exv4w1



 




Exhibit
4.1



CCE SPINCO, INC.



AND




THE BANK OF NEW YORK




Rights Agreement




Dated as of December 21, 2005




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 1.	 	Definitions
	 	 	1	 
	Section 2.	 	Appointment of Rights Agent
	 	 	6	 
	Section 3.	 	Issue of Right Certificates
	 	 	6	 
	Section 4.	 	Form of Right Certificates
	 	 	7	 
	Section 5.	 	Countersignature and Registration
	 	 	7	 
	Section 6.	 	Transfer, Split Up, Combination and Exchange of Right Certificates; Lost,
Stolen, Destroyed or Mutilated Right Certificates
	 	 	8	 
	Section 7.	 	Exercise of Rights; Purchase Price
	 	 	9	 
	Section 8.	 	Cancellation and Destruction of Right Certificates
	 	 	10	 
	Section 9.	 	Reservation of Shares; Taxes
	 	 	10	 
	Section 10.	 	Shares Record Date
	 	 	11	 
	Section 11.	 	Adjustment of Purchase Price, Number of Shares or Number of Rights
	 	 	11	 
	Section 12.	 	Certificate of Adjusted Purchase Price or Number of Shares
	 	 	17	 
	Section 13.	 	Flip Over Events
	 	 	18	 
	Section 14.	 	Fractional Rights and Fractional Shares
	 	 	18	 
	Section 15.	 	Rights of Action
	 	 	19	 
	Section 16.	 	Agreement of Right Holders
	 	 	19	 
	Section 17.	 	Rights Holder Not Deemed a Stockholder
	 	 	20	 
	Section 18.	 	Concerning the Rights Agent
	 	 	20	 
	Section 19.	 	Merger or Consolidation or Change of Name of Rights Agent
	 	 	20	 
	Section 20.	 	Duties of Rights Agent
	 	 	21	 
	Section 21.	 	Change of Rights Agent
	 	 	23	 
	Section 22.	 	Issuance of New Right Certificates
	 	 	24	 
	Section 23.	 	Redemption
	 	 	24	 
	Section 24.	 	Exchange
	 	 	24	 
	Section 25.	 	Notice of Certain Events
	 	 	26	 
	Section 26.	 	Notices
	 	 	26	 
	Section 27.	 	Supplements and Amendments
	 	 	27	 
	Section 28.	 	Successors
	 	 	28	 
	Section 29.	 	Benefits of this Agreement
	 	 	28	 






-i-









 





TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 30.	 	Severability
	 	 	28	 
	Section 31.	 	Governing Law
	 	 	28	 
	Section 32.	 	Counterparts
	 	 	28	 
	Section 33.	 	Descriptive Headings; References
	 	 	28	 
	Annex A	 	Certificate of Designation
	 	 	A-1	 
	Annex B	 	Form of Right Certificate
	 	 	B-1	 







-ii-









 








RIGHTS AGREEMENT




     This Rights Agreement, dated as of December 21, 2005 (this “Agreement”), is by and between CCE
Spinco, Inc., a Delaware corporation (the “Company”), and The Bank of New York, as rights agent
(the “Rights Agent”).



     The Board of Directors of the Company has authorized and declared a dividend of one preferred
share purchase right (a “Right”) for each whole share of Common Stock, $.01 par value per share, of
the Company (the “Common Stock”) outstanding as of the Close of Business on December 21, 2005 (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
has further authorized and directed the issuance of one Right with respect to each share of Common
Stock that becomes outstanding between the Record Date and the earliest of the Distribution Time,
the Redemption Time and the Final Expiration Time (as such terms are hereinafter defined).



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



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



     (a) “Acquiring Person” means any Person who or that becomes the Beneficial Owner of 15% or
more of the shares of Common Stock then outstanding, but shall not include any Excluded Person.



     Notwithstanding the foregoing, no Person shall become an “Acquiring Person” as the result of
an acquisition of shares of Common Stock by the Company that, by reducing the number of shares of
Common Stock outstanding, increases the proportionate number of shares of Common Stock Beneficially
Owned by such Person to 15% or more of the shares of Common Stock then outstanding; provided,
however, that, if a Person shall become the Beneficial Owner of 15% or more of the shares of Common
Stock then outstanding by reason of share purchases by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner of any additional shares of Common Stock,
then such Person shall be deemed to be an “Acquiring Person.”



     Notwithstanding the foregoing, if (i) the Board of Directors of the Company determines in good
faith that a Person has become an “Acquiring Person,” as defined pursuant to the foregoing
provisions of this Section 1(a), inadvertently (including, without limitation, because (A) such
Person was unaware that it Beneficially Owned a percentage of Common Stock that would cause
such Person to be an “Acquiring Person” or (B) such Person was aware of the extent of its
Beneficial Ownership of Common Stock but had no actual knowledge of the consequences of such
Beneficial Ownership under this Agreement) and without any intention of changing control of the
Company, (ii) such Person (or its Affiliates and Associates) divests a sufficient number of shares
of Common Stock so that such Person would no longer be an “Acquiring Person,” as defined pursuant
to the foregoing provisions of this Section 1(a), and (iii) such determination is made and such
divestment is completed prior to the time when the first



-1-









 







Right is distributed by the Rights Agent pursuant to Section 3(d), then such Person shall be
deemed to not be an “Acquiring Person,” and to never have become an “Acquiring Person,” for all
purposes of this Agreement (meaning, without limitation, that no Distribution Time shall occur and
no adjustment pursuant to Section 11(a)(ii) or Section 13 shall be made in respect thereof);
provided, however, that if such Person, after such determination and divestment, becomes the
Beneficial Owner of 15% or more of the shares of Common Stock then outstanding by reason of
becoming the Beneficial Owner of any additional shares of Common Stock, then such Person shall be
deemed to be an “Acquiring Person” unless a subsequent such determination and divestment is made.



     (b) “Affiliate” shall have the meaning ascribed to such term in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act as in effect on the date of this Agreement.



     (c) “Agreement” shall have the meaning set forth in the first paragraph hereof.



     (d) “Associate,” when used to indicate a relationship with any Person, means each, any and all
of the following:




     (i) any firm, corporation, limited liability company, partnership, joint venture, bank,
trust or other entity of which such Person (A) is an officer or partner or (B) is, directly
or indirectly, the Beneficial Owner of 10% or more of any class of equity securities;
provided, however, that a firm, corporation, limited liability company, partnership, joint
venture, bank, trust or other entity shall not be an “Associate” of a Person if such Person
has reported Beneficial Ownership of the Common Stock of such firm, corporation, limited
liability company, partnership, joint venture, bank, trust or other entity on Schedule 13G
under the Exchange Act, but only if and for so long as: (1) such Person is the Beneficial
Owner of less than 20% of such shares of Common Stock then outstanding, (2) such Person
satisfies the criteria set forth in both Rule 13d-1(b)(1)(i) and Rule 13d-1(b)(1)(ii) of the
General Rules and Regulations under the Exchange Act and (3) such Person has not reported
and is not required to report such ownership on Schedule 13D under the Exchange Act;




     (ii) any trust or other estate in which such Person has a substantial beneficial
interest or as to which such Person serves as trustee or in a similar fiduciary capacity;
and




     (iii) any relative or spouse of such Person, or any relative of such spouse, who has
the same home as such Person.



