Exhibit 4.1





Exhibit 4.1




EXECUTION COPY




 





ASTROTECH CORPORATION




and




AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC

as Rights Agent




Rights Agreement




Dated as of July 29, 2009




 





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 1 Certain Definitions
	 	 	1	 
	Section 2 Appointment of Rights Agent
	 	 	5	 
	Section 3 Issue of Right Certificates
	 	 	5	 
	Section 4 Form of Right Certificates
	 	 	6	 
	Section 5 Countersignature and Registration
	 	 	7	 
	Section 6 Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificates
	 	 	7	 
	Section 7 Exercise of Rights; Purchase Price; Expiration Date of Rights
	 	 	8	 
	Section 8 Cancellation and Destruction of Right Certificates
	 	 	9	 
	Section 9 Availability of Preferred Shares
	 	 	9	 
	Section 10 Preferred Shares Record Date
	 	 	9	 
	Section 11 Adjustment of Purchase Price, Number of Shares or Number of Rights
	 	 	10	 
	Section 12 Certificate of Adjusted Purchase Price or Number of Shares
	 	 	15	 
	Section 13 Consolidation, Merger or Sale or Transfer of Assets or Earning Power
	 	 	16	 
	Section 14 Fractional Rights and Fractional Shares
	 	 	17	 
	Section 15 Rights of Action
	 	 	17	 
	Section 16 Agreement of Right Holders
	 	 	18	 
	Section 17 Right Certificate Holder Not Deemed a Stockholder
	 	 	18	 
	Section 18 Concerning the Rights Agent
	 	 	18	 
	Section 19 Merger or Consolidation or Change of Name of Rights Agent
	 	 	19	 
	Section 20 Duties of Rights Agent
	 	 	19	 
	Section 21 Change of Rights Agent
	 	 	21	 
	Section 22 Issuance of New Right Certificates
	 	 	22	 
	Section 23 Redemption
	 	 	22	 
	Section 24 Exchange
	 	 	23	 
	Section 25 Notice of Certain Events
	 	 	24	 
	Section 26 Notices
	 	 	24	 
	Section 27 Supplements and Amendments
	 	 	25	 
	Section 28 Successors
	 	 	25	 
	Section 29 Benefits of this Rights Agreement
	 	 	25	 
	Section 30 Severability
	 	 	26	 
	Section 31 Governing Law
	 	 	26	 
	Section 32 Counterparts
	 	 	26	 
	Section 33 Descriptive Headings
	 	 	26	 







Exhibit A — Form of Designation of Rights, Terms and Preferences




Exhibit B — Form of Right Certificate




Exhibit C — Summary of Rights to Purchase Preferred Shares


 


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RIGHTS AGREEMENT




Rights Agreement, dated as of July 29, 2009, between Astrotech Corporation, a Washington
corporation (the “Company”), and American Stock Transfer & Trust Company, LLC (the
“Rights Agent”).



WHEREAS, on July 29, 2009, the Board of Directors of the Company authorized and declared a
dividend of one preferred share purchase right (a “Right”) for each Common Share of the
Company outstanding as of the Close of Business on August 10, 2009 (the “Record Date”),
each Right representing the right to purchase one one-thousandth (subject to adjustment) of a
Preferred Share, upon the terms and subject to the conditions herein set forth, and the Board of
Directors has further authorized and directed the issuance of one Right (subject to adjustment as
provided herein) with respect to each Common Share that shall become outstanding between the Record
Date and the earliest of the Distribution Date, the Redemption Date and the Expiration Date.



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 Rights 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 15% or more of the
Common Shares then outstanding, but shall not include (i) the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any
entity or trustee holding Common Shares for or pursuant to the terms of any such plan or for the
purpose of funding any such plan or funding other employee benefits for employees of the Company or
of any Subsidiary of the Company, (ii) any Grandfathered Person, unless such Grandfathered Person
becomes the Beneficial Owner of a percentage of the Common Shares then outstanding equal to or
exceeding such Grandfathered Person’s Grandfathered Percentage, (iii) any Person who or which
becomes the Beneficial Owner of 15% (or in the case of a Grandfathered Person, the Grandfathered
Percentage applicable to such Grandfathered Person) or more of the Common Shares then outstanding
as the result of a reduction in the outstanding Common Shares resulting from acquisition of Common
Shares by the Company approved by the Board of Directors, unless and until such Person becomes the
Beneficial Owner of any additional Common Shares (other than pursuant to a stock split, stock
dividend or similar transaction) and immediately thereafter becomes the Beneficial Owner of 15% (or
in the case of a Grandfathered Person, the Grandfathered Percentage applicable to such
Grandfathered Person) or more of the Common Shares, (iv) any Person who or which the Board of
Directors of the Company determines, in good faith, became an Acquiring Person inadvertently, if
such Person divests as promptly as practicable a sufficient number of Common Shares so that such
Person would no longer be an Acquiring Person, or (v) any Person who or which the Board of
Directors of the Company determines, prior to the time such Person would otherwise be an Acquiring
Person, should be exempted from the definition of Acquiring Person, provided that the Board of
Directors may make such exemption subject to such conditions, if any, which the Board may
determine.


 


 









 





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



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




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




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




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




(iv) which are the subject of a derivative transaction entered into by such Person, or
derivative security acquired by such Person, which gives such Person the economic equivalent
of ownership of an amount of such securities due to the fact that the value of the
derivative is explicitly determined by reference to the price or value of such securities,
without regard to whether (A) such derivative conveys any voting rights in such securities
to such Person, (B) the derivative is required to be, or capable of being, settled through
delivery of such securities, or (C) such Person may have entered into other transactions
that hedge the economic effect of such derivative. In determining the
number of Common Shares deemed Beneficially Owned by virtue of the operation of this
subparagraph (iv) of this paragraph (c), the subject Person shall be deemed to Beneficially
Own (without duplication) the number of Common Shares that are synthetically owned pursuant
to such derivative transactions or such derivative securities.


 


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



(d) “Business Day” shall mean any day other than a Saturday, a Sunday, or a day on
which banking institutions in 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 time, on
such date, provided, however, that, if such date is not a Business Day, it shall
mean 5:00 p.m., New York City time, on the next succeeding Business Day.



(f) “Common Shares” shall mean the shares of common stock, no par value per share, of
the Company, except that “Common Shares” when used with reference to any Person other than the
Company shall mean the capital stock (or equity interest) with the greatest voting power of such
other Person or, if such other Person is a Subsidiary of another Person, the Person or Persons
which ultimately control such first-mentioned Person.



(g) “Company” shall have the meaning set forth in the preamble hereof.



(h) “Current per share market price” shall have the meaning set forth in Section 11(d)
hereof.



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



(j) “Equivalent preferred shares” shall have the meaning set forth in Section 11(b)
hereof.



(k) “Exchange Act” shall mean the Securities Exchange Act of 1934.



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



(m) “Expiration Date” shall mean the Close of Business on August 10, 2010.



