Exhibit 4.1


 


VIA
NET.WORKS, INC.


 


and


 


CONTINENTAL STOCK TRANSFER & TRUST COMPANY


 


as
Rights Agent


 


 


RIGHTS
AGREEMENT


 


dated as
of January 29, 2004


 

















 


TABLE OF CONTENTS


 


	
  Section 1.

  	
  Certain Definitions

  	
   

  
	
  Section 2.

  	
  Appointment of Rights Agent

  	
   

  
	
  Section 3.

  	
  Issue of Rights Certificates

  	
   

  
	
  Section 4.

  	
  Form of Rights Certificates

  	
   

  
	
  Section 5.

  	
  Countersignature and Registration

  	
   

  
	
  Section 6.

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

  	
   

  
	
  Section 7.

  	
  Exercise of Rights; Purchase Price;
  Expiration Date of Rights

  	
   

  
	
  Section 8.

  	
  Cancellation of Rights
  Certificates

  	
   

  
	
  Section 9.

  	
  Reservation and Availability of Capital
  Stock

  	
   

  
	
  Section 10.

  	
  Preferred Stock Record Date

  	
   

  
	
  Section 11.

  	
  Adjustment of Purchase Price, Number and
  Kind of Shares or Number of Rights

  	
   

  
	
  Section 12.

  	
  Certificate of Adjusted Purchase Price
  or Number of Shares

  	
   

  
	
  Section 13.

  	
  Consolidation, Merger or Sale or Transfer
  of Assets or Earning Power

  	
   

  
	
  Section 14.

  	
  Fractional Rights and Fractional Shares

  	
   

  
	
  Section 15.

  	
  Rights of Action

  	
   

  
	
  Section 16.

  	
  Agreement of Rights Holders

  	
   

  
	
  Section 17.

  	
  Rights Certificate Holder Not Deemed a
  Stockholder

  	
   

  
	
  Section 18.

  	
  Duties of Rights Agent

  	
   

  
	
  Section 19.

  	
  Compensation and Indemnification of
  the Rights Agent

  	
   

  
	
  Section 20.

  	
  Merger or Consolidation or Change of Name
  of Rights Agent

  	
   

  
	
  Section 21.

  	
  Change of Rights Agent

  	
   

  
	
  Section 22.

  	
  Issuance of New Rights Certificates

  	
   

  
	
  Section 23.

  	
  Redemption

  	
   

  
	
  Section 24.

  	
  Exchange

  	
   

  
	
  Section 25.

  	
  Notice of Certain Events

  	
   

  
	
  Section 26.

  	
  Notices

  	
   

  
	
  Section 27.

  	
  Supplements and Amendments

  	
   

  
	
  Section 28.

  	
  Successors

  	
   

  
	
  Section 29.

  	
  Determinations and Actions by the Board,
  etc

  	
   

  
	
  Section 30.

  	
  Benefits of this Agreement

  	
   

  
	
  Section 31.

  	
  Severability

  	
   

  
	
  Section 32.

  	
  Governing Law

  	
   

  
	
  Section 33.

  	
  Counterparts

  	
   

  
	
  Section 34.

  	
  Descriptive Headings

  	
   

  



 

















 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Certificate of
  Designation

  	
   

  
	
  Exhibit B

  	
  Summary of Rights

  	
   

  
	
  Exhibit C

  	
  Form of Rights
  Certificate

  	
   

  



 

















 


RIGHTS AGREEMENT


 


RIGHTS AGREEMENT,
dated as of January 29, 2004 (the “Agreement”), between VIA
NET.WORKS, INC., a Delaware corporation (the “Company”), and Continental
Stock Transfer & Trust Company, a New York banking corporation (the “Rights
Agent”).


 


WHEREAS, on
January 29, 2004 (the “Rights Dividend Declaration Date”), the
Board of Directors of the Company authorized and declared a dividend of one
Right for each share of Common Stock (as hereinafter defined) of the Company
outstanding at the Close of Business (as defined herein) on the Record Date (as
defined herein), and has authorized the issuance of one Right with respect to
each share of Common Stock of the Company issued between the Record Date
(whether originally issued or delivered from the Company’s treasury) and the
Distribution Date (as hereinafter defined), each Right initially representing
the right to purchase one one-thousandth of a share of Series A Junior
Participating Preferred Stock of the Company having the rights, powers and preferences
set forth in the form of Certificate of Designation, Preferences and Rights
attached hereto as Exhibit A, upon the terms and subject to the
conditions hereinafter set forth.


 


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


 


Section 1.                                          Certain Definitions.


 


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


 


(a)                                  “Acquiring
Person” shall mean any Person (as such term is hereinafter defined) who or
which, together with all Affiliates and Associates (as such terms are
hereinafter defined) of such Person, shall be the Beneficial Owner (as such
term is hereinafter defined) of 15%  or more of the shares of Common Stock
then outstanding, but shall not include (i) the Company, (ii) any
Subsidiary of the Company, or (iii) any employee benefit plan of the
Company or any Subsidiary of the Company, or any Person holding shares of
Common Stock for or pursuant to the terms of any such plan to the extent, and only
to the extent, of such shares so held. 
Notwithstanding the foregoing, no Person shall become an “Acquiring
Person” as the result of an acquisition of shares of Common Stock by the
Company which, 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 of the 


 

















 


Company then
outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 15% or more of the Common Stock of the Company 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 of the Company, then such Person shall be deemed to be
an “Acquiring Person” if such Person is then the Beneficial Owner of 15% or
more of the Common Stock then outstanding. 
Notwithstanding the foregoing, if the Board determines in good faith
that a Person who would otherwise be an “Acquiring Person”, as defined pursuant
to the foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person divests as promptly as practicable a sufficient
number of shares of Common Stock so that such Person would no longer be an
“Acquiring Person”, then such Person shall not be deemed an “Acquiring Person”
for any purposes of this Agreement unless and until such Person shall again
become an “Acquiring Person”.


 


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


 


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


 


(i)  which such
Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding (whether or not in writing), or upon the exercise
of conversion rights, exchange rights, other rights (other than these Rights),
warrants or options, or otherwise; provided, however, that a
Person shall not be deemed the “Beneficial Owner” of, or to “beneficially own”,
(A) 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) securities issuable upon exercise of Rights at any time prior to the
occurrence of a Triggering Event, or (C) securities issuable upon exercise
of Rights from and after the occurrence of a Triggering Event which Rights were
acquired by such Person or any of such Person’s Affiliates or Associates prior
to the Distribution Date or pursuant to Section 3(a) or Section 22
hereof (the “Original Rights”) or pursuant to Section 11(i) hereof
in connection with an adjustment made with respect to any Original Rights;


 


2

















 


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


 


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


 


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


 


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


 


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


 


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


 


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(g)                                 “Common
Stock” when used with reference to the Company shall mean the shares of the
Voting Common Stock and the Non-Voting Common Stock.  “Common Stock” when used with reference to any Person other than
the Company shall mean the class of capital stock with the greatest aggregate
voting power, or the class of equity securities or other equity interests
having power to control or direct the management, of such Person.


 


(h)                                 “Company”
shall mean VIA NET.WORKS, Inc., a Delaware corporation.


 


(i)                                     “Distribution
Date” shall mean the earlier of (i) the Close of Business on the tenth day
after the Stock Acquisition Date (or, if the tenth day after the Stock
Acquisition Date occurs before the Record Date, the Close of Business on the
Record Date), or (ii) the Close of Business on the tenth Business Day (or,
if such tenth Business Day occurs before the Record Date, the Close of Business
on the Record Date), or such specified or unspecified later date on or after
the Record Date as may be determined by action of the Board prior to such time
as any Person becomes an Acquiring Person, after the date of the commencement
by any Person (other than the Company, any Subsidiary of the Company or any
employee benefit plan of the Company or of any Subsidiary of the Company or any
Person holding shares of Common Stock for or pursuant to the terms of any such
plan) of, or of the first public announcement of the intention of any Person
(other than any of the Persons referred to in the preceding parenthetical) to
commence, a tender or exchange offer the consummation of which would result in
such Person becoming the beneficial owner of 15% or more of the outstanding shares
of Common Stock.


 


(j)                                     “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, as in
effect on the date of this Agreement.


 


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


 


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


 


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


 


(n)                                 “Non-Voting
Common Stock” shall mean the Non-Voting Common Stock, par value $.001 per
share, of the Company.


 


4

















 


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


 


(p)                                 “Preferred
Stock” shall mean shares of Series A Junior Participating Preferred Stock
of the Company.


 


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


 


(r)                                    “Purchase
Price” shall have the meaning set forth in Section 4(a) and 11(a)(ii)
hereof.


 


(s)                                  “Record
Date” shall mean the close of business on February 12, 2004.


 


(t)                                    “Redemption
Period” shall have the meaning set forth in Section 23(a) hereof.


 


(u)                                 “Rights
Agent” shall mean Continental Stock Transfer & Trust Company, a New
York banking corporation.


 


(v)                                 “Rights
Certificate” shall have the meaning set forth in Section 3(d) hereof.


 


(w)                               “Rights
Dividend Declaration Date” shall have the meaning set forth in the recitals
hereof.


 


(x)                                   “Section 11(a)(ii)
Event” shall mean any event described in Section 11(a)(ii) hereof.


 


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


 


(z)                                   “Securities
Act” shall mean the Securities Act of 1933, as amended, and as in effect on
the date of this Agreement.


 


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


 


(bb)                          “Subsidiary”
of any Person shall mean any corporation or other entity of which a majority of
the voting power of the voting equity


 


5

















 


securities or
equity interests is owned, directly or indirectly, by such Person, or is
otherwise controlled by such Person.


 


(cc)                            “Triggering
Event” shall mean any Section 11(a)(ii) Event or any Section 13
Event.


 


(dd)                          “Voting
Common Stock” shall mean shares of Voting Common Stock, par value $.001 per
share, of the Company.


 


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,
upon ten (10) days’ prior written notice to the Rights Agent.  The Rights Agent shall have no duty to
supervise, and shall in no event be liable for, the acts or omissions of any
such Co-Rights Agent.


 


Section 3.                                          Issue of Rights Certificates.


 


(a)                                   As
promptly as practicable following the Record Date, the Company will send or
deliver a copy of a Summary of Rights to Purchase Preferred Stock, in
substantially the form attached hereto as Exhibit B (the “Summary
of Rights”), to each record holder of Common Stock as of the Close of
Business on the Record Date at the address of such holder shown on the records
of the Company.  With respect to
certificates for shares of Common Stock outstanding as of the Record Date,
until the Distribution Date, the Rights will be evidenced by such certificates
for the Common Stock and the registered holders of the Common Stock shall also
be the registered holders of the associated Rights.  Until the Distribution Date (or the earlier Expiration Date or
Final Expiration Date), the transfer of any certificate representing shares of
Common Stock in respect of which Rights have been issued shall also constitute
the transfer of the Rights associated with the shares of Common Stock
represented thereby.