     (e) A Person shall be deemed the “Beneficial Owner” of, to “Beneficially Own” and have
“Beneficial Ownership” of, any securities:




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




     (ii) that such Person, or any of such Person’s Affiliates or Associates, has (A) the
right to acquire (whether such right is exercisable immediately or only after the passage of
time or the satisfaction of other conditions) pursuant to any agreement, arrangement or
understanding (other than customary agreements with and between underwriters and



-2-









 






selling group members with respect to a bona fide public offering of securities), or
upon the exercise of conversion rights, exchange rights, rights (other than these Rights),
warrants or options, or otherwise; provided, however, that a Person shall not be deemed the
Beneficial Owner of, to Beneficially Own, or have “Beneficial Ownership” of, any securities
tendered pursuant to a tender or exchange offer made by or on behalf of such Person or any
of such Person’s Affiliates or Associates until such tendered securities are accepted for
purchase or exchange; or (B) the right to vote pursuant to any agreement, arrangement or
understanding; provided, however, that a Person shall not be deemed the Beneficial Owner of,
to Beneficially Own, or have “Beneficial Ownership” of, any security if the agreement,
arrangement or understanding to vote such security (1) arises solely from a revocable proxy
or consent given to such Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and regulations promulgated under
the Exchange Act and (2) is not also then reportable on Schedule 13D under the Exchange Act
(or any comparable or successor report under or pursuant to the federal securities laws); or




     (iii) that are beneficially owned, directly or indirectly, by any other Person with
which such Person, or any of such Person’s Affiliates or Associates, has any agreement,
arrangement or understanding (other than customary agreements with and between underwriters
and selling group members with respect to a bona fide public offering of securities) for the
purpose of acquiring (except to the extent contemplated by the proviso to Section
1(d)(ii)(A)), holding, voting (except to the extent contemplated by the proviso to Section
1(d)(ii)(B)) or disposing of any securities of the Company.



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



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



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



     (h) “Common Stock” shall have the meaning set forth in the second paragraph hereof.



     (i) “Company” shall have the meaning set forth in the first paragraph hereof.



     (j) “Company Entity” means, as the context may require, each, any and all of the following:




     (i) the Company;




     (ii) any Subsidiary of the Company;



-3-









 






     (iii) any employee benefit plan of the Company or of any Subsidiary of the Company; or




     (iv) any entity holding shares of Common Stock for or pursuant to the terms of any such
employee benefit plan.



     (k) “Distribution Time” means the Close of Business on the earlier of the following dates
(including any such date that is after the Record Date and prior to the issuance of the Rights):




     (i) the tenth day after the first date of public announcement (which, for purposes of
this definition, includes, without limitation, a report filed pursuant to Section 13(d)
under the Exchange Act) by the Company or an Acquiring Person (or any Affiliate or Associate
of an Acquiring Person) (A) that a Person has become an “Acquiring Person” for purposes of
this Agreement or (B) of the facts relating to the Beneficial Ownership of any securities by
any Person that caused any Person to become an “Acquiring Person” for purposes of this
Agreement; and




     (ii) the tenth Business Day (or such later date as may be determined by action of the
Board of Directors of the Company prior to such time as any Person becomes an Acquiring
Person) after the date of the commencement by any Person (other than a Company Entity) of a
tender or exchange offer, the consummation of which would result in any Person becoming an
Acquiring Person.



     (l) “Exchange Act” means the Securities Exchange Act of 1934, as amended.



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



     (n) “Excluded Person” means, as the context may require, each, any and all of the following:




     (i) each Company Entity; and




     (ii) any Person who or that has reported Beneficial Ownership of Common Stock on
Schedule 13G under the Exchange Act, but only if and for so long as: (A) such Person is the
Beneficial Owner of less than 20% of the shares of Common Stock then outstanding, (B) such
Person satisfies the criteria set forth in both Rule 13d-1(b)(1)(i) and Rule 13d-1(b)(1)(ii)
of the General Rules and Regulations under the Exchange Act and (C) such Person has not
reported and is not required to report such ownership on Schedule 13D under the Exchange
Act.



     (o) “Final Expiration Time” means the Close of Business on December 21, 2015.



     (p) “Flip Over Event” means the occurrence of any one or more of the following events,
directly or indirectly, at any time after a Person has become an Acquiring Person: (i) the Company
consolidates with, or merges with and into, any other Person, (ii) any Person consolidates with the
Company, or 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 shares of Common
Stock are changed into or exchanged for stock or other securities



-4-









 







of any other Person (or the Company) or cash or any other property, or (iii) the Company (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, other than a sale or transfer to the Company, to one
or more of its wholly-owned Subsidiaries or to the Company and one or more of its wholly-owned
Subsidiaries.



     (q) “Flip Over Successor” means, as applicable, (i) the Person (which may be the Company) that
is the issuer of the stock or other securities into which all or part of the shares of Common Stock
are changed, or for which all or part of the shares of Common Stock are exchanged, in a merger or
consolidation described in clause (i) of the definition of “Flip Over Event” or (ii) the Person to
whom the assets or earning power of the Company (or one or more of its Subsidiaries) are sold or
transferred in any one or more transactions described in clause (ii) of the definition of “Flip
Over Event.”



     (r) “NYSE” means the New York Stock Exchange.



     (s) “NASDAQ” means the National Association of Securities Dealers, Inc. Automated Quotation
System.



     (t) “Person” means any individual, firm, corporation, limited liability company, partnership,
joint venture, bank, trust or other entity, and includes any successor (by merger or otherwise) of
such entity.



     (u) “Preferred Shares” means shares of Series A Junior Participating Preferred Stock, par
value $.01 per share, of the Company having the rights and preferences set forth in the Form of
Certificate of Designation attached to this Agreement as Annex A.



     (v) “Purchase Price” shall have the meaning set forth in Section 3(d).



     (w) “Reclassified Shares” shall have the meaning set forth in Section 11(a)(i).



     (x) “Record Date” shall have the meaning set forth in the second paragraph hereof.



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



     (z) “Redemption Time” means the time at which the Rights are redeemed as provided in Section
23.



     (aa) “Reduced Threshold” shall have the meaning set forth in Section 27.



     (bb) “Right” shall have the meaning set forth in the second paragraph hereof.



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



     (dd) “Rights Agent” shall have the meaning set forth in the first paragraph hereof.



     (ee) “Security” shall have the meaning set forth in Section 11(d)(i).



-5-









 





     (ff) “Subsidiary” of any Person means any corporation, limited liability company, partnership,
joint venture, bank, trust or other entity of which a majority of the voting power of the voting
equity securities or equity interests is owned, directly or indirectly, by such Person.



     (gg) “Trading Day” shall have the meaning set forth in Section 11(d)(ii).



     Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent
to act as agent for the Company in accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Company may from time to time appoint such co-Rights
Agents as it may deem necessary or desirable.



     Section 3. Issue of Right Certificates.



     (a) Until the Distribution Time, each Right shall be evidenced solely by the Common Stock
certificate that, from time to time, represents the share of Common Stock upon which the dividend
of such Right was declared and paid, and not by a separate Right Certificate, and such Right shall
be registered in the name of the record holder of such Common Stock certificate. Until the
Distribution Time, (i) each Right shall be transferable only in connection with the transfer of the
share of Common Stock upon which the dividend of such Right was declared and paid and (ii) the
surrender for transfer of the certificate evidencing such share of Common Stock, and evidencing
such Right, shall also constitute the surrender for transfer of such Right. Any reference
hereinafter to a Right that is “associated with” a share of Common Stock (or any similar reference)
refers to the Right that (A) was declared and paid as a dividend on such share of Common Stock and
(B) is evidenced by the Common Stock certificate that represents such share of Common Stock.



     (b) All certificates for shares of Common Stock that are issued by the Company on or after the
Record Date but prior to the earliest of the Distribution Time, the Redemption Time or the Final
Expiration Time shall have impressed on, printed on, written on or otherwise affixed to them the
following legend:




This certificate also evidences and entitles the record holder hereof to certain
rights as set forth in a Rights Agreement between CCE Spinco, Inc. and The Bank of
New York, dated as of December 21, 2005, as it may be amended from time to time (the
“Agreement”), the terms of which are hereby incorporated herein by reference and a
copy of which is on file at the principal executive offices of CCE Spinco, Inc.
Under certain circumstances, as set forth in the Agreement, such Rights (as defined
in the Agreement) will be evidenced by separate certificates and will no longer be
evidenced by this certificate. CCE Spinco, Inc. will mail to the record holder of
this certificate a copy of the Agreement without charge after receipt of a written
request therefor. As set forth in the Agreement, Rights Beneficially Owned by any
Person who becomes an Acquiring Person, or by any Affiliate or Associate of such
Acquiring Person, become immediately null and void (all such capitalized terms
having the meanings ascribed thereto in the Agreement).



