exv4w1






Exhibit 4.1




EMS TECHNOLOGIES, INC




Shareholder Rights Plan

Dated as of August 6, 2009




Table of Contents




	 	 	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 	1	 	 	Certain Definitions
	 	 	3	 
	 	 	 	 	 
	 	 	 	 
	 	2	 	 	Authority to Appoint Rights Agent
	 	 	10	 
	 	 	 	 	 
	 	 	 	 
	 	3	 	 	Issue of Rights Certificates
	 	 	10	 
	 	 	 	 	 
	 	 	 	 
	 	4	 	 	Form of Rights Certificates
	 	 	12	 
	 	 	 	 	 
	 	 	 	 
	 	5	 	 	Registration
	 	 	13	 
	 	 	 	 	 
	 	 	 	 
	 	6	 	 	Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or
Stolen Rights Certificates
	 	 	14	 
	 	 	 	 	 
	 	 	 	 
	 	7	 	 	Exercise of Rights; Purchase
Price; Expiration Date of Rights
	 	 	15	 
	 	 	 	 	 
	 	 	 	 
	 	8	 	 	Cancellation and Destruction of
Rights Certificates
	 	 	17	 
	 	 	 	 	 
	 	 	 	 
	 	9	 	 	Reservation and Availability of
Capital Stock
	 	 	18	 
	 	 	 	 	 
	 	 	 	 
	 	10	 	 	Record Date for Securities Issued
Upon Exercise
	 	 	19	 
	 	 	 	 	 
	 	 	 	 
	 	11	 	 	Adjustment of Purchase Price,
Number and Kind of Shares or
Number of Rights
	 	 	20	 
	 	 	 	 	 
	 	 	 	 
	 	12	 	 	Certificate of Adjusted Purchase
Price or Number of Shares
	 	 	30	 
	 	 	 	 	 
	 	 	 	 
	 	13	 	 	Consolidation, Merger or Sale
or Transfer of Assets or Earning
Power
	 	 	30	 






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	Section	 	 	 	Page
	 	14	 	 	Fractional Rights and Fractional
Shares
	 	 	33	 
	 	 	 	 	 
	 	 	 	 
	 	15	 	 	Rights of Action
	 	 	34	 
	 	 	 	 	 
	 	 	 	 
	 	16	 	 	Agreement of Rights Holders
	 	 	35	 
	 	 	 	 	 
	 	 	 	 
	 	17	 	 	Rights Certificate Holder Not Deemed
a Shareholder
	 	 	36	 
	 	 	 	 	 
	 	 	 	 
	 	18	 	 	Indemnification of Corporate Officers
	 	 	36	 
	 	 	 	 	 
	 	 	 	 
	 	19	 	 	Issuance of New Rights Certificates
	 	 	36	 
	 	 	 	 	 
	 	 	 	 
	 	20	 	 	Redemption and Termination
	 	 	37	 
	 	 	 	 	 
	 	 	 	 
	 	21	 	 	Notice of Certain Events
	 	 	39	 
	 	 	 	 	 
	 	 	 	 
	 	22	 	 	Notices
	 	 	40	 
	 	 	 	 	 
	 	 	 	 
	 	23	 	 	Supplements and Amendment; Substituted
Plan
	 	 	40	 
	 	 	 	 	 
	 	 	 	 
	 	24	 	 	Successors
	 	 	41	 
	 	 	 	 	 
	 	 	 	 
	 	25	 	 	Determinations and Actions
by the Board of Directors, etc.
	 	 	41	 
	 	 	 	 	 
	 	 	 	 
	 	26	 	 	Establishment of Fund for Disinterested
Directors
	 	 	42	 
	 	 	 	 	 
	 	 	 	 
	 	27	 	 	Benefits of this Plan
	 	 	42	 
	 	 	 	 	 
	 	 	 	 
	 	28	 	 	Severability
	 	 	43	 
	 	 	 	 	 
	 	 	 	 
	 	29	 	 	Governing Law
	 	 	43	 
	 	 	 	 	 
	 	 	 	 
	 	30	 	 	Descriptive Headings
	 	 	43	 
	 	 	 	 	 
	 	 	 	 
	Exhibit A — Form of Rights Certificate	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	Exhibit B — Form of Summary of Rights	 	 	 	 






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SHAREHOLDER RIGHTS PLAN




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



          (a) “Acquiring Person” shall mean any Person or group of Persons acting together, directly or
indirectly, through any contract, arrangement, understanding, relationship or otherwise, who or
which, together with all Affiliates and Associates of such Person(s), shall be the Beneficial Owner
of 20% or more of the shares of Common Stock then outstanding, but shall not include (i) the
Company, (ii) any Subsidiary of the Company, or (iii) any employee benefit plan of the Company or
any Subsidiary of the Company, or any Person or entity organized, appointed or established by the
Company acting in accordance with and for or pursuant to the terms of any such plan.




     Notwithstanding the foregoing, “Acquiring Person” shall not include any such Person who has
reported or is required to report such ownership (but less than 25%) on Schedule 13G under the
Exchange Act (or any comparable or successor report or on Schedule 13D under the Exchange Act (or
any comparable or successor report) which Schedule 13D does not state any intention to or reserve
the right to control or influence the management or policies of the Company or engage in any of the
actions specified in Item 4 of such Schedule (other than the disposition of the Common Stock) and
within 10 Business Days of being requested by the Company to advise it regarding the same,
certifies to the Company that such Person acquired Common Stock equal to or exceeding 20%
inadvertently or without knowledge of the terms of the Rights and who, together with all Affiliates
and Associates, thereafter does not acquire additional Common Stock while the Beneficial Owner of
20% or more of the Common Stock then outstanding; provided, however, that if the Person requested
to so certify fails to do so within 10 Business Days, then such Person shall become an Acquiring
Person immediately after such 10 Business Day Period. Notwithstanding the foregoing, no Person
shall become an “Acquiring Person” solely as the result of an acquisition of Common Stock by the
Company which, by reducing the number of shares outstanding, increases the proportionate number of
shares beneficially owned by a Person to 20% or more of the Common Stock of the Company then
outstanding as determined above; provided, however, that if a Person becomes the Beneficial Owner
of 20% or more of the Common Stock of the Company then outstanding (as determined above) solely by
reason of purchases of Common Stock by the Company and shall, after becoming aware of such
purchases by the Company or of the resulting decrease in the number of outstanding shares of the
Common Stock, become the
Beneficial Owner of any additional Common Stock by any means whatsoever, then such Person
shall be deemed to be an “Acquiring Person”.



3









 





          (b) “Act” shall mean the Securities Act of 1933.




          as amended.




          (c) “Adjustment Shares” shall have the meaning set forth in Section ll(a)(ii) hereof.




          (d) “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as
amended and in effect on the date of this Plan (the “Exchange Act”).




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





     (i) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange rights, rights, warrants or options,
or otherwise; provided, however, that a Person shall not be deemed the “Beneficial Owner” of, or to
“beneficially own,” (A) securities tendered pursuant to a tender or exchange offer made by such
Person or any of such Person’s Affiliates or Associates until such tendered securities are accepted
for purchase or exchange, (B) securities issuable upon exercise of Rights at any time prior to the
occurrence of a Triggering Event, or (C) securities issuable upon exercise of Rights from and after
the occurrence of a Triggering Event which Rights were acquired by such Person or any of such Person’s Affiliates
or Associates prior to the Distribution Date or pursuant to Section 3(a) or Section 19 hereof (the
“Original Rights”) or pursuant to Section 11(a)(i) hereof in connection with an adjustment made
with respect to any Original Rights;




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



4









 







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




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




     (iv) in respect of which such Person or any of such Person’s Affiliates or Associates
has a Synthetic Long Position that has been disclosed in a filing by such Person or any of
such Person’s Affiliates or Associates with the Securities and Exchange Commission pursuant
to Regulation 13D-G or Regulation 14D under the Exchange Act in respect of which Common
Shares are the “subject security” (as such term is used in such Regulations);


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



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




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




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




          (h) “Close of Business” on any given date shall mean 5:00 P.M. Eastern time on such date;
provided, however, that if



5









 






such date is not a Business Day it shall mean 5:00 P.M. Eastern time on
the next succeeding Business Day.




          (i) “Common Stock” shall mean the common stock, $.10 per share par value, of the Company,
except that “Common Stock” or “common stock” when used with reference to any Person other than the
Company that shall be organized in corporate form shall mean the capital stock of such Person or
other equity security of with the greatest per share voting power of such Person, or if such Person
is a Subsidiary of or is controlled by another Person, the Person that ultimately controls such
first-mentioned Person. “Common Stock” when used with reference to any Person other than the
Company that shall not be organized in corporate form shall mean units of beneficial interest which
shall represent the right to participate in profits, losses, deductions and credits of such Person
and which shall be entitled to exercise the greatest voting power per unit of such Person.




          (j) “Common Stock Equivalent” shall have the meaning set forth in Section 11(a))(iii) hereof.




          (k) “Company” shall mean EMS Technologies, Inc., a Georgia corporation, until a successor
corporation shall have become such or until a Principal Party shall assume, and thereafter be
liable for, all obligations and duties of the Company hereunder, pursuant to the applicable
provisions of this Plan, and thereafter “Company” shall mean such successor corporation or
Principal Party.




          (1) “Current Market Price” shall have the meaning set forth in Section ll(d) hereof.




          (m) “Current Value” shall have the meaning set forth in Section ll(a)(iii) hereof.




          (n) “Disinterested Director” shall mean any member of the Board, while such Person is a member
of the Board, who: (i) is not an Acquiring Person or an Affiliate or Associate of an Acquiring
Person;-, (ii) is not in any other manner representative of an Acquiring Person or of an Affiliate
or Associate of an Acquiring Person; (iii) does not control and is
not controlled by an Acquiring Person or an Affiliate or Associate of an Acquiring Person;
(iv) does not have a substantial interest (whether by beneficial ownership of securities or
otherwise) in an Acquiring Person or an Affiliate or Associate of an Acquiring Person; and (v) was
not nominated for election as a member of the Board by any acquiring person or Associate or
Affiliate thereof, provided that any such member of the Board who is not disqualified as a
Disinterested Director under any of clauses (i) through (iv) of this sentence shall no longer fail
to qualify as a Disinterested Director solely by virtue of this clause (v) after such Person has
served on the



6









 






Board for a period of at least 180 days after such election. An interest of less than
5% shall not be considered “substantial” for purposes of this definition.




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




          (p) “Equivalent Common Stock” shall have the meaning set forth in Section ll(b) hereof.




          (q) “Exchange Act” shall have the meaning set forth in Section l(d) hereof.




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




          (s) “Fair Value Offer” shall have the meaning set forth in section ll(a)(ii)(A) hereof.




          (t) “Final Expiration Date” shall mean the Close of Business on August 6, 2014.




          (u) “Original Rights” shall have the meaning set forth in Section l(e)(i) hereof.




          (v) “Person” shall mean any individual, firm, corporation, partnership, unincorporated
association, syndicate or other entity.




          (w) “Plan” shall mean this Shareholder Rights Plan as originally adopted or as it may from
time to time be supplemented or amended pursuant to the applicable provisions hereof.