 


(b)                                  Rights
shall be issued in respect of all shares of Common Stock issued (whether
originally issued or from the Company’s treasury) after the Record Date but
prior to the earlier of the Distribution Date or the Expiration Date or the
Final Expiration Date.  Rights shall
also be issued to the extent provided in Section 22 in respect of all
shares of Common Stock which are issued (whether originally issued or from the
Company’s treasury) after the Distribution Date and prior to the Expiration
Date.  Certificates representing such
shares of Common Stock shall also be deemed to be certificates for Rights, and
shall bear the following legend (in addition to any other legends that may be
required):


 


6

















 


This certificate
also evidences and entitles the holder hereof to certain Rights as set forth in
a Rights Agreement between VIA NET.WORKS, Inc. (the “Company”) and Continental
Stock Transfer & Trust Company (the “Rights Agent”) dated as of
January 29, 2004, as the same may be amended from time to time (the
“Rights Agreement”), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive offices of
the Company.  Under certain
circumstances, as set forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer be evidenced by this
certificate.  The Company will mail to
the holder of this certificate a copy of the Rights Agreement as in effect on
the date of mailing without charge after receipt of a written request therefor.


 


Under certain
circumstances set forth in the Rights Agreement, Rights issued to, or held by,
any Person who is, was or becomes an Acquiring Person or any Affiliate or
Associate thereof (as such terms are defined in the Rights Agreement), whether
currently held by or on behalf of such Person or by any subsequent holder, may
become null and void.


 


With respect to such
certificates containing the foregoing legend, until the earlier of (i) the
Distribution Date or (ii) the Expiration Date, the Rights associated with
the Common Stock represented by such certificates shall be evidenced by such
certificates alone and registered holders of Common Stock shall also be the
registered holders of the associated Rights, and the transfer of any such
certificate shall also constitute the transfer of the Rights associated with
the Common Stock represented thereby.


 


(c)                                   Until
the Distribution Date (i) the Rights will be evidenced (subject to the
provisions of paragraph (a) of this Section 3) by the certificates for
Common Stock registered in the names of the holders thereof (which certificates
for Common Stock shall also be deemed to be Rights Certificates) and not by
separate Rights Certificates, and (ii) the Rights will be transferable only in
connection with the transfer of the underlying shares of Common Stock
(including a transfer to the Company). 
The Company shall give the Rights Agent prompt written notice of the
Distribution Date.


 


(d)                                  As
soon as practicable after the Distribution Date and receipt of written notice
of the Distribution Date from the Company, the Rights Agent upon notification
thereof will, at the Company’s expense, send by first-class, insured, postage
prepaid mail, to each record holder of Common Stock as of the Close of Business
on the Distribution Date, at the address of such holder shown on the records of
the Company, a rights certificate, in substantially the form of Exhibit C
hereto (the “Rights Certificate”), evidencing one Right for each share
of Common Stock so held, subject to adjustment as provided herein.  In the event that an


 


7

















 


adjustment in the number
of Rights per share of Common Stock has been made pursuant to Section 11
hereof, at the time of distribution of the Rights Certificates, the Company
shall make necessary and appropriate rounding adjustments (in accordance with
Section 14(a) hereof) so that Rights Certificates representing only whole
numbers of Rights are distributed and cash is paid in lieu of any fractional
Rights.  As of and after the
Distribution Date, the Rights will be evidenced solely by such Rights
Certificates.


 


Section 4.                                          Form of Rights Certificates.


 


(a)                                   The
Rights Certificates (and the forms of election to purchase and of assignment to
be printed on the reverse thereof) shall be substantially the same as Exhibit C
hereto and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate, and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Rights may from time to time be listed, or to conform to
usage.  The Rights Certificates shall be
in a machine printable format and in a form reasonably satisfactory to the Rights
Agent.  Subject to the provisions of
Section 11 and Section 22 hereof, the Rights Certificates, whenever
issued, shall be dated as of the Record Date, show the date of
countersignature, and on their face shall entitle the holders thereof to
purchase such number of one one-thousandths of a share of Preferred Stock as
shall be set forth therein at the price set forth therein (such exercise price
per one one-thousandth of a share, the “Purchase Price”), but the amount
and type of securities purchasable upon exercise of each Right and the Purchase
Price thereof shall be subject to adjustment as provided herein.


 


(b)                                  Any
Rights Certificate issued pursuant to Section 3(d) or Section 22
hereof that represents Rights beneficially owned by:  (i) an Acquiring Person or any Associate or Affiliate of an Acquiring
Person; (ii) a transferee of an Acquiring Person (or of any such Associate
or Affiliate) who becomes a transferee after the Acquiring Person becomes such;
or (iii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the Acquiring Person to
holders of equity interests in such Acquiring Person or to any Person with whom
such Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer which a
majority of the Directors has determined is part of an agreement, arrangement or
understanding which has as a primary purpose or effect avoidance of
Section 7(e) hereof and any Rights Certificate issued pursuant to
Section 6 or Section 11 hereof upon transfer, exchange, replacement
or adjustment of any other


 


8

















 


Rights Certificate
referred to in this sentence, shall contain (to the extent feasible) the
following legend:


 


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


 


The Company shall
instruct the Rights Agent in writing of the Rights which should be so legended
and shall supply the Rights Agent with such legended Rights Certificates.


 


Section 5.                                          Countersignature and Registration.


 


(a)                                   The
Rights Certificates shall be executed on behalf of the Company by its Chief
Executive Officer, President, Chief Financial Officer or General Counsel and a
Secretary or Assistant Secretary either manually or by facsimile signature.  The Rights Certificates 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 shall have signed any of the Rights Certificates shall cease
to be such officer of the Company before countersignature by the Rights Agent
and issuance and delivery by the Company, such Rights Certificates,
nevertheless, may be countersigned by the Rights Agent, and issued and
delivered by the Company with the same force and effect as though the person who
signed such Rights Certificates had not ceased to be such officer of the
Company; and any Rights Certificate may be signed on behalf of the Company by
any person who, at the actual date of the execution of such Rights Certificate,
shall be a proper officer of the Company to sign such Rights Certificate,
although at the date of the execution of this Rights Agreement any such person
was not such an officer.


 


(b)                                  Following
the Distribution Date, the Rights Agent will keep or cause to be kept, at its
principal office or at offices designated as the appropriate place for
surrender of Rights Certificates upon exercise or transfer, books for
registration and transfer of the Rights Certificates issued hereunder.  Such books shall show the names and
addresses of the respective holders of the Rights Certificates, the number of
Rights evidenced on its face by each of the Rights Certificates and the date of
each of the Rights Certificates.


 


9

















 


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


 


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


 


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


 


10

















 


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


 


(a)                                   Subject
to Section 7(e) hereof, the registered holder of any Rights Certificate
may exercise the Rights evidenced thereby (except as otherwise provided herein
including, without limitation, the restrictions on exercisability set forth in
Section 9(c), Section 11(a)(iii) and Section 23(a) hereof) in
whole or in part at any time after the Distribution Date upon surrender of the
Rights Certificate, with the form of election to purchase and the certificate
on the reverse side thereof duly and properly executed, to the Rights Agent at
the office of the Rights Agent designated for such purpose, together with
payment of the Purchase Price for each one one-thousandth of a share of
Preferred Stock (or other securities, cash or other assets, as the case may be)
as to which the Rights are exercised, at or prior to the earlier of
(i) the close of business on January 28, 2014 (the “Final
Expiration Date”), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof, or (iii) the time at which such Rights
are exchanged (the “Exchange Date”) as provided in Section 24
hereof (the earliest of (i), (ii) and (iii) being herein referred to as the “Expiration
Date”).


 


(b)                                  Each
Right shall entitle the registered holder thereof to purchase one
one-thousandth of a share of Preferred Stock, and the Purchase Price for each
one one-thousandth of a share of Preferred Stock pursuant to the exercise of a
Right shall initially be $20, and shall be subject to adjustment from time to
time as provided in Sections 11 and 13 hereof and shall be payable in lawful
money of the United States of America in accordance with paragraph (c) below.


 


(c)                                   Upon
receipt of a Rights Certificate representing exercisable Rights, with the form
of election to purchase and the certificate duly and properly executed,
accompanied by payment, with respect to each Right so exercised, of the
Purchase Price per one one-thousandth of a share of Preferred Stock (or Common
Stock, other securities, cash or other assets, as the case may be) to be
purchased and an amount equal to any applicable transfer tax or governmental
charge in cash, or by certified check or cashier’s check payable to the order
of the Company, the Rights Agent shall, subject to Section 18(k) hereof,
thereupon promptly (i) (A) requisition from any transfer agent of the
shares of Preferred Stock (or make available, if the Rights Agent is the
transfer agent) certificates for the total number of one one-thousandths of a
share of Preferred Stock to be purchased and the Company hereby irrevocably
authorizes its transfer agent to comply with all such requests, or (B) if
the Company shall have elected to deposit the total number of shares of
Preferred Stock issuable upon exercise of the Rights hereunder with a
depositary agent, requisition from the depositary agent depositary receipts
representing such number of one one-thousandths of a share of Preferred Stock
as are to be purchased (in which case certificates for the shares of Preferred
Stock represented by such receipts shall be deposited by the transfer agent
with the depositary agent) and the Company will direct the depositary to comply
with such


 


11

















 


request,
(ii) requisition from the Company the amount of cash, if any, 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 Rights Certificate, registered in such name or names as may be designated by
such holder and (iv) after receipt thereof, promptly deliver such cash, if
any, to or upon the order of the registered holder of such Rights
Certificate.  In the event that the
Company is obligated to issue other securities (including Common Stock) of the
Company, pay cash and/or distribute other property pursuant to
Section 11(a) hereof, the Company will make all arrangements necessary so
that such securities, cash and/or other property are available for distribution
by the Rights Agent, if and when appropriate.


 


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


 


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


 


12

















 


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


 


Section 8.                                          Cancellation of Rights
Certificates.


 


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


 


Section 9.                                          Reservation and Availability of Capital
Stock.


 


(a)                                   The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued shares of Preferred Stock (and
following the occurrence of a Triggering Event, out of its authorized and
unissued shares of Common Stock and/or other securities or out of its
authorized and issued shares held in its treasury), the number of shares of
Preferred Stock (and, following the occurrence of a Triggering Event, shares of
Common Stock and/or other securities) that, as provided in this Agreement,
including Section 11(a)(iii) hereof, will be sufficient to permit the
exercise in full of all outstanding Rights.


