RIGHTS AGREEMENTRights Agreement dated as of October 13, 2000, between ATMI, Inc., a Delaware corporation (the“Company”), and Fleet National Bank (the “Rights Agent”).R E C I T A L SThe Board of Directors of the Company has authorized and declared the payment of a dividend of onepreferred share purchase right (the “Right”) for each share of Common Stock (as defined in Section1) outstanding on the Record Date (as defined in Section 1) and has authorized the issuance of oneRight for each share of Common Stock issued between the Record Date and the Distribution Date (assuch terms are defined in Section 1), and, in certain cases, following the Distribution Date. EachRight represents, as of the Record Date, the right to purchase one one-hundredth of a share ofPreferred Stock (as defined in Section 1) upon the terms and subject to the conditions hereinafterset forth.NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth in thisAgreement, the parties hereby agree as follows:Section 1. Certain Definitions. For purposes of this Agreement, the following terms have themeanings indicated:(a) (i) “Acquiring Person” means any Person who or which, together with all Affiliates andAssociates of such Person, is (or has previously been, at any time after the date of thisAgreement, whether or not such Person(s) continues to be) the Beneficial Owner of 15% or more ofthe Outstanding Common Stock (as defined in this Section 1). However, “Acquiring Person” shall notinclude any Exempt Person.(ii) A Person does not become an “Acquiring Person” solely as the result of (A) an acquisition ofCommon Stock by the Company or any of its Subsidiaries which, by reducing the number of sharesoutstanding, increases the proportionate number of shares beneficially owned by such Person to 15%or more of the Outstanding Common Stock, or (B) such Person becoming the Beneficial Owner of 15% ormore of the Outstanding Common Stock solely as a result of an Exempt Event; provided, however, thatif a Person becomes theBeneficial Owner of 15% or more of the Outstanding Common Stock solely by reason of such a shareacquisition by the Company or the occurrence of such an Exempt Event and such Person shall, afterbecoming the Beneficial Owner of such Common Stock, become the Beneficial Owner of additionalshares of Common Stock constituting 1% or more of the then Outstanding Common Stock by any meanswhatsoever (other than as a result of the subsequent occurrence of anExempt Event, a stock dividend or a subdivision of the Common Stock into a larger number of sharesor a similar transaction), then such Person shall be deemed to be an “Acquiring Person”; or(C) the inadvertent acquisition of beneficial ownership of15% or more of the Common Stock of the Company if the Board of Directors determines in good faiththat such acquisition was inadvertent and such Person immediately divests itself of a sufficientnumber of shares of Common Stock so that such Person could no longer be an “Acquiring Person”; or(D) if such Person is an Institutional Investor, such Institutional Investor becoming theBeneficial Owner of 15% or more of the Outstanding Common Stock solely by reason of suchInstitutional Investor’s Regular Trading Activities; provided, however, that if an InstitutionalInvestor becomes the Beneficial Owner of 20% or more of the then Outstanding Common Stock otherthan solely as the result of the events described in clause (B) or (C) of this Section 1(a)(ii)(and in the case of clause (C), such Institutional Investor immediately divests itself of asufficient number of shares of Common Stock as that it is no longer the Beneficial Owner of 20% ormore of the then Outstanding Common Stock), then such Institutional Investor shall be deemed an“Acquiring Person.”
 
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(b) “Affiliate” of a Person has the meaning given to such term inRule 12b-2 of the General Rules and Regulations under the Exchange Act, as in effect on the date ofthis Agreement.(c) “Associate” of a Person has the meaning given to such term in Rule 12b-2 of the General Rulesand Regulations under the Exchange Act, as in effect on the date of this Agreement.(d) Except as provided below, a Person is the “BeneficialOwner” of, and “beneficially owns,” any securities:(i) which such Person or any Affiliate or Associate of such Person beneficially owns,directly or indirectly;(ii) which such Person or any Affiliate or Associate of such Person has, directly orindirectly, the right or obligation (whether or not then exercisable or effective) toacquire pursuant to any agreement, arrangement or understanding (whether or not inwriting), or upon the exercise of conversion rights, exchange rights, rights (otherthan these Rights), warrants or options or otherwise; provided, however, that a Personwill not be deemed the Beneficial Owner of, or to beneficially own, securities tenderedpursuant to a tender or exchange offer made by or on behalf of such Person or anyAffiliate or Associate of such Person until such tendered securities are accepted for purchase orexchange; and provided further, that prior to the occurrence of a Triggering Event, aPerson will not be deemed the Beneficial Owner of, or to beneficially own, securitiesobtainable upon exercise of the Rights;(iii) which such Person or any Affiliate or Associate of such Person has, directly orindirectly, the right (whether or not then exercisable or effective) to vote, or todirect the voting of, pursuant to any agreement, arrangement or understanding (whether ornot in writing); provided, however, that a Person shall not be deemed the BeneficialOwner of, or to beneficially own, any security pursuant to this clause (iii) if theagreement, arrangement or understanding to vote, or to direct the voting of, suchsecurity (A) arises solely from a revocable proxy or consent given in response to apublic proxy or consent solicitation made pursuant to, and in accordance with, theExchange Act and applicable rules and regulations thereunder and (B) is not also thenreportable on Schedule 13D under the Exchange Act (or any comparable or successorschedule or report);
 
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(iv) which such Person or any Affiliate or Associate of such Person has “beneficialownership” of (as determined pursuant to Rule 13d-3 of the General Rules and Regulationsunder the Exchange Act or any comparable or successor provision); or(v) which are beneficially owned, directly or indirectly, by any other Person or anyAffiliate or Associate of such other Person with whom such Person or any Affiliate orAssociate of such Person has any agreement, arrangement or understanding (whether or not inwriting) for the purpose of acquiring, holding, voting (except pursuant to a revocable proxyas described in subparagraph (iii) of this Section 1(d)) or disposing of any securities ofthe Company.Nothing in this Section 1(d) causes a Person engaged in business as an underwriter of securities tobe the “Beneficial Owner” of, or to “beneficially own,” any securities acquired through suchPerson’s participation in good faith in a firm commitment underwriting until the expiration of 40days after the date of such acquisition.Notwithstanding anything in this Agreement to the contrary, for purposes of this Agreement, noPerson is to be treated as the “Beneficial Owner” of, or to “beneficially own,” any securitiesowned by any other Person that is an Exempt Person.(e) “Board of Directors” means the Board of Directors of the Company, as the same is constitutedfrom time to time, or if the Company ceases to exist as a result of a Business Combination orotherwise, the board of directors of the Company’s successor, if any.(f) “Business Combination” has the meaning set forth in Section 13(a)(g) “Business Day” means any day other than a Saturday, Sunday or a day on which bankinginstitutions in the State of New York are authorized or obligated by law or executive order toclose.(h) “Close of Business” on any given date means 5:00 p.m., New York, New York time, on such date;provided, however, that if such date is not a Business Day it shall mean 5:00 p.m., New York, NewYork time, on the next succeeding Business Day.(i) “Common Stock” when used in any context applicable prior to a Business Combination means thecommon stock, par value $.01 per share, of the Company (as the same may be changed by reason of anycombination, subdivision or reclassification of the Common Stock). “Common Stock” when used withreference to any Person (other than the Company prior to a Business Combination) mean shares ofcapital stock of such Person (if such Person is a corporation) of any class or series, or units ofequity interests in such Person (if such Person is not a corporation) of any class or series, theterms of which shares or units do not limit (as a fixed amount and not merelyin proportional terms) the amount of dividends or income payable or distributable on such shares or units or theamount of property or assets distributable on such shares or units upon any voluntary orinvoluntary liquidation, dissolution or winding up of such Person and do not provide that suchshares or units are subject to redemption at the option of such Person, or any shares of capitalstock or units of equity interests into which the foregoing shall be reclassified or changed;provided, however, that if at any time there are more than one such class or series of capitalstock of or equity interests in such Person, “Common Stock” of such Person will include all suchclasses and series substantially in the proportion of the total number of shares or other units ofeach such class or series outstanding at such time.
 
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(j) “Current Market Price” per share of Common Stock, Preferred Stock or Equivalent Shares on anydate is the average of the daily closing prices per share of such Common Stock, Preferred Stock orEquivalent Shares for the 30 consecutive Trading Days (as defined below in this Section 1(j))ending on the last Trading Day immediately prior to such date for the purpose of any computationunder this Agreement except computations made pursuant to Section 11(a)(iii), and for the 10consecutive Trading Days immediately following such date for the purpose of any computation underSection 11(a)(iii); provided, however, that in the event that the Current Market Price per share ofCommon Stock, Preferred Stock or Equivalent Shares is determined during a period following theannouncement by the issuer of such Common Stock, Preferred Stock or Equivalent Shares of (i) adividend or distribution on such Common Stock, Preferred Stock or Equivalent Shares other than aregular quarterly cash dividend, or (ii) any subdivision, combination or reclassification of suchCommon Stock, Preferred Stock or Equivalent Shares, and prior to the expiration of 30 Trading Daysafter the “ex-dividend” date for such dividend or distribution or the record date for suchsubdivision, combination or reclassification, then, and in each such case, the “Current MarketPrice” shall be appropriately adjusted to take into account such dividend, distribution,subdivision, combination or reclassification. The closing price for each Trading Day shall be thelast sale price, regular way, on such day, or, in case no such sale takes place on such day, theaverage of the closing bid and asked prices, regular way, on such day, in either case as reportedin the principal consolidated transaction reporting system with respect to securities listed oradmitted to trading on the New York Stock Exchange (“NYSE”) or, if the Common Stock, PreferredStock or Equivalent Shares are not listed or admitted to trading on the NYSE, as reported in theprincipal consolidated transaction reporting system with respect to securities listed on theprincipal United States national securities exchange on which the Common Stock, Preferred Stock orEquivalent Shares are listed or admitted to trading or, if the Common Stock, Preferred Stock orEquivalent Shares are not listed or admitted to trading on any United States national securitiesexchange, the last quoted sale price on such day or, if not so quoted, the average of the high bidand low asked prices in the over-the-counter market on such day, as reported by the NationalAssociation of Securities Dealers, Inc. Automated Quotation System (“NASDAQ”) or such other systemthen in use. If on any such day the Common Stock, Preferred Stock or Equivalent Shares are notquoted by any such system, the average of the closing bid and asked prices on such day as furnishedby a professional market maker making a market in the Common Stock, Preferred Stock or EquivalentShares selected by a majority of the Board of Directors shall be used (which selection shall befinal, binding and conclusive for all purposes). If on such day
 
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no such market maker is making amarket, the fair market value of such shares on such day as determined in good faith by a majorityof the Board of Directors or the Board of Directors of the issuer of such Common Stock, Preferred Stock orEquivalent Shares must be used, which determination must be described in a statement filed with theRights Agent and shall be final, binding and conclusive for all purposes. The term “Trading Day”means a day on which the principal United States national securities exchange on which the CommonStock, Preferred Stock or Equivalent Shares are listed or admitted to trading is open for thetransaction of business or, if the Common Stock, Preferred Stock of Equivalent Shares are notlisted or admitted to trading on any United States national securities exchange, but are traded inthe over-the-counter market and reportedby NASDAQ, then any day for which NASDAQ reports the high bid and low asked prices in theover-the-counter market, or if the Common Stock, Preferred Stock or Equivalent Shares are nottraded in the over-the-counter market and reported by NASDAQ, then a Business Day. If the CommonStock, Preferred Stock or Equivalent Shares have not been so listed or admitted to trading for 30or more Trading Days or traded in the over-the-counter market and reported by NASDAQ for 30 ormore Trading Days, “Current Market Price” per share means the fair market value per share asdetermined in good faith by a majority of the Board of Directors, whose determination must bedescribed in a statement filed with the Rights Agent and shall be final, binding and conclusive forall purposes.(k) “Distribution Date” means the earlier of (i) the Stock Acquisition Date, and (ii) the tenthBusiness Day, after the Tender Offer Date. The Board of Directors of the Company may, at itselection, defer the date set forth in clause (ii) of the preceding sentence to a specified laterdate or to an unspecified later date to be determined by a subsequent action or event.(l) “Equivalent Shares” means any class or series of capital stock of the Company, other than thePreferred Stock, which is entitled to participate on a proportional basis with the Preferred Stockin dividends and other distributions, including distributions upon the liquidation, dissolution orwinding up of the Company. In calculating the number of any class or series of Equivalent Sharesfor purposes of Section 11, the number of shares, or fractions of a share, of such class or seriesof capital stock that is entitled to the same dividend or distribution as a whole share ofPreferred Stock shall be deemed to be one share.(m) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successorstatute.(n) “Exchange Date” means the time at which the Rights are exchanged pursuant to Section 11(a)(iv).(o) “Exempt Event” means with respect to any Person, the acquisition by such Person of BeneficialOwnership of Common Stock of the Company solely as a result of the occurrence of a Triggering Eventand the effect of such Triggering Event on the last proviso of clause (ii) of the definition ofBeneficial Owner, other than a Triggering Event in which such Person becomes an Acquiring Person.
 
