:00
P.M., New York City time, on March 17, 2010 at the office or agency of the
Rights Agent designated for such purpose one one-thousandth of a fully paid
non-assessable share of the Company’s Series A Preferred Stock, par value
$0.00001 per share (the “Preferred Stock”), at a purchase price of
$10.00 per one one-thousandth of a share of Preferred Stock (the “Purchase
Price”), upon presentation and surrender of this Right Certificate
with the Form of Election to Purchase duly executed. The number of Rights
evidenced by this Right Certificate (and the number of one one-thousandths of a
share of Preferred Stock which may be purchased upon exercise hereof) set forth
above, and the Purchase Price set forth above, are the number and Purchase
Price as of March 17, 2009, based on the Preferred Stock as constituted at such
date. As provided in the Rights Agreement, the Purchase Price, the number of
one one-thousandths of a share of Preferred Stock (or other securities or
property) which may be purchased upon the exercise of the Rights and the number
of Rights evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.


          This
Right Certificate is subject to all of the terms and conditions of the Rights
Agreement, which terms and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement reference is
hereby made for a full description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Rights Agent, the Company
and the holders of the Right Certificates. Copies of the Rights Agreement are
on file at the principal executive offices of the Company. The Company will
mail to the holder of this Right Certificate a copy of the Rights Agreement
without charge after receipt of a written request therefor.


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


46






          Subject
to the provisions of the Rights Agreement, the Rights evidenced by this
Certificate (i) may be redeemed by the Company at a redemption price of $0.001
per Right or (ii) may be exchanged in whole or in part for shares of Preferred
Stock or shares of the Company’s Common Stock, par value $0.00001 per share.


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


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


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


          IN
WITNESS WHEREOF, the parties hereto have caused this Rights Certificate to be
duly executed and attested, as of ________________,_____.


	
  

 	
  

 	
  

 	
  

 
	
 ATTEST:

 	
  

 	
  

 	
 COMPANY:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 U.S. Precious Metals, Inc.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By:

 	
  

 
	 

 	
  

 	
  

 	 

 
	
 Name:

 	
  

 	
  

 	
 Name: M. Jack Kugler

 
	
 Title:

 	
  

 	
  

 	
 Title: Chief Executive
 Officer

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Countersigned:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 RIGHTS AGENT:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Interwest Transfer
 Company, Inc.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By:

 	
  

 
	
  

 	
  

 	
  

 	 

 
	
  

 	
  

 	
  

 	
 Name: Kurtis D. Hughes

 
	
  

 	
  

 	
  

 	
 Title: Vice President

 


47






FORM OF
REVERSE SIDE OF RIGHTS CERTIFICATE


FORM OF
ASSIGNMENT

(To be executed by the registered holder if such

holder desires to transfer the Right Certificate)


          FOR
VALUE RECEIVED _______________ hereby sells, assigns and transfers unto
_______________, who resides at or has its principal executive office at
_______________, the Rights represented by this Right Certificate, together
with all right, title and interest therein, and does hereby irrevocably
constitute and appoint _______________, as attorney-in-fact, to transfer said
Rights on the books of the Company, with full power of substitution.


	
  

 	
  

 	
  

 
	
 Dated: ________, 20___

 	
  

 	 

 
	
  

 	
  

 	
 Name:

 



Signature Guaranteed:


          Signatures
must be guaranteed by a bank, trust company, broker, dealer or other eligible
institution participating in a recognized signature guarantee medallion
program.


          The
undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by, were not acquired by the undersigned
from, and are not being sold, assigned or transferred to, an Acquiring Person
or an Affiliate or Associate thereof (as defined in the Rights Agreement).


	
  

 	
  

 	
  

 
	
 Dated: ________, 20___

 	
  

 	 

 
	
  

 	
  

 	
 Name:

 


FORM OF
ELECTION TO PURCHASE

(To be executed if holder desires to exercise

Rights represented by the Rights Certificate)


To the Rights Agent:


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


Name: _______________


SSN (or other identifying
number): _______________


	
  

 	
  

 
	
 Address:

 	
  

 
	
  

 	
  

 
	 

 	
  

 
	
  

 	
  

 
	 

 	
  

 
	
  

 	
  

 
	 

 	
  

 










Form of
Reverse Side of Right Certificate — continued


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


Name: _______________


SSN (or other identifying
number): _______________


	
  

 	
  

 
	
 Address:

 	
  

 
	
  

 	
  

 
	 

 	
  

 
	
  

 	
  

 
	 

 	
  

 
	
  

 	
  

 
	 

 	
  

 






	
  

 	
  

 	
  

 
	
 Dated: ________, 20___

 	
  

 	 

 
	
  

 	
  

 	
 Name:

 



Signature Guaranteed:


          Signatures
must be guaranteed by a bank, trust company, broker, dealer or other eligible
institution participating in a recognized signature guarantee medallion
program.