 


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


 


(c)                                   The
Company shall use its best efforts to (i) file, as soon as practicable
following the earliest date after the first occurrence of a Section 11(a)(ii)


 


13

















 


Event on which the
consideration to be delivered by the Company upon exercise of the Rights has
been determined in accordance with this Agreement, or as soon as is required by
law following the Distribution Date, as the case may be, a registration
statement under the Securities Act with respect to the securities purchasable
upon exercise of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as practicable after such
filing, and (iii) cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the Securities Act)
until the earlier of (A) the date as of which the Rights are no longer exercisable
for such securities, and (B) the Expiration Date.  The Company will also take such action as
may be appropriate under, or to ensure compliance with, the securities or “blue
sky” laws of the various states in connection with the exercisability of the
Rights.  The Company may temporarily
suspend, for a period of time not to exceed ninety (90) days after the date set
forth in clause (i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such registration statement
and permit it to become effective.  In
addition, if the Company shall determine that a registration statement is
required following the Distribution Date, the Company may temporarily suspend
the exercisability of the Rights until such time as a registration statement
has been declared effective.  Upon any
suspension of exercisability of Rights referred to in this Section 9(c),
the Company shall issue a public announcement stating that the exercisability
of the Rights has been temporarily suspended, as well as a public announcement
at such time as the suspension is no longer in effect, in each case with
simultaneous written notice to the Rights Agent.  Notwithstanding any provision of this Agreement to the contrary,
the Rights shall not be exercisable and shall be null and void so long as held
by a holder in any jurisdiction where the requisite qualification to the
issuance to such holder, or the exercise by such holder, of the Rights in such
jurisdiction shall not have been obtained or be obtainable, or the exercise
thereof shall not be permitted under applicable law or a registration statement
shall not have been declared effective. 
The Rights Agent may assume that any Right exercised is permitted to be
exercised under applicable law and shall have no liability for acting in
reliance upon such assumption.


 


(d)                                  The
Company covenants and agrees that it will take all such action as may be
necessary to ensure that all one one-thousandths of a share of Preferred Stock
(and, following the occurrence of a Triggering Event, Common Stock and/or other
securities) delivered upon exercise of Rights shall, at the time of delivery of
the certificates for such shares (subject to payment of the Purchase Price), be
duly and validly authorized and issued and fully paid and non-assessable.


 


(e)                                   The
Company further covenants and agrees that it will pay when due and payable any
and all federal and state transfer taxes and charges which may be payable in
respect of the issuance or delivery of the Rights Certificates or of any
certificates for a number of one one-thousandths of a share of Preferred Stock
(or Common Stock and/or other securities, as the case may be) upon the exercise
of Rights.  The Company shall not,
however, be required to pay any transfer tax or


 


14

















 


charge which may be
payable in respect of any transfer or delivery of Rights Certificates to a
Person other than, or the issuance or delivery of certificates for a number of
one one-thousandths of a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) in a name other than that of the registered
holder of the Rights Certificate evidencing Rights surrendered for exercise or
to issue or deliver any certificates for a number of one one-thousandths of a
share of Preferred Stock (or Common Stock and/or other securities, as the case
may be) in a name other than that of the registered holder upon the exercise of
any Rights until any such tax or charge shall have been paid (any such tax or charge
being payable by the holder of such Rights Certificate at the time of
surrender) or until it has been established to the Company’s satisfaction that
no such tax or charge is due.


 


Section 10.                                   Preferred Stock Record Date.


 


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


 


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


 


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


 


15

















 


(a)(i)  In
the event the Company shall at any time after the date of this Agreement (A)
declare a dividend on the Preferred Stock payable in shares of Preferred Stock,
(B) subdivide the outstanding Preferred Stock, (C) combine the
outstanding Preferred Stock into a smaller number of shares or (D) issue any
shares of its capital stock in a reclassification of the Preferred Stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation), except as otherwise
provided in this Section 11(a) and Section 7(e) hereof, the Purchase
Price in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification, and the
number and kind of shares of Preferred Stock or the number and kind of shares
of capital stock issuable on such date, as the case may be, shall be
proportionately adjusted so that the holder of any Right exercised after such
time shall be entitled to receive, upon payment of the aggregate adjusted
Purchase Price then in effect necessary to exercise a Right in full, the
aggregate number and kind of shares of Preferred Stock or the number and kind
of shares of capital stock, as the case may be, which, if such Right had been
exercised immediately prior to such date and at a time when the Preferred Stock
(or other capital stock, as the case may be) transfer books of the Company were
open, such holder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination, or
reclassification; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company issuable upon
exercise of one Right.  If an event
occurs which would require an adjustment under both this Section 11(a)(i)
and Section 11(a)(ii) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 11(a)(ii) hereof.


 


(ii)                                  Subject
to Sections 23 and 24 of this Agreement, in the event that any Person
(other than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or any Person
organized, appointed or established by the Company for or pursuant to the terms
of any such plan), alone or together with its Affiliates and Associates, shall,
at any time after the Rights Dividend Declaration Date, become an Acquiring
Person, unless the event causing such Person to become an Acquiring Person is a
transaction set forth in Section 13(a) hereof, proper provision shall be
made so that promptly following the Redemption Period (as defined in
Section 23(a)), each holder of a Right (except as provided below and in
Section 7(e) hereof) shall thereafter have the right to receive, upon exercise
thereof and payment of an amount equal to the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of a number of one
one-thousandths of a share of Preferred Stock, such number of shares of Voting
Common Stock of the Company as shall equal the result obtained by
(x) multiplying the then current Purchase Price by the then number of one
one-thousandths of a share of Preferred Stock for which a Right was or would
have been exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event, whether or not such Right was then exercisable,
and (y) dividing that product


 


16

















 


(which, following such
first occurrence, shall thereafter be referred to as the “Purchase Price”
for each Right and for all purposes of this Agreement except to the extent set
forth in Section 13 hereof) by 50% of the current market price per share
of Voting Common Stock (determined pursuant to Section 11(d) hereof) on
the date of such first occurrence (such number of shares, the “Adjustment
Shares”).


 


(iii)                               The
Company may at its option substitute for a share of Voting Common Stock
issuable upon the exercise of Rights in accordance with the foregoing
subparagraph (ii) such number or fractions of shares of Preferred Stock having
an aggregate market value equal to the current per share market price of a
share of Voting Common Stock.  In the
event that the number of shares of Voting Common Stock which is authorized by
the Company’s Amended and Restated Certificate of Incorporation but not
outstanding, or reserved for issuance for purposes other than upon exercise of
the Rights, is not sufficient to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii), the Board shall, to the extent
permitted by applicable law and by any agreements or instruments then in effect
to which the Company is a party, (A) determine the excess of (1) the
value of the Adjustment Shares issuable upon the exercise of a Right (the “Current
Value”) over (2) the Purchase Price (such excess, the “Spread”),
and (B) with respect to each Right (subject to Section 7(e) hereof),
make adequate provision to substitute for some or all of the Adjustment Shares,
upon exercise of a Right and payment of the applicable Purchase Price,
(1) cash, (2) a reduction in the Purchase Price, (3) Voting
Common Stock or other equity securities of the Company (including, without
limitation, shares, or units of shares, of Preferred Stock which the Board has
deemed to have the same value as shares of Voting Common Stock) (such shares of
equity securities being herein called “common stock equivalents”),
(4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having an aggregate value equal to the Current
Value, where such aggregate value has been determined by the Board based upon
the advice of an investment banking firm selected by the Board; provided,
however, if the Company shall not have made adequate provision to
deliver value pursuant to clause (B) above within thirty (30) days
following the later of (x) the first occurrence of a
Section 11(a)(ii) Event and (y) the date on which the Company’s right of
redemption pursuant to Section 23(a) expires (the later of (x) and (y)
being referred to herein as the “Section 11(a)(ii) Trigger Date”),
then the Company shall be obligated to deliver, upon the surrender for exercise
of a Right and without requiring payment of the Purchase Price, shares of
Voting Common Stock (to the extent available) and then, if necessary, cash,
which shares and/or cash have an aggregate value equal to the Spread.


 


If, upon the
occurrence of a Section 11(a)(ii) Event, the Board shall determine in good
faith that it is likely that sufficient additional shares of Voting Common
Stock could be authorized for issuance upon exercise in full of the Rights,
then if the Board so elects, the thirty (30) day period set forth above may be
extended to the extent necessary, but not more than ninety (90) days after the


 


17

















 


Section 11(a)(ii)
Trigger Date, in order that the Company may seek stockholder approval for the
authorization of such additional shares (such period, as it may be extended,
the “Substitution Period”).  To
the extent that action is to be taken pursuant to the preceding provisions of
this Section 11(a)(iii), the Company (x) shall provide, subject to
Section 7(e) hereof, that such action shall apply uniformly to all
outstanding Rights, and (y) may suspend the exercisability of the Rights
until the expiration of the Substitution Period in order to seek any
authorization of additional shares and/or to decide the appropriate form of
distribution to be made pursuant to the first sentence of this
Section 11(a)(iii) and to determine the value thereof.  In the event of any such suspension, the
Company shall issue a public announcement stating that the exercisability of
the Rights has been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect.  For purposes of this Section 11(a)(iii), the value of the
Voting Common Stock shall be the current market price (as determined pursuant
to Section 11(d) hereof) per share of the Voting Common Stock on the
Section 11(a)(ii) Trigger Date and the value of any “common stock
equivalent” shall be deemed to have the same value as the Voting Common Stock
on such date.  The Board may, but shall
not be required to, establish procedures to allocate the right to receive
shares of Voting Common Stock upon the exercise of the Rights among holders of
Rights pursuant to this Section 11(a)(iii).


 


(b)                                 In
case the Company shall fix a record date for the issuance of rights, options or
warrants to all holders of Preferred Stock entitling them (for a period expiring
within forty-five (45) calendar days after such record date) to subscribe for
or purchase Preferred Stock (or shares having the same rights, privileges and
preferences as the shares of Preferred Stock (“equivalent preferred stock”)
or securities convertible into Preferred Stock at a price per share of
Preferred Stock or per share of “equivalent preferred stock” (or having a
conversion price per share of Preferred Stock, if a security convertible into
Preferred Stock) less than the current per share market price of the Preferred
Stock (as defined in Section 11(d) hereof) on such record date, the
Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of shares of
Preferred Stock outstanding on such record date, plus the number of shares of
Preferred Stock which the aggregate offering price of the total number of
shares of Preferred Stock and/or equivalent preferred stock so to be offered
(and/or the aggregate initial conversion price of the convertible securities so
to be offered) would purchase at such current market price, and the denominator
of which shall be the number of shares of Preferred Stock outstanding on such
record date, plus the number of additional shares of Preferred Stock and/or
equivalent preferred stock 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


 


18

















 


a consideration part or
all of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board, whose
determination shall be described in a statement filed with the Rights Agent and
shall be conclusive for all purposes. 
Shares of Preferred Stock owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of any such
computation.  Such adjustment shall be
made successively whenever such a record date is fixed; and in the event that
such rights or warrants are not so issued, the Purchase Price shall be adjusted
to be the Purchase Price which would then be in effect if such record date had
not been fixed.


 


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


 


(d)                                 (i) For
the purpose of any computation hereunder, the “current market price” of
the Common Stock on any date shall be deemed to be the average of the daily
closing prices per share of such Common Stock for the 30 consecutive Trading
Days (as such term is hereinafter defined) immediately prior to but not
including such date; provided, however, that in the event that
the current market price of the Common Stock is determined during a period
following the announcement by the issuer of such Common Stock of (i) a
dividend or distribution on such Common Stock payable in shares of such Common
Stock or securities convertible into such Common Stock (other than the Rights),
or (ii) any subdivision, combination or reclassification of such Common
Stock, and prior to the expiration of


 


19

















 


the requisite thirty (30)
Trading Day period, as set forth above, after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision, combination
or reclassification, then, and in each such case, the “current market price”
shall be appropriately adjusted to take into account ex-dividend trading.  The closing price for each day shall be the
last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the shares of Common Stock are not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the shares of Common Stock
are listed or admitted to trading or, if the shares of Common Stock are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotations System (“NASDAQ”) or
such other system then in use, or, if on any such date the shares of Common
Stock are not quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker making a market in
the shares of Common Stock selected by the Board.