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(p) “Exempt Person” means (i) the Company, (ii) any Subsidiary of the Company, (iii) any employeebenefit plan of the Company or of any Subsidiary of the Company, and (iv) any Person holding CommonStock for any such employee benefit plan or for employees of the Company or of any Subsidiary ofthe Company pursuant to the terms of any such employee benefit plan.(q) “Expiration Date” means the Close of Business on October 12, 2010.(r) “Institutional Investor” means a Person who is principally engaged in the business of managinginvestment funds for unaffiliated securities investors and, as part of such Person’s duties asagent for fully managed accounts, holds or exercises voting or dispositive power over shares ofCommon Stock.(s) “Outstanding Common Stock” shall be determined in accordance with the last sentence of Rule13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act (or any successor orcomparable provision); provided, however, that any such calculation made for purposes ofdetermining the particular percentage of outstanding shares of Common Stock of which any Person isthe Beneficial Owner shall also include any such other securities not then actually issued andoutstanding which such Person would be deemed to be the Beneficial Owner of, or to “beneficiallyown,” pursuant to Section 1(d).(t) “Person” means any individual, firm, corporation, limited liability company, partnership,joint venture, association, trust, unincorporated organization or other entity, and shall includeany “group” as that term is used in Rule 13d-5(b) of the General Rules and Regulations under theExchange Act (or any successor provision).(u) “Preferred Stock” means the Company’s Junior Participating Preferred Stock, par value $.01 pershare, having the rights and preferences set forth in the Certificate of Designation, Preferencesand Rights of Series A Junior Participating Preferred Stock attached hereto as Exhibit A.(v) “Principal Party” means (i) in the case of any Business Combination described in clause (i),(ii) or (iii) of the first sentence of Section 13(a), (A) the Person that is the issuer of anysecurities into which shares of Common Stock of the Company are converted or for which they areexchanged in such Business Combination or, if there is more than one such issuer, the issuer of theCommon Stock which has the greatest aggregate market value or (B) if no securities are so issued,the Person that survives or results from such Business Combination or, if there is more than onesuch Person, the Person the Common Stock of which has the greatest aggregate market value; and (ii)in the case of any Business Combination described in clause (iv) of the first sentence in Section13(a), the Person that receives the greatest portion of the property, assets or earning powertransferred pursuant to such Business Combination or, if each Person that is a party to suchBusiness Combination receives the same portion of the property, assets or earning power sotransferred or if the Person receiving the greatest portion of the assets or earning power cannotreasonably be determined, whichever of such Persons is the issuer of the Common Stock which has thegreatest aggregate market value; provided, however, that in any such case, if the Common Stock ofsuch Person is not at such time and has not been continuously over the preceding 12-month periodregistered under Section 12 of the Exchange Act and such Person is a direct or indirect Subsidiaryof one or more other Persons, then (A) “Principal Party” refers to whichever of such other Persons has
 
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Common Stock that is and has been continuously over the preceding 12-month period registeredunder Section 12 of the Exchange Act; (B) if the Common Stocks of two or more of such other Personsare and have been so registered, “Principal Party” refers to whichever of such other Persons isthe issuer of the Common Stock which has the greatest aggregate market value; or (C) if the CommonStock of none of such other Persons has been so registered, “Principal Party” refers to whicheverof such other Persons (other than an individual) is the Person which has the equity securities withthe greatest aggregate market value. In case such Person is owned, directly or indirectly, by ajoint venture formed by two or more Persons that are not owned, directly or indirectly, by the samePerson, the rules set forth above apply to each of the chains of ownership having an interest insuch joint venture as if such Person were a Subsidiary of both or all of such joint venturers andthe Principal Parties in each such chain shall bear the obligations set forth in Section 13 in thesame ratio as their direct or indirect interests in such Person bear to the total of suchinterests.(w) “Purchase Price” with respect to each Right is initially $175.00 per one one-hundredth of ashare of Preferred Stock, shall be subject to adjustment from time to time as provided in Sections11 and 13, and shall be payable in lawful money of the United States of America in cash or bycertified check or bank draft payable to the order of the Company.(x) “Record Date” means the Close of Business on November 9, 2000.(y) “Redemption Date” means the time at which the Rights are scheduled to be redeemed as providedin Section 23.(z) “Redemption Price” has the meaning given to such term in Section 23.(aa) “Regular Trading Activities” means trading activities undertaken in the InstitutionalInvestor’s normal course of business and not for the purpose of exercising, either alone or inconcert with any other Person, power to direct or cause the direction of the management andpolicies of the Company.(bb) “Rights Agent” means Fleet National Bank or any co-Rights Agent or successor Rights Agentappointed by the Company pursuant to Section 2 or Section 21, respectively.(cc) “Securities Act” means the Securities Act of 1933, as amended, and any successor statute.(dd) “Stock Acquisition Date” means the first date (including, without limitation, any such datewhich is on or after the date of this Agreement and prior to the issuance of the Rights) of publicdisclosure by the Company, an Acquiring Person or otherwise that a Person has become an AcquiringPerson.(ee) “Subsidiary” has the meaning given to such term in Rule 12b-2 of the General Rules andRegulations under the Exchange Act, as in effect on the date of this Agreement.(ff) “Tender Offer Date” means the date of commencement or public disclosure of an intention tocommence (including any such commencement or public disclosure which occurs on or after the date ofthis Agreement and prior to the issuance of the Rights) a tender offer or exchange offer by aPerson if,after acquiring the maximum number of securities sought pursuant to such offer, suchPerson, or any Affiliate or Associate of such Person, would be an Acquiring Person.
 
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(gg) “Triggering Event” occurs when a Person becomes an Acquiring Person.Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent to act asagent for the Company in accordance with the terms and conditions hereof, and the Rights Agenthereby accepts such appointment. The Company may from time to time appoint such co-Rights Agentsas it may deem necessary or desirable, upon ten (10) days’ prior written notice to the RightsAgent. The Rights Agent shall have no duty to supervise, and shall in no event be liable for, theacts or omissions of any such co-Rights Agents.Section 3. Issuance of Rights Certificates.(a) Until the Distribution Date: (i) the Rights shall be issued in respect of and shall beevidenced by the certificates representing the shares of Common Stock issued and outstanding on theRecord Date and shares of Common Stock issued or which become outstanding after the Record Date andprior to the earliest of the Distribution Date, the Redemption Date, the Exchange Date and theExpiration Date (which certificates for Common Stock shall be deemed to also be certificatesevidencing the Rights), and not by separate certificates; (ii) the registered holders of suchshares of Common Stock shall also be the registered holders of the Rights associated with suchshares; and (iii) the Rights shall be transferable only in connection with the transfer of sharesof Common Stock and the surrender for transfer of any certificate for such shares of Common Stockshall also constitute the surrender for transfer of the Rights associated with the shares of CommonStock represented thereby. As soon as practicable after the Company has notified the Rights Agentof the occurrence of the Distribution Date, the Company will prepare and execute, and the Companywill deliver to the Rights Agent to be countersigned, which the Rights Agent shall do, and theRights Agent shall mail, by first-class, insured, postage prepaid mail, to each record holder ofthe Common Stock as of the Close of Business on the Distribution Date, as shown by the records ofthe Company, at the address of such holder shown on such records, one or more certificatesevidencing the Rights (“Rights Certificates”), in substantially the form of Exhibit B hereto,evidencing one Right (as adjusted from time to time pursuant to this Agreement) for each share ofCommon Stock so held. From and after the Distribution Date, the Rights will be evidenced solely bysuch Rights Certificates. In the event that an adjustment in the number of Rights per share ofCommon Stock has been made pursuant to Section 11(o), at the time of distribution of the RightsCertificates, the Company may make the necessary and appropriate adjustments (in accordance withSection 14(a)) so that Rights Certificates representing only whole numbers of Rights aredistributed and cash is paid in lieu of any fractional Rights.(b) On the Record Date, or as soon as practicable thereafter, the Company will send a copy of aSummary of Rights to Purchase Preferred Stock, in substantially the form of Exhibit C hereto (the“Summary of Rights”), by first-class, postage-prepaid mail, to each record holder of Common Stockas of the close of business on the Record Date (other than any Acquiring Person or any Associate orAffiliate of any Acquiring Person), at the address of such holder shown on the records of theCompany. With respect to certificates for Common Stock outstanding as of the Record Date, untilthe Distribution Date, the Rights will be evidenced by such certificates registered in the names ofthe holders thereof together with the Summary of Rights. Until the Distribution Date (or theearlier of the Redemption Date and the Expiration Date), the surrender for transfer of anycertificate for Common Stock outstanding on the Record Date, with or without a copy of the Summaryof Rights, shall also constitute the transfer of the Rights associated with the Common Stockrepresented thereby.
 
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(c) Rights shall be issued in respect of all shares of Common Stock which are issued or sold by theCompany after the Record Date but prior to the earliest of the Distribution Date, the RedemptionDate, the Exchange Date or the Expiration Date. In addition, in connection with the issuance orsale of Common Stock by the Company following the Distribution Date and prior to the earliest ofthe Redemption Date, the Exchange Date or the Expiration Date, the Company shall, with respect toCommon Stock so issued or sold pursuant to (i) the exercise of stock options issued prior to theDistribution Date or under any employee plan or arrangement created prior to the Distribution Date,or (ii) upon the exercise, conversion or exchange of securities issued by the Company prior to theDistribution Date, issue Rights and Rights Certificates representing the appropriate number ofRights in connection with such issuance or sale; provided, however, that (x) no such Rights andRights Certificates shall be issued if, and to the extent that, the Company shall be advised bycounsel that such issuance would create a significant risk of material adverse tax consequences tothe Company or the Person to whom such Rights Certificates would be issued; and (y) no such Rightsand Rights Certificates shall be issued, if, and to the extent that, appropriate adjustment shallotherwise have been made in lieu of the issuance thereof. Certificates issued after the RecordDate representing shares of Common Stock outstanding on the Record Date or shares of Common Stockissued after the Record Date but prior to the earliest of the Distribution Date, the RedemptionDate, the Exchange Date and the Expiration Date shall have impressed, printed, written on orotherwise affixed to them a legend substantially in the following form:This certificate also evidences and entitles the holder hereof to certain Rights as setforth in a Rights Agreement between ATMI, Inc. and Fleet National Bank, as Rights Agent,dated as of October 13, 2000 (the “Rights Agreement”), the terms of which are herebyincorporated herein by reference and a copy of which is on file at the principal executiveoffices of ATMI, Inc. Under certain circumstances, as set forth in the Rights Agreement,such Rights will be evidenced by separate certificates and will no longer be evidenced bythis certificate. ATMI, Inc. will mail to the holder of this certificate a copy of theRights Agreement without charge after receipt of a written request therefore. Under certaincircumstances, as set forth in the Rights Agreement, Rights that were, are or becomebeneficially owned by Acquiring Persons or their Associates or Affiliates (as such terms aredefined in the Rights Agreement) may become null and void and the holder of any of suchRights (including any subsequent holder) shall not have any right to exercise such Rights.
 