(n) “Grandfathered Percentage” shall mean, with respect to any Grandfathered Person,
the percentage of the outstanding Common Shares that such Grandfathered Person, together with all
Affiliates and Associates of such Grandfathered Person, Beneficially Owns as of the Grandfathered
Time, plus an additional 1/2%; provided, however, that, in the event any
Grandfathered Person shall sell, transfer, or otherwise dispose of any outstanding Common Shares
after the Grandfathered Time, the Grandfathered Percentage shall, subsequent to such
sale, transfer or disposition, mean, with respect to such Grandfathered Person, the lesser of
(i) the Grandfathered Percentage as in effect immediately prior to such sale, transfer or
disposition or (ii) the percentage of outstanding Common Shares that such Grandfathered Person
Beneficially Owns immediately following such sale, transfer or disposition, plus an additional
1/2%.


 


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(o) “Grandfathered Person” shall mean any Person who or which, together with all
Affiliates and Associates of such Person, is, as of the Grandfathered Time, the Beneficial Owner of
15% or more of the Common Shares then outstanding. Notwithstanding anything to the contrary
provided in this Rights Agreement, any Grandfathered Person who after the Grandfathered Time
becomes the Beneficial Owner of less than 15% of the Common Shares then outstanding shall cease to
be a Grandfathered Person and shall be subject to all of the provisions of this Agreement in the
same manner as any Person who is not and was not a Grandfathered Person.



(p) “Grandfathered Time” shall mean 4:15 p.m., New York City time, on August 10, 2009.



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



(r) “Preferred Shares” shall mean shares of Series D Junior Participating Preferred
Stock, $.01 par value, of the Company having the rights and preferences set forth in the Form of
Designation of Rights, Terms and Preferences attached to this Rights Agreement as Exhibit A.



(s) “Purchase Price” shall initially be $6.50 for each one one-thousandth of a
Preferred Share purchasable pursuant to the exercise of a Right, and shall be subject to adjustment
from time to time as provided in Section 11 or 13 hereof.



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



(u) “Redemption Date” shall mean the time at which the Rights are redeemed as provided
in Section 23 hereof.



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



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



(x) “Right Certificate” shall have the meaning set forth in Section 3(a) hereof.



(y) “Rights Agent” shall have the meaning set forth in the preamble hereof.



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



(aa) “Stock Acquisition Date” shall mean the first date of public announcement
(including, without limitation, by a filing under the Exchange Act) by the Company or an
Acquiring Person that an Acquiring Person has become such or such earlier date as a majority
of the Board shall become aware of the existence of an Acquiring Person.


 


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



(cc) “Trading Day” shall have the meaning set forth in Section 11(d)(i) hereof.



Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent to act as agent for the Company and the holders
of the Rights (who, in accordance with Section 3 hereof, shall prior to the Distribution Date also
be the holders of the Common Shares) in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The Company may from time to time appoint such
co-Rights Agents as it may deem necessary or desirable.



Section 3. Issue of Right Certificates. (a) Until the earlier of the Close of Business on (i) the tenth day after the Stock
Acquisition Date or (ii) such date, if any, as may be determined by action of the Board of
Directors of the Company after the date of the commencement by any Person (other than the Company,
any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the
Company, or any entity or trustee holding Common Shares for or pursuant to the terms of any such
plan or for the purpose of funding any such plan or funding other employee benefits for employees
of the Company or of any Subsidiary of the Company) of, or of the first public announcement of the
intention of any Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, or any entity or trustee holding
Common Shares for or pursuant to the terms of any such plan or for the purpose of funding any such
plan or funding other employee benefits for employees of the Company or of any Subsidiary of the
Company) to commence, a tender or exchange offer the consummation of which would result in any
Person becoming an Acquiring Person (including any such date which is after the date of this Rights
Agreement and prior to the issuance of the Rights; the earlier of such dates being herein referred
to as the “Distribution Date”), (x) the Rights will be evidenced (subject to the provisions
of Section 3(b) hereof) by the certificates for Common Shares registered in the names of the
holders thereof (which certificates shall also be deemed to be Right Certificates) and not by
separate Right Certificates and (y) the right to receive Right Certificates will be transferable
only in connection with the transfer of Common Shares. As soon as practicable after the
Distribution Date, the Company will prepare and execute, the Rights Agent will countersign, and the
Company will send or cause to be sent (and the Rights Agent will, if requested, send) by
first-class, insured, postage-prepaid mail, to each record holder of Common Shares as of the Close
of Business on the Distribution Date, at the address of such holder shown on the records of the
Company, a Right Certificate, in substantially the form of Exhibit B hereto (a “Right
Certificate”), evidencing one Right for each Common Share so held. As of the Distribution
Date, the Rights will be evidenced solely by such Right Certificates.


 


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(b) The Company will make available, as promptly as practicable following the Record Date, a
Summary of Rights to Purchase Preferred Shares, in substantially the form of Exhibit C hereto, to
any holder of Rights who may so request from time to time prior to the Expiration Date. With
respect to certificates for Common Shares outstanding as of the Record Date, until the Distribution
Date, the Rights will be evidenced by such certificates and the registered holders of the Common
Shares shall also be the registered holders of the associated Rights. Until the Distribution Date
(or the earlier of the Redemption Date or the Expiration Date), the surrender for transfer of any
certificate for Common Shares in respect of which Rights have been issued shall also constitute the
transfer of the Rights associated with such Common Shares.



(c) Rights shall be issued in respect of all Common Shares which are issued (whether
originally issued or from the Company’s treasury) after the Record Date but prior to the earliest
of the Distribution Date, the Redemption Date or the Expiration Date. Certificates representing
such Common Shares shall bear the following legend:




This certificate also evidences and entitles the holder hereof to
certain rights as set forth in a Rights Agreement between Astrotech
Corporation (the “Company”) and the Rights Agent thereunder
(the “Rights Agreement”), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at
the principal offices of the Company. Under certain circumstances,
as set forth in the Rights Agreement, such rights will be evidenced
by separate certificates and will no longer be evidenced by this
certificate. The Company will mail to the holder of this
certificate a copy of the Rights Agreement without charge after
receipt of a written request therefor. UNDER CERTAIN CIRCUMSTANCES,
AS SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS ISSUED TO ANY PERSON
WHO BECOMES AN ACQUIRING PERSON (AS DEFINED IN THE RIGHTS
AGREEMENT), INCLUDING SUCH RIGHTS HELD BY A SUBSEQUENT HOLDER, MAY
BECOME NULL AND VOID.



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



Section 4. Form of Right Certificates. The Right Certificates (and the forms of election to purchase Preferred Shares and of
assignment to be printed on the reverse thereof) shall be substantially the same as
Exhibit B hereto and may have such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Rights Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange 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 Sections 11 and 22 hereof, the Right
Certificates shall entitle the holders thereof to purchase such number of one one-thousandths of a
Preferred Share as shall be set forth therein at the price per one one-thousandth of a Preferred
Share set forth therein, but the number of one one-thousandths of a Preferred Share and the
Purchase Price shall be subject to adjustment as provided herein.