          The
undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by, were not acquired by the undersigned
from, and are not being sold, assigned or transferred to, an Acquiring Person
or an Affiliate or Associate thereof (as defined in the Rights Agreement).


	
  

 	
  

 	
  

 
	
 Dated: ________, 20___

 	
  

 	 

 
	
  

 	
  

 	
 Name:

 


NOTICE


          The
signature in the Form of Assignment or Form of Election to Purchase, as the
case may be, must conform to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any
change whatsoever. In the event the certification set forth above in the Form
of Assignment or the Form of Election to Purchase, as the case may be, is not
completed, such Assignment or Election to Purchase will not be honored.


49






EXHIBIT C

TO RIGHTS AGREEMENT


UNDER CERTAIN CIRCUMSTANCES
SET FORTH IN THE RIGHTS AGREEMENT, 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 RIGHTS AGREEMENT), WHETHER CURRENTLY HELD BY
OR ON BEHALF OF SUCH PERSON OR BY ANY SUBSEQUENT HOLDER, MAY BECOME NULL AND
VOID.


SUMMARY
OF RIGHTS TO PURCHASE SERIES A PREFERRED STOCK


          On
March 17, 2009, the Board of Directors of U.S. Precious Metals, Inc., a
Delaware corporation (the “Company”) authorized and declared a
dividend of one right (a “Right”) for each outstanding share of its
Common Stock, par value $0.00001 per share (the “Company Common Stock”), to
stockholders of record at the close of business on April 10, 2009 (the “Record Date”),
and authorized the issuance of one Right for each share of Company Common Stock
issued by the Company (except as otherwise provided in the Rights Agreement, as
defined below) between the Record Date and the Distribution Date (as defined
below). Each Right entitles the registered holder, subject to the terms of the
Rights Agreement (as defined below), to purchase from the Company one
one-thousandth of a share (a “Unit”) of Series A Preferred Stock, par
value $0.00001 per share (the “Preferred Stock”), at a price of $10.00 per
Unit, subject to adjustment. The purchase price is payable in cash or by
certified check, cashier’s check, or money order payable to the Company. The
description and terms of the Rights are set forth in a Rights Agreement between
the Company and Interwest Transfer Company, Inc., as rights agent (the “Rights Agent”),
dated as of March 17, 2009, as amended from time to time (the “Rights
Agreement”).


          The
Rights Agreement (which includes the Certificate of Designation attached as
Exhibit A thereto) has been filed with the Securities and Exchange Commission
as Exhibit 4.1 to the Registration Statement on Form 8-A dated March 19, 2009.
Copies of the Rights Agreement and the Certificate of Designation are available
free of charge from the Company. This summary description of the Rights
Agreement, the Rights, and the Preferred Stock does not purport to be complete
and is qualified in its entirety by reference to all of the provisions of the
Rights Agreement and the Certificate of Designation, including the definitions
therein of certain terms, which Rights Agreement and Certificate of Designation
are incorporated herein by reference.


The Rights Agreement


Certificates; Distribution Date.
Initially, the Rights will attach to all certificates representing shares of
the outstanding Company Common Stock, and no separate Rights Certificates (as
defined in the Rights Agreement) will be distributed. Subject to the provisions
of the Rights Agreement, the Rights will separate from the Company Common Stock
and the “Distribution
Date” will occur upon the earlier of (i) ten business days following
a public announcement (the date of such announcement being the “Stock
Acquisition Date”) that a person or group of affiliated or
associated persons (an “Acquiring Person”) has acquired or
otherwise obtained beneficial ownership of 15% or more of the then-outstanding
shares of Company Common Stock (or, if the tenth business day after the Stock
Acquisition Date occurs before the Record Date, the close of business on the
Record Date), and (ii) ten business days (or such later date as may be
determined by action of the Board of Directors) following the commencement of a
tender offer or exchange offer that would result in a person or group becoming
an Acquiring Person. Until the Distribution Date, (i) the Rights will be
evidenced by Company Common Stock certificates and will be transferred with and
only with such Company Common Stock certificates, (ii) new Company Common Stock
certificates issued after the Record Date (also including shares distributed
from Treasury) will contain a notation incorporating the Rights Agreement by
reference and (iii) the surrender for transfer of any certificates representing
the outstanding Company Common Stock will also constitute the transfer of the
Rights associated with the Company Common Stock represented by such
certificates.


50






An “Acquiring
Person” does not include certain persons specified in the Rights
Agreement.


The Rights are
not exercisable until the Distribution Date and will expire at the close of
business on March 17, 2010 unless earlier redeemed or exchanged
by the Company as described below. Under certain circumstances, as provided in
the Rights Agreement, the exercisability of the Rights may be suspended.