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Section 4. Form of Rights Certificates.(a) The Rights Certificates (and the form of election to purchase shares and the form of assignmentto be printed on the reverse thereof) shall be in substantially the form of Exhibit B hereto andmay have such marks of identification or designation and such legends, summaries or endorsementsprinted thereon as the Company may deem appropriate and as are not inconsistent with the provisionsof this Agreement, or as may be required to comply with any law or with any rule or regulation madepursuant thereto or with any rule or regulation of any stock exchange on which the Rights may fromtime to time be listed or any securities association on whose interdealer quotation system theRights may be from time to time authorized for quotation, or to conform to usage. Subject to theprovisions of this Agreement, the Rights Certificates, whenever issued, shall be dated as of theDistribution Date, and on their face shall entitle the holders thereof to purchase such number ofshares of Preferred Stock as shall be set forth therein at the Purchase Price set forth therein,but the number and kind of such securities and the Purchase Price shall be subject to adjustment asprovided in this Agreement.(b) Notwithstanding any other provision of this Agreement, (i) any Rights Certificate issuedpursuant to this Agreement that represents Rights beneficially owned or formerly beneficiallyowned, on or after the Distribution Date, by a Person known by the Company to be: (A) an AcquiringPerson or an Associate or Affiliate of an Acquiring Person; (B) a direct or indirect transferee ofan Acquiring Person (or of an Associate or Affiliate of such Acquiring Person) who becomes orbecomes entitled to be a transferee after the Acquiring Person becomes such; or (C) a direct orindirect transferee of an Acquiring Person (or of an Associate or Affiliate of such AcquiringPerson) who becomes or becomes entitled to be a transferee prior to or concurrently with theAcquiring Person becoming such and receives such Rights pursuant to either (x) a direct or indirecttransfer (whether or not for consideration) from the Acquiring Person (or from an Associate orAffiliate of such Acquiring Person) to holders of equity interests in such Acquiring Person (or toholders of equity interests in an Associate or Affiliate of such Acquiring Person) orto any Person with whom such Acquiring Person (or an Associate or Affiliate of such AcquiringPerson) has any continuing agreement, arrangement or understanding regarding the transferredRights, or (y) a direct or indirect transfer which a majority of the Board of Directors hasdetermined is part of a plan, arrangement or understanding which has as a primary purpose oreffect the avoidance ofSection 7(e); or (ii) any Rights Certificate issued pursuant to this Agreement upon transfer,exchange, replacement or adjustment of any other Rights Certificate beneficially owned by a Personreferred to in this Section 4(b), shall contain (to the extent feasible) the following legend:The Rights represented by this Rights Certificate are or were beneficially owned by a Personwho was or became an Acquiring Person or an Affiliate or Associate of an Acquiring Person(as such terms are defined in the Rights Agreement). Accordingly, this Rights Certificateand the Rights represented hereby may become null and void in the circumstances specified inSection 7(e) of the Rights Agreement.
 
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Section 5. Execution, Countersignature and Registration.(a) Each Rights Certificate shall be executed on behalf of the Company by the Company’s Chairman ofthe Board, Chief Executive Officer, President or any Vice President, either manually or byfacsimile signature, and shall have affixed thereto the Company’s seal or a facsimile thereof whichshall be attested by the Company’s Secretary or an Assistant Secretary, either manually or byfacsimile signature. Each Rights Certificate shall be countersigned by the Rights Agent eithermanually or, if permitted by the Company, by facsimile signature and shall not be valid for anypurpose unless so countersigned. In case any officer of the Company who shall have signed a RightsCertificate shall cease to be such officer of the Company before countersignature by the RightsAgent and issuance and delivery by the Company, such Rights Certificate nevertheless may becountersigned by the Rights Agent and issued and delivered with the same force and effect as thoughthe Person who signed such Rights Certificate had not ceased to be such officer of the Company; andany Rights Certificate may be signed on behalf of the Company by any Person who, at the actual dateof the execution of such Rights Certificate, shall be a proper officer of the Company to sign suchRights Certificate, although at the date of the execution of this Agreement any such Person was notsuch an officer.(b) Following the Distribution Date, the Rights Agent shall keep or cause to be kept, at itsprincipal corporate trust office, books for registration and transfer of the Rights Certificatesissued hereunder. Such books shall show the names and addresses of the respective holders of theRights Certificates, the number of Rights evidenced by each Rights Certificate, and the certificatenumber and the date of issuance of each Rights Certificate.Section 6. Transfer, Division, Combination and Exchange of Rights Certificates; Mutilated,Destroyed, Lost or Stolen Rights Certificates.(a) Subject to the provisions of Section 14, at any time after the Close of Business on theDistribution Date and at or prior to the Close of Business on the earliest of the Redemption Date,the Exchange Date or the Expiration Date, any Rights Certificate or Rights Certificates may betransferred, divided, combined or exchanged for another Rights Certificate or Rights Certificates,entitling the registered holder to purchase a like number of shares of Preferred Stock (or,following a Triggering Event or a Business Combination, other securities, cash or other property,as the case may be) as the Rights Certificate or Rights Certificates surrendered entitled suchholder to purchase immediately prior to such surrender. Any registered holder desiring totransfer, divide, combine or exchange any Rights Certificate shall make such request in writingdelivered to the Rights Agent, and shall surrender the Rights Certificate or Rights Certificates tobe transferred, divided, combined or exchanged at the principal corporate office of the RightsAgent. Thereupon the Rights Agent shall countersign and deliver to the Person entitled thereto aRights Certificate or Rights Certificates, as the case may be, as so requested. As a condition tosuch transfer, division, combination or exchange, the Company may require payment by thesurrendering holder of a sum sufficient to cover any tax or governmental charge that may be imposedin connection therewith. Neither the Rights Agent nor the Company shall be obligated to take anyaction whatsoever with respect to the transfer of any such surrendered Rights Certificate until theregistered holder shall have duly completed and executed the form of assignment on the reverse sideof such Rights Certificate and shall have provided such additional evidence of theidentity of the Beneficial Owner (or such former or proposed Beneficial Owner) thereof or suchBeneficial Owner’s Affiliates or Associates as the Company shall reasonably request.
 
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(b) Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to them ofthe loss, theft, destruction or mutilation of a Rights Certificate, and, in case of loss, theft ordestruction, of indemnity or security reasonably satisfactory to them, and reimbursement to theCompany and the Rights Agent of all reasonable expenses incidental thereto, and upon surrender tothe Rights Agent and cancellation of the Rights Certificate if mutilated, the Company will make anddeliver a new Rights Certificate of like tenor to the Rights Agent for countersignature by theRights Agent and delivery to the registered owner in lieu of the Rights Certificate so lost,stolen, destroyed or mutilated.Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.(a) Each Right shall entitle (except as otherwise provided in thisAgreement) the registered holder thereof, upon the exercise thereof as provided in this Agreement,to purchase, for the Purchase Price, at any time after the Distribution Date and prior to theearliest of the Expiration Date, the Exchange Date or the Redemption Date, one one-hundredth(1/100) of a share of Preferred Stock (or other securities, cash or other property or assets, asthe case may be, as provided herein), subject to adjustment from time to time as provided inSections 11 and 13.(b) The registered holder of any Rights Certificate may exercise the Rights evidenced thereby(except as otherwise provided in this Agreement) in whole or in part (except that no fraction of aRight may be exercised) at any time after the Distribution Date and prior to the earliest of theExpiration Date, the Exchange Date or the Redemption Date, by surrendering the Rights Certificate,with the form of election to purchase on the reverse side thereof duly executed, to the RightsAgent at the principal corporate trust office of the Rights Agent, together with payment of thePurchase Price for each one one-hundredth of a share of Preferred Stock (or other securities, cashor other property or assets, as the case may be, as provided herein) as to which the Rights areexercised.(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of electionto purchase duly executed, accompanied by payment of the Purchase Price for each one one-hundredthof a share of Preferred Stock (or other securities, cash or other property or assets, as the casemay be, as provided herein) to be purchased and an amount in cash, certified bank check or bankdraft payable to the order of the Company equal to any applicable transfer tax required to be paidby the surrendering holder pursuant to Section 9(d), the Rights Agent shall, subject to theprovisions of this Agreement, thereupon promptly (i)(A) requisition from any transfer agent for thePreferred Stock (or make available, if the Rights Agent is the transfer agent for the PreferredStock) certificates for the total number of one one-hundredths of a share of Preferred Stock to bepurchased (and the Company hereby irrevocably authorizes its transfer agent to comply with all suchrequests), or (B) if the Company shall have elected to deposit the total number of shares ofPreferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from thedepositary agent depositary receipts representing such number of one one-hundredths of a share ofPreferred Stock as are to be purchased (in which case certificates for the Preferred Stockrepresented by such receipts shall be deposited by the transfer agent with the depositary agent)and the Company shall direct the depositary agent to comply
 
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 with such request; (ii) after receiptof such certificates or depositary receipts, cause the same to be delivered to or upon the order ofthe registered holder of such Rights Certificate, registered in such name or names as may bedesignated by such holder; and (iii) if appropriate, requisition from the Company the amount ofcash to be paid in lieu of issuance of fractional shares in accordance with Section 14 and,promptly after receipt thereof, cause the same to be delivered to or upon the order of theregistered holder of such Rights Certificate. In the event that the Company is obligated to issueother securities (including shares of Common Stock) of the Company, pay cash and/or distributeother property pursuant to this Agreement, the Company will make all arrangements necessary so thatsuch other securities, cash and/or other property are available for distribution by the RightsAgent, if and when appropriate.(d) In case the registered holder of any Rights Certificate shall exercise less than all the Rightsevidenced thereby, a new Rights Certificate evidencing Rights equivalent to the Rights remainingunexercised shall be issued by theRights Agent and delivered to, or upon the order of, the registered holder of such RightsCertificate or to his duly authorized assigns, subject to the provisions of Sections 6 and 14.(e) Notwithstanding anything in this Agreement to the contrary, any Rights that are or wereformerly beneficially owned on or after the Distribution Date by (i) an Acquiring Person or anyAssociate or Affiliate of an Acquiring Person; (ii) a direct or indirect transferee of an AcquiringPerson (or of an Associate or Affiliate of such Acquiring Person) who becomes, or becomes entitledto be, a transferee after the Acquiring Person becomes such; or (iii) a direct or indirecttransferee of an Acquiring Person (or of an Associate or Affiliate of such Acquiring Person) whobecomes, or becomes entitled to be, a transferee prior to or concurrently with the Acquiring Personbecoming such and receives such Rights pursuant to either (A) a direct or indirect transfer(whether or not for consideration) from the Acquiring Person (or from an Associate or Affiliate ofsuch Acquiring Person) to holders of equity interests in such Acquiring Person (or to holders ofequity interests in any Associate or Affiliate of such Acquiring Person) or to any Person with whomthe Acquiring Person (or an Associate or Affiliate of such Acquiring Person) has any continuingagreement, arrangement or understanding regarding the transferred Rights, and (B) a direct orindirect transfer which a majority of the Board of Directors of the Company determines is part of aplan, arrangement or understanding which has as a primary purpose or effect the avoidance of thisSection 7(e), shall, from and after the first occurrence of a Triggering Event and without anyfurther action, be null and void and no holder of such Rights shall have any rights whatsoever withrespect to such Rights whether under this Agreement or otherwise; provided, however, that, in thecase of transferees described in clause (ii) or clause (iii) of this Section 7(e), any Rightsbeneficially owned by such transferee shall be null and void only if and to the extent such Rightswere formerly beneficially owned by a Person who was, at the time such Person beneficially ownedsuch Rights, or who later became, an Acquiring Person or an Affiliate or Associate of suchAcquiring Person. The Company shall use all reasonable efforts to ensure that the provisions ofthis Section 7(e) and of Section 4(b) are complied with but shall have no liability to any holderof a Rights Certificate or to any other Person as a result of the Company’s failure to make, or anydelay in making (including any such failure or delay by the Board of Directors of the Company), anydeterminations with respect to an Acquiring Person or its Affiliates, Associates or transfereesunder this Section 7(e) or any other provision of this Agreement.
 