-6-









 





     (c) In the event that the Company purchases, acquires or redeems any shares of Common Stock
after the Record Date but prior to the Distribution Time, any Rights associated with such shares of
Common Stock shall be deemed cancelled and retired so that no Person shall be entitled to exercise
any Rights associated with shares of Common Stock that are no longer outstanding.



     (d) As soon as practicable after the Distribution Time, a Right Certificate, in the form
described in Section 4 (a “Right Certificate”), shall be prepared, executed and countersigned in
accordance with Section 5 and delivered by the Rights Agent to each record holder of shares of
Common Stock as of the Distribution Time, each Right Certificate evidencing one Right for each
share of Common Stock held of record by such record holder as of such time. From and after the
Distribution Time, each Right shall be evidenced solely by a Right Certificate and shall not
thereafter be evidenced by the certificate representing the share of Common Stock that was
theretofore associated with such Right or by any other Common Stock certificate or otherwise.
Subject to the provisions of Section 6, from and after the Distribution Time, the Rights, and the
Right Certificates evidencing the Rights, shall be separately transferable without regard to the
transfer of the share of Common Stock that was theretofore associated with such Right or the Common
Stock certificate representing such share. Subject to the provisions of Section 7, each Right
Certificate shall entitle the registered holder thereof to exercise the Rights represented thereby
to purchase such number of one one-hundredths of a Preferred Share as shall be set forth therein at
the price per one one-hundredth of a Preferred Share set forth therein (the “Purchase Price”), but
the number and class of securities receivable upon exercise and the Purchase Price shall be subject
to adjustment as provided herein.



     Section 4. Form of Right Certificates. 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 Annex B hereto, and may have such marks of identification or
designation and such legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law or with any applicable rule or regulation made pursuant
thereto or with any applicable rule or regulation of any stock exchange or the National Association
of Securities Dealers, Inc., or to conform to usage.



     Section 5. Countersignature and Registration. Each Right Certificate to be issued, or
reissued, pursuant to this Agreement shall be executed on behalf of the Company by its Chairman of
the Board, its Chief Executive Officer, its President, any of its Vice Presidents or its Treasurer,
either manually or by facsimile signature, shall have affixed thereto the Company’s seal (if any)
or a facsimile thereof, and shall be attested by the Secretary or any Assistant Secretary of the
Company, either manually or by facsimile signature. Each such Right Certificate shall be manually
countersigned by the Rights Agent and shall not be valid for any purpose unless so countersigned.
In case any officer of the Company who signs any of the Right Certificates ceases to be such
officer of the Company before countersignature by the Rights Agent, such Right Certificates,
nevertheless, may be countersigned by the Rights Agent and issued and delivered by the Company with
the same force and effect as though the individual who signed such Right Certificates had not
ceased to be such officer of the Company; and any Right Certificate may be signed on behalf of the
Company by any individual who, at the actual date of the execution of such Right Certificate, is a
proper officer of the Company to sign such



-7-









 







Right Certificate, although any such individual was not such an officer at the date of the
execution of this Agreement.



     Following the Distribution Time, the Rights Agent shall keep or cause to be kept, at its
office designated for such purposes, books or electronic records for registration of ownership and
transfer of the Right Certificates issued hereunder. Such books or electronic records shall show
the names and addresses of the respective registered holders of the Right Certificates, the number
of Rights evidenced on its face by each of the Right Certificates and the date of each of the Right
Certificates.



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



     (a) Subject to the provisions of Section 14(a), at any time and from time to time prior to the
earlier of the Redemption Time and the Final Expiration Time, any Right Certificate may be
transferred, split up, combined with or exchanged for another Right Certificate or Right
Certificates evidencing, in the aggregate, a like number of Rights as the Right Certificate or
Right Certificates surrendered; provided, however, that any such reissued Right Certificate or
Right Certificates shall not evidence any Rights that have become null and void pursuant to Section
11(a)(ii) or that have been exchanged pursuant to Section 24. Any registered holder of a Right
Certificate desiring to transfer, split up, combine or exchange such Right Certificate shall (i)
properly complete and duly execute the certificate contained in the form of assignment on the
reverse side of such Right Certificate, (ii) surrender such Right Certificate to the Rights Agent,
at the office of the Rights Agent designated for such purpose, together with a written request
specifying the transfer, split up, combination or exchange that such registered holder desires,
(iii) pay, by certified check, cashier’s check or money order payable to the order of the Company,
an amount equal to any applicable transfer tax required to be paid by the registered holder of such
Right Certificate in accordance with Section 9(b) and (iv) provide the Company and the Rights Agent
with such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner)
of the Rights evidenced by such Right Certificate, or the Affiliates or Associates thereof, as the
Company or the Rights Agent may reasonably request. Thereupon, the new Right Certificate or Right
Certificates, as the case may be, to be issued upon such transfer, split up, combination or
exchange shall be prepared, executed and countersigned in accordance with Section 5 and delivered
by the Rights Agent to the Person or Persons entitled thereto, as so requested.



     (b) Any time and from time to time prior to the earlier of the Redemption Time and the Final
Expiration Time, any Right Certificate that is lost, stolen, destroyed or mutilated may be replaced
by another Right Certificate of like tenor; provided, however, that any such replacement Right
Certificate shall not evidence any Rights that have become null and void pursuant to Section
11(a)(ii) or that have been exchanged pursuant to Section 24. Any registered holder desiring to so
replace any such Right Certificate shall deliver to the Rights Agent, at the office of the Rights
Agent designated for such purpose, and the Company (i) evidence reasonably satisfactory to each of
them of the loss, theft, destruction or mutilation of such Right Certificate, (ii) in case of loss,
theft or destruction, such indemnity or security as may be reasonably satisfactory to each of them,
(iii) in case of mutilation, the Right Certificate so mutilated (which shall thereupon be cancelled
by the Rights Agent), (iv) at the Company’s request, reimbursement



-8-









 







to the Company and the Rights Agent of all reasonable expenses incidental to the issuance of
such replacement Right Certificate and (v) such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) of the Rights evidenced by such lost, stolen,
destroyed or mutilated Right Certificate, or the Affiliates or Associates thereof, as the Company
or the Rights Agent may reasonably request. Thereupon, the replacement Right Certificate shall be
prepared, executed and countersigned in accordance with Section 5 and delivered by the Rights Agent
to the registered holder thereof.



     Section 7. Exercise of Rights; Purchase Price.



     (a) At any time after the distribution of Right Certificates pursuant to Section 3(d) and
prior to the earlier of the Redemption Time and the Final Expiration Time, any registered holder of
a Right Certificate may exercise all or any portion of the Rights represented thereby other than
Rights that have become null and void pursuant to Section 11(a)(ii) or that have been exchanged
pursuant to Section 24. Any registered holder desiring to exercise all or any portion of the valid
and exercisable Rights evidenced by any such Right Certificate shall (i) properly complete and duly
execute the form of election to purchase on the reverse side of such Right Certificate, (ii)
surrender such Right Certificate to the Rights Agent, at the office of the Rights Agent designated
for such purpose, (iii) pay, by certified check, cashier’s check or money order payable to the
order of the Company, the Purchase Price for the securities as to which such Rights are being
exercised together with an amount equal to any applicable transfer tax required to be paid by the
registered holder of such Right Certificate in accordance with Section 9(b) and (iv) provide the
Company and the Rights Agent with such additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) of the Rights evidenced by such Right Certificate, or the Affiliates
or Associates thereof, as the Company or the Rights Agent may reasonably request.



     (b) The Purchase Price for each one one-hundredth of a Preferred Share purchasable pursuant to
the exercise of a Right shall initially be $80.00, and shall be subject to adjustment from time to
time as provided in Section 11 and 13, and shall be payable in lawful money of the United States of
America in accordance with Section 7(c).