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




          (y) “Purchase Price” shall have the meaning set forth in Section 4(a) hereof.




          (z) “Record Date” shall mean August7, 2009.




          (aa) “Redemption Price” shall have the meaning set forth in Section 20(a).




          (bb) “Right” shall mean the right to purchase one share of Common Stock (subject to
adjustment) as provided herein




          (cc) “Rights Agent” shall have the meaning set forth in Section 2 hereof.




          (dd) “Rights Certificates” shall have the meaning set forth in Section 3(a) hereof.





7









 








          (ee) “Rights Dividend Declaration Date” shall mean August 6, 2009, the effective date of this
Plan.




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




          (gg) “Section ll(a)(ii) Trigger Date” shall have the meaning set forth in Section ll(a)(iii)
hereof.




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




          (ii) “Spread” shall have the meaning set forth in Section ll(a)(iii) hereof.




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




          (kk) “Subsidiary” shall mean, with reference to any Person, any corporation of which an amount
of voting securities sufficient to elect at least a majority of the directors of such corporation
is beneficially owned, directly or indirectly, by such Person, or otherwise controlled by such
Person.




          (ll) “Substitute Consideration” shall have the meaning set forth in Section ll(a)(iii) hereof.




          (mm) “Substitution Period” shall have the meaning set forth in Section ll(a)(iii) hereof.




          (nn) “Summary of Rights” shall have the meaning set forth in Section 3(b) hereof.




          (oo) “Synthetic Long Position” means any option, warrant, convertible security, stock
appreciation right or other contractual right, whether or not presently exercisable, which has an
exercise or conversion privilege or a settlement payment or mechanism at a price related to Common
Shares or a value determined in whole or part with reference to, or derived in whole or in part
from, the market price or value of Common Shares, whether or not such right is subject to
settlement in whole or in part in Common Shares, and which increases in value as the value of
Common Shares increases or which provides to the holder of such right an opportunity, directly or
indirectly, to profit or share in any profit derived from any increase in the value of Common
Shares, but shall not include:





8









 









(i) rights of a pledgee under a bona fide pledge of Common Stock;




(ii) rights of all holders of Common Stock to receive shares of Common Stock pro rata, or
obligations to dispose of Common Stock, as a result of a merger, exchange offer, or
consolidation involving the Company;




(iii) rights or obligations to surrender shares of Common Stock, or have shares of Common
Stock withheld, upon the receipt or exercise of a derivative security or the receipt or
vesting of equity securities, in order to satisfy the exercise price or the tax withholding
consequences of receipt, exercise or vesting;




(iv) interests in broad-based index options, broad-based index futures, and broad-based
publicly traded market baskets of stocks approved for trading by the appropriate federal
governmental authority;




(v) interests or rights to participate in employee benefit plans of the Company held by
employees or former employees of the Company; or




(vi) options granted to an underwriter in a registered public offering for the purpose of
satisfying over-allotments in such offering.


The number of shares of Common Stock in respect of which a Person has a Synthetic Long Position
shall be the notional or other number of such shares specified in a filing by such Person or any of
such Person’s Affiliates or Associates with the Securities and
Exchange Commission pursuant to Regulation 13D-G or Regulation 14D under the Exchange Act in
respect of which Common Stock is the “subject security” (as such term is defined in such
Regulations) or in the documentation evidencing the Synthetic Long Position as being subject to be
acquired upon the exercise or settlement of the applicable right or as the basis upon which the
value or settlement amount of such right, or the opportunity of the holder of such right to profit
or share in any profit, is to be calculated in whole or in part or, if no such number of shares of
Common Stock is specified in such filing or documentation, as determined by a majority of the
Disinterested Directors to be the number of shares of Common Stock to which the Synthetic Long
Position relates.




          (pp) “Trading Day” shall have the meaning set forth in Section ll(d) hereof.





9









 








          (qq) “Triggering Event” shall mean any Section ll(a)(ii) Event or any Section 13 Event.




          (rr) “Uncertificated Share Balances” shall have the meaning set forth in Section 3(a) hereof.




     Section 2. Authority to Appoint Rights Agent.



     The Company may appoint a rights agent (or one or more co-rights agents) 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 Stock) in accordance with the terms and
conditions hereof (the “Rights Agent”), and may amend or supplement this Plan in accordance with
Section 23 hereof in any manner necessary or desirable to induce such Rights Agent to accept its
appointment hereunder.



     Section 3. Issue of Rights Certificates.



          (a) Until the earliest of (i) the Close of Business on the tenth day after the Stock
Acquisition Date, (ii) the Close of Business on the tenth day after the date that a tender or
exchange offer 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 person or entity organized,
appointed or established by the Company acting in accordance with and for or pursuant to the terms
of any such plan) is first published or sent or given within the meaning of Rule 14d-2(a) of the
General Rules and Regulations under the Exchange Act, if upon consummation thereof, such Person
would be the Beneficial Owner of 20% or more of the shares of Common Stock then outstanding, (iii)
the Close of Business on the tenth day
after the occurrence of any of the events described in Section ll(a)(ii)(B), or (iv) the Close
of Business on the tenth day after the date that an offer to effect any of the transactions
described in Section 13(a) made, encouraged or supported by Acquiring Person is first announced,
published, sent or given (the earliest of (i), (ii), (iii) and (iv) being herein referred to as the
“Distribution Date”), (x) the Rights will be evidenced (subject to the provisions of paragraph (b)
of this Section 3) by the certificates for the Common Stock or, in the case of uncertificated
shares, the balances indicated in the book-entry account system of the transfer agent for the
Common Stock (the “Uncertificated Share Balances”), registered in the names of the holders of the
Common Stock (which shares of Common Stock shall be deemed also to be certificates for Rights) and
not by separate certificates, and (y) the Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock (including a transfer to the Company). As soon as
practicable after the Distribution Date, the Company will send by first class, insured, postage
prepaid mail, to each record holder




10









 







of the Common Stock as of the Close of Business on the
Distribution Date, at the address of such holder shown on the records of the Company, one or more
rights certificates, in substantially the form of Exhibit A hereto (the “Rights Certificates”),
evidencing one Right for each share of Common Stock so held, subject to adjustment as provided
herein. In the event that an adjustment in the number of Rights per share of Common Stock has been
made pursuant to Section ll(p) hereof, at the time of distribution of the Rights Certificates, the
Company shall make the necessary and appropriate rounding adjustments (in accordance with Section
14(a) hereof) so that Rights Certificates representing only whole numbers of Rights are distributed
and cash is paid in lieu of any fractional Rights. As of and after the Distribution Date, the
Rights will be evidenced solely by such Rights Certificates.




          (b) Upon the request of any record holder of the Common Stock, the Company will send a copy of
a Summary of Rights, in substantially the form attached hereto as Exhibit B (the “Summary of
Rights”), by first class, postage prepaid mail, to such holder at the address of such holder shown
on the records of the Company. With respect to shares of Common Stock outstanding as of the Record
Date, until the Distribution Date the Rights will be evidenced by the certificates for the Common
Stock or, in the case of uncertificated shares, by the Uncertificated Share Balances, and the
registered holders of the Common Stock shall also be the registered holders of the associated
Rights. Until the earlier of the Distribution Date or the Expiration Date, the transfer of any
shares of Common Stock in respect of which Rights have been issued shall also constitute the
transfer of the Rights
associated with such shares of Common Stock.




          (c) Except as may otherwise be determined by the Board, Rights shall be issued in respect of
all shares of Common Stock which are issued (whether originally issued or from the Company’s
treasury) after the Record Date but prior to the earlier of the Distribution Date or the Expiration
Date, and in the event of such a determination by the Board, no other provisions of this Plan shall
apply to any shares of Common Stock which the Board has determined to be issued without Rights. Any
certificates representing such shares of Common Stock shall also be deemed to be certificates for
Rights, and shall bear the following legend:





This certificate also evidences and entitles the holder hereof to certain Rights as set
forth in the Stockholder Rights Plan of EMS Technologies, Inc. (the “Company”) dated as of
August 6, 2009, as it may be from time to time amended (the “Plan”), 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 Plan, such Rights
will be evidenced by separate certificates and will no longer be



11









 







evidenced by this
certificate. The Company will mail to the holder of this certificate a copy of the Plan, as
in effect on the date of mailing, without charge promptly after receipt of a written request
therefor. Under certain circumstances set forth in the Plan, Rights issued to or held by any
Person who is, was or becomes an Acquiring Person or any Affiliate or Associate thereof (as
such terms are defined in the Plan), whether currently held by or on behalf of such Person
or by any subsequent holder, may become null and void.


With respect to such certificates containing the foregoing legend, until the earlier of (i) the
Distribution Date or (ii) the Expiration Date, the Rights associated with the Common Stock
represented by such certificates shall be evidenced by such certificates alone and registered
holders of Common Stock shall also be the registered holders of the associated Rights, and the
transfer of any of such certificates shall also constitute the transfer of the Rights associated
with the Common Stock represented by such certificates. In the event that the Company purchases or
acquires any shares of Common Stock after the Record Date but prior to the earlier of the
Distribution Date or the Expiration Date, any Rights associated with such shares of Common Stock
shall be deemed cancelled and retired so that the Company shall not be entitled to exercise any
Rights associated with the shares of Common Stock no longer outstanding.




     Section 4. Form of Rights Certificates.



          (a) The Rights Certificates (and the forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be substantially in the form set forth in Exhibit A
hereto and may have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Plan, or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to conform to usage. Subject to the provisions
of Section 11 and Section 19 hereof, the Rights Certificates, whenever distributed, shall be dated
as of the Record Date and on their face shall entitle the holders thereof to purchase such number
of shares of Common Stock as shall be set forth therein at the price set forth therein (such
exercise price per share, the “Purchase Price”), but the amount and type of securities purchasable
upon the exercise of each Right and the Purchase Price thereof shall be subject to adjustment as
provided herein.




          (b) Any Rights Certificate issued pursuant to Section 3(a) or Section 19 hereof that
represents Rights beneficially owned by: (i) an Acquiring Person or any Associate or Affiliate



12









 






of
an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person becomes such, or (iii) a transferee
of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom such Acquiring Person has any
continuing agreement, arrangement or understanding regarding the transferred Rights or (B) a
transfer which a majority of the Disinterested Directors have determined is part of a plan,
arrangement or understanding which has as a primary purpose or effect avoidance of Section 7(e)
hereof, and any Rights Certificate issued pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights Certificate referred to in this sentence,
shall contain (to the extent feasible) the following legend, modified as applicable to such Person:





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



     Section 5. Registration.



          (a) The Rights Certificates shall be executed on behalf of the Company by its Chairman of the
Board, its President or any Vice President, either manually or by facsimile signature, and shall
have affixed thereto the Company’s seal or a facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by facsimile signature. In
case any officer of the Company who shall have signed any of the Rights Certificates shall cease to
be such officer of the Company before issuance and delivery by the Company, such Rights
Certificates, nevertheless, may be issued and delivered by the Company with the same force and
effect as though the person who signed such Rights Certificates had not ceased to be such officer
of the Company; and any Rights Certificates may be signed on behalf of the Company by any person
who, at the actual date of the execution of such Rights Certificate, shall be a proper officer of
the Company to sign such Rights Certificate, although at the date of the execution of this Plan any
such person was not such an officer.