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(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor theCompany shall be obligated to undertake any action with respect to the registered holder of aRights Certificate upon the occurrence of any purported exercise as set forth in this Section 7unless such registered holder shall have (i) completed and signed the certificate contained in theform of election to purchase set forth on the reverse side of the Rights Certificate surrenderedfor such exercise, and (ii) provided such additional evidence of the identity of the BeneficialOwner (or former or proposed Beneficial Owner) thereof or the Affiliates or Associates of suchBeneficial Owner (or former or proposed Beneficial Owner) as the Company shall reasonably request.Section 8. Cancellation and Destruction of Rights Certificates. AllRights Certificates surrendered for the purpose of exercise, transfer, division, combination orexchange shall, if surrendered to the Company or to any of its agents, be delivered to the RightsAgent for cancellation or in canceled form, or, if surrendered to the Rights Agent, shall becanceled by it, and no Rights Certificates shall be issued in lieu therefore except as expresslypermitted by the provisions of this Agreement. The Company shall deliver to the Rights Agent forcancellation and retirement, and the Rights Agent shall so cancel and retire, any other RightsCertificate purchased or acquired by the Company otherwise than upon the exercise thereof. TheRights Agent shall deliver all canceled Rights Certificates to the Company, or shall, at thewritten request of the Company, destroy such canceled Rights Certificates, and in such case shalldeliver a certificate of destruction thereof to the Company.Section 9. Reservation and Availability of Preferred Stock.(a) The Company covenants and agrees that it will cause to be reserved and kept available at alltimes out of its authorized and unissued shares of Preferred Stock or its authorized and issuedshares of Preferred Stock held in its treasury (and, following the occurrence of a Triggering Eventor a Business Combination, out of its authorized and unissued shares of Common Stock and/or othersecurities or out of its authorized and issued shares of Common Stock and/or other securities heldin its treasury) free from preemptive rights or any right of first refusal, a sufficient number ofshares of Preferred Stock (and, following the occurrence of a Triggering Event or a BusinessCombination, shares of Common Stock and/or other securities) to permit the exercise in full of allRights from time to time outstanding.(b) The Company further covenants and agrees, so long as the Preferred Stock (and, following theoccurrence of a Triggering Event or a Business Combination, shares of Common Stock and/or othersecurities) issuable upon the exercise of Rights may be listed on any United States nationalsecurities exchange or quoted on any automated quotation system, to use its reasonable best effortsto cause, from and after the time that the Rights become exercisable, all such shares and/or othersecurities reserved for such issuance to be listed on such exchange or quoted on such automatedquotation system upon official notice of issuance upon such exercise.
 
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(c) The Company further covenants and agrees that it will take all such action as may be necessaryto ensure that all shares of Preferred Stock (and, following the occurrence of a Triggering Eventor a Business Combination, shares of Common Stock and/or other securities) delivered upon theexercise of Rights shall, at the time of delivery of the certificates for such shares and/or suchother securities (subject to payment of the Purchase Price), be duly and validly authorized andissued, fully paid, nonassessable, freely tradeable, not subject to liens or encumbrances, and freeof preemptive rights, rights of first refusal or any other restrictions or limitations on thetransfer or ownership thereof, of any kind or nature whatsoever.(d) The Company further covenants and agrees that it will pay when due and payable any and allfederal and state transfer taxes and charges which may be payable in respect of the originalissuance or delivery of the Rights Certificates or of any certificates for shares of PreferredStock (or Common Stock and/or other securities, as the case may be) upon the exercise of Rights.The Company shall not, however, be required to (i) pay any transfer tax which may be payable inrespect of any transfer involved in the issuance or delivery of any Rights Certificates or theissuance or delivery of any certificates for shares of Preferred Stock (or Common Stock and/orother securities as the case may be) to a Person other than, or in a name other than that of, theregistered holder of the Rights Certificate evidencing Rights surrendered for exercise; or (ii)transfer or deliver any Rights Certificate or issue or deliver any certificates for shares ofPreferred Stock (or Common Stock and/or other securities as the case may be) upon the exercise ofany Rights until any such tax shall have been paid (any such tax being payable by the holder ofsuch Rights Certificate at the time of surrender) or until it has been established to the Company’ssatisfaction that no such tax is due.(e) The Company shall use its reasonable best efforts (i) as soon as practicable following theStock Acquisition Date (provided the consideration to be delivered by the Company upon exercise ofthe Rights has been determined in accordance with Section 11(a)(iii)), or as soon as is otherwiserequired by law following the Distribution Date, as the case may be, to prepare and file aregistration statement on an appropriate form under the Securities Act with respect to thesecurities purchasable upon exercise of the Rights; (ii) to cause such registration statement tobecome effective as soon as practicable after such filing; and (iii) to cause such registrationstatement to remain effective (with a prospectus at all times meeting the requirements of theSecurities Act) until the earlier of (A) the date as of which Rights are no longer exercisable forsuch securities or (B) the Expiration Date. The Company shall also use its reasonable best effortsto take such action as may be necessary or appropriate under, or to ensure compliance with, thesecurities or “blue sky” laws of the various states in connection with the exercise of the Rights.The Company may temporarily suspend, for a period of time not to exceed 90 days after the date setforth in clause (i) of this Section 9 (e), the exercisability of the Rights in order to prepare andfile such registration statement and permit it to become effective. Upon any such suspension, theCompany shall make a public announcement stating that the exercisability of the Rights has beentemporarily suspended, as well as a public announcement at such time as the suspension is no longerin effect. Notwithstanding any provision of this Agreement to the contrary, the Rights shall notbe exercisable in any jurisdiction unless the requisite qualification in such jurisdiction shallhave been obtained and until a registration statement has been declared effective under theSecurities Act.
 
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Section 10. Preferred Stock Record Date. Each Person in whose name any certificate for shares ofPreferred Stock (or Common Stock and/or other securities, as the case may be) is issued upon theexercise of Rights shall for all purposes be deemed to have become the holder of record of thePreferred Stock (or Common Stock and/or other securities, as the case may be) represented therebyon, and such certificate shall be dated, the date upon which the Rights Certificate evidencing suchRights was duly surrendered and payment of the Purchase Price (and anyapplicable transfer taxes) was made; provided, however, that if the date of such surrender andpayment is a date upon which the Preferred Stock (or Common Stock and/or other securities, as thecase may be) transfer books of the Company are closed, such Person shall be deemed to have becomethe record holder of such shares (or Common Stock and/or such other securities, as the case may be)on, and such certificate shall be dated, the next succeeding Business Day on which the PreferredStock (or Common Stock and/or other securities, as the case may be) transfer books of the Companyare open.Section 11. Adjustments to Purchase Price, Number of Shares or Number of Rights. The PurchasePrice, the number and kind of securities, cash and other property obtainable upon exercise of eachRight and the number of Rights outstanding shall be subject to adjustment from time to time asprovided in this Section 11.(a) (i) In the event the Company shall at any time on or after the date of this Agreement (A) pay adividend or make a distribution on the outstanding shares of Preferred Stock payable in shares ofPreferred Stock, (B) subdivide (by a stock split or otherwise) the outstanding Preferred Stock intoa larger number of shares, (C) combine (by a reverse stock split or otherwise) the outstandingPreferred Stock into a smaller number of shares, or (D) issue any securities in a reclassificationof the Preferred Stock (including any such reclassification in connection with a consolidation ormerger in which theCompany is the surviving corporation), except as otherwise provided in this Section 11(a), then ineach such event the Purchase Price and the Redemption Price set forth in Section 23, as each is ineffect at the time of the record date for such dividend or distribution, or of the effective dateof such subdivision, combination or reclassification, and the number and kind of shares of capitalstock or interests therein issuable on such date, shall be proportionately adjusted so that theholder of any Right exercised after such time shall be entitled to receive the aggregate number andkind of shares of capital stock or interests therein which, if such Right had been exercisedimmediately prior to such date and at a time when the Preferred Stock transfer books of the companywere open, such holder would have owned upon such exercise and been entitled to receive by virtueof such dividend, subdivision, combination or reclassification. If an event occurs which wouldrequire an adjustment under both this Section 11(a)(i) and Section 11(a)(ii), the adjustmentprovided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, anyadjustment required pursuant to Section 11(a)(ii).
 
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(ii) Upon the first occurrence of a Triggering Event, proper provision shall be made so that eachholder of a Right, except as otherwise provided in this Agreement, shall thereafter have the rightto receive, and the Company shall issue, upon exercise thereof at a price equal to the then-currentPurchase Price multiplied by the number of one one-hundredths of a share of Preferred Stock forwhich a Right is then exercisable in accordance with the terms of this Agreement, in lieu of thenumber of one one-hundredths of a share of Preferred Stock or other securities receivable uponexercise of a Right prior to the occurrence of the Triggering Event, such number of shares ofCommon Stock of the Company as shall equal the result obtained by (x) multiplying the then-currentPurchase Price by the number of one-hundredths of a share of Preferred Stock or other securitiesfor which a Right was then exercisable (without giving effect to such Triggering Event) and (y)dividing that product by 50% of the Current Market Price per share of Common Stock on the date ofthe occurrence of the Triggering Event (such number of shares being referred to as the “AdjustmentShares”); provided, however, that if the transaction or event that would otherwise give rise to theforegoing adjustment is also subject to the provisions of Section 13, then only the provisions ofSection 13 shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). Uponthe occurrence of such Triggering Event, the Purchase Price required to be paid in order toexercise a Right shall be unchanged, and the Purchase Price shall be appropriately adjusted toreflect, and shall thereafter mean, the amount required to be paid per share of Common Stock uponexercise of a Right.(iii) In lieu of issuing shares of Common Stock in accordance with Section 11(a) (ii), the Companymay, if a majority of the Board of Directors of the Company determines that such action isnecessary or appropriate and not contrary to the interests of holders of Rights, elect to, and, ifthat the number of shares of Common Stock which are authorized by the Company’s certificate ofincorporation, but which are not outstanding or reserved for issuance for purposes other than uponexercise of the Rights, are not sufficient to permit the exercise in full of the Rights inaccordance with Section 11(a) (ii), the Company shall take all such action as may be necessary toauthorize, issue or pay, upon the exercise of Rights, cash (including by way of a reduction of thePurchase Price), debt securities, property, assets or other equity securities of the Company(including, without limitation, shares or units of shares ofpreferred stock) which the Board of Directors of the Company has determined (which determinationshall be final, binding and conclusive for all purposes) to have essentially the same value oreconomic rights as shares of Common Stock (such equity securities referred to herein as “CommonStock Equivalents), or any combination of the foregoing, having an aggregate value equal to thevalue of the Adjustment Shares which otherwise would have been issuable pursuant to Section 11(a)(ii), which aggregate value shall be determined by a majority of the Board of Directors (whichdetermination shall be final, binding and conclusive for all purposes). If a majority of the Boardof Directors determines to issue or deliver any equity securities (other than Common Stock orCommon Stock Equivalents), debt securities and/or other property or assets pursuant to this Section11(a) (iii), the value of such securities and/or property or assets shall be determined by amajority of the Board ofDirectors of the Company based upon the advice of a nationally recognized investment banking firmselected by a majority of the Board of Directors of the Company (which determination shall befinal, binding and conclusive for all purposes). If the Company is required to make adequateprovision to deliver value pursuant to the first sentence of this Section 11(a) (iii) and theCompany shall not have made such adequate provision to deliver value within ninety (90) daysfollowing the first occurrence of a Triggering Event (the “Substitution” Period”), thennotwithstanding any provision of Section 11(a) (ii) or this Section 11(a)
 
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 (iii) to the contrary,the Company shall be obligated to deliver, upon the surrender for exercise of a Right and withoutrequiring payment of the Purchase Price, shares of Common Stock (to the extent available) and then,if necessary, cash, which shares and/or cash have an aggregate value equal to the excess of thevalue of the Adjustment Shares over the Purchase Price. If both Common Stock and cash are to bedelivered pursuant to the preceding sentence, amounts of both Common Stock and cash shall bedelivered upon surrender of each Right in a ratio of Common Stock to cash that bears the same ratioas the total value of all Common Stock to be delivered (as determined pursuant to this Section11(a) (iii)) bears to the total value of all cash to be delivered; provided, however, that theCompany may adjust such ratio to avoid issuing any fractional shares of Common Stock so long as themethod of adjustment is applied consistently to each holder of Rights entitled to receive valuewith respect thereto pursuant to this Section 11(a) (iii). To the extent that the Companydetermines that some action is to be taken pursuant to the first and/or third sentences of thisSection 11(a) (iii), the Company may suspend the exercisability of the Rights but in no event to atime later than the expiration of the Substitution Period. In the event of any such suspension,the Company shall issue a public announcement stating that the exercisability of the Rights hasbeen temporarily suspended, as well as a public announcement at such time as the suspension is nolonger in effect. For purposes of this Section 11(a) (iii), the value of each Adjustment Shareshall be the Current Market Price per share of the Common Stock on the Stock Acquisition Date andthe per share or per unit value of any Common Stock Equivalent shall be deemed to equal the CurrentMarket Price per share of the Common Stock on such date.(iv) A majority of the Board of Directors of the Company may, at its option, at any time and fromtime to time after the first occurrence of a Triggering Event, cause the Company to exchange, forall or part of the then-outstanding and exercisable Rights (which shall not include Rights thathave become void pursuant to the provisions of Section 7 e)), shares of Common Stock or CommonStock Equivalents at an exchange ratio of one share of Common Stock per Right, appropriatelyadjusted to reflect any stock split, stock dividend or similar transaction occurring after the dateof this Agreement (such exchange ratio being hereinafter referred to as the “Exchange Ratio”). Anypartial exchange shall be effected on a pro rata basis based on the number of Rights (other thanRights which have become void pursuant to the provisions of Section 7 (e)) held by each holder ofRights. Notwithstanding the foregoing, the Board of Directors shall not be empowered to effectsuch exchange at any time after any Person (other than an Exempt Person), together with allAffiliates and Associates of such Person, becomes the Beneficial Owner of 50% or more of the Outstanding CommonStock.
 
