exv4w1






Exhibit
4.1




EXECUTION VERSION




MOLECULAR INSIGHT PHARMACEUTICALS, INC.




and




AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC




Rights Agent




 






RIGHTS AGREEMENT




Dated as of January 30, 2009





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	Section 1. Certain Definitions
	 	 	1	 
	 
	Section 2. Appointment of Rights Agent
	 	 	3	 
	 
	Section 3. Issue of Right Certificates
	 	 	4	 
	 
	Section 4. Form of Right Certificates
	 	 	5	 
	 
	Section 5. Countersignature and Registration
	 	 	5	 
	 
	Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates
	 	 	6	 
	 
	Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights
	 	 	6	 
	 
	Section 8. Cancellation and Destruction of Right Certificates
	 	 	7	 
	 
	Section 9. Reservation and Availability of Common Shares
	 	 	8	 
	 
	Section 10. Common Shares Record Date
	 	 	8	 
	 
	Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights
	 	 	8	 
	 
	Section 12. Certificate of Adjusted Purchase Price or Number of Shares
	 	 	14	 
	 
	Section 13. Consolidation, Merger, Share Exchange or Sale or Transfer of Assets or Earning Power
	 	 	14	 
	 
	Section 14. Fractional Rights and Fractional Shares
	 	 	16	 
	 
	Section 15. Rights of Action
	 	 	17	 
	 
	Section 16. Agreement of Right Holders
	 	 	17	 
	 
	Section 17. Right Certificate Holder Not Deemed a Shareholder
	 	 	18	 
	 
	Section 18. Concerning the Rights Agent
	 	 	18	 
	 
	Section 19. Merger or Consolidation or Change of Name of Rights Agent
	 	 	18	 
	 
	Section 20. Duties of Rights Agent
	 	 	19	 
	 
	Section 21. Change of Rights Agent
	 	 	20	 
	 
	Section 22. Issuance of New Right Certificates
	 	 	21	 
	 
	Section 23. Redemption
	 	 	21	 






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	Section 24. Exchange
	 	 	21	 
	 
	Section 25. Notice of Certain Events
	 	 	22	 
	 
	Section 26. Notices
	 	 	23	 
	 
	Section 27. Supplements and Amendments
	 	 	23	 
	 
	Section 28. Successors
	 	 	24	 
	 
	Section 29. Benefits of this Agreement
	 	 	24	 
	 
	Section 30. Severability
	 	 	24	 
	 
	Section 31. Governing Law
	 	 	24	 
	 
	Section 32. Counterparts
	 	 	25	 
	 
	Section 33. Descriptive Headings
	 	 	25	 
	 
	Section 34. Determinations and Actions by the Board of Directors
	 	 	25	 






Exhibit A – Form of Right Certificate




Exhibit B – Summary of Rights to Purchase Common Stock





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RIGHTS AGREEMENT 




          THIS AGREEMENT, dated as of January 30, 2009, between MOLECULAR INSIGHT PHARMACEUTICALS, INC.,
a Massachusetts corporation (the “Company”), and AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, a
New York limited liability trust company (the “Rights Agent”).




          WHEREAS, the Board of Directors of the Company desires to provide shareholders of the Company
with the opportunity to benefit from the long-term prospects and value of the Company and to ensure
that shareholders of the Company receive fair and equal treatment in the event of any proposed
takeover of the Company;




          WHEREAS, the Board of Directors of the Company has authorized and declared a dividend of one
right (a “Right”) for each Common Share (as such term is hereinafter defined) of the Company
outstanding upon the close of business on February 13, 2009 (the “Record Date”) payable on February
27, 2009 (the “Payment Date”), and has authorized and directed the issuance of one Right with
respect to each Common Share that shall become outstanding between the Record Date and the earliest
of the Distribution Date, the Redemption Date and the Final Expiration Date (as such terms are
hereinafter defined), each Right representing the right to purchase one-half of one Common Share of
the Company upon the terms and subject to the conditions hereinafter set forth; and




          WHEREAS, the Company desires to appoint the Rights Agent to act as rights agent hereunder, in
accordance with the terms and conditions hereof.




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




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




          (a) “Acquiring Person” shall mean any Person (as such term is hereinafter defined) who or
which, together with all Affiliates and Associates (as such terms are hereinafter defined) of such
Person, shall be the Beneficial Owner (as such term is hereinafter defined) of twenty percent (20%)
or more of the Common Shares of the Company then outstanding, but shall not include the Company,
any Subsidiary (as such term is hereinafter defined) of the Company, any employee benefit plan of
the Company or any Subsidiary of the Company, any entity holding Common Shares for or pursuant to
the terms of any such plan, or any trustee, administrator or fiduciary of such a plan.
Notwithstanding the foregoing,





          (i) no Person who, at the close of business on the date hereof, shall be the Beneficial
Owner of twenty percent (20%) or more of the Common Shares of the Company then outstanding
shall be deemed an “Acquiring Person”; provided, however, that if a Person is, at the close
of business on the date hereof, the Beneficial Owner of twenty percent (20%) or more of the
Common Shares of the Company then outstanding and shall thereafter become the Beneficial
Owner of any additional Common Shares of the Company at any time that the Person is or
thereby becomes the Beneficial Owner of twenty percent (20%) or more of the Common Shares of
the Company then outstanding (other than Common Shares acquired solely as a result of
corporate action of the Company not caused, directly or indirectly, by such Person), then
such Person shall be deemed to be an “Acquiring Person”; and



 









 






          (ii) no Person shall become an “Acquiring Person” as a result of an acquisition of
Common Shares by the Company which, by reducing the number of shares outstanding, increases
the proportionate number of shares beneficially owned by such Person to twenty percent (20%)
or more of the Common Shares of the Company then outstanding; provided, however, that if a
Person would, but for the foregoing, become an Acquiring Person by reason of share purchases
by the Company and shall, after such share purchases by the Company, become the Beneficial
Owner of any additional Common Shares of the Company at any time that the Person is or
thereby becomes the Beneficial Owner of twenty percent (20%) or more of the Common Shares of
the Company then outstanding (other than Common Shares acquired solely as a result of
corporate action of the Company not caused, directly or indirectly, by such Person), then
such Person shall be deemed to be an “Acquiring Person”.


Notwithstanding the foregoing, if the Board of Directors of the Company determines in good faith
that a Person who would otherwise be an “Acquiring Person”, as defined pursuant to the foregoing
provisions of this Section 1(a), has become such inadvertently, and such Person divests as
promptly as practicable a sufficient number of Common Shares so that such Person would no longer be
an “Acquiring Person,” as defined pursuant to the foregoing provisions of this Section
1(a), then such Person shall not be deemed to be an “Acquiring Person” for any purposes of this
Agreement.




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




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





          (i) which such Person or any of such Person’s Affiliates or Associates
beneficially owns, directly or indirectly;




          (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), or upon the exercise of
conversion rights, exchange rights, rights (other than these Rights), warrants or
options, or otherwise; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, 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; or (B) the right to vote pursuant to any agreement, arrangement or
understanding; provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, any security 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 of
the Exchange Act and (2) is not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report); or




          (iii) which are beneficially owned, directly or indirectly, by any other Person
with which such Person or any of such Person’s Affiliates or Associates has any
agreement, arrangement or understanding (other than customary agreements with and
between underwriters and selling group members with respect to a bona fide public



2









 







offering of securities) for the purpose of, or with respect to, acquiring,
holding, voting (except to the extent contemplated by the proviso to
Section 1(c)(ii)(B)) or disposing of any securities of the Company.