 


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



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



Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates. (a) Subject to the provisions of Section 14 hereof, at any time after the Close of Business
on the Distribution Date, and at or prior to the Close of Business on the earlier of the Redemption
Date or the Expiration Date, any Right Certificate or Right Certificates (other than Right
Certificates representing Rights that have become void pursuant to Section 11(a)(ii) hereof or that
have been exchanged pursuant to Section 24 hereof) may be transferred, split up, combined or
exchanged for another Right Certificate or Right Certificates entitling the registered holder to
purchase a like number of one one-thousandths of a Preferred Share as the Right Certificate or
Right Certificates surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine or exchange any Right Certificate or
Right Certificates shall make such request in writing delivered to the Rights Agent, and shall
surrender the Right Certificate or Right Certificates to be transferred, split up, combined or
exchanged at the principal office of the Rights Agent. Thereupon the Rights Agent shall
countersign and deliver to the Person entitled thereto a Right Certificate or Right Certificates,
as the case may be, as so requested. The Company may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any transfer, split up,
combination or exchange of Right Certificates.


 


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



Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights. (a) The registered holder of any Right Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein), in whole or in part, at any time after the Distribution
Date, upon surrender of the Right Certificate, with the form of election to purchase on the reverse
side thereof duly executed, to the Rights Agent at the principal office of the Rights Agent,
together with payment of the Purchase Price for each one one-thousandth of a Preferred Share as to
which the Rights are exercised, at or prior to the earliest of (i) the Expiration Date, (ii) the
Redemption Date or (iii) the time at which such Rights are exchanged as provided in Section 24
hereof.



(b) The Purchase Price shall be payable in lawful money of the United States of America in
accordance with paragraph (c) below.



(c) Upon receipt of a Right Certificate representing exercisable Rights, with the form of
election to purchase duly executed, accompanied by payment of the Purchase Price for the shares to
be purchased and an amount equal to any applicable transfer tax required to be paid by the holder
of such Right Certificate in accordance with Section 9 hereof by certified check, cashier’s check
or money order payable to the order of the Company, the Rights Agent shall thereupon promptly
(i) (A) requisition from any transfer agent of the Preferred Shares certificates for the number of
Preferred Shares to be purchased and the Company hereby irrevocably authorizes any such transfer
agent to comply with all such requests, or (B) requisition from the depositary agent depositary
receipts representing such number of one one-thousandths of a Preferred Share as are to be
purchased (in which case certificates for the Preferred Shares represented by such receipts shall
be deposited by the transfer agent of the Preferred Shares with such depositary agent) and the
Company hereby directs such depositary agent to comply with such request; (ii) when appropriate,
requisition from the Company the amount of cash to be paid in lieu of issuance of fractional shares
in accordance with Section 14 hereof; (iii) promptly after receipt of such certificates or
depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Right Certificate, registered
in such name or names as may be designated by such holder; and (iv) when appropriate, after
receipt, promptly deliver such cash to or upon the order of the registered holder of such Right
Certificate.



(d) In case the registered holder of any Right Certificate shall exercise less than all the
Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right
Certificate or to such holder’s duly authorized assigns, subject to the provisions of Section 14
hereof.


 


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



Section 9. Availability of Preferred Shares.
(a) The Company covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued Preferred Shares or any Preferred Shares held in its treasury, the
number of Preferred Shares that will be sufficient to permit the exercise in full of all
outstanding Rights in accordance with Section 7. The Company covenants and agrees that it will
take all such action as may be necessary to ensure that all securities delivered upon exercise of
Rights shall, at the time of delivery of the certificates for such securities (subject to payment
of the Purchase Price), be duly and validly authorized and issued and fully paid and nonassessable.



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



(c) The Company will use its best efforts to ensure that any securities issued pursuant hereto
are issued in compliance with all applicable laws.



Section 10. Preferred Shares Record Date.
Each Person in whose name any certificate for Preferred Shares is issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder of record of the Preferred Shares
represented thereby on, and such certificate shall be dated, the date upon which the Right
Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any
applicable transfer taxes) was made; provided, however, that if the date of such
surrender and payment is a date upon which the Preferred Shares transfer books of the Company are
closed, such Person shall be deemed to have become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day on which the Preferred Shares transfer
books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder
of a Right Certificate shall not be entitled to any rights of a holder of Preferred Shares for
which the Rights shall be exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except as provided herein.


 


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



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




(ii) Subject to Section 24 of this Rights Agreement, in the event any Person becomes an
Acquiring Person, each holder of a Right shall thereafter have a right to
receive, upon exercise thereof at a price equal to the then current Purchase Price
multiplied by the number of one one-thousandths of a Preferred Share for which a Right is
then exercisable, in accordance with the terms of this Rights Agreement and in lieu of
Preferred Shares, such number of Common Shares as shall equal the result obtained by
(A) multiplying the then current Purchase Price by the number of one one-thousandths of a
Preferred Share for which a Right is then exercisable and dividing that product by (B) 50%
of the then current per share market price of the Company’s Common Shares (determined
pursuant to Section 11(d) hereof) on the date of the occurrence of such event. In the event
that any Person shall become an Acquiring Person and the Rights shall then be outstanding,
the Company shall not take any action which would eliminate or diminish the benefits
intended to be afforded by the Rights.


 


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Notwithstanding anything in this Agreement to the contrary, from and after the occurrence of
such event, any Rights that are or were acquired or Beneficially Owned by any Acquiring Person (or
any Associate or Affiliate of such Acquiring Person) shall be void and any holder of such Rights
shall thereafter have no right to exercise such Rights under any provision of this Rights
Agreement. No Right Certificate shall be issued pursuant to Section 3 that represents Rights
Beneficially Owned by an Acquiring Person whose Rights would be void pursuant to the preceding
sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued at any time
upon the transfer of any Rights to an Acquiring Person whose Rights would be void pursuant to the
preceding sentence or any Associate or Affiliate thereof or to any nominee of such Acquiring
Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for
transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence shall
be cancelled.




(iii) If there shall not be sufficient Common Shares issued but not outstanding or
authorized but unissued to permit the exercise in full of the Rights in accordance with the
foregoing subparagraph (ii), the Company shall take all such action as may be necessary to
authorize additional Common Shares for issuance upon exercise of the Rights. If the Company
shall, after good faith effort, be unable to take all such action as may be necessary to
authorize such additional Common Shares, the Company shall substitute, for each Common Share
that would otherwise be issuable upon exercise of a Right, a number of Preferred Shares or
fraction thereof (or a security with substantially similar rights, privileges, preferences,
voting power and economic rights) such that the current per share market price of one
Preferred Share (or such other security) multiplied by such number or fraction is equal to
the current per share market price of one Common Share as of the date of issuance of such
Preferred Shares or fraction thereof (or other security).



(b) In case the Company shall fix a record date for the issuance of rights, options or
warrants to all holders of Preferred Shares entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares
having the same rights, privileges and preferences as the Preferred Shares (“equivalent
preferred shares”)) or securities convertible into Preferred Shares or equivalent preferred
shares at a price per Preferred Share or equivalent preferred share (or having a conversion price
per share, if a security convertible into Preferred Shares or equivalent preferred shares) less
than the then current per share market price of the Preferred Shares on such record date, the
Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the numerator of which shall be the
number of Preferred Shares outstanding on such record date plus the number of Preferred Shares
which the aggregate offering price of the total number of Preferred Shares and/or equivalent
preferred shares so to be offered (and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market price and the denominator of
which shall be the number of Preferred Shares outstanding on such record date plus the number of
additional Preferred Shares and/or equivalent preferred shares to be offered for subscription or
purchase (or into which the convertible securities so to be offered are initially convertible);
provided, however, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the shares of capital stock of the
Company issuable upon exercise of one Right. In case such subscription price may be paid in a
consideration part or all of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent and shall be binding on
the Rights Agent and the holders of the Rights. Preferred Shares owned by or held for the account
of the Company shall not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed; and in the event that
such rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date had not been fixed.


