evfmexhibit4132520revise






                                                                                                            Exhibit 4.1                                                                                                                                                                     RIGHTS AGREEMENT          Dated as of March 24, 2020                  Between        EVOFEM BIOSCIENCES, INC.                    And   PHILADELPHIA STOCK TRANSFER, INC.               As Rights Agent                  





 






                      TABLE OF CONTENTS                                                                                                       Page                 Section 1.  Certain Definitions ..................................................................................1  Section 2.  Appointment of Rights Agent ..................................................................7  Section 3.  Issuance of Rights Certificates .................................................................8  Section 4.  Form of Rights Certificates .................................................................... 10  Section 5.  Countersignature and Registration ......................................................... 11  Section 6.  Transfer, Split Up, Combination and Exchange of Rights              Certificates; Mutilated, Destroyed, Lost or Stolen Rights              Certificates ............................................................................................ 11  Section 7.  Exercise of Rights; Purchase Price; Expiration Date of Rights ............... 12  Section 8.  Cancellation and Destruction of Rights Certificates ............................... 15  Section 9.  Reservation and Availability of Capital Stock ........................................ 15  Section 10. Preferred Stock Record Date.................................................................. 17  Section 11. Adjustment of Purchase Price, Number and Kind of Shares or              Number of Rights .................................................................................. 17  Section 12. Certificate of Adjusted Purchase Price or Number of Shares .................. 25  Section 13. Consolidation, Merger or Sale or Transfer of Assets, Cash Flow or              Earning Power ....................................................................................... 26  Section 14. Fractional Rights and Fractional Shares ................................................. 30  Section 15. Rights of Action .................................................................................... 31  Section 16. Agreement of Rights Holders ................................................................ 32  Section 17. Rights Certificate Holder Not Deemed a Stockholder ............................ 32  Section 18. Concerning the Rights Agent ................................................................. 33  Section 19. Merger or Consolidation or Change of Name of Rights Agent ............... 33  Section 20. Duties of Rights Agent .......................................................................... 34  Section 21. Change of Rights Agent......................................................................... 36  Section 22. Issuance of New Rights Certificates....................................................... 37  Section 23. Redemption and Termination................................................................. 37  Section 24. Exchange ............................................................................................... 38  Section 25. Notice of Certain Events ........................................................................ 39  Section 26. Notices .................................................................................................. 41  Section 27. Supplements and Amendments .............................................................. 41                                   i                





 






                      TABLE OF CONTENTS                              (continued)                                                                    Page                 Section 28. Successors ............................................................................................. 42  Section 29. Determinations and Actions by the Board of Directors, etc .................... 42  Section 30. Benefits of this Agreement .................................................................... 42  Section 31. Severability ........................................................................................... 43  Section 32. Governing Law ...................................................................................... 43  Section 33. Counterparts .......................................................................................... 43  Section 34. Descriptive Headings ............................................................................. 43                 Exhibit A   Form of Rights Certificate  Exhibit B   Form of Summary of Rights  Exhibit C   Certificate of Designation                                                                                                ii                





 






                                 RIGHTS AGREEMENT          RIGHTS AGREEMENT, dated as of March 24, 2020 (the “Agreement”), between   Evofem Biosciences, Inc., a Delaware corporation (the “Company”), and Philadelphia Stock   Transfer, Inc., as rights agent (the “Rights Agent”).          WHEREAS, effective March 24, 2020 (the “Rights Dividend Declaration Date”), the   Board of Directors of the Company (the “Board of Directors”) (i) authorized and declared a   dividend of one right (“Right”) for each share of Common Stock, par value $0.0001 per share, of   the Company (the “Company Common Stock”) outstanding at the Close of Business on April 8,   2020 (the “Record Date”), and (ii) authorized the issuance of one Right (as such number may   hereinafter be adjusted pursuant hereto) for each share of Company Common Stock issued   between the Record Date and the earlier of the Distribution Date and the Expiration Date and, in   certain circumstances, for each share of Company Common Stock issued after the Distribution   Date but before the Expiration Date; and           WHEREAS, each Right initially represents the right to purchase, upon the terms and   subject to the conditions hereinafter set forth, one Unit of Series A Preferred Stock;          NOW, THEREFORE, in consideration of the premises and the mutual agreements herein   set forth, the parties hereby agree as follows:         Section 1.  Certain Definitions.  For purposes of this Agreement, the following terms  have the meanings indicated:                (a)   “Acquiring Person” shall mean any Person who or which, together with all   Affiliates and Associates of such Person, shall be the Beneficial Owner of 32% or more of the   shares of Company Common Stock then outstanding.  Notwithstanding the foregoing:                      (i)   an “Acquiring Person” shall not include:                            (A)   the Company;                            (B)   any Subsidiary of the Company;                            (C)   any employee benefit plan maintained by the Company or               any of its Subsidiaries;                            (D)   any trustee or fiduciary with respect to such employee               benefit plan acting in such capacity or a trustee or fiduciary holding shares of               Company Common Stock for the purpose of funding any such plan;                            (E)   any Person if:                                  (1)    the Board of Directors determines in good faith that                     such Person who would otherwise be an “Acquiring Person” became such                     inadvertently (including, without limitation, because (x) such Person was                     unaware that it beneficially owned a percentage of Company Common                                          1    





 






                     Stock that would otherwise cause such Person to be an “Acquiring                    Person” or (y) such Person was aware of the extent of its Beneficial                    Ownership of Company Common Stock but had no actual knowledge of                    the consequences of such Beneficial Ownership under this Agreement)                    and without any intention of changing or influencing control of the                    Company;                                (2)    such Person does not become the Beneficial Owner                    of any additional shares of Company Common Stock after such Person                    becomes aware that such Person would be an Acquiring Person (but for                    the operation of this clause (F)); and                                (3)    such Person as promptly as practicable (as                    determined in good faith by the Board of Directors) divested or divests                    itself of Beneficial Ownership of a sufficient number of shares of                    Company Common Stock so that such Person would no longer be an                    “Acquiring Person;”                or                           (F)   any Person who becomes the Beneficial Owner of 32% or              more of the then-outstanding shares of Company Common Stock as a result of the              acquisition of shares of Company Common Stock directly from the Company in              one or more transactions approved by the Board of Directors,          and                     (ii)  no Person shall be deemed an “Acquiring Person” as a result of the        acquisition of shares of Company Common Stock by the Company which, by reducing        the number of shares of Company Common Stock outstanding, increases the proportional        number of shares beneficially owned by such Person; provided, however, that if (x) a        Person would become an Acquiring Person (but for the operation of this subclause (ii)) as        a result of the acquisition of shares of Company Common Stock by the Company and        (y) after such share acquisition by the Company, such Person becomes the Beneficial        Owner of any additional shares of Company Common Stock (other than pursuant to the        grant or exercise of an option under a Company stock option plan or pursuant to a        dividend or distribution paid or made by the Company on the outstanding shares of        Company Common Stock or pursuant to a split or subdivision of the Company Common        Stock), then such Person shall be deemed an Acquiring Person unless, upon becoming the        Beneficial Owner of such additional shares, such Person is the Beneficial Owner of less        than 32% of the outstanding shares of Company Common Stock.   Each Person identified in subclauses (A), (B), (C) and (D) of this Section (1)(a)(i) is individually  an “Exempt Person” and collectively “Exempt Persons.”               (b)   “Affiliate” and “Associate” shall have the respective meanings ascribed to  such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange  Act of 1934, as amended (the “Exchange Act”), as in effect on the date hereof.                                         2   





 






               (c)   A Person shall be deemed the “Beneficial Owner” of, and shall be deemed  to have “Beneficial Ownership” of and 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 vote or dispose of or has “Beneficial        Ownership” of under Rule 13d-3 of the General Rules and Regulations under the        Exchange Act (the “Exchange Act Regulations”) as in effect on the date hereof, 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, to have        “Beneficial Ownership” of or to “beneficially own,” any securities under this        subparagraph (i) as a result of an agreement, arrangement or understanding to vote such        securities if such agreement, arrangement or understanding (A) arises solely from a        revocable proxy or consent given in response to a public proxy or consent solicitation        made pursuant to, and in accordance with, the applicable provisions of the Exchange Act        and the Exchange Act Regulations, and (B) is not reportable by such Person on        Schedule 13D under the Exchange Act (or any comparable or successor report);                     (ii)  which are beneficially owned, directly or indirectly, by any other        Person (or any Affiliate or Associate of such other Person) 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 or consent as described in the proviso to        subparagraph (i) of this paragraph (c)) or disposing of such securities;                      (iii) 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 or upon the satisfaction of        conditions) pursuant to any agreement, arrangement or understanding (whether or not in        writing) or upon the exercise of conversion rights, exchange rights, rights, warrants or        options, or otherwise;                      (iv)  which are beneficially owned, directly or indirectly, by any other        Person (or any Affiliate or Associate of such other Person) with which such Person (or        any of such Person’s Affiliates or Associates) knowingly acts (whether or not pursuant to        an express agreement, arrangement or understanding) at any time after the first public        announcement of the adoption of this Agreement, in concert or in parallel with such other        Person, or towards a common goal with such other Person, relating to changing or        influencing the control of the Company or in connection with or as a participant in any        transaction having that purpose or effect, where (i) each Person is conscious of the other        Person’s conduct and this awareness is an element in their decision-making processes and        (ii) at least one additional factor supports a determination by the Board of Directors that        such Persons intended to act in concert or in parallel, which such additional factors may        include, without limitation, exchanging information, attending meetings, conducting        discussions, or making or soliciting invitations to act in concert or in parallel; or                     (v)   in respect of which such Person or any of such Person’s Affiliates        or Associates has a Synthetic Long Position, if and only if such Person, together with any                                         3   





 






         of such Person’s Affiliates or Associates, is otherwise the “Beneficial Owner” (within the        meaning of subparagraphs (i) through (iv) of this paragraph (c)) of 1% or more of the        shares of Company Common Stock then outstanding;   provided, however, that under this paragraph (c) a Person shall not be deemed the “Beneficial  Owner” of, to have “Beneficial Ownership” of, or to “beneficially own,” any securities                           (A)   tendered pursuant to a tender or exchange offer made in              accordance with Exchange Act Regulations by such Person or any of such              Person’s Affiliates or Associates until such tendered securities are accepted for              purchase or exchange,                           (B)   that may be issued upon exercise of Rights at any time              prior to the occurrence of a Triggering Event, or                           (C)   that may be issued upon exercise of Rights from and after              the occurrence of a Triggering Event, which Rights were acquired by such Person              or any of such Person’s Affiliates or Associates prior to the Distribution Date or              pursuant to Section 3(c) 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; and   further provided, however, that:                     (x)   nothing in this paragraph (c) shall cause a Person engaged in        business as an underwriter of securities to be the “Beneficial Owner” of, to have        “Beneficial Ownership” 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,                     (y)   no decision reached, or action taken, by the Board of Directors or        any committee thereof shall cause any Person (or any Affiliate or Associate of such        Person) who is a member of the Board of Directors or such committee to be deemed, for        the purposes of this Agreement, to be a Beneficial Owner of any securities beneficially        owned by any other Person (or any Affiliate or Associate of such Person) who is a        member of the Board of Directors or any committee thereof solely by reason of such        membership of the Board of Directors or any committee thereof or participation in the        decisions or actions thereof on the part of either or both of such Persons, and                     (z)   no Person who is an officer, director or employee of an Exempt        Person shall be deemed, solely by reason of such Person’s status or authority as such, to        be the “Beneficial Owner” of, to have “Beneficial Ownership” of, or to “beneficially        own” any securities that are “beneficially owned” (as defined in this paragraph (c)),        including, without limitation, in a fiduciary capacity, by an Exempt Person or by any        other such officer, director or employee of an Exempt Person.                                          4   





 






               (d)   “Business Day” shall mean any day other than a Saturday, Sunday or a  day on which banking institutions in New York City, New York are authorized or obligated by  law or executive order to close.               (e)   “Close of Business” on any given date shall mean 5:00 P.M., New York  City, New York time, on such date; provided, however, that if such date is not a Business Day it  shall mean 5:00 P.M., New York City, New York time, on the next succeeding Business Day.               (f)   “Common Stock” of any Person other than the Company shall mean the  capital stock of such Person with the greatest voting power, or, if such Person shall have no  capital stock, the equity securities or other equity interest having power to control or direct the  management of such Person.               (g)   “Company” has the meaning given it in the first paragraph of this  Agreement, and also means a Principal Party to the extent provided in Section 13(a).               (h)   “Person” shall mean any individual, partnership, firm, limited liability  company, corporation, association, trust, unincorporated organization or other entity, as well as  any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act as in  effect on the date hereof.               (i)   “Preferred Stock” shall mean the Series A Preferred Stock, par value  $0.0001 per share, of the Company having the voting powers, designation, preferences and  relative, participating, optional or other special rights and qualifications, limitations and  restrictions described in the Certificate of Designation set forth as Exhibit C hereto and as  amended from time to time.               (j)   “Stock Acquisition Date” shall mean the first date of public announcement  (including, without limitation, the filing of any report, or any amendment to any report, pursuant  to Section 13(d) of the Exchange Act (or any comparable or successor report)) by the Company  or an Acquiring Person that an Acquiring Person has become such; provided, however, that if  such Person is determined not to have become an Acquiring Person pursuant to Section 1(a)  hereof, then no Stock Acquisition Date shall be deemed to have occurred.               (k)   “Subsidiary” shall mean, with reference to any Person, any other Person of  which an amount of voting securities or equity interests sufficient to elect at least a majority of  the directors or equivalent governing body of such other Person is beneficially owned, directly or  indirectly, by such Person, or any other Person otherwise controlled by such first-mentioned  Person.               (l)   “Synthetic Long Position” shall mean any option, warrant, convertible  security, stock appreciation right or other contractual right, whether or not presently exercisable,  which has an exercise or conversion privilege or a settlement payment or mechanism at a price  related to Common Stock or a value determined in whole or part with reference to, or derived in  whole or in part from, the market price or value of Common Stock, whether or not such right is  subject to settlement in whole or in part in Common Stock or conveys any voting rights, and  which increases in value as the value of Common Stock increases or which provides to the  holder of such right an opportunity, directly or indirectly, to profit or share in any profit derived                                         5   