     (c) Upon the full satisfaction by a registered holder of a Right Certificate of the
requirements set forth in Section 7(a), the Rights Agent shall promptly (i) as appropriate, (A)
requisition from any transfer agent of the Preferred Shares certificates for the number of
Preferred Shares to be purchased, and the Company hereby irrevocably authorizes any such transfer
agent to comply with all such requests, (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 of the Preferred Shares with such depositary agent), and the
Company hereby directs such depositary agent to comply with all such requests; or (C) requisition
from any transfer agent of any other securities that may be issuable upon exercise of the Rights
(pursuant to Section 11 or Section 13) certificates for the number of such securities to be
purchased, and the Company hereby irrevocably authorizes any such transfer agent to comply with all
such requests; (ii) when appropriate, requisition from the Company the amount of cash to be paid in
lieu of issuance of fractional shares in accordance with Section 14; (iii) promptly after receipt
of such certificates or depositary receipts, cause the same to be delivered to or upon the order of
the registered holder of such Right Certificate, registered in the name of such Person



-9-









 







or Persons as may be designated by such holder; and (iv) promptly after receipt of such cash
to be paid in lieu of issuance of fractional shares, cause the same to be delivered to or upon the
order of the registered holder of such Right Certificate.



     (d) If 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 prepared, executed and countersigned in accordance with Section 5 and
delivered by the Rights Agent to the registered holder thereof.



     Section 8. Cancellation and Destruction of Right Certificates. All Right Certificates
surrendered to the Company or to any of its agents for the purpose of exercise, transfer, split up,
combination, exchange or replacement shall be delivered to the Rights Agent for cancellation and
all such Right Certificates surrendered to the Rights Agent in cancelled form shall be cancelled by
it, and no Right Certificates shall be issued in substitution therefor except as expressly
permitted by Section 6 or Section 7(d). The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire, any other Right
Certificate purchased or acquired by the Company. The Rights Agent shall deliver all cancelled
Right Certificates to the Company, or shall, at the written request of the Company, destroy such
cancelled Right Certificates, and, in such case, shall deliver a certificate of destruction thereof
to the Company.



     Section 9. Reservation of Shares; Taxes.



     (a) The Company covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued Preferred Shares (or other securities issuable upon exercise of
Rights), or Preferred Shares (or such other securities) held in its treasury, the number of
Preferred Shares (or such other securities) that will be sufficient to permit the exercise in full
of all outstanding Rights in accordance with Section 7. The Company covenants and agrees that it
will take all such action as may be necessary to ensure that all Preferred Shares or other
securities delivered upon exercise of Rights shall, at the time of delivery of the certificates
therefor (subject to payment of the Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable shares.



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



-10-









 





     Section 10. Shares Record Date. Each Person in whose name any certificate for
Preferred Shares (or other securities for which the Rights may be exercisable) is issued upon the
exercise of Rights shall for all purposes be deemed to have become the holder of record of the
Preferred Shares (or such other securities) represented thereby on, and such certificate shall be
dated, the date on which the Right Certificate evidencing the Rights so exercised was duly
surrendered and payment of the Purchase Price therefor (and any applicable transfer taxes) was
made; provided, however, that, if the date of such surrender and payment is a date on which the
stock transfer books of the Company are closed, such Person shall be deemed to have become the
record holder of such shares on, and such certificate shall be dated, the next succeeding Business
Day on which the stock transfer books of the Company are open.



     Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights. The
Purchase Price, the number and kind of shares of capital stock issuable upon the exercise of each
Right and the number of Rights outstanding are subject to adjustment from time to time as provided
in this Section 11.



     (a) (i) If the Company, at any time after the Record Date, declares a dividend on the
Preferred Shares payable in Preferred Shares or subdivides the outstanding Preferred Shares into a
larger number of Preferred Shares, the Purchase Price shall be proportionately decreased and the
number of Preferred Shares that shall be issued upon the exercise of a Right pursuant to Section 7
shall be proportionately increased. If the Company, at any time after the Record Date, combines
the outstanding Preferred Shares into a small number of Preferred Shares, the Purchase Price shall
be proportionately increased and the number of Preferred Shares that shall be issued upon the
exercise of a Right pursuant to Section 7 shall be proportionately decreased. Such adjustments
shall be effective as of the record date for any such dividend or as of the effective time of any
such subdivision or combination.



     If the Company, at any time after the Record Date, issues any shares of its capital stock in a
reclassification of the Preferred Shares (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving corporation), each
Right shall thereafter entitle its holder to purchase (in lieu of Preferred Shares, or any fraction
of a Preferred Share, or any other securities that such Right previously entitled its holder to
purchase), upon the exercise of such right pursuant to Section 7, the number of such shares of
capital stock issued in such reclassification as a holder of the number of Preferred Shares (or
fraction of a Preferred Share) for which such Right entitled its holder to purchase immediately
prior to such reclassification would have received in respect of such Preferred Shares in the
reclassification (the “Reclassified Shares”) and the Purchase Price payable for each such
Reclassified Share, upon the exercise of a Right pursuant to Section 7, shall thereafter be
adjusted to be an amount equal to the aggregate Purchase Price payable upon the full exercise of
such Right immediately prior to such reclassification divided by the aggregate number of
Reclassified Shares for which such Right entitles its holder to purchase immediately following such
adjustment pursuant to this Section 11(a)(i).



     Notwithstanding anything to the contrary in this Section 11(a)(i), in no event shall the
consideration to be paid upon the exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Company issuable upon the exercise of one Right.



-11-









 





     (ii) If, at any time after the Record Date, any Person becomes an Acquiring Person, each Right
(other than a Right that has become null and void pursuant to the second paragraph hereof) shall
thereafter entitle its holder to purchase (in lieu of Preferred Shares, or any fraction of a
Preferred Share, or any other securities that such Right previously entitled its holder to
purchase), upon the exercise of such right pursuant to Section 7, the number of shares of Common
Stock that equals the result obtained by dividing (a) the aggregate Purchase Price payable upon the
full exercise of such Right immediately prior to such Person becoming an Acquiring Person by (b)
50% of the current per share market price of the Common Stock (determined pursuant to Section
11(d)) on the date on which such Person became an Acquiring Person, and the Purchase Price payable
for each such share of Common Stock, upon the exercise of a Right pursuant to Section 7, shall
thereafter be adjusted to be an amount equal to the aggregate Purchase Price payable upon the full
exercise of such Right immediately prior to such Person becoming an Acquiring Person divided by the
aggregate number of shares of Common Stock for which such Right entitles its holder to purchase
immediately following such adjustment pursuant to this Section 11(a)(ii). Except as otherwise
provided in Section 23, in the event that any Person becomes an Acquiring Person and the Rights are
then outstanding, the Company shall not take any action that would eliminate or diminish the
benefits intended to be afforded by the Rights.



     From and after the time that any Person becomes an Acquiring Person, all Rights that are
Beneficially Owned, and all Rights that may thereafter be acquired or Beneficially Owned, by such
Acquiring Person (or any Associate or Affiliate of such Acquiring Person) shall be null and void
without any further action on the part of the Company or any other Person. Neither such Acquiring
Person, nor any Associate or Affiliate of such Acquiring Person, nor any other subsequent holder of
such nullified and voided Rights shall thereafter have any right to exercise such nullified and
voided Rights under any provision of this Agreement. No Right Certificate shall be issued, or
re-issued, pursuant to any provision of this Agreement evidencing any such nullified and voided
Rights. The Rights Agent shall cancel any Right Certificate delivered to it for any purpose to the
extent that such Right Certificate evidences such nullified and voided Rights. The Rights Agent
shall cancel any Right Certificate delivered to it for transfer to the extent that the Rights
evidenced thereby are requested to be transferred to any Acquiring Person (or any Associate or
Affiliate of an Acquiring Person).