 


If on any such
date no market maker is making a market in the Common Stock, the fair value of
such shares on such date as determined in good faith by the Board shall be
used.  The term “Trading Day” shall mean
a day on which the principal national securities exchange on which the shares
of Common Stock are listed or admitted to trading is open for the transaction
of business, or, if the shares of Common Stock are not listed or admitted to
trading on any national securities exchange, the term “Trading Day”
shall mean a Monday, Tuesday, Wednesday, Thursday or Friday on which banking or
trust institutions in the State of New York are not authorized or obligated by
law or executive order to close.  If the
Common Stock is not publicly held or not listed or traded, “current market
price” shall mean the fair value per share as determined in good faith by the
Board, whose determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes.


 


(ii)                                  For
the purpose of any computation hereunder, the “current market price” per
share of Preferred Stock shall be determined in the same manner as set forth
above for the Common Stock in clause (i) of this Section 11(d) (other
than the last sentence thereof).  If the
current market price per share of Preferred Stock cannot be determined in the
manner provided above or if the Preferred Stock is not publicly held or listed
or traded in a manner described in clause (i) of this Section 11(d),
the “current market price” per share of Preferred Stock shall be conclusively
deemed to be an amount equal to 1,000 (as such number may be appropriately
adjusted for such events as stock splits, stock dividends and


 


20

















 


recapitalizations with
respect to the Voting Common Stock occurring after the date of this Agreement)
multiplied by the current market price per share of the Voting Common
Stock.  If neither the Voting Common
Stock nor the Preferred Stock is publicly held or so listed or traded, “current
market price” per share of the Preferred Stock shall mean the fair value per
share as determined in good faith by the Board, whose determination shall be
described in a statement filed with the Rights Agent and shall be conclusive
for all purposes.  For all purposes of
this Agreement, the “current market price” of one one-thousandth of a share of
Preferred Stock shall be equal to the “current market price” of one share of
Preferred Stock divided by 1,000.


 


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


 


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


 


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


 


(h)                                 Unless
the Company shall have exercised its election as provided in
Section 11(i), upon each adjustment of the Purchase Price as a result of
the calculations made in Sections 11(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Purchase Price, that number of one
one-thousandths of a share of Preferred Stock (calculated to the nearest
one-millionth) obtained by (i) multiplying (x) the number of one
one-thousandths of a share covered by a Right


 


21

















 


immediately prior to this
adjustment by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the product so obtained by
the Purchase Price in effect immediately after such adjustment of the Purchase
Price.


 


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


 


(j)                                     Irrespective
of any adjustment or change in the Purchase Price or the number of one
one-thousandths of a share of Preferred Stock issuable upon the exercise of the
Rights, the Rights Certificates theretofore and thereafter issued may continue
to express the Purchase Price per one one-thousandth of a share and the number
of one one-thousandths of a share which were expressed in the initial Rights
Certificates issued hereunder.


 


(k)                                  Before
taking any action that would cause an adjustment reducing the Purchase Price
below the then-par value, if any, of the number of one


 


22

















 


one-thousandths of a
share of Preferred Stock issuable upon exercise of the Rights, the Company
shall take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid
and non-assessable such number of one one-thousandths of a share of Preferred
Stock at such adjusted Purchase Price.


 


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


 


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


 


(n)                                 The
Company covenants and agrees that it shall not, at any time after the
Distribution Date, (i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), (ii) merge with or into any other Person (other
than a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), or (iii) sell or transfer (or permit any Subsidiary
to sell or transfer), in one transaction, or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of its Subsidiaries in one
or more transactions each of which complies with Section 11(o) hereof), if
(x) at the time of or immediately after such consolidation, merger or sale
there are any rights, warrants or other instruments or securities outstanding
or agreements in effect which would substantially diminish or otherwise
eliminate the benefits intended to be afforded by the Rights or (y) prior to,
simultaneously with or


 


23

















 


immediately after such
consolidation, merger or sale, the stockholders of the Person who constitutes,
or would constitute, the “Principal Party” for purposes of Section 13(a)
hereof shall have received a distribution of Rights previously owned by such
Person or any of its Affiliates and Associates.


 


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


 


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


 


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


 


Whenever an
adjustment is made as provided in Sections 11 or 13 hereof, the Company
shall (a) promptly prepare a certificate setting forth such adjustment, and a
brief statement of the facts and computations accounting for such adjustment,
(b) promptly file with the Rights Agent and with each transfer agent for the
Preferred Stock and the Common Stock a copy of such certificate and (c) mail or
deliver a brief summary thereof to each holder of a Rights Certificate (or, if
prior to the Distribution Date, to each holder of a certificate representing
shares of Common Stock) in accordance with Section 25 hereof.  The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein contained and
shall not be deemed to have knowledge of any adjustment unless and until it
shall have received such certificate.


 


24

















 


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


 


(a)                                  Subject
to Section 23 of this Agreement, in the event that, following the Stock
Acquisition Date, directly or indirectly,


 


(x)                                   the
Company shall consolidate with, or merge with and into, any other Person (other
than a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof),


 


(y)                                 any
Person (other than a Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof) shall consolidate with, or merge with or into,
the Company, and the Company shall be the continuing or surviving corporation
of such consolidation or merger and, in connection with such consolidation or
merger, all or part of the outstanding shares of Common Stock shall be changed
into or exchanged for stock or other securities of any other Person or cash or
any other property, or


 


(z)                                   the
Company shall sell or otherwise transfer (or one or more of its Subsidiaries
shall sell or otherwise transfer), in one transaction or a series of related
transactions, assets or earning power aggregating more than 50% of the assets
or earning power of the Company and its Subsidiaries (taken as a whole) to any
Person or Persons (other than the Company or any Subsidiary of the Company in
one or more transactions each of which complies with Section 11(o)
hereof),


 


then, and in each such case, proper provision shall be made so that:


 


(i)                                     each
holder of a Right, except as provided in Section 7(e) hereof, shall, upon
the expiration of the Redemption Period (as defined in Section 23(a)),
thereafter have the right to receive, upon the exercise thereof at the then
current Purchase Price in accordance with the terms of this Agreement, such
number of validly authorized and issued, fully paid, non-assessable and freely
tradable shares of Common Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall be equal to the result obtained by


 


(1)                                  multiplying
the then current Purchase Price by the number of one one-thousandths of a share
of Preferred Stock for which a Right was exercisable immediately prior to the
first occurrence of a Section 13 Event (or, if a Section 11(a)(ii)
Event has occurred prior to the first occurrence of a Section 13 Event,
multiplying the number of one one-thousandths of a share of


 


25

















 


Preferred Stock for which
a Right was exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event by the Purchase Price in effect immediately prior
to such first  occurrence), and


 


(2)                                  dividing
that product (which product, following the first occurrence of a
Section 13 Event, shall be referred to as the “Purchase Price” for
each Right and for all purposes of this Agreement) by 50% of the current market
price per share of the shares of Common Stock of such Principal Party on the
date of consummation of such Section 13 Event (or the fair market value on
such date of other securities or property of the Principal Party, as provided
for herein);


 


(ii)                                  such
Principal Party shall thereafter be liable for, and shall assume, by virtue of
such Section 13 Event, all the obligations and duties of the Company
pursuant to this Agreement;


 


(iii)                               the term “Company” shall
thereafter be deemed to refer to such Principal Party, it being specifically
intended that the provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section 13 Event;


 


(iv)                              such
Principal Party shall take such steps (including, but not limited to, the
reservation of a sufficient number of shares of its Common Stock) in connection
with the consummation of any such transaction as may be necessary to assure
that the provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights; and


 


(v)                                 the
provisions of Section 11(a)(ii) hereof shall be of no effect following the
first occurrence of any Section 13 Event.


 


(b)                                 “Principal
Party” shall mean


 


(i)                                     in
the case of any transaction described in clause (x) or (y) of the first
sentence of Section 13(a), (A) the Person (including the Company as
successor thereto or as the surviving corporation) that is the issuer of any
securities into which shares of Common Stock of the Company are converted in
such merger or consolidation, or, if there is more than one such issuer, the
issuer of Common Stock that has the highest aggregate current market price
(determined pursuant to Section 11(d) hereof) and (B) if no securities or
other equity interests are so issued, the Person (including the Company as
successor thereto


 


26

















 


or as the surviving entity) that is the other
constituent party to such merger or consolidation, or, if there is more than
one such Person, the Person that is a constituent party to such merger or
consolidation, the Common Stock of which has the highest aggregate current
market price (determined pursuant to Section 11(d) hereof); and


 


(ii)                                  in
the case of any transaction described in clause (z) of the first sentence of
Section 13(a), the Person that is the party receiving the greatest portion
of the assets or earning power transferred pursuant to such transaction or
transactions, or, if each Person that is a party to such transaction or
transactions receives the same portion of the assets or earning power
transferred pursuant to such transaction or transactions or if the Person
receiving the largest portion of the assets or earning power cannot be
determined, whichever Person that has received assets or earning power pursuant
to such transaction or transactions, the Common Stock of which has the highest
aggregate current market price (determined pursuant to Section 11(d)
hereof);


 


provided,
however, that in any such case, (1) if the Common Stock of such Person
is not at such time and has not been continuously over the preceding twelve
(12) month period registered under Section 12 of the Exchange Act, and
such Person is a direct or indirect Subsidiary of another Person the Common
Stock of which is and has been so registered, “Principal Party” shall refer to
such other Person; (2) if the Common Stock of such Person is not and has
not been so registered and such Person is a Subsidiary, directly or indirectly,
of more than one Person, the Common Stocks of two or more of which are and have
been so registered, “Principal Party” shall refer to whichever of such Persons
is the issuer of the Common Stock having the greatest aggregate market value;
and (3) if the Common Stock of such Person is not and has not been so
registered and such Person is owned, directly or indirectly, by a joint venture
formed by two or more Persons that are not owned, directly or indirectly, by
the same Person, the rules set forth in (1) and (2) above shall apply to each
of the chains of ownership having an interest in such joint venture as if such
party were a Subsidiary of both or all of such joint venturers, and the
Principal Parties in each such chain shall bear the obligations set forth in
this Section 13 in the same ratio as their direct or indirect interests in
such Person bear to the total of such interests.