          (b) Following the Distribution Date, the Company or the Rights Agent, if any, will keep or
cause to be kept, at the principal executive office of the Company or at the principal




13









 







shareholder
services office or offices of the Rights Agent designated for such purposes, as the case may be,
books for registration and transfer of the Rights Certificates issued hereunder. Such books shall
show the names and addresses of the respective holders of the Rights Certificates, the number of
Rights evidenced on its face by each of the Rights Certificates and the date of each of the Rights
Certificates.




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



          (a) Subject to the provisions of Section 4(b), Section 7(e) and Section 14 hereof, at any time
after the Close of Business on the Distribution Date, and at or prior to the Close of Business on
the Expiration Date, any Rights Certificate or Certificates may be transferred, split up, combined
or exchanged for another Rights Certificate or Certificates, entitling the registered holder to
purchase a like number of shares of Common Stock (or, following a Triggering Event, other
securities, cash or other assets, as the case may be) as the Rights Certificate or
Certificates surrendered then entitle such holder (or former holder in the case of a transfer)
to purchase. Any registered holder desiring to transfer, split up, combine or exchange any Rights
Certificate or Certificates shall make such request in writing delivered to the Company or the
Rights Agent, if any, and shall surrender the Rights Certificate or Certificates to be transferred,
split up, combined or exchanged, with the form of assignment and certificate duly executed, at the
principal executive office of the Company, or the principal shareholder services office or offices
of the Rights Agent designated for such purposes, as the case may be. Neither the Company nor the
Rights Agent, if any, as the case may be, shall be obligated to take any action whatsoever with
respect to the transfer of any such surrendered Rights Certificate until the registered holder
shall have completed and signed the certificate contained in the form of assignment set forth on
the reverse side of each such Rights Certificate and shall have provided such additional evidence
of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Secretary of the Company or the Rights Agent, as the case may be, shall reasonably
request. Thereupon the Secretary of the Company or the Rights Agent, as the case may be, shall,
subject to Section 4(b), Section 7(e) and Section 14 hereof, deliver to the Person entitled thereto
a Rights Certificate or Rights 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 Rights Certificates.




          (b) Upon receipt by the Company or the Rights Agent, if




14









 







any, of evidence reasonably
satisfactory to either of them of the loss, theft, destruction or mutilation of a Rights
Certificate, and, in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to either of them, and reimbursement to the Company or the Rights Agent, as the case
may be, of all reasonable expenses incidental thereto, and upon surrender to the Company or the
Rights Agent, as the case may be, and cancellation of the Rights Certificate if mutilated,
the Company or the Rights Agent, as the case may be, will execute and deliver a new Rights
Certificate of like tenor to the registered owner in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated.




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



          (a) Subject to Section 7(e) hereof, the registered holder of any Rights Certificate may
exercise the Rights
evidenced thereby (except as otherwise provided herein, including without limitation the
restrictions on exercisability set forth in Section 9(c), Section ll(a)(iii) and Section 20(a)
hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights
Certificate, with the form of election to purchase and the certificate on the reverse side thereof
duly executed, to the Company or the Rights Agent, if any, at the principal executive office of the
Company or the principal shareholder services office or offices of the Rights Agent designated for
such purposes, as the case may be, together with payment of the aggregate Purchase Price with
respect to the total number of shares of Common Stock (or other securities, cash or other assets,
as the case may be) as to which such surrendered Rights are then exercisable, at or prior to the
earlier of (i) the Final Expiration Date or (ii) the time at which the Rights are redeemed as
provided in Section 20 hereof (the earlier of (i) or (ii) being herein referred to as the
“Expiration Date”). Except for those provisions herein which expressly survive the termination of
this Plan, this Plan shall terminate at such time as the Rights are no longer exercisable
hereunder.




          (b) The Purchase Price for each share of Common Stock pursuant to the exercise of a Right
shall initially be $45.00, and shall be subject to adjustment from time to time as provided in
Sections 11 and 13(a) hereof and shall be payable in accordance with paragraph (c) below.




          (c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of
election to purchase and the certificate duly executed, accompanied by payment, with respect to
each Right so exercised, of the Purchase Price per share of Common Stock (or, following a
Triggering Event, other securities, cash or other assets, as the case may be) to be purchased as
set forth below and an amount equal to any applicable transfer tax,




15









 







the Company shall promptly
(i)(A) requisition from any transfer agent of the shares of Common Stock, if any (but only to the
extent such transfer agent expressly assumes such duty), or, if none, from the Company’s Secretary,
as the case may be, the total number of shares of Common Stock to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number of shares of Common Stock issuable upon
exercise of the Rights hereunder with a depository agent, requisition from the depository agent
depository receipts representing such number of shares of Common Stock as are to be purchased (in
which case the shares of Common Stock represented by such receipts shall be deposited by the
transfer agent (but only to the extent such transfer agent expressly assumes such duty), or, if
none, from the Company’s Secretary, as the case may
be, with the depository agent) and the Company will direct the depository agent to comply with
such request, (ii) when appropriate, requisition the amount of cash, if any, to be paid in lieu of
fractional shares of Common Stock in accordance with Section 14 hereof, (iii) after receipt of such
shares or depository receipts for shares of Common Stock, cause the same to be delivered to or upon
the order of the registered holder of such Rights Certificate, registered in such name or names as
may be designated by such holder, and (iv) after receipt thereof, deliver such cash, if any, to or
upon the order of the registered holder of such Rights Certificate. The payment of the Purchase
Price (as such amount may be reduced pursuant to Section ll(a)(iii) hereof) may be made (x) in cash
or by certified check, cashier’s check or bank draft payable to the order of the Company or (y) if
the Board so determines, by delivery of shares of Common Stock (accompanied by appropriate stock
powers executed in blank) evidencing a number of shares of Common Stock equal to the then Purchase
Price divided by the closing price (as determined pursuant to Section ll(d) hereof) per share of
Common Stock on the Trading Day immediately preceding the date of such exercise. In the event that
the Company is obligated to issue other securities of the Company, pay cash and/or distribute other
property pursuant to Section ll(a) hereof, the Company will make all arrangements necessary so that
such other securities, cash and/or other property are available for distribution, if and when
appropriate. The Company reserves the right to require, prior to the occurrence of a Section
ll(a)(ii) Event or a Section 13 Event, that upon exercise of any Rights, an appropriate number of
Rights be exercised so that any Common Stock issuable hereunder shall only be issued as whole
shares.




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





16












 




be designated
by such holder, subject to the provisions of Section 14 hereof.




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



          (f) Notwithstanding anything in this Plan to the contrary, the Company shall not be obligated
to undertake any action with respect to a registered holder upon the occurrence of any purported
exercise as set forth in this Section 7 unless such registered holder shall have (i) completed and
signed the certificate following the form of election to purchase set forth on the reverse side of
the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of
the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.



     Section 8. Cancellation and Destruction of Rights Certificates.



     All Rights Certificates surrendered for the purpose of exercise, transfer, Split up,
combination or exchange shall, upon surrender to the Company or any of its agents, be cancelled by
it, and no Rights Certificates shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this



17









 







Plan. The Company shall cancel and retire any other Rights Certificate
purchased or acquired by the Company otherwise than upon the exercise thereof.


Section 9. Reservation and Availability of Capital Stock.




          (a) The Company shall use reasonable efforts to cause to be reserved and kept available out of
its authorized and unissued shares of Common Stock (and, following the occurrence of
a Triggering Event, other securities) or out of its authorized and issued Common Stock held in
its treasury, the number of shares of Common Stock (and, following the occurrence of a Triggering
Event, other securities) that, as provided in this Plan, including Section ll(a)(iii) hereof, will
be sufficient to permit the exercise in full of all outstanding Rights.



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



          (c) The Company shall use its best efforts to (i) file, as soon as practicable following the
earliest date after the first occurrence of a Section ll(a)(ii) Event on which the consideration to
be delivered by the Company upon exercise of the Rights has been determined in accordance with
Section ll(a)(iii) hereof, or as soon as is required by law following the Distribution Date, as the
case may be, a registration statement under the Act with respect to the securities purchasable upon
exercise of the Rights on an appropriate form, (ii) cause such registration statement to become
effective as soon as practicable after such filing, and (iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the requirements of the Act) until the
earlier of (A) the date as of which the Rights are no longer exercisable for such securities, and
(B) the date of the expiration of the Rights. The Company will also take such action as may be
appropriate under, or to ensure compliance with, the securities or “blue sky” laws of the various
states in connection with the exercisability of the Rights. The Company may temporarily suspend,
for a period of time not to exceed ninety (90) days after the date set forth in clause (i) of the
first sentence of this Section 9(c), the exercisability of the Rights in order to prepare and file
such registration statement and permit it to become effective. Upon any such suspension, the
Company shall issue a public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the suspension is no longer
in effect. In addition,



18









 







if the Company shall determine that a registration statement is required
following the Distribution Date, the Company may temporarily suspend the exercisability of the
Rights until such time as a registration statement has been declared effective. Notwithstanding any
provision of this Plan to the contrary, the Rights shall not be exercisable in any jurisdiction if
the
requisite qualification in such jurisdiction shall not have been obtained, the exercise
thereof shall not be permitted under applicable law, or any necessary registration statement, the
effectiveness of which in such jurisdiction is required to make the offering not illegal, shall not
have been declared effective.



          (d) The Company shall take all such action as may be necessary to ensure that all shares of
Common Stock (and, following the occurrence of a Triggering Event, other securities), delivered
upon exercise of Rights shall, at the time of delivery thereof (subject to payment of the Purchase
Price), be duly and validly authorized and issued and that all shares shall be fully paid and
nonassessable.



          (e) The Company shall pay when due and payable any and all federal and state transfer taxes
and charges which may be payable in respect of the issuance or delivery of the Rights Certificates
and of any shares of Common Stock (or other securities, as the case may be) issued 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 Rights Certificates to a Person other than, or
the issuance or delivery of a number of shares of Common Stock (or other securities, as the case
may be) in respect of a name other than that of, the registered holder of the Rights Certificates
evidencing Rights surrendered for exercise, or to issue or deliver a number of shares of Common
Stock (or other securities, as the case may be) in a name other than that of the registered holder
upon the exercise of any Rights until such tax shall have been paid (any such tax being payable by
the holder of such Rights Certificate at the time of surrender), or until it has been established
to the Company’s satisfaction that no such tax is due.



     Section 10. Record Date for Securities Issued Upon Exercise.



     Each Person in whose name shares of Common Stock (or other securities, as the case may be) are
issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of
record of such shares of Common Stock (or other securities, as the case may be) represented thereby
on, and any certificate or Uncertificated Share Balance evidencing such share shall be dated, the
date upon which the Rights Certificate evidencing such Rights was duly surrendered and payment of
the Purchase Price (and all applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon



19









 







which the Common Stock (or other securities, as
the case may be) transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such stock (or other
securities, as the case may be) on, and such certificate or Uncertificated Share Balance shall
be dated, the next succeeding Business Day on which the Common Stock (or other securities, as the
case may be) transfer books of the Company are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Rights Certificate shall not be entitled to any rights of a shareholder of
the Company with respect to stock for which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any proceedings of the
Company, except as provided herein.



