Exhibit
4.1


 


SECTION 382
RIGHTS AGREEMENT


 


 


between


 


 


THQ
INC.


 


 


and


 


 


COMPUTERSHARE
TRUST COMPANY, N.A.,





as Rights Agent


 


 


Dated
as of May 12, 2010


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 1

  	
  Certain Definitions

  	
  1

  
	
  Section 2

  	
  Appointment of the Rights Agent

  	
  7

  
	
  Section 3

  	
  Issuance of Rights
  Certificates

  	
  7

  
	
  Section 4

  	
  Form of Rights
  Certificates

  	
  9

  
	
  Section 5

  	
  Countersignature and
  Registration

  	
  9

  
	
  Section 6

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

  	
  10

  
	
  Section 7

  	
  Exercise of Rights;
  Purchase Price; Expiration Date of Rights

  	
  11

  
	
  Section 8

  	
  Cancellation and
  Destruction of Rights Certificates

  	
  12

  
	
  Section 9

  	
  Company Covenants
  Concerning Securities and Rights

  	
  12

  
	
  Section 10

  	
  Record Date

  	
  14

  
	
  Section 11

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

  	
  14

  
	
  Section 12

  	
  Certificate of Adjusted
  Purchase Price or Number of Shares

  	
  21

  
	
  Section 13

  	
  Fractional Rights and
  Fractional Shares

  	
  22

  
	
  Section 14

  	
  Rights of Action

  	
  23

  
	
  Section 15

  	
  Agreement of Rights
  Holders

  	
  24

  
	
  Section 16

  	
  Rights Certificate Holder
  Not Deemed a Stockholder

  	
  24

  
	
  Section 17

  	
  Concerning the Rights
  Agent

  	
  24

  
	
  Section 18

  	
  Merger, Consolidation or
  Change of Name of the Rights Agent

  	
  25

  
	
  Section 19

  	
  Duties of the Rights Agent

  	
  26

  
	
  Section 20

  	
  Change of the Rights Agent

  	
  28

  
	
  Section 21

  	
  Issuance of New Rights
  Certificates

  	
  29

  
	
  Section 22

  	
  Redemption

  	
  29

  
	
  Section 23

  	
  Exchange

  	
  30

  
	
  Section 24

  	
  Notice of Certain Events

  	
  31

  
	
  Section 25

  	
  Notices

  	
  31

  
	
  Section 26

  	
  Supplements and Amendments

  	
  32

  
	
  Section 27

  	
  Successors

  	
  33

  
	
  Section 28

  	
  Determinations and Actions
  by the Board

  	
  33

  
	
  Section 29

  	
  Periodic Review

  	
  33

  
	
  Section 30

  	
  Benefits of this Agreement

  	
  34

  
	
  Section 31

  	
  Process to Seek Exemption

  	
  34

  
	
  Section 32

  	
  Severability

  	
  35

  
	
  Section 33

  	
  Governing Law

  	
  35

  
	
  Section 34

  	
  Counterparts; Facsimiles
  and PDFs

  	
  35

  
	
  Section 35

  	
  Descriptive Headings

  	
  35

  
	
  Section 36

  	
  Force Majeure

  	
  35

  



 


i

















 


EXHIBITS


 


	
  Exhibit A:

  	
   

  	
  Form of
  Amended and Restated Certificate of Designation, Preferences and Rights of Series A
  Junior Participating Preferred Stock

  
	
  Exhibit B:

  	
   

  	
  Form of
  Rights Certificate

  
	
  Exhibit C:

  	
   

  	
  Summary of
  Rights

  



 


ii

















 


SECTION 382
RIGHTS AGREEMENT


 


SECTION 382 RIGHTS
AGREEMENT, dated as of May 12, 2010 (this “Agreement”), between THQ
Inc., a Delaware corporation (the “Company”), and Computershare Trust
Company, N.A., a federally chartered trust company (the “Rights Agent”).


 


W I T N E S S E T H


 


WHEREAS, on May 11, 2010
(the “Rights Dividend Declaration Date”), the Board (as hereinafter
defined) authorized and declared a dividend distribution of one right (a “Right”)
for each share of common stock, par value $.01 per share, of the Company (the “Common
Stock”) outstanding at the Close of Business (as hereinafter defined) on May 24,
2010 (the “Record Date”), each Right initially representing the right to
purchase one one-thousandth of a share of Preferred Stock (as hereinafter
defined) of the Company, upon the terms and subject to the conditions
hereinafter set forth, and further authorized and directed the issuance of one
Right (subject to adjustment as provided herein) with respect to each share of
Common Stock issued or delivered by the Company after the Record Date but prior
to the earlier of the Distribution Date (as hereinafter defined) and the
Expiration Date (as hereinafter defined) or as provided in Section 21
hereof.


 


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


 


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


 


(a)           “4.9% Stockholder”
shall mean a Person that beneficially owns 4.9% or more of the Company’s
then-outstanding Common Stock.


 


(b)           “Acquiring Person”
shall mean any Person (other than an Exempt Person) that is or has become a
4.9% Stockholder, provided, however, that any Person who would
otherwise qualify as an Acquiring Person upon the execution of this Agreement will
not be deemed to be an “Acquiring Person” for any purpose of this Agreement on
and after such date unless and until such Person acquires Beneficial Ownership
of additional shares of Common Stock representing one-tenth of one percent (0.1%)
of the Common Stock then outstanding while the Beneficial Owner of 4.9% or more
of the Company’s then-outstanding Common Stock, and provided, further,
that a Person will not be deemed to have become an Acquiring Person solely as a
result of (i) a reduction in the number of shares of Common Stock
outstanding, (ii) the exercise of any options, warrants, rights or similar
interests (including restricted stock) granted by the Company to its directors,
officers and employees, (iii) any unilateral grant of any security by the
Company, or (iv) an Exempt Transaction, unless and until such Person acquires
Beneficial Ownership of one additional share of Common Stock while the
Beneficial Owner of 4.9% or more of the Company’s then-outstanding Common Stock.
 If the Independent Director Evaluation
Committee in its sole discretion determines in good faith that a Person who
would otherwise be an “Acquiring Person” has become such inadvertently
(including, without limitation, because (x) such Person was unaware that
it Beneficially Owned a percentage of Common Stock that would otherwise cause
such Person to be an Acquiring Person or (y) such 


 


1

















 


Person was aware of the extent of its Beneficial
Ownership of Common Stock but had no actual or constructive knowledge of the
consequences of such Beneficial Ownership under this Agreement), and such
Person divests as promptly as practicable a sufficient number of shares of Common
Stock so that such Person is no longer the Beneficial Owner of such percentage
of Common Stock that would have otherwise caused such Person to be an Acquiring
Person, then such Person shall not be deemed to be or ever to have been an “Acquiring
Person” for any purposes of this Agreement as a result of such inadvertent
acquisition.


 


(c)           “Affiliate” and “Associate”
shall have the respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act as in effect on
the date of this Agreement, and to the extent not included within the foregoing
clause of this Section 1(c), shall also include, with respect to
any Person, any other Person (whether or not an Exempt Person) whose shares of
Common Stock would be deemed constructively owned by such first Person, owned
by a single “entity” (as defined in Section 1.382-3(a)(1) of the
Treasury Regulations) or otherwise aggregated with shares owned by such first
Person pursuant to the provisions of Section 382 of the Code, or any
successor provision or replacement provision, and the Treasury Regulations
thereunder, provided, however, that a Person shall not be deemed
to be the Affiliate or Associate of another Person solely because either or
both Persons are or were directors of the Company.


 


(d)           “Agreement” shall
have the meaning set forth in the preamble of this Agreement.


 


(e)           “Authorized Officer”
shall mean the Chairman of the Board, Chief Executive Officer, President, any Executive
Vice President, Secretary or Assistant Secretary of the Company.


 


(f)            A Person shall be deemed the
“Beneficial Owner” of, shall be deemed to have “Beneficial Ownership”
of and shall be deemed to “beneficially own” (i) any securities
that such Person or any of such Person’s Affiliates or Associates has the right
to acquire (whether such right is exercisable immediately, or only after the
passage of time, compliance with regulatory requirements, the fulfillment of a
condition, or otherwise) pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights, exchange rights,
rights (other than the Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the Beneficial Owner of, or
to Beneficially Own securities (including rights, options or warrants) which
are convertible or exchangeable into Common Stock until such time as the
convertible or exchangeable securities are exercised and converted or exchanged
into Common Stock except to the extent the acquisition or transfer of such
rights, options or warrants would be treated as exercised on the date of its
acquisition or transfer under Section 1.382-4(d) of the Treasury
Regulations; and, provided, further, that a Person shall not be
deemed the Beneficial Owner of, or to Beneficially Own, securities tendered
pursuant to a tender offer or exchange offer made by or on behalf of such
Person or any of such Person’s Affiliates or Associates until such tendered
securities are accepted for purchase or exchange; (ii) any securities that
such Person or any such Person’s Affiliates or Associates (A) directly or
indirectly, has the right to vote or dispose of, alone or in concert with
others, or (B) beneficially owns, directly or indirectly, for purposes of Section 13(d) of
the Exchange Act and Rule 13d-3 promulgated under the Exchange Act (in
each case as in effect on the date hereof), including, 


 


2

















 


with respect to both clause (A) and clause (B),
pursuant to any agreement, arrangement or understanding (whether or not in
writing), but only if the effect of such agreement, arrangement or understanding
is to treat such Persons as an “entity” under Section 1.382-3(a)(1) of
the Treasury Regulations; provided that a Person shall not be deemed the
Beneficial Owner of, or to Beneficially Own, any security on account of an
agreement, arrangement or understanding to vote such security that (X) arises
solely from a revocable proxy given to such Person or any of such Person’s
Affiliates or Associates in response to a public proxy solicitation made
pursuant to and in accordance with the applicable rules and regulations
promulgated under the Exchange Act, and (Y) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or successor report); (iii) any
securities that are Beneficially Owned, directly or indirectly, by any other
Person, if such Person or any of such Person’s Affiliates or Associates has any
agreement, arrangement or understanding (whether or not in writing) with such
other Person or any of such other Person’s Affiliates or Associates for the
purpose of acquiring, holding, voting (other than voting pursuant to a
revocable proxy as described in the proviso to Section 1(f)(ii) hereof)
or disposing of any securities of the Company, but only if the effect of such
agreement, arrangement or understanding is to treat such Persons as an “entity”
under Section 1.382-3(a)(1) of the Treasury Regulations; and (iv) on
any day on or after the Distribution Date, all Rights that prior to such date
were represented by certificates for Common Stock that such Person Beneficially
Owns on such day.


 


Notwithstanding anything to
the contrary in this Section 1(f) (excluding the immediately
following sentence), (A) a Person engaged in business as an underwriter of
securities shall not be deemed 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 40th calendar day after the date of
such acquisition (or such later date as the Board may determine in any specific
case), and then only if such securities continue to be owned by such Person as
of such date; and (B) a Person shall not be deemed to be the Beneficial
Owner of, or to Beneficially Own, any security on account of such Person’s
status as a “clearing agency,” as defined in Section 3(a)(23) of the
Exchange Act.


 


Notwithstanding anything to
the contrary in this Section 1(f), to the extent not within the
foregoing provisions of this Section 1(f), a Person shall be deemed
to be the Beneficial Owner of, or to Beneficially Own, any securities that such
Person would be deemed to constructively own or which otherwise would be
aggregated with securities owned by such Person pursuant to Section 382 of
the Code, or any successor provision or replacement provision and the Treasury
Regulations thereunder.


 


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


 


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


 


(i)            “Common Stock” shall
have the meaning set forth in the recitals of this Agreement.


 


3

















 


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


 


(k)           “Code” shall mean the
Internal Revenue Code of 1986, as amended.


 


(l)            “Company” shall have
the meaning set forth in the preamble of this Agreement.


 


(m)          “Current Per Share Market
Price” shall have the meaning set forth in Section 11(d)(i) or
Section 11(d)(ii) hereof, as applicable.


 


(n)           “Current Value” shall
have the meaning set forth in Section 11(a)(iii) hereof.


 


(o)           “Distribution Date”
shall mean the earlier of (i) the Close of Business on the tenth Business
Day after the Stock Acquisition Date and (ii) the Close of Business on the
tenth Business Day (or, such later date as may be specified by the Board prior
to such time as any Person becomes an Acquiring Person) after the commencement
of a tender or exchange offer by or on behalf of any Person (other than an
Exempt Person), the consummation of which would result in any Person becoming an
Acquiring Person; provided, however, that if a tender or exchange
offer is terminated prior to the occurrence of a Distribution Date, then no
Distribution Date shall occur as a result of such tender or exchange offer.


 


(p)           “Equivalent Preferred
Stock” shall have the meaning set forth in Section 11(b) hereof.


 


(q)           “Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended.


 


(r)            “Exchange Ratio”
shall have the meaning set forth in Section 23(a) hereof.


 


(s)           “Exemption Request”
shall have the meaning set forth in Section 31 hereof.


 


(t)            “Exempt Person” shall
mean (i) the Company or any Subsidiary of the Company or (ii) any
employee benefit or stock ownership plan of the Company or of any Subsidiary of
the Company or any entity holding shares of Common Stock for or pursuant to the
terms of any such plan.


 


(u)           “Exempt Transaction”
shall mean any transaction that the Independent Director Evaluation Committee,
in its sole discretion, has declared exempt pursuant to Section 31,
which determination shall be irrevocable.


 


(v)           “Expiration Date”
shall mean the earliest of (i) the Close of Business on the Final
Expiration Date, (ii) the time at which the Rights are redeemed as provided
in Section 22 hereof, (iii) the time at which the Rights are exchanged
in full as provided in Section 23 hereof, (iv) the effective
date of the repeal of Section 382 of the Code, or any 


 


4

















 


successor provision or replacement provision, if the
Board (upon the recommendation of the Independent Director Evaluation Committee)
determines that this Agreement is no longer necessary for the preservation of
Tax Benefits and (v) the beginning of a taxable year of the Company for which
the Board (upon the recommendation of the Independent Director Evaluation Committee)
determines that the Company has or will have no Tax Benefits.


 


(w)          “Final Expiration Date”
shall be May 12, 2013.


 


(x)            “Independent Director
Evaluation Committee” shall mean a committee of the Board comprised of
independent and disinterested members of the Board, who shall initially be the
members of the Nominating/Corporate Governance Committee of the Board.


 


(y)           “Ownership Statement”
shall have the meaning set forth in Section 3(a) hereof.