 


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



(d) (i) For the purpose of any computation hereunder, the “current per share market price” of
any security (a “Security” for the purpose of this Section 11(d)(i)) on any date shall be
deemed to be the average of the daily closing prices per share of such Security for the 30
consecutive Trading Days immediately prior to such date; provided, however, that in
the event that the current per share market price of the Security is determined during a period
following the announcement by the issuer of such Security of (A) a dividend or distribution on such
Security payable in shares of such Security or securities convertible into such shares, or (B) any
subdivision, combination or reclassification of such Security and prior to the expiration of 30
Trading Days after the ex-dividend date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then, and in each such case, the current per
share market price shall be appropriately adjusted to reflect the current market price per share
equivalent of such Security. The closing price for each day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case, as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Security is not listed or admitted to trading on the New York Stock Exchange,
as reported in the principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Security is listed or admitted to
trading or, if the Security is not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the OTC Bulletin Board, the Pink Sheets or
such other system then in use, or, if on any such date the Security is 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 Security selected by the Board of Directors of the Company. If on any
such date no such market maker is making a market in the Security, the fair value of the Security
on such date as determined in good faith by the Board of Directors of the Company shall be used.
The term “Trading Day” shall mean a day on which the principal national securities exchange
on which the Security is listed or admitted to trading is open for the transaction of business or,
if the Security is not listed or admitted to trading on any national securities exchange, a
Business Day.


 


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



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



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



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


 


-13-









 





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



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



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



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


 


-14-









 





(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 issuing to the holder of any Right exercised after such
record date of the Preferred Shares and other capital stock or securities of the Company, if any,
issuable upon such exercise over and above the Preferred Shares and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price
in effect prior to such adjustment; provided, however, that the Company shall
deliver to such holder a due bill or other appropriate instrument evidencing such holder’s right to
receive such additional shares upon the occurrence of the event requiring such adjustment.



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



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



Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Sections 11 or 13 hereof, the Company shall
promptly (a) prepare a certificate setting forth such adjustment, and a brief statement of the
facts accounting for such adjustment, (b) file with the Rights Agent and with each transfer agent
for the Common Shares or the Preferred Shares a copy of such certificate and (c) if a Distribution
Date has occurred, mail a brief summary thereof to each holder of a Right Certificate in accordance
with Section 25 hereof.


 


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Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power.
In the event, directly or indirectly, at any time after a Person has become an Acquiring
Person, (a) the Company shall consolidate with, or merge with and into, any other Person, (b) any
Person shall consolidate with the Company, or merge with and into the Company and the Company shall
be the continuing or surviving corporation of such merger and, in connection with such merger, all
or part of the Common Shares shall be changed into or exchanged for stock or other securities of
any other Person (or the Company) or cash or any other property or (c) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or
more transactions, assets or earning power aggregating 50% or more of the assets or earning power
of the Company and its Subsidiaries (taken as a whole) to any other Person other than the Company
or one or more of its wholly-owned Subsidiaries, then, and in each such case, proper provision
shall be made so that




(i) each holder of a Right (except as otherwise provided herein) shall thereafter have
the right to receive, upon the exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of one one-thousandths of a Preferred Share for
which a Right is then exercisable, in accordance with the terms of this Rights Agreement and
in lieu of Preferred Shares, such number of Common Shares of such other Person (including
the Company as successor thereto or as the surviving corporation) as shall equal the result
obtained by (A) multiplying the then current Purchase Price by the number of one
one-thousandths of a Preferred Share for which a Right is then exercisable and dividing that
product by (B) 50% of the then current per share market price of the Common Shares of such
other Person (determined pursuant to Section 11(d) hereof) on the date of consummation of
such consolidation, merger, sale or transfer;




(ii) the issuer of such Common Shares shall thereafter be liable for, and shall assume,
by virtue of such consolidation, merger, sale or transfer, all the obligations and duties of
the Company pursuant to this Rights Agreement;




(iii) the term “Company” shall thereafter be deemed to refer to such issuer; and




(iv) such issuer shall take such steps (including, but not limited to, the reservation
of a sufficient number of its Common Shares in accordance with Section 9 hereof) in
connection with such consummation as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in relation to the Common
Shares thereafter deliverable upon the exercise of the Rights.



The Company shall not consummate any such consolidation, merger, sale or transfer unless prior
thereto the Company and such issuer shall have executed and delivered to the Rights Agent a
supplemental agreement so providing. The Company shall not enter into any transaction of the kind
referred to in this Section 13 if at the time of such transaction there are any rights, warrants,
instruments or securities outstanding or any agreements or arrangements which, as a result of the
consummation of such transaction, would eliminate or substantially diminish the benefits intended
to be afforded by the Rights. The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.


 


-16-









 





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



(b) The Company shall not be required to issue fractions of Preferred Shares (other than
fractions which are integral multiples of one one-thousandth of a Preferred Share) upon exercise of
the Rights or to distribute certificates which evidence fractional Preferred Shares (other than
fractions which are integral multiples of one one-thousandth of a Preferred Share). Fractions of
Preferred Shares in integral multiples of one one-thousandth of a Preferred Share may, at the
election of the Company, be evidenced by depositary receipts, pursuant to an appropriate agreement
between the Company and a depositary selected by it; provided that such
agreement shall provide that the holders of such depositary receipts shall have all the
rights, privileges and preferences to which they are entitled as Beneficial Owners of the Preferred
Shares represented by such depositary receipts. In lieu of fractional Preferred Shares that are
not integral multiples of one one-thousandth of a Preferred Share, the Company shall pay to the
registered holders of Right Certificates at the time such Rights are exercised as herein provided
an amount in cash equal to the same fraction of the current market value of one Preferred Share.
For the purposes of this Section 14(b), the current market value of a Preferred Share shall be the
closing price of a Preferred Share (as determined pursuant to the second sentence of
Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of such exercise.



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



Section 15. Rights of Action. All rights of action in respect of this Rights Agreement, except the rights of action given to
the Rights Agent under Section 18 hereof, are vested in the respective registered holders of the
Right Certificates (and, prior to the Distribution Date, the registered holders of the Common
Shares); and any registered holder of any Right Certificate (or, prior to the Distribution Date, of
the Common Shares), without the consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Common Shares), may, in such holder’s own
behalf and for such holder’s own benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company to enforce, or otherwise act in respect of, such holder’s right
to exercise the Rights evidenced by such Right Certificate in the manner provided in such Right
Certificate and in this Rights Agreement. Without limiting the foregoing or any remedies available
to the holders of Rights, it is specifically acknowledged that the holders of Rights would not have
an adequate remedy at law for any breach of this Rights Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or threatened violations
of the obligations of any Person subject to, this Rights Agreement.