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




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




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




          (f) “Common Shares” when used with reference to the Company shall mean the shares of common
stock, par value $0.01 per share, of the Company (“Common Stock”), or shares having equivalent
rights, privileges and preferences to common stock. “Common Shares” when used with reference to
any Person other than the Company shall mean the capital stock (or 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 that ultimately control such first-mentioned Person.




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




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




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




          (j) “Redemption Date” shall have the meaning set forth in Section 7 hereof.




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




          (l) “Subsidiary” of any Person shall mean any corporation or other entity of which a majority
of the voting power of the voting equity securities or equity interest is owned, directly or
indirectly, by such Person.




          Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent to act as agent
for the Company and the holders of the Rights (who, in accordance with Section 3 hereof,
shall prior to the Distribution Date also be the holders of the Common Shares of 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.




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          Section 3. Issue of Right Certificates.




          (a) Until the earlier of (i) the Shares Acquisition Date or (ii) the tenth Business Day (or
such later date as may be determined by action of the Company’s Board of Directors prior to such
time as any Person becomes an Acquiring Person) after the date of the commencement of, or of the
first public announcement of the intention of any Person to commence, a tender or exchange offer
the consummation of which would result in any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any Subsidiary of the Company, any entity
holding Common Shares for or pursuant to the terms of any such plan, or any trustee, administrator,
or fiduciary of such a plan) becoming the Beneficial Owner of Common Shares of the Company
aggregating twenty percent (20%) or more of the then outstanding Common Shares (including in either
case any such date which is after the date of this Agreement and prior to the Payment Date; the
earlier of such dates being herein referred to as the “Distribution Date”; provided, however, that
if the Shares Acquisition Date or the tenth Business Day after the commencement or announcement, as
the case may be, occurs before the Record Date, “Distribution Date” shall mean the Record Date),
(x) the Rights will be evidenced (subject to the provisions of Section 3(b) hereof) by the
certificates for Common Shares of the Company registered in the names of the holders thereof (which
certificates shall also be deemed to be Right Certificates) and not by separate Right Certificates,
and (y) the right to receive Right Certificates will be transferable only in connection with the
transfer of Common Shares of the Company. 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 Shares of the Company as of the close of
business on the Distribution Date, at the address of such holder shown on the records of the
Company, a Right Certificate, in substantially the form of Exhibit A hereto (a “Right
Certificate”), evidencing one Right for each Common Share so held. As of the Distribution Date,
the Rights will be evidenced solely by such Right Certificates.




          (b) The Company has prepared a Summary of Rights to Purchase Common Stock, attached as
Exhibit B hereto (the “Summary of Rights”), a copy of which is available free of charge
from the Company. With respect to certificates for Common Shares of the Company outstanding as of
the Record Date, until the Distribution Date, the Rights will be evidenced by such certificates
registered in the names of the holders thereof. Until the Distribution Date (or the earlier of the
Redemption Date or Final Expiration Date), the surrender for transfer of any certificate for Common
Shares of the Company outstanding on the Record Date, with or without a copy of the Summary of
Rights attached thereto, shall also constitute the transfer of the Rights associated with the
Common Shares represented thereby.




          (c) Certificates for Common Shares of the Company that become outstanding (including, without
limitation, certificates for reacquired Common Shares referred to in the last sentence of this
Section 3(c) and certificates issued on the transfer of Common Shares) after the Record
Date but prior to the earliest of the Distribution Date, the Redemption Date or the Final
Expiration Date shall have impressed on, printed on, written on or otherwise affixed to them a
legend in substantially the following form:





     This certificate also evidences and entitles the holder hereof to certain
rights as set forth in a Rights Agreement between Molecular Insight Pharmaceuticals,
Inc. and American Stock Transfer & Trust Company, LLC, dated as of January 30, 2009,
and as such agreement may be amended (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 Molecular Insight Pharmaceuticals, 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. Molecular Insight Pharmaceuticals, Inc.



4









 







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 issued to, or held by, an Acquiring Person
or any Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement), whether held by such person or any subsequent holder, shall become null
and void.


With respect to such certificates containing the foregoing legend, until the Distribution Date, the
Rights associated with the Common Shares represented by such certificates shall be evidenced by
such certificates alone, and the surrender for transfer of any such certificate shall also
constitute the transfer of the Rights associated with the Common Shares represented thereby. In
the event that the Company purchases or acquires any Common Shares after the Record Date but prior
to the Distribution Date, any Rights associated with such Common Shares shall be deemed cancelled
and retired so that the Company shall not be entitled to exercise any Rights associated with the
Common Shares which are no longer outstanding.




          Section 4. Form of Right Certificates. The Right Certificates (and the forms of election to purchase
Common Shares and of assignment to be printed on the reverse thereof) shall be substantially the
same as Exhibit A hereto and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Rights may from time to time be listed, or to conform to usage.
Subject to the provisions of Section 22 hereof, the Right Certificates shall entitle the
holders thereof to purchase such number of Common Shares as shall be set forth therein at the
purchase price per Common Share set forth therein (the “Purchase Price”), but the amount and type
of securities purchasable upon exercise of each Right and the Purchase Price shall be subject to
adjustment as provided herein.




          Section 5. Countersignature and Registration.




          (a) The Right Certificates shall be executed on behalf of the Company by its Chairman of the
Board, Chief Executive Officer, President, Chief Operating Officer or Chief Financial Officer
either manually or by facsimile signature, shall have affixed thereto the Company’s seal or a
facsimile thereof, and shall be attested by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, either manually or by facsimile signature. The Right
Certificates shall be manually countersigned by the Rights Agent 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 individual 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
individual 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 Rights Agreement any such individual was not such an officer.




          (b) Following the Distribution Date, the Rights Agent will keep or cause to be kept, at its
principal office, 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.




5









 








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




          (a) Subject to the provisions of Section 14 hereof, at any time after the close of
business on the Distribution Date, and at or prior to the close of business on the earlier of the
Redemption Date or the Final Expiration Date, any Right Certificate or Right Certificates (other
than Right Certificates representing Rights that have become void pursuant to
Section 11(a)(ii) hereof or that have been exchanged pursuant to Section 24 hereof)
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 Common Shares 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 principal office of the Rights Agent. Thereupon the Rights Agent shall
countersign and deliver to the person entitled thereto a Right Certificate or Right Certificates,
as the case may be, as so requested. The Company may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any transfer, split up,
combination or exchange of Right Certificates.




          (b) Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to
them of the loss, theft, destruction or mutilation of a Right Certificate and, in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to them, and, at the
Company’s request, reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of the Right
Certificate if mutilated, the Company will make 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.




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




          (a) As provided herein, each Right shall be exercisable to purchase one-half of one Common
Share, subject to further adjustment. The registered holder of any Right Certificate may exercise
the Rights evidenced thereby (except as otherwise provided herein) in whole or in part at any time
after the Distribution Date upon surrender of the Right Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the Rights Agent at the principal office of
the Rights Agent, together with payment of the Purchase Price for each Common Share as to which the
Rights are exercised, at or prior to the earliest of (i) the Close of Business on January 30, 2019,
subject to extension (the “Final Expiration Date”), (ii) the time at which the Rights are redeemed
as provided in Section 23 hereof (the “Redemption Date”), and (iii) the time at which such
Rights are exchanged as provided in Section 24 hereof; provided, however, that if the
number of Rights exercised would entitle the holder thereof to receive any fraction of a Common
Share greater than one-half of a Common Share, then the holder thereof shall not be entitled to
exercise such Rights unless such holder concurrently purchases from the Company (and in such event
the Company shall sell to such holder), at a price in proportion to the Purchase Price, an
additional fraction of a Common Share which, when added to the number of Common Shares to be
received upon such exercise, will equal a whole number of Common Shares.