 






   from any increase in the value of Common Stock, including, but not limited to, a long  convertible security, a long call option, and a short put option position, but shall not include:                (i)   rights of a pledgee to sell Common Stock under a bona fide pledge of                    Common Stock;               (ii)  rights of all holders of Common Stock to receive Common Stock pro rata,                    or obligations to dispose of Common Stock, as a result of a merger,                    exchange offer, or consolidation involving the Company;                (iii) rights or obligations to surrender Common Stock, or have Common Stock                    withheld, upon the receipt or exercise of a derivative security or the                    receipt or vesting of equity securities, in order to satisfy the exercise price                    or the tax withholding consequences of receipt, exercise or vesting;                (iv)  interests in broad-based index options, broad-based index futures, and                    broad-based publicly traded market baskets of stocks approved for trading                    by the appropriate federal governmental authority;               (v)   interests or rights to participate in employee benefit plans of the Company                    held by employees or former employees of the Company; or                (vi)  options granted to an underwriter in a registered public offering for the                    purpose of satisfying over-allotments in such offering.    provided, however, that any Person satisfying the requirements of Rule 13d-1(b)(1) of the  Exchange Act Regulations (other than a Person that so satisfies Rule 13d-1(b)(1) solely by  reason of Rule 13d-1(b)(1)(ii)(E)) shall not be deemed to beneficially own the notional amount  of any securities that underlie a Synthetic Long Position held by such Person as a hedge with  respect to a bona fide derivatives trade or position of such Person arising in the ordinary course  of such Person’s business as a derivatives dealer.   The shares of Common Stock in respect of which a Person has a Synthetic Long Position shall be  the notional or other number of shares of Common Stock specified in a filing by such Person or  any of such Person’s Affiliates or Associates with the Securities and Exchange Commission in  respect of which shares of Common Stock are the “subject security” or in the documentation  evidencing the Synthetic Long Position as being subject to be acquired upon the exercise or  settlement of the applicable right or as the basis upon which the value or settlement amount of  such right, or the opportunity of the holder of such right to profit or share in any profit, is to be  calculated in whole or in part or, if no such number of shares of Common Stock is specified in  any filing or documentation, as determined by the Board in good faith to be the number of shares  of Common Stock to which the Synthetic Long Position relates.               (m)   “Triggering Event” shall mean any Section 11(a)(ii) Event or any  Section 13 Event.               In addition, the following terms are defined in the Sections indicated below:                                         6   





 






                        Defined Term                         Section Number                      Adjustment Shares                    11(a)(ii)                      Agreement                            Preamble                      Board of Directors                   Whereas clause                      common stock equivalents             11(a)(iii)                      Certificate of Incorporation         11(a)(iii)                      Company                              Preamble                      Company Common Stock                 Whereas clause                      current market price                 11(d)                      Current Value                        11(a)(iii)                      Distribution Date                    3(a)                      Equivalent Preferred Stock           11(b)                      Exchange Act                         1(b)                      Exchange Act Regulations             1(c)                      Exchange Ratio                       24(a)                      Exempt Person                        1(a)                      Expiration Date                      7(a)                      Final Expiration Date                7(a)                      Original Rights                      1(c)                      Purchase Price                       7(b)                      Record Date                          Whereas clause                      Redemption Price                     23(a)                      Registered Common Stock              13(b)(ii)                      Registration Date                    9(c)                      Registration Statement               9(c)                      Right                                Whereas clause                      Rights Agent                         Preamble                      Rights Certificates                  3(a)                      Rights Dividend Declaration Date     Whereas clause                      Section 11(a)(ii) Event              11(a)(ii)                      Section 11(a)(iii) Trigger Date      11(a)(iii)                      Section 13 Event                     13(a)                      Securities Act                       9(c)                      Spread                               11(a)(iii)                      Substitution Period                  11(a)(iii)                      Summary of Rights                    3(b)                      Trading Day                          11(d)(i)                      Unit                                 7(b)                  Section 2.  Appointment of Rights Agent.  The Company hereby appoints the Rights  Agent to act as agent for the Company in accordance with the express 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 setting forth the respective duties of the Rights Agent and  any co-rights agent.  The Rights Agent shall have no duty to supervise, and in no event shall be  liable for, the acts or omissions of any such co-rights agent.                                           7    





 






        Section 3.  Issuance of Rights Certificates.               (a)   Until the earlier of (i) the Close of Business on the tenth Business Day  after the Stock Acquisition Date or such later date as may be determined by action of the Board  of Directors prior to the tenth Business Day after the Stock Acquisition Date (or, if the tenth  Business Day after the Stock Acquisition Date occurs before the Record Date, the Close of  Business on the Record Date), and (ii) the Close of Business on the tenth Business Day (or such  later date as may be determined by action of the Board of Directors) after the date that a tender  or exchange offer by any Person (other than an Exempt Person) is first published or sent or given  within the meaning of Rule 14d-4(a) of the Exchange Act Regulations or any successor rule, if  upon consummation thereof such Person would be an Acquiring Person (including, in the case of  both clause (i) and (ii), any such date which is after the date of this Agreement and prior to the  issuance of the Rights) (the earlier of (i) and (ii) above being the “Distribution Date”):                     (x)   the Rights (unless earlier expired, redeemed or terminated) will be        evidenced (subject to the provisions of paragraph (b) of this Section 3) by the certificates        for shares of Company Common Stock registered in the names of the holders of shares of        Company Common Stock as of and subsequent to the Record Date or, in the case of        uncertificated shares of Company Common Stock registered in book-entry form (“Book        Entry Shares”), by notation in accounts reflecting the ownership of such shares of        Company Common Stock (which certificates for shares of Company Common Stock and        Book Entry Shares, as applicable, shall be deemed also to be certificates for Rights) and        not by separate certificates, and                     (y)   the Rights will be transferable only in connection with the transfer        of the underlying shares of Company Common Stock including a transfer to the        Company;   provided, however, that if a tender or exchange offer is terminated prior to the occurrence of a  Distribution Date, then no Distribution Date shall occur as a result of such tender or exchange  offer.  The Company shall promptly notify the Rights Agent in writing upon the occurrence of  the Distribution Date and, if such notification is given orally, the Company shall confirm the  same in writing within two (2) Business Days.  Until such written notice is received by the  Rights Agent, the Rights Agent may presume conclusively for all purposes that the Distribution  Date has not occurred.  As soon as practicable after the Distribution Date, the Rights Agent will  send by first-class, insured, postage prepaid mail, to each record holder of shares of Company  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, one or more rights certificates, in substantially the  form of Exhibit A hereto (the “Rights Certificates”), evidencing one Right for each share of  Company Common Stock so held, subject to adjustment as provided herein.         In the event that an adjustment in the number of Rights per share of Company Common  Stock has been made pursuant to Section 11(p) hereof, at the time of distribution of the Rights  Certificates, the Company may make the 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.                                         8   





 






               (b)   As promptly as practicable following the Record Date, the Company will  (directly, or at the expense of the Company, upon the written request of the Company and after  providing all necessary information and documents, through the Rights Agent or the Company’s  transfer agent for the Common Stock of the Company) send a copy of a Summary of Rights to  Purchase Preferred Stock, in substantially the form attached hereto as Exhibit B (the “Summary  of Rights”), by first-class, postage prepaid mail, to each record holder of shares of Company  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 or otherwise make the Summary of Rights available and  accessible to all such holders by posting it on the Company’s website and maintaining such  posting until the Expiration Date.  With respect to certificates for Company Common Stock  outstanding as of the Record Date or issued subsequent to the Record Date but prior to the earlier  of the Distribution Date and the Expiration Date, until the Distribution Date the Rights will be  evidenced by such certificates registered in the names of the holders thereof.  Until the  Distribution Date (or, if earlier, the Expiration Date), the surrender for transfer of any such  certificate for Company Common Stock outstanding as of the Record Date shall also constitute  the transfer of the Rights associated with the Company Common Stock represented thereby.               (c)   Rights shall, without any further action, be issued in respect of all shares  of Company Common Stock which are issued (including any shares of Company Common Stock  held in treasury) after the Record Date but prior to the earlier of the Distribution Date and the  Expiration Date.  In addition, Rights shall be issued with respect to all shares of Company  Common Stock described in the second sentence of Section 22 hereof, subject to the provisions  thereof.  Certificates representing such shares of Company Common Stock issued after the  Record Date shall bear the following legend:         This certificate also evidences and entitles the holder hereof to certain Rights as set forth        in the Rights Agreement between Evofem Biosciences, Inc. (the “Company”) and        Philadelphia Stock Transfer, Inc. (the “Rights Agent”) (or any successor Rights Agent),        as Rights Agent, dated as of March 24, 2020, as it may be supplemented or 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 office of the Rights Agent.         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 promptly 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 certificates representing shares of Company Common Stock that bear the  foregoing legend, until the earlier of the Distribution Date and the Expiration Date, the Rights  associated with the shares of Company Common Stock represented by such certificates shall be  evidenced by such certificates alone and registered holders of the shares of Company Common                                         9   





 






   Stock shall also be the registered holders of the associated Rights, and the transfer of any of such  certificates shall also constitute the transfer of the Rights associated with the shares of Company  Common Stock represented by such certificates.  With respect to any Book Entry Shares, a  legend in substantially similar form will be included in a notice to the record holder of such  shares in accordance with applicable law.  Notwithstanding the provisions of this Section 3(c),  neither the omission of a legend nor the failure to deliver the notice of such legend required  hereby shall affect the enforceability of any part of this Agreement or the rights of any holder of  Rights.               (d)   In the event that the Company purchases or acquires any shares of  Company Common Stock after the Record Date but prior to the Distribution Date, any Rights  associated with such shares of Company Common Stock shall be deemed canceled and returned  so that the Company shall not be entitled to exercise any Rights associated with the shares of  Company Common Stock that are no longer outstanding.               (e)   Notwithstanding anything to the contrary contained herein, shares of  Company Common Stock and Rights (and any securities issuable on their exercise) may be  issued and transferred as Book Entry Shares and not represented by physical certificates.  Where  shares of Company Common Stock and Rights (and any securities issuable on their exercise) are  held as Book Entry Shares or in other uncertificated form, the Company and the Rights Agent  shall cooperate in all respects to give effect to the intent of the provisions contained herein.        Section 4.  Form of Rights Certificates.                 (a)   The Rights Certificates (and the forms of election to purchase and of  assignment and the certificates to be printed on the reverse thereof) shall each be substantially in  the form set forth in Exhibit A hereto and may have such marks of identification or designation  and such legends, summaries or endorsements printed thereon as the Company may deem  appropriate (which marks, designations, legends, summaries or endorsements shall not affect the  rights, duties, liabilities, protections or responsibilities of the Rights Agent hereunder) and as are  not inconsistent with the provisions of this Agreement, or as may be required to comply with any  applicable law or any rule or regulation thereunder or with any rule or regulation of any stock  exchange or automated quotation system on which the Rights may from time to time be listed or  to conform to usage.  Subject to the provisions of Section 11 and Section 22 hereof, the Rights  Certificates, whenever distributed, shall be dated as of the Record Date (or in the case of Rights  issued with respect to Common Stock issued by the Company after the Record Date, as of the  date of issuance of such Common Stock) and on their face shall entitle the holders thereof to  purchase such number of Units of Preferred Stock as shall be set forth therein at the price set  forth therein, provided, however, that the amount and type of securities, cash or other assets that  may be acquired upon the exercise of each Right and the Purchase Price thereof shall be subject  to adjustment as provided herein.               (b)   Any Rights Certificate that represents Rights which are null and void  pursuant to Section 7(e) of this Agreement and any Rights Certificate issued pursuant to Section  6 or Section 11 hereof upon transfer, exchange, replacement or adjustment of any other Rights  Certificate referred to in this sentence, shall contain (to the extent feasible) the following legend:                                           10   





 






         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 are null and void.    The provisions of Section 7(e) hereof shall be operative whether or not the foregoing legend is  contained on any such Rights Certificate.        Section 5.  Countersignature and Registration.               (a)   Any Rights Certificates shall be executed on behalf of the Company by its  Chairman, its Chief Executive Officer, its President or one of its Vice Presidents and shall be  attested by its Secretary, Treasurer or one of its Assistant Secretaries and shall have affixed  thereto the Company’s seal (if any) or a facsimile thereof.  The signature of any of these officers  on the Rights Certificates may be manual or facsimile.  Rights Certificates bearing the manual or  facsimile signatures of the individuals who were at any time the proper officers of the Company  shall bind the Company, notwithstanding that such individuals or any of them have ceased to  hold such offices prior to the countersignature of such Rights Certificates or did not hold such  offices at the date of such Rights Certificates.  No Rights Certificate shall be entitled to any  benefit under this Agreement or be valid for any purpose unless there appears on such Rights  Certificate a countersignature duly executed by the Rights Agent by manual or facsimile  signature of an authorized signatory, and such countersignature upon any Rights Certificate shall  be conclusive evidence, and the only evidence, that such Rights Certificate has been duly  countersigned as required hereunder.  In case any authorized signatory of the Rights Agent who  has countersigned any Rights Certificate ceases to be an authorized signatory of the Rights Agent  before issuance and delivery by the Company, such Rights Certificate, nevertheless, may be  issued and delivered by the Company with the same force and effect as though the person who  countersigned such Rights Certificate had not ceased to be an authorized signatory of the Rights  Agent; and any Rights Certificate may be countersigned on behalf of the Rights Agent by any  person who, at the actual date of the countersignature of such Rights Certificate, is properly  authorized to countersign such Rights Certificate, although at the date of the execution of this  Rights Agreement any such person was not so authorized.               (b)   Following the Distribution Date, upon receipt by the Rights Agent of  notice to that effect and all other relevant information and documents referred to in Section 3(a),  the Rights Agent will keep or cause to be kept, at its office designated 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 name and address of each holder of the  Rights Certificates, the number of Rights evidenced on its face by each Rights Certificate and the  date of each Rights Certificate.          Section 6. Transfer, Split Up, Combination and Exchange of Rights Certificates;                   Mutilated, Destroyed, Lost or Stolen Rights Certificates.                (a)   Subject to the provisions of Sections 4, 7(e) and 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 Expiration Date, any Rights Certificate or Certificates may be transferred, split up, combined                                         11   





 






   or exchanged for another Rights Certificate or Certificates, entitling the registered holder to  purchase a like number of Units of Preferred Stock (or, following a Triggering Event, 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  or Certificates 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, along with a signature guarantee  (if required) and such other and further documentation as the Company or the Rights Agent may  reasonably request.  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 completed and duly executed the certificate set forth 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) of the Rights  represented by such Rights Certificate or Affiliates or Associates thereof, or of any other Person  with which such Beneficial Owner or any of such Beneficial Owner’s Affiliates or Associates  has any agreement, arrangement or understanding (whether or not in writing) for the purpose of  acquiring, holding, voting or disposing of securities of the Company, as the Company or the  Rights Agent shall reasonably request.  Thereupon, the Rights Agent shall, subject to the  provisions of Section 4, Section 7(e), Section 14 and Section 24 hereof, countersign and deliver  to the Person entitled thereto a Rights Certificate or Rights Certificates, as the case may be, as so  requested.  The Rights Agent shall not have any duty or obligation to take any action under any  section of this Rights Agreement that requires the payment of taxes and/or charges unless and  until it is satisfied that all such payments have been made, and the Rights Agent shall promptly  forward any such sum collected by it to the Company or to such Persons as the Company may  specify by written notice.  The Company or the Rights Agent may require payment of a sum  sufficient to cover any tax or charge that may be imposed in connection with any transfer, split  up, combination or exchange of Rights Certificates.               (b)   Subject to Section 7(e) hereof, at any time after the Distribution Date and  prior to the Expiration Date, upon receipt by the Company and the Rights Agent of evidence  reasonably satisfactory to them of the loss, theft, destruction or mutilation of a Rights Certificate,  and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to them,  along with such other and further documentation as the Company or the Rights Agent may  reasonably request 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 shall execute and  deliver a new Rights Certificate of like tenor to the Rights Agent for countersignature and  delivery to the registered holder in lieu of the Rights Certificate so lost, stolen, destroyed or  mutilated.          Section 7.  Exercise of Rights; Purchase Price; Expiration Date of Rights.               (a)   Prior to the earlier of (i) the Close of Business on March 24, 2021, the first  anniversary of the date hereof (the “Final Expiration Date”), (ii) the time at which the Rights are  redeemed as provided in Section 23 hereof, and (iii) the time at which the Rights are exchanged  as provided in Section 24 hereof, at which time the Rights are deemed terminated (the earlier of                                         12   