 


-17-









 





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



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



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



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



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



Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the administration and execution of
this Rights Agreement and the exercise and performance of its duties hereunder. The Company also
agrees to indemnify the Rights Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with the acceptance and
administration of this Rights Agreement, including the costs and expenses of defending against any
claim of liability in the premises.


 


-18-









 





(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 Rights
Agreement in reliance upon any Right Certificate or certificate for the Preferred Shares or Common
Shares or for other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement, or
other paper or document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice
of counsel as set forth in Section 20 hereof.



Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any successor Rights Agent may be merged
or with which it may be consolidated, or any corporation resulting from any merger or consolidation
to which the Rights Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the stock transfer or corporate trust powers of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this Rights Agreement
without the execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that such corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 21 hereof. In case at the time such
successor Rights Agent shall succeed to the agency created by this Rights Agreement, any of the
Right Certificates shall have been countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent and deliver such Right Certificates
so countersigned; and, in case at that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Right Certificates either in the
name of the predecessor Rights Agent or in the name of the successor Rights Agent; and in all such
cases such Right Certificates shall have the full force provided in the Right Certificates and in
this Rights Agreement.



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



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



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


 


-19-









 





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



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



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



(e) The Rights Agent shall not be under any responsibility in respect of the validity of this
Rights Agreement or the execution and delivery hereof (except the due execution hereof by the
Rights Agent) or in respect of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Rights Agreement or in any Right Certificate; nor shall it
be responsible for any change in the exercisability of the Rights (including the Rights becoming
void pursuant to Section 11(a)(ii) hereof) or any adjustment in the terms of the Rights (including
the manner, method or amount thereof) provided for in Section 3, 11, 13, 23 or 24, or the
ascertaining of the existence of facts that would require any such change or adjustment (except
with respect to the exercise of Rights evidenced by Right Certificates after actual notice that
such change or adjustment is required); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any Preferred Shares to be
issued pursuant to this Rights Agreement or any Right Certificate or as to whether any Preferred
Shares will, when issued, be validly authorized and issued, fully paid and nonassessable.



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



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


 


-20-









 





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



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



Section 21. Change of Rights Agent.
The Rights Agent or any successor Rights Agent may resign and be discharged from its duties
under this Rights Agreement upon 30-days’ notice in writing mailed to the Company and to each
transfer agent of the Common Shares or Preferred Shares by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. The Company may remove the Rights Agent or
any successor Rights Agent upon 30-days’ notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the Common Shares or Preferred
Shares by registered or certified mail, and to the holders of the Right Certificates by first-class
mail. If the Rights Agent shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Rights Agent. If the Company shall fail to
make such appointment within a period of 30 days after giving notice of such removal or after it
has been notified in writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (who or which shall, with such notice, submit
such holder’s Right Certificate for inspection by the Company), then the registered holder of any
Right Certificate may apply to any court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation organized and doing business under the laws of the United States or of the
State of New York (or of any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the State of New York, in good standing,
having an office in the State of New York, which is authorized under such laws to exercise
corporate trust or stock transfer powers and is subject to supervision or examination by federal or
state authority and which has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50 million. After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been originally named as
Rights Agent without further act or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time held by it hereunder, and execute
and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Common Shares or Preferred Shares,
and mail a notice thereof in writing to the registered holders of the Right Certificates. Failure
to give any notice provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.


 


-21-









 





Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Rights Agreement or of the Rights to the
contrary, the Company may, at its option, issue new Right Certificates evidencing Rights in such
form as may be approved by the Board of Directors of the Company to reflect any adjustment or
change in the Purchase Price and the number or kind or class of shares or other securities or
property purchasable under the Right Certificates made in accordance with the provisions of this
Rights Agreement.



Section 23. Redemption.
(a) The Board of Directors of the Company may, at its option, at any time prior to such time
as any Person becomes an Acquiring Person, redeem all but not less than all the
then outstanding Rights at a redemption price of $.01 per Right, appropriately adjusted to
reflect any stock split, stock combination, stock dividend or similar transaction occurring after
the date hereof (such redemption price being hereinafter referred to as the “Redemption
Price”). The redemption of the Rights by the Board of Directors of the Company may be made
effective at such time, on such basis and with such conditions as the Board of Directors of the
Company, in its sole discretion, may establish. The Company may, at its option, pay the Redemption
Price in cash, Common Shares (based on the current market price at the time of redemption) or any
other form of consideration deemed appropriate by the Board of Directors.



(b) Immediately upon the action of the Board of Directors of the Company ordering the
redemption of the Rights pursuant to paragraph (a) of this Section 23, and without any further
action and without any notice, the right to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption Price. The Company shall
promptly give public notice of any such redemption; provided, however, that the
failure to give, or any defect in, any such notice shall not affect the validity of such
redemption. Within 10 days after such action of the Board of Directors of the Company ordering the
redemption of the Rights, the Company shall mail a notice of redemption to all the holders of the
then outstanding Rights at their last addresses as they appear upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent for
the Common Shares. Any notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of redemption will state the
method by which the payment of the Redemption Price will be made. Neither the Company nor any of
its Affiliates or Associates may redeem, acquire or purchase for value any Rights at any time in
any manner other than that specifically set forth in this Section 23 or in Section 24 hereof, and
other than in connection with the purchase of Common Shares prior to the Distribution Date.


 


-22-









 





Section 24. Exchange. (a) The Board of Directors of the Company may, at its option, at any time after any Person
becomes an Acquiring Person, exchange all or part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void pursuant to the provisions of
Section 11(a)(ii) hereof) for Common Shares at an exchange ratio of one Common Share per Right,
appropriately adjusted to reflect any adjustment in the number of Rights pursuant to Section 11(i)
(such exchange ratio being hereinafter referred to as the “Exchange Ratio”).
Notwithstanding the foregoing, the Board of Directors of the Company shall not be empowered to
effect such exchange at any time after any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any
entity or trustee holding Common Shares for or pursuant to the terms of any such plan or for the
purpose of funding any such plan or funding other employee benefits for employees of the Company or
of any Subsidiary of the Company), together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 50% or more of the Common Shares then outstanding.



(b) Immediately upon the action of the Board of Directors of the Company ordering the exchange
of any Rights pursuant to paragraph (a) of this Section 24 and without any further action and
without any notice, the right to exercise such Rights shall terminate and the
only right thereafter of a holder of such Rights shall be to receive that number of Common
Shares equal to the number of such Rights held by such holder multiplied by the Exchange Ratio.
The Company shall promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall not affect the
validity of such exchange. The Company promptly shall mail a notice of any such exchange to all of
the holders of such Rights at their last addresses as they appear upon the registry books of the
Rights Agent. Any notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of exchange will state the method
by which the exchange of the Common Shares for Rights will be effected and, in the event of any
partial exchange, the number of Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than Rights which have become void pursuant
to the provisions of Section 11(a)(ii) hereof) held by each holder of Rights.