          (b) The Purchase Price for each full Common Share pursuant to the exercise of a Right shall
initially be $35.00 (equivalent to $17.50 for each one-half of one Common Share), 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)
below.




          (c) Upon receipt of a Right Certificate representing exercisable Rights, with the form of
election to purchase duly executed, accompanied by payment of the Purchase Price for the Common




6









 




Shares 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 9 hereof, as set forth
below, the Rights Agent shall thereupon promptly (i) requisition from any transfer agent of the
Common Shares certificates for the number of Common Shares to be purchased and the Company hereby
irrevocably authorizes its transfer agent to comply with all such requests, (ii) when appropriate,
requisition from the Company the amount of cash to be paid in lieu of issuance of fractional Common
Shares in accordance with Section 14 hereof, (iii) after receipt of such certificates,
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, deliver such cash to or upon the order of the registered holder of such
Right Certificate. The payment of the Purchase Price (as such amount may be reduced pursuant to
Section 11(a)(iii) hereof) shall be made by certified check, cashier’s check, bank draft or
money order payable to the order of the Company, except that, if so provided by the Board of
Directors of the Company, the payment of the Purchase Price following the occurrence of a
Section 11(a)(ii) Event (as hereinafter defined) and until the first occurrence of a Section 13
Event (as hereinafter defined) may be made wholly or in part by delivery of a certificate or
certificates (with appropriate stock powers executed in blank attached thereto) evidencing a number
of Common Shares of the Company equal to the then Purchase Price divided by the closing price (as
determined pursuant to Section 11(d) hereof) per Common Share on the Trading Day (as such
term is hereinafter defined) immediately preceding the date of such exercise. If the Company is
obligated to issue other securities of the Company, pay cash and/or distribute other property
pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that
such other securities, cash and/or other property are available for distribution by the Rights
Agent, if and when appropriate.




          (d) In case the registered holder of any Right Certificate shall exercise less than all the
Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be 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 take any action with respect to a registered holder of a Right
Certificate upon the occurrence of any purported transfer, assignment or exercise as set forth in
this Section 7 unless such registered holder shall have (i) completed and signed the
certificate following the form of assignment or election to purchase set forth on the reverse of
the Right Certificate surrendered for such transfer, assignment or exercise, and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall reasonably request.




          Section 8. Cancellation and Destruction of 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
Rights Agreement. The Company shall deliver to the Rights Agent for cancellation and retirement,
and the Rights Agent shall so cancel and retire, any other Right Certificate purchased or acquired
by the Company otherwise than upon the exercise thereof. The Rights Agent shall deliver all
cancelled Right Certificates to the Company or shall, at the written request of the Company,
destroy such cancelled Right Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company. Subject to applicable law and regulation, the Rights Agent
shall maintain in a retrievable database electronic records of all cancelled or destroyed Right
Certificates which have been canceled or destroyed by the Rights Agent. The Rights Agent shall
maintain such electronic records or physical records for the time period
required by applicable law and regulation. Upon written request of the Company (and at the expense
of the Company), the Rights Agent shall provide to the Company or its designee copies of such
electronic records or physical records relating to Right Certificates cancelled or destroyed by the
Rights Agent.




7









 








          Section 9. Reservation and Availability of Common Shares.




          (a) The Company covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued Common Shares or any authorized and issued Common Shares held in its
treasury the number of Common Shares that will be sufficient to permit the exercise in full of all
outstanding Rights in accordance with Section 7.




          (b) So long as the Common Shares issuable upon the exercise of Rights may be listed on any
national securities exchange, the Company shall use its best efforts to cause, from and after such
time as the Rights become exercisable, all Common Shares reserved for such issuance to be listed on
such exchange upon official notice of issuance upon such exercise.




          (c) The Company covenants and agrees that it will take all such action as may be necessary to
ensure that all Common Shares delivered upon exercise of Rights shall, at the time of delivery of
the certificates for such shares (subject to payment of the Purchase Price), be duly and validly
authorized and issued and fully paid and nonassessable shares (except as otherwise provided by any
corporation law applicable to the Company).




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




          Section 10. Common Shares Record Date. Each Person in whose name any certificate for Common Shares is
issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of
record of the Common Shares 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) was made; provided, however, that if the date of
such surrender and payment is a date upon which the Common Shares 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 the Common Shares transfer
books of the Company are open.




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





          (a) (i) In the event the Company shall at any time after the date of this
Agreement (A) declare a dividend on the Common Shares payable in Common Shares, (B)
split or subdivide the outstanding Common Shares, (C) combine the outstanding Common
Shares into a smaller number of Common Shares or (D) issue any shares of its capital
stock in a reclassification of the Common Shares (including any such



8









 







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, 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 Common Shares transfer books of the Company were
open, such holder would have owned upon such exercise and been entitled to receive
by virtue of such dividend, subdivision, combination or reclassification; 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. If an event occurs which would require
an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the
adjustment provided for in this Section 11(a)(i) shall be in addition to,
and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii).




          (ii) Subject to Section 24 of this Agreement, in the event any Person
shall become an Acquiring Person, other than pursuant to any transaction set forth
in Section 13(a), each holder of a Right shall thereafter have a right to
receive, upon exercise thereof at a price equal to two (2) times the then current
Purchase Price per full Common Share multiplied by the fractional number of a Common
Share or the number of Common Shares for which a Right is then exercisable, in
accordance with the terms of this Agreement, such number of Common Shares as shall
equal the result obtained by (x) multiplying two (2) times the then current Purchase
Price per full Common Share by the fractional number of a Common Share or the number
of Common Shares for which a Right is then exercisable and dividing that product by
(y) 50% of the then current per share market price of the Common Shares of the
Company (determined pursuant to Section 11(d)) on the date the Person became
an Acquiring Person (such number of shares, the “Adjustment Shares”).




          From and after such time as a Person becomes an Acquiring Person (a
“Section 11(a)(ii) Event”), any Rights that are or were acquired or beneficially
owned by such Acquiring Person (or any Associate or Affiliate of such Acquiring
Person) shall be void and any holder of such Rights shall thereafter have no right
to exercise such Rights under any provision of this Agreement. No Right Certificate
shall be issued pursuant to Section 3 that represents Rights beneficially
owned by an Acquiring Person whose Rights would be void pursuant to the preceding
sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued
at any time upon the transfer of any Rights to an Acquiring Person whose Rights
would be void pursuant to the preceding sentence or any Associate or Affiliate
thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any
Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person
whose Rights would be void pursuant to the preceding sentence shall be cancelled.
The Company shall use all reasonable efforts to ensure that the provisions of this
paragraph 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.