     (iii) In the event that there are not sufficient shares of Common Stock issued that are either
issued but not outstanding or authorized but not issued to permit the exercise in full of the
Rights following any adjustment pursuant to Section 11(a)(ii), the Company shall take all such
action as may be necessary to authorize such number of additional shares of Common Stock to provide
for the full issuance of shares of Common Stock required to be issued upon the exercise of all of
the Rights. In the event the Company, after good faith effort, is unable to take all such action as
may be necessary to authorize such additional shares of Common Stock, the Company shall substitute,
for each share of Common Stock that would otherwise be issuable upon exercise of a Right, such
number of Preferred Shares (or such fraction of a Preferred Share) as shall have a current per
share market price equal to the current per share market price of one share of Common Stock as of
the date of issuance of such Preferred Shares (or such fraction of a Preferred Share).



-12-









 





     (b) In case 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 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 prior to 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 that 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); provided, however, that in
no event shall the consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company issuable upon exercise of one
Right. In case such subscription price may be paid in a consideration part or all of which shall be
in a form other than cash, the value of such consideration shall be as determined in good faith by
the Board of Directors of the Company, whose determination shall be described in a statement filed
with the Rights Agent and shall be binding on the Rights Agent and holders of the Rights. Preferred
Shares owned by or held for the account of the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made successively whenever such a record
date is fixed; and, in the event that such rights, options or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price that would then be in effect if such
record date had not been fixed.



     (c) In case the Company fixes a record date for the making of a distribution to all holders of
the Preferred Shares (including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a dividend payable in
Preferred Shares) or subscription rights or warrants (excluding those referred to in Section
11(b)), the Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the then-current per share market price of the 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 and
shall be binding on the Rights Agent and holders of the Rights) of the portion of the 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 then-current per share
market price of the Preferred Shares on such record date; provided, however, that in no event shall
the consideration to be paid upon the exercise of one Right be less than the aggregate par value of
the shares of capital stock of the Company to be issued upon exercise of one Right. Such
adjustments shall be made successively whenever such a record date is fixed;



-13-









 







and, in the event that such distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price that would then 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 (each, a “Security” for the purpose of this Section 11(d)), on any date shall be
deemed to be the average of the daily closing prices per share of such Security for the 30
consecutive Trading Days immediately prior to such date.



     In the event that (1) the current per share market price of any Security is determined
following the announcement by the issuer of such Security of (x) a dividend or distribution on such
Security payable in shares of such Security or Securities convertible into such shares or (y) any
subdivision, combination or reclassification of such Security, and (2) the ex-dividend date for
such dividend or distribution, or the record date for such subdivision, combination or
reclassification, is a Trading Day on which the closing price per share of such Security is used
for purposes of any calculation of “current per share market price” under this Section 11(d), then,
and in each such case, the “current per share market price” shall be appropriately adjusted to
reflect the current market price per share equivalent of such Security.



     (ii) For any Trading Day, the closing price of a Security that is listed or admitted to
trading on any national securities exchange shall be the last sale price, regular way, reported at
or prior to 4:00 P.M. Eastern time on such Trading Day or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular way, reported as of 4:00 P.M. Eastern
time on such Trading Day. Such last sale price or such closing bid and asked prices, as applicable,
shall be (a) if the Security is listed or admitted to trading on the NYSE, as reported in the
principal consolidated transaction reporting system for the NYSE and (b) if the Security is not
listed or admitted to trading on the NYSE, as reported in the principal consolidated transaction
reporting system for the principal national securities exchange on which the Security is listed or
admitted to trading.



     For any Trading Day, the closing price of a Security that is not listed or admitted to trading
on any national securities exchange and that is quoted by NASDAQ, or such other system then in use,
shall be the last quoted price reported at or prior to 4:00 P.M. Eastern time on such Trading Date
by NASDAQ, or such other system, or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, reported as of 4:00 P.M. Eastern time on such Trading Day by
NASDAQ, or such other system.



     For any Trading Day, the closing price of a Security that is neither listed or admitted to
trading on any national securities exchange nor quoted by NASDAQ, or such other system then in use,
shall be (x) the average of the closing bid and asked prices as furnished by a professional market
maker making a market in the Security, such market maker as selected by the Board of Directors of
the Company, or (y) if on any such date no such market maker is making a market in the Securities,
the fair value of such Security on such date as determined in good faith by the Board of Directors
of the Company.



     The term “Trading Day” means a day on which the principal national securities exchange on
which the Securities are listed or admitted to trading is open for the transaction of business,



-14-









 







or, if the Securities are not listed or admitted to trading on any national securities
exchange, a Business Day.



     (iii) If the Preferred Shares are publicly traded, 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)
and Section 11(d)(ii).



     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 product of the current per share market
price of the shares of Common Stock, as determined pursuant to Section 11(d)(i) and Section
11(d)(ii), multiplied by the Market Value Ratio. The “Market Value Ratio” shall initially be one
hundred (100) and shall be adjusted, in the event that the Company at any time declares or pays any
dividend on the Common Stock payable in shares of Common Stock, or effects a subdivision or
combination 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, by multiplying the Market Value Ratio theretofore in effect 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.



     If neither the shares of Common Stock nor the Preferred Shares are publicly held or so listed
or traded, “current per share market price” means 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.



     (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 that 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 one-millionth of a Preferred Share or one
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 or event that requires such
adjustment and (ii) the Expiration Time.



     (f) If, as a result of an adjustment made pursuant to Section 11(a), the holder of any Right
becomes entitled to receive, upon exercise of such Right, any shares of capital stock of the
Company other than Preferred Shares (or a fraction of a Preferred Share), thereafter the number of
such other shares so receivable upon exercise of such Right shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Preferred Shares contained in Section 11(a) through (c), inclusive, and the
provisions of Sections 7, 9, 10 and 13 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, or after any adjustment in the number of one one-hundredths of a



-15-









 







Preferred Share or other securities issuable upon the exercise of the Rights, shall evidence
the right to purchase, at the adjusted Purchase Price, such adjusted number of one one-hundredths
of a Preferred Share or other securities that are purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided herein.



     (h) Irrespective of any adjustment or change in the Purchase Price or in 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 that were expressed in the initial Right
Certificates issued hereunder.



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



     (j) Unless the Company exercises its election as provided in Section 11(i), upon each
adjustment of the Purchase Price as a result of the calculations made in Section 11(b) and Section
11(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 (calculated to the nearest one one-millionth of a Preferred Share) obtained by
(A) multiplying (x) the number of one one-hundredths of a share covered by a Right immediately
prior to this adjustment by (y) the Purchase Price in effect immediately prior to such adjustment
of the Purchase Price and (B) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.



-16-









 





     (k) Before taking any action that would cause an adjustment reducing the Purchase Price below
the aggregate par value, if any, of the securities issuable upon the exercise of one Right, the
Company shall take any corporate action that may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and nonassessable Preferred Shares
or other securities at such adjusted Purchase Price.



     (l) In any case in which this Section 11 requires that an adjustment 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, be made effective as of a record date for a specified event, the Company
may elect to defer, until the occurrence of the event requiring such adjustment, the issuance to
the holder of any Right exercised after such record date of the number of one one-hundredths of a
Preferred Share or other securities, if any, issuable upon such exercise over and above the number
of one one-hundredths of a Preferred Share or other securities, if any, issuable upon such exercise
immediately prior to such adjustment; provided, however, that the Company shall deliver to such
holder a due bill or other appropriate instrument evidencing such holder’s right to receive such
additional shares upon the occurrence of the event requiring such adjustment.



     (m) Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled
to reduce the Purchase Price, in addition to those adjustments expressly required by this Section
11, as and to the extent that the Company, in its sole discretion, determines is advisable such
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 that 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 Section 11(b), hereafter made by the Company to holders of the Preferred
Shares shall not be taxable to such stockholders.



     Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an
adjustment is made, or any event affecting the Rights or their exercisability (including, without
limitation, any event that causes any Rights to become null and void) occurs, as provided in
Section 11 or Section 13, the Company shall promptly (a) prepare a certificate setting forth such
adjustment, if any, and a brief statement describing the facts accounting for any such adjustment
or relating to any such event, (b) file a copy of such certificate with the Rights Agent, the
Securities and Exchange Commission and each transfer agent for the shares of Common Stock, for the
Preferred Shares and for any other class or series of securities that would be issuable upon any
exercise of the Rights and (c) if such adjustment occurs at any time after the Distribution Time,
mail a brief summary thereof to each registered holder of a Right Certificate in accordance with
Section 25. Notwithstanding the foregoing sentence, the failure of the Company to prepare such
certificate, to file such certificate as and when required or to provide a summary of such
certificate to each registered holder of a Right Certificate shall not affect the validity of any
such adjustment or the force or effect of the requirement for such adjustment or affect, or relieve
any Person from, the consequences of any such event pursuant to the terms of this Agreement. The
Rights Agent shall be fully protected in relying on any such certificate and on any adjustment or
statement contained therein and shall have no duty or liability with respect to, and shall not be
deemed to have knowledge of, such adjustment or event unless and until it receives such
certificate.



-17-









 





     Section 13. Flip Over Events. From and after the effective time of any Flip-Over
Event, (a) each Right (other than a Right that has become null and void pursuant to Section
11(a)(ii) or that has been exchanged pursuant to Section 24) shall thereafter represent the right
to purchase, when exercisable pursuant to Section 7 and upon payment of the aggregate Purchase
Price theretofore payable upon the full exercise of such Right and in lieu of the number of
Preferred Shares, or fraction of a Preferred Share, for which such Right was previously
exercisable, such number of shares of Common Stock of the Flip Over Successor that equals the
result obtained by dividing such aggregate Purchase Price by 50% of the current per share market
price of the Common Stock of such Flip Over Successor (determined pursuant to Section 11(d)) on the
date of consummation of the Flip Over Event; (b) the Flip Over Successor shall thereafter be liable
for, and shall assume, by virtue of consummated such Flip Over Event, all the obligations and
duties of the Company pursuant to this Agreement; (c) the term “Company” shall thereafter be deemed
to refer to the Flip Over Successor; and (d) the Flip Over Successor shall take such actions
(including, but not limited to, the reservation of a sufficient number of its shares of Common
Stock in accordance with Section 9 and Section 11(f)) in connection with the consummation of such
Flip Over Event as may be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the shares of Common Stock of the Flip
Over Successor thereafter deliverable upon the exercise of the Rights. The Company shall not
consummate any Flip Over Event unless, prior thereto, the Company and the Person that becomes the
Flip Over Successor have executed and delivered to the Rights Agent a supplemental agreement
providing for, and legally binding such Flip Over Successor to take, the actions required by clause
(d) of the preceding sentence. The Company shall not consummate any Flip Over Event (or enter into
any binding agreement with respect thereto) at any time when rights, warrants, instruments or
securities are outstanding, or any agreements or arrangements are in force, that would eliminate or
substantially diminish the benefits intended to be afforded by the Rights upon the consummation of
such Flip Over Event. The provisions of this Section 13 shall similarly apply to successive Flip
Over Events.



     Section 14. Fractional Rights and Fractional Shares.



     (a) Each Right Certificate distributed by the Company, or re-issued by the Company pursuant to
Section 6 or Section 7(d), shall evidence solely a whole Right or a whole number of Rights. In lieu
of any fraction of a Right that would otherwise be evidenced by a Right Certificate, the Company
shall pay to the registered holder of such Right Certificate an amount, in cash, equal to such
fraction multiplied by the current market value of a whole Right. For the purposes of this Section
14(a), the current market value of a whole Right shall be the closing price of the Rights (as
determined pursuant to Section 11(d)) for the Trading Day immediately prior to the date on which
the Right Certificate that would otherwise have evidenced such fraction of a Right was issued.



     (b) The number of Preferred Shares to be issued by the Company to any Person upon the exercise
of any Rights, if not an integral multiple of one one-hundredth of a Preferred Share, shall be
rounded down to the nearest one one-hundredth of a Preferred Share. In lieu of any fraction of a
Preferred Share that would otherwise be issued by the Company upon the exercise of any Rights, the
Company shall pay to the registered holder of the Right Certificate evidencing such Rights an
amount, in cash, equal to such fraction multiplied by the current market value of a whole Preferred
Share. For the purposes of this Section 14(b), the current market value of a



-18-









 







whole Preferred Share shall be the closing price of a whole Preferred Share (as determined
pursuant to Section 11(d)) for the Trading Day immediately prior to the date of such exercise.



     (c) 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 shall have all the rights,
privileges and preferences to which they are entitled as Beneficial Owners of the Preferred Shares
represented by such depositary receipts.



     (d) The holder of a Right, by the acceptance of such Right, expressly waives such holder’s
right to receive a Right Certificate evidencing any fraction of a Right or a fraction of a
Preferred Share, other than an integral multiple of one one-hundredth of a Preferred Share, upon
the exercise of any Right.



     Section 15. Rights of Action. All rights of action in respect of this Agreement,
excepting the rights of action given to the Rights Agent hereunder, are vested in the respective
registered holders of the Right Certificates (and, prior to the Distribution Time, the respective
record holders of the shares of Common Stock). Any registered holder of a Right Certificate (or,
prior to the Distribution Time, any record holder of a share of Common Stock), without the consent
of the Rights Agent or any other registered holder of a Right Certificate (or, prior to the
Distribution Time, any other record holder of a share of Common Stock), may, on such holder’s own
behalf and for such holder’s own benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company or the Rights Agent to enforce, or otherwise act in respect of,
such holder’s right to exercise the Rights (whether or not then exercisable) evidenced by such
Right Certificate (or, prior to the Distribution Time, by such share of Common Stock) in the manner
provided in this Agreement. Without limiting the foregoing or any remedies available to the holders
of Rights, the Company and the Rights Agent specifically acknowledge that each holder of Rights
would not have an adequate remedy at law for any breach by the Company or the Rights Agent of this
Agreement, and shall be entitled to specific performance of the obligations of the Company and the
Rights Agents under this Agreement, and injunctive relief against actual or threatened violations
thereof.



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



     (a) prior to the Distribution Time, the Rights will be transferable only in connection with
the transfer of the respective shares of Common Stock to which they are associated;



     (b) after the Distribution Time, the Rights will be represented solely by Right Certificates
and such Right Certificates will be transferable only on the registry books of the Rights Agent and
only following full compliance by the registered holder thereof with the provisions of Section
6(a); and



     (c) the Company and the Rights Agent may deem and treat the registered holder of any Right
Certificate (or, prior to the Distribution Time, any certificate representing a share of



-19-









 







Common Stock) as the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or other writing on any such Right Certificate or
Common Stock certificate made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent shall be affected by any notice
to the contrary.



     Section 17. Rights Holder Not Deemed a Stockholder. No holder of any Right or Rights
(whether evidenced by a Right Certificate or, prior to the Distribution Time, a certificate
representing shares of Common Stock), as such, shall be entitled to vote, receive dividends or be
deemed for any purpose to be the holder of the Preferred Shares or any other securities of the
Company that may at any time be issuable upon the exercise of such Right or Rights, nor shall
anything contained herein or in any Right Certificate be construed to confer upon any such holder
of any Right or Rights, as such, any of the rights of a stockholder of the Company or any right to
vote for the election of directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in Section 25), or to receive dividends
or subscription rights, or otherwise, until such Right or Rights have been exercised in accordance
with the provisions hereof.



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



     The Rights Agent shall be protected and shall incur no liability for, or in respect of any
action taken, suffered or omitted to be taken by it in connection with, its administration of this
Agreement in reliance upon any Right Certificate, certificate for the Preferred Shares, Common
Stock or 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.