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Immediately upon the action of a majority of the Board of Directors of the Company ordering theexchange of any Rights pursuant to this Section 11(a) (iv) and without any further action andwithout any notice, the right to exercise such Rights shall terminate and the only right thereafterof a holder of such Rights shall be to receive that number of shares of Common Stock and/or CommonStock Equivalents equal to the number of such Rights held by such holder multiplied by the ExchangeRatio. The Company shall promptly give public notice of any such exchange and, in addition, theCompany shall promptly mail a notice of any such exchange to all of the holders of such Rights inaccordance with Section 25; provided, however, that the failure to give, any delay in giving or anydefect in, such notice shall not affect the validity of such exchange. Each such notice ofexchange will state the method by which the exchange of the Common Stock or Common StockEquivalents for Rights will be effected and, in the event ofany partial exchange, the number of Rights which will be exchanged. In the event that the numberof shares of Common Stock which is authorized but not outstanding or reserved for issuance for apurpose other than exercise of the Rights is not sufficient to permit any exchange of Rights ascontemplated in accordance with this Section 11(a) (iv), the Board of Directors of the Companyshall take all such action within its power as may be necessary to authorize additional shares ofCommon Stock for issuance upon exchange of the Rights. The Company shall not be required to issuefractions of shares of Common Stock or Common Stock Equivalents or to distribute certificates whichevidence fractional shares of Common Stock or Common Stock Equivalents. In lieu of such fractionalshares of Common Stock or Common Stock Equivalents, the Company shall pay to the registered holdersof the Rights Certificates with regard to which such fractional shares of Common Stock or CommonStock Equivalents would otherwise be issuable an amount in cash equal to the product derived bymultiplying (x) the subject fraction, by (y) the last sale price of the Company’s Common Stock onthe fifth Trading Day following the public announcement of the exchange by the Company, or, in caseno such sale takes place on such day, the average of the closing bid and asked prices on such day,in either case on a when issued basis(taking into account the exchange), as reported in theprincipal consolidated transaction reporting system with respect to securities listed or admittedto trading on the NYSE (or, if the Company’s Common Stock is not so listed or traded, then asdetermined in the manner provided under the definition of “Current Market Price,” adjusted to takeinto account the exchange). For the purposes of this Section 11(a) (iv), the value of any CommonStock Equivalent on any date shall be the same as the value of the Common Stock, as determinedpursuant to the previous sentence, on such date.(b) If the Company shall at any time on or after the date of this Agreement fix a record date forthe issuance of rights, options or warrants to holders of Preferred Stock entitling them (for aperiod expiring within 45 calendar days after such record date) to subscribe for or purchasePreferred Stock or Equivalent Shares (or securities convertible into or exchangeable for PreferredStock or Equivalent Shares) at a price per share of Preferred Stock or Equivalent Shares (or, inthe case of a convertible or exchangeable security, having a conversion or exchange price per shareof Preferred Stock or Equivalent Shares) less than the Current Market Price per share of PreferredStock on such record date, the Purchase Price to be in effect after such record date shall bedetermined by multiplying the Purchase Price in effect immediately prior to such record date by afraction, the numerator of which shall be the number of shares of Preferred Stock and EquivalentShares (if any) outstanding on such record date, plus the number of shares of Preferred Stock orEquivalent Shares, as the case may be, which the aggregate exercise, conversion and/or exchangeprice for the total number of shares of Preferred Stock or Equivalent Shares, as the case may be,which are obtainable upon exercise, conversion and/or exchange of such rights, options, warrants orconvertible or exchangeable securities would purchase at such Current Market Price, and thedenominator of which shall be the number of shares of Preferred Stock and Equivalent Shares (ifany) outstanding on such record date, plus the number of additional shares of Preferred Stock orEquivalent Shares, as the case may be, which may be obtained upon exercise, conversion and/orexchange of such rights, options, warrants or convertible or exchangeable securities. In case suchsubscription price may be paid in a consideration part or all of which shall be in a form otherthan cash, the value of such consideration shall be as determined in good faith by a majority ofthe Board of Directors of the Company, whose determination shall be described in a statement filedwith the Rights Agent and shall be final, binding and conclusive for all purposes. Preferred Stockand Equivalent Shares owned by or held for the account of the Company or any Subsidiary of theCompany shall not be deemed outstanding for the purpose of any such computation. Such adjustmentshall be made successively whenever such a record date is fixed; and in the event that such rights,options or warrants are not issued following such adjustment, the Purchase Price shall bereadjusted to be the Purchase Price that would have been in effect if such record date had not beenfixed.
 
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(c) In case the Company shall at any time after the date of this Agreement fix a record date forthe making of a distribution to holders of Preferred Stock (including any such distribution made inconnection with a reclassification of the Preferred Stock or a consolidation or merger in which theCompany is the surviving corporation) of securities (other than Preferred Stock and rights,options, warrants or convertible or exchangeable securities referred to in Section 11(b)), cash(other than a regular periodic cash dividend at an annual rate not in excess of: (x) 125% of theannual rate of the regular cash dividend paid on the Preferred Stock during the immediatelypreceding fiscal year (or, if the Preferred Stock was not outstanding during such preceding fiscalyear, then 125% of the annual rate of the regular cash dividend paid on the Common Stock duringsuch year), or (y) in the event that a regular cash dividend was not paid on the Preferred Stock(or Common Stock) during such preceding fiscal year, 5% of the Current Market Value of thePreferred Stock on the date such regular cash dividend was first declared), property, evidencesof indebtedness, or assets, the Purchase Price to be in effect after such record date shall bedetermined by multiplying the Purchase Price in effect immediately prior to such record date by afraction, the numerator of which shall be the Current Market Price per share of Preferred Stock onsuch record date, less the fair market value (as determined in good faith by a majority of theBoard of Directors of the Company, whose determination shall be described in a statement filed withthe Rights Agent and shall be final, binding and conclusive for all purposes) of the portion ofsuch securities, cash, property, evidences of indebtedness or assets to be so distributed inrespect of one share of Preferred Stock, and the denominator of which shall be such Current MarketPrice per share of Preferred Stock on such record date. Such adjustments shall be madesuccessively whenever such a record date is fixed; and in the event that such distribution is notmade following such adjustment, the Purchase Price shall be readjusted to be the Purchase Pricethat would have been in effect if such record date had not been fixed.(d) Except as provided below, no adjustment in the Purchase Price shall be required unless suchadjustment would require an increase or decrease of at least 1% in the Purchase Price; provided,however, that any adjustments which by reason of this Section 11(d) are not required to be madeshall be carried forward and taken into account in any subsequent adjustment. All calculationsunder this Section 11 shall be made to the nearest cent, to the nearest one hundred-thousandth of ashare of Common Stock, or to the nearest one hundred-thousandths of a share of Preferred Stock.Notwithstanding the first sentence of this Section 11 (d), any adjustment required by this Section11 shall be made no later than the earlier of (i) three years from the date of the transactionwhich requires such adjustment and (ii) the Expiration Date.
 
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(e) If, as a result of an adjustment made pursuant to Section 11(a) or Section 13(a), the holder ofany Right thereafter exercised shall become entitled to receive any securities of the Company otherthan shares of Preferred Stock, thereafter the Purchase Price and the number of such othersecurities so receivable upon exercise of any Right shall be subject to adjustment from time totime in a manner and on terms as nearly equivalent as practicable to the provisions with respect tothe shares of Preferred Stock contained in this Section 11 and the provisions of Sections 7, 9, 10,12, 13, 14 and 24 with respect to the shares of Preferred Stock shall apply on like terms to anysuch other securities.(f) All Rights originally issued by the Company subsequent to any adjustment made to the PurchasePrice hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the number ofshares of Preferred Stock or other securities, cash or other property purchasable from time to time hereunder uponexercise of the Rights, all subject to further adjustment as provided in this Agreement.(g) Unless the Company shall have exercised its election as provided in Section 11(h), upon eachadjustment of the Purchase Price as a result of any calculation made pursuant to Sections 11(a)(i), 11(b) and 11(c), each Right outstanding immediately prior to the making of such adjustmentshall thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of oneone-hundredths of a share of Preferred Stock (calculated to the nearest one hundred-thousandths ofa share of Preferred Stock) obtained by (i) multiplying the number of one one-hundredths of a shareof Preferred Stock covered by a Right immediately prior to adjustment pursuant to this Section11(g) by the Purchase Price in effect immediately prior to such adjustment of the Purchase Priceand (ii) dividing the product so obtained by the Purchase Price in effect immediately after suchadjustment of the Purchase Price.(h) The Company may elect, on or after the date of any adjustment of the Purchase Price or anyadjustment to the number of shares of Preferred Stock for which a Right may be exercised, to adjustthe number of Rights, in lieu of an adjustment in the number of one one-hundredths of a share ofPreferred Stock purchasable upon the exercise of a Right. Each of the Rights outstanding aftersuch adjustment of the number of Rights shall be exercisable for the number of one one-hundredthsof a share of Preferred Stock for which a Right was exercisable immediately prior to suchadjustment. Each Right outstanding prior to such adjustment of the number of Rights shall becomethat number of Rights (calculated to the nearest one hundred-thousandth) obtained by dividing thePurchase Price in effect immediately prior to such adjustment by the Purchase Price in effectimmediately after such adjustment. The Company shall make a public announcement of its election toadjust the number of Rights, indicating the record date for the adjustment, and, if known at thetime, the amount of the adjustment to be made. This record date may be the date on which thePurchase Price is adjusted or any day thereafter, but, if the Rights Certificates have beenissued, shall be at least 10 days after 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(h) the Company shall, aspromptly as practicable, cause to be distributed to holders of record of Rights Certificates onsuch record date a new Rights Certificate evidencing, subject to Section 14, the additional Rightsto which such holders shall be entitled as a result of such adjustment, or, at the option of theCompany, shall cause to be distributed to such holders of record, in substitution and replacementfor the Rights Certificates held by such holders prior to the date of adjustment and upon surrenderthereof (if required by the Company), new Rights Certificates evidencing all the Rights to whichsuch holders shall be entitled after such adjustment. Rights Certificates to be so distributedshall be issued, executed and countersigned in the manner provided for in this Agreement (and maybear, at the option of the Company, the adjusted Purchase Price) and shall be registered in thenames of the holders of record of Rights Certificates on the record date specified in the publicannouncement.
 
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(i) Irrespective of any adjustment or change in the Purchase Price or the number or kind of sharesissuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issuedmay continue to express the Purchase Price per one one-hundredth of a share of Preferred Stock andthe number of shares of Preferred Stock which were expressed in the initial Rights Certificatesissued hereunder.(j) Before taking any action that would cause an adjustment reducing the Purchase Price below thethen par value, if any, of one one-hundredth of a share of Preferred Stock issuable upon exerciseof the Rights, the Company shall take any corporate action which may, in the opinion of itscounsel, be necessary in order that the Company may validly and legally issue fully paid andnonassessable one one-hundredth shares of such Preferred Stock at such adjusted Purchase Price.(k) In any case in which this Section 11 shall require that an adjustment be made effective as ofa record date for a specified event, the Company may elect to defer until the occurrence of suchevent the issuance to the holder of any Right exercised after such record date the shares ofPreferred Stock and other securities, cash or property of the Company, if any, issuable upon suchexercise over and above the shares of Preferred Stock and other securities, cash or property of theCompany, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior tosuch adjustment; provided, however, that the Company shall deliver to such holder a due bill orother appropriate instrument evidencing such holder’s right to receive such additional shares(fractional or otherwise) or other securities, cash or property upon the occurrence of the eventrequiring such adjustment.(l) Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled tomake such reductions in the Purchase Price, in addition to those adjustments expressly required bythis Section 11, as and to the extent that the Board of Directors of the Company in its solediscretion shall determine to be advisable in order that any combination or subdivision of thePreferred Stock, issuance wholly for cash of any Preferred Stock at less than the Current MarketPrice per share of Preferred Stock, issuance wholly for cash of Preferred Stock or securities whichby their terms are convertible into or exchangeable or exercisable for Preferred Stock, stockdividends or issuance of rights, options or warrants referred to in this Section 11, hereafter madeby the Company to holders of its Preferred Stock, shall not be taxable to such stockholders.
 