          (iii) In lieu of issuing any Common Shares in accordance with Section
11(a)(ii) hereof, the Company, acting by or pursuant to a resolution of the
Board of Directors of the Company, may, and in the event that there shall not be
sufficient Common



9









 







Shares of the Company (x) which are authorized by the Company’s
Articles of Organization but not issued (and not reserved for issuance for purposes
other than upon exercise of the Rights) or (y) which are issued but not outstanding
to permit the exercise in full of the Rights in accordance with Section
11(a)(ii), the Company, acting by or pursuant to a resolution of the Board of
Directors of the Company, shall: (A) determine the excess of (1) the value of the
Adjustment Shares issuable upon the exercise of a Right (the “Current Value”) over
(2) the Purchase Price (such excess, the “Spread”), and (B) with respect to each
Right, make adequate provision to substitute for the Adjustment Shares, upon payment
of the applicable Purchase Price, (1) equity securities of the Company (including,
without limitation, shares of preferred stock, or units of shares of preferred stock
or Common Stock) which the Board of Directors of the Company has deemed to have the
same value as Common Shares (such shares of preferred stock or unites of shares of
preferred stock or Common Stock, hereinafter referred to as “Common Stock
Equivalents”), (2) cash, (3) a reduction in the Purchase Price, (4) debt securities
of the Company, (5) other assets, or (6) any combination of the foregoing, having an
aggregate value equal to the Current Value, where such aggregate value has been
determined by the Board of Directors of the Company based upon the advice of a
nationally recognized investment banking firm selected by the Board of Directors of
the Company; provided, however, if the Company shall not have made adequate
provision to substitute for the Adjustment Shares pursuant to clause (B) above
within thirty (30) days following the occurrence of a Section 11(a)(ii) Event (the
“Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver,
upon the surrender for exercise of a Right and without requiring payment of any
portion of the Purchase Price, Common Shares (to the extent available) and then, if
necessary, cash, which shares and/or cash have an aggregate value equal to the
Spread. If the Board of Directors of the Company shall determine in good faith that
it is likely that sufficient additional Common Shares might be authorized for
issuance for exercise in full of the Rights, the thirty (30) day period set forth
above may be extended to the extent necessary, but not more than ninety (90) days
after the Section 11(a)(ii) Trigger Date, in order that the Company may seek
shareholder approval for the authorization of such additional shares (such period,
as it may be extended, the “Substitution Period”). To the extent that the Company
determines that some action need be taken pursuant to the first and/or second
sentences of this Section 11(a)(iii), the Company (x) shall provide, subject
to the last paragraph of Section 11(a)(ii) 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 to seek any authorization
of additional shares and/or to decide the appropriate form of distribution to be
made pursuant to such first sentence and to determine the value thereof. In the
event of any such suspension, the Company shall issue a public announcement stating
that the exercisability of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in effect. For
purposes of this Section 11(a)(iii), the value of the Common Shares shall be
the current per share market price (as determined pursuant to Section 11(d)
hereof) of the Common Shares on the Section 11(a)(ii) Trigger Date and the value of
any Common Stock Equivalent shall be deemed to have the same value as the Common
Shares on such date.



          (b) In case the Company shall fix a record date for the issuance of rights, options or
warrants to all holders of Common Shares entitling them (for a period expiring within 45 calendar
days after such record date) to subscribe for or purchase Common Shares or securities convertible
into Common Shares at a price per Common Share (or having a conversion price per share, if a
security convertible into Common Shares) less than the then current per share market price of the
Common Shares (as defined in Section 11(d)) on such record date, the Purchase Price to be
in effect after such record date




10









 




shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which shall be the number of
Common Shares outstanding on such record date plus the number of Common Shares which the aggregate
offering price of the total number of Common 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 the denominator of which shall be the number of Common Shares outstanding on such
record date plus the number of additional Common 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 of Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent. Common 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. 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.




          (c) In case the Company shall fix a record date for the making of a distribution to all
holders of the Common Shares (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 Common Shares) or subscription rights or warrants (excluding those referred to in
Section 11(b)), the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the then current per share market price of the Common
Shares (as defined in Section 11(d)) on such record date, less the fair market value (as
determined in good faith by the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent) of the portion of the assets or evidences of
indebtedness so to be distributed or of such subscription rights or warrants applicable to one
Common Share and the denominator of which shall be such current per share market price of the
Common Shares; 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. 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.




          (d) For the purpose of any computation hereunder, the “current per share market price” of the
Common Shares on any date shall be deemed to be the average of the daily closing prices per Common
Share for the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior
to such date; provided, however, that in the event that the current per share market price of the
Common Shares is determined during a period following the announcement by the issuer of such Common
Shares of (i) a dividend or distribution on such Common Shares payable in Common Shares or
securities convertible into Common Shares, or (ii) any subdivision, combination or reclassification
of Common Shares and prior to the expiration of 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 Common Share. The closing price for each Trading Day shall be
the last sale price, regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or admitted to trading
on the principal national securities exchange on which the Common Shares are listed or admitted to
trading or, if the Common Shares are not listed or




11









 




admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the OTC Bulletin Board or such other system
then in use, or, if on any such date the Common Shares are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional market maker making a
market in the Common Shares selected by the Board of Directors of the Company. The term “Trading
Day” shall mean a day on which the principal national securities exchange on which the Common
Shares are listed or admitted to trading is open for the transaction of business or, if the Common
Shares are not listed or admitted to trading on any national securities exchange, a Business Day.




          (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 which by reason of this Section 11(e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest ten-thousandth of a Common
Share 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 date of the
expiration of the right to exercise any Rights.




          (f) If, as a result of an adjustment made pursuant to Section 11(a), the holder of any
Right thereafter exercised shall become entitled to receive any shares of capital stock of the
Company other than Common Shares, thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Common Shares contained in
Section 11(a) through (c), inclusive, and the provisions of Sections 7, 9, 10 and
13 with respect to the Common Shares 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 Common Shares 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 Common Shares (calculated to the nearest ten-thousandth of a Common Share) obtained by
(i) multiplying (x) the number of Common Shares covered by a Right immediately prior to this
adjustment by (y) the Purchase Price in effect immediately prior to such adjustment of the Purchase
Price and (ii) dividing the product so obtained by the Purchase Price in effect immediately after
such adjustment of the Purchase Price.




          (i) The Company may elect on or after the date of any adjustment of the Purchase Price to
adjust the number of Rights, in substitution for any adjustment in the number of Common Shares
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 Common Shares 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
ten-thousandth) obtained by dividing the Purchase Price in effect immediately prior to adjustment
of the Purchase Price by the Purchase Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may




12









 




be the date on which the Purchase Price is adjusted or
any day thereafter, but, if the Right Certificates have been issued, shall be at least 10 days
later than the date of the public announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the Company shall, as
promptly as practicable, cause to be distributed to holders of record of Right Certificates on such
record date Right Certificates evidencing, subject to Section 14 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 after 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.




          (j) Irrespective of any adjustment or change in the Purchase Price or the number of Common
Shares 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 Common Shares 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 par value, if any, of the Common Shares 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 (except as otherwise provided by
any corporation law applicable to the Company) Common 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 issuance to the holder of any Right exercised after
such record date of the Common Shares and other capital stock or securities of the Company, if any,
issuable upon such exercise over and above the number of Common Shares and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price
in effect prior to such adjustment; provided, however, that the Company shall deliver to such
holder a due bill or other appropriate instrument evidencing such holder’s right to receive such
additional shares upon the occurrence of the event requiring such adjustment.




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




          (n) The Company covenants and agrees that it shall not, at any time after the earlier of the
Distribution Date or the Shares Acquisition Date, (i) consolidate with any other Person (other than
a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof),
(ii) merge with or into any other Person (other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof), (iii) sell or transfer (or permit any Subsidiary
to sell or transfer), in one transaction, or a series of related transactions, assets or




13









 




earning
power aggregating more than 50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which complies with Section 11(o) hereof)
or (iv) consummate a share exchange with any other Person, if at the time of or immediately after
such consolidation, merger, sale or share exchange (A) 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, (B) prior to,
simultaneously with or immediately after such consolidation, merger, sale or share exchange the
shareholders of the Person who constitute, 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 and Associates or (C) the form or nature of organization of
the Principal Party would preclude or limit the exercisability of the Rights.