 


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


 


27

















 


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


 


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


 


(iii)                               use its best efforts to
obtain any necessary regulatory approvals in respect of the securities
purchasable upon exercise of outstanding Rights; and


 


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


 


(d)                                 In
case the Principal Party that is to be a party to a transaction referred to in
this Section 13 has at the time of such transaction, or immediately
following such transaction will have, a provision in any of its authorized
securities or in its certificate of incorporation or by-laws or other
instrument governing its affairs, or any other agreements or arrangements,
which provision would have the effect of (i) causing such Principal Party to
issue, in connection with, or as a consequence of, the consummation of a
transaction referred to in this Section 13, shares of Common Stock of such
Principal Party at less than the then current market price per share
(determined pursuant to Section 11(d) hereof) or securities exercisable
for, or convertible into, Common Stock of such Principal Party at less than
such then current market price (other than to holders of Rights pursuant to
this Section 13); (ii) providing for any special payment, tax or similar
provisions in connection with the issuance of the Common Stock of such
Principal Party pursuant to the provisions of this Section 13; or (iii)
otherwise eliminating or substantially diminishing the benefits intended to be
afforded by the Rights in connection with,


 


28

















 


or as a consequence of,
the consummation of a transaction referred to in this Section 13; then, in
such event, the Company shall not consummate any such transaction unless prior
thereto the Company and such Principal Party shall have executed and delivered
to the Rights Agent a supplemental agreement providing that the provision in
question of such Principal Party shall have been cancelled, waived or amended,
or that the authorized securities shall be redeemed, so that the applicable
provision will have no effect in connection with, or as a consequence of, the
consummation of the proposed transaction.


 


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


 


Section 14.                                   Fractional Rights and Fractional Shares.


 


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


 


29

















 


the national securities
exchange on which the Rights are listed or admitted to trading.


 


(b)                                 The
Company shall not be required to issue fractions of shares of Preferred Stock
(other than fractions which are integral multiples of one one-thousandth of a
share of Preferred Stock) upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Preferred Stock (other than
fractions which are integral multiples of one one-thousandth of a share of
Preferred Stock).  In lieu of fractional
shares of Preferred Stock that are not integral multiples of one one-thousandth
of a share of Preferred Stock, the Company may pay to the registered holders of
Rights Certificates at the time such Rights are exercised as herein provided an
amount in cash equal to the same fraction of the current market value of one
one-thousandth of a share of Preferred Stock. 
For purposes of this Section 14(b), the current market value of one
one-thousandth of a share of Preferred Stock shall be one one-thousandth of the
closing price of a share of Preferred Stock (as determined pursuant to
Section 11(d)(ii) hereof) for the Trading Day immediately prior to the
date of such exercise.


 


(c)                                  Following
the occurrence of one of the events specified in Section 11 giving rise to
the right to receive Voting Common Stock, common stock equivalents or other
securities upon the exercise of a Right, the Company shall not be required to
issue fractions of shares of Voting Common Stock, common stock equivalents or
other securities upon exercise of the Rights or to distribute certificates
which evidence fractional shares of Voting Common Stock, common stock
equivalents or other securities.  In
lieu of fractional shares of Voting Common Stock, common stock equivalents or
other securities the Company may pay to the registered holders of Rights
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market value of one
(1) share of Voting Common Stock, common stock equivalents or other
securities.  For purposes of this
Section 14(c), the current market value of one share of Voting Common
Stock shall be the closing price of one share of Voting Common Stock (as
determined pursuant to Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of such exercise.


 


(d)                                 The
holder of a Right by the acceptance of the Rights expressly waives his right to
receive any fractional Rights or any fractional shares upon exercise of a
Right, except as permitted by this Section 14.


 


Section 15.                                   Rights of Action.


 


All rights of
action in respect of this Agreement, except the rights of action vested in the
Rights Agent pursuant to Section 18 and Section 19 hereof, are vested
in the respective registered holders of the Rights Certificates (and, prior to
the Distribution Date, the registered holders of the Common Stock); and any


 


30

















 


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


 


Section 16.                                   Agreement of Rights Holders.


 


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


 


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


 


(b)                                 after
the Distribution Date, the Rights Certificates are transferable only on the
registry books of the Rights Agent if surrendered at the office of the Rights
Agent designated for such purposes, duly endorsed or accompanied by a proper
instrument of transfer and with the appropriate form of assignment and the
certificate contained therein duly completed and executed;


 


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


 


(d)                                 Notwithstanding
anything in this Agreement to the contrary, neither the Company nor the Rights
Agent shall have any liability to any holder of a Right or other Person as a
result of its inability to perform any of its obligations under this Agreement
by reason of any preliminary or permanent injunction or other order, decree, judgment
or ruling (whether interlocutory or final) issued by a


 


31

















 


court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any government authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company
must use its best efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.


 


Section 17.                                               Rights Certificate Holder Not Deemed a
Stockholder.


 


No holder, as
such, of any Rights Certificate shall be entitled to vote, receive dividends or
be deemed for any purpose the holder of the Preferred Stock or any other
securities of the Company which may at any time be issuable on the exercise of
the Rights represented thereby, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder of any Rights
Certificate, as such, any of the rights of a 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 hereof), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights
evidenced by such Rights Certificate shall have been exercised in accordance with
the provisions hereof.


 


Section 18.                                   Duties of Rights Agent.


 


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


 


(a)                                  The
Rights Agent may consult with legal counsel of its selection (who may be legal
counsel for the Company), and the advice or opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent, and the
Rights Agent shall incur no liability, for or in respect of any action taken or
omitted by it in good faith and in accordance with such advice or 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 (including, without
limitation, the identity of any Acquiring Person and the determination of
“current market price”) be proved or established by the Company prior to taking
or suffering or omitting to take any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a certificate signed
by any person believed by the Rights Agent to be any one of the Chief Executive
Officer, President, Chief Financial Officer or General Counsel of the Company
and


 


32

















 


delivered to the Rights
Agent; and such certificate shall be full authorization to the Rights Agent,
and the Rights Agent shall incur no liability, for or in respect of any action
taken, omitted or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.


 


(c)                                  The
Rights Agent shall be liable hereunder only for its own gross negligence, bad
faith, or willful misconduct.


 


(d)                                 The
Rights Agent shall not be liable for or by reason of any of the statements of
fact or recitals contained in this Agreement or in the Rights Certificates
(except as to 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 is serving as an administrative agent and shall not be under any
responsibility in respect of, the validity of any provision of this Agreement
or the execution and delivery of this Agreement (except the due execution
hereof by the Rights Agent) or in respect of the validity or execution of any
Rights Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or condition
contained in this Agreement or in any Rights Certificate; nor shall it be
responsible for any change in the exercisability of the Rights (including the
Rights becoming null and void pursuant to Section 7(e) hereof) or any
adjustment required under any of the provisions hereof or responsible for the
manner, method, or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with respect
to the exercise of Rights evidenced by Rights Certificates after the Rights
Agent’s actual receipt of notice of any such adjustment); nor shall it by any
act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock or shares of
Preferred Stock to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Common Stock or shares of Preferred
Stock will, when so issued, be validly authorized and issued, fully paid and
non-assessable, nor shall the Rights Agent be responsible for the legality of
the terms hereof in its capacity as an administrative agent.


 


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


 


(g)                                 The
Rights Agent is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder from any person believed by
the Rights Agent to be any one of the Chief Executive Officer, President, Chief
Financial Officer or General Counsel of the Company, and to apply


 


33

















 


to such officers for
advice or instructions in connection with its duties, and it shall not be
liable for any action taken, omitted to be taken or suffered to be taken by it
in good faith 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 by the Rights Agent under this
Agreement and the date on 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 or suffered
by, or omission of, the Rights Agent in accordance with a proposal included in
any such application on or after the date specified in such application (which
date shall not be less than five Business Days after the date any officer of
the Company actually receives such application, unless any such officer shall
have consented in writing to an earlier date) unless, prior to taking any such
action (or the effective date in the case of an omission), the Rights Agent
shall have received written instruction in response to such application
specifying the action to be taken, suffered or omitted.


 


(h)                                 The
Rights Agent and any stockholder, affiliate, 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 Person or legal entity.


 


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


 


(j)                                     No
provision of this Agreement shall require the Rights Agent to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder or in the exercise of its rights if there shall be
reasonable grounds for believing that repayment of such funds or adequate
indemnification against such risk or liability is not reasonably assured to it.


 


(k)                                  If,
with respect to any Rights Certificate surrendered to the Rights Agent for
exercise or transfer, the certificate attached to the form of assignment or
form of election to purchase, as the case may be, has either not been properly
completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to
such requested exercise of transfer without first consulting with the Company.


 


34

















 


(l)                                     The
Rights Agent undertakes only the express duties and obligations imposed on it
by this Agreement and no implied duties or obligations shall be read into this
Agreement against the Rights Agent.


 


(m)                               In
addition to the foregoing, the Rights Agent shall be protected and shall incur
no liability for, or in respect of, any action taken or omitted by it in
connection with its administration of this Agreement if such acts or omissions
are in reliance upon (i) the proper execution of the certification concerning
beneficial ownership appended to the form of assignment and the form of
election to purchase attached to the Rights Certificate unless the Rights Agent
shall have actual knowledge that, as executed, such certification is untrue, or
(ii) the non-execution of such certification including, without limitation, any
refusal to honor any otherwise permissible assignment or election by reason of
such non-execution.


 


(n)                                 The
Company agrees to give the Rights Agent prompt written notice of any event or
ownership which would prohibit the exercise or transfer of the Rights
Certificates.


 


Section 19.                                         Compensation and Indemnification of
the Rights Agent.


 


(a)                                  The
Company agrees to pay to the Rights Agent such compensation as shall be agreed
in writing between the Company and the Rights Agent for all services rendered
by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and expenses and other disbursements incurred in the
administration and execution of this Agreement and the exercise and performance
of its duties hereunder.  The Company
also agrees to indemnify the Rights Agent, its officers, employees, agents and
directors for, and to hold each of them harmless against, any loss, liability,
or expense, incurred without gross negligence, bad faith or willful misconduct
on the part of the Rights Agent, for any action taken, suffered or omitted by
the Rights Agent or such other indemnified party in connection with the
acceptance and administration of this Agreement and the exercise of its duties
hereunder, including but not limited to the costs and expenses of defending
against any claim (whether asserted by the Company, a holder of Rights, or any
other Person) of liability in the premises. 
The indemnity provided for hereunder shall survive the expiration of the
Rights and the termination of this Agreement.


 


(b)                                 The
Rights Agent shall be authorized and protected and shall incur no liability for
or in respect of any action taken, suffered or omitted by it in connection with
its administration of this Agreement or the exercise of its duties hereunder in
reliance upon any Rights Certificate or certificate for Common Stock or for
other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate,


 


35

















 


statement, or other paper
or document believed by it to be genuine and to be signed and executed by the
proper person or persons.


 


(c)                                  Anything
in this Agreement to the contrary notwithstanding, in no event shall the Rights
Agent be liable for special, indirect or consequential loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Rights
Agent has been advised of the likelihood of such loss or damage and regardless
of the form of the action unless such loss or damage results from the gross
negligence, bad faith or willful misconduct of the Rights Agent.


 


Section 20.                                               Merger or Consolidation or Change of Name
of Rights Agent.


 


(a)                                  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 shall
be a party, or any Person succeeding to all or substantially all 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, however, that such Person would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21
hereof.  In case at the time such
successor Rights Agent shall succeed to the agency created by this Agreement,
any of the Rights Certificates shall have been countersigned but not delivered,
any such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates so countersigned;
and in case at that time any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Rights Certificates
shall have the full force provided in the Rights Certificates and in this
Agreement.