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(m) The Company covenants and agrees that it shall not, at any time after the Distribution Date,(i) consolidate with, (ii) merge with or into, or(iii) directly or indirectly sell, lease or otherwise transfer or dispose of (in one transaction ora series of related transactions) property, assets or earning power aggregating more than 50% ofthe property, assets or earning power of the Company and its Subsidiaries taken as a whole, to anyother Person if (A) at the time of or immediately after such consolidation, merger, sale, lease,transfer or disposition there are any rights, warrants, securities or other instruments outstandingor agreements in effect which would substantially diminish or otherwise eliminate the benefitsintended to be afforded by the Rights; (B)prior to, simultaneously with or immediately after suchconsolidation, merger, sale, lease, transfer or disposition the stockholders (or equity holders) ofthe Person who constitutes, or would constitute, the Principal Party for purposes of Section 13(a)hereof shall have received a distribution of Rights previously owned by such Person or any of itsAffiliates or Associates; or (C) the form or nature of organization of the Principal Party wouldpreclude or limit the exercisability of the Rights. The Company shall not consummate any suchconsolidation, merger, sale, lease, transfer or disposition unless prior thereto theCompany and such other Person shall have executed and delivered to the Rights Agent a supplementalagreement evidencing compliance with this Section 11(m).(n) The Company covenants and agrees that, after the Stock Acquisition Date, it will not, exceptas permitted by Section 11(a) (iv), 26 or 29(b), take (or permit any Subsidiary to take) any actionif at the time such action is taken it is reasonably foreseeable that such action will, directly orindirectly, diminish or otherwise eliminate the benefits intended to be afforded by the Rights.(o) Anything in this Agreement to the contrary notwithstanding, if the Company shall at any timeprior to the Distribution Date (i) pay a dividendor make a distribution on the outstanding shares of Common Stock payable in shares of Common Stock,(ii) subdivide the outstanding Common Stock into a larger number of shares, (iii) combine (by areverse stock split or otherwise) the outstanding Common Stock into a smaller number of shares, or(iv) issue any securities in a reclassification of the Common Stock (including any suchreclassification in connection with a consolidation or merger in which the Company is the survivingcorporation), then the number of Rights associated with each share of Common Stock or (in areclassification) each security then outstanding, or issued or delivered thereafter but prior tothe Distribution Date, and the Purchase Price under, and the number of one one-hundredths of ashare of Preferred Stock issuable in respect of, the Rights, shall be proportionately adjusted, sothat following such event one Right (with the Purchase Price and the number of one one-hundredthsof a share of Preferred Stock proportionately adjusted thereunder) shall thereafter be associatedwith each share of Common Stock or (in a reclassification) each security then outstanding, orissued or delivered thereafter but prior to the Distribution Date. For example, if the Companyeffects a two-for-one stock split of the Common Stock at a time when each Right (if it becomesexercisable) would entitle the holder to purchase one one-hundredth of a share of Preferred Stockfor a Purchase Price of $“Z”, then following such stock split each previous Right would be splitinto two current Rights and thereafter each such current Right, upon becoming exercisable, would(subject to further adjustment) entitle the holder to purchase one one-hundredth of a share ofPreferred Stock at a Purchase Price of 1/2 x $“Z”.
 
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Section 12. Certification of Adjustments. Whenever an adjustment is made as provided in Section11 or 13, the Company shall (a) promptly prepare a certificate setting forth such adjustment and abrief statement of the facts accounting for such adjustment, (b) promptly file with the RightsAgent and with each transfer agent for the Preferred Stock a copy of such certificate, and (c) mailor cause the Rights Agent to mail a brief summary thereof to each holder of a Rights Certificate(or, if no Rights Certificates have been issued, to each holder of a certificate representingshares of Common Stock) in accordance with Section 25. Notwithstanding the foregoing sentence, thefailure of the Company to give such notice shall not affect the validity of or the force or effectof or the requirement for such adjustment. Any adjustment to be made pursuant to Section 11 or 13shall be effective as of the date of the event giving rise to such adjustment.Section 13. Consolidation, Merger or Sale or Transfer of Property, Assets or Earning Power.(a) A “Business Combination” shall be deemed to occur in the eventthat, on or following a Triggering Event, (i) the Company shall, directly or indirectly,consolidate with, or merge with and into, any other Person (other than a Subsidiary of the Companyin a transaction that complies with Section 11(m) and Section 11(n)) in a transaction in which theCompany is not the continuing, resulting or surviving corporation of such merger or consolidation;(ii) any Person (other than a Subsidiary of the Company in a transaction that complies with Section11(m) and Section 11(n)) shall, directly or indirectly, consolidate with the Company, or shallmerge with and into the Company, in a transaction in which the Company is the continuing, resultingor surviving corporation of such merger or consolidation and, in connection with such merger orconsolidation, all or part of the Common Stock shall be changed (including, without limitation, anyconversion into or exchange for securities of the Company or of any other Person, cash or any otherproperty); (iii) the Company shall, directly or indirectly, effect a share exchange in which all orpart of the Common Stock shall be changed (including, without limitation, any conversion into orexchange for securities of any other Person, cash or any other property); or (iv) the Companyshall, directly or indirectly, sell, lease, exchange, mortgage, pledge (other than pledges in theordinary course of the Company’s financing activities) or otherwise transfer or dispose of (or oneor more of its Subsidiaries shall directly or indirectly sell, lease, exchange, mortgage, pledge(other than pledges in theordinary course of the Company’s financing activities) or otherwise transfer or dispose of), in onetransaction or a series of related transactions, property, assets or earning power aggregating morethan 50% of the property, assets or earning power of the Company and its Subsidiaries (taken as awhole) to any other Person (other than the Company or any of its Subsidiaries in one or moretransactions each and all of which comply with Section 11(m) and Section 11(n)).
 
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In the event of a Business Combination, proper provision shall be made so that each holder of aRight (except as otherwise provided in this Agreement) shall thereafter have the right to receive,upon the exercise thereof at a price equal to the Purchase Price immediately prior to the firstoccurrence of a Triggering Event multiplied by the number of one one-hundredths of a share ofPreferred Stock for which a Right was exercisable immediately prior to the first occurrence of aTriggering Event (without giving effect to the Triggering Event) in accordance with the terms ofthis Agreement, such number of shares of Common Stock of the Principal Party as shall be equal tothe result obtained by (x) multiplying the Purchase Price immediately prior to the first occurrenceof a Triggering Event by the number of one one-hundredths of a share of Preferred Stock for which aRight was exercisable immediately prior to the first occurrence of a Triggering Event (withoutgiving effect to the Triggering Event), and (y) dividing that product by 50% of the Current MarketPrice per share of the Common Stock of such Principal Party immediately prior to the consummationof such Business Combination. All shares of Common Stock of any Person for which any Right may beexercised after consummation of a Business Combination as provided in this Section 13(a) shall,when issued upon exercise thereof in accordance with this Agreement, be duly and validly authorizedand issued, fully paid, nonassessable, freely tradeable, not subject to liens or encumbrances, andfree of preemptive rights, rights of first refusal or any other restrictions or limitations on thetransfer or ownership thereof of any kind or nature whatsoever.(b) After consummation of any Business Combination, (i) the Principal Party shall be liable for,and shall assume, by virtue of such Business Combination and without the necessity of any furtheract, all the obligations and duties of the Company pursuant to this Agreement, (ii) the term“Company” as used in this Agreement shall thereafter be deemed to refer to such Principal Party,and (iii) such Principal Party shall take all steps (including, but not limited to, the reservationof a sufficient number of shares of its Common Stock in accordance with Section 9) in connectionwith such Business Combination as is necessary to ensure that the provisions of this Agreementshall thereafter be applicable, as nearly equivalent as practicable, in relation to the shares ofits Common Stock thereafter deliverable upon the exercise of the Rights.(c) The Company shall not consummate any Business Combination unless prior thereto (i) thePrincipal Party shall have a sufficient number of authorized shares of its Common Stock which havenot been issued or reserved for issuance (other than shares reserved for issuance pursuant to thisAgreement to the holders of Rights) to permit the exercise in full of the Rights in accordance withthis Section 13; (ii) the Company and such Principal Party shall have executed and delivered to theRights Agent a supplemental agreement providing for the fulfillment of the Principal Party’sobligations and the terms as set forth in paragraphs (a) and (b) of this Section 13 and furtherproviding that, as soon as practicable on or after the date of such Business Combination, thePrincipal Party, at its own expense, shall (A) prepare and file, if necessary, a registrationstatement on an appropriate form under the Securities Act with respect to the Rights and thesecurities purchasable upon exercise of the Rights; (B) use its reasonable best efforts to causesuch registration statement to become effective as soon as practicable after such filing andremain effective (with a prospectus at all times meeting the requirements of the Securities Act)until the Expiration Date; (C) deliver to holders of the Rights historical financial statementsfor the Principal Party and each of its Affiliates which comply in all respects with therequirements for registration on Form 10 (or any successor form) under the Exchange Act; (D) useits
 
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 reasonable best efforts to qualify or register the Rights and the securities purchasable uponexercise of the Rights under the state securities or “blue sky” laws of such jurisdictions as maybe necessary or appropriate; (E) use its reasonable best efforts to list the Rights and thesecurities purchasable upon exercise of the Rights on a United States national securities exchange;and (F) obtain waivers of any rights of first refusal or preemptive rights in respect of the CommonStock of the Principal Party subject to purchase upon exercise of outstanding Rights; (iii) theCompany and the Principal Party shall have furnished to the Rights Agent an opinion of independentcounsel stating that such supplemental agreement is a legal, valid and binding agreement of thePrincipal Party enforceable against the Principal Party in accordance with its terms; and (iv) theCompany and the Principal Party shall have filed with the Rights Agent a certificate of anationally recognized firm of independentaccountants setting forth the number of shares of Common Stock of such issuer which may bepurchased upon the exercise of each Right after the consummation of such Business Combination.(d) The provisions of this Section 13 shall similarly apply to successive Business Combinations.In the event a Business Combination shall be consummated at any time after the occurrence of aTriggering Event, the Rights which have not theretofore been exercised shall thereafter beexercisable for the consideration and in the manner described in Section 13(a). Following aBusiness Combination, the provisions of Section 11(a) (ii) shall be of no effect.(e) Notwithstanding any other provision of this Agreement to the contrary, no adjustment to thenumber of shares of Preferred Stock (or fractions of a share) or other securities, cash or otherproperty for which a Right is exercisable or the number of Rights outstanding or associated witheach share of Common Stock or any similar or other adjustment shall be made or be effective if suchadjustment would have the effect of reducing or limiting the benefits the holders of the Rightswould have had absent such adjustment, including, without limitation, the benefits under Sections11 and 13, unless the terms of this Agreement are amended so as to preserve such benefits.(f) The Company covenants and agrees that it shall not effect any Business Combination if at thetime of, or immediately after such Business Combination, there are any rights, options, warrants orother instruments outstanding which would diminish or otherwise eliminate the benefits intended tobe afforded by the Rights.(g) Without limiting the generality of this Section 13, in the event the nature of theorganization of any Principal Party shall preclude or limit the acquisition of Common Stock of suchPrincipal Party upon exercise of the Rights as required by Section 13(a) as a result of a BusinessCombination, it shall be a condition to such Business Combination that such Principal Party shalltake such steps (including, but not limited to, a reorganization) as may be necessary to ensurethat the benefits intended to be derived under this Section 13 upon the exercise of the Rights areassured to the holders thereof.
 
