exv4w1






Exhibit 4.1




      




GENESCO INC.




and



COMPUTERSHARE TRUST COMPANY, N.A.



as Rights Agent



Second Amended and Restated Rights Agreement



Dated as of April 8, 2010



      








 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	Section 1. Certain Definitions
	 	 	2	 
	Section 2. Appointment of Rights Agent
	 	 	9	 
	Section 3. Issue of Right Certificates
	 	 	10	 
	Section 4. Form of Right Certificates
	 	 	13	 
	Section 5. Countersignature and Registration
	 	 	14	 
	Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificates
	 	 	15	 
	Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights
	 	 	16	 
	Section 8. Cancellation and Destruction of Right Certificates
	 	 	20	 
	Section 9. Reservation, Authorization and Registration
	 	 	20	 
	Section 10. Preferred Shares Record Date
	 	 	22	 
	Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights
	 	 	23	 
	Section 12. Certificate of Adjusted Purchase Price or Number of Shares
	 	 	36	 
	Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power
	 	 	37	 
	Section 14. Fractional Rights and Fractional Shares
	 	 	42	 
	Section 15. Rights of Action
	 	 	44	 
	Section 16. Agreement of Right Holders
	 	 	44	 
	Section 17. Right Certificate Holder Not Deemed a Shareholder
	 	 	46	 
	Section 18. Concerning the Rights Agent
	 	 	46	 
	Section 19. Merger or Consolidation or Change of Name of Rights Agent
	 	 	47	 
	Section 20. Duties of Rights Agent
	 	 	48	 
	Section 21. Change of Rights Agent
	 	 	51	 
	Section 22. Issuance of New Right Certificates
	 	 	52	 
	Section 23. Redemption and Termination
	 	 	53	 
	Section 24. Exchange
	 	 	55	 
	Section 25. Notice of Certain Events
	 	 	57	 
	Section 26. Notices
	 	 	59	 
	Section 27. Supplements and Amendments
	 	 	60	 
	Section 28. Successors
	 	 	61	 
	Section 29. Determinations and Actions by the Board of Directors, etc
	 	 	61	 
	Section 30. Benefits of this Agreement
	 	 	62	 
	Section 31. Severability
	 	 	62	 
	Section 32. Governing Law
	 	 	63	 
	Section 33. Counterparts
	 	 	63	 
	Section 34. Descriptive Headings
	 	 	63	 
	Section 35. Force Majeure
	 	 	63	 










 









 








SECOND AMENDED AND RESTATED RIGHTS AGREEMENT




     This Second Amended and Restated Rights Agreement originally dated as of August 8, 1990,
amended as of August 8, 1990, March 10, 1998 and November 9, 1998, and amended and restated as of
August 28, 2000, as amended on June 17, 2007, between GENESCO INC., a Tennessee corporation (the
“Company”), and COMPUTERSHARE TRUST COMPANY, N.A., as successor rights agent to FIRST CHICAGO TRUST
COMPANY OF NEW YORK (the “Rights Agent”, which term shall include any successor Rights Agent
hereunder) (the “Agreement”).



     WHEREAS, on August 8, 1990 (the “Rights Dividend Declaration Date”) the Board of Directors of
the Company authorized and declared a dividend of one preferred share purchase right (a “Right”)
for each Common Share (as hereinafter defined) of the Company outstanding on August 22, 1990 (the
“Record Date”), each Right representing the right to purchase one one-hundredth of a Preferred
Share (as hereinafter defined), upon the terms and subject to the conditions herein set forth, and
further authorized and directed the issuance of one Right with respect to each Common Share that
becomes 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); and



     WHEREAS, on August 23, 2000, the Board of Directors, in accordance with Section 26 of that
certain Rights Agreement dated as of August 8, 1990, as amended (“Initial Rights Agreement”),
determined it desirable and in the best interest of the Company and its shareholders that the
Initial Rights Agreement, as amended, be amended and restated (the “First Amended and Restated
Rights Agreement”); and



     WHEREAS, on June 17, 2007, the Board of Directors, in accordance with Section 27 of the First
Amended and Restated Rights Agreement determined it to be desirable and in the best



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interests of the Company and its shareholders that the First Amended and Restated Rights
Agreement be amended in connection with the Company’s entry into an Agreement and Plan of Merger by
and among the Company, The Finish Line, Inc. and Headwind, Inc., and to and to make certain other
amendments; and




     WHEREAS, on March 29, 2010 the Board of Directors, in accordance with Section 27 of the First
Amended and Restated Rights Agreement, determined it desirable and in the best interest of the
Company and its shareholders that the First Amended and Restated Rights Agreement, as amended, be
amended and restated in its entirety:



     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 who or which, together with all Affiliates and
Associates of such Person, and together with any Person with whom such Person is Acting in Concert
(or any Affiliate or Associate thereof) (other than the Company, any Subsidiary of the Company,
any employee benefit plan maintained by the Company or any of its Subsidiaries or any trustee or
fiduciary with respect to such plan acting in such capacity) which shall be the Beneficial Owner of
15% or more of the Common Shares then outstanding. If the Board of Directors determines that a
Person who would otherwise be an “Acquiring Person,” as defined pursuant to the foregoing
provisions of this paragraph (a), has become such inadvertently and in good faith or without
knowledge of the terms of this Agreement, and such Person divests as promptly as practicable (but
in no event more than thirty days following notification of its status as an “Acquiring Person” or
such shorter period as may be determined by the Board of



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Directors) a sufficient number of Common Shares so that such Person would no longer, as of the
expiration of such divestiture period, be an “Acquiring Person,” as defined pursuant to the
foregoing provisions of this paragraph (a), then such Person shall not be deemed to be an
“Acquiring Person” for any purposes of this Agreement. Notwithstanding the foregoing, no Person
shall become an “Acquiring Person” as the result of an acquisition of Common Shares by the Company
which, by reducing the number of Common Shares outstanding, increases the proportionate number of
Common Shares beneficially owned by such Person (alone or together with all Affiliates and
Associates) to 15% or more of the Common Shares then outstanding; provided, however, that if a
Person (together with its Affiliates and Associates) becomes the Beneficial Owner of 15% or more of
the Common Shares then outstanding by reason of share purchases by the Company, and such Person (or
an Affiliate or Associate) subsequently becomes the Beneficial Owner of any additional Common
Shares or, with respect to any Derivative Common Shares, such Person terminates the subject
derivative transaction or transactions or disposes of the subject derivative security or
securities, so that, in either such case, such Person would no longer be an “Acquiring Person,” as
defined pursuant to the foregoing provisions of this paragraph (a), then such Person shall not be
deemed to be an “Acquiring Person” for any purposes of this Agreement.




     (b) A Person shall be deemed to be “Acting in Concert” with another Person if such
Person knowingly acts (whether or not pursuant to an express agreement, arrangement or
understanding) in concert with such other Person in, or towards a common goal relating to, changing
or influencing the control of the Company or in connection with or as a participant in any
transaction having that purpose or effect, in parallel with such other Person where at least one
additional factor supports a determination by the Board of Directors that such Person



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intended to act in concert or in parallel with the other Person, which such additional factors
may include, without limitation, exchanging information, attending meetings, conducting
discussions, or making or soliciting invitations to act in concert or in parallel. A Person who or
which is Acting in Concert with another Person shall also be deemed to be Acting in Concert with
any third party who is also Acting in Concert with such other Person. Notwithstanding the
foregoing, no Person shall be deemed to be Acting in Concert with any other Person solely as the
result of jointly nominating with such other Person any individual to serve as a
shareholder-designated director nominee of the Company for inclusion in the Company’s proxy
materials pursuant to proposed Rule 14a-11, if such rule is adopted by the Securities and Exchange
Commission providing for such nominations and inclusion (or any successor rule).




     (c) “Affiliate” and “Associate” 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.



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



          (i) of which such Person or any of such Person’s Affiliates or Associates, or any other Person
with whom such Person is Acting in Concert (or any Affiliate or Associate thereof) is considered to
be a “beneficial owner” under Rule 13d-3 of the General Rules and Regulations under the Exchange
Act (the “Exchange Act Regulations”) as in effect on the date hereof; provided, however, that a
Person shall not be deemed the “Beneficial Owner” of, or to “beneficially own,” any security under
this subparagraph (i) as a result of an agreement, arrangement or understanding, to vote such
security if such agreement, arrangement or understanding (A) arises solely from a revocable proxy
given in response to a proxy or consent






4









 







solicitation made pursuant to, and in accordance with, the applicable provisions of the
Exchange Act and the Exchange Act Regulations, and (B) is not reportable by such Person on Schedule
13D under the Exchange Act (or any comparable or successor report);




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




          (iii) which such Person or any other Person with whom such Person is Acting in Concert (or any
of such Person’s Affiliates or Associates), directly or indirectly, has the right to acquire
(whether such right is exercisable immediately or only after the passage of time or upon the
satisfaction of conditions, whether or not within the control of such Person, Affiliate or
Associate, or any other Person with whom such Person is Acting in Concert (or any Affiliate or
Associate thereof) pursuant to any agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange rights, rights, warrants or options,
or otherwise; provided, however, that no Person shall be deemed to have any such agreement,
arrangement or understanding solely as the result of jointly nominating with such other Person any
individual to serve as a shareholder-designated director nominee of the Company for inclusion in
the Company’s proxy materials pursuant to proposed Rule 14a-11, if such rule is adopted by the
Securities and Exchange Commission providing for such nominations and inclusion (or any successor
rule).






5









 








     In addition, a Person who or which, together with all Affiliates and Associates of such
Person, and together with any other Person with whom such Person is Acting in Concert (or any
Affiliate or Associate thereof), shall be the Beneficial Owner (within the meaning of the foregoing
paragraphs of this Section 1(d)) of 5% or more of the Common Shares of the Company then
outstanding, shall also be deemed to be the Beneficial Owner of, to have beneficial ownership of or
to Beneficially Own any securities that are the subject of one or more derivative transactions
entered into by such Person or any of such Person’s Affiliates or Associates, or any other Person
with whom such Person is Acting in Concert (or any Affiliate or Associate thereof), or derivative
security acquired by such Person or any of such Person’s Affiliates or Associates, or any other
Person with whom such Person is Acting in Concert (or any Affiliate or Associate thereof), which
gives such Person or any of such Person’s Affiliates or Associates, or any other Person with whom
such Person is Acting in Concert (or any Affiliate or Associate thereof), the economic equivalent
of ownership of an amount of such securities due to the fact that the value of the derivative is
determined by reference to the price or value of such securities, or which provides such Person or
any of such Person’s Affiliates or Associates, or any other Person with whom such Person is Acting
in Concert (or any Affiliate or Associate thereof), an opportunity, directly or indirectly, to
profit, or to share in any profit, derived from any change in the value of such securities, in any
case without regard to whether (a) such derivative conveys any voting rights in such securities to
such Person or any of such Person’s Affiliates or Associates, or any other Person with whom such
Person is Acting in Concert (or any Affiliate or Associate thereof), (b) the derivative is required
to be, or capable of being, settled through delivery of such securities, or (c) such Person or any
of such Person’s Affiliates or Associates, or any other Person with whom such Person is Acting in
Concert (or any Affiliate or Associate thereof), may have



6









 




entered into other transactions that hedge the economic effect of such derivative; provided,
however, that, such deemed ownership will not include interests in broad-based index options,
broad-based index futures and broad-based publicly traded market baskets of stocks approved for
trading by the appropriate federal governmental authority.