 


(z)            “Person” shall mean
any individual, firm, corporation, partnership, limited liability company,
limited liability partnership, trust or other legal entity, or any group of
persons making a “coordinated acquisition” of shares or otherwise treated as an
entity within the meaning of Section 1.382-3(a)(1) of the Treasury
Regulations or otherwise for purposes of Section 382 of the Code, or any
successor provision or replacement provision, and includes any successor (by
merger or otherwise) of such individual or entity.


 


(aa)         “Preferred Stock”
shall mean shares of Series A Junior Participating Preferred Stock, par
value $.01 per share, of the Company having the rights and preferences set
forth in the form of Amended and Restated Certificate of Designation,
Preferences and Rights of Series A Junior Participating Preferred Stock
attached hereto as Exhibit A.


 


(bb)         “Purchase Price”
shall mean initially $35.00 per one one-thousandth of a share of Preferred
Stock, subject to adjustment from time to time as provided in this Agreement.


 


(cc)         “Record Date” shall
have the meaning set forth in the recitals to this Agreement.


 


(dd)         “Redemption Price”
shall mean $0.0001 per Right, subject to adjustment by the Company to reflect
any stock split, stock dividend or similar transaction occurring after the date
hereof.


 


(ee)         “Requesting Person”
shall have the meaning set forth in Section 31 hereof.


 


(ff)           “Right” shall have
the meaning set forth in the recitals to this Agreement.


 


(gg)         “Rights Agent” shall
have the meaning set forth in the preamble of this Agreement except as
otherwise provided in Section 18 and Section 20 hereof.


 


(hh)         “Rights Certificates”
shall mean certificates evidencing the Rights, in substantially the form
attached hereto as Exhibit B.


 


5

















 


(ii)           “Rights Dividend
Declaration Date” shall have the meaning set forth in the recitals to this
Agreement.


 


(jj)           “Section 11(a)(ii) Event”
shall have the meaning set forth in Section 11(a)(ii) hereof.


 


(kk)         “Section 11(a)(ii) Trigger
Date” shall have the meaning set forth in Section 11(a)(iii) hereof.


 


(ll)           “Securities Act”
shall mean the Securities Act of 1933, as amended.


 


(mm)       “Spread” shall have the
meaning set forth in Section 11(a)(iii) hereof.


 


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


 


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


 


(pp)         “Substitution Period”
shall have the meaning set forth in Section 11(a)(iii) hereof.


 


(qq)         “Summary of Rights”
shall mean a copy of a summary of the terms of the Rights, in substantially the
form attached hereto as Exhibit C.


 


(rr)           “Tax Benefits” shall
mean the net operating loss carry-overs, capital loss carry-overs, general
business credit carry-overs, alternative minimum tax credit carry-overs and
foreign tax credit carry-overs, as well as any “net unrealized built-in loss”
within the meaning of Section 382 of the Code, or any successor provision
or replacement provision, of the Company or any direct or indirect subsidiary
thereof.


 


(ss)         “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.


 


(tt)           “Treasury Regulations”
shall mean final, temporary and proposed income tax regulations promulgated
under the Code, including any amendments thereto.


 


(uu)         “Trust” shall have
the meaning set forth in Section 23(d) hereof.


 


(vv)         “Trust Agreement”
shall have the meaning set forth in Section 23(d) hereof.


 


6
















 


Section 2               Appointment
of the Rights Agent.  The Company
hereby appoints the Rights Agent to act as agent for the Company in accordance
with the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment.  The Company may from time to
time appoint such co-rights agents as it may deem necessary or desirable, upon
ten days’ prior written notice to the Rights Agent.  The Rights Agent shall have no duty to
supervise, and shall in no event be liable for, the acts or omissions of any
such co-rights agent.  Prior to the
appointment of a co-rights agent, the specific duties and obligations of each
such co-rights agent shall be set forth in writing and delivered to the Rights
Agent and the proposed co-rights agent. 
Any actions which may be taken by the Rights Agent pursuant to the terms
of this Agreement may be taken by any such co-rights agent.  To the extent that any co-rights agent takes
any action pursuant to this Agreement, such co-rights agent shall be entitled
to all of the rights and protections of, and subject to all of the applicable
duties and obligations imposed upon, the Rights Agent pursuant to the terms of
this Agreement.


 


Section 3               Issuance
of Rights Certificates.


 


(a)           Until the
Distribution Date, (i) the Rights shall be evidenced (subject to Section 3(b) and
Section 3(c) hereof) by the certificates representing the shares of
Common Stock in the names of the record holders thereof (which certificates
representing such shares of Common Stock shall also be deemed to be certificates
for Rights) or by the current ownership statements issued with respect to
uncertificated shares of Common Stock in lieu of such certificates (“Ownership
Statements”) (which Ownership Statements shall be deemed also to be certificates
for Rights) and (ii) the Rights shall be transferable only in connection
with the transfer of the underlying shares of Common Stock.


 


(b)           On or as
promptly as practicable after the Record Date, the Company shall send, in
accordance with Section 25 hereof, to each record holder of shares
of Common Stock as of the Close of Business on the Record Date, a copy of the
Summary of Rights.  With respect to shares
of Common Stock outstanding as of the Record Date, until the Distribution Date,
the Rights associated with such shares of Common Stock will be evidenced by the
certificate or Ownership Statement for such shares of Common Stock registered
in the names of the holders thereof, in each case together with the Summary of
Rights.  Until the Distribution Date, the
surrender for transfer of any certificate or Ownership Statement for shares of
Common Stock outstanding on the Record Date, with or without a copy of the
Summary of Rights, shall also constitute the transfer of the Rights associated
with the shares of Common Stock represented by such certificate or Ownership
Statement.


 


(c)           Rights shall be
issued by the Company in respect of all shares of Common Stock (other than any
shares of Common Stock that may be issued upon the exercise or exchange of any
Right) issued or delivered by the Company after the Record Date but prior to
the earlier of the Distribution Date and the Expiration Date, and, to the
extent provided in Section 21 hereof, after the Distribution Date.  Certificates and Ownership Statements representing
such shares of Common Stock shall have stamped on, impressed on, printed on,
written on, or otherwise affixed to them a legend in substantially the
following form or such similar legend as the Company may deem appropriate and
is not inconsistent with the provisions of this Agreement and as does not
affect the rights, duties or responsibilities of the Rights Agent, 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 


 


7

















 


regulation
of any stock exchange or transaction reporting system on which the shares of
Common Stock may from time to time be listed or quoted:


 


This [certificate/statement] also evidences
and entitles the holder hereof to certain Rights as set forth in the Section 382
Rights Agreement between THQ Inc. and Computershare Trust Company, N.A., dated
as of May 12, 2010 and as amended from time to time (the “Rights
Agreement”), the terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal executive offices of THQ Inc.  The Rights are not exercisable prior to the
occurrence of certain events specified in the Rights Agreement.  Under certain circumstances, as set forth in
the Rights Agreement, such Rights may be redeemed, may be exchanged, may
expire, may be amended, or may be evidenced by separate certificates and no
longer be evidenced by this [certificate/statement].  THQ Inc. shall mail to the holder of this [certificate/statement]
a copy of the Rights Agreement, as in effect on the date of mailing, without
charge promptly after receipt of a written request therefor.  Under certain circumstances as set forth in
the Rights Agreement, Rights that are or were beneficially owned by an
Acquiring Person or any Affiliate or Associate of an Acquiring Person (as such
terms are defined in the Rights Agreement) may become null and void.


 


With
respect to such certificates or Ownership Statements containing the foregoing
legend, until the Distribution Date, the Rights associated with the shares of
Common Stock represented by such certificates or Ownership Statements shall be
represented by such certificates or Ownership Statements alone and the
surrender for transfer of any certificate or Ownership Statement for shares of
Common Stock shall also constitute the transfer of the Rights associated with
the shares of Common Stock represented by such certificate or Ownership
Statement.


 


(d)           As promptly as
practicable after the Distribution Date, the Company shall prepare and execute,
the Rights Agent shall countersign and the Company shall send or cause to be
sent (and the Rights Agent will, if requested, and if provided with all
necessary information, send), in accordance with Section 25 hereof,
to each record holder of shares of Common Stock, as of the Close of Business on
the Distribution Date (other than an Acquiring Person or any Associate or
Affiliate of an Acquiring Person), a Rights Certificate representing 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 11(i) or
Section 11(n) hereof, at the time of distribution of the Rights
Certificates, the Company shall not be required to issue Rights Certificates
evidencing fractional Rights but may, in lieu thereof, make the necessary and
appropriate rounding adjustments (in accordance with Section 13(a) hereof)
so that Rights Certificates evidencing 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 shall be represented solely by such Rights Certificates.  The Company shall promptly notify the Rights
Agent in writing upon the occurrence of the Distribution Date and, if such
notification is given orally, the Company shall confirm same in writing on or
prior to the 


 


8

















 


next
Business Day.  Until such notice is
received by the Rights Agent, the Rights Agent may presume conclusively that
the Distribution Date has not occurred.


 


(e)           In the event
that the Company purchases or otherwise acquires any shares of Common Stock after
the Record Date but prior to the Distribution 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 so purchased or acquired.


 


Section 4               Form of
Rights Certificates.  The Rights
Certificates (and the form of election to purchase and the form of assignment and
the certificates contained therein to be printed on the reverse thereof) shall
each be substantially in the form attached hereto as Exhibit B
with such changes and marks of identification or designation, and such legends,
summaries or endorsements printed thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange
or transaction reporting system on which the Rights may from time to time be
listed or quoted, or to conform to usage. Subject to the provisions of Section 21
hereof, the Rights Certificates, whenever distributed, shall entitle the
holders thereof to purchase such number of one one-thousandths of a share of
Preferred Stock as is set forth therein at the Purchase Price; provided,
however, that the Purchase Price, the number and kind of securities
issuable upon exercise of each Right and the number of Rights outstanding shall
be subject to adjustment as provided in this Agreement.


 


Section 5               Countersignature
and Registration.


 


(a)           The Rights Certificates
shall be executed on behalf of the Company by any Authorized Officer, either
manually or by facsimile signature, and shall have affixed thereto the Company’s
seal or a facsimile thereof, which shall be attested by any other Authorized
Officer, either manually or by facsimile signature.  The Rights Certificates shall be countersigned
by the Rights Agent, either manually or by facsimile signature, and shall not
be valid for any purpose unless so countersigned.  In case any officer of the Company who shall
have signed any of the Rights Certificates shall cease to be such officer of
the Company before countersignature by the Rights Agent and issuance and
delivery by the Company, such Rights Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by the Company with
the same force and effect as though the person who signed such Rights
Certificates had not ceased to be such officer of the Company; and any Rights
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 Agreement any such person was not such an officer.


 


(b)           Following the
Distribution Date, upon receipt by the Rights Agent of written notice of the
occurrence of the Distribution Date pursuant to Section 3(d) hereof,
the Rights Agent shall keep or cause to be kept, at its office or offices
designated for such purposes and at such other offices as may be required to
comply with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange or
any transaction reporting system on which the rights may from time to time be
listed or quoted, 


 


9

















 


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 11(a)(ii) and Section 13
hereof, at any time after the Close of Business on the Distribution Date, and
prior to the Expiration Date, any Rights Certificate(s) (other than Rights
Certificates representing Rights that have been redeemed or exchanged pursuant
to Section 22 or Section 23 hereof) representing
exercisable Rights may be transferred, split-up, combined or exchanged for
another Rights Certificate(s), entitling the registered holder to purchase a
like number of one one-thousandths of a share of Preferred Stock (or other
securities, cash or other assets, as the case may be) as the Rights Certificate(s) surrendered
then entitled such holder (or former holder in the case of a transfer) to purchase.
 Any registered holder desiring to
transfer, split-up, combine or exchange any such Rights Certificate(s) must
make such request in writing delivered to the Rights Agent, and must surrender
the Rights Certificate(s) to be transferred, split-up, combined or
exchanged, with the forms of assignment and certificate contained therein duly
executed, at the office or offices of the Rights Agent designated for such
purpose. The Rights Certificates are transferable only on the registry books of
the Rights Agent.  Neither the Rights
Agent nor the Company shall be obligated to take any action whatsoever with
respect to the transfer of any such surrendered Rights Certificate until the
registered holder shall have (i) completed and signed the certificate
contained in the form of assignment on the reverse side of such Rights
Certificate, (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) and the Affiliates and Associates
of such Beneficial Owner (or former Beneficial Owner) as the Company or the
Rights Agent shall reasonably request and (iii) paid a sum sufficient to
cover any tax or charge that may be imposed in connection with any transfer, split-up,
combination or exchange of Rights Certificates as required by Section 9(d) hereof.
 Thereupon the Rights Agent shall,
subject to Section 11(a)(ii), Section 13 and Section 23
hereof, countersign and deliver to the Person entitled thereto a Rights
Certificate or Rights Certificates, as the case may be, as so requested
registered in such name or names as may be designated by the surrendering
registered holder.  The Rights Agent
shall promptly forward any such sum collected by it to the Company or to such
Person or Persons as the Company shall specify by written notice.  The Rights Agent shall have no duty or
obligation unless and until it is satisfied that all such taxes and charges
have been paid.


 


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


 


10

















 


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


 


(a)           Subject to Section 11(a)(ii) hereof,
at any time after the Distribution Date and prior to the Expiration Date, 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 as set forth in Section 9(e), Section 11(a)(iii),
Section 22(a) and Section 23(a) hereof) in
whole or in part upon surrender of the Rights Certificate, with the form of
election to purchase and the certificate contained therein on the reverse side
thereof duly executed, to the Rights Agent at the office or agency of the
Rights Agent designated for such purpose, together with payment of the Purchase
Price (including any applicable tax or charge required to be paid by the holder
of such Rights Certificate in accordance with the provisions of Section 9(d) hereof)
for each one one-thousandth of a share of Preferred Stock (or other securities,
cash or other assets, as the case may be) as to which the Rights are exercised.