 






   (i), (ii) and (iii) being the “Expiration Date”), the registered holder of any Rights Certificate may,  subject to the other provisions hereof, including without limitation Sections 7(e), 7(f), 9(c), 11(a)  and 23 hereof, exercise the Rights evidenced thereby, 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 properly completed and duly executed (with such  signature duly guaranteed, if required), to the Rights Agent at the office of the Rights Agent  designated for such purpose, together with payment of the aggregate Purchase Price for the  number of Units of Preferred Stock (or, following a Triggering Event, other securities, cash or  other assets, as the case may be) for which such surrendered Rights are then exercisable.  Except  for those provisions herein that expressly survive the termination of this Agreement, this  Agreement shall terminate at such time as the Rights are no longer exercisable hereunder.               (b)   The purchase price for each one one-thousandth (1/1,000) of a share (each  such one one-thousandth (1/1,000) of a share being a “Unit”) of Preferred Stock upon exercise of  Rights shall be $17.50, subject to adjustment from time to time as provided in Sections 11 and  13(a) hereof (such purchase price, as so adjusted, being the “Purchase Price”), 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 properly completed and the certificate duly executed,  accompanied by payment, with respect to each Right so exercised, of the Purchase Price for the  Units of Preferred Stock (or, following a Triggering Event, other securities, cash or other assets,  as the case may be) to be purchased thereby as set forth below and an amount equal to any  applicable transfer tax or evidence satisfactory to the Company of payment of such tax, the  Rights Agent shall, subject to Section 20(k) hereof, thereupon promptly:                     (i)   (A) requisition from any transfer agent of the Preferred Stock (or        make available, if the Rights Agent is the transfer agent for the Preferred Stock) a        certificate or certificates for the number of Units 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 Units of        Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent,        requisition from the depositary agent depositary receipts representing interests in such        number of Units of Preferred Stock as are to be purchased (in which case certificates for        the Units of Preferred Stock represented by such receipts shall be deposited by the        transfer agent with the depositary agent) and the Company hereby directs the depositary        agent to comply with such request,                     (ii)  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,                      (iii) when necessary to comply with this Agreement, requisition from        the Company the amount of cash, if any, to be paid in lieu of fractional shares in        accordance with Section 14 hereof, and                                           13   





 






                     (iv)  when necessary to comply with this Agreement, after receipt        thereof, 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 Company Common Stock or other securities  of the Company, pay cash and/or distribute other property pursuant to Section 11(a) hereof, the  Company will make all arrangements necessary so that such Company Common Stock, other  securities, cash and/or other property are available for distribution by the Rights Agent, if and  when appropriate.  The payment of the Purchase Price (as such amount may be reduced pursuant  to Section 11(a)(iii) hereof) shall be made in cash or by certified or bank check or money order  payable to the order of the Company.               (d)   In case the registered holder of any Rights Certificate shall properly  exercise less than all the Rights evidenced thereby, a new Rights Certificate evidencing 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 Sections 6 and 14 hereof.               (e)   Notwithstanding anything in this Agreement to the contrary, from and  after the first occurrence of any 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) which becomes a transferee after the Acquiring Person becomes such, or                     (iii) a transferee of an Acquiring Person (or of any such Associate or        Affiliate) which becomes a transferee prior to or concurrently with the Acquiring Person        becoming such and which receives such Rights pursuant to either (A) a transfer (whether        or not for consideration) from the Acquiring Person (or any such Associate or Affiliate)        to holders of equity interests in such Acquiring Person (or any such Associate or        Affiliate) or to any Person with whom the Acquiring Person (or such Associate or        Affiliate) has any continuing agreement, arrangement or understanding regarding the        transferred Rights, shares of Company Common Stock or the Company or (B) a transfer        which the Board of Directors has determined to be part of a plan, arrangement or        understanding which has as a primary purpose or effect the avoidance of this        Section 7(e),   shall be null and void without any further action, and no holder of such Rights shall have any  rights whatsoever with respect to such Rights, whether under any provision of this Agreement or  otherwise.  The Company shall use 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 or any other Person as a result of the Company’s failure to make or delay in making  any determinations with respect to an Acquiring Person or its Affiliates or Associates or any  transferee or any of them hereunder.                                          14   





 






                 (f)   Notwithstanding anything in this Agreement or any Rights Certificate 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 by such   registered holder unless such registered holder shall have (i) properly completed and duly   executed the certificate following the form of election to purchase set forth on the reverse side of   the Rights Certificate surrendered for such exercise, (ii) not indicated an affirmative response to   clause 1 or 2 thereof, (iii) provided such additional evidence of the identity of the Beneficial   Owner (or former Beneficial Owner) of the Rights represented by such Rights Certificate or   Affiliates or Associates thereof as the Company shall reasonably request and (iv) tendered the   Purchase Price (and an amount equal to any applicable transfer tax required to be paid by the   holder of such Rights Certificate in accordance with Section 9) to the Company in the manner set   for the in Section 7(c).         Section 8.  Cancellation and Destruction 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 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 this Agreement.  The  Company shall deliver to the Rights Agent for cancellation and retirement, and the Rights Agent  shall so cancel and retire, any Rights Certificates acquired by the Company otherwise than upon  the exercise thereof.  The Rights Agent shall deliver all cancelled Rights Certificates to the  Company, or shall, at the written request of the Company, destroy, or cause to be destroyed, such  cancelled Rights Certificates, and in such case shall deliver a certificate evidencing the  destruction thereof to the Company (or, at the Company’s option, appropriate copies of the  electronic records relating to Rights Certificates so cancelled or destroyed by the Rights Agent).         Section 9.  Reservation and Availability of Capital Stock.                (a)   The Company shall, at all times prior to the occurrence of a   Section 11(a)(ii) Event, cause to be reserved and kept available, out of its authorized and   unissued shares of preferred stock or its authorized and issued shares of preferred stock held in   its treasury, and, after the occurrence of a Section 11(a)(ii) Event, to the extent reasonably   practical, cause to be reserved and kept available, out of its authorized but unissued shares of   preferred stock, Company Common Stock and/or other securities or its authorized and issued   shares held in its treasury, the number of shares of Preferred Stock (and, following the   occurrence of a Section 11(a)(ii) Event, Company Common Stock and/or other securities) that,   as provided in this Agreement, will be sufficient to permit the exercise in full of all outstanding   Rights.  Upon the occurrence of any events resulting in an increase in the aggregate number of   shares of Preferred Stock (or other equity securities of the Company) issuable upon exercise of   all outstanding Rights above the number then reserved, the Company shall make appropriate   increases in the number of shares so reserved to the extent reasonably practicable.                (b)   If the shares of Preferred Stock (and, following the occurrence of a   Section 11(a)(ii) Event, Company Common Stock and/or other securities) to be issued and   delivered upon the exercise of the Rights may be listed on any national securities exchange or   automated quotation system, the Company shall use its best efforts to cause, from and after the                                           15    





 






   time that the Rights become exercisable, all securities reserved for such issuance to be listed on  such exchange or quotation system upon official notice of issuance upon such exercise.               (c)   The Company shall use its best efforts:                     (i)   as soon as practicable following the earliest date after the        occurrence of a Section 11(a)(ii) Event and a determination by the Company of the        consideration to be delivered by the Company upon exercise of the Rights (including in        accordance with Section 11(a)(iii) hereof) or, if so required by law, as soon as practicable        following the Distribution Date (such date being the “Registration Date”), to file a        registration statement on an appropriate form under the Securities Act of 1933, as        amended (the “Securities Act”), with respect to the securities that may be acquired upon        exercise of the Rights (the “Registration Statement”),                     (ii)  to cause the Registration Statement to become effective as soon as        practicable after such filing,                     (iii) to cause the Registration Statement to continue to be effective (and        to include a prospectus complying with the requirements of the Securities Act) until the        earlier of (A) the date as of which the Rights are no longer exercisable for the securities        covered by the Registration Statement, and (B) the Expiration Date, and                     (iv)  to take as soon as practicable following the Registration Date such        action as may be required to ensure that any acquisition of securities upon exercise of the        Rights complies with any applicable state securities or “blue sky” laws.    The Company may temporarily suspend, for a period of time not to exceed one hundred twenty  (120) days after the Registration Date, the exercisability of the Rights in order to prepare and file  such registration statement and permit it to become effective.  Upon any such suspension, the  Company shall issue a public announcement stating that the exercisability of the Rights has been  temporarily suspended, as well as a public announcement at such time as the suspension is no  longer in effect, 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 in any jurisdiction if the requisite qualification in such jurisdiction shall not have  been obtained, the exercise thereof shall not be permitted under applicable law or a registration  statement shall not have been declared effective.               (d)   The Company shall take all such action as may be necessary to ensure that  all shares of Preferred Stock (and, following the occurrence of a Triggering Event, any other  securities that may be delivered upon exercise of Rights) shall be, at the time of delivery of the  certificates or depositary receipts for such securities (subject to payment of the Purchase Price),  duly and validly authorized and issued and fully paid and nonassessable.               (e)   The Company shall pay any documentary, stamp or other tax or charge  imposed in connection with the issuance or delivery of the Rights Certificates or of any Preferred  Stock (or any other securities or assets, as the case may be) upon the exercise of Rights;  provided, however, the Company shall not be required to pay any such tax or charge imposed in  connection with the issuance or delivery of Units of Preferred Stock, or any certificates or                                         16   





 






     depositary receipts for such Units of Preferred Stock (or, following the occurrence of a   Triggering Event, any other securities, cash or assets, as the case may be) to any Person other   than the registered holder of the Rights Certificates evidencing the Rights surrendered for   exercise.  The Company shall not be required to issue or deliver any certificates or depositary   receipts for Units of Preferred Stock (or, following the occurrence of a Triggering Event, any   other securities, cash or assets, as the case may be) to, or 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  or depositary receipt for Units of Preferred Stock (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 the Units of Preferred Stock (or other securities) 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 taxes or charges) was made;  provided, however, that if the date of such surrender and payment is a date upon which the  Preferred Stock (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 securities on, and  such certificate shall be dated, the next succeeding Business Day on which the Preferred Stock (or  other securities) transfer books of the Company are open; further provided, however, that if  delivery of Units of Preferred Stock (or other securities, as the case may be) is delayed pursuant  to Section 9(c) hereof, such Persons shall be deemed to have become the record holders of such  Units of Preferred Stock (or other securities) only when such Units (or other securities) first  become deliverable.  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  securities 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 securities purchasable upon exercise of each  Right and the number of Rights outstanding are subject to adjustment from time to time as  provided in this Section 11.                (a)   (i)   In the event the Company shall at any time after the date of this         Agreement (A) declare a dividend on the Preferred Stock payable in shares of Preferred         Stock, (B) subdivide the outstanding 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 for herein, including 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 other capital         stock, as the case may be, issuable on such date upon exercise of the Rights, shall be                                          17    





 






                proportionately adjusted so that the holder of any Right exercised after such time shall be  entitled to receive, upon payment of the Purchase Price then in effect, the aggregate  number and kind of shares of Preferred Stock or other 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 transfer books of the Company were still open, such holder would have owned  upon such exercise and been entitled to receive by virtue of such dividend, subdivision,  combination or reclassification.  If an event occurs which would require an adjustment  under both this Section 11(a)(i) and Section 11(a)(ii) 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)  In the event any Person, alone or together with its Affiliates and  Associates, shall become an Acquiring Person, other than pursuant to any transaction set  forth in Section 13(a) hereof, then, immediately upon the occurrence of such event (a  “Section 11(a)(ii) Event”), each holder of a Right (except as otherwise provided herein,  including Section 7(e) hereof) shall thereafter have the right to receive, upon exercise of  such Right at the then-current Purchase Price in accordance with the terms of this  Agreement, in lieu of the number of Units of Preferred Stock for which a Right was  exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event (whether  or not such Right was then exercisable), such number of Units of Preferred Stock as shall  equal the result obtained by:                     (A)   multiplying the then-current Purchase Price by the number        of Units of Preferred Stock for which a Right was exercisable immediately prior        to the first occurrence of a Section 11(a)(ii) Event (whether or not such Right was        then exercisable) (such product thereafter being, for all purposes of this        Agreement, other than Section 13 hereof, the “Purchase Price”), and                     (B)   dividing that product by 50% of the current market price        (determined pursuant to Section 11(d) hereof) per Unit of Preferred Stock on the        date of such first occurrence   (such Units of Preferred Stock being the “Adjustment Shares”); provided, however, that  the Purchase Price and the number of Units of Preferred Stock so receivable upon  exercise of a Right shall, following the Section 11(a)(ii) Event, be subject to further  adjustment as appropriate in accordance with this Section 11. Notwithstanding the  foregoing, the Rights shall not be exercisable until the time period during which the  Rights may be redeemed pursuant to Section 23 hereof shall have expired. From and after  the occurrence of a Section 13(a) Event, any Rights that have not theretofore been  exercised pursuant to this Section 11(a)(ii) shall thereafter be exercisable only in  connection with Section 13 and not pursuant to this Section 11(a)(ii).               (iii) The Company, by the vote of the Board of Directors, may at its  option substitute for a Unit of Preferred Stock issuable upon the exercise of Rights in  accordance with the foregoing subparagraph (ii), shares of Company Common Stock or  fractions thereof having a current market price (as determined by Section 11(d) hereof)  equal to the current market price of a Unit of Preferred Stock on the date of the                                   18                





 






                Section 11(a)(ii) Event.  In the event that the number of shares of Preferred Stock (or, if  the Company shall have determined to substitute shares of Company Common Stock for  Units of Preferred Stock pursuant to the preceding sentence, Company Common Stock)   which are authorized by the Company’s Amended and Restated Certificate of  Incorporation, as currently in effect (the “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) of this Section 11(a), the Company shall, to the extent  permitted by applicable law:                     (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 being the “Spread”), and                     (B)   with respect to each Right (other than Rights which have        become void pursuant to Section 7(e)), make adequate provision to substitute, in        whole or in part, for such Adjustment Shares, upon exercise of a Right and        payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase        Price, (3) shares of Company Common Stock or other equity securities of the        Company (including, without limitation, shares, or units of shares, of preferred        stock (such other shares being “common stock equivalents”)), (4) debt securities        of the Company, (5) other assets, or (6) any combination of the foregoing, having        an aggregate value which, when added to the value of the Units of Preferred Stock        actually issued upon exercise of such Right, shall have an aggregate value equal        to the Current Value (less the amount of any reduction in such Purchase Price),        where such aggregate value has been determined by the Board of Directors, after        receiving advice from a nationally recognized investment banking firm;   provided, however, that if the Company shall not have made adequate provision to  deliver value pursuant to clause (B) above within thirty days following the later of (x) the  first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company’s  right of redemption pursuant to Section 23(a) expires (such thirty day period, as it may be  extended hereunder, being referred to herein as the “Substitution Period,” and the later of  (x) and (y) being referred to herein as the “Section 11(a)(iii) Trigger Date”), then, subject  to Section 24 hereof, the Company shall be obligated (to the extent permitted by  applicable law) to deliver, upon the surrender for exercise of a Right and without  requiring payment of the Purchase Price, Units of Preferred Stock (to the extent  available) and then, if necessary, shares (or fractions of shares, at the discretion of the  Board of Directors) of Company Common Stock and cash, or a combination thereof,  which Units of Preferred Stock, shares (or fractions of shares) of Company Common  Stock and/or cash shall have an aggregate value equal to the Spread.  If the Board of  Directors determines in good faith that it is likely that sufficient additional shares of  Preferred Stock or Company Common Stock could be authorized for issuance upon  exercise in full of the Rights, then the Substitution Period may be extended to the extent  necessary, but not more than ninety days after the Section 11(a)(iii) Trigger Date, in order  that the Company may seek stockholder approval for the authorization of such additional  shares.                                     19                