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(h) In addition to, and without limiting, any other provision of this Section 13, in case thePrincipal Party which is to be a party to a transaction referred to in this Section 13 hasprovision in any of its authorized securities or in its certificate of incorporation or by-laws orother instrument governing its corporate affairs (or equivalent documents for a non-corporatePerson), which provision would have the effect of (i) causing such Principal Party to issue (otherthan to holders of Rights pursuant to this Section 13), in connection with, or as a consequence of,the consummation of a transaction referred to in this Section 13, Common Stock of such PrincipalParty at less than the then Current Market Price per share or securities exercisable for, orconvertible into, Common Stock of such Principal Party at less than such then Current Market Price,or (ii) providing for any special payment, tax or similar provisions in connection with theissuance of the Common Stock of such Principal Party pursuant to the provisions of this Section 13,then, in such event, the Company hereby agrees with each holder of Rights that it shall notconsummate any such transaction unless prior thereto the Company and such Principal Party shallhave executed and delivered to the Rights Agent a supplemental agreement providing that theprovision in question of such Principal Party shall have been cancelled, waived or amended, or thatthe authorized securities shall be redeemed, so that the applicable provision will have no effectin connection with, or as a consequence of, the consummation of the proposed transaction.Section 14. Fractional Rights and Fractional Shares.(a) The Company shall not be required to issue fractional Rights or to distribute RightsCertificates which evidence fractional Rights. In lieu of such fractional Rights, the Company mayat its option pay to the registered holders of the Rights Certificates with respect to which suchfractional Rights would otherwise be issuable an amount in cash equal to the same fraction of thecurrent market value of a whole Right. For the purposes of this Section 14(a), the current marketvalue of a whole Right shall be the closing price of a Right for the Trading Day immediately priorto the date on which such fractional Rights otherwise would have been issuable. The closing pricefor any Trading Day shall be the last sale price, regular way, on such day, or, in case no suchsale takes place on such day, the average of the closing bid and asked prices, regular way, on suchday, in either case as reported in the principal consolidated transaction reporting system withrespect to securities listed or admitted to trading on the NYSE or, ifthe Rights are not listed or admitted to trading on the NYSE, as reported in the principalconsolidated transaction reporting system with respect to securities listed on the principal UnitedStates national securities exchange on which the Rights are listed or admitted to trading or, ifthe Rights are not listed or admitted to trading on any United States national securities exchange,the last quoted sale price on such day or, if not so quoted, the average of the high bid and lowasked prices in the over-the-counter market on such day, as reported by NASDAQ or such other systemthen in use or, if on such day the Rights are not quoted by any such system, the average of theclosing bid and asked prices on such day as furnished by a professional market maker making amarket in the Rights selected by a majority of the Board of Directors of the Company (whichselection shall be final, binding and conclusive for all purposes). If on such day no such marketmaker is making a market in the Rights, the current market value of the Rights on such day shall bedetermined in good faith by a majority of the Board of Directors of the Company, whosedetermination shall be described in a statement filed with the Rights Agent and shall be final,binding and conclusive for all purposes.
 
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(b) The Company shall not be required to issue fractions of shares of Preferred Stock (other thanfractions which are integral multiples of one one-hundredth of a share of Preferred Stock) uponexercise of the Rights or to distribute certificates which evidence fractional shares of PreferredStock (other than fractions which are integral multiples of one one-hundredth of a share ofPreferred Stock). Fractions of shares of Preferred Stock may, at the election of the Company, beevidenced by depositary receipts pursuant to an appropriate agreement between the Company and adepositary selected by it, provided that such agreement shall provide that the holders of suchdepositary receipts shall have all the rights, privileges and preferences to which they areentitled as beneficial owners of the Preferred Stock. In lieu of fractional shares of PreferredStock that are not integral multiples of one one-hundredth of a share of Preferred Stock, theCompany may at its option (i) issue scrip or warrants in registered form (either represented by acertificate or uncertificated) or in bearer form (represented by a certificate) which shall entitlethe holder to receive a full one one-hundredth of a share of Preferred Stock upon the surrender ofsuch scrip or warrants aggregating a full one one-hundredth of a share of Preferred Stock, or (ii)pay to the registered holders of Rights Certificates at the time such Rights Certificates areexercised as provided in this Agreement an amount in cash equal to the same fraction of the currentmarket value of a share of Preferred Stock. For purposes of this Section 14(b), the current marketvalue of a share of Preferred Stock shall be the closing price of a share of Preferred Stock (asdetermined pursuant to the second sentence of the definition of “Current Market Price” in Section1) for the Trading Day immediately prior to the date of such exercise.(c) The Company shall not be required to issue fractions of shares of Common Stock or Common StockEquivalents or to distribute certificates which evidence fractional shares of Common Stock orCommon Stock Equivalents. In lieu of such fractional shares of Common Stock or Common StockEquivalents, the Company shall pay to the registered holders of the Rights Certificates with regardto which such fractional shares of Common Stock or Common Stock Equivalents would otherwise beissuable an amount in cash equal to the product derived by multiplying (x) the subject fraction, by(y) Current Market Price of the Company’s Common Stock.(d) The holder of a Right by his acceptance thereof expressly waives any right to receive anyfractional Rights or any fractional shares upon exercise of a Right (except as otherwise providedin this Agreement).Section 15. Rights of Action. Except as otherwise provided, all rights of action in respect ofthis Agreement are vested in the respective registered holders of the Rights Certificates (and,prior to the Distribution Date, any registered holders of associated Common Stock); and anyregistered holder of any Rights Certificate (or, prior to the Distribution Date, any share ofassociated Common Stock), without the consent of the Rights Agent or of the holder of any otherRight, may, on his own behalf and for his own benefit, enforce, and may institute and maintain anysuit, action or proceeding against the Company or any Principal Party to enforce, or otherwise actin respect of, his rights pursuant to this Agreement. Without limiting the foregoing or anyremedies available to the holders of Rights, it is specifically acknowledged that the holders ofRights would not have an adequate remedy at law for any breach of this Agreement and will beentitled, without posting any bond, to specific performance of the obligations under, andinjunctive relief against any actual or threatened violation of the obligations of any Personsubject to, this Agreement.
 
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Section 16. Agreement of Rights Holders Concerning Transfer and Ownership of Rights. Every holderof a Right by accepting the same consents and agrees with the Company and the Rights Agent and withevery other holder of a Right that:(a) prior to the Distribution Date, the Rights will be transferable only in connection with thetransfer of Common Stock;(b) after the Distribution Date, the Rights Certificates will be transferable on the registry booksof the Rights Agent only if surrendered at the principal corporate trust office of the RightsAgent, duly endorsed or accompanied by a proper instrument of transfer;(c) the Company and the Rights Agent may deem and treat the Person in whose name a RightsCertificate (or, prior to the Distribution Date, the associated Common Stock certificate) isregistered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding anynotations of ownership or writing on the Rights Certificate or the associated Common Stockcertificate made by anyone other than the Company, the transfer agent for the Common Stock or theRights Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent shall beaffected by any notice to the contrary; and(d) notwithstanding anything in this Agreement to the contrary, neither the Company nor the RightsAgent shall have any liability to any holder of a Right or other Person as a result of itsinability to perform any of its obligations under this Agreement by reason of any preliminary orpermanent injunction or other order, decree or ruling issued by a court of competent jurisdictionor by a governmental, regulatory or administrative agency or commission, or any statute, rule,regulation or executive order promulgated or enacted by any governmental authority, prohibiting orotherwise restraining performance of such obligation; provided, however, the Company must use itsreasonable best efforts to have any such order, decree or ruling lifted or otherwise overturned assoon as possible.Section 17. Rights Holder Not Deemed a Stockholder. No holder, as such, of any Rights Certificateshall be entitled to vote or to receive dividends or distributions or shall be deemed for anypurpose the holder of Preferred Stock or any other securities, cash or other property which may atany time be issuable on the exercise of the Rights represented thereby, nor shall anythingcontained in this Agreement or in any Rights Certificate be construed to confer upon the holder ofany Rights Certificate, as such, any of the rights of a stockholder of the Company, including,without limitation, any right (i) to vote for the election of directors or upon any mattersubmitted to stockholders at any meeting thereof, (ii) to give or withhold consent to any corporateaction, (iii) to receive notice of meetings or other actions affecting stockholders (except asprovided in Section 24), (iv) to receive dividends, distributions or subscription rights, or (v) toinstitute, as a holder of Preferred Stock or other securities issuable on exercise of the Rightsrepresented by any Rights Certificate, any derivative action on behalf of the Company, orotherwise, until and only to the extent that the Right or Rights evidenced by such RightsCertificate shall have been exercised in accordance with the provisions of this Agreement.
 
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Section 18. Concerning the Rights Agent. The Company agrees to pay to the Rights Agent reasonablecompensation for all services rendered by it hereunder and, from time to time, on demand of theRights Agent, its reasonable expenses and counsel fees and other disbursements incurred in theadministration and execution of this Agreement and the exercise and performance of its dutieshereunder. The Company also agrees to indemnify the Rights Agent for, and to hold it harmlessagainst, any loss, liability or expense incurred without gross negligence, bad faith, willfulmisconduct or breach of this Agreement on the part of the Rights Agent for anything done or omittedby the Rights Agent in connection with the acceptance and administration of this Agreement,including the costs and expenses of defending against any claim of liability in the premises. Thisindemnification shall survive the termination of this Agreement.The Rights Agent shall be protected and shall incur no liability for or in respect of any actiontaken, suffered or omitted by it in connection with its administration of this Agreement inreliance upon any Rights Certificate or certificate for Preferred Stock or Common Stock or forother securities of the Company, instrument of assignment or transfer, power of attorney,endorsement, affidavit, letter, notice, direction, consent, certificate, statement or other paperor document reasonably believed by it to be genuine and to be signed, executed and, when necessary,verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counselas set forth in Section 20.Section 19. Merger or Consolidation or Change of Name of Rights Agent. Any corporation or otherentity into which the Rights Agent or any successor Rights Agent may be merged or with which it maybe consolidated, or any corporation or other entity resulting from any merger or consolidation towhich the Rights Agent or any successor Rights Agent shall be a party, or any corporation or otherentity succeeding to the corporate trust or stock transfer business of the Rights Agent or anysuccessor Rights Agent, shall be the successor to the Rights Agent under this Agreement without theexecution or filing of any document or any further act on the part of any of the parties hereto,provided that such corporation or other entity would be eligible for appointment as a successorRights Agent under Section 21. In case at the time such successor Rights Agent shall succeed tothe agency created by this Agreement any of the Rights Certificates shall have been countersignedbut not delivered, any such successor Rights Agent may adopt the countersignature of thepredecessor Rights Agent and deliver such Rights Certificate so countersigned; and in case at thattime any of the Rights Certificates shall not have been countersigned, any successor Rights Agentmay countersign such Rights Certificate either in the name of the predecessor Rights Agent or inthe name of the successor Rights Agent; and in all such cases such Rights Certificates shall havethe full force provided in the Rights Certificates and in this Agreement.In case at any time the name of the Rights Agent shall be changed and at such time any of theRights Certificates shall have been countersigned but not delivered, the Rights Agent may adopt thecountersignature under its prior name and deliver Rights Certificates so countersigned; and in caseat that time any of the Rights Certificates shall not have been countersigned, theRights Agent may countersign such Rights Certificates either in its prior name or in its changedname; and in all such cases such Rights Certificates shall have the full force provided in theRights Certificates and in this Agreement.
 