 


(b)           Upon receipt of
a Rights Certificate representing exercisable Rights with the form of election
to purchase and the certificate contained therein properly completed and duly
executed, accompanied by payment of the Purchase Price for each one one-thousandth
of a share of Preferred Stock (or other securities, cash or other assets, as
the case may be) to be purchased and an amount equal to any applicable tax or
charge required to be paid under Section 9(d) hereof by
certified check, cashier’s check, bank draft or money order payable to the
order of the Company, the Rights Agent shall, subject to Section 19(j) hereof,
thereupon promptly (i) (A) requisition from any transfer agent of the
shares of Preferred Stock (or make available, if the Rights Agent is the transfer
agent for such shares) certificates representing the total number of one one-thousandths
of a share of Preferred Stock to be purchased (and the Company hereby
irrevocably authorizes and directs its transfer agent to comply with all such
requests) or (B) if the Company shall have elected to deposit any shares
of Preferred Stock issuable upon exercise of the Rights hereunder with a
depositary agent, requisition from the depositary agent depositary receipts
representing such number of one one-thousandths of a share of Preferred Stock
as are to be purchased (and the Company hereby irrevocably authorizes and
directs such depositary agent to comply with all such requests), (ii) after
receipt of such certificates (or depositary receipts, as the case may be) cause
the same to be delivered to or upon the order of the registered holder of such
Rights Certificate, registered in such name or names as may be designated by
such holder, (iii) when appropriate, requisition from the Company or any
transfer agent therefor of certificates representing the number of equivalent
shares to be issued in lieu of the issuance of shares of Common Stock in
accordance with the provisions of Section 11(a)(iii) hereof, (iv) when
appropriate, after receipt of such certificates, 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, (v) when
appropriate, requisition from the Company of the amount of cash to be paid in
lieu of the issuance of fractional shares in accordance with the provisions of Section 13
hereof and (vi) when appropriate, after receipt, deliver such cash to the
registered holder of such Rights Certificate.


 


(c)           In case the
registered holder of any Rights Certificate shall exercise less than all the
Rights evidenced thereby, the Rights Agent shall prepare, execute and deliver a
new Rights Certificate evidencing Rights equivalent to the Rights remaining
unexercised to the registered holder of such Rights Certificate or to such
holder’s duly authorized assigns, subject to the provisions of Section 13
hereof.


 


11

















 


(d)           Notwithstanding
anything in this Agreement to the contrary, neither the Rights Agent nor the
Company shall be obligated to undertake any action with respect to any
purported transfer, split-up, combination or exchange of any Rights Certificate
pursuant to Section 6 hereof or exercise or assignment of a Rights
Certificate as set forth in this Section 7 unless the registered
holder of such Rights Certificate shall have (i) duly and properly
completed and signed the certificate contained in the form of assignment or the
form of election to purchase, as applicable, set forth on the reverse side of
the Rights Certificate surrendered for such transfer, split-up, combination,
exchange, exercise or assignment and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner)
thereof and of the Rights evidenced thereby and Affiliates and Associates
thereof as the Company or the Rights Agent may 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, if
surrendered to the Company or any of its agents, be delivered to the Rights
Agent for cancellation or in cancelled form, or, if surrendered to the Rights
Agent, shall be cancelled by it, and no Rights Certificates shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Agreement.  The Company shall deliver to
the Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Rights Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof.  The Rights Agent shall deliver all cancelled
Rights Certificates to the Company, or shall, at the written request of the
Company, destroy such cancelled Rights Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.


 


Section 9               Company
Covenants Concerning Securities and Rights.


 


(a)           The Company
covenants and agrees that it shall cause to be reserved, authorized for
issuance and kept available out of its authorized and unissued shares of
Preferred Stock, a number of shares of Preferred Stock that shall be sufficient
to permit the exercise in full of all outstanding Rights in accordance with Section 7
hereof.


 


(b)           The Company
covenants and agrees that so long as the shares of Preferred Stock (and,
following the occurrence of a Section 11(a)(ii) Event, shares of
Common Stock or other securities, as the case may be) issuable upon the
exercise of the Rights may be listed on any national securities exchange, or
quoted on a quotation system, it shall endeavor to cause, from and after such
time as the Rights become exercisable, all securities reserved for issuance
upon the exercise of Rights to be listed on such exchange, or quoted on such
quotation system, upon official notice of issuance upon such exercise.


 


(c)           The Company
covenants and agrees that it will take all such actions as may be necessary to
ensure that all shares of Preferred Stock (and, following the occurrence of a Section 11(a)(ii) Event,
shares of Common Stock or other securities, as the case may be) delivered upon
exercise of Rights, at the time of delivery of the certificates for such
securities, shall be (subject to payment of the Purchase Price) duly
authorized, validly issued, fully paid and nonassessable securities.


 


12

















 


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


 


(e)           If the Company
determines that registration under the Securities Act is required, then the
Company shall use its best efforts (i) to file, as soon as practicable
after the Distribution Date, on an appropriate form, a registration statement
under the Securities Act with respect to the securities issuable upon exercise
of the Rights, (ii) to cause such registration statement to become
effective as soon as practicable after such filing and (iii) to cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the earlier of (A) the
date as of which the Rights are no longer exercisable for such securities and (B) the
Expiration Date.  The Company shall 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 90 calendar days after the date the Company determines
that registration is required, the exercisability of the Rights in order to
prepare and file such registration statement and to permit it to become
effective or to qualify the rights, the exercise thereof or the issuance of
shares of Preferred Stock, Common Stock or other securities upon the exercise thereof
under state securities or “blue sky” laws.  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.  The
Company shall notify the Rights Agent in writing whenever it makes a public
announcement pursuant to this Section 9(e) and give the Rights
Agent a copy of such announcement.  In
addition, if the Company determines that a registration statement or other
document should be filed under the Securities Act or any state securities laws
following the Distribution Date, the Company may temporarily suspend the
exercisability of the Rights, for a period of time not to exceed 90 calendar
days after the date the Company makes such determination, in each relevant
jurisdiction, until such time as a registration statement has been declared
effective or any such other document filed and, if required, approved, and,
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.
 Notwithstanding anything in this Agreement
to the contrary, the Rights shall not be exercisable in any jurisdiction if the
requisite registration or qualification in such jurisdiction has not been
effected or the exercise of the Rights is not permitted under applicable law.


 


(f)            Notwithstanding
anything in this Agreement to the contrary, in the event that a Section 11(a)(ii) Event
occurs and the Rights shall then be outstanding, the Company shall 


 


13

















 


not,
except as permitted by Section 22, Section 23 or Section 26
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 shall eliminate
or otherwise diminish the benefits intended to be afforded by the Rights.


 


(g)           In the event
that the Company is obligated to issue other securities of the Company, pay
cash or distribute other assets pursuant to Section 7, Section 11,
Section 13, Section 22 or Section 23 hereof,
it shall make all arrangements necessary so that such other securities, cash or
other assets are available for distribution by the Rights Agent, if and when
necessary to comply with this Agreement.


 


Section 10             Record
Date.  Each Person in whose name any
certificate for a number of one one-thousandths of a share of Preferred Stock
(or Common Stock or other securities, as the case may be) is issued upon the
exercise of Rights shall for all purposes be deemed to have become the holder
of record of such shares of Preferred Stock (or Common Stock or other securities,
as the case may be) represented thereby on, and such certificate shall be
dated, the date upon which the Rights Certificate representing such Rights was
duly surrendered and payment of the Purchase Price (and all applicable taxes
and charges) was made; provided, however, that if the date of
such surrender and payment is a date upon which the transfer books of the
Company for shares of Preferred Stock (or Common Stock or other securities, as
the case may be) are closed, such Person shall be deemed to have become the
record holder of such securities on, and such certificate shall be dated, the
next succeeding Business Day on which the 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 holder of any security of the Company with respect
to shares for which the Rights are or may 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 Securities or Number of Rights.  The Purchase Price, the number of shares of
Preferred Stock or other securities or property purchasable upon exercise of
each Right and the number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.


 


(a)           (i)            In the event the Company
shall at any time after the Record Date (A) declare a dividend on the
shares of Preferred Stock payable in shares of Preferred Stock, (B) subdivide
the outstanding shares of Preferred Stock, (C) combine the outstanding
shares of Preferred Stock into a smaller number of shares of Preferred Stock or
(D) issue any shares of its capital stock in a reclassification of the
shares of Preferred Stock (including any such reclassification in connection
with a consolidation or merger in which the Company is the continuing or
surviving corporation), except as otherwise provided in this Section 11(a),
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,
as the case may be, and the number and kind of shares of capital stock issuable
on such date, shall be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive, upon payment of the
Purchase Price then in effect, the aggregate number and kind of shares of
capital stock which, if such Right had been exercised immediately prior to such
date (whether or not such Right was 


 


14

















 


then
exercisable) and at a time when the transfer books of the Company for the
shares of Preferred Stock (or other capital stock, as the case may be) were
open, the holder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or reclassification;
provided, however, that in no event shall the consideration to be
paid upon the exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Company issuable upon exercise of one Right.


 


(ii)           Subject to Section 22
and Section 23 of this Agreement and except as otherwise provided
in this Section 11(a)(ii) and Section 11(a)(iii) hereof,
in the event that any Person becomes an Acquiring Person (a “Section 11(a)(ii) Event”),
each holder of a Right shall thereafter have the right to receive, upon
exercise thereof at a price equal to the then-current Purchase Price, in
accordance with the terms of this Agreement  and
in lieu of shares of Preferred Stock, such number of shares of Common Stock (or
at the option of the Company, such number of one one-thousandths of a share of
Preferred Stock) as shall equal the result obtained by (x) multiplying the
then-current Purchase Price by the number of one one-thousandths of a share of
Preferred Stock for which a Right was exercisable immediately prior to the
first occurrence of a Section 11(a)(ii) Event and 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
Agreement) by (y) 50% of the Current Per Share Market Price of the Company’s
Common Stock (determined pursuant to Section 11(d) hereof) on the
date of such first occurrence; provided, however, that the
Purchase Price (as so adjusted) and the number of shares of Common Stock so
receivable upon exercise of a Right shall thereafter be subject to further
adjustment as appropriate in accordance with Section 11(f) hereof.


 


Notwithstanding anything in
this Agreement to the contrary, however, from and after the first occurrence of
a Section 11(a)(ii) Event, any Rights that are beneficially owned by (A) any
Acquiring Person (or any Affiliate or Associate of any Acquiring Person), (B) a
transferee of any Acquiring Person (or any such Affiliate or Associate) who
becomes a transferee after the occurrence of such Person becoming an Acquiring
Person or (C) a transferee of any Acquiring Person (or any such Affiliate
or Associate) who became a transferee prior to or concurrently with such Person
becoming an Acquiring Person pursuant to either (1) a transfer from the
Acquiring Person (or any such Affiliate or Associate) to holders of its equity
securities or to any Person with whom the Acquiring Person (or any such
Affiliate or Associate) has any continuing agreement, arrangement or understanding,
written or otherwise, regarding the transferred Rights or (2) a transfer
that the Board has determined is part of a plan, arrangement or understanding,
written or otherwise, which has the purpose or effect of avoiding the
provisions of this paragraph, shall be null and void without any further action
and any holder of such Rights shall thereafter have no rights whatsoever with
respect to such Rights, whether under any provision of this Agreement or
otherwise.  The Company will use
commercially reasonable efforts to ensure that the provisions of this Section 11(a)(ii) are
complied with, but shall have no liability to any holder of Rights Certificates
or other Person as a result of its failure to make any determinations with
respect to an Acquiring Person or its Affiliates, Associates or transferees
hereunder.  From and after the occurrence
of any Person becoming an Acquiring Person, no Rights Certificates shall be
issued pursuant to Section 3 or Section 6 hereof that
represents Rights that are or have become void pursuant to the provisions of
this paragraph, and any Rights Certificates delivered to the Rights Agent that
represent Rights that are or have become void pursuant to the provisions of
this paragraph shall be cancelled.


 


15






 












 


(iii)          The Company may
at its option substitute for a share of Common Stock issuable upon the exercise
of Rights in accordance with Section 11(a)(ii) hereof such
number or fractions of shares of Preferred Stock having an aggregate current
market value equal to the Current Per Share Market Price of a share of Common
Stock.  In the event that there shall be
an insufficient number of shares of Common Stock authorized but unissued (and
unreserved) to permit the exercise in full of the Rights in accordance with Section 11(a)(ii) hereof,
the Board shall, with respect to such deficiency, to the extent not prohibited
by applicable law or any material agreements then in effect to which the
Company is a party (A) determine the excess of (1) the value of the
shares of Common Stock issuable upon the exercise of a Right in accordance with
the foregoing Section 11(a)(ii) (the “Current Value”)
over (2) the then-current Purchase Price (such excess, the “Spread”),
and (B) with respect to each Right (other than Rights which have become
void pursuant to Section 11(a)(ii) hereof), make adequate
provision to substitute for the shares of Common Stock issuable in accordance
with Section 11(a)(ii) hereof upon exercise of the Right and
payment of the applicable Purchase Price, (1) cash, (2) a reduction
in the Purchase Price, (3) shares of Preferred Stock or other equity
securities of the Company (including, without limitation, shares or fractions
of shares of preferred stock which, by virtue of having dividend, voting and
liquidation rights substantially comparable to those of the shares of Common
Stock, are deemed in good faith by the Board to have substantially the same
value as the shares of Common Stock, (4) debt securities of the Company, (5) other
assets or (6) any combination of the foregoing, having a value which, when
added to the value of the shares of Common Stock actually issued upon exercise
of such Right, shall have an aggregate value equal to the Current Value, where
such aggregate value has been determined by the Board (upon the advice of a
nationally recognized investment banking firm selected by the Board in good
faith); provided, however, if the Company shall not make adequate
provision to deliver value pursuant to clause (B) above within 30 calendar
days following the later of (x) the first occurrence of a Section 11(a)(ii) Event
and (y) the date on which the Company’s right of redemption pursuant to Section 22(a) expires
(the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger
Date”), then the Company shall be obligated to deliver, to the extent not
prohibited by applicable law or any material agreements then in effect to which
the Company is a party, 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, such number or fractions of shares of
Preferred Stock (to the extent available) and then, if necessary, cash, which
shares and cash have an aggregate value equal to the Spread.  If within the 30-day period referred to above
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, then, if the Board so elects, such 30-day
period may be extended to the extent necessary, but not more than 90 calendar
days after the Section 11(a)(ii) Trigger Date, in order that the
Company may seek stockholder approval for the authorization of such additional
shares (such 30-day period, as it may be extended, is hereinafter called the “Substitution
Period”).  To the extent that the
Company determines that some action need be taken pursuant to the second or
third sentence of this Section 11(a)(iii), the Company (I) shall
provide, subject to Section 11(a)(ii), that such action shall apply
uniformly to all outstanding Rights and (II) may suspend the exercisability of
the Rights until the expiration of the Substitution Period in order to seek any
authorization of additional shares or to decide the appropriate form of
distribution to be made pursuant to such second 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 


 


16

















 


temporarily
suspended, as well as a public announcement at such time as the suspension is
no longer in effect.