 


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


 


36

















 


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 thirty (30) days’ notice in writing mailed to
the Company.  The Company may remove the
Rights Agent or any successor Rights Agent upon thirty (30) days’ notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of the Common Stock and Preferred Stock by
registered or certified mail, and to the holders of the Rights Certificates by
first-class mail.  If the Rights Agent
shall resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent.  If the Company shall fail to make such
appointment within a period of thirty (30) days after giving notice of such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder of a
Rights Certificate (who shall, with such notice, submit his Rights Certificate
for inspection by the Company), then the Rights Agent or the registered holder
of any Rights Certificate may, at the expense of the Company, 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 (i) a Person organized
and doing business under the laws of the United States or the States of
Delaware or New York  (or of any other state of the United
States so long as such Person is authorized to do business in the States of
Delaware or New York), in good standing, having an office in the States of
Delaware or New York which is authorized under such laws to exercise corporate
trust power and is subject to supervision or examination by federal or state
authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $50 million or (ii) an affiliate
of such a 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 and each transfer agent
of the Common Stock and the Preferred Stock, and mail a notice thereof in
writing to the registered holders of the Rights Certificates.  Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.


 


Section 22.                                   Issuance of New Rights Certificates.


 


Notwithstanding
any of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights


 


37

















 


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


 


Section 23.                                   Redemption.


 


(a)                                  The
Board may, at its option, at any time during the period commencing on the
Rights Dividend Declaration Date and ending on the earlier of (i) the
Close of Business on the tenth day following the Stock Acquisition Date (or, if
the Stock Acquisition Date shall have occurred prior to the Record Date, the
Close of Business on the tenth day following the Record Date), or (ii) the
Close of Business on the Final Expiration Date, (the “Redemption Period”)
cause the Company to redeem all but not less than all the then outstanding
Rights at a redemption price of $.001 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such redemption price being
hereinafter referred to as the “Redemption Price”); provided, however,
that, if the Board authorizes redemption of the Rights on or after the time a
Person becomes an Acquiring Person, then such authorization shall require the
concurrence of two-thirds of the Directors. 
If, following the occurrence of a Stock Acquisition Date and following
the expiration of the Company’s right of redemption hereunder (i) a Person who
is an Acquiring Person shall have transferred or otherwise disposed of a number
of shares of Common Stock in one transaction or series of transactions, not
directly or indirectly involving the Company or any of its Subsidiaries, which
did not result in the occurrence of a Triggering Event such that such Person is
thereafter a Beneficial Owner of 10% or less of the outstanding shares of
Common Stock, (ii) there are no other Persons, immediately following the
occurrence of the event described in clause (i), who are Acquiring Persons, and
(iii) the Board, by a vote of two-thirds of the Board, shall so approve, then
the Company’s right of redemption shall be reinstated and thereafter


 


38

















 


be subject to the
provisions of this Section 23. 
Notwithstanding anything contained in this Agreement to the contrary,
the Rights shall not be exercisable after the first occurrence of a
Section 11(a)(ii) Event or a Section 13 Event until such time as the
Company’s right of redemption hereunder has expired.  The redemption of the Rights by the Board pursuant to this
paragraph (a) may be made effective at such time, on such basis and with such
conditions as the Board in its sole discretion may establish.  The Company may, at its option, pay the
Redemption Price in cash, shares of Common Stock (based on the current market
price of the Common Stock at the time of redemption) or any other form of
consideration deemed appropriate by the Board.


 


(b)                                 Immediately
upon the action of the Board ordering the redemption of the Rights, evidence of
which shall have been filed with the Rights Agent, and without any further
action and without any notice, the right to exercise the Rights will terminate
and the only right thereafter of the holders of Rights shall be to receive the
Redemption Price.  Promptly after the
action of the Board ordering the redemption of the Rights, the Company shall
give notice of such redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the Transfer Agent for the
Common Stock; provided, however, that the failure to give, or any
defect in, any such notice shall not affect the validity of such
redemption.  Any notice which is mailed
in the manner herein provided shall be deemed given, whether or not the holder
receives the notice.  Each such notice
of redemption will state the method by which the payment of the Redemption
Price will be made.


 


Section 24.                                   Exchange.


 


(a)                                  The
Board may, at its option, at any time after any Person becomes an Acquiring
Person, exchange all or part of the then outstanding and exercisable Rights
(which shall not include Rights that have become null and void pursuant to the
provisions of Section 7(e) hereof) for shares of Voting Common Stock at an
exchange ratio of one share of Voting Common Stock per each outstanding Right,
as appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio being
hereinafter referred to as the “Exchange Ratio”).  Notwithstanding the foregoing, the Board
shall not be empowered to effect such exchange at any time after any Person
(other than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or any such Subsidiary, or any entity holding Common Stock
for or pursuant to the terms of any such plan), together with all Affiliates
and Associates of such Person, becomes the Beneficial Owner of 50% or more of
the Common Stock then outstanding.  The
exchange of the Rights by the


 


39

















 


Board may be made
effective at such time, on such basis and with such conditions as the Board in
its sole discretion may establish.


 


(b)                                 Immediately
upon the action of the Board ordering the exchange of any Rights pursuant to
subsection (a) of this Section 24 and without any further action and
without any notice, the right to exercise such Rights shall terminate and the
only right thereafter of a holder of such Rights shall be to receive that
number of shares of Voting Common Stock equal to the number of such Rights held
by such holder multiplied by the Exchange Ratio.  The Company shall promptly give public notice of any such
exchange; provided, however, that the failure to give, or any
defect in, such notice shall not affect the validity of such exchange.  The Company promptly shall mail a notice of
any such exchange to all of the holders of such Rights at their last addresses
as they appear upon the registry books of the Rights Agent.  Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice.  Each such notice of exchange
will state the method by which the exchange of Voting Common Stock for Rights
will be effected and, in the event of any partial exchange, the number of
Rights which will be exchanged.  Any
partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become void pursuant to the provisions of
Section 7(e) hereof) held by each holder of Rights.


 


(c)                                  In any exchange pursuant to this Section 24,
the Company, at its option, may substitute common stock equivalents (as defined
in Section 11(a)(iii)) for shares of Voting Common Stock exchangeable for
Rights, at the initial rate of one common stock equivalent for each share of
Voting Common Stock, as
appropriately adjusted to reflect adjustments in dividend, liquidation and
voting rights of common stock equivalents pursuant to the terms thereof, so
that each common stock equivalent delivered in lieu of each share of Voting
Common Stock shall have essentially the same dividend, liquidation and voting
rights as one share of Voting Common Stock.


 


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


 


(e)                                  The
Company shall not be required to issue fractions of shares of Voting Common
Stock or to distribute certificates which evidence fractional shares of Voting
Common Stock.  In lieu of such
fractional shares, the Company shall pay to the registered holders of the Right
Certificates with regard to which such fractional shares would otherwise be
issuable an amount in cash equal to the same fraction of the current market
value of a whole share of Voting Common Stock. 
For the purposes of this paragraph (e), the current market value of
a whole share of Voting Common Stock shall be the closing price of a share of
Voting Common Stock


 


40

















 


(as determined pursuant
to the second and the following sentences of Section 11(d) hereof) for the
Trading Day immediately prior to the date of exchange pursuant to this
Section 24.


 


Section 25.                                   Notice of Certain Events.


 


(a)                                  In
case the Company shall propose, at any time after the Distribution Date
(i) to pay any dividend payable in stock of any class to the holders of
Preferred Stock or to make any other distribution to the holders of Preferred
Stock (other than a regular quarterly cash dividend out of earnings or retained
earnings) or (ii) to offer to the holders of Preferred Stock rights or
warrants to subscribe for or to purchase any additional shares of Preferred
Stock or shares of stock of any class or any other securities, rights or
options, or (iii) to effect any reclassification of its Preferred Stock
(other than a reclassification involving only the subdivision of outstanding
Preferred Stock), or (iv) to effect any consolidation or merger into or
with, or to effect any sale or other transfer (or to permit one or more of its
subsidiaries to effect any sale or other transfer), in one or more
transactions, of more than 50% of the assets or earning power of the Company
and its subsidiaries (taken as a whole) to, any other Person, or (v) to
effect the liquidation, dissolution or winding up of the Company, then, in each
such case, the Company shall give to each holder of a Rights Certificate, to
the extent feasible and in accordance with Section 26 hereof, a notice of
such proposed action, which shall specify the record date for the purposes of
such stock dividend, 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 Preferred Stock, if any such date is to
be fixed, and such notice shall be so given in the case of any action covered
by clause (i) or (ii) above at least twenty (20) days prior to the record date
for determining holders of the shares of Preferred Stock for purposes of such
action and in the case of any such other action, at least twenty (20) days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the shares of Preferred Stock whichever
shall be the earlier.


 


(b)                                 In
case any Section 11(a)(ii) Event shall occur, then, in any such case,
(i) the Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate and to the Rights Agent, to the extent feasible
and in accordance with Section 26 hereof, a notice of the occurrence of
such event which shall specify the event and the consequences of the event to
holders of Rights under Section 11(a)(ii) hereof, and (ii) all
references in the preceding paragraph to Preferred Stock shall be deemed
thereafter to refer to Common Stock and/or, if appropriate other securities.


 


41

















 


Section 26.                                   Notices.


 


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


 


VIA NET.WORKS, Inc.


St. Giles House


25 Kings Road


Reading RG1 3AR


United Kingdom


 


Attention:                   Matt Nydell


Senior Vice
President, General Counsel and


Secretary


 


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


 


Continental Stock
Transfer & Trust Company


17 Battery Place


New York, NY 10004


 


Attention:                   Compliance
Department


 


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


 


Section 27.                                   Supplements and Amendments.


 


Prior to the
Distribution Date and subject to the last sentence of this Section 27, the
Company may in its sole and absolute discretion, and the Rights Agent shall, if
the Company so directs, supplement or amend any provision of this Agreement in
any respect without the approval of any holders of certificates representing
shares of Common Stock; provided, however, that the right of


 


42

















 


the Board to extend the
Distribution Date shall not require any amendment or supplement hereunder.  From and after the Distribution Date and
subject to the last sentence of this Section 27, the Company may in its
sole and absolute discretion, and the Rights Agent shall at any time and from
time to time, if the Company so directs, supplement or amend this Agreement
without the approval of any holders of Rights Certificates in order (i) to
cure any ambiguity, (ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provisions herein,
(iii) to shorten or lengthen any time period hereunder or (iv) to
change or supplement the provisions hereunder in any manner which the Company may
deem necessary or desirable and which shall not adversely affect the interests
of the holders of Rights Certificates (other than an Acquiring Person or an
Affiliate or Associate of any such Person); provided, however,
that this Agreement may not be supplemented or amended (A) to lengthen a
time period relating to when the Rights may be redeemed at such time as the
Rights are not then redeemable, or (B) to lengthen any other time period
unless such lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the holders of Rights (other
than an Acquiring Person or an Affiliate or Associate of any such Person).  Upon
the delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the
terms of this Section 27, the Rights Agent shall execute such supplement
or amendment.  Notwithstanding any other
provision hereof, the Rights Agent’s consent must be obtained regarding any
amendment or supplement pursuant to this Section 27 which alters the
Rights Agent’s rights or duties. 
Notwithstanding anything contained in this Agreement to the contrary, no
supplement or amendment shall be made which changes the Redemption Price.