     In determining the number of Common Shares of the Company Beneficially Owned by virtue of the
operation of the foregoing paragraph of this Section 1(d), the subject Person shall be deemed to
Beneficially Own (without duplication), the notional or other number of Common Shares of the
Company specified in the documentation evidencing the derivative position as being subject to being
acquired upon the exercise or settlement of the applicable right or as the basis upon which the
value or settlement amount of such right, or the opportunity of the holder of such right to profit
or share in any profit, is to be calculated in whole or in part, and in any case (or if no such
number of Common Shares of the Company is specified in such documentation or otherwise), as
determined by the Board in good faith to be the number of Common Shares of the Company to which the
derivative position relates. Such Common Shares of the Company that are deemed so Beneficially
Owned pursuant to the operation of the foregoing paragraph of this Section 1(d) shall be referred
to herein as “Derivative Common Shares”; provided, however, that a Person shall not be
deemed the “Beneficial Owner” of, or to “beneficially own,” (A) securities tendered pursuant to a
tender or exchange offer made by such Person or any of such Person’s Affiliates or Associates until
such tendered securities are accepted for purchase or exchange, (B) securities that may be issued
upon exercise of Rights at any time prior to the occurrence of a Triggering Event, or (C)
securities that may be issued upon exercise of Rights from and after the occurrence of a Triggering
Event, which Rights were acquired by such Person or any of such Person’s Affiliates or Associates
prior to the Distribution Date or pursuant to Section 3(a) or



7









 




Section 22 (the “Original Rights”) or pursuant to Section 11(a)(i) in connection with an
adjustment made with respect to any Original Rights.




     (e) “Book Entry” shall mean an uncertificated book entry position for the Common Shares.



     (f) “Business Day” means any day other than a Saturday, a Sunday, or a day on which banking
institutions in New York City are authorized or obligated by law or executive order to close.



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



     (h) “Common Shares” when used with reference to the Company, means the shares of common stock,
par value $1.00 per share, of the Company. “Common Shares,” when used with reference, to any
Person other than the Company, means the capital stock (or equity interest) with the greatest
voting power of such other Person or, if such other Person is a Subsidiary of another Person, of
the Person or Persons which has the power ultimately to control or direct the management of the
first-mentioned Person.



     (i) “Derivative Common Shares” has the meaning set forth in Section (d)(iii).



     (j) “Distribution Date” has the meaning set forth in Section 3.



     (k) “Exchange Ratio” has the meaning set forth in Section 24(a).



     (l) “Final Expiration Date” has the meaning set forth in Section 7.



     (m) “Person” means any individual, partnership, firm, corporation, or other entity, and
includes any successor (by merger or otherwise) of such entity as well as any syndicate or group
deemed to be a person under Section 14(d)(2) of the Exchange Act.



8









 





     (n) “Preferred Shares” means shares of Series 6 subordinated serial preferred stock of the
Company, with the rights and preferences set forth in the amendment to the Company’s charter
establishing such stock as set forth in Exhibit A hereto.



     (o) “Redemption Date” has the meaning set forth in Section 7.



     (p) “Section 11(a)(ii) Event” means any event described in Section 11(a)(ii).



     (q) “Section 13 Event” means any event described in clause (x), (y) or (z) of Section 13(a).



     (r) “Shares Acquisition Date” means the date of the first public announcement by the Company
or an Acquiring Person that an Acquiring Person has become such(unless such date has occurred
inadvertently as contemplated by the second sentence of Section 1(a) in which case the Shares
Acquisition Date shall be postponed until the expiration of the thirty calendar day period or such
shorter time as may be determined by the Board of Directors).”



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



     (t) “Triggering Event” means any Section 11(a)(ii) Event or Section 13 Event.



     (u) “Trust” has the meaning set forth in Section 24(e).



     (u) “Trust Agreement” has the meaning set forth in Section 24(e).



     Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent
to act as agent for the Company in accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Company may from time to time appoint such co-Rights
Agents as it may deem desirable upon ten (10) days prior written notice to the Rights Agent. The
Rights Agent
shall have no duty to supervise and shall in no event be liable for the acts or omissions of
any such co-Rights Agent.



9









 





     Section 3. Issue of Right Certificates.



     (a) Until the earlier of (i) the Close of Business on the tenth day after the Shares
Acquisition Date or (ii) the Close of Business on the tenth day (or such later date as may be
determined by action of the Board of Directors before any Person becomes an Acquiring Person) after
the date of the commencement by any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of the Company or any entity holding
Common Shares for or pursuant to the terms of any such plan) of, or of the first public
announcement of the intention of any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of the Company or any entity holding
Common Shares for or pursuant to the terms of any such plan) to commence, a tender or exchange
offer the consummation of which would result in any Person’s becoming the Beneficial Owner of
Common Shares aggregating 15% or more of the then outstanding Common Shares, including any such
date which is after the date of this Agreement and before the issuance of the Rights (the earlier
of such dates being herein referred to as the “Distribution Date”), the Rights will be evidenced
(subject to the provisions of Section 3(b) hereof) by the Book Entry shares indicated in the
records of the transfer agent for the Common Shares registered in the names of the holders thereof
(which Common Shares will also be deemed to represent certificates for Rights), or in the case of
certificated shares, by the certificates for Common Shares 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 the right to receive Right Certificates will be transferable only in
connection with the transfer of
Common Shares. As soon as practicable after the Distribution Date, the Company will prepare
and execute, the Rights Agent will countersign, and the Company will send or cause to be sent



10









 




(and the Rights Agent will, if requested, send) by first-class, insured, postage-prepaid mail, to each
record holder of Common Shares as of the Close of Business on the Distribution Date (other than any
Acquiring Person or any Associate or Affiliate of an Acquiring Person, or any other Person with
whom such Person is Acting in Concert (or any Affiliate or Associate thereof)), at the address of
such holder shown on the records of the Company, a Right Certificate, in substantially the form of
Exhibit B 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 will send a letter summarizing the Rights, in substantially the form of
Exhibit C hereto (the “Summary of Rights”), by first-class, postage-prepaid mail, to each record
holder of Common Shares as of the Close of Business on the Record Date, at the address of such
holder shown on the records of the Company. With respect to certificates for Common Shares
outstanding as of the Record Date, until the Distribution Date, the Rights will be evidenced by
Book Entry shares indicated in the records of the transfer agent for the Common Shares, or in the
case of the certificated shares, by such certificates registered in the names of the holders
thereof, with or without a copy of the Summary of Rights attached thereto. Until the Distribution
Date (or the earlier of the Redemption Date or the Final Expiration Date), the surrender for
transfer of any certificate for Common Shares 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) Statements of holdings sent to holders of Book Entry shares or, in the case of
certificated shares, certificates for Common Shares which become outstanding (including, without
limitation, reacquired Common Shares referred to in the last sentence of this paragraph



11









 




(c)) after
the Record Date but before the earliest of the Distribution Date, the Redemption Date or the Final
Expiration Date which shall have impressed, printed or written on or otherwise affixed to them the
following legend:





This certificate or statement also evidences and entitles the holder hereof to
certain rights as set forth in the Second Amended and Restated Rights Agreement
between Genesco Inc. (the “Company”) and Computershare Trust Company, N.A. (the
“Rights Agent”), dated as of April 8, 2010 (the “Rights Agreement”), the terms of
which are hereby incorporated herein by reference and a copy of which is on file at
the principal offices of the Company. Under certain circumstances, as set forth in
the Rights Agreement, such rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. The Company will mail to the
holder of this certificate a copy of the Rights Agreement as in effect on the date
of mailing, without charge after its receipt of a written request therefor. Under
certain circumstances, as set forth in the Rights Agreement, rights issued to any
Person who becomes an Acquiring Person or any Affiliate or Associate thereof or a
Person with whom such Acquiring Person was or is Acting in Concert (as such terms
are defined in the Rights Agreement) whether currently held by or on behalf of such
Person or by any subsequent holder, may become null and void.


With respect to Book Entry shares, until the earliest of the Distribution Date, the Redemption Date
or the Final Expiration Date, the Rights associated with such Book Entry shares shall be evidenced
by such Book Entries alone and registered holders of such Book Entry shares shall also be
registered holders of the associated Rights, and the transfer of any such Book Entry shares shall
also constitute the transfer of the Rights associated with such Common Shares. With respect to
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. If the Company acquires any
Common Shares after the Record Date but before the Distribution Date, any Rights
associated with such Common Shares shall be deemed canceled and retired so that the Company is not
entitled to exercise any Rights associated with the Common Shares which are no longer outstanding.




12









 








     Section 4. Form of Right Certificates.



     (a) The Right Certificates (and the forms of election to purchase Preferred Shares and of
assignment to be printed on the reverse thereof) shall be substantially the same as Exhibit B
hereto and may have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company deems appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any applicable law, rule or
regulation or to conform to usage. Subject to the provisions of Sections 11 and 24 hereof, the
Right Certificates shall entitle the holders thereof to purchase the number of one one-hundredths
of a Preferred Share set forth therein at the price per one one-hundredth of a Preferred Share set
forth therein (the “Purchase Price”), but the number of such one one-hundredths of a Preferred
Share, cash or other assets that may be acquired upon the exercise of each Right, and the Purchase
Price shall be subject to adjustment as provided herein.



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



13









 




Shares;
or (B) a transfer which the Board of Directors has determined to be part of a plan, arrangement or
understanding which has as a primary purpose or effect the avoidance of Section 7(e) shall, upon
the written direction of the Board of Directors, contain (to the extent feasible), the following
legend:





The Rights represented by this Right Certificate are or were Beneficially Owned by a
Person who was or became an Acquiring Person or an Affiliate or an Associate of an
Acquiring Person or a Person with whom such Acquiring Person was or is Acting in
Concert (as such terms are defined in the Amended and Restated Rights Agreement).
Accordingly, this Right Certificate and the Rights represented hereby may become
null and void in the circumstances specified in Section 7(e) of such Agreement.



     Section 5. Countersignature and Registration. The Company’s Chairman and Chief
Executive Officer, its President and Chief Operating Officer or any of its Vice Presidents shall
execute the Right Certificates, either manually or by facsimile signature, on behalf of the Company
and the Secretary or an Assistant Secretary of the Company shall attest such execution, either
manually or by facsimile signature. The Rights Agent shall countersign the Right Certificates,
either manually or by facsimile signature. No Right Certificate shall be valid for any purpose
unless countersigned. In case any officer of the Company who executed any of the Right
Certificates ceases to hold the office in which capacity he executed before countersignature by the
Rights Agent and issuance and delivery by the Company, such Right Certificates may nevertheless be
countersigned by the Rights Agent and issued and delivered by the Company with the same force and
effect as though the person who executed such Right Certificates continued to hold such office.
Any Right Certificate may be executed on behalf of the Company by any person who, at the date of
such
execution, is authorized hereunder to execute such Right Certificate, although as of the date
of the execution hereof such person was not so authorized.



14









 





     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 Right Certificates, the
number of Rights evidenced by each Right Certificate and the date of each Right Certificate.