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



-20-









 







Rights Agent succeeds to the agency created by this Agreement, any of the Right Certificates
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 have not been countersigned,
any successor Rights Agent may countersign such Right Certificates either in the name of the
predecessor Rights Agent or in its own name as the successor Rights Agent; and, in all such cases,
such Right Certificates shall have the full force provided in the Right Certificates and in this
Agreement. In case at any time the name of the Rights Agent is changed, any of the Right
Certificates have been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver such Right Certificates so countersigned; and, in
case at that time any of the Right Certificates have not 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 to perform only the
duties and obligations expressly imposed by this Agreement (and no implied duties or obligations)
and only upon the following terms and conditions, by all of which the Company and the holders of
Rights, 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 to be taken 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
the Rights Agent taking, suffering to be taken or omitting to take any action hereunder, such fact
or matter (unless other evidence in respect thereof is herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by any one of the Chairman
of the Board, the Chief Executive Officer, the President, any Vice President, the Treasurer or the
Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full
authorization to the Rights Agent to take, suffer to be taken or omit to take such action under the
provisions of this Agreement in reliance upon such certificate.



     (c) The Rights Agent shall be liable hereunder to the Company and any other Person only for
its own negligence or willful misconduct; provided, however, that the Rights Agent shall not be
liable for special, consequential, indirect or punitive damages.



     (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 the



-21-









 







countersignature by the Rights Agent 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)) or any adjustment in the terms of the Rights
(including the form by which the Rights are evidenced, the manner or method of exercising the
Rights, the exercise price thereof, or the securities or other property for which the Rights may be
exercised or for which they may be redeemed or into which they may be exchanged, as the case may
be) provided for in Sections 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 receipt by the Rights Agent of a certificate furnished
pursuant to Section 12 describing such change or adjustment, upon which the Rights Agent may rely);
nor shall it by any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Preferred Shares (or, if applicable, shares of Common Stock or
other securities) to be issued pursuant to this Agreement or any Right Certificate or as to whether
any Preferred Shares (or, if applicable, shares of Common Stock or other securities) will, when
issued, be validly authorized and issued, fully paid and nonassessable.



     (f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other acts, instruments and
assurances 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 of the Board, the Chief
Executive Officer, the President, 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, suffered or omitted to be taken by it in
accordance with instructions of any such officer or for any delay in acting while waiting for those
instructions. Any application by the Rights Agent for written instructions from the Company may, at
the option of the Rights Agent, set forth in writing any action proposed to be taken, suffered or
omitted to be taken by the Rights Agent under this Agreement and the date on and/or after which
such action shall be taken or suffered or such omission shall be effective. The Rights Agent shall
not be liable for any action taken, suffered or omitted to be taken by it in accordance with a
proposal included in any such application on or after the date specified in such application (which
date shall not be less than five Business Days after the date any officer of the Company actually
receives such application, unless any such officer consents in writing to an earlier date) unless,
prior to taking any such action (or the effective date in the case of an omission), the Rights
Agent receives written instructions in response to such application reasonably specifying the
action to be taken, suffered or omitted.



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



-22-









 





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



     (j) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise,
transfer, split up, combination or exchange, the registered holder thereof fails to properly
complete and duly exercise the form of election to purchase or the form of assignment on the
reverse side of such Right Certificate or such registered holder fails to comply in any other
respect with the requirements set forth in Section 7 with respect to the exercise of Rights or the
requirements set forth in Section 6 with respect to the transfer, split up, combination, exchange
or replacement of Right Certificates, the Rights Agent shall not take any further action with
respect to such request for exercise, transfer, split up, combination, exchange or replacement,
without first consulting with the Company.



     Section 21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may
resign, and be discharged from its duties under this Agreement, upon 30 days’ prior notice in
writing mailed to the Company and to each transfer agent for the shares of Common Stock, for the
Preferred Shares and for any other class or series of securities that would be issuable upon any
exercise of the Rights by registered or certified mail, and to each holder of a Right by
first-class mail. The Company may remove the Rights Agent or any successor Rights Agent upon 30
days’ prior notice in writing, mailed to the Rights Agent or any such successor Rights Agent, as
the case may be, and to each transfer agent for the shares of Common Stock, for the Preferred
Shares and for any other class or series of securities that would be issuable upon any exercise of
the Rights by registered or certified mail, and to each holder of a Right 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 30
days after giving the Rights Agent notice of such removal or after the Company has been notified in
writing of such resignation or incapacity by the resigning or incapacitated Rights Agent or by any
holder of a Right (which registered holder shall, with such notice, submit all Right Certificates
held by such holder (or, prior to the Distribution Time, all certificates representing shares of
Common Stock held by such holder)) for inspection by the Company), then any holder of a Right may
apply to any court of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court, shall be a (i) Person
organized, in good standing and doing business under the laws of the United States or any state of
the United States that 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 that has, at
the time of its appointment as Rights Agent, a combined capital and surplus of at least $50 million
or (ii) an Affiliate of such Person. After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been originally named as
Rights Agent without further act or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time held by it hereunder, and execute
and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent



-23-









 







and each transfer agent for the shares of Common Stock, for the Preferred Shares and for any
other class or series of securities that would be issuable upon any exercise of the Rights, and
mail a notice thereof in writing to each holder of a Right. 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 the Board of Directors of the
Company to reflect any adjustment or change in the Purchase Price and the number or kind or class
of shares or other securities or property purchasable under the Right Certificates made in
accordance with the provisions of this Agreement.



     Section 23. Redemption.



     (a) The Board of Directors of the Company may, at its option, at any time prior to the
Distribution Time, redeem all, but not less than all, of the then outstanding Rights at a
redemption price of $.01 per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such redemption price being
hereinafter referred to as the “Redemption Price”). The redemption of the Rights by the Board of
Directors 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.



     (b) Immediately upon the action of the Board of Directors of the Company ordering the
redemption of the Rights pursuant to Section 23(a), and without any further action and without any
notice, the right to exercise the Rights shall 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, such
notice shall not affect the legality or validity of such redemption. Within 10 days after such
action of the Board of Directors of the Company ordering the redemption of the Rights, the Company
shall mail a notice of redemption to all of the holders of the then outstanding Rights. 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 (i) as specifically set forth in this
Section 23 or in Section 24, or (ii) as a consequence of the purchase, prior to the Distribution
Time, of shares of Common Stock associated with such Rights.



     Section 24. Exchange.



     (a) Subject to the applicable laws, rules and regulations, and subject to Section 24(c) below,
the Company may, at its option, by action of the Board of Directors, at any time after any Person
becomes an Acquiring Person, exchange all or any portion of the then outstanding and exercisable
Rights (which shall not include Rights that have become null and void pursuant to the provisions of
Section 11(a)(ii)) for shares of Common Stock at an exchange ratio of one share of Common Stock per
Right, appropriately adjusted to reflect any adjustment in the number of Rights pursuant to Section
11(i) (such exchange ratio being hereinafter referred to as



-24-









 







the “Exchange Ratio”). Notwithstanding the foregoing, the Board of Directors of the Company
shall not be empowered to effect any such exchange at any time after any Person (other than a
Company Entity), together with all Affiliates and Associates of such Person, becomes the Beneficial
Owner of 50% or more of the shares of Common Stock then outstanding.



     (b) Immediately upon the action of the Board of Directors of the Company ordering the exchange
of any Rights pursuant to Section 24(a), and without any further action and without any notice, the
right to exercise the Rights that are to be exchanged shall terminate and the only right thereafter
of the holders of such Rights shall be to receive that number of shares of Common Stock equal to
the number of such Rights held by such holder multiplied by the Exchange Ratio. The Company
promptly shall give public notice of any such exchange and the Company promptly shall mail a notice
of any such exchange to all of the holders of such Rights; provided, however, that the failure of
the Company to promptly give, or any defect in, any such notice shall not affect the legality or
validity of such exchange. Each such notice of exchange mailed to the holders of such Rights will
state the method by which the exchange of the shares of Common Stock for Rights will be effected,
and, in the event of any partial exchange, the percentage of the total Rights, and the number of
such holder’s Rights, that will be exchanged. Any partial exchange shall be effected pro rata based
on the number of Rights (other than Rights that have become null and void pursuant to the
provisions of Section 11(a)(ii)) held by each holder of Rights.