 


Section 28.                                   Successors.


 


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


 


Section 29.                                     Determinations and Actions by the Board,
etc.


 


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


 


43

















 


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


 


Section 30.                                   Benefits of this Agreement.


 


Nothing in this
Agreement shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Rights Certificates (and, prior
to the Distribution Date, the registered holders of the 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 Rights Certificates (and, prior to the
Distribution Date, registered holders of Common Stock).  Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the
interests of the holders of shares of Common Stock.


 


Section 31.                                   Severability.


 


If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated; provided, however, that
notwithstanding anything in this Agreement to the contrary, if any such term,
provision, covenant or restriction is held by such court or authority to be
invalid, void or unenforceable and the Board determines in its good faith
judgment that severing the invalid language from this Agreement would
materially and adversely affect the purpose or effect of this Agreement, the
right of redemption set forth in Section 23 hereof shall be reinstated and
shall not expire until the Close of Business on the tenth day following the
date of such determination by the Board.


 


Section 32.                                   Governing Law.


 


This Agreement,
each Right and each Rights Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of


 


44

















 


Delaware and for all
purposes shall be governed by and construed in accordance with the laws of such
State; provided, however, that the rights and obligations of the
Rights Agent shall be governed by and construed in accordance with the laws of
the State of New York.


 


Section 33.                                   Counterparts.


 


This Agreement may
be executed in any number of counterparts. 
It shall not be necessary that the signature of or on behalf of each
party appears on each counterpart, but it shall be sufficient that the
signature of or on behalf of each party appears on one or more of the
counterparts.  All counterparts shall
collectively constitute a single agreement. 
It shall not be necessary in any proof of this Agreement to produce or
account for more than a number of counterparts containing the respective
signatures of or on behalf of all of the parties.


 


Section 34.                                   Descriptive Headings.


 


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


 


45

















 


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


 


	
   

  	
  VIA NET.WORKS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rhett Williams

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Rhett Williams

  
	
   

  	
   

  	
  Title: 

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Continental Stock Transfer & Trust

  Company,

  
	
   

  	
  as Rights Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Roger Bernhammer

  	
   

  
	
   

  	
   

  	
  Name:

  	
  R. Bernhammer

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


46

















 


Exhibit
A


 


CERTIFICATE
OF DESIGNATION, PREFERENCES AND


RIGHTS
OF


SERIES A
JUNIOR PARTICIPATING PREFERRED STOCK


OF


VIA
NET.WORKS, INC.


 


 


Pursuant to Section 151 of the General Corporation Law

of the State of Delaware


 


I, Rhett S. Williams, Chief Executive Officer of VIA
NET.WORKS, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware, in accordance with the provisions of
Section 103 thereof, DO HEREBY CERTIFY:


 


That pursuant to
the authority conferred upon the Board of Directors by the Amended and Restated
Certificate of Incorporation of the said Corporation, the said Board of
Directors on January 29, 2004 adopted the following resolution creating a
series of 125,000 shares of Preferred Stock designated as Series A Junior
Participating Preferred Stock:


 


RESOLVED, that
pursuant to the authority granted to and vested in the Board of Directors of
this Corporation (the “Board”) in accordance with the provisions of its Amended
and Restated Certificate of Incorporation, a series of Preferred Stock of the
Corporation be and it hereby is created, and that the designation and amount
thereof and the voting rights or powers, preferences and relative,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof are as follows:


 


Section 1.                    Designation and Amount.  The shares of such series, par value $.001
per share, shall be designated as “Series A Junior Participating Preferred
Stock” and the number of shares constituting such series shall be 125,000.  Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Junior Participating Preferred
Stock to a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding
securities issued by the Corporation convertible into Series A Junior
Participating Preferred Stock.


 

















 


Section 2.                    Dividends and Distributions.


 


(A)                              Subject
to the prior and superior rights of the holders of any shares of any series of
Preferred Stock ranking prior and superior to the shares of Series A Junior
Participating Preferred Stock with respect to dividends, the holders of shares
of Series A Junior Participating Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the 15th
day of January, April, July and October, in each year (each such date
being referred to herein as a “Quarterly Dividend Payment Date”), commencing on
the first Quarterly Dividend Payment Date after first issuance of a share or
fraction of a share of Series A Junior Participating Preferred Stock, in an amount
per share (rounded to the nearest cent) equal to the greater of (a) $10.00
or (b) subject to the provision for adjustment hereinafter set forth, 1,000
times the aggregate per share amount of all cash dividends, and 1,000 times the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of common stock, par
value $.001 per share, of the Corporation (the “Common Stock”), or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock, since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a share
of Series A Junior Participating Preferred Stock.  In the event the Corporation shall at any time after
January 29, 2004 (the “Rights Declaration Date”) (i) declare or pay
any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such
case the amount to which holders of shares of Series A Junior Participating
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.


 


(B)                                The
Corporation shall declare a dividend or distribution on the Series A Junior
Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $10.00 per share
on the Series A Junior Participating Preferred


 


2

















 


Stock shall nevertheless
be payable on such subsequent Quarterly Dividend Payment Date.


 


(C)                                Dividends
shall begin to accrue and be cumulative on outstanding shares of Series A
Junior Participating Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares of Series A Junior
Participating Preferred Stock, unless the date of issue of such shares is prior
to the record date set for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date of issue of
such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares
of Series A Junior Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which event such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. 
Accrued but unpaid dividends shall not bear interest.  Dividends paid on the shares of Series A
Junior Participating Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding.  The Board of Directors may
fix a record date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than 50 days
prior to the date fixed for the payment thereof.


 


Section 3.                    Voting Rights.  The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:


 


(A)                              Subject
to the provision for adjustment hereinafter set forth, each share of Series A
Junior Participating Preferred Stock shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of the stockholders of the
Corporation.  In the event the
Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each such
case the number of votes per share to which holders of shares of Series A
Junior Participating Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.


 


(B)                                Except
as otherwise provided by law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of shares of


 


3

















 


Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of the
Corporation.


 


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


 


Section 4.                    Certain Restrictions.


 


(A)                              Whenever
dividends or distributions payable on the Series A Junior Participating
Preferred Stock as provided in Section 2 are not paid, thereafter and
until such dividends and distributions, whether or not declared, on shares of
Series A Junior Participating Preferred Stock outstanding shall have been paid
in full, the Corporation shall not:


 


(i)                                     declare
or pay dividends on, or make any other distributions on, or redeem or purchase
or otherwise acquire for consideration any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock; or


 


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


 


(iii)                               redeem
or purchase or otherwise acquire for consideration shares of any stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Junior Participating Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Junior Participating Preferred Stock; or


 


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


 


4

















 


shares upon such terms as
the Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.


 


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


 


Section 5.                    Reacquired Shares.  Any shares of Series A Junior Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and canceled promptly after the acquisition
thereof.  All such shares shall upon
their cancellation become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.


 


Section 6.                    Liquidation, Dissolution or Winding Up.


 


(A)                              Upon
any liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior Participating Preferred Stock
shall have received $20,000 per share, plus any unpaid dividends and
distributions payable thereon, whether or not declared, to the date of such
payment (the “Series A Liquidation Preference”).  Following the payment of the full amount of the Series A
Liquidation Preference, no additional distributions shall be made to the holders
of Series A Junior Participating Preferred Stock unless, prior thereto, the
holders of shares of Common Stock shall have received an amount per share (the
“Common Adjustment”) equal to the quotient obtained by dividing (i) the
Series A Liquidation Preference by (ii) 1,000 (as appropriately adjusted as set
forth in subparagraph (C) below to reflect such events as stock splits,
stock dividends and recapitalizations with respect to the Common Stock) (such
number in clause (ii) immediately above being referred to as the “Adjustment
Number”).  Following the payment of the
full amount of the Series A Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Junior Participating Preferred
Stock and Common Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the


 


5

















 


remaining assets to be
distributed in the ratio of the Adjustment Number to one (1) with respect to
such Preferred Stock and Common Stock, on a per share basis, respectively.


 


(B)                                In
the event, however, that there are not sufficient assets available to permit
payment in full of the Series A Liquidation Preference and the liquidation
preferences of all other series of preferred stock, if any, which rank on a
parity with the Series A Junior Participating Preferred Stock, then such
remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences.  In the event, however, that there are
sufficient assets available to permit payment in full of the Common Adjustment,
then such remaining assets shall be distributed ratably to the holders of
Common Stock.


 


(C)                                In
the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each such
case the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.


 


Section 7.                    Consolidation, Merger, etc.  In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case the shares of Series A Junior
Participating Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or
exchanged.  In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of
shares of Series A Junior Participating Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the 


 


6

















 


number of shares of
Common Stock that were outstanding immediately prior to such event.


 


Section 8.                    No
Redemption.  The Series A Junior
Participating Preferred Stock shall not be redeemable.


 


Section 9.                    Ranking.  Notwithstanding anything contained herein to
the contrary, the Series A Junior Participating Preferred Stock shall rank
junior to all other series of the Corporation’s Preferred Stock as to voting
rights, the payment of dividends and the distribution of assets in liquidation,
unless the terms of any such series shall provide otherwise.


 


Section 10.              Amendment.
The Amended and Restated Certificate of Incorporation of the Corporation shall
not be further amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Junior Participating
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of at least a majority of the outstanding shares of Series A Junior
Participating Preferred Stock, voting separately as a class.


 


Section 11.              Fractional Shares.  Series A Junior Participating Preferred
Stock may be issued in fractions of a share which shall entitle the holders, in
proportion to such holders fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Junior Participating Preferred Stock.


 


*     *     *    
*     *


 


7

















 


IN WITNESS
WHEREOF, I have executed and subscribed this Certificate and do affirm the
foregoing as true under the penalties of perjury this 30th day of
January 2004.


 


 


	
   

  	
  VIA NET.WORKS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Rhett S. Williams

  Chief Executive Officer

  	
   

  



 


8

















 


Exhibit
B


 


 


SUMMARY OF RIGHTS TO PURCHASE

SERIES A JUNIOR PARTICIPATING PREFERRED STOCK


 


 


The Board of
Directors of VIA NET.WORKS, Inc., a Delaware Corporation (the “Company”), has
declared a dividend distribution of one right (“Right”) for each outstanding
share of Voting Common Stock, par value $.001 per share (“Voting Common
Stock”), and Non-Voting Common Stock, par value $.001 per share (“Non-Voting
Common Stock” and, collectively with Voting Common Stock, “Common Stock”) of
the Company.  The distribution is
payable to stockholders of record on February 12, 2004.  Each Right, when exercisable, entitles the
registered holder to purchase from the Company one one-thousandth of a share of
Series A Junior Participating Preferred Stock (“Preferred Stock”) at a price of
$20 per one one-thousandth share (the “Purchase Price”), subject to
adjustment.  The description and terms
of the Rights are set forth in a Rights Agreement (the “Rights Agreement”)
between the Company and Continental Stock Transfer & Trust Company, as
Rights Agent (the “Rights Agent”).