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




          Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an adjustment is made
as provided in Sections 11 and 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 Shares 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.




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




          (a) In the event that, following the Shares Acquisition Date, directly or indirectly, (x) the
Company shall consolidate with, or merge with and into, any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section 11(o) hereof), and the Company
shall not be the continuing or surviving corporation of such consolidation or merger; (y) any
Person (other than a Subsidiary of the Company in a transaction that complies with
Section 11(o) hereof) shall consolidate with, or merge with or into, the Company, and the
Company shall be the continuing or surviving corporation of such consolidation or merger, or any
Person or Persons (other than a Subsidiary of the Company in a transaction that complies with
Section 11(o) hereof) shall consummate a share exchange with the Company, and, in
connection with such consolidation, merger or share exchange, all or part of the outstanding Common
Shares of the Company shall be changed into or exchanged for stock or other securities of any other
Person (or the Company) or cash or any other property; or (z) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one transaction
or a series of related transactions, assets or earning power aggregating more than 50% of the
assets or earning power of the Company and its Subsidiaries (taken as a whole) to any Person or
Persons (other than the Company or any Subsidiary of the Company in one or more transactions each
of which complies with Section 11(o) hereof), then, in each such case, proper provision
shall be made so that: (i) each holder of a Right (except as otherwise provided herein) shall
thereafter have the right to receive,
upon the exercise thereof at a price equal to two (2) times the then current Purchase Price
per full Common Share multiplied by the fractional number of a Common Share or the number of Common
Shares for which a Right is then exercisable (or, if a Section 11(a)(ii) Event has occurred prior
to the first occurrence of any of the events described in clauses (x), (y) or (z) above (a
“Section 13 Event”), two (2) times the Purchase Price per full Common Share in effect immediately
prior to the first occurrence of a Section 11(a)(ii) Event multiplied by the fractional number of a
Common Share or the number of Common Shares for which a Right was exercisable immediately prior to
such first occurrence), in




14









 




accordance with the terms of this Agreement, such number of validly
authorized and issued, fully paid, nonassessable (except as otherwise required by any corporation
law applicable to the Principal Party (as such term is hereinafter defined)) and freely tradeable
Common Shares of the Principal Party, not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall be equal to the result obtained by (1) multiplying two
(2) times the then current Purchase Price per full Common Share by the fractional number of a
Common Share or the number of Common Shares for which a Right is exercisable immediately prior to
the first occurrence of a Section 13 Event (or, if a Section 11(a)(ii) Event has occurred prior to
the first occurrence of a Section 13 Event, multiplying the fractional number of a Common Share or
the number of Common Shares for which a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event by two (2) times the Purchase Price per full Common Share
in effect immediately prior to such first occurrence), and dividing that product (which, following
the first occurrence of a Section 13 Event, shall be referred to as the “Purchase Price” for each
Right and for all purposes of this Agreement) by (2) 50% of the current market price (determined
pursuant to Section 11(d) hereof) per Common Share of such Principal Party on the date of
consummation of such Section 13 Event; (ii) such Principal Party shall thereafter be liable for,
and shall assume, by virtue of such Section 13 Event, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term “Company” shall thereafter be deemed to refer to such
Principal Party, it being specifically intended that the provisions of Section 11 hereof
shall apply only to such Principal Party following the first occurrence of a Section 13 Event; (iv)
such Principal Party shall take such steps (including, but not limited to, the reservation of a
sufficient number of its Common Shares) in connection with the consummation of any such transaction
as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly
as reasonably may be, in relation to its Common Shares thereafter deliverable upon the exercise of
the Rights; and (v) the provisions of Section 11(a)(ii) hereof shall be of no effect
following the first occurrence of any Section 13 Event.




          (b) “Principal Party” shall mean





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




          (ii) in the case of any transaction described in clause (z) of the first
sentence of Section 13(a), the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant to such
transaction or transactions;


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




15









 








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





          (i) prepare and file a registration statement under the Securities Act of 1933,
as amended (the “Act”), with respect to the Rights and the securities purchasable
upon exercise of the Rights on an appropriate form, and will use its best efforts to
cause such registration statement to (A) become effective as soon as practicable
after such filing and (B) remain effective (with a prospectus at all times meeting
the requirements of the Act) until the Final Expiration Date; and




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


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




          Section 14. Fractional Rights and Fractional Shares.




          (a) The Company shall not be required to issue fractions of Rights 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 in the principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the principal national securities exchange on which the Rights are
listed or admitted to trading or, if the Rights are not listed or admitted to trading on any
national securities exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported by the OTC Bulletin Board or
such other system then in use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a professional market
maker making a market in the Rights selected by the Board of Directors of the Company. 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 of Directors of the Company shall be used.




          (b) The Company shall not be required to issue fractions of Common Shares upon exercise of the
Rights or to distribute certificates which evidence fractional Common Shares. In lieu of
fractional Common Shares, equal to one-half of a Common Share or less, the Company shall pay to the
registered holders of Right Certificates at the time such Rights are exercised as herein provided
an amount in cash equal to the same fraction of the current market value of one Common Share. Any
exercise of




16









 




Rights that would entitle the holder thereof to receive any fraction of a Common Share
greater than one-half of a Common Share shall be governed by Section 7(a) hereof. For
purposes of this Section 14(b), the current market value of a Common Share shall be the
closing price of a Common Share (as determined pursuant to the second sentence of
Section 11(d) hereof) for the Trading Day immediately prior to the date of such exercise.




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




          Section 15. Rights of Action. All rights of action in respect of this Agreement, excepting the rights
of action given to the Rights Agent under Section 18 hereof, are vested in the respective
registered holders of the Right Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares); and any registered holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Shares), without the consent of the Rights Agent or of the holder
of any other Right Certificate (or, prior to the Distribution Date, of the Common Shares), may, in
his own behalf and for his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in respect of, his right to exercise
the Rights evidenced by such Right Certificate in the manner provided in such Right Certificate and
in this 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.




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




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




          (b) after the Distribution Date, the Right Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal office of the Rights Agent, duly endorsed
or accompanied by a proper instrument of transfer;




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




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




17









 








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




          Section 18. Concerning the Rights Agent.




          (a) The Company agrees to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses 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 in the premises.




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




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




          (a) Any corporation into which the Rights Agent or any successor Rights Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger or consolidation to
which the Rights Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the stock transfer or corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this 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, any such successor Rights Agent may adopt the countersignature of the predecessor
Rights Agent and deliver such
Right Certificates so countersigned; and in case at that time any of the Right Certificates
shall not have been countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in the name of the successor
Rights Agent; and in all such cases such Right Certificates shall have the full force provided in
the Right Certificates and in this Agreement.




          (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




18









 




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




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




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




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




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




          (d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the 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 authorization, execution and
delivery 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 Section 3, 11,
13, 23 or 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
actual notice that such change or adjustment is required); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or reservation of any
Common Shares or other securities to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Common Shares or other securities will, when issued, be validly
authorized and issued, fully paid and nonassessable.




          (f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other acts, instruments and
assurances 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.