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



     (a) Subject to the provisions of Sections 4(b), 7(e) and 14 hereof, at any time after the
Close of Business on the Distribution Date, and at or before the Close of Business on the earlier
of the Redemption Date or the Final Expiration Date, any Right Certificate (other than a Right
Certificate representing Rights that have become void pursuant to Section 7(e) 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 one one-hundredths of a Preferred Share (or, following a Triggering Event, other
securities, cash or other assets, as the case may be) as the Right Certificate surrendered entitled
such holder to purchase. Any registered holder desiring to transfer, split up, combine or exchange
any Right Certificate or Right Certificates shall deliver a written request 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. Neither the Rights Agent nor the
Company shall be obligated to take any action whatsoever with respect to the transfer of any such
surrendered Right Certificate until the registered holder shall have completed the certificate set
forth in the form of assignment on the reverse side of such Right
Certificate and shall have provided such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) or Affiliates or Associates thereof (or any other Person with



15









 




whom such Person is Acting in Concert (or any Affiliate or Associate thereof)) of the Rights
represented by such Right Certificate or Affiliates or Associates thereof as the Company shall
reasonably request; whereupon the Rights Agent shall, subject to the provisions of Sections 4(b),
7(e) and 14, 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 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, of 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 lost, stolen, destroyed or
mutilated Right Certificate.



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



     (a) The registered holder of any Right Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to purchase 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 one one-hundredth of a Preferred
Share (or, following a Triggering Event, Common Shares, other securities, cash or other assets, as
the case may be) as to which the Rights are exercised, at or prior to the earliest of (i) the Close



16









 




of Business on March 29, 2020 (the “Final Expiration Date”), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the “Redemption Date”), or (iii) the time at which such
Rights are exchanged as provided in Section 24 hereof.




     (b) The purchase price for each one one-hundredth of a Preferred Share purchasable pursuant to
the exercise of a Right shall initially be one hundred thirteen dollars ($113.00), subject to
adjustment from time to time as provided in Section 11 or 13 hereof (the “Purchase Price”), and
shall be payable in lawful money of the United States of America in accordance with paragraph (c)
below.



     (c) As promptly as practicable following the occurrence of the Distribution Date, the Company
shall deposit with a corporation organized under the laws of the United States or any State of the
United States in good standing, which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by federal or state authority (which
corporation may be a Subsidiary of the Company) (such institution being the “Depositary Agent”)
certificates representing the Preferred Shares that may be acquired upon exercise of the Rights and
shall cause such Depositary Agent to enter into an agreement pursuant to which the Depositary Agent
shall issue receipts representing interests in the Preferred Shares so deposited. 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 one one-hundredths of a Preferred
Share (or, following a Triggering Event, other securities, cash or other assets, as the case may
be) 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 by certified check, cashier’s check or money order payable to the order of the Company, the
Rights Agent shall, subject to Section 20(j), thereupon promptly (i) (A) requisition from any



17









 




transfer agent of the Preferred Shares certificates for the number of Preferred Shares to be
purchased or (B) requisition from the Depositary Agent depositary receipts representing such number
of one one-hundredths of a Preferred Share as are to be purchased (in which case certificates for
the Preferred Shares represented by such receipts shall be deposited by the transfer agent with the
Depositary Agent), (ii) when appropriate, requisition from the Company the amount of cash to be
paid in lieu of issuance of fractional shares in accordance with Section 14 hereof, (iii) after
receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the
order of the registered holder of such Right Certificate, registered in such name or names as may
be designated by such holder and (iv) when appropriate, after receipt, deliver such cash to or upon
the order of the registered holder of such Right Certificate. In the event that the Company is
obligated to issue Common Shares, other securities of the Company, pay cash and/or distribute other
property pursuant to Section 11(a), the Company will make all arrangements necessary so that such
Common Shares, other securities, cash and/or other property are available for distribution by the
Rights Agent, if and when appropriate. The payment of the Purchase Price (as such amount may be
reduced pursuant to Section 11(a)(iii)) may be made in cash or by certified or bank check or bank
draft payable to the order of the Company. The Company hereby irrevocably authorizes and directs
its transfer agents and Depository Agent to comply with requests made hereunder.




     (d) In case the registered holder of any Right Certificate exercises 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.



18









 





     (e) Notwithstanding anything in this Agreement to the contrary, from and after the first
occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring Person
or an Associate or Affiliate of an Acquiring Person, (ii) any Person with whom such Acquiring
Person was or is Acting in Concert, (iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) which becomes a transferee after the Acquiring Person becomes such, or (iv)
a transferee of an Acquiring Person (or of any such Associate or Affiliate) which becomes a
transferee prior to or concurrently with the Acquiring Person becoming such and which receives such
Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring
Person (or any such Associate or Affiliate) to holders of equity interests in such Acquiring Person
(or any such Associate or Affiliate) or to any Person with whom the Acquiring Person (or such
Associate or Affiliate) has any continuing agreement, arrangement or understanding regarding the
transferred Rights, Common Shares or the Company or (B) a transfer which the Board of Directors has
determined to be part of a plan, arrangement or understanding which has as a primary purpose or
effect the avoidance of this Section 7(e), shall be null and void without any further action, and
no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether
under any provision of this Agreement or otherwise. The Company shall use reasonable efforts to
ensure that the provisions of this Section 7(e) and Section 4(b) are complied with, but shall have
no liability to any holder of Rights or any other Person as a result of its failure to make any
determination under this Section 7(e) or such Section 4(b) with respect to an Acquiring Person or
its Affiliates, Associates or transferees.



     (f) 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 upon any
purported exercise as set forth in this Section 7 unless such registered holder shall have



19









 




(i) completed and executed the certificate following the form of election to purchase set forth on the
reverse side of the Right Certificate surrendered for such exercise, and (ii) provided such
evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates (or any other Person with whom such Person is Acting in Concert (or any Affiliate or
Associate thereof)) as the Company may reasonably require.




     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 canceled form, or, if surrendered to the Rights Agent, shall be canceled by it,
and no Right Certificates shall be issued in lieu thereof, except as expressly permitted by any of
the provisions of this Agreement. The Company shall deliver to the Rights Agent for cancellation
and retirement, and the Rights Agent shall 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 canceled Right Certificates to the Company or shall, at the written request of the
Company, destroy such canceled Right Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.



     Section 9. Reservation, Authorization and Registration.



     (a) The Company shall (i) at all times prior to the Redemption Date or the Final Expiration
Date cause to be reserved and kept available out of its authorized and unissued shares of preferred
stock, the number of Preferred Shares that, as provided in this Agreement, will be
sufficient to permit the exercise in full of all outstanding Rights in accordance with Section
7 and (ii) at all times following the occurrence of a Section 11(a)(ii) Event, shall so reserve and
keep



20









 




available a sufficient number of any other securities that may be required to permit the
exercise in full of the Rights pursuant to this Agreement.




     (b) The Company shall take all such action as may be necessary to ensure that all Preferred
Shares (and following the occurrence of a Triggering Event, any other securities that may be
delivered upon exercise of Rights) shall be, at the time of delivery of the certificates or
depositary receipts for such securities, duly and validly authorized and issued and fully paid and
non-assessable.



     (c) The Company shall use its reasonable best efforts (i) as soon as practicable following the
occurrence of a Section 11(a)(ii) Event and a determination by the Company in accordance with
Section 11(a)(iii) of the consideration to be delivered by the Company upon exercise of the Rights,
or, if so required by law, as soon as practicable following the Distribution Date (such date being
the “Registration Date”), a registration statement under the Securities Act of 1933, as amended
(the “Act”), with respect to the securities purchasable upon exercise of the Rights on an
appropriate form (the “Registration Statement”), (ii) to cause such Registration Statement to
become effective as soon as practicable after the filing, and (iii) to cause such Registration
Statement to remain effective (with a prospectus at all times meeting the requirements of the Act)
until the earlier of (A) the date as of which the Rights are no longer exercisable for such
securities, and (B) the earlier to occur of the Redemption Date or the Final Expiration Date. The
Company will also use its best efforts to comply with the securities laws of the various states in
connection with the exercisability of the Rights. The Company may temporarily suspend, for a
period of time not to exceed ninety (90) days after the date set forth in
clause (i) of the first sentence of this Section 9(c), the exercisability of the Rights in
order to prepare and file such registration statements. Upon any suspension, the Company shall
issue a



21









 




public announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension is no longer in effect.
Notwithstanding any provision of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction unless the requisite registration or qualification in that
jurisdiction shall have been obtained.




     (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 or depositary receipts or Book Entry shares to a
Person other than, or the issuance or delivery of a number of one one-hundredths of a Preferred
Share (or, following the occurrence of a Triggering Event, any other securities, cash or assets as
the case may be) in a name other than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or to issue or to deliver any certificates for a number
of one one-hundredths of a Preferred Share (or, following the occurrence of a Triggering Event, any
other securities, cash or assets as the case may be) in a name other than that of the registered
holder 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 satisfaction that no such tax is due.



     Section 10. Preferred Shares Record Date. Each person in whose name any certificate or book entry shares as indicated in the records
of the transfer agent for Preferred Shares (or, following the occurrence of a Triggering Event,
other securities) is issued upon the exercise of



22









 




Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Shares (or, following the occurrence of a Triggering
Event, other securities) represented thereby on, and such certificate or book entry as indicated on
the records of the transfer agent shall be dated as of, 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 Preferred Shares (or, following the occurrence of a Triggering Event, other
securities) transfer books of the Company are closed, such person shall be deemed to have become
the record holder of such shares on, and such certificate shall be dated as of, the next succeeding
Business Day on which the Preferred Shares (or, following the occurrence of a Triggering Event,
other securities) transfer books of the Company are open. Before the exercise of the Rights
evidenced thereby, the holder of a Right Certificate shall not be entitled to any rights of a
shareholder of the Company with respect to securities for which the Rights shall be exercisable,
including, without limitation, the right to vote or to receive dividends or other distributions and
shall not be entitled to receive any notice of any proceedings of the Company, except as provided
herein.




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



     (a) (i) If at any time after the date of this Agreement the Company (A) declares a dividend on
the Preferred Shares payable in Preferred Shares, (B) subdivides the outstanding Preferred Shares,
(C) combines the outstanding Preferred Shares into a smaller number of Preferred Shares or (D)
issues any shares of its capital stock in a reclassification of the Preferred Shares (including any
reclassification in connection with a consolidation or merger in which the



23









 




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 Preferred Shares
or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so
that the holder of any Right exercised after such time shall be entitled to receive upon payment of
the Purchase Price then in effect the aggregate number and kind of Preferred Shares or capital
stock, as the case may be, which, if such Right had been exercised immediately prior to such date
and at a time when the Preferred Shares transfer books of the Company were open, he would have
owned upon such exercise and have been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. If an event occurs which would require an adjustment under both
this Section 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 Sections 23 and 24 of this Agreement, in the event any Person becomes an
Acquiring Person, other than pursuant to any transaction set forth in Section 13(a), then promptly
following the occurrence of such event (a “Section 11(a)(ii) Event”) (except as provided below and
in Section 7(e)), each holder of a Right shall have a right to receive, upon exercise thereof at a
price equal to the then-current Purchase Price, in accordance with the terms
of this Agreement and in lieu of the number of one one-hundredths of a Preferred Share for
which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii)
Event, such number of Common Shares of the Company as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the number of one one-hundredths of a Preferred
Share for which a Right was exercisable immediately prior to the first occurrence of a Section








24









 







11(a)(ii) Event and (y) dividing that product by 50% of the then current per share market price of
the Company’s Common Shares (determined pursuant to Section 11(d) hereof) on the date of the
occurrence of such event (such number of shares being the “Adjustment Shares”). In the event that
any Person becomes an Acquiring Person or any other Person with whom such Person is Acting in
Concert (or any Affiliate or Associate thereof) while the Rights are outstanding, the Company shall
take no action which would eliminate or diminish the benefits intended to be afforded by the
Rights, provided that, the Company’s exercise of its power to redeem the Rights pursuant to Section
23 hereof or of any other right or power specifically reserved to it hereunder shall not be deemed
an elimination or diminution of such benefits.