(c) In the event that there shall not be sufficient Common Shares issued but not outstanding
or authorized but unissued to permit any exchange of Rights as contemplated in accordance with this
Section 24, the Company shall take all such action as may be necessary to authorize additional
Common Shares for issuance upon exchange of the Rights. In the event the Company shall, after good
faith effort, be unable to take all such action as may be necessary to authorize such additional
Common Shares, the Company shall substitute, for each Common Share that would otherwise be issuable
upon exchange of a Right, a number of Preferred Shares or fraction thereof (or a security with
substantially similar rights, privileges, preferences, voting power and economic rights) such that
the current per share market price of one Preferred Share (or other such security) multiplied by
such number or fraction is equal to the current per share market price of one Common Share as of
the date of issuance of such Preferred Shares or fraction thereof (or other such security).



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


 


-23-









 





Section 25. Notice of Certain Events. (a) In case the Company, at any time after the Distribution Date, shall propose (i) to pay
any dividend payable in stock of any class to the holders of its Preferred Shares or to make any
other distribution to the holders of its Preferred Shares (other than a regular quarterly cash
dividend), (ii) to offer to the holders of its Preferred Shares rights or warrants to subscribe for
or to purchase any additional Preferred Shares or shares of stock of any class or any other
securities, rights or options, (iii) to effect any reclassification of its Preferred Shares (other
than a reclassification involving only the subdivision of outstanding Preferred Shares), (iv) to
effect any consolidation or merger into or with, or to effect any sale or other transfer (or to
permit one or more of its Subsidiaries to effect any sale or other transfer), in one or more
transactions, of 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole)
to, any other Person, (v) to effect the liquidation, dissolution or winding up of the Company, or
(vi) to declare or pay any dividend on the Common Shares payable in Common Shares or to effect a
subdivision, combination or consolidation of the Common Shares (by reclassification or otherwise
than by payment of dividends in Common Shares), then, in each such case, the Company shall give to
each holder of a Right Certificate, in accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of such stock dividend, or
distribution of rights or warrants, or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the Common Shares and/or Preferred Shares, if any such date
is to be fixed, and such notice shall be so given in the case of any action covered by clause (i)
or (ii) above at least 10 days prior to the record date for determining holders of the Preferred
Shares for purposes of such action, and in the case of any such other action, at least 10 days
prior to the date of the taking of such proposed action or the date of participation therein by the
holders of the Common Shares and/or Preferred Shares, whichever shall be the earlier.



(b) In case the event set forth in Section 11(a)(ii) hereof shall occur, then the Company
shall as soon as practicable thereafter give to each holder of a Right Certificate, in accordance
with Section 26 hereof, a notice of the occurrence of such event, which notice shall describe such
event and the consequences of such event to holders of Rights under Section 11(a)(ii) hereof.



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




American Stock Transfer & Trust Company, LLC

59 Maiden Ln

New York, NY 10038


 


-24-









 





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




Astrotech Corporation

907 Gemini Street

Houston, Texas 77058



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



Section 27. Supplements and Amendments.
The Board of Directors of the Company may from time to time supplement or amend this Rights
Agreement without the approval of any holders of Right Certificates in order to cure any ambiguity,
to correct or supplement any provision contained herein which may be defective or inconsistent with
any other provisions herein, or to make any other provisions with respect to the Rights which the
Board of Directors of the Company may deem necessary or desirable, any such supplement or amendment
to be evidenced by a writing signed by the Company and the Rights Agent, provided,
however, after any Person becomes an Acquiring Person, this Rights Agreement shall not be
amended in any manner which would adversely affect the interests of the holders of Rights (other
than an Acquiring Person or Affiliate or Associate thereof).



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



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


 


-25-









 





Section 30. Severability. If any term, provision, covenant or restriction of this Rights 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 Rights Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.



Section 31. Governing Law. This Rights Agreement and each Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Washington and for all purposes shall be governed by
and construed in accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State.



Section 32. Counterparts. This Rights Agreement may be executed in one or more counterparts (including by means of
facsimile or other electronic transmission), each of which shall be deemed an original but all of
which together will constitute one and the same instrument. The exchange of copies of this Rights
Agreement and of signature pages by facsimile transmission (whether directly from one facsimile device to another by means of a dial-up connection or whether
otherwise transmitted via electronic transmission), by electronic mail in “portable document
format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic
and pictorial appearance of a document, or by a combination of such means, shall constitute
effective execution and delivery of this Rights Agreement as to the parties and may be used in lieu
of an original Rights Agreement for all purposes. Signatures of the parties transmitted by
facsimile or other electronic transmission shall be deemed to be original signatures for all
purposes.



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


 


-26-









 





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



	 	 	 	 	 
	 	ASTROTECH CORPORATION

 	 
	 	By:  	/s/ Thomas B. Pickens, III
 	 
	 	 	Name:  	Thomas B. Pickens, III 	 
	 	 	Title:  	Chairman of the Board and 
Chief Executive Officer 	 
	 
	 	AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC

 	 
	 	By:  	/s/ Herbert J. Lemmer
 	 
	 	 	Name:  	Herbert J. Lemmer 	 
	 	 	Title:  	Vice President 	 



[Signature Page to Rights Agreement]




 


 









 







Exhibit A




DESIGNATION OF RIGHTS, TERMS AND PREFERENCES

of

SERIES D JUNIOR PARTICIPATING PREFERRED STOCK

of

ASTROTECH CORPORATION




(Pursuant to Chapter 6 of the

Washington Business Corporation Act)





Astrotech Corporation, a corporation organized and existing under the Business Corporation Act
of the State of Washington (hereinafter called the “Corporation”), hereby certifies that the
following resolution was adopted by the Board of Directors of the Corporation as required by
Chapter 6 of the Business Corporation Act at a meeting duly called and held on July 21, 2009:



RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of
this Corporation (hereinafter called the “Board of Directors” or the “Board”) in accordance with
the provisions of the Articles of Incorporation, the Board of Directors hereby creates a series of
Preferred Stock of the Corporation, par value $.01 per share (the “Preferred Stock”), and hereby
states the designation and number of shares, and fixes the relative rights, preferences, and
limitations thereof as follows:



Series D Junior Participating Preferred Stock:



Section 1. Designation and Amount. The shares of such series shall be designated as
“Series D Junior Participating Preferred Stock” (the “Series D Preferred Stock”) and the number of
shares constituting the Series D Preferred Stock shall be 300,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided that no decrease
shall reduce the number of shares of Series D Preferred Stock to a number less than the number of
shares then outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any outstanding securities issued
by the Corporation convertible into Series D Preferred Stock.



Section 2. Dividends and Distributions.




(A) Subject to the rights of the holders of any shares of any series of Preferred Stock
(or any similar stock) ranking prior and superior to the Series D Preferred Stock with
respect to dividends, the holders of shares of Series D Preferred Stock, in preference to
the holders of Common Stock, no par value per share (the “Common Stock”), of the
Corporation, and of any other junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and December in each
year (each such date being referred to herein as a “Quarterly Dividend Payment Date”),
commencing on the first Quarterly Dividend Payment Date after the



 


Exh. A-1









 






first issuance of a share or fraction of a share of Series D Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $10 or
(b) subject to the provision for adjustment hereinafter set forth, 1,000 times the aggregate
per share amount of all cash dividends, and 1,000 times the aggregate per share amount
(payable in kind) of all non- cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock
(by reclassification or otherwise), declared on the Common Stock since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of Series D
Preferred Stock. In the event the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount to which holders
of shares of Series D Preferred Stock were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.