 


(b)           If the Company
fixes a record date for the issuance of rights, options or warrants to all
holders of shares of Preferred Stock entitling them (for a period expiring
within 45 calendar days after such record date) to subscribe for or purchase
shares of Preferred Stock (or securities having equivalent rights, privileges
and preferences as the shares of Preferred Stock (for purposes of this Section 11(b),
“Equivalent Preferred Stock”)) or securities convertible into shares of
Preferred Stock or Equivalent Preferred Stock at a price per share of Preferred
Stock or Equivalent Preferred Stock (or having a conversion price per share, if
a security convertible into shares of Preferred Stock or Equivalent Preferred
Stock) less than the Current Per Share Market Price of the shares of Preferred
Stock (determined pursuant to Section 11(d) hereof) on such
record date, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which is the number of shares
of Preferred Stock outstanding on such record date plus the number of shares of
Preferred Stock which the aggregate offering price of the total number of
shares of Preferred Stock and Equivalent Preferred Stock so to be offered (or
the aggregate initial conversion price of the convertible securities so to be
offered) would purchase at such Current Per Share Market Price and the
denominator of which is the number of shares of Preferred Stock outstanding on
such record date plus the number of additional shares of Preferred Stock and
Equivalent Preferred Stock to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible); provided,
however, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the shares of
capital stock issuable upon exercise of one Right.  In case such subscription price may be paid in
a consideration part or all of which is in a form other than cash, the value of
such consideration shall be as determined in good faith by the Board, whose
determination shall be described in a written statement filed with the Rights
Agent.  Shares of Preferred Stock owned
by or held for the account of the Company shall not be deemed outstanding for
the purpose of any such computation.  Such
adjustments shall be made successively whenever such a record date is fixed,
and in the event that such rights, options or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which would then be
in effect if such record date had not been fixed.


 


(c)           If the Company
fixes a record date for the making of a distribution to all holders of shares
of Preferred Stock (including any such distribution made in connection with a consolidation
or merger in which the Company is the continuing or surviving corporation) of
evidences of indebtedness, cash (other than a regular periodic cash dividend),
assets, stock (other than a dividend payable in shares of Preferred Stock) or
subscription rights, options or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which is the Current Per Share
Market Price of the shares of Preferred Stock (as determined pursuant to Section 11(d) hereof)
on such record date or, if earlier, the date on which shares of Preferred Stock
begin to trade on an ex-dividend or when issued basis for such distribution,
less the fair market value (as determined in good faith by the Board, whose
determination shall be described in a written statement filed with the Rights
Agent) of the portion of the evidences of indebtedness, cash, assets or stock
so to be distributed or of such subscription rights, options or warrants
applicable to one share of Preferred Stock, and 


 


17

















 


the
denominator of which is such Current Per Share Market Price of the shares of
Preferred Stock; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock issuable upon exercise of
one Right.  Such adjustments shall be
made successively whenever such a record date is fixed; and in the event that
such distribution is not so made, the Purchase Price shall again be adjusted to
be the Purchase Price which would then be in effect if such record date had not
been fixed.


 


(d)           (i)            For the purpose of any
computation hereunder, the “Current Per Share Market Price” of a share of
Common Stock on any date shall be deemed to be the average of the daily closing
prices per share of a share of Common Stock for the 30 consecutive Trading Days
immediately prior to, but not including, such date; provided, however,
that in the event that the Current Per Share Market Price of Common Stock is
determined during a period following the announcement by the Company of (A) a
dividend or distribution on such shares of Common Stock payable in shares of Common
Stock or securities convertible into such shares (other than the Rights) or (B) any
subdivision, combination or reclassification of such shares of Common Stock,
and prior to the expiration of 30 Trading Days after, but not including, the
ex-dividend date for such dividend or distribution, or the record date for such
subdivision, combination or reclassification, then, and in each such case, the
Current Per Share Market Price shall be appropriately adjusted to take into
account ex-dividend trading or to reflect the current per share market price
per share equivalent of such shares of Common Stock.  The closing price for each day shall be the
last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the NASDAQ Global Select
Market or, if the Common Stock is not listed or admitted to trading on the NASDAQ
Global Select Market, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Common Stock is listed or admitted to trading
or, if the Common Stock is not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported on
a quotation system then in use, or, if on any such date the Common Stock is not
quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the Common
Stock selected by the Board.  If the Common
Stock is not publicly held or not so listed or traded, or is not the subject of
available bid and asked quotes, the Current Per Share Market Price of such Common
Stock shall mean the fair value per share as determined in good faith by the
Board, whose determination shall be described in a statement filed with the
Rights Agent.


 


(ii)           For the purpose
of any computation hereunder, the “Current Per Share Market Price” of a
share of Preferred Stock shall be determined in accordance with the method set
forth above in Section 11(d)(i) other than the last sentence
thereof.  If the Current Per Share Market
Price of Preferred Stock cannot be determined in the manner provided above, it
shall be conclusively deemed to be an amount equal to the current per share
market price of the shares of Common Stock multiplied by one thousand (as such
number may be appropriately adjusted to reflect events such as stock splits,
stock dividends, recapitalizations or similar transactions relating to the
shares of Common Stock occurring after the date of this Agreement).  If neither the Common Stock nor the Preferred
Stock are publicly held or so listed or traded, or 


 


18

















 


the
subject of available bid and asked quotes, “Current Per Share Market Price”
of the Preferred Stock shall mean the fair value per share as determined in
good faith by the Board, whose determination shall be described in a statement
filed with the Rights Agent.  For all
purposes of this Agreement, the current per share market price of one one-thousandth
of a Preferred Share will be equal to the current per share market price of one
Preferred Share divided by one thousand.


 


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


 


(f)            If as a result
of an adjustment made pursuant to Section 11(a) hereof, the
holder of any Right thereafter exercised becomes entitled to receive any
securities of the Company other than shares of Preferred Stock, thereafter the
number or kind of such other securities so receivable upon exercise of any
Right (or the Purchase Price in respect thereof) shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the shares of Preferred Stock (and the
Purchase Price in respect thereof) contained in this Section 11,
and the provisions of Section 7, Section 9, Section 10
and Section 13 hereof with respect to the shares of Preferred Stock
(and the Purchase Price in respect thereof) shall apply on like terms to any
such other securities (and the Purchase Price in respect thereof).


 


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


 


(h)           Unless the
Company has exercised its election as provided in Section 11(i) hereof,
upon each adjustment of the Purchase Price pursuant to Section 11(b) or
Section 11(c) hereof, each Right outstanding immediately prior
to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of one one-thousandths of
a share of Preferred Stock (calculated to the nearest one one-millionth of a
share of Preferred Stock) obtained by (i) multiplying (x) the number
of one one-thousandths of a share of Preferred Stock issuable upon exercise of
a Right immediately prior to such adjustment of the Purchase Price 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.


 


19

















 


(i)            The Company may
elect, on or after the date of any adjustment of the Purchase Price, to adjust
the number of Rights in substitution for any adjustment in the number of one one-thousandths
of a share of Preferred Stock issuable upon the exercise of a Right.  Each of the Rights outstanding after such
adjustment of the number of Rights shall be exercisable for the number of one one-thousandths
of a share of Preferred Stock for which a Right was exercisable immediately
prior to such adjustment.  Each Right
held of record prior to such adjustment of the number of Rights shall become
that number of Rights (calculated to the nearest 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.  The
Company shall also, as promptly as practicable, notify the Rights Agent in writing
of the same pursuant to Section 9(e) hereof and give the
Rights Agent a copy of such announcement.  Such record date may be the date on which the
Purchase Price is adjusted or any day thereafter, but if Rights Certificates
have been issued, such record date shall be at least ten calendar days later
than the date of the public announcement.  If Rights Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this Section 11(i),
the Company shall, as promptly as practicable, cause to be distributed to
holders of record of Rights Certificates on such record date Rights
Certificates evidencing, subject to the provision of Section 13
hereof, the additional Rights to which such holders are 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 are entitled after such
adjustment.  Rights Certificates so to be
distributed shall be issued, executed, and countersigned in the manner provided
for herein (and may bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the holders of record of Rights
Certificates on the record date specified in the public announcement.


 


(j)            Without respect
to any adjustment or change in the Purchase Price or the number or kind of
securities issuable upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the Purchase Price
and the number and kind of securities which were expressed in the initial
Rights Certificate issued hereunder.


 


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


 


(l)            In any case in
which this Section 11 otherwise requires that an adjustment in the
Purchase Price be made effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event the issuance to
the holder of any Right exercised after such record date of the number of one one-thousandths
of a share of Preferred Stock or other securities of the Company, if any,
issuable upon such exercise over and above the 


 


20

















 


number
of one one-thousandths of a share of Preferred Stock or other 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 delivers to such holder a due bill or other appropriate instrument
evidencing such holder’s right to receive such additional shares of Preferred
Stock or other securities upon the occurrence of the event requiring such
adjustment.


 


(m)          Notwithstanding
anything in this Agreement to the contrary, 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 determines to be necessary or advisable in
order that any (i) consolidation or subdivision of the shares of Preferred
Stock, (ii) issuance wholly for cash of shares of Preferred Stock at less than
the Current Per Share Market Price therefor, (iii) issuance wholly for cash of
shares of Preferred Stock or securities which by their terms are convertible
into or exchangeable for shares of Preferred Stock, (iv) stock dividends
or (v) issuance of rights, options or warrants referred to in this Section 11,
hereafter made by the Company to holders of its shares of Preferred Stock is
not taxable to such stockholders.


 


(n)           Notwithstanding
anything in this Agreement to the contrary, in the event that the Company at
any time after the Record Date and prior to the Distribution Date (i) pays
a dividend on the outstanding shares of Common Stock payable in shares of
Common Stock, (ii) subdivides the outstanding shares of Common Stock, (iii) combines
the outstanding shares of Common Stock into a smaller number of shares or (iv) issues
any shares of its capital stock in a reclassification of the outstanding shares
of Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation), the number of Rights associated with each share of Common Stock
then outstanding, or issued or delivered thereafter but prior to the
Distribution Date (or issued or delivered on or after the Distribution Date
pursuant to Section 21 hereof), shall be proportionately adjusted
so that the number of Rights thereafter associated with each share of Common
Stock following any such event equals 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 is the total number of
shares of Common Stock outstanding immediately prior to the occurrence of the
event and the denominator of which is the total number of shares of Common
Stock outstanding immediately following the occurrence of such event.  The adjustments provided for in this Section 11(n) shall
be made successively whenever such a dividend is paid or such a subdivision,
combination or reclassification is effected.


 


Section 12             Certificate
of Adjusted Purchase Price or Number of Shares.  Whenever an adjustment is made or any event
affecting the Rights or their exercisability (including, without limitation, an
event which causes Rights to become null and void) occurs as provided in Section 11
hereof, the Company shall promptly (a) prepare a certificate setting forth
such adjustment and a brief statement of the facts and calculations accounting
for such adjustment or describing such event, (b) file with the Rights
Agent, and with each transfer agent for the shares of Preferred Stock and the
shares of Common Stock, a copy of such certificate, and (c) if a Distribution
Date has occurred, give a brief summary thereof to each holder of a Rights
Certificate in accordance with Section 25 hereof.  The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein contained and
shall not be deemed to have knowledge of any such adjustment unless and until
it shall have received such certificate, 


 


21

















 


provided, however, that the Rights Agent will not be
entitled to such protection in cases of bad faith or willful misconduct.


 


Section 13             Fractional
Rights and Fractional Shares.


 


(a)           The Company
shall not be required to issue fractions of Rights, except prior to the
Distribution Date as provided in Section 11(n) hereof, or to
distribute Rights Certificates which evidence fractional Rights.  In lieu of such fractional Rights, the Company
shall pay 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 one Right.  For purposes of this Section 13(a),
the current market value of one Right is the closing price of the Rights for
the Trading Day immediately prior to the date on which such fractional Rights
would have been otherwise issuable.  The
closing price for any Trading 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 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 on a quotation system then in use or, if on any such date the Rights
are not quoted, the average of the closing bid and asked prices as furnished by
a professional market maker making a market in the Rights, such market maker to
be selected by the Board.  If the Rights
are not publicly held or are not so listed or traded, or are not the subject of
available bid and asked quotes, the current market value of one Right shall
mean the fair value thereof as determined in good faith by the Board, whose
determination shall be described in a statement filed with the Rights Agent.


 


(b)           The Company shall
not be required to issue fractions of shares of Preferred Stock (other than
fractions which are integral multiples of one one-thousandth of a share of
Preferred Stock) upon exercise of the Rights or to distribute certificates
which evidence fractional shares of Preferred Stock (other than fractions which
are integral multiples of one one-thousandth of a share of Preferred Stock).  Fractions of shares of Preferred Stock in
integral multiples of one one-thousandth of a share of Preferred Stock may, in
the sole discretion of the Company, be evidenced by depositary receipts
pursuant to an appropriate agreement between the Company and a depositary
selected by it, provided that such agreement provides that the holders
of such depositary receipts have all the rights, privileges and preferences to
which they are entitled as Beneficial Owners of the Preferred Stock represented
by such depositary receipts.  In lieu of
fractional shares of Preferred Stock that are not integral multiples of one one-thousandth
of a share of Preferred Stock, the Company may pay to the registered holders of
Rights Certificates at the time such Rights are exercised as herein provided an
amount in cash equal to the same fraction of the current market value of one one-thousandth
of a share of Preferred Stock.  For
purposes of this Section 13(b), the current market value of one one-thousandth
of a share of Preferred Stock shall be one one-thousandth of the closing price
of a share of Preferred Stock (as determined pursuant to Section 11(d)(ii)
hereof) for the Trading Day immediately prior to the date of such exercise;
provided, however, that if the closing price of the shares of the
Preferred Stock cannot be so determined, the closing price of the shares of the
Preferred Stock for such Trading Day shall be conclusively deemed to be an
amount equal to the closing price of 


 


22

















 


the
shares of Common Stock for such Trading Day multiplied by one thousand (as such
number may be appropriately adjusted to reflect events such as stock splits,
stock dividends, recapitalizations or similar transactions relating to the
Common Stock occurring after the date of this Agreement).


 


(c)           Following the
occurrence of a Section 11(a)(ii) Event, the Company shall not be required
to issue fractions of shares of Common Stock upon exercise or exchange of the
Rights or to distribute certificates or Ownership Statements which evidence fractional
shares of Common Stock.  In lieu of
issuing any such fractional shares of Common Stock, the Company may pay to any
Person to whom or which such fractional shares of Common Stock would otherwise be
issuable an amount in cash equal to the same fraction of the current market
value of one such share of Common Stock.  For purposes of this Section 13(c),
the current market value of one share of Common Stock shall be the closing
price thereof (as determined pursuant to Section 11(d)(i) hereof)
on the Trading Day immediately prior to the date of such exercise or exchange.