 


Initially, the
Rights will be attached to all certificates representing shares of Common Stock
then outstanding, and no separate certificates evidencing the Rights will be
distributed.  The Rights will separate
from the Common Stock and a distribution of Rights Certificates (as defined
below) will occur upon the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
“Acquiring Person”) has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of Common Stock (the “Stock
Acquisition Date”) or (ii) 10 business days (or such later date as the
Board of Directors of the Company may determine) following the commencement of,
or the first public announcement of the intention to commence, a tender offer
or exchange offer the consummation of which would result in the beneficial
ownership by a person of 15% or more of the outstanding shares of Common Stock
(the earlier of such dates being called the “Distribution Date”).


 


Until the
Distribution Date, (i) the Rights will be evidenced by the Common Stock
certificates, and will be transferred with and only with the Common Stock
certificates, (ii) new Common Stock certificates issued after
February 12, 2004 upon transfer or new issuance of the Common Stock
will contain a notation incorporating the Rights Agreement by reference, and
(iii) the surrender for transfer of any certificates for Common Stock outstanding
will also constitute the transfer of the Rights associated with the Common
Stock represented by such certificate.


 


The Rights are not
exercisable until the Distribution Date and will


 

















 


expire at the close of
business on January 28, 2014, unless earlier redeemed or exchanged by the
Company as described below.


 


As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights (“Rights Certificates”) will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date and,
thereafter, the separate Rights Certificates alone will evidence the
Rights.  Except as otherwise determined
by the Board of Directors of the Company, only shares of Common Stock issued
prior to the Distribution Date will be issued with Rights.


 


In the event that
a Person becomes the beneficial owner of 15% or more of the then outstanding
shares of Common Stock, each holder of a Right will, after the end of a
redemption period referred to below, have the right to exercise the Right by
purchasing, for an amount equal to the Purchase Price, Voting Common Stock (or,
in certain circumstances, cash, property or other securities of the Company)
having a value equal to two times such amount. 
Notwithstanding any of the foregoing, following the occurrence of the
events set forth in this paragraph, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially owned by
any Acquiring Person will be null and void. 
However, Rights are not exercisable following the occurrence of the
events set forth above until such time as the Rights are no longer redeemable
by the Company as set forth below.


 


For example, at a
Purchase Price of $20 per Right, each Right not owned by an Acquiring Person
(or by certain related parties) following an event set forth in the preceding
paragraph would entitle its holder to purchase $40 worth of Voting Common Stock
(or other consideration, as noted above) for $20. 


 


In the event that,
at any time following the Stock Acquisition Date, (i) the Company is
acquired in a merger or other business combination transaction, or (ii) 50% or
more of the Company’s assets or earning power is sold or transferred, each
holder of a Right (except Rights which previously have been voided as set forth
above) shall, after the expiration of the redemption period referred to below,
have the right to receive, upon exercise, common stock of the acquiring company
having a value equal to two times the Purchase Price of the Right (e.g.,
common stock of the acquiring company having a value of $40 for the $20
Purchase Price).


 


At any time after
a person or group of affiliated or associated persons becomes an Acquiring
Person and prior to the acquisition by such person or group of 50% or more of
the outstanding Common Stock, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by such person or group which have
become void), in whole or in part, at an exchange ratio of one share


 


2

















 


of Voting Common Stock
per each outstanding Right or, in certain circumstances, other equity
securities of the Company which are deemed by the Board of Directors of the
Company to have the same value as shares of Voting Common Stock, subject to
adjustment.


 


In general, the
Board of Directors of the Company, may cause the Company to redeem the Rights
in whole, but not in part, at any time during the period commencing on
January 29, 2004 and ending on the tenth day following the Stock
Acquisition Date (the “Redemption Period”) at a price of $.001 per Right
(payable in cash, Common Stock or other consideration deemed appropriate by the
Board of Directors of the Company). 
Under certain circumstances set forth in the Rights Agreement, the
decision to redeem the Rights will require the concurrence of the two-thirds of
Directors.  After the Redemption Period
has expired, the Company’s right of redemption may be reinstated if an
Acquiring Person reduces his beneficial ownership to 10% or less of the
outstanding shares of Common Stock in a transaction or series of transactions
not involving the Company and there are no other Acquiring Persons.  Immediately upon the action of the Board of
Directors of the Company ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will be to receive the
$.001 redemption price.


 


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


 


*    *    *


 


A copy of the
Rights Agreement has been filed with the Securities and Exchange Commission as
an Exhibit to a Current Report on Form 8-K. 
A copy of the Rights Agreement is available free of charge from the
Company.  This summary description of
the Rights does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement.


 


3

















 


Exhibit C


 


 


[Form of Rights Certificate]


 


 


	
  Certificate No. R-

  	
   

  	
  Rights

  



 


NOT EXERCISABLE
AFTER JANUARY 28, 2014 OR EARLIER IF REDEEMED OR EXCHANGED BY THE
COMPANY.  THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.001 PER RIGHT ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT.  UNDER
CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF ANY SUCH PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID.  THE RIGHTS SHALL NOT BE
EXERCISABLE, AND SHALL BE VOID SO LONG AS HELD, BY A HOLDER IN ANY JURISDICTION
WHERE THE REQUISITE QUALIFICATION TO THE ISSUANCE TO SUCH HOLDER, OR THE
EXERCISE BY SUCH HOLDER, OF THE RIGHTS IN SUCH JURISDICTION SHALL NOT HAVE BEEN
OBTAINED OR BE OBTAINABLE.  [THE RIGHTS
REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT).
ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF
SUCH AGREEMENT.] */


 












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


 

















 


Rights Certificate


 


 


This certifies
that                                          ,
or its registered assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of January 29,
2004, as the same may be amended from time to time (the “Rights Agreement”),
between VIA NET.WORKS, Inc., a Delaware corporation (the “Company”), and
Continental Stock Transfer & Trust Company, a New York banking corporation,
as Rights Agent (the “Rights Agent”), to purchase from the Company at any time
prior to January 28, 2014 at the office or offices of the Rights Agent
designated for such purpose, or its successors as Rights Agent, one
one-thousandth of a fully paid, non-assessable share of Series A Junior
Participating Preferred Stock, par value $.001 per share (the “Preferred
Stock”) of the Company, at a purchase price of $20 per one one-thousandth share
(the “Purchase Price”), upon presentation and surrender of this Rights
Certificate with the Form of Election to Purchase and related Certificate duly
executed.  The number of Rights
evidenced by this Rights Certificate (and the number of shares which may be
purchased upon exercise thereof) set forth above, and the Purchase Price per
share set forth above, are the number and Purchase Price as of
              ,
based on the Preferred Stock as constituted at such date, and are subject to
adjustment upon the happening of certain events as provided in the Rights
Agreement.  Capitalized terms used and
not defined herein shall have the meanings specified in the Rights Agreement.


 


From and after the
occurrence of an event described in Section 11(a)(ii) of the Rights
Agreement, the Rights evidenced by this Rights Certificate beneficially owned
by (i) an Acquiring Person or an Affiliate or Associate of any such Person (as
such terms are defined in the Rights Agreement), (ii) a transferee of any such
Acquiring Person, Associate or Affiliate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who, concurrently with
or after such transfer, became an Acquiring Person or an Affiliate or Associate
of an Acquiring Person shall become null and void and no holder hereof shall
have any right with respect to such Rights from and after the occurrence of
such Section 11(a)(ii) Event.


 


The Rights
evidenced by this Rights Certificate shall not be exercisable, and shall be
void so long as held, by a holder in any jurisdiction where the requisite
qualification to the issuance to such holder, or the exercise by such holder,
of the Rights in such jurisdiction shall not have been obtained or be
obtainable.


 


As provided in the
Rights Agreement, the Purchase Price and the number and kind of shares of
Preferred Stock or other securities, which may be purchased upon the exercise
of the Rights evidenced by this Rights Certificate are


 


2

















 


subject to modification
and adjustment upon the happening of certain events, including Triggering
Events (as such term is defined in the Rights Agreement).


 


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


 


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


 


Subject to the
provisions of the Rights Agreement, the Rights evidenced by this Certificate
may be redeemed by the Company at its option at a redemption price of $.001 per
Right at any time prior to the earlier of the close of business on (i) the
tenth day following the Stock Acquisition Date, and (ii) the Final
Expiration Date (as defined in the Rights Agreement).  Under certain circumstances set forth in the Rights Agreement,
the decision to redeem shall require the concurrence of two-thirds of the
Directors.  After the expiration of the
redemption period, the Company’s right of redemption may be reinstated if the
Acquiring Person reduces its beneficial ownership to 10% or less of the
outstanding shares of Common Stock in a transaction or series of transactions
not involving the Company, and such reinstatement is approved by the Company’s
Board of Directors.


 


At any time after
a person becomes an Acquiring Person and prior to the acquisition by such
person of 50% or more of the outstanding Common Stock, the Board of Directors
of the Company may exchange the Rights (other than Rights owned by such
Acquiring Person which have become void), in whole or in part, at an exchange
ratio of one share of Voting Common Stock per each outstanding Right or, in
certain circumstances, other equity securities of the Company which are deemed
by the Company’s Board of Directors to have the same value as shares of Voting
Common Stock, subject to adjustment.


 


3

















 


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


 


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


 


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


 


4

















 


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


 


	
  Dated as of

  	
   

  	
  ,

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VIA NET.WORKS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Countersigned:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated as of

  	
   

  	
  ,

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CONTINENTAL STOCK
  TRANSFER & TRUST COMPANY,

  as rights agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  	
   

  	
   

  
												



 


5

















 


[Form of Reverse Side of Rights Certificate]


 


 


FORM OF ASSIGNMENT


 


 


(To be executed by the
registered holder if

such holder desires to transfer the

Rights Certificate.)


 


 


	
  FOR VALUE RECEIVED

  
	
  hereby sells, assigns
  and transfers unto

  
	
   

  
	
  (Please print name and
  address of transferee)

  
	
   

  
	
   

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

  
	
   

  
	
   

  
	
  Dated:

  	
   

  	
  ,

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Guaranteed:

  	
   

  	
   

  	
   

  



 

















 


Certificate


 


The undersigned
hereby certifies by checking the appropriate boxes that:


 


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


 


 


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


 


 


	
  Dated:

  	
   

  	
  ,

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signature Guaranteed:

  	
   

  	
   

  	
   

  	
   

  



 

















 


NOTICE


 


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


 

















 


FORM OF ELECTION TO PURCHASE


 


(To be executed if the
registered holder


desires to exercise
Rights represented


by the Rights
Certificate.)


 


 


To:


 


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


 


 


(Please print name and
address)


 


 


Please insert social
security

or other identifying number:


 


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


 


 


(Please print name and address)


 


 


Please insert social
security

or other identifying number:


 


	
  Dated:

  	
   

  	
  ,

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signature Guaranteed:

  	
   

  	
   

  	
   

  



 

















 


Certificate


 


The undersigned
hereby certifies by checking the appropriate boxes that:


 


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


 


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


 


 


	
  Dated:

  	
   

  	
  ,

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Signature

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signature Guaranteed:

  	
   

  	
   

  	
   

  	
   

  



 

















 


NOTICE


 


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