(B) The Corporation shall declare a dividend or distribution on the Series D Preferred
Stock as provided in paragraph (A) of this Section immediately after it declares a dividend
or distribution on the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly Dividend Payment Date
and the next subsequent Quarterly Dividend Payment Date, a dividend of $10 per share on the
Series D Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.




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


 


Exh. A-2









 





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




(A) Subject to the provision for adjustment hereinafter set forth, each share of Series
D Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted
to a vote of the stockholders of the Corporation. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series D Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.




(B) Except as otherwise provided herein, in any other Designation of Rights, Terms and
Preferences creating a series of Preferred Stock or any similar stock, or by law, the
holders of shares of Series D Preferred Stock and the holders of shares of Common Stock and
any other capital stock of the Corporation having general voting rights shall vote together
as one class on all matters submitted to a vote of stockholders of the Corporation.




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



Section 4. Certain Restrictions.




(A) Whenever quarterly dividends or other dividends or distributions payable on the
Series D Preferred Stock as provided in Section 2 are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not declared, on shares of Series
D Preferred Stock outstanding shall have been paid in full, the Corporation shall not:




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




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


 


Exh. A-3









 






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




(iv) redeem or purchase or otherwise acquire for consideration any shares of
Series D Preferred Stock, or any shares of stock ranking on a parity with the Series
D Preferred Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.




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



Section 5. Reacquired Shares. Any shares of Series D Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the
Articles of Incorporation, or in any other Designation of Rights, Terms and Preferences creating a
series of Preferred Stock or any similar stock or as otherwise required by law.



Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution
or winding up of the Corporation, no distribution shall be made (1) to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the
Series D Preferred Stock unless, prior thereto, the holders of shares of Series D Preferred Stock
shall have received $1,000 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment, provided that
the holders of shares of Series D Preferred Stock shall be entitled to receive an aggregate amount
per share, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the
aggregate amount to be distributed per share to holders of shares of Common Stock, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series D Preferred Stock, except distributions made ratably on
the Series D Preferred Stock and all such parity stock in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the aggregate amount to which holders of shares of Series D
Preferred Stock were entitled immediately prior to such event under the proviso in clause (1) of
the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.


 


Exh. A-4









 





Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series D Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series D Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.



Section 8. No Redemption. The shares of Series D Preferred Stock shall not be
redeemable.



Section 9. Rank. The Series D Preferred Stock shall rank, with respect to the payment
of dividends and the distribution of assets, junior to all series of any other class of the
Corporation’s Preferred Stock.



Section 10. Amendment. The Articles of Incorporation of the Corporation shall not be
amended in any manner which would materially alter or change the powers, preferences or special
rights of the Series D Preferred Stock so as to affect them adversely without the affirmative vote
of the holders of at least two-thirds of the outstanding shares of Series D Preferred Stock, voting
together as a single class.


 


Exh. A-5









 





IN WITNESS WHEREOF, the Corporation has caused this Designation of Rights, Terms and
Preferences to be duly executed in its corporate name on this the 29th day of July, 2009.



	 	 	 	 	 
	 	ASTROTECH CORPORATION

 	 
	 	By:  	/s/ Thomas B. Pickens, III
 	 
	 	 	Name:  	Thomas B. Pickens, III 	 
	 	 	Title:  	Chairman of the Board and 
Chief Executive Officer 	 



 


Exh. A-6









 





Exhibit B




Form of Right Certificate




Certificate No. R-




                     Rights




NOT EXERCISABLE AFTER AUGUST 10, 2010 OR EARLIER IF REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $.01 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT.



Rights Certificate




ASTROTECH CORPORATION




This certifies that                     , or registered assigns, is the registered owner of the
number of Rights set forth above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of July 29, 2009 (the “Rights
Agreement”), between Astrotech Corporation, a Washington corporation (the “Company”), and American
Stock Transfer & Trust Company, LLC (the “Rights Agent”), to purchase from the Company at any time
after the Distribution Date (as such term is defined in the Rights Agreement) and prior to 5:00
p.m., New York time, on August 10, 2010 at the principal office of the Rights Agent, or at the
office of its successor as Rights Agent, one one-thousandth of a fully paid non-assessable share of
Series D Junior Participating Preferred Stock of the Company, par value $.01 per share (the
“Preferred Shares”), at a purchase price of $6.50 per one one-thousandth of a Preferred Share (the
“Purchase Price”), upon presentation and surrender of this Right Certificate with the Form of
Election to Purchase duly executed. The number of Rights evidenced by this Right Certificate (and
the number of one one-thousandths of a Preferred Share which may be purchased upon exercise hereof)
set forth above, and the Purchase Price set forth above, are the number and Purchase Price as of
August 10, 2009, based on the Preferred Shares as constituted at such date. As provided in the
Rights Agreement, the Purchase Price and the number of one one-thousandths of a Preferred Share
which may be purchased upon the exercise of the Rights evidenced by this Right Certificate are
subject to modification and adjustment upon the happening of certain events.



This Right Certificate is subject to all of the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Right Certificates. Copies of the Rights Agreement are
on file at the principal executive offices of the Company and the offices of the Rights Agent.


 


Exh. B-1









 





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



Subject to the provisions of the Rights Agreement, the Rights evidenced by this Right
Certificate (i) may be redeemed by the Company at a redemption price of $.01 per Right or (ii) may
be exchanged, in whole or in part, for Preferred Shares or shares of the Company’s Common Stock, no
par value per share.



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



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


 


Exh. B-2









 





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



Dated: as of                     .




	 	 	 	 	 
	 	ASTROTECH CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	COUNTERSIGNED:

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



 


Exh. B-3









 





[Form of Reverse Side of Right Certificate]




FORM OF ASSIGNMENT




(To be executed by the registered holder if such

holder desires to transfer the Right Certificate.)




	 	 	 	 	 	 	 
	 

	 	FOR VALUE RECEIVED	 	 	 	 
	 

	 	 	 	 








	 	 	 	 	 
	hereby sells, assigns and transfers unto
	 	 	 	 
	 

	 	 







 



(Please print name and address of transferee)




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



Dated:                     




Signature                     




Signature Guaranteed:



Signatures must be guaranteed by an “eligible guarantor institution” as defined in Rule
17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended.



Certificate




The undersigned hereby certifies that the Rights evidenced by this Right Certificate are not
beneficially owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement). After due inquiry and to the best knowledge of the undersigned, the Rights
evidenced by this Right Certificate were not acquired or beneficially owned by an Acquiring Person
or an Affiliate or Associate thereof.



Dated:                     




Signature                     




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


 


Exh. B-4









 





FORM OF ELECTION TO PURCHASE




(To be executed if holder desires to exercise Rights

represented by the Right Certificate.)




To:



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



	 	 	 	 	 
	Please insert social security
	 	 	 	 
	or other identifying number:
	 	 	 	 
	 

	 	 







 




(Please print name and address)



 




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



	 	 	 	 	 
	Please insert social security
	 	 	 	 
	or other identifying number:
	 	 	 	 
	 

	 	 







 




(Please print name and address)



 




Dated:                     




Signature                     




Signature Guaranteed:



Signatures must be guaranteed by an “eligible guarantor institution” as defined in Rule
17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended.