 


(d)           The holder of a
Right by the acceptance of such Right expressly waives such holder’s right to
receive any fractional Rights or any fractional shares upon exercise of a
Right, except as permitted by this Section 13.


 


Section 14             Rights
of Action.


 


(a)           All rights of
action in respect of this Agreement, excepting the rights of action given to
the Rights Agent hereunder, are vested in the respective registered holders of
the Rights Certificates (or, prior to the Distribution Date, the registered
holders of shares of Common Stock); and any registered holder of any Rights
Certificate (or, prior to the Distribution Date, of the shares of Common
Stock), without the consent of the Rights Agent or of the holder of any other
Rights Certificate (or, prior to the Distribution Date, of the shares of Common
Stock), may, on such first holder’s behalf and for such first 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 first
holder’s right to exercise the Rights evidenced by such Rights Certificate in
the manner provided in such Rights Certificate and in this Agreement.  Without limiting the foregoing or any remedies
available to the holders of Rights, it is specifically acknowledged that the
holders of Rights would not have an adequate remedy at law for any breach of
this Agreement and shall be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened violations of the
obligations hereunder of any Person subject to this Agreement.


 


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


 


23

















 


Company
shall use commercially reasonable efforts to have any such injunction, order,
judgment, decree or ruling lifted or otherwise overturned as soon as possible.


 


Section 15             Agreement
of Rights Holders.  Every holder
of a Right, by accepting the same, consents and agrees with the Company and the
Rights Agent and with every other holder of a Right that:


 


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


 


(b)           after the
Distribution Date, the Rights Certificates are transferable only on the
registry books of the Rights Agent if surrendered at the principal office or
offices of the Rights Agent designated for such purposes, duly endorsed or accompanied
by a properly executed instrument of transfer with the appropriate forms and
certificates contained therein fully executed;


 


(c)           subject to Section 6(a) and
Section 7(d) hereof, the Company and the Rights Agent may deem
and treat the Person in whose name a Rights Certificate (or, prior to the
Distribution Date, the associated Common Stock share certificate or Ownership
Statement) is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or writing on the
Rights Certificates or the associated Common Stock share certificate or
Ownership Statement made by anyone other than the Company or the Rights Agent)
for all purposes whatsoever, and neither the Company nor the Rights Agent,
subject to the penultimate sentence of Section 11(a)(ii) hereof,
shall be affected by any notice to the contrary; and


 


(d)           such holder
expressly waives any right to receive any fractional Rights and any fractional
securities upon exercise or exchange of a Right, except as otherwise provided
in Section 13 hereof.


 


Section 16             Rights
Certificate Holder Not Deemed a Stockholder.  No holder of any Rights Certificate, by means
of such possession, shall be entitled to vote, receive dividends or be deemed
for any purpose the holder of the number of one one-thousandths of a share of
Preferred Stock or any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby, nor shall anything
contained herein or in any Rights Certificate be construed to confer upon the
holder of any Rights Certificate, by means of such possession, any of the
rights of a stockholder of the Company including any right to vote on any
matter submitted to stockholders at any meeting thereof, including the election
of directors, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in Section 24 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by such Rights
Certificate have been exercised in accordance with the provisions of this
Agreement.


 


Section 17             Concerning
the Rights Agent.


 


(a)           The Company
agrees to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder, and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and other disbursements
incurred in the preparation, 


 


24

















 


administration
and execution of this Agreement and the exercise and performance of its duties
hereunder.  The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability, damage, judgment, fine, penalty, claim, demand, cost or expense
incurred without gross negligence, bad faith or willful misconduct on the part
of the Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement and the
performance of its duties and responsibilities and the exercise of its rights
hereunder, including the costs and expenses of defending against any claim of
liability arising therefrom, directly or indirectly.  The costs and expenses of enforcing this right
of indemnification will also be paid by the Company.  The provisions of this Section 17
shall survive the exercise, exchange, redemption or expiration of the Rights,
the resignation, replacement or removal of the Rights Agent and the termination
of this Agreement.


 


(b)           The Rights
Agent may conclusively rely on, and will be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in
connection with, its acceptance or administration of this Agreement and the
exercise and performance of its duties and responsibilities and the exercise of
its rights hereunder, in reliance upon any Rights Certificate or certificate
evidencing shares of Preferred Stock, Common Stock or other securities of the
Company or an Ownership Statement, or any instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the proper Person or Persons, or otherwise upon the advice of counsel as set
forth in Section 19 hereof.


 


(c)           Notwithstanding
anything in this Agreement to the contrary, in no event will the Rights Agent
be liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Rights
Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action.


 


Section 18             Merger,
Consolidation or Change of Name of the Rights Agent.


 


(a)           Any Person into
which the Rights Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any Person resulting from any merger or
consolidation to which the Rights Agent or any successor Rights Agent is a
party, or any Person succeeding to the corporate trust, stock transfer or other
shareholder services business of the Rights Agent or any successor Rights Agent
will be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that such Person would be eligible for
appointment as a successor Rights Agent under the provisions of Section 20
hereof.  If at the time such successor
Rights Agent shall succeed to the agency created by this Agreement any of the
Rights Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of a predecessor Rights
Agent and deliver such Rights Certificates so countersigned; and if at that
time any of the Rights Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Rights Certificates either in the
name of the predecessor or in the name of the successor Rights Agent; and in
all such cases such Rights Certificates shall have the full force provided in
the Rights Certificates and in this Agreement.


 


25






 












 


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


 


Section 19             Duties
of the Rights Agent.  The Rights
Agent undertakes to perform the duties and obligations expressly imposed by
this Agreement (and no implied duties) upon the following terms and conditions,
by all of which the Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:


 


(a)           The Rights
Agent may consult with competent legal counsel (who may be legal counsel for
the Company), and the advice or opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent and the Rights Agent
shall incur no liability for or in respect of any action taken, suffered or
omitted by it in good faith and in accordance with the content of such advice
or opinion.


 


(b)           Whenever in the
performance of its duties under this Agreement the Rights Agent shall deem it
necessary or desirable that any fact or matter (including, without limitation,
the identity of any Acquiring Person and the determination of the Current Per
Share Market Price) be proved or established by the Company prior to taking,
suffering or omitting to take any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by any
Authorized Officer and delivered to the Rights Agent; and such certificate,
pursuant to its terms, shall be full and complete authorization and protection
to the Rights Agent for any action taken or suffered in good faith by it under
the provisions of this Agreement in reliance upon such certificate.


 


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


 


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


 


(e)           The Rights
Agent will have no liability in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution and delivery hereof
by the Rights Agent) or in respect of the validity or execution of any Rights
Certificate (except its countersignature thereof); nor shall it be responsible
for any breach by the Company of any covenant contained in this Agreement or in
any Rights Certificate; nor shall it be responsible for any adjustment required
under the provisions of Section 11, Section 22 or Section 23
hereof or responsible for the manner, method or amount of any such adjustment
or the ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights evidenced by Rights
Certificates after actual notice of any such adjustment); nor shall it 


 


26

















 


by
any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock or Preferred Stock
to be issued pursuant to this Agreement or any Rights Certificate or as to
whether any shares of Common Stock or Preferred Stock shall, when so issued, be
validly authorized and issued, fully paid and nonassessable.


 


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


 


(g)           The Rights
Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties and the exercise of the rights hereunder from any
Authorized Officer, and to apply to any such Authorized Officer for advice or
instructions in connection with its duties, and it shall not be liable for any
action taken or suffered by it in good faith in accordance with instructions of
any such Authorized Officer or for any delay in acting while waiting for those
instructions.  Any application by the
Rights Agent for written instructions from the Company may, at the option of
the Rights Agent, set forth in writing any action proposed to be taken or
omitted by the Rights Agent under this Agreement and the date on or after which
such action shall be taken or such omission shall be effective.  The Rights Agent shall not be liable for any
action taken by, or omission of, the Rights Agent in accordance with a proposal
included in any such application on or after the date specified in such
application (which date shall not be less than five Business Days after the
date any Authorized Officer of the Company actually receives such application,
unless any such Authorized Officer shall have consented in writing to an
earlier date) unless, prior to taking any such action (or the effective date in
the case of an omission), the Rights Agent shall have received written
instructions in response to such application specifying the action to be taken
or omitted.


 


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


 


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


 


(j)            If, with
respect to any Rights Certificate surrendered to the Rights Agent for exercise
or transfer, the certificate contained in the form of assignment or the form of
election to purchase set forth on the reverse thereof, as the case may be, has
not been completed or indicates an affirmative response to clause 1 or 2
thereof, the Rights Agent shall not take any 


 


27

















 


further
action with respect to such requested exercise or transfer without first
consulting with the Company.


 


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


 


(l)            The Rights
Agent will not be required to take notice or be deemed to have notice of any
fact, event or determination (including, without limitation, any dates or
events defined in this Agreement or the designation of any Person as an
Acquiring Person, Affiliate or Associate) under this Agreement unless and until
the Rights Agent is specifically notified in writing by the Company of such
fact, event or determination.


 


(m)          The provisions
of this Section 19 shall survive the exercise, exchange, redemption
or expiration of the Rights, the resignation, replacement or removal of the
Rights Agent and the termination of this Agreement.


 


Section 20             Change
of the Rights Agent.  The Rights
Agent or any successor Rights Agent may resign and be discharged from its
duties under this Agreement upon 30 calendar days’ written notice given to the
Company in accordance with Section 25 hereof and, in the event that
the Rights Agent or one of its Affiliates is not also the transfer agent for
the Company, to each transfer agent of the shares of Common Stock and Preferred
Stock known to the Rights Agent, respectively, by registered or certified mail.
 In the event that the transfer agency
relationship in effect between the Company and the Rights Agent or one of its
Affiliates terminates, the Rights Agent will be deemed to have resigned
automatically and be discharged from its duties under this Agreement as of the
effective date of such termination, and the Company shall be responsible for
sending any required notice; provided, however, that the Rights
Agent shall provide such assistance as is reasonably requested by the Company
in connection with the Company’s transition to a replacement Rights Agent.  The Company may remove the Rights Agent or
any successor Rights Agent upon 30 calendar days’ written notice, given to the
Rights Agent or successor Rights Agent, as the case may be, in accordance with Section 25
hereof, and to each transfer agent of the shares of Common Stock and the
Preferred Stock, by registered or certified mail, and, if such removal occurs
after the Distribution Date, to the holders of the Rights Certificates in
accordance with Section 25 hereof.  If the Rights Agent shall resign or be removed
or shall otherwise become incapable of acting, the Company shall, in its sole
discretion, appoint a successor to the Rights Agent.  If the Company shall fail to make such
appointment within a period of 30 calendar days after giving notice of such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder of a
Rights Certificate (who shall, with such notice, submit such holder’s Rights
Certificate for inspection by the Company), then any registered holder of any
Rights Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent.  Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be (a) a legal business entity organized and doing business under the
laws of the United States or any state of the United States, in good standing,
which is authorized under such laws to exercise corporate trust, stock transfer
or shareholder services powers and which has at the time 


 


28

















 


of its appointment as Rights Agent a combined capital and surplus of at
least $50,000,000 or (b) an affiliate of a legal business entity described
in clause (a) of this sentence.  After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the purpose.  Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the shares of Common Stock
and the Preferred Stock, and, if such appointment occurs after the Distribution
Date, give a notice thereof in writing to the registered holders of the Rights
Certificates in accordance with Section 25 hereof.  Failure to give any notice provided for in
this Section 20, however, or any defect therein, shall not affect
the legality or validity of the resignation or removal of the Rights Agent or
the appointment of the successor Rights Agent, as the case may be.


 


Section 21             Issuance
of New Rights Certificates.  Notwithstanding any of the provisions of this
Agreement or of the Rights to the contrary, the Company may, at its option,
issue new Rights Certificates evidencing Rights in such form as may be 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
Agreement.  In addition, in connection
with the issuance or sale by the Company of shares of Common Stock following
the Distribution Date and prior to the Expiration Date, the Company (a) shall,
with respect to shares of Common Stock so issued or sold pursuant to the
exercise of stock options or under any employee plan or arrangement, granted or
awarded as of the Distribution Date, or upon the exercise, exchange or
conversion 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, in its good
faith judgment the Board determines that the issuance of such Rights
Certificate could have a material adverse tax consequence to the Company or to
the Person to whom or which such Rights Certificate otherwise 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 22             Redemption.


 


(a)           The Board may,
at any time prior to the occurrence of a Section 11(a)(ii) Event,
redeem all but not less than all of the then-outstanding Rights at the
Redemption Price.  The redemption of the
Rights may be made effective at such time, on such basis and with such
conditions as the Board in its sole discretion may establish.  The Company may, at its option, pay the
Redemption Price in cash, securities or any other form of consideration deemed
appropriate by the Board.


 


(b)           Immediately
upon the effectiveness of the action of the Board ordering the redemption of
the Rights, and without any further action and without any notice, the right to
exercise the Rights shall terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price for each Right so
held without interest thereon.  Promptly
after 


 


29

















 


the
effectiveness of the redemption of the Rights, the Company shall give notice of
such redemption to the Rights Agent and the holders of the then outstanding
Rights in accordance with Section 25 hereof; provided, however,
that the failure to give, or any defect in, any such notice will not affect the
validity of the redemption of the Rights.  Any notice given in accordance with Section 25
hereof shall be deemed given, whether or not the holder receives the notice.  Each such notice of redemption shall state the
method by which the payment of the Redemption Price shall be made.


 


Section 23             Exchange.


 


(a)           The Independent
Director Evaluation Committee, at its option, at any time after a Section 11(a)(ii) Event,
exchange all or part of the then-outstanding and exercisable Rights (which
shall not include Rights that have become void pursuant to the provisions of Section 11(a)(ii) hereof)
for shares of 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 date hereof (such amount per Right
being hereinafter referred to as the “Exchange Ratio”).  The exchange of the Rights by the Independent
Director Evaluation Committee may be made effective at such time, on such basis
and with such conditions as the Independent Director Evaluation Committee in
its sole discretion may establish.