          (iii) In the event that the number of Common Shares which are authorized by the Company’s
charter but not outstanding or reserved for issuance for purposes other than upon exercise of the
Rights is not sufficient to permit the exercise in full of the Rights in accordance with the
foregoing subparagraph (ii) of this Section 11(a), the Company shall: (A) determine the excess of
(x) the value of the Adjustment Shares issuable upon the exercise of a Right (the “Current Value=)
over (y) the Purchase Price (such excess, the “Spread”), and (B) make adequate provision to
substitute for such Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2)
a reduction in the Purchase Price, (3) other equity securities of the Company (including, without
limitation, shares, or units of shares, of preferred stock which the
Board of Directors of the Company has deemed to have the same value as Common Shares (such
shares of preferred stock, “common share equivalents”)), (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







25









 







the Board of Directors of the Company; provided, however, if the Company shall not have made adequate
provision to deliver value pursuant to clause (B) above within thirty days following the later of
(x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s right
of redemption pursuant to Section 23 expires (the later of (x) and (y) being referred to herein as
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 the Purchase Price, Common
Shares (to the extent available) and then, if necessary, shares and/or cash, in an amount equal to
the Spread. 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 Section 7(e), that such action shall apply uniformly to all outstanding Rights, and (y)
may suspend the exercisability of the Rights until the expiration of the Substitution Period in
order to seek any authorization of additional shares and/or to decide the appropriate form of
distribution to be made pursuant to such first and/or second sentences 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 market price (as determined
pursuant to Section 11(d)) per Common Share on the Section
11(a)(ii) Trigger Date and the value of any “common share equivalent” shall be deemed to have
the same value as the Common Shares on such date.




     (b) If the Company fixes a record date for the issuance of rights, options or warrants to all
holders of Preferred Shares entitling them (for a period expiring within 45 calendar days after
such record date) to subscribe for or purchase Preferred Shares (or shares having the same



26









 




rights,
privileges and preferences as the Preferred Shares (“equivalent preferred shares”)) or securities
convertible into Preferred Shares or equivalent preferred shares at a price per Preferred Share or
equivalent preferred share (or having a conversion price per share, if a security convertible into
Preferred Shares or equivalent preferred shares) less than the then current per share market price
of the Preferred Shares (as defined in Section 11(d)) on such record date, the Purchase Price to be
in effect after such record date shall be determined by multiplying the Purchase Price in effect
immediately before such record date by a fraction the numerator of which shall be the number of
Preferred Shares outstanding on such record date plus the number of Preferred Shares which the
aggregate offering price of the total number of Preferred Shares and/or equivalent preferred 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 Preferred Shares outstanding on such record date plus the number of additional Preferred
Shares and/or equivalent preferred shares to be offered for subscription or purchase (or into which
the convertible securities so to be offered are initially convertible). If such subscription price
may be paid in part or in whole in a consideration 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 and shall be binding on the Rights
Agent and the holders of
the Rights. Preferred Shares owned by or held for the account of the Company or any
Subsidiary shall not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed; and in the event that
such rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date had not been fixed.




27









 








     (c) If the Company fixes a record date for a distribution to all holders of the Preferred
Shares (including any distribution made in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than
a regular quarterly cash dividend out of the earnings or the retained earnings of the Company),
assets (other than a dividend payable in Preferred Shares but including any dividend payable in
stock other than Preferred Shares) or subscription rights or warrants (excluding those referred to
in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be
determined by multiplying 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 (as determined
pursuant to Section 11(d)) of the Preferred Shares 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 cash, assets or
evidences of indebtedness so to be distributed or of such subscription rights or warrants
applicable to one Preferred Share and the denominator of which shall be such current per share
market price (as determined pursuant to Section 11(d)) of the Preferred Shares. Such adjustments
shall be made successively whenever such a record date is fixed; and if such distribution is not so
made, the Purchase Price shall again be adjusted to be the Purchase Price which would be in effect
if such record date had not been fixed.



     (d) (i) For the purpose of any computation hereunder, the current per share market price of
any security (a “Security” for the purpose of this Section 11(d)(i)) on any date shall be deemed to
be the average of the daily closing prices per share of the Security for the 10 consecutive Trading
Days (as hereinafter defined) immediately before such date; provided, however, that if the current
per share market price of the Security is determined during a period



28









 




following the announcement by
the issuer of such Security of (A) a dividend or other distribution on such Security payable in
shares of such Security or securities convertible into such Security, or (B) any subdivision,
combination or reclassification of such Security and before the expiration of 10 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 take into account ex-dividend trading. For the purpose of any
computation hereunder, the “current market price” per Common Share on any date shall be deemed to
be the average of the daily closing prices per share of such shares for the ten consecutive Trading
Days (as such term is hereinafter defined) immediately prior to such date; provided, however, if
prior to the expiration of such requisite ten Trading Day period the issuer announces either (A) a
dividend or distribution on such shares payable in such shares or securities convertible into such
shares (other than the Rights), or (B) any subdivision, combination or reclassification of such
shares, then, following the ex-dividend date for such dividend or distribution or the record date
for such subdivision, combination or reclassification as the case may be, the “current market
price” shall be properly adjusted to take into account such event. The closing price for each day
shall be, if the Security is listed and admitted to trading on a national securities exchange, as
reported in the principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on
which such Security is listed or admitted to trading or, if such Security is not listed or
admitted to trading on any national securities exchange, the last quoted sales price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated Quotation System
(“NASDAQ”) or such other system then in use, or, if on any such date such Security is not quoted by
any such




29









 







organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in such Security selected by the Board of Directors. If
on any such date no market maker is making a market in such Security, the fair value of such
Security on such date as determined in good faith by a majority of the Board of Directors shall be
used. If such Security is not publicly held or not so listed or traded, “current market price” per
share shall mean the fair value per share as determined in good faith by the Board of Directors,
whose determination shall be described in a statement filed with the Rights Agent and shall be
conclusive for all purposes. The term “Trading Day” shall mean regular trading hours on a Business
Day or, if such shares are listed or admitted to trading on any national securities exchange, a day
on which the principal national securities exchange on which such shares are listed or admitted to
trading is open for the transaction of business.




          (ii) For the purpose of any computation hereunder, the current per share market price of the
Preferred Shares shall be determined in accordance with the method set forth in Section 11(d)(i)
(other than the fourth sentence thereof). If the Preferred Shares are not publicly traded, the
“current per share market price” of the Preferred Shares shall be conclusively deemed to be the
current per share market price of the Common Shares as determined pursuant to Section 11(d)(i)
(appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring
after the date hereof), multiplied by one hundred. If neither the Common
Shares nor the Preferred Shares are publicly held or so listed or traded, “current per share
market price, shall mean the fair value per share as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. For all
purposes of this




30









 







Agreement, the current market price of one one-hundredth of a Preferred Share
shall be equal to the current market price of one share of Preferred Shares divided by 100.




     (e) No adjustment in the Purchase Price shall be required unless such adjustment would require
an increase or decrease of at least 1% in the Purchase Price; provided, however, that any
adjustments which by reason of this Section 11(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 one-millionth of a Preferred Share or
ten-thousandth of any other share or security as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by this Section 11 shall be made no later
than the earlier of (i) three years from the date of the transaction which requires such adjustment
or (ii) the date of the expiration of the right to exercise any Rights.



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



     (g) All Rights originally issued by the Company after any adjustment made to the Purchase
Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the number of
one one-hundredths of a Preferred Share (or other securities or amount of cash or



31









 




combination
thereof) purchasable from time to time hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.




     (h) Unless the Company has exercised its election as provided in Section 11(i), upon each
adjustment of the Purchase Price as a result of the calculations made in Sections 11(b) and (c),
each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Purchase Price, that number of one one-hundredths of a
Preferred Share (or other securities) (calculated to the nearest one-millionth of a Preferred
Share) obtained by (i) multiplying (x) the number of one one-hundredths of a Preferred Share (or
other securities) covered by a Right immediately before this adjustment by (y) the Purchase Price
in effect immediately before 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 one one-hundredths
of a Preferred Share (or other securities) purchasable upon the exercise of a Right. Each of the
Rights outstanding after such adjustment of the number of Rights shall be exercisable for the
number of one one-hundredths of a Preferred Share (or other securities) for which a Right was
exercisable immediately before such adjustment. Each Right held of record before 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
before 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



32









 




known at the
time, the amount of the adjustment to be made. This record date may be the date on which the
Purchase Price is adjusted or any day thereafter, but, if the Right Certificates have been issued,
it 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 are 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 are entitled after such adjustment. Right Certificates so to be
distributed shall be issued, executed and countersigned in the manner provided for herein (and may
bear, at the option of the Company, the adjusted Purchase Price) and shall be registered in the
names of the holders of record of Right Certificates on the record date specified in the public
announcement.




     (j) Regardless of any adjustment or change in the Purchase Price or the number of one
one-hundredths of a Preferred Share (or other securities) issuable upon the exercise of the Rights,
the Right Certificates theretofore and thereafter issued may continue to express the Purchase Price
and the number of one one-hundredths of a Preferred Share which were expressed in the initial Right
Certificates issued hereunder.



     (k) Before taking any action that would cause an adjustment reducing the Purchase Price below
the then par value of the number of one one-hundredths of a Preferred Share issuable upon exercise
of the Rights, the Company shall take any corporate action which may, in the



33









 




opinion of its
counsel, be necessary in order that the Company may validly and legally issue such fully paid and
non-assessable number of one one-hundredths of a Preferred Share (or other securities) 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 that number of one one-hundredths of a Preferred Share and other capital stock or
securities of the Company, if any, issuable upon such exercise over and above the number of one
one-hundredths of a Preferred Share and other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder’s right to receive such additional shares (fractional or
otherwise) or securities upon the occurrence of the event requiring such adjustment.



     (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 Preferred Shares, issuance wholly
for cash of any Preferred Shares at less than the current market price, issuance wholly for cash of
Preferred Shares or securities which by their terms are convertible into or exchangeable for
Preferred Shares, dividends on Preferred Shares payable in Preferred Shares or issuance of
rights, options or warrants referred to in this Section 11, hereafter made by the Company to
holders of its Preferred Shares shall not be taxable to such shareholders.



34









 





     (n) If at any time between the date of this Agreement and the Distribution Date, the Company
(i) declares or pays any dividend on the Common Shares payable in Common Shares or (ii) effects a
subdivision, combination or consolidation of the Common Shares (by reclassification or otherwise
than by payment of dividends in Common Shares) into a greater or lesser number of Common Shares,
then (A) the number of one one-hundredths of a Preferred Share purchasable after such event upon
proper exercise of each Right shall be determined by multiplying the number of one one-hundredths
of a Preferred Share so purchasable immediately before such event by a fraction, the numerator of
which is the number of Common Shares outstanding immediately before such event and the denominator
of which is the number of Common Shares outstanding immediately after such event, and (B) each
Common Share outstanding immediately after such event shall have issued with respect to it that
number of Rights which each Common Share outstanding immediately before such event had issued with
respect to it. The adjustments provided for in this Section 11(n) shall be made successively
whenever such a dividend is declared or paid or such a subdivision, combination or consolidation is
effected.