19









 








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




          (h) The Rights Agent and any shareholder, director, officer or employee of the Rights Agent
may buy, sell or deal in, or act as the transfer agent for, any of the Rights, Common Shares 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.




          Section 21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon 30 days’ notice in writing mailed to the
Company and to each transfer agent of the Common Shares by registered or certified mail, and, if
separate Right Certificates have been issued as of the date of such notice as contemplated by
Section 3 hereof, to the holders of the Right Certificates by first-class mail. The
Company may remove the Rights Agent or any successor Rights Agent upon 30 days’ notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case may be, and to each transfer
agent of the Common Shares by registered or certified mail, and, if separate Right Certificates
have been issued as of the date of such notice as contemplated by Section 3 hereof, 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 30 days after
giving notice of such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder of a Right Certificate
(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 of the State of New York or the Commonwealth of Massachusetts (or of any other
state of the United States so long as such corporation is authorized to do business as a banking
institution in the State of New York or the Commonwealth of Massachusetts), in
good standing, having an office or agency in the State of New York or the Commonwealth of
Massachusetts, 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 Shares, and,




20









 




if separate Right Certificates have been issued as
of the date of such notice as contemplated by Section 3 hereof, 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.




          Section 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 form as may be approved by its Board of Directors 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.




          Section 23. Redemption.




          (a) The Rights may be redeemed by action of the Board of Directors pursuant to
Section 23(b) and shall not be redeemed in any other manner.




          (b) The Board of Directors of the Company may, at its option, at any time prior to such time
as any Person 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 (such redemption price
being hereinafter referred to as the “Redemption Price”). The redemption of the Rights by the
Board of Directors may be made effective at such time, on such basis and with such conditions as
the Board of Directors in its sole discretion may establish. Notwithstanding anything contained in
this Agreement to the contrary, the Rights shall not be exercisable after the first occurrence of a
Section 11(a)(ii) Event until such time as the Company’s right of redemption hereunder has expired.




          (c) Immediately upon the effectiveness of the action of the Board of Directors of the Company
ordering the redemption of the Rights pursuant to Section 23(b), 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 10 days
after the effectiveness of the action of the Board of Directors ordering the redemption of the
Rights pursuant to Section 23(b), 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 Shares. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice of redemption will
state the method by which the payment of the Redemption Price will be made. Neither
the Company nor any of its Affiliates or Associates may redeem, acquire or purchase for value
any Rights at any time in any manner other than that specifically set forth in this
Section 23 or in Section 24 hereof, and other than in connection with the purchase
of Common Shares prior to the Distribution Date.




          Section 24. Exchange.




          (a) The Board of Directors of the Company may, at its option, at any time after any Person
becomes an Acquiring Person, exchange all or part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void pursuant to the provisions of
Section 11(a)(ii) hereof) for Common Shares of the Company at an exchange ratio of one
Common Share per Right, appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the




21









 




date hereof (such exchange ratio being hereinafter referred
to as the “Exchange Ratio”). Notwithstanding the foregoing, the Board of Directors shall not be
empowered to effect such exchange at any time after any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or any such Subsidiary, any
entity holding Common Shares for or pursuant to the terms of any such plan, or any trustee,
administrator or fiduciary of such a plan), together with all Affiliates and Associates of such
Person, becomes the Beneficial Owner of 50% or more of the Common Shares of the Company then
outstanding.




          (b) Immediately upon the action of the Board of Directors of the Company 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 Common Shares equal to the number of such Rights
held by such holder multiplied by the Exchange Ratio. The Company shall promptly give public notice
of any such exchange; provided, however, that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange. The Company promptly shall mail a notice of any
such exchange to all of the holders of such Rights at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each such notice of exchange will
state the method by which the exchange of the Common Shares 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) In any exchange pursuant to this Section 24, the Company, at its option, may
substitute Common Stock Equivalents (as such term is defined in Section 11(a)(iii) hereof)
for some or all of the Common Shares exchangeable for the Rights.




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




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




          Section 25. Notice of Certain Events.




          (a) In case the Company shall propose, after the Distribution Date, (i) to pay any dividend
payable in stock of any class to the holders of Common Shares or to make any other distribution to
the holders of Common Shares (other than a regular quarterly cash dividend), (ii) to offer to the
holders of Common Shares rights or warrants to subscribe for or to purchase any additional Common
Shares or shares of stock of any class or any other securities, rights or options, (iii) to effect
any reclassification of Common Shares (other than a reclassification involving only the subdivision
of outstanding Common




22









 




Shares), (iv) to effect any consolidation or merger into or with (other than
a merger of a Subsidiary into or with the Company), to effect any share exchange with or to effect
any sale or other transfer (or to permit one or more of its Subsidiaries to effect any sale or
other transfer), in one or more transactions, of 50% or more of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to, any other Person, or (v) to effect the
liquidation, dissolution or winding up of the Company, then, in each such case, the Company shall
give to each holder of a 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 of rights or warrants, or the date on which such reclassification,
consolidation, merger, share exchange, sale, transfer, liquidation, dissolution, or winding up is
to take place and the date of participation therein by the holders of the Common Shares 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 10 days prior to the record date for determining holders of Common
Shares for purposes of such action, and in the case of any such other action, at least 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 Shares, whichever shall be the earlier.




          (b) In case any of Section 11(a)(ii) Event or Section 13 Event shall occur, then, in any such
case, the Company shall as soon as practicable thereafter give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of the occurrence of such
event, which notice shall include a brief summary of the Section 11(a)(ii) Event or Section 13
Event, as the case may be, and the consequences thereof to holders of Rights.




          Section 26. Notices.




          (a) 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 first-class mail, postage prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:



Molecular Insight Pharmaceuticals, Inc

160 Second Street

Cambridge, MA 02142

Attention: President




          (b) 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 first-class mail, postage
prepaid, addressed (until another address is filed in writing with the Company) as follows:



American Stock Transfer & Trust Company, LLC

59 Maiden Lane

New York, NY 10038

Attention: Executive Vice President




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




          Section 27. Supplements and Amendments. Prior to such time as any Person becomes an Acquiring Person
and subject to the penultimate sentence of this Section 27, the Company may and the Rights
Agent shall, if the Company so directs, supplement or amend any provision of this




23









 




Agreement without
the approval of any holders of certificates representing Common Shares of the Company. Without
limiting the foregoing, the Company may at any time prior to such time as any Person becomes an
Acquiring Person amend this Agreement to lower the thresholds set forth in Sections 1(a) and
3(a) hereof from twenty percent (20%) to not less than ten percent (10%), with appropriate
exceptions for Persons then beneficially owning Common Shares of the Company constituting a
percentage of the number of Common Shares then outstanding equal to or in excess of the new
threshold. From and after such time as any Person becomes an Acquiring Person and subject to the
penultimate sentence of this Section 27, the Company and the Rights Agent shall, if the
Company so directs, supplement or amend this Agreement without the approval of any holders of Right
Certificates in order (i) to cure any ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with any other provision herein, (iii) to
shorten or lengthen any time period hereunder, or (iv) to change or supplement the provisions
hereunder in any manner which the Company may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Right Certificates (other than an Acquiring Person
or an Affiliate or Associate of an Acquiring Person); provided, that from and after such time as
any Person becomes an Acquiring Person this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A) a time period relating to when the Rights
may be redeemed at such time as the Rights are not then redeemable, or (B) any other time period
unless such lengthening is for the purpose of protecting, enhancing or clarifying the rights of,
and/or the benefits to, the holders of Rights. Upon the delivery of a certificate from an
appropriate officer of the Company which states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights Agent shall execute such
supplement or amendment. Notwithstanding anything contained in this Agreement to the contrary, no
supplement or amendment shall be made that changes the Redemption Price or moves to an earlier date
the then effective Final Expiration Date. Prior to the Distribution Date, the interests of the
holders of Rights shall be deemed coincident with the interests of the holders of Common Shares of
the Company.