 






               To the extent that the Company determines that some action need be taken        pursuant to the second and/or third sentences 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 such        second sentence and to determine the value thereof.  If any such suspension occurs, 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 the time such        suspension is no longer in effect.  For purposes of this Section 11(a)(iii), the value of a        Unit of Preferred Stock or share of Company Common Stock shall be the current market        price (as determined pursuant to Section 11(d) hereof) per Unit of Preferred Stock or        share of Company Common Stock, as the case may be, on the Section 11(a)(iii) Trigger        Date and the value of any common stock equivalent shall be deemed to have the same        value as a Unit of Preferred Stock on such date.               (b)   In case the Company shall fix a record date for the issuance of rights,  options or warrants to all holders of Preferred Stock entitling them to subscribe for or purchase  (for a period expiring within forty-five calendar days after such record date) shares of Preferred  Stock (or shares having substantially the same rights, privileges and preferences as shares of  Preferred Stock (“Equivalent Preferred Stock”)) or securities convertible into Preferred Stock or  Equivalent Preferred Stock at a price per share of Preferred Stock or per share of Equivalent  Preferred Stock (or having a conversion price per share, if a security convertible into Preferred  Stock or Equivalent Preferred Stock) less than the current market price (as determined pursuant  to Section l1(d) hereof) per share of Preferred Stock on such record date, the Purchase Price to be  in effect after such record date shall be determined by multiplying:                     (i)   the Purchase Price in effect immediately prior to such record date,        by                     (ii)  a fraction, (A) the numerator of which shall be the sum of 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 (B) 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).   In case such subscription price may be paid by delivery of consideration, part or all of which  may be in a form other than cash, the value of such consideration shall be as determined in good  faith by the Board of Directors, whose determination shall be described in a statement filed with  the Rights Agent and shall be conclusive for all purposes.  Shares of Preferred Stock owned by  or held for the account of the Company or any Subsidiary shall not be deemed outstanding for  the purpose of any such computation.  Such adjustment shall be made successively whenever                                         20   





 






   such a record date is fixed, and in the event that such rights, options or warrants are not so  issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in  effect if such record date had not been fixed.               (c)   In case the Company shall fix a record date for a distribution to all holders  of shares 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 periodic cash dividend paid out of funds  legally available therefor), assets (other than a dividend payable in shares of Preferred Stock, but  including any dividend payable in stock other than Preferred Stock) or subscription rights,  options or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be  in effect after such record date shall be determined by multiplying:                     (i)   the Purchase Price in effect immediately prior to such record date,        by                     (ii)  a fraction, (A) the numerator of which shall be the current market        price (as determined pursuant to Section 11(d) hereof) per share of Preferred Stock on        such record date, less the fair market value (as determined in good faith by the Board of        Directors, whose determination shall be described in a statement filed with the Rights        Agent and shall be conclusive for all purposes) of the cash, assets or evidences of        indebtedness so to be distributed or of such subscription rights, options or warrants        distributable in respect of a share of Preferred Stock and (B) the denominator of which        shall be such current market price per share of Preferred Stock.   Such adjustments shall be made successively whenever such a record date is fixed, and in the  event that such distribution is not so made, the Purchase Price shall be adjusted to be the  Purchase Price which would have been in effect if such record date had not been fixed.               (d)   (i)   For the purpose of any computation hereunder, the “current market        price” per share of Company Common Stock or Common Stock on any date shall be        deemed to be the average of the daily closing prices per share of such shares for the thirty        consecutive Trading Days immediately prior to such date; provided, however, if prior to        the expiration of such requisite thirty Trading Day period the issuer announces either        (A) a dividend or distribution on such shares payable in such shares or securities        convertible into such shares (other than the Rights), or (B) any subdivision, combination        or reclassification of such shares, and the ex-dividend date for such dividend or        distribution or the record date for such subdivision, combination or reclassification, as the        case may be, shall not have occurred prior to the commencement of the requisite thirty        Trading Day period, then, and in each such case, the “current market price” shall be        properly adjusted to take into account such event.  The closing price for each day shall        be:                           (x)   the last sale price, regular way, or, in the 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                                          21   





 






               system with respect to securities listed on the principal national securities              exchange on which such shares are listed or admitted to trading, or                            (y)   if such shares 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, or                            (z)   if on any such date such shares are not quoted by any such              organization, the average of the closing bid and asked prices as furnished by a              professional market maker making a market in such shares selected by the Board              of Directors.           If on any such date no market maker is making a market in such shares, or if such shares        are not publicly held or so listed or traded, “current market price” per share shall mean        the fair value per share as determined in good faith by the Board of Directors, whose        determination shall be described in a statement filed with the Rights Agent and shall be        conclusive for all purposes.  The term “Trading Day” shall mean, if such shares are listed        or admitted to trading on any national securities exchange, a day on which the principal        national securities exchange on which such shares are listed or admitted to trading is open        for the transaction of business or, if such shares are not so listed or admitted, a Business        Day.                     (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        for Company Common Stock in clause (i) of this Section 11(d) (other than the        penultimate 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 (A) 100 (as such amount may be appropriately adjusted for such        events as stock splits, stock dividends and recapitalizations with respect to Company        Common Stock occurring after the date of this Agreement) multiplied by (B) the current        market price per share of Company Common Stock.  If neither Company Common Stock        nor 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 of Directors, 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 a Unit of Preferred Stock shall be equal to        (A) the current market price of one share of Preferred Stock divided by (B) 100.               (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 1% in the Purchase Price; provided, however, that any adjustments which by reason of  this Section 11(e) are not required to be made shall be carried forward and taken into account in  any subsequent adjustment.  All calculations under this Section 11 shall be made to the nearest  cent or to the nearest one one-thousandth of a share of Company Common Stock or Common  Stock or other share or one one-millionth of a share of Preferred Stock, as the case may be.                                          22   





 






   Notwithstanding the first sentence of this Section 11(e), any adjustment required by this  Section 11 shall be made no later than the earlier of (i) three years from the date of the  transaction which mandates such adjustment and (ii) the Expiration Date.               (f)   If, as a result of an adjustment made pursuant to Section 11(a)(ii) or 13(a)  hereof, the holder of any Right thereafter exercised shall become entitled to receive any shares of  capital stock 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), (d), (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 Units of Preferred Stock (or other securities or amount of cash or  combination thereof) that may be acquired 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 Units of Preferred Stock (calculated to the nearest one one-hundred-thousandth of a  Unit) obtained by (i) multiplying (x) the number of Units of Preferred Stock covered by a Right  immediately prior to this adjustment by (y) the Purchase Price in effect immediately prior to such  adjustment of the Purchase Price and (ii) dividing the product so obtained by the Purchase Price  in effect immediately after such adjustment of the Purchase Price.               (i)   The Company may elect, on or after the date of any adjustment of the  Purchase Price, to adjust the number of Rights, in lieu of any adjustment in the number of Units  of Preferred Stock that may be acquired upon the exercise of a Right.  Each of the Rights  outstanding after the adjustment in the number of Rights shall be exercisable for the number of  Units of Preferred Stock for which a Right was exercisable immediately prior to such  adjustment.  Each Right held of record prior to such adjustment of the number of Rights shall  become that number of Rights (calculated to the nearest one one-hundred-thousandth) obtained  by dividing (x) the Purchase Price in effect immediately prior to adjustment of the Purchase  Price by the (y) 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 days  later than the date of such 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                                         23   





 






   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 to be so  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 Units 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 Unit  and the number of Units of Preferred Stock 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 par or stated value, if any, of the number of Units of Preferred Stock or  other shares of capital stock issuable upon exercise of the Rights, the Company shall take any  corporate action which may, in the opinion of its counsel, be necessary in order that the  Company may validly and legally issue such fully paid and nonassessable number of Units of  Preferred Stock or other shares at such adjusted Purchase Price.               (l)   In any case in which this Section 11 shall require that an adjustment in the  Purchase Price be made effective as of a record date for a specified event, the Company may  elect to defer until the occurrence of such event the issuance to the holder of any Right exercised  after such record date of that number of Units of Preferred Stock and shares of other capital stock  or securities of the Company, if any, issuable upon such exercise over and above the number of  Units of Preferred Stock and shares of other capital stock or securities of the Company, if any,  issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment;  provided, however, that the Company shall deliver to such holder a due bill or other appropriate  instrument evidencing such holder’s right to receive such additional shares (fractional or  otherwise) or securities upon the occurrence of the event requiring such adjustment.               (m)   Anything in this Section 11 to the contrary notwithstanding, the Company  shall be entitled to make such reductions in the Purchase Price, in addition to those adjustments  expressly required by this Section 11, as and to the extent that in their good faith judgment the  Board of Directors 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 shares of Preferred  Stock, (iv) stock dividends or (v) issuance of rights, options or warrants referred to in this  Section 11, hereafter made by the Company to holders of its Preferred Stock, shall not be taxable  to such holders or shall reduce the taxes payable by such holders.               (n)   The Company shall not, at any time after the Distribution Date,  (i) consolidate with any other Person (other than a wholly owned Subsidiary of the Company in a  transaction which complies with Section 11(o) hereof), (ii) merge with or into any other Person                                         24   





 






     (other than a wholly owned 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 transactions, assets, cash flow or earning power aggregating more than   50% of the assets, cash flow 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 wholly owned   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, sale               or transfer there are any rights, warrants or other instruments or securities               outstanding or agreements in effect which would substantially diminish or               otherwise eliminate the benefits intended to be afforded by the Rights, or                       (y)   prior to, simultaneously with or immediately after such               consolidation, merger, sale or transfer, the Person which constitutes, or would               constitute, the “Principal Party” for purposes of Section 13(a) hereof shall have               distributed or otherwise transferred to its stockholders or other persons holding an               equity interest in such Person Rights previously owned by such Person or any of               its Affiliates and Associates.                 (o)   After the Distribution Date, the Company shall not, except as permitted by   Section 23, Section 24 or Section 27 hereof, take (or permit any Subsidiary to take) any action if   at the time such action is taken it is reasonably foreseeable that such action will diminish   substantially or otherwise eliminate the benefits intended to be afforded by the Rights.                (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 Company Common Stock   payable in shares of Company Common Stock, (ii) subdivide the outstanding shares of Company   Common Stock or (iii) combine the outstanding shares of Company Common Stock into a   smaller number of shares, the number of Rights associated with each share of Company   Common Stock then outstanding, or issued or delivered thereafter prior to the Distribution Date   or in accordance with Section 22 hereof, shall be proportionately adjusted so that the number of   Rights thereafter associated with each share of Company Common Stock following any such   event shall equal the result obtained by multiplying:                      (x)   the number of Rights associated with each share of Company               Common Stock immediately prior to such event, by                      (y)   a fraction, (A) the numerator of which shall be the total number of               shares of Company Common Stock outstanding immediately prior to the               occurrence of the event and (B) the denominator of which shall be the total               number of shares of Company 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 Section 11 or Section 13 hereof, the Company shall  (a) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts                                          25    





 






    accounting for such adjustment, (b) promptly file with the Rights Agent and with each transfer  agent for the Preferred Stock and the Company Common Stock, a copy of such certificate, and  (c) if a Distribution Date has occurred, mail 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 Company Common Stock) in accordance with Section 26 hereof.  Notwithstanding the  foregoing sentence, the failure of the Company to make such certification or give such notice  shall not affect the validity of such adjustment or the force or effect of the requirement for such  adjustment.  The Rights Agent shall be fully protected in relying on any such certificate and on  any adjustments or statements therein contained and shall not be deemed to have knowledge of  any such adjustment or event unless and until it shall have received such certificate.         Section 13. Consolidation, Merger or Sale or Transfer of Assets, Cash Flow or Earning  Power.                (a)   In the event that, following the first occurrence of a Section 11(a)(ii)   Event, directly or indirectly, either:                      (x)   the Company shall consolidate with, or merge with and into, any         other Person (other than a wholly owned Subsidiary of the Company in a transaction         which complies with Section 11(o) hereof), and the Company shall not be the continuing         or surviving corporation of such consolidation or merger,                      (y)   any Person (other than a wholly owned 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 Company Common Stock shall be         changed into or exchanged for stock or other securities of the Company or 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) to any Person or Persons (other than the         Company or any of its wholly owned Subsidiaries in one or more transactions each of         which complies with Section 11(o) hereof), in one or more transactions, assets, cash flow         or earning power aggregating 50% or more of the assets, cash flow or earning power of         the Company and its Subsidiaries (taken as a whole)    (any such event being a “Section 13 Event”), then, and in each such case, proper provision shall   be made so that:                      (i)   each holder of a Right (other than Rights which have become void         as provided in Section 7(e) hereof) shall thereafter have the right to receive, upon the         exercise thereof at the then-current Purchase Price, in accordance with this Agreement         and in lieu of Units of Preferred Stock or shares of Company Common Stock, such         number of validly authorized and issued, fully paid, nonassessable and freely tradeable         shares of Common Stock of the Principal Party, which shares shall not be subject to any                                           26    





 






                liens, encumbrances, rights of call or first refusal, transfer restrictions or other adverse  claims, as shall be equal to the result obtained by:                     (A)   multiplying (x) the then-current Purchase Price by (y) the        number of Units of Preferred Stock for which a Right is exercisable immediately        prior to the first occurrence of a Section 13 Event (or, if a Section 11(a)(ii) Event        has occurred prior to the first occurrence of a Section 13 Event, multiplying        (x) the number of such Units for which a Right was exercisable hereunder        immediately prior to such first occurrence of a Section 11(a)(ii) Event by (y) the        Purchase Price in effect immediately prior to such first occurrence), and                      (B)   dividing that product (which, following the first occurrence        of a Section 13 Event, shall be the “Purchase Price” for all purposes of this        Agreement) by 50% of the current market price (determined pursuant to        Section 11(d) hereof) per share of the Common Stock of such Principal Party on        the date of consummation of such Section 13 Event;   provided, however, that the Purchase Price (as theretofore adjusted in accordance with  Section 11(a)(ii) hereof) and the number of shares of Common Stock of such Principal  Party so receivable upon exercise of a Right shall be subject to further adjustment as  appropriate in accordance with Section 11(f) hereof to reflect any events occurring in  respect of the Common Stock of such Principal Party after the occurrence of such  Section 13 Event;               (ii)  such Principal Party shall thereafter be liable for, and shall assume,  by virtue of such Section 13 Event, all the obligations and duties of the Company  pursuant to this Agreement;               (iii) the term “Company” shall thereafter be deemed to refer to such  Principal Party in all respects, 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 authorization and reservation of a sufficient number of shares of its  Common Stock in accordance with Section 9 hereof) in connection with the  consummation of any such transaction as may be necessary to assure that the provisions  of this Agreement 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;                (v)   such Principal Party shall take such steps as may be necessary to  assure that, upon the subsequent occurrence of any merger, consolidation, sale of all or  substantially all of the assets, recapitalization, reclassification of shares, reorganization or  other extraordinary transaction in respect of such Principal Party, each holder of a Right  shall thereupon be entitled to receive, upon exercise of a Right and payment of the  Purchase Price, such cash, shares, rights, warrants and other property which such holder                                   27                