     (o) The Company covenants and agrees that it shall not, at any time after the Distribution
Date, (i) consolidate with any other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(p) hereof), (ii) merge with or into any other Person
(other than a Subsidiary of the Company in a transaction which complies with Section 11(p) hereof)
or (iii) sell or transfer (or permit any Subsidiary to sell or transfer), in one
transaction or a series of related transactions outside the ordinary course of the Company’s
business, assets or earning power aggregating more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other Person or Persons (other than a



35









 




Subsidiary of the Company in a transaction which complies with Section 11(p) hereof), if (x) at the
time of or immediately after such consolidation, merger or sale there are any rights, warrants or
other instruments or securities outstanding or agreements in effect which would substantially
diminish or otherwise eliminate the benefits intended to be afforded by the Rights or (y) prior to,
simultaneously with or immediately after such consolidation, merger or sale, the Person which
constitutes, or would constitute, the “Principal Party” for purposes of Section 13(a) shall have
distributed or otherwise transferred to its shareholders or other persons holding an equity
interest in such Person Rights previously owned by such Person or any of, its Affiliates and
Associates; provided, however, this Section 11(o) shall not affect the ability of any Subsidiary of
the Company to effect a share exchange with, merge with or into, or sell or transfer assets or
earning power to, any other Subsidiary of the Company.




     (p) After the Distribution Date, the Company shall not, except as permitted by Section 23 or
Section 27, 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 Section 11 or 13 hereof, the Company shall promptly (a) prepare a
certificate setting forth such adjustment, and a brief statement of the facts accounting for such
adjustment, (b) file with the Rights Agent and with each transfer agent
for the Common Shares or the Preferred 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.



36









 





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



     (a) If, at any time after a Person has become an Acquiring Person, directly or indirectly, (x)
the Company consolidates with, or merges with and into, any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section 11(p) hereof), (y) any Person (other
than a Subsidiary of the Company in a transaction which complies with Section 11(p) hereof) merges
with and into the Company and the Company is the continuing or surviving corporation of such merger
and, in connection with such merger, all or part of the Common Shares are changed into or exchanged
for stock or other securities of any other Person (or the Company) or cash or any other property or
engages in a consolidation with the Company in which all or part of the Common Shares are changed
into or exchanged for stock or other securities of any other Person or (z) the Company sells or
otherwise transfers (or one or more of its Subsidiaries sells or otherwise transfers), in one or
more transactions, assets or earning power aggregating 50% or more of the assets or earning power
of the Company and its Subsidiaries (taken as a whole) to any 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(p) hereof (any such event being a “Section 13 Event”) then, and in each such case,
proper provision shall be made so that (i) each holder of a Right (except as otherwise provided in
Section 7(e) hereof) shall thereafter have the right to receive, upon the exercise thereof at a
price equal to the then current Purchase Price, in accordance with the terms of this Agreement and
in lieu of Preferred Shares, such number of validly authorized and issued and fully paid and
non-assessable Common Shares of the Principal Party (as hereinafter defined) (including the
Company as
successor thereto or as the surviving corporation) as shall equal the result obtained by (A)
multiplying the then current Purchase Price by the number of one one-hundredths of a Preferred



37









 




Share 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 number of one one-hundredths of a Preferred
Share for which a Right would be
exercisable hereunder but for the occurrence of such Section 11(a)(ii) Event by the Purchase Price
which would be in effect hereunder but for such first occurrence) and dividing that product by (B)
50% of the then current per share market price of the Common Shares of such Principal Party
(determined pursuant to Section 11(d) hereof) 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 under 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 accordance with Section 9 hereof) in connection with the consummation of any such transaction to
assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be,
in relation to the Common Shares thereafter deliverable upon the exercise of the Rights; and (v)
the provisions of Section 11(a)(ii) shall be of no further 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), (A) the Person that is the issuer of any securities into which Common
Shares are converted in such merger or consolidation, or, if there is more than one such
issuer, the issuer of Common Shares that has the highest aggregate current market price (determined




38









 







pursuant to Section 11(d)); and (B) if no securities are so issued, the Person that is the other
party to such merger or consolidation, or, if there is more than one such Person, the Person the
Common Shares of which has the highest aggregate current market price (determined pursuant to
Section 11(d)); 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 largest portion of the assets or earning power
transferred pursuant to such transaction or transactions, or, if each Person that is a party to
such transaction or transactions receives the same portion of the assets or earning power
transferred pursuant to such transaction or transactions or if the Person receiving the largest
portion of the assets or earning power cannot be determined, whichever Person the Common Shares of
which has the highest aggregate current market price (determined pursuant to Section 11(d));
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-month period registered under Section
12 of the Exchange Act (“Registered Common Shares”), or such Person is not a corporation, and such
Person is a direct or indirect Subsidiary of another Person that has Registered Common Shares
outstanding, “Principal Party” shall refer to such other Person; (2) if the Common Shares of such
Person are not Registered Common Shares or such Person is not a corporation, and such Person is a
direct or indirect Subsidiary of another Person but is not a direct or indirect Subsidiary of
another Person which has Registered Common Shares outstanding, “Principal Party” shall refer to the
ultimate parent entity of such first-mentioned Person; (3) if the Common Shares of such Person are
not Registered Common Shares or such
Person is not a corporation, and such Person is directly or indirectly controlled by more than
one Person, and one or more of such other Persons has Registered Common Shares outstanding,







39









 







“Principal Party” shall refer to whichever of such other Persons is the issuer of the Registered
Common Shares having the highest aggregate current market price (determined pursuant to Section
11(d)); and (4) if the Common Shares of such Person are not Registered Common Shares or such Person
is not a corporation, and such Person is directly or indirectly controlled by more than one Person,
and none of such other Persons have Registered Common Shares outstanding, “Principal Party” shall
refer to whichever ultimate parent entity is the corporation having the greatest shareholders
equity or, if no such ultimate parent entity is a corporation, shall refer to whichever ultimate
parent entity is the entity having the greatest net assets.




     (c) The Company shall not consummate any such consolidation, merger, sale or transfer unless
the Principal Party shall have a sufficient number of its authorized Common Shares which have not
been issued or reserved for issuance to permit the exercise in full of the Rights in accordance
with 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
paragraphs (a) and (b) of this Section 13 and further providing that the Principal Party will:



          (i) (A) file on an appropriate form, as soon as practicable following the execution of such
agreement, a registration statement under the Securities Act with respect to the Common Shares that
may be acquired upon exercise of the Rights, (B) cause such registration statement to remain
effective (and to include a prospectus complying with the requirement of the Securities Act) until
the Expiration Date, and (C) as soon as practicable following the execution of such agreement, take
such action as may be required to ensure that any acquisition of such
Common Shares upon the exercise of the Rights complies with any applicable state security or
“blue sky” laws; and




40









 








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




     (d) In case the Principal Party which is to be a party to a transaction referred to in this
Section 13 has a provision in any of its authorized securities or in its certificate of
incorporation or bylaws or other instrument governing its corporate affairs, which provision would
have the effect of (i) causing such Principal Party to issue, in connection with, or as a
consequence of, the consummation of a transaction referred to in this Section 13, Common Shares of
such Principal Party at less than the then current market price per share (determined pursuant to
Section 11(d)) or securities exercisable for, or convertible into, Common Shares of such Principal
Party at less than such then current market price (other than to holders of Rights pursuant to this
Section 13) (ii) providing for any special payment, tax or similar provisions in connection with
the issuance of the Common Shares of such Principal Party pursuant to the provisions of Section 13
or (iii) otherwise eliminating or substantially diminishing the benefits intended to be afforded by
the Rights in connection with, or as a consequence of a transaction referred to in this Section 13;
then, in such event, the Company shall not consummate any such transaction unless prior thereto the
Company and such Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing that the provision in question of such Principal Party shall have
been canceled, waived or amended, or that the authorized securities shall be redeemed, so that the
applicable provision will have no effect in connection with, or as a consequence of, the
consummation of the proposed transaction.



     (e) The provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or mergers or other transfers. In the event that a Section 13 Event shall occur at



41









 




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, the Company
shall pay to the registered holders of the Right Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal to such fraction of the current market
value of a whole Right. For purposes of this Section 14(a), the current market value of a whole
Right shall be the closing price of the Rights for the Trading Day immediately before the date on
which such fractional Rights would otherwise have been issuable. The closing price of the Rights
for any day shall be, if the Rights are listed or admitted to trading on a national securities
exchange, as reported in the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted to trading on any national
securities exchange, the last quoted sales price or, if not so quoted, the average of the high bid
and low asked prices in the over-the-counter market, as reported by NASDAQ or such other system
then in use or, 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. 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 shall be used and such determination
shall be described in a statement filed with the Rights Agent and the holders of the Rights
and shall be binding on the Rights Agent and the holders of the Rights.



42









 





     (b) The Company shall not be required to issue fractions of Preferred Shares (other than
fractions which are integral multiples of one one-hundredth of a Preferred Share) (or other
securities) upon exercise of the Rights or to distribute certificates or book entry shares as
indicated in the records of the transfer agent which evidence fractional Preferred Shares (other
than fractions which are integral multiples of one one-hundredth of a Preferred Share) (or other
securities). Fractions of Preferred Shares in integral multiples of one one-hundredth of a
Preferred Share may, at the election of the Company, be evidenced by depositary receipts, pursuant
to an appropriate agreement between the Company and a depositary selected by it; provided, that
such agreement shall provide that the holders of such depositary receipts have all the rights,
privileges and preferences to which they are entitled as beneficial owners of the Preferred Shares
represented by such depositary receipts. In lieu of fractional Preferred Shares that are not
integral multiples of one one-hundredth of a Preferred Share (or other securities), 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
one-hundredth of a Preferred Share (or other securities). For purposes of this Section 14(b), the
current market value of one one-hundredth of a Preferred Share (or other securities) shall be the
closing price of a Preferred Share (or other securities) (as determined pursuant to the second
sentence of Section 11(d)(i) hereof) for the Trading Day immediately before 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).



43









 





     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, on 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) before the Distribution Date, the Rights will be evidenced by the balances indicated in
the Book Entry account system of the transfer agent for the Common Shares
registered in the names of the holders of Common Shares (which Common Shares shall also be
deemed to represent certificates for Rights) or, in the case of certificated shares, the
certificates for the Common Shares registered in the names of the holders of the Common Shares
(which



44









 




certificates for Common Shares shall also constitute certificates for Rights) and are
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) subject to Section 6(a) and Section 7(f), the Company and the Rights Agent may deem and
treat the person in whose name the Right Certificate (or, before 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 or the associated Book Entry shares as indicated in the records of the transfer agent for the
Common Shares) for all purposes whatsoever, and neither the Company nor the Rights Agent, subject
to the last sentence of Section 7(e), 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 Person as a result of its inability to perform any of
its obligations hereunder by reason of any preliminary or permanent injunction or any other order,
decree or ruling of a court of competent jurisdiction, 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, that the Company must take reasonable
measures to have any such order, decree or ruling lifted or otherwise reversed.



45









 





     Section 17. Right Certificate Holder Not Deemed a Shareholder. No holder, as such, of
any Right Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of the Preferred 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 and counsel fees and other disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties hereunder. The Company also agrees
to indemnify the Rights Agent for, and to hold it harmless against, any loss, liability, or expense
incurred without gross negligence, bad faith or willful misconduct on the part of the Rights Agent,
for anything done or omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending against any claim
of liability 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



46









 




Agreement in
reliance upon any Right Certificate or certificate for the Preferred Shares or any balance
indicated in the Book Entry account system of the transfer agent or 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 powers of the Rights Agent or any successor Rights Agent
shall be the successor to the Rights Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided that such
corporation would be eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights Agent shall succeed to the agency
created by this Agreement, any of the Right Certificates shall have been countersigned but not
delivered, 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



47









 




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
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 any one of the Chairman and Chief Executive
Officer, the President and Chief Operating Officer, any Vice President, the Treasurer or the
Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full



48









 




authorization to the Rights Agent for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.