 


(b)           Immediately
upon the effectiveness of the action of the Independent Director Evaluation
Committee ordering the exchange of any Rights and without any further action
and without any notice, the right to exercise such Rights shall terminate and
the only right thereafter of a holder of such Rights shall be to receive that
number of shares of Common Stock equal to the number of such Rights held by
such holder multiplied by the Exchange Ratio.  The Company shall promptly give public notice
of any such exchange; provided, however, that the failure to
give, or any defect in, such notice shall not affect the validity of such
exchange.  The Company shall promptly give
a notice of any such exchange to all of the holders of the Rights so exchanged
in accordance with Section 25 hereof.  Any notice given in accordance with Section 25
hereof shall be deemed given, whether or not the holder receives the notice.  Each such notice of exchange will state the
method by which the exchange of the shares of Common Stock for Rights shall be
effected and, in the event of any partial exchange, the number of Rights which
will be exchanged.  Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights
which have become void pursuant to the provisions of Section 11(a)(ii) hereof)
held by each holder of Rights.


 


(c)           The Company may
at its option substitute and, in the event that there shall not be sufficient
shares of Common Stock issued but not outstanding or authorized but unissued
(and unreserved) to permit an exchange of Rights as contemplated in accordance
with this Section 23, the Company shall substitute to the extent of
such insufficiency, for each share of Common Stock that would otherwise be issuable
upon exchange of a Right, a number of shares of Preferred Stock or fraction
thereof (or Equivalent Preferred Stock) such that the Current Per Share Market
Price of one share of Preferred Stock (or Equivalent Preferred Stock)
multiplied by such number or fraction is equal to the Current Per Share Market
Price of the Common Stock that would otherwise be issuable as of the date of
such exchange.


 


30

















 


(d)           Prior to
effecting an exchange pursuant to this Section 23, the Independent
Director Evaluation Committee may direct the Company to enter into a trust
agreement in such form and with such terms as the Independent Director
Evaluation Committee shall then approve (the “Trust Agreement”).  If the Independent Director Evaluation
Committee so directs, the Company shall enter into the Trust Agreement and
shall issue to the trust created by such agreement (the “Trust”) all of
the shares of Common Stock, Preferred Stock or other securities, if any,
issuable pursuant to the exchange, and all Persons entitled to receive such
shares or other securities (and any dividends or distributions made thereon
after the date on which such shares or other securities are deposited in the
Trust) shall be entitled to receive such only from the Trust and solely upon
compliance with the relevant terms and provisions of the Trust Agreement.


 


Section 24             Notice
of Certain Events.


 


(a)           If the Company,
at any time after the Distribution Date, proposes to (i) pay any dividend
payable in stock of any class to the holders of shares of Preferred Stock or to
make any other distribution to the holders of shares of Preferred Stock (other
than a regular periodic cash dividend), (ii) offer to the holders of
shares of Preferred Stock rights, options, warrants or any similar instrument
to subscribe for or to purchase any additional shares of Preferred Stock or
shares of stock of any class or any other securities, rights or options, (iii) effect
any reclassification of its Preferred Stock (other than a reclassification
involving only the subdivision of outstanding shares of Preferred Stock), (iv) effect
any consolidation, merger or statutory share exchange into or with any other
Person, or (v)  effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to the Rights Agent
and, to the extent possible, to each holder of a Rights Certificate, in
accordance with Section 25 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of such stock
dividend, distribution or offering of rights, warrants, options or any similar
instrument or the date on which such reclassification, consolidation, merger,
share exchange, sale, transfer, liquidation, dissolution, or winding up is to
take place and the date of participation therein by the holders of the shares
of Preferred Stock, if any such date is to be fixed, and such notice shall be
so given in the case of any action covered by clause (i) or (ii) above
at least ten calendar days prior to the record date for determining holders of
the shares of Common Stock or Preferred Stock for purposes of such action, and
in the case of any such other action at least ten calendar days prior to the
date of such proposed action or the date of participation therein by the
holders of the shares of Preferred Stock, whichever is the earlier.


 


(b)           If a Section 11(a)(ii) Event
occurs, then (i) the Company shall as soon as practicable thereafter give
to the Rights Agent and each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 25 hereof, a notice of the
occurrence of such event, which shall specify the event and the consequences of
the event to holders of Rights and (ii) all references in Section 24(a) hereof
to shares of Preferred Stock shall be deemed thereafter to refer to shares of
Common Stock or, if appropriate, other securities.


 


Section 25             Notices.


 


(a)           Notices or
demands authorized by this Agreement to be given or made by the Rights Agent or
by the holder of any Rights Certificate to or on the Company shall be
sufficiently given or made (i) immediately, if made by personal delivery, (ii)
on the fifth calendar 


 


31

















 


day
if sent by first-class mail, postage prepaid, (iii) the next Business Day
if sent by nationally recognized overnight courier or (iv) upon facsimile confirmation,
if transmitted by facsimile, all addressed (until another address is filed in
writing by the Company with the Rights Agent) as follows:


 


THQ
Inc.

29903 Agoura Road

Agoura Hills, CA 91301 

Attention: Corporate Secretary

Facsimile: (818) 871-7480


 


(b)           Subject to the
provisions of Section 20 hereof, any notice or demand authorized by
this Agreement to be given or made by the Company or by the holder of any
Rights Certificate to or on the Rights Agent shall be sufficiently given or
made (i) immediately, if made by personal delivery, (ii) on the fifth
calendar day if sent by first-class mail, postage prepaid, (iii) the next
Business Day if sent by nationally recognized overnight courier or (iv) upon
facsimile confirmation, if transmitted by facsimile, all addressed (until
another address is filed in writing by the Rights Agent with the Company) as
follows:


 


Computershare
Trust Company, N.A.

2 North La Salle Street, 3rd Floor

Chicago, Illinois 60602

Attention: Client Services

Facsimile: (312) 601-4348


 


(c)           Notices or
demands authorized by this Agreement to be given or made by the Company or the
Rights Agent to the holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of certificates representing shares of Common
Stock or an Ownership Statement) 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 Rights Agent (or, if prior to
the Distribution Date, of the transfer agent for the shares of Common Stock).


 


Section 26             Supplements
and Amendments.  Except as
otherwise provided in this Section 26, for so long as the Rights
are redeemable pursuant to Section 22 hereof, the Company may in
its sole and absolute discretion, and the Rights Agent shall, if the Company so
directs, supplement or amend any provision of this Agreement in any respect
without the approval of any holders of Rights.  From and after the time at which the Rights
cease to be redeemable pursuant to Section 22 hereof, the Company
may and the Rights Agent shall, if the Company so directs, supplement or amend
this Agreement without the approval of any holders of Rights in order (a) to
cure any ambiguity, (b) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provisions herein,
(c) to shorten or lengthen any time period hereunder or (d) to amend
or supplement the provisions hereunder in any manner which the Company may deem
necessary or desirable; provided, however, that no such
supplement or amendment shall adversely affect the interests of the holders of
Rights (other than an Acquiring Person or any Affiliate or Associate of an
Acquiring Person or certain of their transferees), and no such amendment may
cause the Rights again to become redeemable or cause 


 


32

















 


this Agreement again to become amendable other than in accordance with
this sentence.  Upon the delivery of a
certificate from an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms of this Section 26,
the Rights Agent shall execute such supplement or amendment.  Notwithstanding anything herein to the
contrary, the Rights Agent shall not be obligated to enter into any supplement
or amendment that affects the Rights Agent’s own rights, duties, obligations or
immunities under this Agreement.  The
Rights Agent hereby acknowledges that in all matters arising under this
Agreement, including any amendment pursuant to this Section 26,
time is of the essence.


 


Section 27             Successors.  All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.


 


Section 28             Determinations
and Actions by the Board.


 


(a)           For all
purposes of this Agreement, any calculation of the number of shares of Common
Stock or any other class of capital stock outstanding at any particular time,
including for purposes of determining the particular percentage of such
outstanding shares of Common Stock of which any Person is the Beneficial Owner,
shall be made in accordance with the provisions of Section 382 of the Code,
or any successor provision or replacement provision.


 


(b)           The Board shall
have the exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board or to the
Company, or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to (i) interpret
the provisions of this Agreement, and (ii) make all determinations and
calculations deemed necessary or advisable for the administration of this
Agreement (including, without limitation, a determination to redeem or not
redeem the Rights or amend this Agreement). 
The Board may delegate all or any portion of its power and authority to
administer this Agreement and to exercise the rights and powers hereunder to a
committee of and appointed by the Board.  Notwithstanding the foregoing, upon the
occurrence of a Section 11(a)(ii) Event, the Independent Director Evaluation
Committee shall have the sole power and authority to administer this Agreement
and to exercise the rights and powers hereunder.


 


(c)           All such
actions, calculations, interpretations and determinations which are done or
made by the Board in good faith shall be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights and all other parties. Unless
otherwise notified, the Rights Agent shall always be entitled to assume that
the Board acted in good faith and the Rights Agent shall be fully protected and
shall incur no liability in reliance thereon.


 


Section 29             Periodic
Review.  The Independent Director
Evaluation Committee shall at least once every fiscal year review and evaluate
the Tax Benefits and the risk of an “ownership change,” as defined in Section 382
of the Code and, based on such review and evaluation and such other factors as
it considers relevant, determine whether (a) any specific provision of
this Agreement, including, without limitation, the ownership threshold included
in the definitions of “4.9% Stockholder” and “Acquiring Person,” and/or (b) the
maintenance of this Agreement, generally, continues to be in the interest of
the Company and its stockholders.  Following
each 


 


33

















 


such review, the Independent Director Evaluation Committee will
communicate its conclusions to the full Board, including any recommendation in
light thereof as to whether this Agreement should be modified or the Rights
should be terminated.  The Independent
Director Evaluation Committee shall have the power to set its own agenda and to
retain, at the expense of the Company, its choice of legal counsel, investment
bankers and/or other advisors.  The Independent
Director Evaluation Committee shall have the authority to review all
information of the Company and to consider any and all factors it deems
relevant to an evaluation of whether to maintain or modify this Agreement.


 


Section 30             Benefits
of this Agreement.  Nothing in
this Agreement shall be construed to give to any Person other than the Company,
the Rights Agent and the registered holders of the Rights Certificates (and,
prior to the Distribution Date, registered holders of shares of Common Stock)
any legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Rights Certificates (and, prior
to the Distribution Date, registered holders of shares of Common Stock).


 


Section 31             Process
to Seek Exemption.  Any Person
who desires to effect any acquisition of Common Stock that would, if
consummated, result in such Person becoming an Acquiring Person, may, in
accordance with this Section 31, request that the Independent
Director Evaluation Committee grant an exemption with respect to such
acquisition under this Agreement (the Person requesting such exemption, a “Requesting
Person”) so that such acquisition will be deemed to be an “Exempt
Transaction” for purposes of this Agreement (an “Exemption Request”).  An Exemption Request shall be in proper form
and shall be delivered by facsimile and by registered mail, return receipt
requested, to the Secretary of the Company at the principal executive offices
of the Company set forth in Section 25 hereof.  To be in proper form, an Exemption Request
shall set forth (a) the name and address of the Requesting Person, (b) the
number and percentage of shares of Common Stock then Beneficially Owned by the
Requesting Person, together with all Affiliates and Associates of the
Requesting Person and (c) a reasonably detailed description of the
transaction or transactions by which the Requesting Person would propose to
acquire Beneficial Ownership of Common Stock, such that the Requesting Person
would otherwise become an Acquiring Person, and the maximum number and
percentage of shares of Common Stock that the Requesting Person proposes to
acquire.  The Independent Director
Evaluation Committee shall make a determination whether to grant an exemption
in response to an Exemption Request as promptly as practicable (and, in any
event, within ten Business Days) after receipt thereof pursuant to registered
mail; provided, that the failure of the Independent Director Evaluation
Committee to make a determination within such period shall be deemed to
constitute the denial by the Independent Director Evaluation Committee of the
Exemption Request.  The Independent
Director Evaluation Committee shall grant an exemption in response to an Exemption
Request only if the Independent Director Evaluation Committee determines in its
sole discretion that the acquisition of Beneficial Ownership of Common Stock by
the Requesting Person will not jeopardize or endanger the availability to the
Company of the Tax Benefits or is otherwise in the best interests of the
Company and its stockholders.  Any
exemption granted hereunder may be granted in whole or in part, and may be
subject to limitations or conditions (including a requirement that the
Requesting Person agree that it will not acquire Beneficial Ownership of shares
of Common Stock in excess of the maximum number and percentage of shares of
Common Stock approved by the Independent Director Evaluation 


 


34

















 


Committee), in each case as and to the extent the Independent Director
Evaluation Committee shall determine in its sole discretion to be necessary or
desirable to provide for the protection of the Company’s Tax Benefits or
otherwise in the best interests of the Company and its stockholders.  Any Exemption Request may be submitted on a
confidential basis and, except to the extent required by applicable law, the
Company shall maintain the confidentiality of such Exemption Request and the Independent
Director Evaluation Committee’s determination with respect thereto.


 


Section 32             Severability.  If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding
anything in this Agreement to the contrary, if any such term, provision,
covenant or restriction is held by such court or authority to be invalid, void,
or unenforceable and the Board determines in its good faith judgment that
severing the invalid language from this Agreement would adversely affect the
purpose or effect of this Agreement, the right of redemption set forth in Section 22 hereof shall be reinstated and shall not expire until
the Close of Business on the tenth Business Day following the date of such
determination by the Board.


 


Section 33             Governing
Law.  This Agreement, each Right and
each Rights Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of Delaware 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 34             Counterparts;
Facsimiles and PDFs.  This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.  A facsimile or .pdf signature delivered
electronically shall constitute an original signature for all purposes.


 


Section 35             Descriptive
Headings.  Descriptive
headings of the several sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.


 


Section 36             Force
Majeure. 
Notwithstanding anything to the contrary contained herein, the Rights
Agent shall not be liable for any delays or failures in performance resulting
from acts beyond its reasonable control including, without limitation, acts of
God, terrorist acts, shortage of supply, breakdowns or malfunctions,
interruptions or malfunction of computer facilities, or loss of data due to
power failures or mechanical difficulties with information storage or retrieval
systems, labor difficulties, war, or civil unrest.


 


[REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK]


 


35

















 


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


 


 


	
   

  	
  THQ
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward L. Kaufman

  
	
   

  	
   

  	
  Name:
  Edward L. Kaufman

  
	
   

  	
   

  	
  Title:
  Executive Vice President, Business and Legal Affairs

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPUTERSHARE
  TRUST COMPANY, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dennis V. Moccia

  
	
   

  	
   

  	
  Name:
  Dennis V. Moccia

  
	
   

  	
   

  	
  Title:
  Manager, Contract Administration

  



 


 


Signature
Page to Section 382 Rights Agreement


 






 












 


Exhibit A


 


FORM OF

AMENDED AND RESTATED CERTIFICATE OF DESIGNATION, PREFERENCES, AND

RIGHTS OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK


 


of


 


THQ
INC.