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



     The Purchase Price, the number and kind of securities 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 this Plan is adopted (A)
declare a dividend on the Common Stock payable in shares of Common Stock, (B) subdivide the
outstanding Common Stock, (C) combine the outstanding Common Stock into a smaller number of
shares, or (D) issue any shares of its capital stock in a reclassification of the Common
Stock (including any such reclassification in connection with a consolidation or merger in
which the Company is the continuing or surviving corporation), except as otherwise provided
in this Section ll(a) and Section 7(e) hereof, the Purchase Price in effect at the time of
the record date for such dividend or of the effective date of such subdivision, combination
or reclassification, and the number of shares of Common Stock (or the number and kind of
other securities, as the case may be), shall be proportionately adjusted so that if a holder
of Rights after such time were to exercise that number of Rights which would result in the
aggregate amount of the Purchase Price payable upon such exercise (at the Purchase Price
then in effect) being equal to the amount of the Purchase Price that was payable prior to
such time upon exercise of a Right, the holder would be entitled to receive the aggregate
number of shares of Common Stock (or the number and kind of other securities, as the case
may be) which, if a Right had been exercised immediately prior to such time and at a time
when the Common Stock (or other securities, as the case may be) transfer books of the
Company were open, the holder would have owned upon such



20









 







exercise and been entitled to receive by virtue of such dividend, subdivision, combination
or reclassification. If an event occurs which would require an adjustment under both this
Section ll(a)(i) and Section ll(a)(ii) hereof, the adjustment provided for in this Section
ll(a)(i) shall be in addition to, and shall be made prior to, any adjustment required
Pursuant to Section ll(a)(ii) hereof.



     (ii) In the event:




(A) any Person or group of Persons shall at any time after the Rights Dividend Declaration
Date, without the consent of a majority of the Disinterested Directors, become an Acquiring
Person unless the event causing the 20% threshold to be crossed is a transaction set forth
in Section 13(a) hereof, or is an acquisition of shares of Common Stock pursuant to a tender
offer or an exchange offer for all outstanding shares of Common Stock at a price and on
terms determined by at least a majority of the Disinterested Directors after receiving
advice from one or more investment banking firms, to be (a) at a price which is fair to
shareholders (taking into account all factors which such members of the Board deem relevant
including, without limitation, prices which could reasonably be achieved if the Company or
its assets were sold on an orderly basis designed to realize maximum value) and (b)
otherwise in the best interests of the Company and its shareholders (such offer herein
referred to as a “Fair Value Offer”), or




(B) any Acquiring Person whose acquisition of 20% or more of the Company’s Common Stock has
been consented to by a majority of the Disinterested Directors, or any Associate or
Affiliate of any such Acquiring Person, shall, without the consent of a majority of the
Disinterested Directors, (1) acquire, directly or indirectly, in one or a series of
transactions, an additional 2% or more of the Company’s Common Stock, (2) sell, purchase,
lease, exchange, mortgage, pledge, transfer or otherwise acquire or dispose of, in one or a
series of transactions, to, from or with the Company or any of its Subsidiaries, assets on
terms and conditions less favorable to the Company than the Company would be able to obtain
in arm’s length negotiation with an unaffiliated third party, other than pursuant to a
transaction set forth in Section 13(a) hereof, (3) sell, purchase, lease, exchange,
mortgage, pledge, transfer or otherwise acquire or dispose of, in one or a series of
transactions, to, from or with the Company or any of its Subsidiaries (other than incidental
to the lines of business, if any, engaged in as of the date of this Plan between the Company
and such
Acquiring Person or Associate or Affiliate thereof) assets having an aggregate fair market
value of more than $5,000,000, other than pursuant to a transaction set forth



21









 







in Section
13(a) hereof, (4) receive any compensation from the Company or any of the Company’s
Subsidiaries other than compensation for full-time employment as a regular employee at rates
in accordance with the Company’s or such Subsidiary’s normal practices, or (5) receive the
benefit, directly or indirectly (except resulting from a requirement of law or governmental
regulation), of any loans, advances, guarantees, pledges or other financial assistance or
any tax credits or other tax advantage provided by the Company or any of its Subsidiaries.


then, ten days following the first occurrence of a Section ll(a)(ii) Event (or such shorter or
longer period as a majority of the Disinterested Directors shall from time to time determine),
proper provision shall be made so that each holder of a Right (except as provided below and in
Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then
current Purchase Price in accordance with the terms of this Plan such number of shares of Common
Stock of the Company as shall equal the result obtained by (x) multiplying the then current
Purchase Price by the then number of shares of Common Stock for which a Right was exercisable
immediately prior to the first occurrence of a Section ll(a)(ii) Event, and (y) dividing that
product (which, following such first occurrence, shall thereafter be referred to as the “Purchase
Price” for each Right and for all purposes of this Plan) by 50% of the Current Market Price per
share of Common Stock on the date of such first occurrence (such number of shares, the “Adjustment
Shares”); provided that, in no event shall the Company issue or be obligated to issue Common Stock
at a Purchase Price per share of Common Stock that is less than the per share par value of the
Common Stock as the same may be adjusted from time to time; and provided further that after the
occurrence of any Section ll(a)(ii) event, the Company, by action of a majority of the
Disinterested Directors in office at the time, may permit the Rights to be exercised, or may
require and specify that the Rights may only be exercised, for 50% of the shares of Common Stock
(or cash or other securities or assets to be substituted for the Adjustment Shares pursuant to
Section ll(a)(iii) below) that would otherwise be purchasable pursuant to the preceding clauses of
this Section ll(a)(ii) in consideration of the surrender to the Company of the Rights so exercised
and without payment of the Purchase Price(except to the extent, if any, as may, in the opinion of
the Company’s legal counsel, be necessary in order that the Company may validly and legally
thereupon issue fully paid and nonassessable shares of Common Stock), and all
Rights so exercised under this proviso without payment of the Purchase Price shall be deemed to
have been exercised in full and shall be cancelled; and provided further that during the ten days
following the first occurrence of a Section ll(a)(ii) Event (or such shorter or longer period as a
majority of the Disinterested Directors shall from time to time determine), the Rights may be


22









 






redeemed only by the vote of a majority of the Disinterested Directors who are Directors of the
Company on the day before the occurrence of such Section ll(a)(ii) Event.




     (iii) In the event that the number of shares of Common Stock which are authorized by the
Company’s articles of incorporation but not outstanding or reserved for issuance for purposes other
than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) of this Section ll(a), the Company shall: (A)
determine the excess of (i) the value of the Adjustment Shares issuable upon the exercise of a
Right (the “Current Value”) over (2) the Purchase Price (such excess being referred to as the
“Spread”), and (B) with respect to each Right, make adequate provision to substitute for the
Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the
Purchase Price, (3) other equity securities of the Company (including, without limitation, shares,
or units of shares of preferred stock, if any exists at such time), which the Board has deemed to
have the same value as shares of Common Stock (such shares of preferred stock being referred to as
“Common Stock Equivalents”)), (4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing (whichever substituted, the “Substitute Consideration”), having an
aggregate value equal to the Current Value, where such aggregate value has been determined by the
Board based upon the advice of a nationally recognized investment banking firm selected by the
Board; provided, however, if the Company shall not have made adequate provision to deliver value
pursuant to clause (B) above within thirty (30) days following the date of the first occurrence of
a Section ll(a)(ii) Event (such date being referred to herein as the “Section ll(a)(ii) Trigger
Date”), then, subject to subsection (k) hereof, the Company shall be obligated to deliver, upon the
surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of
Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have
an aggregate value equal to the Spread. If the Board shall determine in good faith that it is
likely that sufficient additional shares of Common Stock could be authorized for issuance upon
exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the
extent necessary, but not more than ninety (90) days after the Section ll(a)(ii) Trigger Date, in
order that the Company may seek
shareholder approval for the authorization of such additional shares (such period, as it may
be extended, being referred to herein as the “Substitution Period”). To the extent that the Company
determines that some action need be taken pursuant to the first and/or second sentences of this
Section ll(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action
shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the
Rights until the expiration of the Substitution Period in order to seek any



23









 







authorization of
additional shares and/or to decide the appropriate form of distribution to be made pursuant to such
first sentence and to determine the value thereof. In the event of any such suspension, the Company
shall issue a public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the suspension is no longer
in effect. For purposes of this Section ll(a)(iii), the value of the Common Stock shall be the
Current Market Price per share of the Common Stock on the Section ll(a)(ii) Trigger Date and the
value of any Common Stock Equivalent shall be deemed to have the same value as the Common Stock on
such date.



          (b) In case the Company shall fix a record date for issuance of rights, options or warrants to
all holders of Common Stock, entitling them to subscribe for or purchase (for a period expiring
within forty-five (45) calendar days after such record date) Common Stock (or shares having the
same rights, privilege and preferences as the shares of Common Stock (“Equivalent Common Stock”))
or securities convertible into Common Stock or Equivalent Common Stock at a price per share of
Common Stock or per share of Equivalent Common Stock (or having a conversion price per share, if a
security convertible into Common Stock or Equivalent Common Stock) less than the Current Market
Price per share of Common Stock on such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding on such record date, plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of Common Stock and/or Equivalent Common
Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities
so to be offered) would purchase at such Current Market Price, and the denominator of which shall
be the number of shares of Common Stock outstanding on such record date, plus the number of
additional shares of Common Stock and/or Equivalent Common Stock to be offered for subscription or
purchase (or into which the convertible securities so to be offered are initially convertible). In
case such subscription price may be paid by
delivery of consideration part or all of which may be in a form other than cash, the value of
such consideration shall be as determined in good faith by the Board whose determination shall be
conclusive for all purposes. Shares of Common Stock owned by or held for the account of the Company
shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed, and in the event that such rights or
warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.



24









 





          (c) In case the Company shall fix a record date for a distribution to all holders of Common
Stock (including any such distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular
quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other
than a dividend payable in Common Stock, but including any dividend payable in stock other than
Common Stock) or subscription rights or warrants (excluding those referred to in Section ll(b)
hereof), the Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the Current Market Price per share of Common Stock on such record date,
less the fair market value (as determined in good faith by the Board whose determination shall be
conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to
be distributed or of such subscription rights or warrants applicable to a share of Common Stock and
the denominator of which shall be such Current Market Price per share of Common Stock. Such
adjustments shall be made successively whenever such a record date is fixed, and in the event that
such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price
which would have been in effect if such record date had not been fixed.