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



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



     (e) The Rights Agent shall not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Right Certificate; nor shall it be
responsible for any change in the exercisability of the Rights (including the Rights becoming void
pursuant to Section 11(a)(ii) hereof) or any adjustment in the terms of the Rights (including the
manner, method or amount thereof) provided for in 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 an act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Common Shares, Preferred Shares, or any
other securities to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Preferred Shares will, when issued, be validly authorized and
issued, fully paid and non-assessable.



49









 





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



     (g) The Rights Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from any one of the Chairman and Chief Executive Officer,
the President and Chief Operating Officer, any Vice President, the Secretary or the 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 any of the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not Rights Agent under
this Agreement.



     (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.



     (j) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or
transfer, the certificate attached to the form of assignment or form of election to purchase, as
the case may be, has either not been completed, not signed or indicates an



50









 




affirmative response to
clause 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to such
requested exercise of transfer without first consulting with the Company. If such certificate has
been completed and signed, the Rights Agent may assume without further inquiry that the Rights
Certificate is not owned by a person described in Section 4(b) or Section 7(e) and shall not be
charged with any knowledge to the contrary.




     Section 21. Change of Rights Agent. The Rights Agent or any successor Rights Agent
may resign and be discharged from its duties under this Agreement upon 30 days’ notice in writing
mailed to the Company and, in the event that the Rights Agent or one of its Affiliates is not also
the transfer agent for the Company, to each transfer agent of the Common Shares or Preferred Shares
by registered or certified mail. In the event the transfer agency relationship in effect between
the Company and the Rights Agent terminates, the Rights Agent will be deemed to resign
automatically and be discharged from its duties under this Agreement as of the effective date of
such termination; and any required notice will be sent by the Company. The Company may remove the
Rights Agent or any successor Rights Agent upon 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 or Preferred Shares by registered or certified mail and to the holders of the Right
Certificates by first-class mail. If the Rights Agent resigns or is removed or otherwise becomes
incapable of acting, the Company shall appoint a successor to the Rights Agent. If the Company
fails 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



51









 




appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court, shall be (a) a
corporation or other entity organized and doing business under the laws of the United States or of
the State of Tennessee (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 Tennessee), in good standing,
which is authorized under such laws to exercise corporate trust or stock transfer powers and is
subject to supervision or examination by federal or state authority and which has at the time of
its appointment as Rights Agent a combined capital and surplus of at least $50,000,000 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 held by it
hereunder and shall 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 or Preferred Shares, and 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



52









 




class of shares or other
securities or property purchasable under the Right Certificates made in accordance with the
provisions of this Agreement. In addition, in connection with the issuance or sale of Common
Shares following the Distribution Date and prior to the earlier to occur of the Redemption Date or
the Final Expiration Date, the Company (a) shall, with respect to Common Shares so issued or sold
pursuant to the exercise of stock options or under any employee plan or arrangement, or upon the
exercise, conversion or exchange of securities hereinafter issued by the Company, and (b) may, in
any other case, if deemed necessary or appropriate by the Board of Directors, issue Right
Certificates representing the appropriate number of Rights in connection with such issuance or
sale; provided, however, that (i) no such Right Certificate shall be issued if, and to the extent
that, the Company shall be advised by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the person to whom such Right Certificate would
be issued, and (ii) no such Right Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the issuance thereof.




     Section 23. Redemption and Termination.



     (a) The Board of Directors of the Company may at its option, at any time before the earlier of
(i) the Close of Business on the tenth day following the Shares Acquisition Date and (ii) the Close
of Business on the Final Expiration Date, redeem all but not less than all the then outstanding
Rights at a redemption price of $.01 per Right, as such amount may be appropriately
adjusted to reflect any stock split, stock dividend or similar transaction occurring after the
date hereof (such redemption price being the “Redemption Price”), and the Company may, at its
option, by action of the Board of Directors, pay the Redemption Price either in Common Shares
(based on the “current market price,” as defined in Section 11(d), of the Common Shares at the



53









 




time of redemption) or cash; provided that if the Company elects to pay the Redemption Price in Common
Shares, the Company shall not be required to issue fractional Common Shares. In lieu of such
fractional Common Shares, the Company shall pay to the registered holders of the Right Certificates
with regard to which such fractional Common Shares would otherwise be issuable an amount of cash
equal to the same fraction of the current per share market price of a whole Common Share.
Notwithstanding anything 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.




     (b) Immediately upon the action of the Board of Directors of the Company ordering the
redemption of the Rights pursuant to paragraph (a) of this Section 23, 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 such action of the Board of Directors ordering the redemption of the Rights, 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



54









 




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 7(e)
hereof) for Common Shares 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 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, or any entity holding Common Shares
for or pursuant to the terms of any such plan), together with all Affiliates and Associates of such
Person or any other Person with whom such Person is Acting in Concert (or any Affiliate or
Associate thereof), becomes the Beneficial Owner of 50% or more of the Common Shares then
outstanding.



     (b) Immediately upon the action of the Board of Directors of the Company ordering the exchange
of any Rights pursuant to paragraph (a) of this Section 24 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 a 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



55









 




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 7(e) hereof) held by each
holder of Rights.




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



     (d) In the event that there are not sufficient Common Shares or Preferred Shares 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
Preferred Shares for issuance upon exchange of the Rights.



     (e) The exchange of the Rights by the Board of Directors of the Company may be made effective
at such time, on such basis and with such conditions as the Board of Directors of the Company in
its sole discretion may establish. Prior to effecting an exchange pursuant to this Section 24, the
Board of Directors of the Company may direct the Company to enter into a Trust



56









 




Agreement in such
form and with such terms as the Board of Directors of the Company shall then approve (the “Trust
Agreement”). If the Board of Directors of the Company so directs, the Company shall enter into the
Trust Agreement and shall issue to the trust created by such agreement (the “Trust”) all of the
Common Shares issuable pursuant to the exchange, and all Persons entitled to receive shares
pursuant to the exchange shall be entitled to receive such shares (and any dividends or
distributions made thereon after the date on which such shares are deposited in the Trust) only
from the Trust and solely upon compliance with the relevant terms and provisions of the Trust
Agreement, which, among other things, may require any such Person to certify that it is not an
Acquiring Person or an Affiliate or Associate thereof.




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



     Section 25. Notice of Certain Events.



     (a) If the Company proposes (i) to pay any dividend payable in stock of any class to the
holders of its Preferred Shares or to make any other distribution to the holders of its Preferred
Shares (other than a regular quarterly cash dividend out of earnings or retained earnings of the
Company), (ii) to offer to the holders of its Preferred Shares rights or warrants to subscribe for
or



57









 




to purchase any additional Preferred Shares or shares of stock of any class or any other
securities, rights or options, (iii) to effect any reclassification of its Preferred Shares (other
than a reclassification involving only the subdivision of outstanding Preferred Shares), (iv) to
effect any consolidation or merger into or with, any Person (other than a Subsidiary of the Company
in a transaction which complies with Section 11(p) hereof) or to effect any sale or other transfer
(or to permit one or more of its Subsidiaries to effect any sale or other transfer), in one 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 Persons (other than a Subsidiary of the Company in a
transaction which complies with Section 11(p) hereof), or to engage in a share exchange with any
other Person (other than a Subsidiary of the Company in a transaction which complies with Section
11(p) hereof) in which all or part of the Common Shares are changed into or exchanged for stock or
securities of, any other Person, (v) to effect the liquidation, dissolution or winding up of the
Company, or (vi) to declare or pay any dividend on the Common Shares payable in Common Shares or to
effect a subdivision, combination or consolidation of the Common Shares (by reclassification or
otherwise than by payment of dividends in Common Shares), 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, sale, transfer, liquidation, dissolution, or winding
up is to take place and the date of participation therein by the holders of the Common Shares
and/or Preferred 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 the Preferred Shares for purposes of such action, and in the case of any




58









 







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 and/or Preferred Shares,
whichever shall be the earlier; provided, however, no such notice shall be required pursuant to
this Section 25, if any Subsidiary of the Company effects a share exchange or merger with or into,
or effects a sale or other transfer of assets or earnings power to, any other Subsidiary of the
Company.




     (b) In case of any events set forth in Section 11(a)(ii) hereof occur, then 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 describe such event
and the consequences of such event to holders of Rights under Section 11(a)(ii) hereof.



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


Genesco Inc.

Genesco Park

1415 Murfreesboro Road

Nashville, Tennessee 37217-2895

Attention: Corporate Secretary



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




59









 




Computershare Trust Company, N.A.

250 Royall Street

Canton, Massachusetts 02021

Attention: Client Services



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




     Section 27. Supplements and Amendments. Before the Distribution Date 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 any provision of this Agreement without the approval of any holders
of Common Shares. From and after the Distribution Date, the Company and the Rights Agent shall, if
the Company so directs, supplement or amend this Agreement without the approval of any holders of
Rights (i) to cure any ambiguity, (ii) to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein, (iii) to shorten or
lengthen any time period hereunder; or (iv) to change or supplement the provisions hereunder in any
manner which the Company may deem necessary or desirable and which shall be consistent with, and
for the
purpose of fulfilling, the objectives of the Board of Directors adopting this Agreement;
provided, however, that from and after such time as any Person becomes an Acquiring Person, this
Agreement shall not be amended in any manner which would adversely affect the interests of the
holders of Rights (other than an Acquiring Person or an Affiliate or Associate thereof, or any
other Person with whom such Person is Acting in Concert (or any Affiliate or Associate thereof)),
provided, however, that this Agreement may not



60









 




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. 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 change the
Purchase Price hereunder. 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, provided that such
supplement or amendment does not adversely affect the rights, duties or obligations of the Rights
Agent under this Agreement. Notwithstanding anything contained in this Agreement to the contrary,
no supplement or amendment shall be made which changes the Redemption Price, the Purchase Price,
the Expiration Date or the number of one one-hundredths of a Preferred Share for which a Right is
exercisable without the approval of a majority of the Board of Directors. 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.




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



     Section 29. Determinations and Actions by the Board of Directors, etc. For all
purposes of this Agreement, any calculation of the number of Common Shares 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



61









 




accordance
with the last sentence of Rule 13d-3(d)(1)(i) of the Exchange Act Regulations as in effect on the
date hereof. Except as otherwise specifically provided herein, the Board of Directors shall have
the exclusive power and authority to administer this Agreement and to exercise all rights and
powers specifically granted to the Board of Directors or to the Company, or as may be necessary or
advisable in the administration of this Agreement, including, without limitation, the right and
power (i) to interpret the provisions of this Agreement, and (ii) to make all determinations deemed
necessary or advisable for the administration of this Agreement (including, without limitation, a
determination to redeem or not redeem the Rights in accordance with Section 23, to exchange or not
exchange the Rights in accordance with Section 24, or to amend or not to amend this Agreement in
accordance with Section 27) . All such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect to the foregoing) which
are done or made by the Board of Directors in good faith shall (x) be final, conclusive and binding
on the Company, the Rights Agent, the holders of the Rights and all other parties, and (y) not
subject the Board of Directors or any member thereof to any liability to the holders of the Rights.




     Section 30. 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) 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).