 


Exh. B-5









 





Certificate




The undersigned hereby certifies that the Rights evidenced by this Right Certificate are not
beneficially owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement). After due inquiry and to the best knowledge of the undersigned, the Rights
evidenced by this Right Certificate were not acquired or beneficially owned by an Acquiring Person
or an Affiliate or Associate thereof.



Dated:                     




Signature                     




The signature in the Form of Assignment or Form of Election to Purchase, as the case may be,
must conform to the name as written upon the face of this Right Certificate in every particular,
without alteration or enlargement or any change whatsoever.



In the event the certification set forth above in the Form of Assignment or the Form of
Election to Purchase, as the case may be, is not completed, the Company and the Rights Agent will
deem the beneficial owner of the Rights evidenced by this Right Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.


 


Exh. B-6









 





Exhibit C




SUMMARY OF RIGHTS TO PURCHASE

PREFERRED SHARES




On July 29, 2009, the Board of Directors of Astrotech Corporation (the “Company”) declared a
dividend of one preferred share purchase right (a “Right”) for each outstanding share of common
stock, no par value per share (the “Common Shares”), of the Company. The dividend is payable on
August 10, 2009 (the “Record Date”) to the stockholders of record on that date. Each Right
entitles the registered holder to purchase from the Company one one-thousandth of a share of Series
D Junior Participating Preferred Stock of the Company, par value $.01 per share (the “Preferred
Shares”), at a price of $6.50 per one one-thousandth of a Preferred Share (the “Purchase Price”),
subject to adjustment. The description and terms of the Rights are set forth in a Rights Agreement
(the “Rights Agreement”) between the Company and American Stock Transfer & Trust Company, LLC, as
Rights Agent (the “Rights Agent”).



Distribution Date; Exercisability




Initially, the Rights will be attached to all Common Share certificates and no separate Rights
certificates will be issued. Separate certificates evidencing the Rights (“Right Certificates”)
will be mailed to holders of record of the Common Shares as of the close of business on the earlier
to occur of (i) a public announcement that a person or group of affiliated or associated persons
(an “Acquiring Person”) has acquired beneficial ownership of 15% or more of the outstanding Common
Shares or (ii) such date as may be determined by action of the Board of Directors of the Company
following the commencement of, or announcement of an intention to make, a tender offer or exchange
offer the consummation of which would result in the beneficial ownership by a person or group of
15% or more of the outstanding Common Shares (the earlier of such dates being the “Distribution
Date”).



Notwithstanding the foregoing, with respect to any person who beneficially owns (for purposes
of the Rights Agreement) 15% or more of the outstanding Common Shares as of August 10, 2009 (such
person being referred to in the Rights Agreement as a “Grandfathered Person”), such Grandfathered
Person’s share ownership will not cause the Rights to be exercisable unless (i) such Grandfathered
Person acquires additional beneficial ownership of Common Shares representing more than an 1/2% of
the outstanding Common Shares as of August 10, 2009 or (ii) if after August 10, 2009, such
Grandfathered Person reduces its beneficial ownership of Common Shares and such Grandfather Person
subsequently acquires beneficial ownership of more than (A) the Common Share amount set forth in
clause (i) or (B) an additional 1/2% of the then outstanding Common Shares (provided that a
Grandfathered Person will cease to be a Grandfathered Person under the Rights Agreement if that
person no longer beneficially owns 15% or more of the outstanding Common Shares).



The Rights Agreement provides that, until the Distribution Date (or earlier redemption or
expiration of the Rights), (i) the Rights will be transferred with and only with the Common Shares,
(ii) new Common Share certificates issued after the Record Date upon transfer or new issuance of
Common Shares will contain a notation incorporating the Rights Agreement
by reference and (iii) the surrender for transfer of any certificates for Common Shares
outstanding as of the Record Date will also constitute the transfer of the Rights associated with
the Common Shares represented by such certificate.


 


Exh. C-1









 





The Rights are not exercisable until the Distribution Date. The Rights will expire on August
10, 2010 (the “Expiration Date”), unless the Expiration Date is extended or unless the Rights are
earlier redeemed or exchanged by the Company, in each case, as described below.



Flip-In




If a person or group becomes an Acquiring Person, each holder of a Right will thereafter have
the right to receive, upon exercise, Common Shares (or, in certain circumstances, Preferred Shares
or other similar securities of the Company) having a value equal to two times the exercise price of
the Right. Notwithstanding any of the foregoing, following the existence of an Acquiring Person,
all Rights that are, or (under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person will be null and void.



Flip-Over




In the event that the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power are sold after a person or
group has become an Acquiring Person, proper provision will be made so that each holder of a Right
will thereafter have the right to receive, upon the exercise thereof at the then current exercise
price of the Right, that number of shares of common stock of the acquiring company which at the
time of such transaction will have a market value of two times the exercise price of the Right. In
the event that any person or group becomes an Acquiring Person, proper provision shall be made so
that each holder of a Right, other than Rights beneficially owned by the Acquiring Person (which
will thereafter be void), will thereafter have the right to receive upon exercise that number of
Common Shares having a market value of two times the exercise price of the Right.



Exchange




At any time after any person or group becomes an Acquiring Person and prior to the acquisition
by such person or group of 50% or more of the outstanding Common Shares, the Board of Directors of
the Company may exchange the Rights (other than Rights owned by such person or group which will
have become void), in whole or in part, at an exchange ratio of one Common Share, or one
one-thousandth of a Preferred Share (or of a share of a class or series of the Company’s preferred
stock having equivalent rights, preferences and privileges), per Right (subject to adjustment).



Redemption




At any time prior to the existence of an Acquiring Person, the Board of Directors of the
Company may redeem the Rights, in whole but not in part, at a price of $.01 per Right (the
“Redemption Price”). The redemption of the Rights may be made effective at such time on such basis
with such conditions as the Board of Directors, in its sole discretion, may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate
and the only right of the holders of Rights will be to receive the Redemption Price.


 


Exh. C-2









 





Amendment




The terms of the Rights may be amended by the Board of Directors of the Company without the
consent of the holders of the Rights, except that from and after the existence of an Acquiring
Person no such amendment may adversely affect the interests of the holders of the Rights (other
than the Acquiring Person).



Adjustment




The number of outstanding Rights and the number of one one-thousandths of a Preferred Share
issuable upon exercise of each Right are subject to adjustment under certain circumstances.



Preferred Stock




Because of the nature of the Preferred Shares’ dividend, liquidation and voting rights, the
value of the one one-thousandth interest in a Preferred Share purchasable upon exercise of each
Right should approximate the value of one Common Share.



Rights of Holders




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.



Further Information




A copy of the Rights Agreement has been filed with the Securities and Exchange Commission as
an Exhibit to a Registration Statement on Form 8-A dated July 30, 2009. A copy of the Rights
Agreement is available free of charge from the Company. This summary description of the Rights
does not purport to be complete and is qualified in its entirety by reference to the Rights
Agreement, which is hereby incorporated herein by reference.




 


Exh. C-3