          (d) For the purpose of any computation hereunder, other than computations made pursuant to
Section ll(a)(iii) hereof, the “Current Market Price” per share of Common Stock on any date shall
be deemed to be the average of the daily closing prices per share of such Common Stock for the
thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of
computations made pursuant to Section ll(a)(iii) hereof, the “Current Market Price” per share of
Common Stock on any date shall be deemed to be the average of the daily closing prices per share of
such Common Stock for the ten (10) consecutive Trading Days immediately following such date;
provided, however, that in
the event that the Current Market Price per share of the Common Stock is determined during a
period following the announcement by the issuer of such Common Stock of (i) a dividend or
distribution on such Common Stock payable in shares of such Common Stock or securities convertible
into shares of such Common Stock (other than the Rights), or (ii) any subdivision, combination or
reclassification of such Common Stock, and prior to the expiration of the requisite thirty (30)
Trading Day or ten (10) Trading Day period, as set forth above, after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision, combination or reclassification,
then, and in each such case, the Current Market Price shall be properly adjusted to take into
account ex-dividend trading. The closing price for each day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the average of the



25









 







closing bid and asked
prices, regular way, in either case as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national securities exchange on which the
shares of Common Stock are listed or admitted to trading or, if the shares of Common Stock are not
listed or admitted to trading on any national securities exchange, the last quoted price or, if not
so quoted, the average of the high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc., Automated Quotation System or
such other system then in use, or, if on any such date the shares of Common Stock are not quoted by
any such organization, the average of the Closing bid and asked prices as furnished by a
professional market maker making a market in the Common Stock selected by the Board. If on any such
date no market maker is making a market in the Common Stock, the fair value of such stock on such
date as determined in good faith by the Board shall be used. The term “Trading Day” shall mean a
day on which the principal national securities exchange on which the shares of Common Stock are
listed or admitted to trading is open for the transaction of business or, if the shares of Common
Stock are not listed or admitted to trading on any national securities exchange, a Business Day. If
the Common Stock is not publicly held or not so listed or traded, Current Market Price per share
shall mean the fair value per share as determined in good faith by the Board whose determination
shall be conclusive for all purposes. The Current Market Price of any fraction of a share of Common
Stock hereunder shall be determined by multiplying the Current Market Price per share of Common
Stock, determined in accordance with this paragraph, by such fraction.



          (e) Anything herein to the contrary notwithstanding, no adjustment in the Purchase Price shall
be required unless such adjustment would require an increase or decrease of at least one
percent (1%) in the Purchase Price; provided, however, that any adjustments which by reason of
this Section ll(e) are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent
or to the nearest ten-thousandth of a share, as the case may be. Notwithstanding the first sentence
of this Section ll(e), any adjustment required by this Section 11 shall be made no later than the
earlier of (i) three (3) years from the date of the transaction which mandates such adjustment, or
(ii) the Expiration Date.



          (f) If as a result of an adjustment made pursuant to Section ll(a)(ii) or Section 13(a)
hereof, the holder of any Right thereafter exercised shall become entitled to receive any shares of
capital stock other than Common Stock, thereafter the number of such other shares so receivable
upon exercise of any Right and the Purchase Price thereof shall be subject to adjustment from time
to time in a manner and on terms as nearly



26









 







equivalent as practicable to the provisions with respect
to the Common Stock contained in Sections ll(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m),
and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Common Stock shall
apply on like terms to any such other shares.



          (g) All Rights originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, that
number of shares of Common Stock purchasable from time to time hereunder (or, if applicable,
preferred stock) upon exercise of the Rights, all subject to further adjustment as provided herein.



          (h) Unless the Company shall have exercised its election as provided in Section ll(i), upon
each adjustment of the Purchase Price as a result of the calculations made in Sections ll(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 shares of Common
Stock (calculated to the nearest ten-thousandth) obtained by (i) multiplying (x) the number of
shares covered by a Right immediately prior to this adjustment, by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price, and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such adjustment of the Purchase Price.



          (i) The Company may elect on or after the date of any adjustment of the Purchase Price to
adjust the number of Rights, in lieu of any adjustment in the number of shares of Common Stock
purchasable upon the exercise of a Right. In that event, each of the Rights outstanding after
the adjustment in the number of Rights shall be exercisable for that number of shares of Common
Stock for which a Right was exercisable immediately prior to such adjustment; and each Right held
of record prior to such adjustment of the number of Rights shall become the number of Rights
(calculated to the nearest one-ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately
after adjustment of the Purchase Price. The Company shall make a public announcement of its
election to adjust the number of Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. This record date may be the date on
which the Purchase Price is adjusted or any day thereafter, but, if the Rights Certificates have
been issued, shall be at least ten (10) days later than the date of the public announcement. If
Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this
Section ll(i), the Company shall, as promptly as practicable, cause to be distributed to holders of
record of Rights Certificates on such record date Rights



27









 







Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders shall be entitled as a result of
such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of
record in substitution and replacement for the Rights Certificates held by such holders prior to
the date of adjustment, and upon surrender thereof, if required by the Company, new Rights
Certificates evidencing all the Rights to which such holders shall be entitled after such
adjustment. All costs associated with such adjustments, including without limitation any taxes
required to be paid on account of such adjustment, shall be borne by the Company. Rights
Certificates so to be distributed shall be issued and executed in the manner provided for herein
(and may bear, at the option of the Company, the adjusted Purchase Price) and shall be registered
in the names of the holders of record of Rights Certificates on the record date specified in the
public announcement.



          (j) Irrespective of any adjustment or change in the Purchase Price or the stock issuable upon
the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue
to express the Purchase Price per share of Common Stock and the shares of Common Stock which were
expressed in the initial Rights Certificates issued hereunder.



          (k) Before taking any action that would cause an adjustment reducing the Purchase Price below
the then par value, if any, of the shares of Common Stock issuable upon exercise of
the Rights, the Company shall take any corporate action, including using its reasonable best
efforts to obtain any required shareholder approval, which may, in the opinion of its counsel, be
necessary in order that the Company may validly and loyally issue fully paid and nonassessable
shares of Common Stock at such adjusted Purchase Price.



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



          (m) Anything in this Section 11 to the contrary



28









 







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



          (n) The Company shall not, at any time after the Distribution Date, (i) consolidate with any
other Person (other than a Subsidiary of the Company in a transaction approved by a majority of the
Disinterested Directors), (ii) merge with or into any other Person (other than a Subsidiary of the
Company in a transaction approved by a majority of the Disinterested Directors), or (iii) sell or
transfer (or permit any Subsidiary to sell or transfer), in one transaction or a series of related
transactions, assets or earning power aggregating more than 50% of the assets or earning power of
the Company and its Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company and/or any of its Subsidiaries in one or more transactions each of
which is approved by a majority of the Disinterested Directors), if (x) at the time of or
immediately after such consolidation, merger or sale there are any provisions of the Company’s
articles of incorporation or bylaws or any rights, warrants or other instruments or securities
outstanding or agreements in effect which would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights to the holders of the Rights or (y) prior to,
simultaneously with or immediately after such consolidation, merger or sale, the shareholders of
the Person who constitutes, or would constitute, the “Principal Party” for purposes of Section
13(a) hereof shall have received a distribution of Rights previously owned by such Person or any of
its Affiliates and Associates.



          (o) After the Distribution Date, the Company shall not, except as permitted by Section 20 or
Section 23 hereof, take (or permit any Subsidiary to take) any action if at the time such action is
taken it is reasonably foreseeable that such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the Rights.



          (p) Anything in this Plan to the contrary notwithstanding, in the event that the Company shall
at any time after the Rights Dividend Declaration Date and prior to the Distribution Date (i)
declare a dividend on the outstanding



29









 







shares of Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding shares of Common Stock, or (iii) combine the outstanding shares of
Common Stock into a smaller number of shares, the number of Rights associated with each share of
Common Stock then outstanding, or issued or delivered thereafter but prior to the Distribution
Date, shall be proportionately adjusted so that the number of Rights thereafter associated with
each share of Common Stock following any such event shall equal the result obtained by multiplying
the number of Rights associated with each share of Common Stock immediately prior to such event by
a fraction the numerator of which shall be the total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the denominator of which shall be the total
number of shares of Common Stock outstanding immediately following the occurrence of such event.



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



          Whenever an adjustment is made as provided in Section 11 and Section 13 hereof, the Company
shall (a) promptly prepare a
certificate setting forth such adjustment and a brief statement of the facts accounting for
such adjustment, (b) promptly file with the Rights Agent, if any, or if no Rights Agent has been
appointed, with the Company’s Secretary, and with each transfer agent for the Common Stock, a copy
of such certificate, and mail a brief summary thereof to each holder of a Rights Certificate (or,
if prior to the Distribution Date, to each holder of shares of Common Stock) in accordance with
Section 22 hereof. Notwithstanding the foregoing sentence, the failure of the Company to give such
notice shall not affect the validity of or the force or effect of or the requirement for such
adjustment. The Rights Agent, if any, shall be fully protected in relying on any such certificate
and on any adjustment therein contained and shall not be deemed to have knowledge of any such
adjustment unless and until it shall have received such certificate.



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



          (a) In the event that, following or simultaneously with the Distribution Date, directly or
indirectly, without the consent of a majority of the Disinterested Directors, (x) the Company shall
consolidate with, or merge with and into, any other Person, and the Company shall not be the
continuing or surviving corporation of such consolidation or merger, (y) any Person shall
consolidate with, or merge with or into, the Company, and the Company shall be the continuing or
surviving corporation of such consolidation or merger and, in connection with such consolidation or
merger, all or part of the outstanding shares of Common Stock shall be changed into or exchanged
for stock or



30









 







other securities of any other Person or cash or any other property, or (z) the Company
shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer), in one transaction or a series of related transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company and its Subsidiaries (taken
as a whole) to any Person or Persons, then, and in each such case (except as may be contemplated by
Section 13(d) hereof), proper provision shall be made so that: (i) each holder of a Right, except
as provided in Section 7(e) hereof, shall thereafter have the right to receive, upon the exercise
thereof at the then current Purchase Price in accordance with the terms of this Plan, such number
of validly authorized and issued, fully paid, non-assessable and freely tradeable shares of Common
Stock of the Principal Party, not subject to any liens, encumbrances, rights of first refusal or
other adverse claims, as shall be equal to the result obtained by (1) multiplying the then current
Purchase Price by the number of shares of Common Stock (or, if applicable, preferred stock) for
which a Right is
exercisable immediately prior to the first occurrence of a Section 13 Event (or, if a Section
ll(a)(ii) Event has occurred prior to the first occurrence of a Section 13 Event, multiplying the
number of shares of Common Stock (or, if applicable, preferred stock) for which a Right was
exercisable immediately prior to the first occurrence of a Section ll(a)(ii) Event by the Purchase
Price in effect immediately prior to such first occurrence), and dividing that product (which,
following the first occurrence of a Section 13 Event, shall be referred to as the “Purchase Price”
for each Right and for all purposes of this Plan) by (2) 50% of the Current Market Price per share
of the Common Stock of such Principal Party on the date of consummation of such Section 13 Event;
(ii) such Principal Party shall thereafter be liable for, and shall assume, by virtue of
such Section 13 Event, all the obligations and duties of the Company pursuant to this Plan; (iii)
the term “Company” shall thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof shall apply only to such Principal
Party following the first occurrence of a Section 13 Event; (iv) such Principal Party shall take
such steps (including, but not limited to, the reservation of a sufficient number of shares of its
Common Stock) in connection with the consummation of any such transaction as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be,
in relation to its shares of Common Stock thereafter deliverable upon the exercise of the Rights;
and (v) the provisions of Section ll(a)(ii) hereof shall be of no effect following the first
occurrence of any Section 13 Event.