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




          Section 29. Benefits of this Agreement. Nothing in this Agreement shall be construed to give to any
person or corporation other than the Company, the Rights Agent and the registered holders of the
Right Certificates (and, prior to the Distribution Date, the Common Shares of the Company) any
legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares of the Company).




          Section 30. Severability. If any term, provision, covenant or restriction of this Agreement is held by
a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.




          Section 31. Governing Law. This Agreement and each Right Certificate issued hereunder shall be deemed
to be a contract made under the laws of the Commonwealth of Massachusetts and for all purposes
shall be governed by and construed in accordance with the laws of such Commonwealth applicable to
contracts to be made and performed entirely within such Commonwealth and shall be subject to the
exclusive jurisdiction of the courts of, and United States Federal Courts sitting in, such
Commonwealth.




24









 








          Section 32. 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.




          Section 33. Descriptive Headings. Descriptive headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or construction of any of
the provisions hereof.




          Section 34. Determinations and Actions by the Board of Directors. For all purposes of this Agreement,
any calculation of the number of Common Shares of the Company outstanding at any particular time,
including for purposes of determining the particular percentage of such outstanding Common Shares
of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of
Directors of the Company shall have the exclusive power and authority to administer this Agreement
and to exercise all rights and powers specifically granted to the Board of Directors or to the
Company, or as may be necessary or advisable in the administration of this Agreement, including,
without limitation, the right and power to (a) interpret the provisions of this Agreement, and (b)
make all determinations deemed necessary or advisable for the administration of this Agreement
(including a determination to redeem or not redeem the Rights or to amend the Agreement and any
determination as to whether actions or any Person shall be such as to cause such Person to
beneficially own shares held by another Person). All such actions, calculations, interpretations
and determinations (including, for purposes of clause (ii) below, all omissions with respect to the
foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (i)
be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights and all other parties, and (ii) not subject
the Board of Directors of the Company to any liability to the holders of the Rights or to any other
Person.




[Remainder of Page Intentionally Left Blank – 




Signature Page Follows]




25









 








Signature Page to Rights Agreement




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




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	MOLECULAR INSIGHT PHARMACEUTICALS, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Attest:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Gabor Garai
	 	 	 	By:
	 	/s/ John W. Babich	 	 
	Name:

	 	 

Gabor Garai
	 	 	 	Name:
	 	 

John W. Babich
	 	 
	Title:

	 	Partner, Foley & Lardner LLP
	 	 	 	Title:
	 	President & Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Attest:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Isaac J. Kagan
	 	 	 	By:
	 	/s/ Herbert J. Lemmer	 	 
	Name:

	 	 

Isaac J. Kagan
	 	 	 	Name:
	 	 

Herbert J. Lemmer
	 	 
	Title:

	 	Vice President
	 	 	 	Title:
	 	Vice President	 	 







26









 








EXHIBIT A




[Form of Front Side of Right Certificate]




			
	 	 	 
	Certificate No. R-
	 	                     Rights







NOT EXERCISABLE AFTER JANUARY 30, 2019 (SUBJECT TO EXTENSION) OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $0.001 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.



RIGHT CERTIFICATE




MOLECULAR INSIGHT PHARMACEUTICALS, INC.




          This certifies that                                         , or registered assigns, is the registered
owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement, dated as of January 30, 2009, and as
such agreement may be amended (the “Rights Agreement”), between Molecular Insight Pharmaceuticals,
Inc., a Massachusetts corporation (the “Company”), and American Stock Transfer & Trust Company, LLC
(the “Rights Agent”), to purchase from the Company at any time after the Distribution Date (as such
term is defined in the Rights Agreement) and prior to 5:00 P.M., Boston, Massachusetts time, on
January 30, 2019, subject to extension, at the principal office of the Rights Agent, or at the
office of its successor as Rights Agent, one-half of one fully paid nonassessable (except as
otherwise provided by any corporation law applicable to the Company) share of Common Stock, $0.01
par value per share (“Common Shares”), of the Company, at a purchase price of $35.00 per full
Common Share (the “Purchase Price”) (equivalent to $17.50 for each one-half of a Common Share),
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 Common
Shares 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 February 13, 2009, based on the Common Shares
as constituted at such date. As provided in the Rights Agreement, the Purchase Price and the
number of Common Shares which may be purchased upon the exercise of the 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, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Right Certificates. Copies of the Rights Agreement are
on file at the principal executive offices of the Company and the above-mentioned offices of the
Rights Agent.




          This Right Certificate, with or without other Right Certificates, upon surrender at the
principal office of the Rights Agent, may be exchanged for another Right Certificate or Right
Certificates




A-1 









 




of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate
number of Common Shares 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.




          Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate
may be redeemed by the Company at a redemption price of $0.001 per Right.




          The Board of Directors of the Company may, at its option, at any time after any Person becomes
an Acquiring Person, but prior to such Person’s acquisition of 50% or more of the outstanding
Common Shares of the Company, exchange the Rights evidenced by this Certificate, at an exchange
ratio of one Common Share per Right, subject to adjustment, as provided in the Rights Agreement.




          No fractional Common Shares will be issued upon the exercise of any Right or Rights. In lieu
of fractional Common Shares equal to one-half of a Common Share or less, an adjustment in cash will
be made, as provided in the Rights Agreement. If the number of Rights exercised would entitle the
holder thereof to receive any fraction of a Common Share greater than one-half of a Common Share,
then the holder thereof shall not be entitled to exercise such Rights unless such holder
concurrently purchases from the Company (and in such event the Company shall sell to such holder),
at a price in proportion to the Purchase Price, an additional fraction of a Common Share which,
when added to the number of Common Shares to be received upon such exercise, will equal a whole
number of Common Shares.




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




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




A-2 









 








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




	 	 	 	 	 	 	 	 	 	 	 
	ATTEST:	 	 	 	MOLECULAR INSIGHT PHARMACEUTICALS, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	COUNTERSIGNED:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	Authorized Signature	 	 	 	 	 	 	 	 






A-3 









 






[Form of Reverse Side of Right Certificate]




FORM OF ASSIGNMENT




(To be executed by the registered holder if such

holder desires to transfer the Right Certificate.)




	 	 	 	 	 
	 	 	FOR VALUE RECEIVED                                                              hereby sells, assigns and transfers unto
                                                
	                                                      
                                                                  
                              
                                                                           
	 

	 	 	 	(Please print name and address of transferee)






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




Dated:                     ,      




	 	 	 	 	 
	 

	 	 

Signature
	 	 






Signature Guaranteed:




          Signatures must be guaranteed by a member firm of a registered national securities exchange, a
member of the Financial Industry Regulatory Authority, or a commercial bank or trust company having
an office or correspondent in the United States.




          The undersigned hereby certifies that the Rights evidenced by this Right Certificate are not
beneficially owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).




	 	 	 	 	 
	 

	 	 

Signature
	 	 






 





A-4 









 





[Form of Reverse Side of Right Certificate — continued]




FORM OF ELECTION TO PURCHASE




(To be executed by the registered holder if such

holder desires to exercise the Right Certificate.)