     Section 31. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or



62









 




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



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



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



     Section 35. Force Majeure. Notwithstanding anything to the contrary contained herein,
the Rights Agent shall not be liable for any delays or failures in performance resulting from acts
beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage
of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss
of data due to power failures or mechanical difficulties with information storage or retrieval
systems, labor difficulties, war, or civil unrest.



63









 





     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.



	 	 	 	 	 	 	 

	 

	 	 	 	 	 	 
	 	 	GENESCO INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	Name: 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	Title:	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	COMPUTERSHARE TRUST COMPANY, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	Name: 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	Title:	 	 	 
	 

	 	 	 	 	 	 






64












 





Exhibit A




FORM OF DESIGNATION OF SERIES SIX

SUBORDINATED SERIAL PREFERRED STOCK




     The following is the designation of the rights and preferences of the Genesco Inc. Series 6
Subordinated Serial Preferred Stock. This designation is contained in Genesco Inc.’s Restated
Charter as amended as of May 1, 2003.



PART C-VII — SUBORDINATED SERIAL PREFERRED STOCK, SERIES 6




     The sixth Series of Subordinated Serial Preferred Stock shall be known as “Subordinated Serial
Preferred Stock, Series 6” (hereinafter referred to as “Series 6 Serial Preferred Stock”), shall
consist of 800,000 shares without nominal or par value, and shall have in addition to the rights
and preferences granted by law and by Part C-I of this Article Sixth, the following
characteristics, rights and preferences:



     (1) Dividends. (a) Subject to the rights of the holders of any shares of any class or series
of Preferred Stock (or any similar stock) ranking prior and superior to the Series 6 Serial
Preferred Stock with respect to dividends, the holders of shares of Series 6 Serial Preferred
Stock, in preference to the holders of the Cumulative Preferred Stock, the Employees’ Preferred
Stock, the Common Stock and of any other junior stock, shall be entitled to receive, when, as and
if declared by the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the last days of January, April, July and October in each year (each
such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share of Series 6 Serial Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $1.00 or
(b) subject to the provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount (payable in kind) of all non-cash dividends or other distributions, other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series 6 Serial Preferred
Stock. In the event the Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount to which holders of shares of Series 6 Serial Preferred Stock were
entitled immediately prior to such event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately prior to such event.



 









 





          (b) The Corporation shall declare a dividend or distribution on the Series 6 Serial Preferred
Stock as provided in paragraph (a) of this Section (1) immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series 6 Serial Preferred
Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.




          (c) Dividends shall begin to accrue and be cumulative on outstanding shares of Series 6 Serial
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such
shares, unless the date of issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Series 6 Serial Preferred
Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series 6 Serial Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix
a record date for the determination of holders of shares of Series 6 Serial Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon, which record date shall
be not more than 60 days prior to the date fixed for the payment thereof.




     (2) Voting Rights. The holders of shares of Series 6 Serial Preferred Stock shall have the
following voting rights:



          (a) Subject to the provision for adjustment hereinafter set forth, each share of Series 6
Serial Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a
vote of the shareholders of the Corporation. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the number of votes per
share to which holders of shares of Series 6 Serial Preferred Stock were entitled immediately prior
to such event shall be adjusted (to the nearest whole vote per share) by multiplying such number by
a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.






 









 








          (b) Except as otherwise provided herein, in any other Charter Amendment creating a series of
preferred stock or any similar stock, or by law, the holders of shares of Series 6 Serial Preferred
Stock and the holders of shares of Common Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one class on all matters submitted to a vote of
shareholders of the Corporation.




          (c) Except as set forth herein, or as otherwise provided by law, holders of Series 6 Serial
Preferred Stock shall have no special voting rights and their consent shall not be required (except
to the extent they are entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.




     (3) Certain Restrictions. (a) Whenever quarterly dividends or other dividends or
distributions payable on the Series 6 Serial Preferred Stock as provided in Section (1) are in
arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series 6 Serial Preferred Stock outstanding shall have been paid in full,
the Corporation shall not:




     (i) declare or pay dividends, or make any other distributions, on any shares
of stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series 6 Serial Preferred Stock;




     (ii) declare or pay any dividends, or make any other distributions, on any
            shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series 6 Serial Preferred Stock, except
dividends paid ratably on the Series 6 Serial Preferred Stock and all such parity
stock on which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;




     (iii) redeem or purchase or otherwise acquire for consideration shares of any
stock ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series 6 Serial Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation ranking junior (both
as to dividends and upon dissolution, liquidation or winding up) to the Series 6
Serial Preferred Stock; or




     (iv) redeem or purchase or otherwise acquire for consideration any shares of
Series 6 Serial Preferred Stock, or any shares of stock ranking on a parity with
the Series 6 Serial Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after
consideration of the respective



 









 







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



          (b) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation, unless the Corporation
could, under paragraph (a) of this Section (3), purchase or otherwise acquire such shares at such
time and in such manner.




     (4) Reacquired Shares. Any shares of Series 6 Serial Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after
the acquisition thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Subordinated Serial Preferred Stock and may be reissued as part of a new series
of Subordinated Serial Preferred Stock, subject to the conditions and restrictions on issuance set
forth herein, in the Charter or in any amendment thereto creating a series of Subordinated Serial
Preferred Stock or any similar stock or as otherwise required by law.



     (5) Liquidation. Upon any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series 6 Serial Preferred Stock,
unless prior thereto the holders of shares of Series 6 Serial Preferred Stock shall have received
$100 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, provided that the holders of shares of
Series 6 Serial Preferred Stock shall be entitled to receive an aggregate amount per share, subject
to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount to
be distributed per share to holders of shares of Common Stock, or (ii) to the holders of shares of
stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series 6 Serial Preferred Stock, except distributions made ratably on the Series 6 Serial
Preferred Stock and all such parity stock in proportion to the total amounts to which the holders
of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount per share determined under clause (i) of the preceding sentence immediately prior
to such event shall be adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding immediately prior to such
event.



     (6) Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation,
merger, share exchange, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities,



 









 




cash and/or any other property, then in any such case each share of Series 6 Serial Preferred Stock
shall at the same time be similarly exchanged or changed into shares of such other stock or
securities, cash and/or other property having a value per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate value of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or for which each share
of Common Stock is exchanged or changed. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number 100 set forth in the preceding
sentence (as adjusted, if applicable) shall be adjusted by multiplying such number (or adjusted
number) by a fraction, the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.




     (7) No Redemption or Conversion. The shares of Series 6 Serial Preferred Stock shall not be
redeemable or convertible.



     (8) Relative Rights and Preferences. The Series 6 Serial Preferred Stock ranks junior to the
Series 1, 3 and 4 Serial Preferred Stock and senior to all other series of Serial Preferred Stock,
as to dividends and upon liquidation, dissolution or winding up.



 









 





Exhibit B




[Form of Right Certificate]



Certificate No.




                     Rights




     NOT EXERCISABLE AFTER THE EARLIER OF THE REDEMPTION DATE OR THE FINAL EXPIRATION DATE (AS
DEFINED IN THE RIGHTS AGREEMENT). THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, ON THE TERMS SET FORTH IN THE AMENDED AND RESTATED RIGHTS AGREEMENT UNDER CERTAIN
CIRCUMSTANCES (SPECIFIED IN THE AMENDED AND RESTATED RIGHTS AGREEMENT). RIGHTS BENEFICIALLY OWNED
BY ACQUIRING PERSONS (AS DEFINED IN THE RIGHTS AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS
MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHT CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE
OF AN ACQUIRING PERSON OR A PERSON WITH WHOM SUCH ACQUIRING PERSON WAS OR IS ACTING IN CONCERT (AS
SUCH TERMS ARE DEFINED IN THE AMENDED AND RESTATED RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT].1



Right Certificate




GENESCO INC.



     This certifies that                                                    
         , or registered assigns, is the
registered holder of the number of Rights set forth above, each of which entitles the registered
holder thereof, subject to the terms and conditions of the Second Amended and Restated Rights
Agreement dated April 8, 2010 (the “Rights Agreement”) between Genesco Inc., a Tennessee
corporation (the “Company”), and Computershare Trust Company, N.A., as successor rights agent to
First Chicago Trust Company of New York (the “Rights Agent,” which term shall include any successor
Rights Agent under the Rights Agreement), to purchase from





 




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




 









 









the Company at any time after the Distribution Date (as such term is defined in the Rights
Agreement) and prior to the earlier of the Redemption Date or the Final Expiration Date (as such
terms are defined in the Rights Agreement) at the office of the Rights Agent or its successor
designated for such purpose, one one-hundredth of a fully paid non-assessable share of Subordinated
Serial Preferred Stock, Series 6, no par value per share (the “Preferred Share”), of the Company
at the Purchase Price initially of $113.00 per one one-hundredth of a Preferred Share, upon
presentation and surrender of this Right Certificate with the Election to Purchase and related
certificate duly executed. The number of Rights evidenced by this Right Certificate (and the
number of one one-hundredths of a Preferred Share which may be purchased upon exercise thereof) set
forth above, and the Purchase Price per one one-hundredth of a Preferred Share set forth above
shall be subject to adjustment in certain events as provided in the Rights Agreement.




     Upon the occurrence of a Section ll(a)(ii) Event (as such term is defined in the Rights
Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person or a Person with whom
such Acquiring Person was or is Acting in Concert (as such terms are defined in the Rights
Agreement) or, under certain circumstances described in the Rights Agreement, a transferee of any
such Acquiring Person, Associate or Affiliate, such Rights shall become null and void and no holder
hereof shall have any right with respect to such Rights from and after the occurrence of such
Section ll(a)(ii) Event.



     In certain circumstances described in the Rights Agreement, the Rights evidenced hereby may
entitle the registered holder thereof to purchase capital stock of an entity other than the Company
or receive cash or other assets, all as provided in the Rights Agreement.



     This Right Certificate is subject to all of the terms and conditions of the Rights Agreement,
which terms and conditions are hereby incorporated herein by reference and made a part hereof and
to which Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the Rights Agent,



2









 







the Company and the holders of the Right Certificates. Copies of the Rights Agreement are on
file at the principal office of the Company and are available from the Company upon written
request.



     This Right Certificate, with or without other Right Certificates, upon surrender at the office
of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or
Right Certificates of like tenor and date evidencing an aggregate number of Rights equal to the
aggregate number of Rights evidenced by the Right Certificate or Right Certificates surrendered.
If this Right Certificate shall be exercised in part, the registered 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 Right
Certificate (i) may be redeemed by the Company under certain circumstances at its option at a
redemption price of $0.01 per Right, payable at the Company’s option in cash or in Common Stock of
the Company, subject to adjustment in certain events as provided in the Rights Agreement or (ii)
may be exchanged in whole or in part for shares of Common Stock.



     No fractional Preferred Shares will be issued upon the exercise of any Right or Rights
evidenced hereby (other than fractions which are integral multiples of one one-hundredth of a
Preferred Share), but in lieu thereof a cash payment will be made, as provided in the Rights
Agreement.



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



3









 




until the Rights evidenced by this Right Certificate shall have been exercised as provided in the
Rights Agreement.




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



     WITNESS the facsimile signature of the proper officers of the Company. Dated as of
                                        .



	 	 	 	 	 	 	 	 	 

	ATTEST:	 	 	 	GENESCO INC.	 	 
	 

	 	 	 	 	 	By:	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	 	 	 	 	Title:	 	 
	 

	 	 

	 	 
	 	 
	 	 






Countersigned:

COMPUTERSHARE TRUST COMPANY, N.A.




By                                                                        
                             

Authorized Signature




[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:                                         .