          (b) “Principal Party” shall mean:



          (i) in the case of any transaction described in clause



31









 







(x) or (y) of the first sentence of
Section 13(a), the Person that is the issuer of any securities into which shares of Common Stock of
the Company are converted in such merger or consolidation, and if no securities are so issued, the
Person that is the other party to such merger or consolidation; and



          (ii) in the case of any transaction described in clause (z) of the first sentence of Section
13(a), the Person that is the party receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the Common Stock of such Person is not at such
time and has not been continuously over the preceding twelve (12) month period registered under
Section 12 of the Exchange Act, and such Person is a direct or indirect Subsidiary of another
Person the Common Stock of which is and has been so registered, “Principal Party” shall refer to
such other Person; and (2) in case such Person is a Subsidiary, directly or indirectly, of more
than one Person, the Common Stocks of two or more of which are and have been so registered,
“Principal Party” shall refer to whichever of such Persons is the issuer of the Common Stock having
the greatest aggregate market value.



          (c) The Company shall not consummate any such consolidation, merger, sale or transfer unless
the Principal Party shall have a sufficient number of authorized shares of its Common Stock which
have not been issued or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent, if any, or if no Rights Agent shall have been
appointed,
to the Company’s Secretary, a supplemental agreement, satisfactory in form and substance to a
majority of the Disinterested Directors, providing for the terms set forth in Paragraphs (a) and
(b) of this Section 13 and further providing that, as soon as practicable after the date of any
consolidation, merger or sale of assets mentioned in paragraph (a) of this Section 13, the
Principal Party:



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



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



32









 





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



          (d) Notwithstanding anything in this Plan to the contrary, Section 13 shall not be applicable
to a transaction described in subparagraphs (x) and (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons (or a wholly owned subsidiary of any such Person or Persons)
who acquired shares of Common Stock pursuant to a Fair Value Offer,
(ii) the price per share of Common Stock offered in such transaction is not less than the
price per share of Common Stock paid to all holders of shares of Common Stock whose shares were
purchased pursuant to such Fair Value Offer, and (iii) the form of consideration being offered to
the remaining holders of shares of Common Stock pursuant to such transaction is cash. Upon
consummation of any such transaction contemplated by this Section 13(d), all Rights hereunder shall
expire.



          (e) The provisions of this Section 13 shall be applicable to a transaction described in
subparagraphs (x), (y), and (z) of Section 13(a) regardless of the business form of the Principal
Party (e.g., corporation, partnership, or other form). In the event that the Principal Party is an
entity other than a
corporation, the term “Common Stock,” as used in reference to the Principal Party in this Section
13 or otherwise, shall be construed to refer to the equity securities or other equity interest
having power to control or direct the management of, or representing the fundamental economic
interest in, such Principal Party.



          Section 14. Fractional Rights and Fractional Shares.



          (a) The Company shall not be required to issue fractions of Rights or to distribute Rights
Certificates which evidence fractional Rights. In lieu of such fractional Rights, there may be paid
to the registered holders of the Rights Certificates with regard to which such fractional Rights
would otherwise be issuable an amount in cash equal to the same fraction of the current market
value of a whole Right. For purposes of this Section 14(a), the current market value of a whole
Right shall be the closing price of the Rights for the Trading Day immediately prior to the date on
which such fractional Rights would have been otherwise issuable. The closing price of the Rights
for any day shall be 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 on the
principal national securities



33









 







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 National Association of Securities Dealers, Inc.
Automated Quotation System 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 selected by the Board making a market in the Rights. If on any
such date no such market maker is making a market in the Rights, then the fair value of the
Rights on such date as determined in good faith by the Board shall be used.



          (b) The Company shall not be required to issue fractions of shares of Common Stock (or other
securities) upon exercise of the Rights or to distribute fractional shares of Common Stock (or
other securities). In lieu of fractional shares of Common Stock (or other securities), the Company
may pay to the registered holders of Rights Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of the current market value of a share
of Common Stock (or other securities). For purposes of this Section 14(b), the current market value
of one share of Common Stock shall be the closing price per share of Common Stock (as determined
pursuant to Section ll(d) hereof) for the Trading Day immediately prior to the date of such
exercise, and the current market value of any other securities shall be determined utilizing the
principles of Section ll(d) hereof as applied by the Board in its sole discretion.



          (c) The holders of Rights by the acceptance of the Rights expressly waive any right to receive
any fractional Rights and/or any fractional shares upon exercise of a Right.



          Section 15. Rights of Action.



          All rights of action in respect of this Plan are vested in the respective registered holders
of the Rights Certificates (and, prior to the Distribution Date, the registered holders of the
Common Stock); and any registered holder of any Rights Certificate (or, prior to the Distribution
Date, of the Common Stock), without the consent of the holder of any other Rights Certificate (or,
prior to the Distribution Date, of the Common Stock), 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 Rights Certificate in the manner provided in such Rights Certificate and
in this Plan. Without limiting the foregoing or any remedies available to the holders of Rights, it
is specifically acknowledged that the holders of Rights would not



34









 







have an adequate remedy at law
for any breach of this Plan and shall be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened violations of the obligations
hereunder of any Person subject to this Plan.



          Section 16. Agreement of Rights Holders.



          Every holder of a Right by accepting the same consents and agrees with the Company 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 Common Stock;



          (b) After the Distribution Date, the Rights Certificates are transferable only on the registry
books of the Company, if surrendered at the principal office of the Company, or, if a Rights Agent
is appointed by the Company hereunder, only on the registry books of said Rights Agent, if
surrendered at the principal shareholder services office or offices of the Rights Agent designated
for such purposes, in either case duly endorsed or accompanied by a proper instrument of transfer
and with the appropriate forms and certificates fully executed;



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



          (d) Notwithstanding anything in this Plan to the contrary, neither the Company nor any Rights
Agent appointed by the Company shall have any liability to any holder of a Right or other Person as
a result of its inability to perform any of its obligations under this Plan by reason of any
preliminary or permanent injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of such obligation; provided, however, the Company
must use its best efforts to have any such order, decree or ruling lifted or otherwise overturned
as soon as possible.



35









 





          Section 17. Rights Certificate Holder Not Deemed a Shareholder.



          No holder, as such, of any Rights Certificate shall be entitled to vote, receive dividends or
be deemed for any purpose the holder of the number of shares of Common Stock or any other
securities of the Company which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Rights Certificate be construed
to confer upon the holder of any Rights Certificate, as such, any of the rights of a shareholder or
any right to vote for the election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as provided in Section 21 hereof), or to
receive dividends or subscription rights or otherwise, until the Right or Rights evidenced by such
Rights Certificate shall have been exercised in accordance with the provisions hereof.



          Section 18. Indemnification of Corporate Officers.



          (a) The Company shall indemnify its officers for and hold them harmless against any loss,
liability or expense incurred without negligence, bad faith or willful misconduct on
the part of such officers for anything done or omitted by such officers in connection with the
acceptance and administration of this Plan, including the costs and expenses of defending against
any claim of liability arising therefrom, directly or indirectly, and will promptly reimburse such
officers for any legal or other expenses reasonably incurred in investigating or defending any such
1066, expense, claim, damage or liability.



          (b) The Company’s officers shall be protected by the indemnity provided in this Section 18
and shall incur no liability for or in respect of any action taken, suffered or omitted by any of
them in connection with their administration of this Plan in reliance upon any Rights Certificate
or certificate for Common Stock or for other securities of the Company, instrument or assignment of
transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by such officer to be genuine and to be
signed, executed and, where necessary, verified or acknowledged by the proper Person or Persons.



          Section 19. Issuance of New Rights Certificates.



          Notwithstanding any of the provisions of this Plan or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates evidencing Rights in such form as may be



36









 







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



          Section 20. Redemption and Termination; Exchange.



          (a) The Disinterested Directors then in office
may, at any time prior to the Final Expiration Date, at their
option, upon the affirmative vote or written consent of not less than a majority of such
Disinterested Directors, redeem all but not less than all of the then outstanding Rights at a
redemption price of $.01 per Right, as such amount may be appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date hereof (such redemption
price being hereinafter referred to as the “Redemption Price”). The Company may, at its option, pay
the Redemption Price in cash, shares of Common Stock (based on the Current Market Price of the
Common Stock at the time of redemption) or any other form of consideration deemed appropriate by a
majority of the Disinterested Directors.



          (b) Immediately upon the taking of action by a majority of the Disinterested Directors
ordering the redemption of the Rights, 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 (without the payment of any interest thereon) for each
Right so held. Promptly after the taking of action by a majority of the Disinterested Directors
ordering the redemption of the Rights, the Company shall give notice of such redemption to the
holders of the then outstanding Rights by mailing such
notice to all such holders at each holder’s last address as it appears upon the registry books
of the Company. Any notice which



37









 







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. The failure to give any notice required
by this Section 20(b) or any defect therein shall not affect the legality or validity of the action
taken by the Company.



          (c) The Board may, at its option, at any time after the Distribution Date, exchange all or
part of the then outstanding and exercisable Rights (which shall not include Rights that have
become void pursuant to the provisions of Section 7(e) hereof) for Common Stock at an exchange
ratio of one share of Common Stock per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the Rights Dividend Declaration Date(such
number of shares of Common Stock issuable in exchange for one Right being referred to herein as the
“Exchange Shares”),subject to payment by exchanging holders of Rights of such amount, if any, as
may, in the opinion of the Company’s legal counsel, be necessary in order that the Company may
validly and legally thereupon issue fully paid and nonassessable shares of Common Stock.
Notwithstanding the foregoing, the Board shall not be empowered to effect such exchange at any time
after any Acquiring Person, together with all Affiliates and Associates of such Person, becomes the
beneficial owner of 50% or more of the Common Stock then outstanding.



          (d) Immediately upon the action of the Board ordering the exchange of any Rights pursuant to
subsection (c) of this Section 20, 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 the Exchange Shares. 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 in accordance with Section 22 hereof. Each such
notice of exchange will state the method by which the exchange of the Common Stock for Rights will
be effected and, in the event of any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the provisions of Section 7(e) hereof) held by each
holder of Rights.



          (e) In the event that there shall not be sufficient shares of Common Stock issued but not
outstanding, or authorized but unissued, to permit any exchange of Rights as contemplated in
accordance with this Section 20, the Company shall either take such action as shall be necessary to
authorize additional shares



38









 







of Common Stock, or take such action specified in Section 11(a)(iii)
hereof as shall be necessary to substitute for each Exchange Share other consideration having value
equal to the Current Market Price per share of the Common Stock as of the date such substitution
is authorized by the Board.



          Section 21. Notice of Certain Events.