 


Pursuant to Section 151
of the General Corporation Law of the State of Delaware:


 


THQ Inc., a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the “Corporation”), in accordance with the provisions of Section 103
thereof, DOES HEREBY CERTIFY that:


 


A.            On June 26, 2000, a
Certificate of Designation of the Corporation was filed with the Secretary of
State of the State of Delaware pursuant to Section 151 of the General
Corporation Law of the State of Delaware with respect to a series of Preferred
Stock designated as “Series A Junior Participating Preferred Stock” (the “Original
Series A Certificate”).


 


B.            No shares of such Series A
Junior Participating Preferred Stock have been issued as of the date hereof.


 


C.            Pursuant to the authority
conferred upon the Board of Directors of the Corporation (the “Board of
Directors”) by the Certificate of Incorporation of the Corporation, as
amended (the “Certificate of Incorporation”), and in accordance with the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors, on May 11, 2010, adopted the following
resolution amending and restating the Original Series A Certificate in its
entirety:


 


RESOLVED, that pursuant to
the authority vested in the Board of Directors of the Corporation in accordance
with the provisions of its Certificate of Incorporation, as amended, the
designation and number of shares of Series A Junior Participating
Preferred and the voting powers, preferences and relative, participating,
optional and other special rights of the shares of such series, and the qualifications,
limitations, and restrictions thereof are amended and restated to read in their
entirety as follows:


 


Section 1.               Designation and Amount.  The shares of such series shall be designated
as “Series A Junior Participating Preferred Stock” and the number of
shares constituting such series shall be 150,000.


 


Section 2.               Dividends and Distributions.


 


(A)          Subject to the prior and
superior rights of the holders of any shares of any series of Preferred Stock
ranking prior and superior to the shares of Series A Junior Participating Preferred
Stock with respect to dividends, the holders of shares of Series A Junior
Participating Preferred Stock, in preference to the holders of shares of Common
Stock, par value $.01 per 


 


A-1

















 


share,
of the Corporation (the “Common Stock”), and of any other junior stock,
shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the last  day of March, June,
September, and December in each year (each such date being referred to
herein as a “Quarterly Dividend Payment Date”), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A Junior Participating Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the
greater of (a) $1.00 or (b) subject
to the provision for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Junior Participating Preferred
Stock.  In the event the Corporation shall at any time after May 11, 2010 (the “Rights Dividend
Declaration Date”) (i) pay any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding
Common Stock, (iii) combine the outstanding Common Stock into a smaller
number of shares or (iv) issue any shares of its capital stock in a
reclassification of the outstanding shares of Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Corporation is the continuing or surviving corporation), then in each such case
the amount to which holders of shares of Series A
Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.


 


(B)           The Corporation shall
declare a dividend or distribution on the Series A Junior Participating Preferred
Stock as provided in Section 2(A) immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series A
Junior Participating Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.


 


(C)           Dividends shall begin to
accrue and be cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Junior
Participating Preferred Stock, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is
a date after the record date for the determination of holders of shares of Series A
Junior Participating Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date.  Accrued but unpaid
dividends shall not bear interest. 
Dividends paid on the shares of Series A Junior Participating Preferred
Stock in an 


 


A-2

















 


amount
less than the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis among all
such shares at the time outstanding.  The
Board of Directors may fix a record date for the determination of holders of
shares of Series A Junior Participating Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be no more than 30 days prior to the date fixed for the payment
thereof.


 


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


 


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


 


(B)           Except as otherwise provided
herein or by law, the holders of shares of Series A Junior Participating Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of the
Corporation.


 


(C)           (i)            If at any time dividends on
any Series A Junior Participating Preferred Stock shall be in arrears in
an amount equal to six quarterly dividends thereon, the occurrence of such contingency shall mark the beginning of a period (herein
called a “default period”) that shall extend until such time when all
accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all shares of Series A
Junior Participating Preferred Stock then outstanding shall have been declared
and paid or set apart for payment. 
During each default period, all holders of Preferred Stock (including
holders of the Series A Junior Participating Preferred Stock) with
dividends in arrears in an amount equal to six quarterly
dividends thereon, voting as a class, irrespective of series, shall have the
right to elect two directors.


 


(ii)           During any default period,
such voting right of the holders of Series A Junior Participating
Preferred Stock may be exercised initially at a special meeting called pursuant
to Section 3(C)(iii) or at any annual meeting of stockholders,
and thereafter at annual meetings of stockholders, provided
that such voting right shall not be exercised unless the holders of 10% in number
of shares of Preferred Stock outstanding shall be present in person or by
proxy.  The absence of a quorum of the
holders of Common Stock shall not affect the exercise by the holders of
Preferred Stock of such voting right.  At any meeting at which the holders of
Preferred Stock shall exercise such voting right initially during an existing
default period, they shall have the right, voting as a class, to elect
directors to fill such vacancies, if any, in the Board of Directors as may then
exist up to 


 


A-3

















 


two directors or, if such right is exercised at an
annual meeting, to elect two directors. 
If the number that may be so elected at any special meeting does
not amount to the required number, the holders of Preferred Stock shall have
the right to make such increase in the number of directors as shall be
necessary to permit the election by them of the required number.  After the holders of Preferred Stock shall
have exercised their right to elect directors in any default period and during
the continuance of such period, the number of directors shall not be increased
or decreased except by vote of the holders of Preferred Stock as herein
provided or pursuant to the rights of any equity securities ranking senior to or pari  passu with the Series A
Junior Participating Preferred Stock.


 


(iii)          Unless the holders of Preferred Stock shall, during an existing default period, have previously
exercised their right to elect directors, the Board of Directors may order, or
any stockholder or stockholders owning in the aggregate not less than 10% of
the total number of shares of Preferred Stock outstanding, irrespective of series, may
request, the calling of a special meeting of the holders of Preferred Stock,
which meeting shall thereupon be called by the Board of Directors.  Notice of such meeting and of any annual
meeting at which holders of Preferred
Stock are entitled to vote pursuant to this Section 3(C)(iii) shall
be given to each holder of record of Preferred Stock by mailing a copy of such
notice to such holder at such holder’s last address as the same appears on the
books of the Corporation.  Such meeting
shall be called for a time not earlier than 20 days and not later than 60 days
after such order or request or in default of the calling of such meeting within
60 days after such order or request, such meeting may be called on similar notice
by any stockholder or stockholders owning in the aggregate not less than 10% of
the total number of shares of Preferred Stock outstanding.  Notwithstanding the provisions of this Section 3(C)(iii),
no such special meeting shall be called during the period
within 60 days immediately preceding the date fixed for the next annual
meeting of the stockholders.


 


(iv)          In any default
period, the holders of Common Stock, and other classes of stock of the
Corporation if applicable, shall continue to be entitled to elect the whole
number of directors until the holders of Preferred
Stock shall have exercised their right to elect two directors voting as a
class, after the exercise of which right (x) the directors so elected by
the holders of Preferred Stock shall continue in office until their successors
shall have been elected by such holders or until the expiration of the default
period, and (y) any vacancy in the Board of Directors may (except as
provided in Section 3(C)(ii)) be filled by
vote of a majority of the remaining directors theretofore elected by the holders of the class of stock that elected the director
whose office shall have become vacant. 
References in this Section 3(C) to directors elected by
the holders of a particular class of stock shall include directors elected by
such directors to fill vacancies as provided in clause (y) of the
foregoing sentence.


 


(v)           Immediately upon the
expiration of a default period, (x) the right of the holders of Preferred Stock as a class to elect directors shall cease, (y) the
term of any directors elected by the holders of Preferred Stock as a class
shall terminate, and (z) the number of directors shall be such number as
may be provided for in the Certificate of Incorporation or Bylaws irrespective
of any increase made pursuant to the provisions of Section 3(C)(ii) (such
number being subject, however, to change thereafter in any manner 


 


A-4

















 


provided by law or in the Certificate of Incorporation or Bylaws).  Any vacancies in the Board of Directors
effected by the provisions of clauses (y) and
(z) in the preceding sentence may be filled by a majority of the
remaining directors.


 


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


 


Section 4.               Certain Restrictions.


 


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


 


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


 


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


 


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


 


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


 


(B)           The Corporation shall not
permit any subsidiary of the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless the 


 


A-5

















 


Corporation
could, under Section 4(a), purchase or otherwise acquire such
shares at such time and in such manner.


 


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


 


Section 6.               Liquidation, Dissolution, or
Winding Up.


 


(A)          Upon any liquidation
(voluntary or otherwise), dissolution, or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution, or winding up) to the
Series A Junior Participating Preferred Stock unless,
prior thereto, the holders of shares of Series A Junior Participating
Preferred Stock shall have received an amount equal to $1,000 per share of Series A
Junior Participating Preferred Stock, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment (the “Series A Liquidation
Preference”).  Following the payment
of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to
the holders of shares of Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Common Stock shall have
received an amount per share (the “Common Adjustment”) equal to the
quotient obtained by dividing (i) the Series A  Liquidation Preference by (ii) 1,000 (as appropriately adjusted as set
forth in Section 6(C) below to reflect such events as stock
splits, stock dividends, and recapitalizations with respect to the Common
Stock) (such number in clause (ii), the “Adjustment Number”).  Following the payment of the full amount of
the Series A  Liquidation Preference
and the Common Adjustment in respect of all outstanding shares of Series A
Junior Participating Preferred Stock and Common Stock, respectively, holders of
Series A Junior Participating Preferred Stock and holders of shares of
Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to one
with respect to such Preferred Stock and Common Stock, on a per share basis,
respectively.


 


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


 


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


 


A-6

















 


fraction,
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.


 


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


 


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


 


Section 9.               Ranking.  The Series A Junior Participating
Preferred Stock shall rank junior to all other series of the Corporation’s
Preferred Stock as to the payment of dividends and the distribution of assets,
unless the terms of any such series shall provide otherwise.


 


Section 10.             Amendment.  At any time when any shares of Series A
Junior Participating Preferred Stock are outstanding, neither the Certificate
of Incorporation of the Corporation nor this Certificate of Designation shall
be amended in any manner that would materially alter or change the powers,
preferences, or special rights of the Series A Junior Participating
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of two-thirds or more of the outstanding shares of Series A
Junior Participating Preferred Stock, voting separately as a class.


 


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


 


[REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK]


 


A-7

















 


IN WITNESS WHEREOF, THQ Inc.
has caused this Amended and Restated Certificate of Designation to be signed by
the undersigned this        day of May, 2010.


 


 


	
   

  	
  THQ
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


A-8






 












 


Exhibit B


 


FORM OF RIGHTS CERTIFICATE


 


	
  Certificate
  No. R-

  	
   

  	
  Rights

  



 


NOT EXERCISABLE AFTER MAY 12,
2013 OR EARLIER IF (A) REDEEMED OR EXCHANGED BY THE COMPANY OR (B) THE
SECTION 382 RIGHTS AGREEMENT IS TERMINATED PRIOR TO MAY 12, 2013.  THE RIGHTS ARE SUBJECT TO REDEMPTION AND EXCHANGE
AT THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE SECTION 382 RIGHTS
AGREEMENT.  UNDER CERTAIN CIRCUMSTANCES AS
SET FORTH IN THE SECTION 382 RIGHTS AGREEMENT, RIGHTS THAT ARE OR WERE
BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE SECTION 382 RIGHTS
AGREEMENT) MAY BECOME NULL AND VOID.


 


RIGHTS CERTIFICATE


 


 


THQ 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 Section 382 Rights Agreement, dated as
of May 12, 2010 (the “Rights Agreement”), between THQ Inc., a Delaware corporation
(the “Company”), and Computershare
Trust Company, N.A., a federally chartered trust company (the “Rights Agent”),
to purchase from the Company at any time after the Distribution Date (as such
term is defined in the Rights Agreement) and prior to 5:00 p.m. (Massachusetts
time) on the Expiration Date (as such term is defined in the Rights Agreement)
at the office or offices of the Rights Agent designated for such purpose, or
its successor as Rights Agent, one one-thousandth of a fully paid nonassessable
share of Series A Junior Participating Preferred Stock, par value $.01 per
share (the “Preferred
Stock”), of the Company, at a purchase price of $35.00 per one one-thousandth
of a share of Preferred Stock (the “Purchase Price”), upon presentation
and surrender of this Rights Certificate with the Form of Election to
Purchase and related Certificate duly executed.  If this Rights Certificate is exercised in
part, the holder will be entitled to receive upon surrender hereof another
Rights Certificate or Rights Certificates for the number of whole Rights not
exercised.  The number of Rights
evidenced by this Rights Certificate (and the number of one one-thousandths of
a share of Preferred Stock which may be purchased upon exercise thereof) set
forth above, and the Purchase Price set forth above, are the number and
Purchase Price as of the date of the Rights Agreement, based on the shares of Preferred
Stock as constituted at such date.  All
capitalized terms used herein but not defined herein shall have the meanings
ascribed to such terms in the Rights Agreement.


 


As provided in the Rights
Agreement, the Purchase Price, the number or kind of shares of Preferred Stock
(or other securities, as the case may be) which may be purchased upon the
exercise of the Rights evidenced by this Rights Certificate and the number of
Rights outstanding are subject to adjustment upon the occurrence of certain
events.


 


B-1

















 


This Rights Certificate is
subject to all of the terms, provisions and conditions of the Rights Agreement,
which terms, provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement reference is
hereby made for a full description of the rights, limitations of rights,
obligations, duties and immunities of the Rights Agent, the Company and the
holders of the Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of the Rights under the
circumstances specified in the Rights Agreement.  Copies of the Rights Agreement are on file at
the principal executive offices of the Company and can be obtained from the
Company without charge upon written request therefor.


 


Pursuant to the Rights
Agreement, from and after the occurrence of any Person becoming an Acquiring
Person, any Rights that are beneficially owned by (i) any Acquiring Person
(or any Affiliate or Associate of any Acquiring Person), (ii) a transferee
of any Acquiring Person (or any such Affiliate or Associate) who becomes a
transferee after the occurrence of such Person becoming an Acquiring Person or (iii) a
transferee of any Acquiring Person (or any such Affiliate or Associate) who
became a transferee prior to or concurrently with such Person becoming an
Acquiring Person pursuant to either (a) a transfer from the Acquiring
Person (or any such Affiliate or Associate) to holders of its equity securities
or to any Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding, written or otherwise, regarding the transferred
Rights or (b) a transfer that the Board of Directors of the Company has
determined is part of a plan, arrangement or understanding which has the
purpose or effect of avoiding certain provisions of the Rights Agreement, will
be null and void without any further action and any holder of such Rights will
thereafter have no rights whatsoever with respect to such Rights, whether under
any provision of the Rights Agreement or otherwise.  From and after the occurrence of any Person
becoming an Acquiring Person, no Rights Certificate will be issued that
represents Rights that are or have become void pursuant to the provisions of
the Rights Agreement, and any Rights Certificate delivered to the Rights Agent
that represents Rights that are or have become void pursuant to the provisions
of the Rights Agreement will be cancelled.