4









 








Signature


Signature Guaranteed:




Certificate



The undersigned hereby certifies by checking the appropriate boxes that:




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



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


Dated:




Signature


Signature Guaranteed:




NOTICE



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




     This signature must be guaranteed by a member firm of a registered national securities
exchange, a member of the National Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United States.



     In the event the certification set forth above is not completed, the Company will deem the
beneficial owner of the Rights evidenced by this Right Certificate to be an Acquiring Person or an
Affiliate or Associate or a Person with whom such Acquiring Person was or is Acting in Concert
thereof (as defined in the Rights Agreement) and, in the case of an Assignment, will affix a legend
to that effect on any Right Certificates issued in exchange for this Right Certificate.



5









 





FORM OF ELECTION TO PURCHASE




(To be executed if the registered holder

desires to exercise Rights represented

by the Right Certificate)



To: GENESCO INC.




     The undersigned hereby irrevocably elects to exercise                                         
Rights represented by this Right Certificate to purchase the Preferred Shares, issuable upon the
exercise of the Rights (or such other securities of the Company or of any other person which may be
issuable upon the exercise of the Rights) and requests that certificates for such Units be issued
in the name of and delivered to:



(Please print name and address)



Please insert social security or other identifying number:




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



(Please print name and address)



Please insert social security or other identifying number:



Dated:                                         




Signature



6









 




Signature Guaranteed:




Certificate



The undersigned hereby certifies by checking the appropriate boxes that:




     (1) the Rights evidenced by this Right Certificate [ ] are [ ] are not beneficially owned by
an Acquiring Person or an Affiliate or an Associate thereof or a Person with whom such Acquiring
Person was or is Acting in Concert (as defined in the Rights Agreement); and



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


Dated:                                         




Signature


Signature Guaranteed:




NOTICE



          The signature in the foregoing Election to Purchase and Certificate 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.




     This signature must be guaranteed by a member firm of a registered national securities
exchange, a member of the National Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United States.



     In the event the certification set forth above is not completed, the Company will deem the
beneficial owner of the Rights evidenced by this Right Certificate to be an Acquiring Person or an
Affiliate or Associate or a Person with whom such Acquiring Person was or is Acting in Concert
thereof (as defined in the Rights Agreement) and, in the case of an Assignment, will affix a legend
to that effect on any Right Certificates issued in exchange for this Right Certificate.



7









 





Exhibit C




Form of

Summary of Rights to Purchase Preferred Stock




     On April 8, 2010 we amended and restated our existing rights agreement (commonly known as a
“poison pill”) which we have amended four times before. The discussion below describes the Second
Amended and Restated Rights Agreement but is not complete, so you should read it together with the
Second Amended and Restated Rights Agreement which you may obtain from us free of charge.



Issuance of Rights




     Rights were initially issued to shareholders of record as of the close of business on
August 22, 1990. In addition, one right has previously automatically attached to each share of
common stock that we have issued since August 22, 1990. One right will continue to automatically
attach to each share of our common stock issued from the date of the Second Amended and Restated
Rights Agreement until the time that the rights become exercisable. When exercised, each right
will entitle its holder to purchase from us one one-hundredth of a share of our Series 6
Subordinated Serial Preferred Stock (the “Series 6 Preferred Stock”), at an initial exercise price
of $113.00 per one one-hundredth of a share, subject to adjustment.



Initial Exercise of Rights




     The rights initially will not be exercisable. Instead, the rights will be attached to and
trade with all shares of our common stock outstanding as of, and issued after August 22, 1990. The
rights will separate from the common stock and will become exercisable upon the earlier of the
following events (the “distribution date”):




     The close of business on the tenth day following the first public announcement that a
person or group of affiliated or associated persons has become an “Acquiring Person”,
defined, with certain exceptions, as a person or group of persons that acquires or obtains
the rights to acquire beneficial ownership of 15% or more of our shares of common stock
then outstanding; or




     The close of business on the tenth day (or some later day as our board of directors
may determine) following the commencement of or first public announcement of a tender offer
or exchange offer that could result in a person or group becoming the beneficial owner of
15% or more of our shares of common stock then outstanding.



     The rights will expire at the close of business on March 29, 2020, unless we redeem or
exchange the rights as described below.



Evidence of Rights




     Until the rights become exercisable:



 









 






	 	•	 	The rights will be evidenced by and transferred with our common stock certificates;
and
	 
	 	•	 	New common stock certificates issued after April 8, 2010 will contain a notation
incorporating the Second Amended and Restated Rights Agreement by reference. In the
case of book entry shares, such shares indicated in the records of the transfer agent
will represent the rights; and
	 
	 	•	 	Any surrender for transfer of any certificates for our common stock will also
constitute the transfer of the rights associated with the common stock represented by
those certificates.





     As soon as practicable after the rights become exercisable, we will mail out right
certificates to the holders of our common stock who are eligible to receive rights. After we mail
them out, the separate right certificates alone will represent the rights.



Exercise After Someone Becomes an Acquiring Person




     After public announcement that a person has become an Acquiring Person, each holder of a right
will have the right to receive upon exercise of the rights that number of shares of common stock
(or in our board’s discretion, some other consideration), having a value of two times the then
current purchase price of the right. However, this will not apply to an Acquiring Person or its
associates or affiliates, whose rights will have become null and void.



     Under certain circumstances, each holder of a right will have the right to receive, upon
exercise of the rights, common stock of an acquiring company having a value equal to two times the
then current purchase price of the right. Each holder of a right will receive the right
contemplated by this paragraph in the event that, at any time on or after the date it is publicly
announced that a person has become an Acquiring Person:




	 	•	 	We directly or indirectly consolidate with, or merge with and into, any other
person, and we are not the continuing or surviving corporation; or
	 
	 	•	 	Any person directly or indirectly consolidates with us, or merges with us and we
are the continuing or surviving corporation of that merger and, in connection with
that merger, all or part of the shares of our common stock are changed into or
exchanged for stock or other securities of any other person or cash or any other
property; or
	 
	 	•	 	We directly or indirectly sell or transfer 50% or more of our assets or earning
power.





     Under certain circumstances, the holder of a right will continue to have this right
whether or not that holder has previously exercised its right in accordance with the first
paragraph of this subsection. Rights that are or were beneficially owned by an Acquiring Person
may (under certain circumstances specified in the rights agreement) become null and void.



2









 





Exchange




     At any time after a person becomes an Acquiring Person, we may, at the option of our board,
exchange all or part of the outstanding and exercisable rights for shares of our common stock at an
exchange ratio of one common share per right (adjusted to reflect certain Company capitalization
changes). We generally may not make an exchange after any person becomes the beneficial owner of
50% or more of our common stock. Prior to effecting an exchange, we may require persons, pursuant
to the terms of a trust agreement, to certify that he or she is not an Acquiring Person or an
affiliate or associate.



Adjustment




     The purchase price and the number of shares of common stock or other securities or property
issuable upon exercise of the rights is subject to adjustment from time to time to prevent certain
types of dilution. With certain exceptions, the purchase price of the rights will not be adjusted
until cumulative adjustments amount to at least 1% of the purchase price. We are not obligated to
issue fractional shares of common or preferred stock. If we decide not to issue fractional shares,
we will make an adjustment in cash based on the fair market value of a share on the last trading
date prior to the date of exercise.



Redemption




     We may redeem the rights in whole, but not in part, at a price of $0.01 per right (payable in
common stock or cash). However, we may only redeem the rights until the earlier of (1) ten days
after public announcement that someone has become an Acquiring Person or (2) the close of business
on March 29, 2020.



     Once redeemed, the rights will terminate immediately and the only right of the holders of the
rights will be to receive the redemption price.



Amendment of Rights Agreement




     Except with respect to certain specified matters, we may amend the Second Amended and Restated
Rights Agreement without the approval of the holders of our common stock until the distribution
date. After the distribution date, we will only be able to amend the Second Amended and Restated
Rights Agreement without the approval of common stockholders in order to cure any ambiguity, to
correct or supplement defective or inconsistent provisions, to shorten or lengthen any time period
(with certain exceptions), or to make changes that the Company deems necessary or desirable and
which are consistent with the purposes of the Second Amended and Restated Rights Agreement.
However, after someone becomes an Acquiring Person, no amendment shall be made that adversely
affects the interests of the holder of the rights.



Other




     Until a right is exercised, the holder will have no rights as a stockholder of ours as a
result of the rights. This means, for example, that until it is exercised, a right will not
entitle its holder to vote or receive dividends like one of our shareholders. The distribution of
the rights will not be taxable to our shareholders or to us. However, shareholders may, depending
upon the



3









 




circumstances, recognize taxable income in the event that the rights become exercisable for shares
of common stock, other consideration or for common stock of an acquiring company.




     The discussion above describes the rights and the Second Amended and Restated Rights Agreement
but is not complete, so you should read it together with the Second Amended and Restated Rights
Agreement, which you may obtain from us upon request.



     As of April 7, 2010, 24,048,377 shares of our common stock were issued and outstanding. Each
share of our common stock outstanding on August 22, 1990 and shares of our common stock issued
thereafter will receive one right. As long as the rights are attached to our common stock, we will
issue one right for each share of our common stock issued between August 22, 1990 and the
distribution date. A total of 800,000 shares of Series 6 Preferred Stock have been reserved for
issuance upon exercise of the rights, subject to adjustment.



     Each one one-hundredth of a share of Series 6 Preferred Stock that may be acquired upon
exercise of the rights will be nonredeemable and rank junior to the Company’s Series 1, 3 and 4
Serial Preferred Stock.



     Each share of Series 6 Preferred Stock will be entitled to receive, an aggregate dividend of
the greater of (1) 100 times the dividend declared per share of our common stock and (2) a
cumulative quarterly dividend of $1.00.



     In the event of liquidation, the holder of a share of Series 6 Preferred Stock will be
entitled to receive in preference to all junior classes of our stock, the greater of (1) $1.00 per
share and (2) an aggregate payment of 100 times the payment made per share of our common stock.



     Each one one-hundredth of a share of Series 6 Preferred Stock issued to a holder of our common
stock will have one vote, voting together with our common stock.



     In the event of any merger, share exchange or other transaction in which shares of our common
stock are exchanged, each one one-hundredth of a share of Series 6 Preferred Stock will be entitled
to receive the per share amount paid in respect of each share of common stock.



     The rights of holders of the Series 6 Preferred Stock to dividends, liquidation and voting,
and in the event of mergers and share exchanges, are protected by customary anti-dilution
provisions.



     Because of the nature of the Series 6 Preferred Stock’s dividend, liquidation and voting
rights, the economic value of each one one-hundredth of a share of Series 6 Preferred Stock that
may be acquired upon the exercise of each right should approximate the economic value of one share
of common stock.



     The rights may have certain anti-takeover effects. The rights will cause substantial dilution
to a person or group that attempts to acquire us on terms not approved by a majority of our board
of directors unless the offer is conditioned on a substantial number of rights being acquired.
However, the rights should not interfere with any merger or other business combination approved by
our board of directors since the rights may be redeemed by us at $0.01



4









 




per right at any time on or prior to the tenth day following the announcement that someone has
become an Acquiring Person. Thus, the rights are intended to encourage persons who may seek to
acquire control of us to initiate such an acquisition through negotiations with our board of
directors. However, the effect of the rights may be to discourage a third party from making a
partial tender offer or otherwise attempting to obtain a substantial equity position in the equity
securities of, or seeking to obtain control of, us. To the extent any potential acquirers are
deterred by the rights, the rights may have the effect of preserving incumbent management in
office.





5