          (a) In case the Company shall propose, at any time after the Distribution Date, (i) to pay any
dividend payable in shares of any class to the holders of Common Stock or to make any other
distribution to the holders of Common Stock (other than a regular quarterly cash dividend out of
earnings or retained earnings of the Company), or (ii) to offer to the holders of Common Stock
rights or warrants to subscribe for or to purchase any additional shares of Common Stock or shares
of stock of any class or any other securities, rights or options, or (iii) to effect any
reclassification of its Common Stock (other than a reclassification involving only the subdivision
of outstanding shares of Common Stock), or (iv) to effect any consolidation or merger into or with
any other Person (other than a Subsidiary of the Company in a transaction which complies with
Section ll(o) hereof), or to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one transaction or a series of related
transactions, of more than 50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to
any other Person or Persons (other than the Company and/or any of its Subsidiaries in one or more
transactions each of which complies with Section ll hereof), or (v) to effect the liquidation,
dissolution or winding up of the Company, then, in each such case, the Company shall give to each
holder of a Rights Certificate, to the extent feasible and, in accordance with Section 22 hereof, a
notice of such proposed action, which shall specify the record date for the purposes of such stock
dividend, distribution of rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution, or winding up is to take place and
the date of participation therein by the holders of the shares of Common Stock, if any such date is
to be fixed, and such notice shall be so given in the case of any action covered by clause (i) or
(ii) above at least twenty (20) days prior to the record date for determining holders of the shares
of Common Stock for
purposes of such action, and in the case of any such other action, at least twenty (20) days prior
to the date of the taking of such proposed action or the date of participation therein by the
holders of the shares of Common Stock, whichever shall be the earlier.



          (b) If any event set forth in Section ll(a)(ii) hereof shall occur, then, (i) the Company
shall as soon as practicable



39









 







thereafter give to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 22 hereof, a notice of the occurrence of such event, which
shall specify the event and the consequences of the event to holders of Rights under Section
ll(a)(ii) hereof, and (ii) all references in the preceding paragraph to Common Stock shall, to the
extent appropriate, also be deemed thereafter to refer to other securities.



          (c) The failure to give any notice required by this Section 21 or any defect therein shall not
affect the legality or validity of the action taken by the Company or the vote upon any such
action.



          Section 22. Notices.



          Notices or demands authorized by this Plan to be given or made to or on the Company shall be
sufficiently given or made if sent by first class mail, postage prepaid, addressed (until another
address is sent as provided below to the holders of the Rights) as follows:


EMS Technologies, Inc.

660 Engineering Drive

Technology Park/Atlanta

Norcross, Georgia 30092

Attention: Chairman of the Board of Directors




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




          Section 23. Supplements and Amendment; Substituted Plan.




          Prior to the Distribution Date, the Company may supplement or amend any provision of this
Plan, terminate this Plan or adopt a new rights plan in substitution for this Plan and
all Rights outstanding hereunder (in which case this Plan and all such Rights shall thereafter
become null and void), without the approval of any holders of shares of Common Stock or any payment
of the Redemption Price of the Rights. From and after the Distribution Date, the Disinterested
Directors may supplement or amend this Plan, or adopt a new rights plan in substitution for this
Plan and all Rights outstanding hereunder (in which case this Plan and all such Rights shall
thereafter become null and void), without the approval of any holders of Rights Certificates in
order (i) to cure any ambiguity, (ii) to correct or supplement any provision contained herein which
may be defective or





40












 




inconsistent with any other provisions
herein, (iii) to shorten or lengthen any time period hereunder, (iv) to effect compliance with, or
take advantage of, any changes in law affecting the legality or enforceability of plans or
arrangements such as this Plan, or (v) to change or supplement the provisions hereunder in any
other manner which the Disinterested Directors may deem necessary or desirable, including without
limitation the addition of other events requiring adjustment to the Rights under Section ll(a)(ii)
or 13 or procedures relating to the redemption of the Rights, which supplement or amendment shall
not adversely affect the interests of the holders of Rights Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person); provided, this Plan may not be so
supplemented or amended, and a new rights plan may not be so adopted in substitution for this Plan,
to lengthen, pursuant to clause (iii) of this sentence, any time period (other than the period to
the Final Expiration Date) unless such lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the holders of Rights (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person). Notwithstanding anything contained in
this Plan to the contrary, no supplement or amendment or substituted plan shall be made or adopted
which changes the Redemption Price, changes the Final Expiration Date to an earlier date, reduces
the Purchase Price, or reduces the number of shares of Common Stock for which a Right is
exercisable, except that any such amendment may substitute preferred stock for the Common Stock
issuable upon exercise of the Right if the value of the preferred stock so substituted with respect
to each Right shall equal, in the sole discretion of a majority of the Disinterested Directors, the
then Current Market Value of the Common Stock then issuable upon exercise of each Right, and any
such amendment or substituted plan effecting such substitution may amend any such provision of this
Plan, including without limitation the adjustment provisions of Section 11, to reflect
appropriately such substitution, or to restate this Plan in its entirety to reflect appropriately
such substitution. Prior
to the Distribution Date, the interests of the holders of Rights shall be deemed coincident
with the interests of the holders of Common Stock.




     Section 24. Successors.



     All the covenants and provisions of this Plan by or for the benefit of the Company shall bind
and inure to the benefit of its successors and assigns hereunder.



     Section 25. Determinations and Actions by the Board of Directors, etc.



     For all purposes of this Plan, any calculation of the number of shares of Common Stock
outstanding at any particular time, including for purposes of determining the particular



41









 




percentage
of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be
made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange Act, subject in all events to the provisions of Section l(e) hereof
including specifically, the last proviso thereof. The Board (or, as set forth herein, certain
specified members thereof) shall have the exclusive power and authority to administer this Plan and
to exercise all rights and powers specifically granted to the Board (or, as set forth herein,
certain specified members thereof) or to the Company, or as may be necessary or advisable in the
administration of this Plan, including, without limitation,- the right and power to (i) interpret
the provisions of this Plan, and (ii) make all determinations deemed necessary or advisable for the
administration of this Plan (including but not limited to a determination to redeem or not redeem
the Rights, to consent to a transaction in which a Person becomes an Acquiring Person, to amend the
Plan or to remit the Substitute Consideration or Spread payable). All such actions, calculations,
interpretations and determinations (including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board (or, as set forth herein, certain
specified members thereof) in good faith, shall (x) be final, conclusive and binding on the
Company, the holders of the Rights and all other parties, and (y) not subject the Board (or, as set
forth herein, certain specified members thereof) to any liability to the holders of the Rights.




     Section 26. Establishment of Fund for Disinterested Directors.



     The Board may, at any time it deems appropriate,
establish or set aside one or more funds, whether in trust, escrow or otherwise (and
regardless of whether such fund is combined with any other fund established or set aside by the
Company), for the purpose of assuring that adequate resources are available to any Disinterested
Director in order to enable such Disinterested Director to carry out his or her prescribed
functions under this Plan and to fulfill his or her fiduciary obligations to shareholders of the
Company.



     Section 27. Benefits of this Plan.



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



42









 





     Section 28. Severability.



     If any term, provision, covenant or restriction of this Plan is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable (including without limitation
the last proviso to Section l(e)), the remainder of the terms, provisions, covenants and
restrictions of this Plan shall remain in full force and effect and shall in no way be affected,
impaired or invalidated; provided, however, that in the event of such a holding by such court or
authority, this Plan may be amended to take into account such holding including by way of
illustration but not limitation, an amendment raising the percentage of beneficial ownership
specified in Section l(a) or Section ll(a)(ii). Without limiting the foregoing provisions of this
Section 27, if any provisions of this Plan requiring that a determination be made by less than the
entire Board (or at a time or with the concurrence of a group of directors constituting less than
the entire Board) is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, such determination shall no longer be subject to determination by such
directors constituting less than the entire Board, but shall instead be made in the best interests
of the holders of the Rights and with a view to effecting the purposes and intent of this Plan by a
court of competent jurisdiction, or, if such court determines it is impermissible or inappropriate
to discharge such function, then such determination shall be made by the entire Board in good
faith, in accordance with applicable law and the Company’s articles of incorporation and bylaws, in
the best interests of the holders of the Rights, and with a view to
effecting the purposes and intent of this Plan.



     Section 29. Governing Law.



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



     Section 30. Descriptive Headings.



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



EXHIBIT A




[Form of Face Side of Rights Certificate]





43









 








			
	 	 	 
	Certificate No. R-
	 	Rights





NOT EXERCISABLE AFTER AUGUST 6, 2014, OR EARLIER IF REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT
TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
SHAREHOLDER RIGHTS PLAN. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING
PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS PLAN) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY
OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE SHAREHOLDER RIGHTS PLAN). ACCORDINGLY, THIS RIGHTS
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF SUCH PLAN.]*




Rights Certificate




EMS TECHNOLOGIES, INC.




     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 Shareholder Rights Plan, dated as of August 6, 2009 (the “Rights
Plan”), of EMS Technologies, Inc., a Georgia corporation (the “Company”), to
purchase from the Company at any time prior to 5:00 P.M. Eastern time on August 6, 2014, at
the principal executive office of the Company or the offices of the Rights Agent, if any,
designated for such purpose, one fully paid and nonassessable share of common stock, par value $.10
per share (the “Common Stock”), of the Company, at a purchase price of $45.00 per Right (the
“Purchase Price”), upon presentation and surrender of this Rights Certificate with a Form of
Election to Purchase and related Certificate duly executed. The number of Rights evidenced by this
Rights Certificate (and the amount of securities constituting a Right which may be purchased upon
exercise thereof) set forth above, and the Purchase Price set forth above, are the amount of
securities constituting a Right and Purchase Price as of August 6, 2009, based on the Common Stock
as constituted as of such date.





 




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





     In the circumstances and subject to the conditions specified in the Rights Plan, the Company
may (i) at the sole discretion of the Disinterested Directors (as defined in the Rights Plan),
permit or require the Rights to be exercised for



44









 




50% of the shares otherwise purchasable but
without payment of the Purchase Price (except to the extent of any requirements as to payment of
par value), and (ii) at the sole discretion of the Board of Directors, exchange each Right (other
than those that have become void as specified below), for one share of Common Stock without payment
except to the extent of any requirements as to payment of par value.




     Upon the occurrence of a Section ll(a)(ii) Event (as defined in the Rights Plan), if the
Rights evidenced by this Rights Certificate are beneficially owned by (i) an Acquiring Person or an
Associate or Affiliate thereof (as such terms are defined in the Rights Plan), (ii) a transferee of
any such Acquiring Person (or Associate or Affiliate thereof) who becomes a transferee after such
Acquiring Person becomes such, or (iii) under certain circumstances specified in the Rights Plan, a
transferee of any such Acquiring Person (or Associate or Affiliate thereof), who becomes a
transferee prior to or concurrently with such Acquiring Person becoming such, such Rights shall
become null and void and no holder hereof shall have any right with respect to such Rights from and
after the occurrence of such Section ll(a)(ii) Event.



     As provided in the Rights Plan, the Purchase Price and
the number and kind of shares of Common Stock, securities or other property, which may be
purchased upon the exercise of the Rights evidenced by this Rights Certificate are subject to
modification and adjustment upon the happening of certain events, including Triggering Events (as
defined in the Rights Plan).



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



     This Rights Certificate, with or without other Rights Certificates, upon surrender at the
principal executive offices of the Company or the shareholder services office or offices of any
Rights Agent designated for such purpose, as the case may be, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of shares of Common Stock as the Rights evidenced by the Rights
Certificate or



45









 




Rights Certificates surrendered shall have entitled such holder to purchase. If this
Rights Certificate shall be exercised in part, the holder shall be entitled to receive upon
surrender hereof another Rights Certificate or Rights Certificates for the number of whole Rights
not exercised.




     Subject to the provisions of the Rights Plan, the Rights evidenced by this Certificate may be
redeemed at any time prior to the Final Expiration Date by the Company at its option at a
redemption price of $.01 per Right (payable in cash, Common Stock or other consideration deemed
appropriate by a majority of the Disinterested Directors of the Company).