 






         would have been entitled to receive had it, at the time of such transaction, owned the        shares of Common Stock of the Principal Party purchasable upon the exercise of a Right,        and such Principal Party shall take such steps (including, but not limited to, reservation of        shares of stock) as may be necessary to permit the subsequent exercise of the Rights in        accordance with the terms hereof for such cash, shares, rights, warrants and other        property; and                     (vi)  the provisions of Section 11(a)(ii) hereof shall be of no further        effect following the first occurrence of any Section 13 Event.               (b)   “Principal Party” shall mean:                     (i)   in the case of any transaction described in clause (x) or (y) of the        first sentence of Section 13(a) hereof, (A) the Person that is the issuer of any securities        into which shares of Company Common Stock 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 are so issued, the Person that is the other party to such        merger or consolidation, or, if there is more than one such Person, the Person the        Common 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) hereof, the Person that is the party receiving the largest portion        of the assets, cash flow 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, cash flow or earning power transferred pursuant to such        transaction or transactions or if the Person receiving the largest portion of the assets, cash        flow or earning power cannot be determined, whichever Person 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-month period registered under        Section 12 of the Exchange Act (“Registered Common Stock”) or such Person is not a        corporation, and such Person is a direct or indirect Subsidiary of another Person that has        Registered Common Stock outstanding, “Principal Party” shall refer to such other Person;                      (2)   if the Common Stock of such Person is not Registered Common        Stock or such Person is not a corporation, and such Person is a direct or indirect        Subsidiary of another Person but is not a direct or indirect Subsidiary of another Person        which has Registered Common Stock outstanding, “Principal Party” shall refer to the        ultimate parent entity of such first-mentioned Person;                      (3)   if such Person is directly or indirectly controlled by more than one        Person, and one or more of such other Persons has Registered Common Stock                                         28   





 






         outstanding, “Principal Party” shall refer to whichever of such Persons is the issuer of the        Registered Common Stock having the highest aggregate current market price (determined        pursuant to Section 11(d) hereof); and                      (4)   if such Person is directly or indirectly controlled by more than one        Person, and none of such other Persons have Registered Common Stock outstanding,        “Principal Party” shall refer to whichever ultimate parent entity is the corporation having        the greatest stockholders equity or, if no such ultimate parent entity is a corporation, shall        refer to whichever ultimate parent entity is the entity having the greatest net assets.               (c)   The Company shall not consummate any such consolidation, merger, sale  or transfer unless the Principal Party shall have a sufficient number of 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 the Principal Party, as soon as practicable after the date of such Section 13 Event,  at its own expense, shall:                     (i)   (A) file on an appropriate form a registration statement under the        Securities Act with respect to the Rights and the securities purchasable upon exercise of        the Rights, (B) use its best efforts to cause such registration statement to become        effective as soon as practicable after filing and remain effective (and to include a        prospectus complying with the requirements of the Securities Act) until the Expiration        Date, and (C) take all such action as may be required to enable the Principal Party to        issue the securities purchasable upon exercise of the Rights and to assure that any        acquisition of such securities upon the exercise of the Rights complies with any        applicable state securities or “blue sky” laws, including but not limited to the registration        or qualification of such securities under all requisite securities and “blue sky” laws of the        various states and the listing of such securities on such exchanges and trading markets as        may be necessary or appropriate; 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.               (d)   In case the Principal Party which is to be a party to a transaction referred  to in this Section 13 has a provision in any of its authorized securities or in its certificate or  articles of incorporation or by-laws or other instrument governing its corporate affairs, which  provision would have the effect of (i) causing such Principal Party to issue, in connection with,  or as a consequence of, the consummation of a transaction referred to in this Section 13, shares  of Common Stock or common stock equivalents 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 or common stock equivalents of such  Principal Party at less than such then current market price (other than to holders of Rights  pursuant to this Section 13) or (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                                         29   





 






   provisions of 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, any Rights which theretofore have not been exercised pursuant to Section 11(a)(ii) shall  thereafter be exercisable only in the manner and for the securities described in Section 13(a).        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 issuing such fractional Rights, there  shall be paid to the Persons to which such fractional Rights would otherwise be issuable an  amount in cash equal to such fraction of the market value of a whole Right.  For purposes of this  Section 14(a), the 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 of the Rights for any day shall be:                     (x)   the last sale price, regular way, or, in the 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 on the principal national securities exchange on which the Rights are        listed or admitted to trading, or                     (y)   if the Rights are not listed or admitted to trading on any national        securities exchange, the last quoted price or, if not so quoted, the average of the high bid        and low asked prices in the over-the-counter market, as reported by such system then in        use, or                      (z)   if on any such date the Rights are not quoted by any such        organization, the average of the closing bid and asked prices as furnished by a        professional market maker making a market in the Rights selected by the Board of        Directors.     If on any such date no such market maker is making a market in the Rights, the fair value of the  Rights on such date as determined in good faith by the Board of Directors shall be used and such  determination shall be described in a statement filed with the Rights Agent and shall be  conclusive for all purposes.                (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  (1/1,000) of a share of Preferred Stock) upon exercise of the Rights or to distribute certificates  which evidence such fractional shares of Preferred Stock (other than fractions which are integral                                         30   





 






     multiples of one one-thousandth (1/1,000) of a share of Preferred Stock); provided, however, that   in lieu of fractions of shares of Preferred Stock which are integral multiples of one one-  thousandth (1/1,000) of a share of Preferred Stock, the Company may provide for the issuance of   depositary receipts pursuant to Section 7(c) hereof.  In lieu of such fractional shares of Preferred   Stock that are not integral multiples of one one-thousandth (1/1,000) of a share, 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 then current market price of   a share of Preferred Stock on the day of exercise, determined in accordance with Section 11(d)   hereof.                 (c)   The Company shall not be required to issue fractions of shares of   Company Common Stock upon exercise of the Rights or to distribute certificates which evidence   fractional shares of Company Common Stock.  In lieu of such fractional shares of Company   Common 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 (1) share of Company Common Stock.  For purposes of this   Section 14(c), the current market value of one share of Company Common Stock shall be the   closing price per share of Company Common Stock (as determined pursuant to Section 11(d)(i)   hereof) on 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.                 (e)   Whenever a payment for fractional Rights or fractional shares is to be   made by the Rights Agent, the Company shall (i) promptly prepare and deliver to the Rights   Agent a certificate setting forth in reasonable detail the facts related to such payments and the   prices and/or formulas utilized in calculating such payments, and (ii) provide sufficient monies to   the Rights Agent in the form of fully collected funds to make such payments. The Rights Agent   shall be fully protected in relying upon such a certificate and shall have no duty with respect to,   and shall not be deemed to have knowledge of any payment for fractional Rights or fractional   shares under any Section of this Rights Agreement relating to the payment of fractional Rights or   fractional shares unless and until the Rights Agent shall have received such a certificate and   sufficient monies.         Section 15. Rights of Action.  All rights of action in respect of this Agreement, other  than rights of action vested in the Rights Agent hereunder, including Section 18 or Section 20  hereof, are vested in the respective registered holders of the Rights Certificates (and, prior to the  Distribution Date, the registered holders of certificates representing shares of Company Common  Stock); and any registered holder of a Rights Certificate (or, prior to the Distribution Date, of a  certificate representing shares of Company 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 a  certificate representing shares of Company 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 or any other Person 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                                          31    





 






    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 shall be entitled to specific performance of  the obligations hereunder 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 Company 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 forms and certificates duly 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 a Rights Certificate (or, prior to the   Distribution Date, the associated Company 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 Company Common Stock   certificate made by any Person 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 any 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   issued by a 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 governmental authority, prohibiting or otherwise restraining performance of such   obligation; provided, however, the Company must use its best efforts to have any such order,   decree, judgment or ruling lifted or otherwise overturned as promptly as practicable.         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 number of shares of 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, except as provided in  Section 25 hereof, to receive notice of meetings or other actions affecting stockholders, 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.  This                                          32    





 






    Section 17 shall also apply to holders, as such, of Rights prior to the issuance of Rights  Certificates.         Section 18. Concerning the Rights Agent.                (a)   The Company agrees to pay to the Rights Agent reasonable compensation   for all services rendered by it hereunder and, from time to time, on demand of the Rights Agent,   its reasonable expenses, including reasonable fees and disbursements of its counsel, and other   disbursements incurred in connection with the execution and administration of this Agreement   and the exercise and performance of its duties hereunder.  The Company shall indemnify the   Rights Agent for, and hold it harmless against, any loss, liability or expense (including the   reasonable documented fees and expenses of outside legal counsel) incurred without gross   negligence, bad faith or willful misconduct (which gross negligence, bad faith or willful   misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of a   court of competent jurisdiction) on the part of the Rights Agent, for any action taken or omitted   to be taken by the Rights Agent in connection with the acceptance and administration of this   Agreement, including, without limitation, the reasonable costs and expenses of defending against   a claim of liability hereunder.                (b)   The Rights Agent shall be protected and shall incur no liability for, or in   respect of any action taken, suffered or omitted by it in connection with, its administration of this   Agreement in reliance upon any Rights Certificate or certificate for Preferred Stock or Company   Common Stock or for other securities of the Company, instrument of assignment or transfer,   power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement   or other paper or document reasonably believed by it to be genuine and to have been signed,   executed and, where necessary, verified or acknowledged by the proper Person or Persons, or   otherwise on the advice of counsel as set forth in Section 20 hereof.  The Rights Agent shall not   be deemed to have knowledge of any event of which it was supposed to receive notice thereof   hereunder, and the Rights Agent shall be fully protected and shall incur no liability for failing to   take action in connection therewith, unless and until it has received such notice in writing.                (c)   The provisions of this Section 18 and Section 20 hereof shall survive the   termination or expiration of this Agreement, the exercise or expiration of the Rights and the   resignation, replacement or removal of the Rights Agent.         Section 19. Merger or Consolidation or Change of Name of Rights Agent.                (a)   Any corporation into which the Rights Agent or any successor Rights   Agent may be merged or with which it may be consolidated, or any corporation resulting from   any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a   party, or any corporation succeeding to the corporate trust or stockholder services businesses 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 document or any further act on the part of   any of the parties hereto; provided, however, that such corporation would be eligible for   appointment as a successor Rights Agent under the provisions of Section 21 hereof.  In case at   the time such successor Rights Agent shall succeed to the agency created by this Agreement, any   of the Rights Certificates shall have been countersigned but not delivered, any such successor                                          33    





 






     Rights Agent may adopt the countersignature of a 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 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   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.         Section 20. Duties of Rights Agent.  The Rights Agent undertakes to perform the duties  and obligations 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 (who may be legal   counsel for the Company), and the opinion or advice of such counsel shall be full and complete   authorization and protection to the Rights Agent as to any action taken or omitted by it in good   faith and in accordance with such opinion or advice.                (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 omitting any action hereunder, such fact   or matter (unless other evidence in respect thereof be specified herein) may be deemed to be   conclusively proved and established by a certificate signed by any one of the Chairman of the   Board, the Chief Executive Officer, the President, any Vice President, the Treasurer, any   Assistant Treasurer, the Secretary or any Assistant Secretary of the Company and delivered to   the Rights Agent; and such certificate shall be full authorization to the Rights Agent for any   action taken or omitted 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 (which gross negligence, bad faith or willful   misconduct must be determined by a final, non-appealable order, judgment, decree or ruling of a   court of competent jurisdiction).  Any liability of the Rights Agent under this Agreement will be   limited to the amount of annual fees paid by the Company to the Rights Agent.                (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 or be   required to verify the same (except as to its countersignature on such Rights Certificates), but all   such statements and recitals are and shall be deemed to have been made by the Company only.                                          34    





 






               (e)   The Rights Agent shall not be liable or responsible for the validity of this  Agreement or the execution and delivery hereof (except the due execution hereof by the Rights  Agent) or for the validity or execution of any Rights Certificate (except its countersignature  thereof); nor shall it be liable or responsible for any breach by the Company of any covenant or  failure by the Company to satisfy conditions contained in this Agreement or in any Rights  Certificate; nor shall it be liable or responsible for any adjustment required under the provisions  of Section 11 or Section 13 hereof or 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 actual 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 Preferred Stock or any other securities to  be issued pursuant to this Agreement or any Rights Certificate or as to whether any shares of  Preferred Stock or any other securities will, when so issued, be validly authorized and issued,  fully paid and nonassessable.               (f)   The Company shall perform, execute, acknowledge and deliver or cause to  be performed, executed, acknowledged and delivered all such further acts, instruments and  assurances as may reasonably be required by the Rights Agent for the performance by the Rights  Agent of its duties under this Agreement.               (g)   The Rights Agent is hereby authorized and directed to accept instructions  with respect to the performance of its duties hereunder from any one of the Chairman of the  Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any  Assistant Secretary, the Treasurer or any Assistant Treasurer of the Company, and to apply to  such officers for advice or instructions in connection with its duties, and shall not be liable for  any action taken, or omitted to be taken by it in good faith in accordance with instructions of any  such officer.                (h)   The Rights Agent and any stockholder, director, officer or employee of the  Rights Agent may buy, sell or deal in any of the Rights or other securities of the Company or  have a pecuniary interest 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.               (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.               (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 or in the exercise of its rights hereunder if the Rights Agent shall have 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                                         35   





 






     purchase, as the case may be, has either not been completed, not signed 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 or transfer without first consulting with the   Company.                  (l)   Notwithstanding anything in this Agreement to the contrary, in no event   will 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 action.         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’ prior  notice in writing mailed to the Company and, in the event that the Rights Agent or one of its  Affiliates is not also the transfer agent for the Company, to each transfer agent for the Company  Common Stock or Preferred Stock, in each case by trackable mail.  In the event the transfer  agency relationship in effect between the Company and the Rights Agent as of the date of this  Agreement terminates, then, unless such termination is the result of establishing a transfer agency  relationship with an Affiliate of the Rights Agent and, in connection therewith, this Agreement is  assigned to and assumed by such or any other Affiliate of the Rights Agent, the Rights Agent will  be deemed to have resigned automatically and be discharged from its duties under this Agreement  as of the effective date of such termination, and the Company shall be responsible for sending any  required notice.  The Company may remove the Rights Agent or any successor Rights Agent  upon thirty (30) days’ prior notice in writing, mailed to the Rights Agent or successor Rights  Agent, as the case may be, and to each transfer agent for the Company Common Stock or  Preferred Stock, by trackable mail, and, if such removal occurs after the Distribution Date, 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 any registered holder of any Rights Certificate may apply to any court of  competent jurisdiction for the appointment of a new Rights Agent.  Any successor Rights Agent,  whether appointed by the Company or by such a court, shall be (a) an entity organized and doing  business under the laws of the United States or any state of the United States in good standing,  shall be authorized under applicable laws to exercise corporate trust or stock transfer or  stockholder service powers and shall be subject to supervision or examination by federal or state  authorities and which has at the time of its appointment as Rights Agent, when combined with its  Affiliates, a combined capital and surplus of at least $50,000,000 or (b) an Affiliate of a  corporation described in clause (a).  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 Company Common Stock or  Preferred Stock, and, if such appointment occurs after the Distribution Date, mail a notice thereof                                          36    