     (c) In the event that there are not sufficient shares of Common Stock that are either issued
but not outstanding or authorized but not issued to permit the exchange of all of the Rights
ordered by the Board of Directors to be exchanged in accordance with this Section 24, the Company
shall take all such action as may be necessary to authorize such number of additional shares of
Common Stock to provide for the full issuance of shares of Common Stock required to be issued upon
exchange of such Rights. In the event the Company, after good faith effort, is unable to take all
such action as may be necessary to authorize such additional shares of Common Stock, the Company
shall substitute, for each share of Common Stock that would otherwise be issuable upon exchange of
a Right, such number of Preferred Shares (or such fraction of a Preferred Share) as shall have a
current per share market price equal to the current per share market price of one share of Common
Stock as of the date of issuance of such Preferred Shares (or such fraction of a Preferred Share).



     (d) The Company shall not be required to issue fractions of a share of Common Stock upon any
exchange of the Rights, or to distribute certificates that evidence fractional shares of Common
Stock. In lieu of such fractional shares of Common Stock, the Company shall pay to the registered
holders of the Rights with regard to which such fractional shares of Common Stock would otherwise
be issuable at the time such Rights are exchanged as herein provided an amount in cash equal to the
same fraction of the current market value of a whole share of Common Stock. For the purposes of
this Section 24(d), the current market value of a whole share of Common Stock shall be the closing
price of a share of Common Stock (as determined pursuant to Section 11(d)) for the Trading Day
immediately prior to the date of exchange pursuant to this Section 24.



-25-









 





     Section 25. Notice of Certain Events.



     (a) In case the Company, at any time after the Distribution Time, proposes to (i) pay any
dividend payable in stock of any class to the holders of the Preferred Shares or to make any other
distribution to the holders of the Preferred Shares (other than a regular quarterly cash dividend),
(ii) offer to the holders of the Preferred Shares rights or warrants to subscribe for or to
purchase any additional Preferred Shares or shares of stock of any class or any other securities,
rights or options, (iii) effect any reclassification of the Preferred Shares (other than a
reclassification involving only the subdivision of outstanding Preferred Shares), (iv) effect any
consolidation or merger into or with, or effect any sale or other transfer (or 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, (v) effect the liquidation, dissolution or winding up of the Company, or (vi) declare
or pay any dividend on the shares of Common Stock payable in shares of Common Stock or to effect a
subdivision, combination or consolidation of the shares of Common Stock (by reclassification or
otherwise than by payment of dividends in shares of Common Stock), then, in each such case, the
Company shall give to each registered holder of a Right Certificate, in accordance with Section 26,
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 shares of Common Stock 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 20 days prior to the record date for
determining holders of the Preferred Shares for purposes of such action, and, in the case of any
such other action, at least 20 days prior to the date of the taking of such proposed action or the
date of participation therein by the holders of the shares of Common Stock and/or Preferred Shares,
whichever is earlier.



     (b) In case the event set forth in Section 11(a)(ii) occurs, the Company shall, as soon as
practicable thereafter, give to the Rights Agent and to each registered holder of a Right
Certificate, in accordance with Section 26, 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).



     Section 26. Notices. Except as otherwise provided in Section 21, all notices and
demands authorized by this Agreement to be given or made by the Rights Agent or the holder of any
Right to or on the Company shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing by the Company with the Rights Agent)
or by facsimile transmission as follows:



CCE Spinco, Inc.

9348 Civic Center Drive

Beverly Hills, California 90210

Attention: Corporate Secretary

Facsimile No.: (310) 867-7051




-26-









 





     Except as otherwise provided in Section 21, all notices and demands authorized by this
Agreement to be given or made by the Company or the holder of any Right to or on the Rights Agent
shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing by the Rights Agent with the Company) or by facsimile
transmission as follows:



The Bank of New York

101 Barclay Street, 11E

New York, New York, 10286

Facsimile No.: (212) 815-7048

Attention: Steven Myers, Stock Transfer Administration




     Notices, demands or certificates (including Right Certificates) authorized by this Agreement
to be given or made by the Company or the Rights Agent to the holder of any Right (whether as the
record holder of a share of Common Stock prior to the Distribution Time or as the registered holder
of a Right Certificate from and after the Distribution Time) shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed to such holder at their last addresses as they
appear upon the registry books of the Rights Agent (or, if prior to the Distribution Time or in
connection with the distribution of Right Certificates immediately following the Distribution Time,
at their last addresses as they appear upon the registry books of the transfer agent for the shares
of Common Stock). Any notice that is mailed to a holder of a Right in the manner herein provided
shall be deemed given, whether or not such holder actually receives such notice.



     Section 27. Supplements and Amendments. The Company may from time to time supplement
or amend this Agreement without the approval of any holder of Rights, subject to the other terms
and conditions of this Agreement, in order to cure any ambiguity, to correct or supplement any
provision contained herein that may be defective or inconsistent with any other provision or
provisions herein, to shorten or lengthen any time period hereunder or to make, amend or delete any
other provisions with respect to the Rights that the Company may deem necessary or desirable, any
such supplement or amendment to be evidenced by a writing signed by the Company and the Rights
Agent; provided, however, that, from and after such time as any Person becomes an Acquiring Person,
this Agreement shall not be amended in any manner that would adversely affect the interests of 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 (A) make the provisions of this
Agreement inapplicable to a particular transaction by which a Person would otherwise become an
Acquiring Person or to otherwise alter the terms and conditions of this Agreement as they may apply
with respect to any such transaction, or (B) lower the thresholds set forth in Section 1(a) and
Section 3(a) to not less than 10% or more of the shares of Common Stock then outstanding (the
“Reduced Threshold”); provided, however, that no Person who Beneficially Owns a number of shares of
Common Stock equal to or greater than the Reduced Threshold shall become an Acquiring Person
because of such Amendment unless such Person, after the public announcement of the Reduced
Threshold, purchases one or more additional shares of Common Stock such that its Beneficial
Ownership of the then outstanding shares of Common Stock is equal to or greater than the greater of
(x) the Reduced Threshold or (y) the lowest Beneficial Ownership of such Person as a percentage of
the shares of Common Stock outstanding as of any date on or after the date of the public



-27-









 







announcement of such Reduced Threshold. Upon delivery of a certificate from an appropriate
officer of the Company and, if requested by the Rights Agent, an opinion of counsel, that states
that the proposed supplement or amendment is in compliance with the terms of this Section 27, the
Rights Agent shall execute such supplement or amendment. Notwithstanding anything contained in this
Agreement to the contrary, the Rights Agent may, but shall not be obligated to, enter into any
supplement or amendment that affects the Rights Agent’s own rights, duties, obligations or
immunities under this Agreement. Prior to the Distribution Time, the interests of the holders of
the Rights shall be deemed coincident with the interests of the holders of Common Stock.



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



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



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



     Section 31. Governing Law. This Agreement and each Right Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state; provided, however, that the rights,
duties and obligations of the Rights Agent hereunder shall be governed by and construed in
accordance with the laws of the State of New York.



     Section 32. Counterparts. This Agreement may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.



     Section 33. Descriptive Headings; References. 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. Except as otherwise specifically
provided, any reference to any section or annex will be deemed to refer to such section of or annex
to this Agreement.



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



-28-









 





	 	 	 	 	 	 	 	 	 
	Attest:	 	CCE SPINCO, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Randall T. Mays	 	By:	 	/s/ Michael Rapino	 	 
	 

	 	 

Name: Randall T. Mays
	 	 	 	 

Name: Michael Rapino
	 	 
	 

	 	Title: Secretary
	 	 	 	Title: Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	Attest:	 	THE BANK OF NEW YORK	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Rohan M. Bickram	By:	 	/s/ Steven Myers	 
	 

	 	 

Name: Rohan M. Bickram
	 	 	 	 

Name: Steven Myers
	 	 
	 

	 	Title: Assistant Treasurer
	 	 	 	Title: Assistant Treasurer	 	 







-29-