As soon as
practicable after the Distribution Date, Rights Certificates will be mailed to
holders of record of Company Common Stock as of the close of business on the
Distribution Date (and to each initial holder of certain shares of Company
Common Stock issued after the Distribution Date) and, thereafter, the separate
Rights Certificates alone will represent the Rights.


Flip In. If a person
becomes an Acquiring Person, then each holder of a Right will thereafter have
the right to receive, upon exercise, Units of Preferred Stock, or at the option
of the Company, shares of Company Common Stock (or, in certain circumstances,
cash, property, or other securities of the Company) having a value equal to two
times the exercise price of the Right. The exercise price is the purchase price
multiplied by the number of Units of Preferred Stock issuable upon exercise of
a Right prior to the event described in this paragraph. Notwithstanding any of
the foregoing, following the occurrence of the event set forth in this
paragraph, all Rights that are, or (under certain circumstances specified in
the Rights Agreement) were, beneficially owned by any Acquiring Person or any
affiliate or associate thereof (or certain transferees of any thereof) will be
null and void.


Flip Over. If, at
any time following the date that any person becomes an Acquiring Person, (i)
the Company is acquired in a merger or other business combination transaction
and the Company is not the surviving corporation, (ii) any person mergers with
the Company and all or part of the Company Common Stock is converted or
exchanged for securities, cash or property of the Company or any other person
or (iii) 50% of more of the Company’s assets, cash flow or earning power is
sold or transferred, each holder of a Right (except Rights which previously
have been voided as described above) shall thereafter have the right to
receive, upon exercise, common stock of the acquiring company having a market
value equal to two times the exercise price of the Right.


Redemption. At any
time before there is an Acquiring Person, the Board of Directors may redeem the
Rights in whole, but not in part, at a price of $0.001 per Right (subject to
adjustment in certain events) payable, at the election of the Board of
Directors, in cash, shares of Company Common Stock, or other consideration
deemed appropriate by the Board of Directors. Immediately upon the action of
the Board of Directors ordering the redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will be to receive the
Redemption Price (as defined in the Rights Agreement).


51






Exchange. At any
time after there is an Acquiring Person, the Board of Directors may exchange
all or part of the then-outstanding and exercisable Rights (other than Rights
owned by an Acquiring Person that shall have been null and void) for shares of
Company Common Stock at an exchange ratio of one share of Company Common Stock
(or one-thousandth of a share of Preferred Stock) per Right (subject to
adjustment in certain events).


No Stockholder Rights; Taxation.
Until a Right is exercised, the holder thereof, as such, will have no rights as
a stockholder of the Company, including, without limitation, the right to vote
or to receive dividends. While the distribution of the Rights will not be taxable
to stockholders or to the Company, stockholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Units of Preferred Stock (or other consideration) or for common
stock of the acquiring company or in the event of the redemption of Rights as
set for above.


Amendment. Any of
the provisions of the Rights Agreement may be amended without the approval of
the holders of the Rights or Company Common Stock so long as the Rights are
then redeemable. After such date, the provisions of the Rights Agreement may be
amended in order to cure any ambiguity, defect or inconsistency, to shorten or
lengthen any time period under the Rights Agreement, or to make changes which
do not adversely affect the interests of holders of Rights (excluding the
interests of any Acquiring Person); provided, that, no amendment
shall be made to (i) lengthen the time period governing redemption at such time
as the Rights are not redeemable or (ii) decrease the Redemption Price (as
defined in the Rights Agreement).


Description of Preferred Stock


The Units of
Preferred Stock that may be acquired upon exercise of the Rights will be
nonredeemable.


Each share of
Preferred Stock will be entitled, when, as and if declared, to a minimum
preferential quarterly dividend payment equal to the greater of (a) $1.00 per
share and (b) an amount equal to 1,000 times the dividend declared per share of
Company Common Stock.


In the event
of liquidation, the holders of shares of Preferred Stock will receive a
preferred liquidation payment equal to the greater of (A) $1,000 per share
(plus any accrued but unpaid dividends) or (B) an aggregate amount per share
(subject to adjustment), equal to 1,000 times the aggregate amount to be
distributed per share to holders of shares of Company Common Stock.



Each share of
Preferred Stock will have 1,000 votes, voting together with the Company Common
Stock as a single class.


In the event
of any merger, consolidation or other transaction in which shares of Company
Common Stock are exchanged, each share of Preferred Stock will be entitled to
receive 1,000 times the amount received per share of Company Common Stock.


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The rights of
holders of the Preferred Stock with respect to dividends, liquidation and
voting, and in the event of mergers and consolidations, are protected by
customary anti-dilution provisions.


The economic value of one Unit
of Preferred Stock that may be acquired upon the exercise of each Right should
approximate the economic value of one share of Company Common Stock.


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