 


This Rights Certificate,
with or without other Rights Certificates, may be exchanged for another Rights
Certificate or Rights Certificates entitling the holder to purchase a like
number of one one-thousandths of a share of Preferred Stock (or other
securities, as the case may be) as the Rights Certificate or Rights
Certificates surrendered entitled such holder (or former holder in the case of
a transfer) to purchase, upon presentation and surrender hereof at the office
or offices of the Rights Agent designated for such purpose, with the Form of
Assignment (if appropriate) and the related Certificate duly executed.


 


Subject to the provisions of
the Rights Agreement, the Rights evidenced by this Rights Certificate may be
redeemed by the Company at its option at a redemption price of $0.0001 per
Right at any time prior to the occurrence of a Section 11(a)(ii) Event.  In addition, following the time any person
becomes an Acquiring Person, the Company may at its option exchange the Rights,
in whole or in part, for shares of common stock, Preferred Stock or other
preferred stock having equivalent rights, privileges and preferences as the
Preferred Stock.  The Rights Agreement
may be supplemented and amended by the Company, as provided therein.


 


B-2

















 


The Company is not required
to issue fractional shares of Preferred Stock (other than fractions which are
integral multiples of one one-thousandth of a share of Preferred Stock, which
may, at the option of the Company, be evidenced by depositary receipts) or
other securities issuable, as the case may be, upon the exercise of any Right
or Rights evidenced hereby.  In lieu of
issuing fractional shares of Preferred Stock or other securities, the Company
may make a cash payment, as provided in the Rights Agreement.


 


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


 


This Rights Certificate will
not be valid or obligatory for any purpose until it has been countersigned by
the Rights Agent.


 


[REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK]


 


B-3

















 


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


 


Dated
as of                                       .


 


 


	
   

  	
  THQ INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  Countersigned:

  	
   

  
	
   

  	
   

  
	
  COMPUTERSHARE TRUST COMPANY, N.A.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signature

  	
   

  	
   

  



 


B-4

















 


[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)

  



 


	
   

  
	
   

  
	
  (Please
  spell out and include in numerals the

  number of Rights being transferred by this Assignment)

  



 


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


 


Dated:                                      ,


 


 


	
   

  	
   

  
	
   

  	
  Signature

  
	
   

  	
   

  
	
  Signature
  Guaranteed:

  	
   

  



 


B-5

















 


Certificate


 


The undersigned hereby
certifies by checking the appropriate boxes that:


 


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


 


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


 


	
  Dated:
                                        ,

  	
   

  
	
   

  	
  Signature

  



 


Signature
Guaranteed:


 


 


NOTICE


 


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


 


B-6

















 


[Form of
Reverse Side of Rights Certificate — continued]


 


FORM OF
ELECTION TO PURCHASE


 


(To
be executed by the registered holder if such holder desires to 

exercise any or all Rights evidenced by the Rights Certificate.)


 


To:  THQ Inc.:


 


The undersigned hereby
irrevocably elects to exercise                                                         
(                              )
Rights evidenced by this Rights Certificate to purchase the Preferred Shares
issuable upon the exercise of the Rights (or such other securities of the
Company or of any other person that may be issuable upon the exercise of the
Rights) and requests that certificates for such shares be issued in the name of
and delivered to or that such shares be credited to the book-entry account of:


 


	
   

  
	
  (Please
  print 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
  print social security or other identifying number)

  
	
   

  
	
   

  
	
   

  
	
  (Please
  print name and address)

  



 


 


Dated:                                          ,


 


 


	
   

  	
   

  
	
   

  	
  Signature

  
	
   

  	
   

  
	
  Medallion
  Signature Guaranteed:

  	
   

  



 


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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 Acquiring Person (as such terms are defined pursuant to the Rights
Agreement); and


 


(2) after due inquiry
and to the best knowledge of the undersigned, he, she, or 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 an
Acquiring Person.


 


	
  Dated:
                                        ,             

  	
   

  
	
   

  	
  Signature

  



 


Medallion
Signature Guaranteed:


 


 


NOTICE


 


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


 


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Exhibit C


 


UNDER CERTAIN CIRCUMSTANCES AS SET FORTH IN
THE SECTION 382 RIGHTS AGREEMENT, RIGHTS THAT ARE OR WERE BENEFICIALLY OWNED
BY AN ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS
SUCH TERMS ARE DEFINED IN THE SECTION 382 RIGHTS AGREEMENT) MAY BECOME
NULL AND VOID.


 


SUMMARY
OF RIGHTS


 


On May 11, 2010, the
Board of Directors (the “Board”) of THQ Inc., a Delaware corporation (the “Company”), declared a dividend of one
preferred share purchase right (each, a “Right”) for each outstanding
share of common stock, par value $.01, of the Company.  The dividend is payable on May 24, 2010 to
our stockholders of record as of the close of business on May 24, 2010.


 


This summary of rights provides
only a general description and should be read together with the Section 382
Rights Agreement, dated as of May 12, 2010, between the Company and Computershare
Trust Company, N.A., a federally chartered trust company, as Rights Agent (the “Rights
Agreement”).  All capitalized terms
used herein but not defined herein shall have the meanings ascribed to such
terms in the Rights Agreement.  Upon
written request, the Company will provide a copy of the Rights Agreement free
of charge to any of its stockholders.


 


Our Board adopted the Rights
Agreement in an effort to protect the value of net operating loss and tax
credit carryforwards (“NOLs”).  We
have substantial NOLs.  Under the
Internal Revenue Code and regulations promulgated by the U.S. Treasury
Department, we may “carry forward” these NOLs in certain circumstances to
offset any current and future taxable income and thus reduce our federal income
tax liability, subject to certain requirements and restrictions.  To the extent that the NOLs do not otherwise
become limited, we believe that we will be able to carry forward a significant
amount of NOLs, and therefore these NOLs could be a substantial asset to us.  However, if we experience an “ownership change,”
as defined in Section 382 of the Internal Revenue Code, our ability to use
the NOLs and the timing of the usage of the NOLs could be substantially limited,
which could significantly impair the value of the NOLs.  A company experiences an “ownership change”
for tax purposes if the percentage of stock owned by its “5-percent shareholders”
(as defined for tax purposes) increases by more than 50 percentage points over
a rolling three-year period.


 


The Rights Agreement is
intended to deter any person or group from acquiring beneficial ownership of 4.9%
or more of our outstanding common stock, as well as to deter any person who
already beneficially owned 4.9% or more of our outstanding common stock as of
the close of business on May 12, 2010 from acquiring additional shares of our
outstanding common stock, without the approval of the Independent Director
Evaluation Committee of our Board (a committee consisting of independent and
disinterested directors, who shall initially be the members of the
Nominating/Corporate Governance Committee of our Board).  Beneficial 


 


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ownership
under the Rights Agreement is based generally on certain rules under Section 382
of the Internal Revenue Code and under certain federal securities laws.  Stockholders who beneficially own 4.9% or
more of our outstanding common stock as of the close of business on May 12,
2010 will not trigger the Rights Agreement so long as they do not acquire additional
shares of common stock representing one-tenth of one percent (0.1%) of our
common stock then outstanding at a time when they still beneficially own 4.9%
or more of our outstanding common stock.  Subject to the provisions of the Rights
Agreement, the Independent Director Evaluation Committee may, in its sole
discretion and upon receipt of an advance waiver request from a stockholder who
desires to effect an acquisition of common stock that would otherwise trigger
the Rights Agreement, exempt such a transaction from triggering the Rights
Agreement.


 


The Rights.  Our Board authorized the issuance of one Right
per each outstanding share of our common stock payable to our stockholders of
record as of the close of business on May 24, 2010.  One Right will also be issued together with
each share of our common stock issued after May 24, 2010 but before the
Distribution Date (as defined below) and, in certain circumstances, after the
Distribution Date.  Subject to the terms,
provisions and conditions of the Rights Agreement, if the Rights become
exercisable, each Right would initially represent the right to purchase from us
one one-thousandth of a share of our Series A Junior Participating
Preferred Stock, par value $.01 per share (the “Preferred Stock”) for a purchase
price of $35.00 (the “Purchase Price”).  If
issued, each such fractional share of Preferred Stock would give the
stockholder approximately the same dividend, voting and liquidation rights as
does one share of our common stock.  However,
prior to exercise, a Right does not give its holder any rights as a stockholder
of the Company, including, without limitation, any dividend, voting or
liquidation rights.


 


Initial Exercisability.  The Rights will not be exercisable until the
earlier of (i) ten business days after a public announcement that a person
has become an “Acquiring Person” by acquiring beneficial ownership of
4.9% or more of our outstanding common stock (or, in the case of a person that
had beneficial ownership of 4.9% or more of our outstanding common stock as of
the close of business on May 12, 2010, by obtaining beneficial ownership
of additional shares of our common stock representing one-tenth of one percent
(0.1%) of our common stock then outstanding) and (ii) ten business days (or
such later date as may be specified by the Board prior to such time as any
person becomes an Acquiring Person) after the commencement of a tender or
exchange offer by or on behalf of a person that, if completed, would result in
such person becoming an Acquiring Person.


 


We refer to the date that
the Rights become exercisable as the “Distribution Date.”  Until the Distribution Date, our common stock
certificates or the ownership statements issued with respect to uncertificated
shares of common stock will evidence the Rights.  Any transfer of shares of common stock prior
to the Distribution Date will also constitute a transfer of the associated Rights.
 After the Distribution Date, separate
rights certificates will be issued and the Rights may be transferred other than
in connection with the transfer of the underlying shares of common stock unless
and until our Board has determined to effect an exchange pursuant to the Rights
Agreement (as described below).


 


Flip-In Event.  In the event that a person becomes an
Acquiring Person, each holder of a Right, other than Rights that are or, under
certain circumstances, were beneficially owned by the 


 


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Acquiring
Person (which will thereupon become void), will thereafter have the right to
receive, upon exercise of a Right and payment of the Purchase Price, a number
of shares of our common stock having a market value of two times the Purchase
Price.


 


Redemption.  At any time
until a person becomes an Acquiring Person, the Board may redeem the Rights in
whole, but not in part, at a price of $0.0001 per Right (the “Redemption Price”).  The redemption of the Rights may be made
effective at such time, on such basis and with such conditions as the Board in
its sole discretion may establish. 
Immediately upon any redemption of the Rights, the right to exercise the
Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.


 


Exchange.  At any time after a person becomes an
Acquiring Person, the Board may exchange the Rights (other than Rights that have
become void), in whole or in part, at an exchange ratio of one share of common
stock, or a fractional share of Preferred Stock (or of a share of a similar
class or series of the Company’s preferred stock having similar rights,
preferences and privileges) of equivalent value, per Right (subject to
adjustment).  Immediately upon an
exchange of any Rights, the right to exercise such Rights will terminate and
the only right of the holders of Rights will be to receive the number of shares
of common stock (or fractional share of Preferred Stock or of a share of a
similar class or series of the Company’s preferred stock having similar rights,
preferences and privileges) equal to the number of such Rights held by such
holder multiplied by the exchange ratio.


 


Expiration.  The Rights and the Rights Agreement will
expire on the earliest of (i) May 12, 2013, (ii) the time at
which the Rights are redeemed pursuant to the Rights Agreement, (iii) the
time at which the Rights are exchanged in full pursuant to the Rights Agreement,
(iv) the effective date of the repeal of Section 382 of the Internal
Revenue Code, or any successor provision or replacement provision, if the Board
(upon the recommendation of the Independent Director Evaluation Committee) determines
that the Rights Agreement is no longer necessary for the preservation of Tax
Benefits and (v) the beginning of a taxable year of the Company for which
the Board (upon the recommendation of the Independent Director Evaluation Committee)
determines that the Company has or will have no Tax Benefits.


 


Anti-Dilution Provisions.  Our Board may adjust the Purchase Price, the
number of shares of Preferred Stock or other securities or assets issuable and
the number of outstanding Rights to prevent dilution that may occur as a result
of certain events, including among others, a stock dividend, a stock split or a
reclassification of the Preferred Stock or our common stock.  With certain exceptions, no adjustments to the
Purchase Price will be required until cumulative adjustments amount to at least 1% of the Purchase Price.


 


Amendments.  For so long as the Rights are redeemable, our
Board may supplement or amend any provision of the Rights Agreement in any
respect without the approval of the holders of the Rights.  From and after the time the Rights are no
longer redeemable, our Board may supplement or amend the Rights Agreement only
to cure an ambiguity, to alter time period provisions, to correct inconsistent
provisions, or to make any additional changes to the Rights Agreement which the
Company may deem necessary or desirable, but only to the extent that those
changes do not impair or adversely affect any Rights holder (other than an
Acquiring Person or any Affiliate or Associate of an Acquiring Person or
certain of their transferees) and do 


 


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not
result in the Rights again becoming redeemable or the Rights Agreement again
becoming amendable other than in accordance with this sentence.


 


Administration.  Our Board shall have the exclusive power and
authority to administer the Rights Agreement and to exercise all rights and
powers specifically granted to the Board or to the Company.  The Board may delegate all or any portion of
its power and authority to administer the Rights Agreement and to exercise the
rights and powers under the Rights Agreement to a committee of and appointed by
the Board.  However, at any time after a
person becomes an Acquiring Person, the Independent Director Evaluation
Committee shall have the sole power and authority to administer the Rights
Agreement and to exercise the rights and powers thereunder.


 


Periodic Review.  The Independent Director Evaluation Committee
will at least once every fiscal year review and evaluate the Tax Benefits and
the risk of an “ownership change,” as defined in Section 382 of the
Internal Revenue Code.  Following each
such review, the Independent Director Evaluation Committee will communicate its
conclusions to the full Board, including any recommendation in light thereof as
to whether the Rights Agreement should be modified or the Rights should be
terminated.


 


The Company has filed a
copy of the Rights Agreement with the Securities and Exchange Commission as an
exhibit to a Form 8-A filed on May     , 2010.  In addition, a copy of the Rights Agreement
is available free of charge from the Company. 
This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement.


 


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