 






    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.         Section 22. Issuance of New Rights Certificates.  Notwithstanding any of the  provisions of this Agreement or the Rights to the contrary, the Company may, at its option, issue  new Rights Certificates evidencing Rights in such form as may be approved by the Board of  Directors to reflect any adjustment or change made in accordance with the provisions of this  Agreement in the Purchase Price or the number or kind or class of shares or other securities or  property that may be acquired under the Rights Certificates.            In addition, in connection with the issuance or sale of shares by the Company of   Company Common Stock following the Distribution Date and prior to the Expiration Date, the   Company (a) shall, with respect to shares of Company Common Stock so issued or sold pursuant   to the exercise of stock options or under any employee plan or arrangement granted or awarded   as of the Distribution Date, or upon the exercise, conversion or exchange of any other securities   hereinafter issued by the Company, and (b) may, in any other case, if deemed necessary or   appropriate by the Board of Directors, 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 and Termination.                (a)   Subject to Section 29 hereof, the Company may, at its option, by action of   the Board of Directors, at any time prior to the earlier of (i) the Close of Business on the tenth   Business 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 Business Day following the   Record Date) or (ii) the Final Expiration Date, redeem all but not less than all of the then-  outstanding Rights at a redemption price of $0.0001 per Right, as such amount may be   appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring   after the date hereof (such redemption price being the “Redemption Price”).  The Company may,   at its option, by action of the Board of Directors, pay the Redemption Price either in shares of   Company Common Stock (based on the current market price, as defined in Section 11(d) hereof,   of the shares of Company Common Stock at the time of redemption) or cash or any other form of   consideration deemed appropriate by the Board of Directors and the redemption of the Rights   shall be effective at such time and on the basis and with such conditions as the Board of   Directors may in its sole discretion establish.  Notwithstanding anything in this Agreement to the   contrary, the Rights shall not be exercisable after the first occurrence of a Section 11(a)(ii) Event   until such time as the Company’s right of redemption has expired.                 (b)   Immediately upon the action of the Board of Directors ordering the   redemption of the Rights as provided in Section 23(a) above (or at such later time as the Board of   Directors may establish for the effectiveness of such redemption), and without any further action                                          37    





 






   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 for each Right so  held.  The Company shall promptly give notice of such redemption (with prompt written notice  to the Rights Agent) to the holders of the then-outstanding Rights by mailing such notice to all  such holders at each holder’s last address as it appears upon the registry books of the Rights  Agent or, prior to the Distribution Date, on the registry books of the transfer agent for the  Company 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.               (c)   The Company may, at its option, discharge all of its obligations with  respect to the Rights by (i) issuing a press release announcing the manner of redemption of the  Rights in accordance with this Agreement, and (ii) mailing payment of the Redemption Price to  the registered holders of the Rights as their last addresses as they appear on the registry books of  the Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent of  the Company Common Stock, and upon such action, all outstanding Rights and Rights  Certificates shall be null and void without any further action by the Company.               (d)   Neither the Company nor any of its Affiliates or Associates may redeem,  acquire or purchase for value any Rights at any time in any manner, other than that specifically  set forth in this Section 23 or in Section 24 hereof and other than in connection with the purchase  or repurchase by any of them of Company Common Stock prior to the Distribution Date.        Section 24. Exchange.               (a)   The Company, upon resolution of the Board of Directors, may, at its  option, at any time after the first occurrence of a Section 11(a)(ii) Event, exchange all or part of  the then-outstanding and exercisable Rights (which shall not include Rights that have become  void pursuant to Section 7(e) hereof) for Units of Preferred Stock or shares of Company  Common Stock, at the election of the Board of Directors (such Units of Preferred Stock or shares  of Company Common Stock, as applicable, the “Exchange Securities”) at an exchange ratio of  one Exchange Security per Right, as appropriately adjusted to reflect any stock split, stock  dividend or similar transaction occurring after the date hereof (such exchange ratio being the  “Exchange Ratio”).  Notwithstanding the foregoing, the Board of Directors shall not be  empowered to effect such exchange at any time after any Person (other than an Exempt Person),  together with all Affiliates and Associates of such Person, becomes the Beneficial Owner of  shares of Company Common Stock aggregating 50% or more of the shares of Company  Common Stock then outstanding.  From and after the occurrence of a Section 13(a) Event, any  Rights that theretofore have not been exchanged pursuant to this Section 24(a) shall thereafter be  exercisable only in accordance with Section 13 and may not be exchanged pursuant to this  Section 24(a).  The exchange of the Rights by the Board of Directors may be made effective at  such time, on such basis and with such conditions as the Board of Directors in its sole discretion  may establish.  Prior to effecting an exchange pursuant to this Section 24, the Board may direct  the Company to enter into a Trust Agreement in such form and with such terms as the Board  shall then approve (the “Trust Agreement”).  If the Board so directs, the Company shall enter                                         38   





 






   into the Trust Agreement and shall issue to the trust created by such agreement (the “Trust”) all  of the Exchange Securities issuable pursuant to the exchange, and all Persons entitled to receive  Exchange Securities pursuant to the exchange shall be entitled to receive such Exchange  Securities (and any dividends or distributions made thereon after the date on which such  Exchange Securities are deposited in the Trust) only from the Trust and solely upon compliance  with the relevant terms and provisions of the Trust Agreement.  Any Exchange Securities issued  at the direction of the Board in connection herewith shall be validly issued, fully paid and  nonassessable shares of Common Stock or Preferred Stock (as the case may be), and the  Company shall be deemed to have received as consideration for such issuance a benefit having a  value that is at least equal to the aggregate par value of the Exchange Securities so issued.               (b)   Immediately upon the action of the Board of Directors ordering the  exchange of any Rights pursuant to Section 24(a), and without any further action and without  any notice, the right to exercise such Rights shall terminate and the only right thereafter of a  holder of such Rights shall be to receive that number of Exchange Securities equal to the number  of such Rights held by such holder multiplied by the Exchange Ratio.  The Company shall  promptly provide public notice of any such exchange (with prompt written notice to the Rights  Agent); provided, however, that the failure to give or any defect in such notice shall not affect  the validity of such exchange.  The Company shall promptly mail a notice of any such exchange  to all of the holders of 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 shall state the  method by which the exchange of Exchange Securities 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 the event that the number of Exchange Securities that are authorized by  the Company’s Certificate of Incorporation but not outstanding or reserved for issuance for  purposes other than upon exercise of the Rights are not sufficient to permit any exchange of  Rights as contemplated in accordance with this Section 24, then the Company, at the election of  the Board of Directors, shall take all such action as may be necessary to authorize additional  Exchange Securities for issuance upon exchange of the Rights.                (d)   The Company shall not be required to issue fractions of Exchange  Securities or to distribute certificates which evidence fractional Exchange Securities.  In lieu of  issuing fractional Exchange Securities, the Company may pay to the registered holders of Rights  Certificates at the time such Rights are exchanged as herein provided an amount in cash equal to  the same fraction of the current market price (determined pursuant to Section 11(d) hereof) of  one Exchange Security on 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:                                          39   





 






                     (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 periodic cash dividend paid out of funds legally available therefor),                     (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,                     (iii) to effect any reclassification of its Preferred Stock (other than a        reclassification involving only the subdivision of outstanding shares of Preferred Stock),                     (iv)  to effect any consolidation or merger into or with any other Person        (other than a wholly owned Subsidiary of the Company in a transaction which complies        with Section 11(o) hereof), or to effect any sale or other transfer (or to permit one or        more of its Subsidiaries to effect any sale or other transfer), in one or more transactions,        of more than 50% of the assets, cash flow 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 wholly owned Subsidiaries in one or more transactions each of which        complies with Section 11(o) hereof), or                     (v)   to effect the liquidation, dissolution or winding up of the        Company,   then, in each such case, the Company shall give to the Rights Agent and 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; provided, however, no such notice shall be required pursuant to this Section 25, if any  wholly owned Subsidiary of the Company effects a consolidation or merger with or into, or  effects a sale or other transfer of assets, cash flow or earnings power to, any other wholly owned  Subsidiary of the Company.               (b)   In case any Triggering 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, 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) or Section 13 hereof, as the case may be, and (ii) all references in the preceding  paragraph (a) to Preferred Stock shall be deemed thereafter to refer also to Company Common  Stock and/or, if appropriate, other securities of the Company.                                          40   





 






          Section 26. Notices.  All notices and other communications provided for hereunder  shall, unless otherwise stated herein, be in writing and sent by trackable mail or by overnight  delivery service, if to the Company, at its address at:          Evofem Biosciences, Inc..         12400 High Bluff Drive, Suite 600         San Diego, California  92130         Attention:  Corporate Secretary                  and with a copy (which shall not constitute notice) to                  Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.         3580 Carmel Mountain Road, Suite 300         San Diego, California  92130         Attention: Adam Lenain                  and if to the Rights Agent, at its address at:          Philadelphia Stock Transfer, Inc.         2320 Harverford Road, Suite 230         Ardmore, PA  19003         Attention: Robert J. Winterle            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 (or, if prior to the Distribution Date, to   the holder of certificates representing shares of Company Common Stock) shall be sufficiently   given or made if sent by first-class mail, postage prepaid, addressed to such holder at the address   of such holder as shown on the registry books of the Company.         Section 27. Supplements and Amendments.  Prior to the Distribution Date, and subject  to the other provisions 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 Rights  or shares of Company Common Stock.  From and after the Distribution Date, the Company may,  in its sole and absolute discretion, and the Rights Agent shall, 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                                          41    





 






           affect the interests of the holders of Rights Certificates (other than an Acquiring Person         or an Affiliate or Associate of an Acquiring Person);     provided, however, that this Agreement may not be supplemented or amended to lengthen,   pursuant to clause (iii) of this sentence, (A) subject to Section 31 hereof, a time period relating to   when the Rights may be redeemed at such time as the Rights are not then redeemable, or (B) any   other time period unless such lengthening is for the purpose of protecting, enhancing or   clarifying the rights of, and/or the benefits to, the holders of Rights (other than an Acquiring   Person or an Associate or Affiliate of an Acquiring Person).  Any such supplement or   amendment shall be evidenced by a writing signed by the Company and the Rights Agent.          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 duly execute and deliver such supplement or amendment   requested by the Company; provided, however, that the Rights Agent may, but shall not be   obligated to, enter into any supplement or amendment that affects the Rights Agent’s own rights,   duties, or obligations under this Agreement.          Prior to the Distribution Date, the interests of the holders of Rights shall be deemed   coincident with the interests of the holders of Company Common Stock.         Section 28. Successors.  All the covenants and provisions of this Agreement by or for  the benefit of the Company or the Rights Agent shall bind and inure to the benefit of their  respective successors and assigns hereunder.         Section 29. Determinations and Actions by the Board of Directors, etc.  For all  purposes of this Agreement, any calculation of the number of shares of Company Common Stock  outstanding at any particular time, including for purposes of determining the particular percentage  of such outstanding shares of Company 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 Exchange  Act Regulations as in effect on the date hereof.  Except as otherwise specifically provided herein,  the Board of Directors shall have the exclusive power and authority to administer this Agreement  and to exercise all rights and powers specifically granted to the Board of Directors or to the  Company, or as may be necessary or advisable in the administration of this Agreement, including,  without limitation, the right and power (i) to interpret the provisions of this Agreement, and (ii) to  make all determinations deemed necessary or advisable for the administration of this Agreement  (including, without limitation, a determination whether to redeem or not redeem the rights or to  amend this Agreement and whether any proposed amendment adversely affects the interest of the  holders of Rights Certificates).  All such actions, calculations, interpretations and determinations  (including, for purposes of clause (y) below, all omissions with respect to the foregoing) which  are done or made by the Board of Directors in good faith shall (x) be final, conclusive and binding  on the Company, the Rights Agent, the holders of the Rights and all other parties, and (y) not  subject the Board of Directors or any member thereof to any liability to the holders of the Rights.         Section 30. Benefits of this Agreement.  Nothing in this Agreement shall be construed  to give to any Person other than the Company, the Rights Agent and the registered holders of the  Rights Certificates (and, prior to the Distribution Date, registered holders of shares of Company                                          42    





 






    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 shares of Company 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,  (i) if any such term, provision, covenant or restriction is held by such court or authority to be  invalid, void or unenforceable and the Board of Directors determines in its good faith judgment  that severing the invalid language from this Agreement would adversely affect the purpose or  effect of this Agreement and the Rights shall not then be redeemable, 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 Business Day following the date of such determination by the Board of Directors and (ii)  if any such excluded term, provision, covenant or restriction shall adversely affect the rights,  immunities, duties or obligations of the Rights Agent, the Rights Agent shall be entitled to resign  immediately.         Section 32. Governing Law.  This Agreement, each Right and each Rights Certificate  issued hereunder shall be governed by, and construed in accordance with, the laws of the State of  Delaware applicable to contracts executed in and to be performed entirely in such State, except  that the rights, duties and obligations of the Rights Agent shall be governed by and construed in  accordance with the laws of the State of New York applicable to contracts made and to be  performed entirely within such state.         Section 33. Counterparts.  This Agreement may be executed (including by facsimile) in  one or more counterparts, and by the different parties hereto in separate counterparts, each of  which when executed shall be deemed to be an original, but all of which taken together shall  constitute one and the same instrument.  A signature to this Agreement executed and/or  transmitted electronically shall have the same authority, effect, and enforceability as an original  signature.         Section 34. Descriptive Headings.  The headings contained in this Agreement are for  descriptive purposes only and shall not affect in any way the meaning or interpretation of this  Agreement.         Section 35. Force Majeure.  Notwithstanding anything to the contrary contained herein,  the Rights Agent shall not be liable for any delays or failures in performance resulting from acts  beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage of  supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of  data due to power failures or mechanical difficulties with information storage or retrieval systems,  labor difficulties, war, or civil unrest.                                           43    





 






         IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly  executed, all as of the date first above written.        EVOFEM BIOSCIENCES, INC.                By:    /s/ Saundra Pelletier                Name: Saundra Pelletier                 Title:  Chief Executive Officer          PHILADELPHIA STOCK TRANSFER, INC.                By:   /s/ Robert J. Winterle                Name: Robert J. Winterle                Title:  President                                                                   44   





 