     The Company is not required to issue fractional shares of Common Stock upon the exercise of
any Right or Rights evidenced thereby, but in lieu thereof a cash payment will be made, as provided
in the Rights Plan.



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



     This Rights Certificate shall not be valid or effective for any purpose until it shall have
been executed by the Company.



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



Dated as of      ,




	 	 	 
	ATTEST:

	 	EMS TECHNOLOGIES, INC.
	 
	 	 
	Title

	 	By:
	 

	 	          Title






46









 





[Form of Reverse Side of Rights Certificate]




FORM OF ASSIGNMENT



(To be executed by the registered holder if such holder desires to transfer the
Rights Certificate.)




FOR VALUE RECEIVED

hereby sells, assigns and transfers unto




(Please print name and address of transferee)



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




Dated:     ,




Signature




Signature Guaranteed:




Certificate




     The undersigned hereby certifies by checking the appropriate boxes that:



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



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



Dated:     ,




Signature




NOTICE




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



47









 





FORM OF ELECTION TO PURCHASE



(To be executed if holder desires to exercise Rights represented by the Rights Certificate.)




To: EMS TECHNOLOGIES, INC.



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



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 Rights Certificate, a
new Rights Certificate for the balance 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:




Certificate




     The undersigned hereby certifies by checking the appropriate boxes that:



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



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



48









 





Person.

     Dated:     ,



Signature




Signature Guaranteed:




NOTICE




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



EXHIBIT B




EMS TECHNOLOGIES, INC.




SUMMARY OF RIGHTS TO PURCHASE COMMON STOCK




     On July 27, 2009, the Board of Directors (the “Board”) of EMS Technologies, Inc.(the
“Company”) declared a dividend distribution of one Right for each outstanding share of Company
Common Stock to shareholders of record at the close of business on August 7, 2009. The description
and terms of the Rights are set forth in a Shareholder Rights Plan (the “Plan”) adopted by the
Board of Directors. Subject to becoming exercisable as described below, each Right entitles its
registered holder to purchase from the Company one share of Common Stock at a Purchase Price of
$45.00, subject to adjustment.



     Initially, the Rights will be attached to all Common Stock certificates or, in the case of
uncertificated shares, the associated balance in the book-entry system of the transfer agent for
the Common Stock, representing shares then outstanding, and no separate Rights Certificates will be
distributed. The Rights will separate from the Common Stock on the “Distribution Date”
(as defined in the next paragraph), and separate Rights Certificates will be distributed as
soon as practicable thereafter to record holders of the Common Stock at the close of business on
the Distribution Date. As of and after the Distribution Date, the separate Rights Certificates
alone will represent the Rights. Except as otherwise determined by the Board, all shares of Common
Stock issued prior to the Distribution Date will be issued with Rights.



49









 





     The Distribution Date will occur on the earliest of (i) 10 days following the date (the “Stock
Acquisition Date”) of a public announcement that a person or group of affiliated or associated
persons (an “Acquiring Person”) has acquired, or obtained the right to acquire, without the consent
of a majority of Disinterested Directors (as defined below), beneficial ownership of 20% or more of
the outstanding shares of Common Stock, except in certain inadvertent acquisitions not involving
any intention of exercising control,(ii) 10 days following the commencement of a tender offer or
exchange offer that would result in a person or group beneficially owning 20% or more of such
outstanding shares of Common Stock, (iii) with respect to any Acquiring Person whose acquisition of
20% or more of the outstanding shares of Common Stock of the Company was consented to by a majority
of the Disinterested Directors, 10 days following the date that such person, without the consent of
a majority of the Disinterested Directors, thereafter acquires an additional 2% of the outstanding
shares of Common Stock of the Company or engages in certain self-dealing transactions with the
Company, or (iv) 10 days following the date that an offer, made, encouraged or supported by such
Acquiring Person, to acquire the Company in a merger or other business combination transaction in
which the Company is not the surviving corporation or to sell or transfer 50% or more of the
Company’s assets or earning power is first announced, published, sent or given. For the purposes
of the Plan, “beneficial ownership” includes rights under certain derivative or synthetic
arrangements having characteristics of a long position in the Common Stock.



     Until the Distribution Date, (i) the Rights will be evidenced by the shares of Common Stock
and will be transferred with and only with such shares, (ii) any new Common Stock certificates
issued after August 7, 2009, will contain a legend incorporating the Plan by reference, and (iii)
the surrender for transfer of any shares of Common Stock outstanding will also constitute the
transfer of the Rights associated with the Common Stock represented by such certificate.



     The Rights are not exercisable until the Distribution Date and will expire at the close of
business on August 6, 2014,
unless earlier redeemed by the Company as described below.



     If at any time after the Rights dividend is declared,



     (1) a Person becomes the beneficial owner of 20% or more of the then outstanding shares of
Common Stock without the consent of a majority of the Disinterested Directors (except pursuant to
an offer for all outstanding shares of Common Stock which a majority of the Disinterested Directors
determine to be fair to and otherwise in the best interests of the Company and its shareholders, or
in certain inadvertent acquisitions not involving any intent to exercise control), or



50









 





     (2) a Person who has become the beneficial owner of 20% or more of the then outstanding shares
of Common Stock with the consent of a majority of the Disinterested Directors thereafter acquires
an additional 2% or more of the outstanding shares of Common Stock of the Company without such
consent or engages in certain self-dealing transactions with the Company without such consent,
then beginning ten days after such event (or such shorter or longer period as a majority of the
Disinterested Directors shall from time to time determine), each holder of a Right will have the
right to receive, upon exercise of the Right and payment of the Purchase Price, Common Stock (or,
in certain circumstances and subject to certain limitations, cash, property or other securities of
the Company) having a value equal to two times the Purchase Price of the Right, but in no case
exceeding one share for each $.10 of Purchase Price paid by the holder. Alternatively, in such
event and with the approval of a majority of the Disinterested Directors, each holder of a Right
will have the right, or may be permitted only, to receive shares of Common Stock having a value
equal to the Purchase Price upon surrender of the Right to the Company and without payment of the
Purchase Price, subject to any requirements as to the payment of par value. Notwithstanding any of
the foregoing, upon the occurrence of any of the events set forth in this paragraph, all Rights
that are, or (under certain circumstances specified in the Plan) were, beneficially owned by any
Acquiring Person or its associates or affiliates will be null and void.




     For example, at a Purchase Price of $45.00 per Right, each Right not owned by an Acquiring
Person (or by certain
related parties) following an event set forth in the preceding paragraph would entitle its holder
to purchase $90.00 worth of Common Stock (or other consideration, as noted above) for $45.00.
Assuming that the Common Stock had a per share value of $15.00 at such time, the holder of each
valid Right would be entitled to
purchase six shares of Common Stock for $45.00.



     If at any time following or simultaneously with the Distribution Date, without the consent of
a majority of Disinterested Directors, (i) the Company is acquired in a merger or other business
combination transaction in which the Company is not the surviving corporation, or (ii) 50% or more
of the Company’s assets or earning power is sold or transferred, each holder of a Right (except
Rights which have become void as set forth above) will have the right upon exercise of the Right to
receive common stock (or other securities or property, as the case may be) of the acquiring company
having a value equal to two times the Purchase Price of the Right.



     The Purchase Price payable and the number of shares of



51









 




Common Stock (or the number and kind of
other securities or property, as the case may be) issuable upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a share dividend on, or a
subdivision, combination or reclassification of, the Common Stock, (ii) if holders of the Common
Stock are granted certain rights or warrants to subscribe for Common Stock or convertible
securities at less than the current market price of the Common Stock, or (iii) upon the
distribution to holders of the Common Stock of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription rights or warrants (other than those referred
to above).




     With certain exceptions, no adjustment in the Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price. The Company is not required to issue
fractional shares of Common Stock and in lieu thereof an adjustment in cash may be made based on
the market price of the Common Stock on the last trading date prior to the date of exercise.



     At any time prior to the Expiration Date, the Disinterested Directors, by majority vote, may
redeem the outstanding Rights at a redemption price of $0.01 per Right (the “Redemption Price”)
(payable in cash, Common Stock or other consideration deemed appropriate by a majority of the
Disinterested Directors). Immediately upon the action of the Disinterested Directors electing to
redeem the outstanding Rights, the right to exercise the outstanding Rights will terminate and the
holders of outstanding Rights will only have the right to receive the Redemption Price. Also, the
Board may, at any time after the Distribution Date, elect to exchange all or a portion of
outstanding Rights (other than Rights that have become void as set forth above) for Common Stock at
a ratio of
one share of Common Stock for each Right (subject to any requirements as to payment of par
value), whereupon the right to exercise the affected Rights will terminate and their holders will
only have the right to receive the exchange shares. The Company shall promptly give notice of
redemption or exchange to all Rights holders by first-class mail.



     A “Disinterested Director” is any member of the Board who (i)is not, does not control, is not
controlled by, is not affiliated with, or is not in any other manner representative of, and does
not have a substantial interest in (whether by beneficial ownership of securities or otherwise),
any Acquiring Person or associate or affiliate thereof, or (ii) who, if nominated for election as a
member of the Board by any Acquiring Person or associate or affiliate thereof, has served in such
capacity for at least 180 days and is otherwise qualified as a Disinterested Director under the
provisions of clause (i) of this sentence.



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     Until a Right is exercised, the holder thereof, as such, will have no rights as a shareholder
of the Company, including, without limitation, the right to vote or to receive dividends.
Shareholders may, depending upon the circumstances, recognize taxable income in the event that the
Rights become exercisable for Common Stock (or other consideration) of the Company or for
securities of an acquiring company as set forth above.



     Prior to the Distribution Date, the Plan may be terminated by the Board, any of the provisions
of the Plan may be amended by the Board, or the Board may adopt a new rights plan in substitution
for the Plan and all Rights outstanding thereunder. After the Distribution Date, the provisions of
the Plan may be amended, or a new rights plan may be adopted in substitution for the Plan and all
rights outstanding thereunder, by a majority of the Disinterested Directors to cure any ambiguity,
correct or supplement any provision of the Plan that may be defective or inconsistent with other
provisions of the Plan, shorten or lengthen any time period under the Plan, effect compliance with,
or take advantage of, changes in law affecting the legality or enforceability of the Plan, or
change or supplement the provisions of the Plan in any manner that the majority of the
Disinterested Directors may deem desirable (including, without limitation, the addition of other
events requiring adjustment to the Rights), which change, supplement or substitution does not
adversely affect the interests of holders of Rights (other than those of an Acquiring Person or an
affiliate or associate of an Acquiring Person). However, no amendment or substituted plan may
change the Redemption Price, change the expiration date of the Plan to an earlier date, or reduce
the Purchase Price or the
number of shares for which a Right is exercisable.



     The Board may establish one or more funds, in trust or otherwise, for use by the Disinterested
Directors in carrying out their responsibilities under the Plan.



     Copies of the Plan will be filed with the Securities and Exchange Commission as an Exhibit to
a report filed by the Company on Form 8-K dated July 27, 2009. Copies of the Plan are 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 Plan, which is incorporated herein by
reference.




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