To Molecular Insight Pharmaceuticals, Inc.:




          The undersigned hereby irrevocably elects to exercise                      Rights represented by
this Right Certificate to purchase the Common Shares issuable upon the exercise of such Rights and
requests that certificates for such Common Shares be issued in the name of:



Please insert social security

or other identifying number




 




(Please print name and address)




 




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



Please insert social security

or other identifying number




 




(Please print name and address)




 





Dated:                     ,      




	 	 	 	 	 
	 

	 	 

Signature
	 	 






Signature Guaranteed:




          Signatures must be guaranteed by a member firm of a registered national securities exchange, a
member of the Financial Industry Regulatory Authority, or a commercial bank or trust company having
an office or correspondent in the United States.




          The undersigned hereby certifies that the Rights evidenced by this Right Certificate are not
beneficially owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).




	 	 	 	 	 
	 

	 	 

Signature
	 	 






A-5 









 





[Form of Reverse Side of Right Certificate — continued]




 





NOTICE




          The signature in the foregoing Forms of Assignment and Election 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, the Company and the Rights Agent will
deem the beneficial owner of the Rights evidenced by this Right Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.




A-6 









 





EXHIBIT B




MOLECULAR INSIGHT PHARMACEUTICALS, INC.




SUMMARY OF RIGHTS

TO PURCHASE COMMON STOCK




          On January 30, 2009, the Board of Directors of Molecular Insight Pharmaceuticals, Inc. (the
“Company”) declared a dividend of one right (a “Right”) for each outstanding share of common stock,
par value $0.01 per share (“Common Shares”), of the Company. The dividend is payable on February
27, 2009 to the shareholders of record upon the close of business on February 13, 2009 (the “Record
Date”). Each Right entitles the registered holder to purchase from the Company one-half of one
Common Share, at a price of $35.00 per full Common Share (equivalent to $17.50 for each one-half of
a Common Share), subject to adjustment (the “Purchase Price”). The description and terms of the
Rights are set forth in a Rights Agreement (the “Rights Agreement”) between the Company and
American Stock Transfer & Trust Company, LLC, as Rights Agent (the “Rights Agent”).




          Until the earlier to occur of (i) a public announcement that a person or group of affiliated
or associated persons (other than the Company, a subsidiary of the Company or an employee benefit
plan of the Company or a subsidiary) (an “Acquiring Person”) has acquired beneficial ownership of
20% or more of the outstanding Common Shares (the “Shares Acquisition Date”) or (ii) 10 business
days (or such later date as may be determined by action of the Company’s Board of Directors prior
to such time as any person becomes an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or group (other than the Company, a subsidiary
of the Company or an employee benefit plan of the Company or a subsidiary) of 20% or more of such
outstanding Common Shares (the earlier of such dates being called the “Distribution Date”), the
Rights will be evidenced, with respect to any of the Common Share certificates outstanding as of
the Record Date, by such Common Share certificate.




          The Rights Agreement provides that, until the Distribution Date, the Rights are attached to
and traded with and only with the Common Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Share certificates issued after the Record
Date, upon transfer or new issuance of Common Shares, will contain a notation incorporating the
Rights Agreement by reference. Until the Distribution Date (or earlier redemption or expiration of
the Rights), the surrender for transfer of any certificates for Common Shares, outstanding as of
the Record Date, even without such notation, will also constitute the transfer of the Rights
associated with the Common Shares represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights (“Right Certificates”)
will be mailed to holders of record of the Common Shares as of the close of business on the
Distribution Date and such separate Right Certificates alone will evidence the Rights.




          The Rights are not exercisable until the Distribution Date. The Rights will expire on January
30, 2019 (the “Final Expiration Date”), subject to extension, unless the Rights are earlier
redeemed or exchanged by the Company, in each case as described below.




          The Purchase Price payable, and the number of Common Shares or other securities or property
issuable, upon exercise of the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a subdivision, combination or reclassification
of, the Common Shares, (ii) upon the grant to holders of the Common Shares of certain rights or
warrants to subscribe for or purchase Common Shares at a price, or securities convertible into
Common Shares with a conversion price, less than the then current market price of the Common Shares
or (iii) upon the




B-1 









 




distribution to holders of the Common Shares of evidences of indebtedness or assets (excluding
regular quarterly cash dividends or dividends payable in Common Shares) or of subscription rights
or warrants (other than those referred to above). With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative adjustments require an adjustment of at least one
percent (1%) in such Purchase Price.




          The number of outstanding Rights are also subject to adjustment in the event of a stock split
of the Common Shares or a stock dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations of the Common Shares occurring, in any such case, prior to the
Distribution Date.




          In the event that any person becomes an Acquiring Person (a “Flip-In Event”), each holder of a
Right (except as otherwise provided in the Rights Agreement) will thereafter have the right to
receive, upon exercise thereof at the then current Purchase Price, that number of Common Shares
(or, in certain circumstances cash, property or other securities of the Company or a reduction in
the Purchase Price) having a market value of two times the then current Purchase Price.
Notwithstanding any of the foregoing, following the occurrence of a Flip-In Event all Rights that
are, or (under certain circumstances specified in the Rights Agreement) were, or subsequently
become beneficially owned by an Acquiring Person, related persons and transferees will be null and
void.




          In the event that, at any time following the Shares Acquisition Date, (i) the Company
is acquired in a merger or other business combination transaction or (ii) 50% or more of its
consolidated assets or earning power are sold (the events described in clauses (i) and (ii) are
herein referred to as “Flip-Over Events”), proper provision will be made so that each holder of a
Right (except as otherwise provided in the Rights Agreement) will thereafter have the right to
receive, upon the exercise thereof at the then current Purchase Price, that number of shares of
common stock of the acquiring company which at the time of such transaction will have a market
value of two times the then current Purchase Price.




          No fractional Common Shares will be issued upon the exercise of any Right or Rights. In lieu
of fractional Common Shares equal to one-half of a Common Share or less, an adjustment in cash will
be made, as provided in the Rights Agreement. If the number of Rights exercised would entitle the
holder thereof to receive any fraction of a Common Share greater than one-half of a Common Share,
then the holder thereof shall not be entitled to exercise such Rights unless such holder
concurrently purchases from the Company (and in such event the Company shall sell to such holder),
at a price in proportion to the Purchase Price, an additional fraction of a Common Share which,
when added to the number of Common Shares to be received upon such exercise, will equal a whole
number of Common Shares.




          The Purchase Price is payable by certified check, cashier’s check, bank draft or money order
or, if so provided by the Company, the Purchase Price following the occurrence of a Flip-In Event
and until the first occurrence of a Flip-Over Event may be paid in Common Shares having an
equivalent value.




          At any time after a person becomes an Acquiring Person and prior to the acquisition by such
Acquiring Person of 50% or more of the outstanding Common Shares, the Board of Directors of the
Company may exchange the Rights (other than Rights owned by any Acquiring Person which have become
void), in whole or in part, at an exchange ratio of one Common Share per Right (subject to
adjustment).




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




B-2 









 








          Other than amendments that would change the Redemption Price or move to an earlier date the
Final Expiration Date of the Rights, the terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of the Rights, including an amendment
to lower the threshold for exercisability of the Rights from 20% to not less than 10%, with
appropriate exceptions for any person then beneficially owning a percentage of Common Shares then
outstanding equal to or in excess of the new threshold, except that from and after such time as any
person becomes an Acquiring Person, no such amendment may adversely affect the interests of the
holders of the Rights.




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




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





B-3