                                                                          EXHIBIT A                                                        TO RIGHTS AGREEMENT                         FORM OF RIGHTS CERTIFICATE  Certificate No.  ______                                           ______ Rights         NOT EXERCISABLE AFTER THE EXPIRATION DATE (AS DEFINED IN THE  RIGHTS AGREEMENT REFERRED TO BELOW).  THE RIGHTS ARE SUBJECT TO  REDEMPTION OR EXCHANGE, AT THE OPTION OF THE COMPANY, ON THE TERMS  SET FORTH IN THE RIGHTS AGREEMENT.  UNDER CERTAIN CIRCUMSTANCES SET  FORTH IN THE RIGHTS AGREEMENT, RIGHTS BENEFICIALLY OWNED 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.                               RIGHTS CERTIFICATE                            EVOFEM BIOSCIENCES, INC.         This certifies that ____________________, or registered assigns, is the registered holder  of the number of Rights set forth above, each of which entitles the registered holder thereof,  subject to the terms and conditions of the Rights Agreement dated as of March 24, 2020, as  amended from time to time (the “Rights Agreement”) (terms defined therein being used herein  with the same meaning unless otherwise defined herein), between Evofem Biosciences, Inc., a  Delaware corporation (the “Company”), and Philadelphia Stock Transfer, Inc., as Rights Agent  (which term shall include any successor Rights Agent under the Rights Agreement), to purchase  from the Company at any time after the Distribution Date and prior to the Expiration Date, at the  office of the Rights Agent, one one-thousandth (1/1,000) of a fully paid and nonassessable share  of Series A Preferred Stock, par value $0.0001 per share (the “Preferred Stock”), of the  Company at the Purchase Price initially of $17.50 per one one-thousandth (1/1,000) share of  Preferred Stock (each such one one-thousandth (1/1,000) of a share being a “Unit”), upon  presentation and surrender of this Rights Certificate with the Election to Purchase properly  completed and related certificate duly executed.  The number of Rights evidenced by this Rights  Certificate (and the number and kind of shares which may be purchased upon exercise thereof)  and the Purchase Price per Unit set forth above, are the number and Purchase Price as of March  24, 2020, based on the Preferred Stock as constituted at such date.         Upon the occurrence of a Section 11(a)(ii) Event, if the Rights evidenced by this Rights  Certificate are beneficially owned by (i) an Acquiring Person or an Affiliate or Associate of any  such Acquiring Person or (ii) under certain circumstances described in the Rights Agreement, a  direct or indirect transferee of any such Acquiring Person, Associate or Affiliate, including a  transferee of any person who, after such transfer, becomes an Acquiring Person or an Affiliate or  Associate of an Acquiring Person, such Rights shall become null and void and no holder hereof                                         A-1   





 






   shall have any right with respect to such Rights from and after the occurrence of such  Section 11(a)(ii) Event.           In certain circumstances described in the Rights Agreement, the Rights evidenced hereby  may entitle the registered holder thereof to purchase capital stock of an entity other than the  Company or receive common stock, cash or other assets, all as provided in the Rights  Agreement.         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 subject to modification and adjustment upon the  happening of certain events, including a Triggering Event.         This Rights Certificate is subject to all of the terms and conditions of the Rights  Agreement, which terms and conditions are hereby incorporated herein by reference and made a  part hereof and to which Rights Agreement reference is hereby made for a full description of the  rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent,  the Company and the holders of the 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 office or  offices of the Rights Agent designated for such purpose and are available from the Rights Agent  upon written request.         This Rights Certificate, with or without other Rights Certificates, upon surrender at the  office of the Rights Agent designated for such purpose, may be exchanged for another Rights  Certificate or Rights Certificates of like tenor and date evidencing an aggregate number of Rights  equal to the aggregate number of Rights evidenced by the Rights Certificate or Rights  Certificates surrendered.  If this Rights Certificate shall be exercised in part, the registered 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 under certain circumstances at its option at a  redemption price of $0.0001 per Right (as such amount may be adjusted pursuant to the Rights  Agreement), at any time prior to the earlier of the Close of Business on (i) the tenth business 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 Business Day following the Record Date)  and (ii) the Final Expiration Date. The Rights will not be exercisable until such time as the  Company’s right of redemption has expired. In addition, subject to the provisions of the Rights  Agreement, the Rights may be exchanged, in whole or in part, for Units of Preferred Stock or  shares of the Common Stock of the Company.  Immediately upon the action of the Board of  Directors of the Company authorizing any such exchange, and without any further action or any  notice, the Rights (other than Rights which are not subject to such exchange) will terminate and  the Rights will only enable holders to receive the shares issuable upon such exchange.         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                                        A-2   





 






   (1/1,000) 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 Preferred Stock or of any other securities which may  at any time be issuable on the exercise hereof, nor shall anything contained in the Rights  Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a  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 of subscription rights, or otherwise,  until the 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 the Rights Agent.                  WITNESS the facsimile signature of the proper officers of the Company.  Dated as  of ____________.                                               EVOFEM BIOSCIENCES, INC.                                                                               By:______________________________________                                            Name:                                            Title:  President                                                                                                                     By:______________________________________                                            Name:                                            Title:  Secretary     Countersigned:   PHILADELPHIA STOCK TRANSFER, INC.   as Rights Agent      By:  ______________________________        Name:        Title:                                         A-3   





 






                        (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 in (1) and (2) that:         (1)   this Rights Certificate  is  is not being sold, assigned and transferred by or on  behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such  Acquiring Person (as such terms are defined in the Rights Agreement); and          (2)   after due inquiry and to the best knowledge of the undersigned, it  did  did not  acquire the Rights evidenced by this Rights Certificate from any Person who is, was or  subsequently became an Acquiring Person or an Affiliate or Associate of an Acquiring Person.                                             Dated:  ________________                                             ________________________________                                                       Signature                                                                                                               Signature Guaranteed:                                                                                                                                              A-4   





 






                                      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.         Signatures must be guaranteed by an approved eligible financial institution acceptable to  the Rights Agent in its sole discretion or by a participant in the Securities Transfer Agents  Medallion Program, the Stock Exchange Medallion Program or the New York Stock Exchange  Medallion Program.           In the event the certification set forth above is not completed, the Company will deem the  Beneficial Owner of the Rights evidenced by this Rights Certificate to be an Acquiring Person or  an Affiliate or Associate thereof (as such terms are defined in the Rights Agreement) and, in the  case of an Assignment, will affix a legend to that effect on any Rights Certificates issued in  exchange for this Rights Certificate.                                         A-5   





 






                         FORM OF ELECTION TO PURCHASE                 (To be executed if the registered holder desires to exercise                      Rights represented by the Rights Certificate.)   To:  EVOFEM BIOSCIENCES, INC.         The undersigned hereby irrevocably elects to exercise ____________________ Rights  represented by this Rights Certificate to purchase the Units of Preferred Stock issuable upon the  exercise of the Rights (or such other securities of the Company or of any other person or other  property which may be issuable upon the exercise of the Rights) and requests that certificates for  such Units (or such other securities) 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:                                                                                                                                                                                                                                                                                                                                                                                                                                   A-6   





 






                                     Certificate         The undersigned hereby certifies by checking the appropriate boxes in (1) and (2) that:           (1)   the Rights evidenced by this Rights Certificate  are  are not being exercised  by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or an Associate  thereof (as such terms are defined in the Rights Agreement); and          (2)   after due inquiry and to the best knowledge of the undersigned, it  did  did not  acquire the Rights evidenced by this Rights Certificate from any person who is, was or  subsequently became an Acquiring Person or an Affiliate or Associate thereof.                                             Dated:  ________________                                             ____________________________________                                                       Signature                                                                                                               Signature Guaranteed:                                                                                                                          NOTICE         The signature in the foregoing Election to Purchase and Certificate must conform to the  name as written upon the face of this Rights Certificate in every particular, without alteration or  enlargement or any change whatsoever.         Signatures must be guaranteed by an approved eligible financial institution acceptable to  the Rights Agent in its sole discretion or by a participant in the Securities Transfer Agents  Medallion Program, the Stock Exchange Medallion Program or the New York Stock Exchange  Medallion Program.         In the event the certification set forth above is not completed, the Company will deem the  Beneficial Owner of the Rights evidenced by this Rights Certificate to be an Acquiring Person or  an Affiliate or Associate thereof (as such terms are defined in the Rights Agreement) and the  election to purchase will not be honored.                                         A-7   





 






                                                                         EXHIBIT B                                                        TO RIGHTS AGREEMENT     UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT,    RIGHTS ISSUED TO, OR HELD BY, ANY PERSON WHO IS, WAS OR BECOMES AN         ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE THEREOF           (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT),       WHETHER CURRENTLY HELD BY OR ON BEHALF OF SUCH PERSON OR                          BY ANY SUBSEQUENT HOLDER,                         MAY BECOME NULL AND VOID.             SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK                                                  On March 24, 2020, the Board of Directors of Evofem Biosciences, Inc. (the  “Company”) authorized and declared a dividend of one right (“Right”) for each outstanding  share of its Common Stock, par value $0.0001 per share (the “Company Common Stock”), to  stockholders of record at the close of business on April 8, 2020 (the “Record Date”), and  authorized the issuance of one Right for each share of Company Common Stock issued by the  Company (except as otherwise provided in the Rights Agreement, as defined below) between the  Record Date and the Distribution Date (as defined below).  Each Right entitles the registered  holder, subject to the terms of the Rights Agreement (as defined below), to purchase from the  Company one one-thousandth (1/1,000) of a share (a “Unit”) of Series A Preferred Stock, par  value $0.0001 per share (the “Preferred Stock”), at a purchase price of $17.50 per Unit, subject  to adjustment.  The purchase price is payable in cash or by certified or bank check or money  order payable to the order of the Company.  The description and terms of the Rights are set forth  in a Rights Agreement between the Company and Philadelphia Stock Transfer, Inc., as Rights  Agent, dated as of March 24, 2020, as amended from time to time (the “Rights Agreement”).         Copies of the Rights Agreement and the Certificate of Designation for the Preferred  Stock have been filed with the Securities and Exchange Commission as exhibits to a Current  Report on Form 8-K and a Registration Statement on Form 8-A, each dated March 25, 2020.   Copies of the Rights Agreement and the Certificate of Designation are available free of charge  from the Company.  This summary description of the Rights and the Preferred Stock does not  purport to be complete and is qualified in its entirety by reference to all of the provisions of the  Rights Agreement and the Certificate of Designation, including the definitions therein of certain  terms, which are incorporated herein by reference.         The Rights Agreement         Certificates; Distribution Date.  Initially, the Rights will attach to all certificates  representing shares of outstanding Company Common Stock, and no separate Rights Certificates  will be distributed.  Subject to the provisions of the Rights Agreement, the Rights will separate  from the Company Common Stock and the “Distribution Date” will occur upon the earlier of  (i) ten business days following a public announcement (the date of such announcement being the  “Stock Acquisition Date”) that a person or group of affiliated or associated persons (an                                        B-1   





 






   “Acquiring Person”) has acquired or otherwise obtained Beneficial Ownership of 32% or more  of the then-outstanding shares of Company Common Stock (or, if the tenth business day after the  Stock Acquisition Date occurs before the Record Date, the close of business on the Record  Date), and (ii) ten business days (or such later date as may be determined by action of the Board  of Directors) following the commencement of a tender offer or exchange offer that would result  in a person or group becoming an Acquiring Person.  Until the Distribution Date, (i) the Rights  will be evidenced by Company Common Stock certificates and will be transferred with and only  with such Company Common Stock certificates, (ii) new Company Common Stock certificates  issued after the Record Date (also including shares distributed from Treasury) will contain a  notation incorporating the Rights Agreement by reference and (iii) the surrender for transfer of  any certificates representing outstanding Company Common Stock will also constitute the  transfer of the Rights associated with the Company Common Stock represented by such  certificates.         An “Acquiring Person” does not include certain persons specified in the Rights  Agreement.         The Rights are not exercisable until the Distribution Date and, unless earlier redeemed or  exchanged by the Company as described below, will expire on the close of business on March  24, 2021, the first anniversary of the adoption of the Rights Agreement.  Under certain  circumstances, as provided in the Rights Agreement, the exercisability of the Rights may be  suspended.  In no event, however, will the Rights be exercisable prior to the expiration of the  period in which the Rights may be redeemed, as described below.         As soon as practicable after the Distribution Date, Rights Certificates will be mailed to  holders of record of Company Common Stock as of the close of business on the Distribution  Date (and to each initial holder of certain shares of Company Common Stock issued after the  Distribution Date) and, thereafter, the separate Rights Certificates alone will represent the  Rights.         Flip-In.  If a person becomes an Acquiring Person, then each holder of a Right will  thereafter have the right to receive, upon exercise, Units of Preferred Stock or, at the option of  the Company, shares of Company Common Stock (or, in certain circumstances, cash, property or  other securities of the Company) having a value equal to two times the exercise price of the  Right.  The exercise price is the purchase price multiplied by the number of Units of Preferred  Stock issuable upon exercise of a Right prior to the event described in this paragraph.   Notwithstanding any of the foregoing, following the occurrence of the event set forth in this  paragraph, all Rights that are, or (under certain circumstances specified in the Rights Agreement)  were, beneficially owned by any Acquiring Person or any affiliate or associate thereof (or certain  transferees of any thereof) will be null and void.         Flip-Over.  If, at any time following the date that any person becomes an Acquiring  Person, (i) the Company is acquired in a merger or other business combination transaction and  the Company is not the surviving corporation, (ii) any person merges with the Company and all  or part of the Company Common Stock is converted or exchanged for securities, cash or property  of the Company or any other person or (iii) 50% or more of the Company’s assets, cash flow or  earning power is sold or transferred, each holder of a Right (except Rights which previously have                                        B-2   





 






   been voided as described above) shall thereafter have the right to receive, upon exercise,  common stock of the acquiring company having a value equal to two times the exercise price of  the Right.         Redemption.  At any time until ten business days following the Stock Acquisition Date  (or, if the tenth business day after the Stock Acquisition Date occurs before the Record Date, the  close of business on the Record Date), the Board of Directors may redeem the Rights in whole,  but not in part, at a price of $0.0001 per Right (subject to adjustment in certain events) payable,  at the election of the Board of Directors, in cash, shares of Company Common Stock or other  consideration considered appropriate by the Board of Directors.  Immediately upon the action of  the Board of Directors ordering the redemption of the Rights, the Rights will terminate and the  only right of the holders of Rights will be to receive the redemption price.         Exchange.  The Company may, at any time after there is an Acquiring Person, until the  time specified in the Rights Agreement, exchange all or part of the then-outstanding and  exercisable Rights (other than Rights that shall have become null and void) for Units of Preferred  Stock or shares of Company Common Stock pursuant to a one-for-one exchange ratio, subject to  adjustment.         No Stockholder Rights; Taxation.  Until a Right is exercised, the holder thereof, as such,  will have no rights as a stockholder of the Company, including, without limitation, the right to  vote or to receive dividends.  While the distribution of the Rights will not be taxable to  stockholders or to the Company, stockholders may, depending upon the circumstances, recognize  taxable income in the event that the Rights become exercisable for Units of Preferred Stock (or  other consideration) or for common stock of the acquiring company or in the event of the  redemption of Rights as set forth above.         Amendment.  Any of the provisions of the Rights Agreement may be amended without  the approval of the holders of the Rights or Company Common Stock at any time prior to the  Distribution Date.  After such date, the provisions of the Rights Agreement may be amended in  order to cure any ambiguity, defect or inconsistency, to shorten or lengthen any time period  under the Rights Agreement, or to make changes which do not adversely affect the interests of  holders of Rights (excluding the interests of any Acquiring Person); provided, that no  amendment shall be made to lengthen (i) the time period governing redemption at such time as  the Rights are not redeemable or (ii) 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 Associate or Affiliate of an Acquiring Person).         Description of Preferred Stock         The Units of Preferred Stock that may be acquired upon exercise of the Rights will be  nonredeemable.         Each Unit of Preferred Stock will have a minimum preferential quarterly dividend of  $0.01 per Unit or any higher per share dividend declared on the Company Common Stock.                                         B-3   





 






         In the event of liquidation, the holder of a Unit of Preferred Stock will receive a preferred  liquidation payment equal to the greater of $0.01 per Unit and the per share amount paid in  respect of a share of the Company Common Stock.         Each Unit of Preferred Stock will have one vote, voting together with the Company  Common Stock.         In the event of any merger, consolidation or other transaction in which shares of  Company Common Stock are exchanged, each Unit of Preferred Stock will be entitled to receive  the per share amount paid in respect of each share of Company Common Stock.         The rights of holders of the Preferred Stock with respect to dividends, liquidation and  voting, and in the event of mergers and consolidations, are protected by customary anti-dilution  adjustment provisions.         The economic value of one Unit of Preferred Stock that may be acquired upon the  exercise of each Right should approximate the economic value of one share of Company  Common Stock.                                                  B-4   





 






                                                                        EXHIBIT C                                                          TO RIGHTS AGREEMENT                          CERTIFICATE OF DESIGNATION                                     OF THE                          SERIES A PREFERRED STOCK                                       OF                          EVOFEM BIOSCIENCES, INC.         Pursuant to Section 151 of the General Corporation Law of the State of Delaware          The undersigned officers of Evofem Biosciences, Inc., a Delaware corporation (the  “Corporation”), DO HEREBY CERTIFY:           That, pursuant to the authority conferred upon the Board of Directors of the Corporation  by its Amended and Restated Certificate of Incorporation as currently in effect (the “Certificate  of Incorporation”), the said Board of Directors, at a duly called meeting held on March 24, 2020,  at which a quorum was present and acted throughout, adopted the following resolution, which  resolution remains in full force and effect on the date hereof, creating a series of Preferred Stock  having a par value of $0.0001 per share, designated as Series A Preferred Stock (the “Series A  Preferred Stock”), out of the Corporation’s authorized shares of preferred stock of the par value  of $0.0001 per share (the “Preferred Stock”):         RESOLVED, that, pursuant to the authority granted to and vested in the Board of  Directors in accordance with applicable law and the provisions of the Certificate of  Incorporation, the Board of Directors hereby creates, authorizes and provides for 1,000,000  shares of the Corporation’s authorized Preferred Stock to be designated and issued as the  “Series A Preferred Stock,” having the relative rights, preferences and limitations that are set  forth as follows:         1.    Dividends and Distributions.                (A)   Subject to the prior and superior rights of the holders of any shares of any  other series of Preferred Stock or any other shares of stock of the Corporation ranking prior and  superior to the shares of Series A Preferred Stock with respect to dividends, each holder of one  one-thousandth (1/1,000) of a share (a “Unit”) of Series A Preferred Stock shall be entitled to  receive, when, as and if declared by the Board of Directors out of funds legally available for that  purpose, (i) quarterly dividends payable in cash on the last day of February, May, August and  November in each year (each such date being a “Quarterly Dividend Payment Date”),  commencing on the first Quarterly Dividend Payment Date after the first issuance of a Unit of  Series A Preferred Stock, in an amount per Unit (rounded to the nearest cent) equal to the greater  of (a) $0.01 or (b) subject to the provision for adjustment hereinafter set forth, the aggregate per  share amount of all cash dividends declared on shares of 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 a Unit of Series A Preferred Stock, and  (ii) subject to the provision for adjustment hereinafter set forth, quarterly distributions (payable                                        C-1    





 






  in kind) on each Quarterly Dividend Payment Date in an amount per Unit equal to the aggregate  per share amount of all non-cash dividends or other distributions (other than a dividend payable  in shares of Common Stock or a subdivision of the outstanding shares of Common Stock, by  reclassification or otherwise) declared on shares of 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 a Unit of Series A Preferred Stock.  In the event that the  Corporation shall at any time after March 24, 2020 (the “Rights Declaration Date”) (i) declare  any dividend on outstanding shares of Common Stock payable in shares of Common Stock,  (ii) subdivide outstanding shares of Common Stock or (iii) combine outstanding shares of  Common Stock into a smaller number of shares, then in each such case the amount to which the  holder of a Unit of Series A Preferred Stock was entitled immediately prior to such event under  clause (i)(b) or clause (ii) of the preceding sentence shall be adjusted by multiplying such  amount by a fraction (y) the numerator of which shall be the number of shares of Common Stock  that are outstanding immediately after such event and (z) the denominator of which shall be 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 Units of Series  A Preferred Stock as provided in paragraph (A) of this Section immediately after it declares a  dividend or distribution on the shares of Common Stock (other than a dividend payable in shares  of Common Stock or a subdivision of the outstanding shares of Common Stock, by  reclassification or otherwise); provided, however, 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 $0.01 per Unit on the Series A Preferred Stock shall nevertheless be payable on such  subsequent Quarterly Dividend Payment Date.               (C)   Dividends shall begin to accrue and shall be cumulative on each  outstanding Unit of Series A Preferred Stock from the Quarterly Dividend Payment Date next  preceding the date of issuance of a Unit of Series A Preferred Stock, unless the date of issuance  of such Unit is prior to the record date for the first Quarterly Dividend Payment Date, in which  case dividends on such Unit shall begin to accrue from the date of issuance of such Unit, or  unless the date of issuance is a Quarterly Dividend Payment Date or is a date after the record  date for the determination of holders of Units of Series A Preferred Stock entitled to receive a  quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events  such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment  Date.  Accrued but unpaid dividends shall not bear interest.  Dividends paid on Units of Series A  Preferred Stock in an amount less than the aggregate amount of all such dividends at the time  accrued and payable on such Units shall be allocated pro rata on a Unit-by-Unit basis among all  Units of Series A Preferred Stock at the time outstanding.  The Board of Directors may fix a  record date for the determination of holders of Units of Series A Preferred Stock entitled to  receive payment of a dividend or distribution declared thereon, which record date shall be no  more than 30 days prior to the date fixed for the payment thereof.         2.    Voting Rights.  The holders of Units of Series A Preferred Stock shall have the  following voting rights:                                          C-2   





 






              (A)   Subject to the provision for adjustment hereinafter set forth, each Unit of  Series A Preferred Stock shall entitle the holder thereof to one vote 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 outstanding shares of Common Stock  payable in shares of Common Stock, (ii) subdivide outstanding shares of Common Stock or  (iii) combine the outstanding shares of Common Stock into a smaller number of shares, then in  each such case the number of votes per Unit to which holders of Units of Series A Preferred  Stock were entitled immediately prior to such event shall be adjusted by multiplying such  number by a fraction (y) the numerator of which shall be the number of shares of Common Stock  outstanding immediately after such event and (z) the denominator of which shall be the number  of shares of Common Stock that were outstanding immediately prior to such event.                (B)   Except as otherwise provided herein, in the Certificate of Incorporation or  the Bylaws of the Corporation or as required by law, the holders of Units of Series A Preferred  Stock and the holders of shares of 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, or as otherwise provided by law, holders of  Units of Series A Preferred Stock shall have no special voting rights and their consent shall not  be required (except to the extent they are entitled to vote with holders of Common Stock as set  forth herein) for taking any corporate action.         3.    Certain Restrictions.                 (A)   Whenever quarterly dividends or other dividends or distributions payable  on Units of Series A Preferred Stock as provided herein are in arrears, thereafter and until all  accrued and unpaid dividends and distributions, whether or not declared, on outstanding Units of  Series A Preferred Stock shall have been paid in full, the Corporation shall not:                     (i)         declare or pay dividends, or make any other distributions,  on or redeem or purchase or otherwise acquire for consideration any shares of junior stock;                      (ii)        declare or pay dividends, or make any other distributions,  on any shares of parity stock, except dividends paid ratably on Units of Series A Preferred Stock  and shares of all such parity stock on which dividends are payable or in arrears in proportion to  the total amounts to which the holders of such Units and all such shares are then entitled;                      (iii)       redeem or purchase or otherwise acquire for consideration  shares of any parity stock, provided, however, that the Corporation may at any time redeem,  purchase or otherwise acquire shares of any such parity stock in exchange for shares of any  junior stock; or                      (iv)        redeem or purchase or otherwise acquire for consideration  any Units of Series A Preferred Stock, or any shares of parity 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 Units and shares of parity stock upon such terms as the Board of Directors, after  consideration of the respective annual dividend rates and other relative rights and preferences of                                        C-3   





 






  the respective series and classes, shall determine in good faith will result in fair and equitable  treatment among the respective series and classes.                (B)   The Corporation shall not permit any subsidiary of the Corporation to  purchase or otherwise acquire for consideration any shares of stock of the Corporation, unless  the Corporation could, under paragraph (A) of this Section 3, purchase or otherwise acquire such  shares at such time and in such manner.         4.    Reacquired Shares.  Any Units of Series A Preferred Stock purchased or  otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled  promptly after the acquisition thereof.  All such Units shall, upon their cancellation, become  authorized but unissued shares (or fractions of 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.         5.    Liquidation, Dissolution or Winding Up.                 (A)   Upon any voluntary or involuntary liquidation, dissolution or winding up  of the Corporation, no distribution shall be made (i) to the holders of shares of junior stock,  unless the holders of Units of Series A Preferred Stock shall have received, subject to adjustment  as hereinafter provided in paragraph (B), the greater of either (a) $0.01 per Unit plus an amount  equal to accrued and unpaid dividends and distributions thereon, whether or not earned or  declared, to the date of such payment, or (b) the amount equal to the aggregate per share amount  to be distributed to holders of shares of Common Stock, or (ii) to the holders of shares of parity  stock, unless simultaneously therewith distributions are made ratably on Units of Series A  Preferred Stock and all other shares of such parity stock in proportion to the total amounts to  which the holders of Units of Series A Preferred Stock are entitled under clause (i)(a) of this  sentence and to which the holders of shares of such parity stock are entitled, in each case upon  such liquidation, dissolution or winding up.               (B)   In the event the Corporation shall at any time after the Rights Declaration  Date (i) declare any dividend on outstanding shares of Common Stock payable in shares of  Common Stock, (ii) subdivide outstanding shares of Common Stock, or (iii) combine  outstanding shares of Common Stock into a smaller number of shares, then in each such case the  aggregate amount to which holders of Units of Series A Preferred Stock were entitled  immediately prior to such event pursuant to clause (i)(b) of paragraph (A) of this Section 5 shall  be adjusted by multiplying such amount by a fraction (y) the numerator of which shall be the  number of shares of Common Stock that are outstanding immediately after such event and (z) the  denominator of which shall be the number of shares of Common Stock that were outstanding  immediately prior to such event.         6.    Consolidation, Merger, etc.  In case the Corporation shall enter into any  consolidation, merger, combination or other transaction in which the shares of Common Stock  are exchanged for or converted into other stock or securities, cash and/or any other property, then  in any such case Units of Series A Preferred Stock shall at the same time be similarly exchanged  for or converted into an amount per Unit (subject to the provision for adjustment hereinafter set  forth) equal to the aggregate amount of stock, securities, cash and/or any other property (payable                                        C-4   





 






  in kind), as the case may be, into which or for which each share of Common Stock is converted  or exchanged.  In the event the Corporation shall at any time after the Rights Declaration Date  (i) declare any dividend on outstanding shares of Common Stock payable in shares of Common  Stock, (ii) subdivide outstanding shares of Common Stock, or (iii) combine outstanding  Common Stock into a smaller number of shares, then in each such case the amount set forth in  the immediately preceding sentence with respect to the exchange or conversion of Units of Series  A Preferred Stock shall be adjusted by multiplying such amount by a fraction (y) the numerator  of which shall be the number of shares of Common Stock that are outstanding immediately after  such event and (z) the denominator of which shall be the number of shares of Common Stock  that were outstanding immediately prior to such event.         7.    Redemption.  The Units of Series A Preferred Stock and shares of Series A  Preferred Stock shall not be redeemable.         8.    Ranking.  The Units of Series A Preferred Stock and shares of Series A Preferred  Stock shall rank junior to all other series of the Preferred Stock and to any other class of  Preferred Stock that hereafter may be issued by the Corporation as to the payment of dividends  and the distribution of assets, unless the terms of any such series or class shall provide otherwise.         9.    Fractional Shares.  The Series A Preferred Stock may be issued in Units or other  fractions of a share, which Units or other fractions shall entitle the holder, in proportion to such  holder’s Units or other fractional shares, to exercise voting rights, receive dividends, participate  in distributions and to have the benefit of all other rights of holders of Series A Preferred Stock.         10.   Amendment.  At any time when any Units of Series A Preferred Stock are  outstanding, neither the Certificate of Incorporation of the Corporation nor this Certificate of  Designation shall be amended in any manner which would materially alter or change the powers,  preferences or special rights of the Units of Series A Preferred Stock so as to affect them  adversely without the affirmative vote of the holders of a majority or more of the outstanding  Units of Series A Preferred Stock, voting separately as a class.          11.   Certain Definitions.  As used in this resolution with respect to the Series A  Preferred Stock, the following terms shall have the following meanings:               (A)   The term “Common Stock” shall mean the class of stock designated as the  common stock, par value $0.0001 per share, of the Corporation at the date hereof or any other  class of stock resulting from successive changes or reclassification of the common stock.               (B)   The term “junior stock” (i) as used in Section 3, shall mean the Common  Stock and any other class or series of capital stock of the Corporation over which the Series A  Preferred Stock has preference or priority as to dividends and (ii) as used in Section 5, shall  mean the Common Stock and any other class or series of capital stock of the Corporation over  which the Series A Preferred Stock has preference or priority in any liquidation, dissolution or  winding up of the Corporation.               (C)   The term “parity stock” (i) as used in Section 3, shall mean any class or  series of capital stock of the Corporation hereafter authorized or issued ranking pari passu with  the Series A Preferred Stock as to dividends and (ii) as used in Section 5, shall mean any class or                                        C-5   





 






  series of capital stock of the Corporation ranking pari passu with the Series A Preferred Stock in  any liquidation, dissolution or winding up.         IN WITNESS WHEREOF, Evofem Biosciences, Inc. has caused this Certificate of  Designation to be signed by its Chief Executive Officer and its Secretary this March 24, 2020.                                                 EVOFEM BIOSCIENCES, INC.                                                                                                                      By:______________________________________                                             Name:                                             Title:  Chief Executive Officer                                                                                                                                                                        By:______________________________________                                             Name:                                             Title:  Secretary                                                                                                                                                                              C-6