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Section 20. Duties of Rights Agent. The Rights Agent undertakes and agrees to perform the dutiesand obligations imposed by this Agreement upon the following terms and conditions, by all of whichthe Company and the holders of Rights Certificates, by their acceptance thereof, shall be bound:(a) The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), andthe opinion of such counsel shall be full and complete authorization and protection to the RightsAgent as to any action taken or omitted to be taken by it in good faith and in accordance withsuch opinion.(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem itnecessary or desirable that any fact or matter (including, without limitation, the identity of anyAcquiring Person or any Affiliate or Associate of an Acquiring Person or the determination ofCurrent Market Price) be proved or established by the Company prior to taking or suffering anyaction hereunder, such fact or matter (unless other evidence in respect thereof be specificallyprescribed in this Agreement) may be deemed to be conclusively proved and established by acertificate signed by the Chairman of the Board, the President, the Chief Executive Officer, anyVice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent;and such certificate shall be full authorization to the Rights Agent for any action taken oromitted by it in good faith under this Agreement in reliance upon such certificate.(c) The Rights Agent shall be liable hereunder only for the gross negligence, bad faith, willfulmisconduct or breach of this Agreement by it or its attorneys or agents.(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact orrecitals contained in this Agreement or in the RightsCertificates (except its countersignature thereof) or be required to verify the same, but all suchstatements and recitals are and shall be deemed to have been made by the Company only.(e) The Rights Agent shall not be under any responsibility in respect of the validity of thisAgreement or the execution and delivery of this Agreement (except the due execution and delivery ofthis Agreement by the Rights Agent) or in respect of the validity or execution of any RightsCertificate (except its countersignature thereof); nor shall it be responsible for any breach bythe Company of any covenant or condition contained in this Agreement orin any Rights Certificate; nor shall it be responsible for any change in the transferability orexercisability of the Rights or any change or adjustment in the terms of the Rights (including themanner, method or amount thereof) provided for in Section 3, 11, 13 or 23 or any other provision ofthis Agreement or the ascertaining of the existence of facts that would require any such change oradjustment (except with respect to the exercise of Rights evidenced by Rights Certificates afteractual notice of any change or adjustment is required); nor shall it by any act hereunder be deemedto make any representation or warranty as to the authorization or reservation of any shares ofPreferred Stock, Common Stock or other securities to be issued pursuant to this Agreement or anyRights Certificate or as to whether any shares of Preferred Stock, Common Stock or other securitieswill, when issued, be validly authorized and issued, fully paid and nonassessable.
 
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(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to beperformed, executed, acknowledged and delivered all such further and other acts, instruments andassurances as may reasonably be required by the Rights Agent for the carrying out or performance bythe Rights Agent of its duties and obligations under this Agreement.(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to theperformance of its duties hereunder from the Chairman of the Board, the Chief Executive Officer,the President, any Vice President, the Secretary or the Treasurer of the Company, and to apply tosuch officers for advice or instructions in connection with its duties, and it shall not be liablefor any action taken or omitted to be taken by it in good faith in accordance with instructions ofany such officer or for any delay in acting while waiting for such instructions. When applying toany such officer for instructions, the Rights Agent may set forth in writing (i) any proposedaction or omission of the Rights Agent with respect to its duties or obligations under thisAgreement and (ii) the date on or after which the Rights Agent proposes such action will be takenor omitted. Such date shall not be less than three Business Days after any such officer receivessuch application for instructions from the Rights Agent. Unless the Rights Agent has receivedwritten instructions from the Company (including any such officer) with respect to such proposedaction or omission prior to such date (or, if longer, in the case of a proposed action to be taken,prior to the Rights Agent actually taking such action), the Rights Agent shall not be liable forthe actions or omissions set forth in such application, provided that such action or omission doesnot violate any express provision of this Agreement.(h) The Rights Agent and any stockholder, director, officer or employee of the Rights Agent maybuy, sell or deal in any of the Rights or other securities of the Company or become pecuniarilyinterested in any transaction in which the Company may be interested, or contract with or lendmoney to the Company or otherwise act as fully and freely as though the Rights Agent were not serving as suchunder this Agreement. Nothing in this Agreement shall preclude the Rights Agent from acting in anyother 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 orperform any duty hereunder either itself or by or through its attorneys or agents, and the RightsAgent shall not be answerable or accountable for any act, default, neglect or misconduct of suchattorney or agent, provided that the Rights Agent exercised reasonable care in the selection andcontinued employment of such attorney or agent.(j) No provision of this Agreement shall require the Rights Agent to expend or risk its own fundsor otherwise incur any financial liability in the performance of any of its duties hereunder or inthe exercise of its rights hereunder if there shall be reasonable grounds for believing thatrepayment of such funds or adequate indemnification against such risk or liability is notreasonably assured to the Rights Agent.
 
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(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise ortransfer, the certificate attached to the form of assignment or form of election to purchase, asthe case may be, either has not been completed or indicates an affirmative response to clause 1and/or 2 thereof, the Rights Agent shall not take any further action with respect to such requestedexercise or transfer without first consulting with the Company.Section 21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may resign andbe discharged from its duties under this Agreement upon 30 days’ notice in writing mailed to theCompany and to each transfer agent of the Common Stock or Preferred Stock by registered orcertified mail, and to the holders of theRights Certificates by first-class mail. The Company may remove the Rights Agent or any successorRights Agent upon 30 days’ notice in writing, mailed to the Rights Agent or successor Rights Agent,as the case may be, and to each transfer agent of the Common Stock or Preferred Stock by registeredor certified mail, and to the holders of the Rights Certificates by first-class mail. If theRights Agent shall resign or be removed or shall otherwise become incapable of acting, the Companyshall appoint a successor to the Rights Agent. Notwithstanding any other provision of thisAgreement, in no event shall the resignation or removal of a Rights Agent be effective until asuccessor Rights Agent shall have been appointed and have accepted such appointment. If theCompany shall fail to make such appointment within a period of 30 days after such removal or afterit has been notified in writing of such resignation or incapacity by the resigning or incapacitatedRights Agent or by any holder of a Rights Certificate (who shall, with such notice, submit hisRights Certificate for inspection by the Company), then the incumbent Rights Agent or theregistered holder of any Rights Certificate may apply to any court of competent jurisdiction forthe appointment of a new Rights Agent. Any successor Rights Agent, whether appointed by theCompany or by such a court, shall be (i) a corporation or other entity organized and doing businessunder the laws of the United States or any state of the United States so long as such Person isauthorized to conduct a corporate trust or banking business under the laws of such state and is ingood standing, which is authorized under such laws to exercise corporate trust powers or stocktransfer powers and is subject to supervision or examination by federal or state authority andwhich has at the time of its appointment as Rights Agent a combined capital surplus and undividedprofits aggregating of at least $100,000,000, according to its last published statement ofcondition or (ii) an Affiliate of a Person described in clause(i). After appointment, thesuccessor Rights Agent shall be vested with the same powers, rights, duties and responsibilities asif it had been originally named as Rights Agent without further act or deed but the predecessorRights Agent shall deliver and transfer to the successor Rights Agent any property at the time heldby it hereunder and execute and deliver any further assurance, conveyance, act or deed necessaryfor such purpose. Not later than the effective date of any such appointment, the Company shall filenotice thereof in writing with the predecessor Rights Agent and each transfer agent of the CommonStock or Preferred Stock and mail a notice thereof in writing to the registered holders of theRights Certificates. Neither the failure to give any notice provided for in this Section 21,however, nor any defect therein, shall affect the legality or validity of the resignation orremoval of the Rights Agent or the appointment of the successor Rights Agent, as the case may be.
 
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Section 22. Issuance of New Rights Certificates. Notwithstanding any of the provisions of thisAgreement or of the Rights Certificates to the contrary, the Company may, at its option, issue newRights Certificates evidencing new Rights in such form as may be approved by a majority of theBoard of Directors of the Company to reflect any adjustment or change in the Purchase Price pershare and the number or kind or class of securities, cash or other property purchasable under theRights Certificates made in accordance with the provisions of this Agreement. In addition, inconnection with the issuance or sale of Common Stock following the Distribution Date and prior tothe Redemption Date, the Company may with respect to Common Stock so issued or sold pursuant to (i)the exercise of stock options, (ii) under any employee plan or arrangement, (iii) upon theexercise, conversion or exchange of securities notes or debentures issued by the Company or (iv) acontractual obligation of the Company, in each case existing prior to the Distribution Date, issueRights Certificates representing the appropriate number of Rights in connection with such issuanceor sale.Section 23. Redemption.(a) The Board of Directors of the Company may, at its option, at any time prior to the earlier of(i) the Stock Acquisition Date and (ii) the Expiration Date, redeem all but not less than all ofthe then-outstanding Rights at a redemption price of $.01 per Right (the “Redemption Price”)appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurringafter the date of this Agreement. The Company may, at its option, pay the Redemption Price incash, shares (including fractional shares) of Common Stock (based on the Current Market Price ofthe Common Stock at the time of redemption) or any other form of consideration deemed appropriateby the Board of Directors.(b) At the time and date of effectiveness set forth in any resolution of the Board of Directors ofthe Company ordering the redemption of the Rights (the “Redemption Date”), without any furtheraction and without any further notice, the right to exercise the Rights will terminate and the onlyright thereafter of the holders of Rights shall be to receive the Redemption Price; provided,however, that such resolution of the Board of Directors of the Companymay be revoked, rescinded or otherwise modified at any time prior to the time and date ofeffectiveness set forth in such resolution, in which event the right to exercise will not terminateat the time and date originally set for such termination by the Board of Directors of the Company.As soon as practicable after the action of the Board of Directors of the Company ordering theredemption of the Rights, the Company shall give notice of such redemption to the Rights Agent andto the holders of the then-outstanding Rights by mailing such notice to all such holders at theirlast addresses as they appear upon the registry books of the Rights Agent or, prior to the issuanceof Rights Certificates, on the registry books of the transfer agent for the Common Stock. Anynotice which is mailed in the manner provided in this Agreement shall be deemed given, whether ornot the holder receives the notice. Each such notice of redemption will state the method by whichthe payment of the Redemption Price will be made. In any case, failure to give such notice bymail, or any defect in the notice, to any particular holder of Rights shall not affect thesufficiency of the notice to other holders of Rights. In the case of a redemption permitted underthis Section 23, the Company may, at its option, discharge all of its obligations with respect tothe Rights by (i) issuing a press release announcing the manner of redemption of the Rights and (ii) mailing payment of the Redemption Price to the registered holders of the Rights at their lastaddresses as they appear on the registry books of the Rights Agent or, prior to the issuance of theRights Certificates, on the registry books of the transfer agent for the Common Stock, and uponsuch action, all outstanding Rights Certificates shall be null and void without any further actionby the Company. Neither the Company nor any of its Affiliates or Associates may redeem, acquire orpurchase for value any Rights at any time in any manner other than as specifically set forth inthis Section 23 and other than in connection with the purchase of shares of Common Stock prior tothe earlier of the Distribution Date and the Expiration Date.
 
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Section 24. Notice of Certain Events. In case the Company, on or after the Distribution Date,shall propose to (a) pay any dividend payable in stock of any class to the holders of its PreferredStock or to make any other distribution to the holders of its Preferred Stock (other than a regularperiodic regular cash dividend at an annual rate not in excess of: (x) 125% of the annual rate ofthe cash dividend paid on the Preferred Stock during the immediately preceding fiscal year, or ifthe Preferred Stock was not outstanding during such preceding fiscal year, then 125% of the annualrate of the regular cash dividend paid on the Common Stock during such year, or (y) in the eventthat a regular cash dividend was not paid on the Preferred Stock (or Common Stock) during suchpreceding fiscal year, 5% of the Current Market Value of the Preferred Stock on the date suchregular cash dividend was first declared); or (b) offer to the holders of its Preferred Stockrights, options or warrants to subscribe for or to purchase any additional shares of PreferredStock or shares of stock of any class or any other securities, rights or options; or (c) effect anyreclassification of the Preferred Stock (other than a reclassification involving only thesubdivision of outstanding shares of Preferred Stock, a change in the par value of such PreferredStock or a change from par value to no par value); or (d) directly or indirectly effect anyconsolidation or merger into or with, or effect any sale, lease, exchange or other transfer ordisposition (or to permit one or more of its Subsidiaries to effect any sale, lease, exchange orother transfer or disposition), in one transaction or a series of related transactions, of morethan 50% of the property, assets or earning power of the Company and its Subsidiaries (taken as awhole) to, any other Person; or (e) effect the liquidation, dissolution or winding up of theCompany, then, in each such case, the Company shall give to each holder of a Right, in accordancewith Section 25, a notice of such proposed action, which shall specify any record date for thepurposes of such stock dividend, distribution or rights, or the date on which suchreclassification, consolidation, merger, sale, lease, exchange, transfer, disposition, liquidation,dissolution, or winding up is to take place and if such holders will or may participate therein,the date of participation therein by the holders of Common Stock and/or Preferred Stock, if anysuch date is to be fixed, and such notice shall be so given in the case of any action covered byclause (a) or (b) above at least 20 days prior to the record date for determining holders of thePreferred Stock for purposes of such action, and in the case of any such other action, at least 20days prior to the date of the taking of such proposed action or the date of participation therein,if any, by the holders of Preferred Stock, whichever shall be the earlier.In case any Triggering Event or Business Combination shall occur, then, in any such case, theCompany shall as soon as practicable thereafter give to each holder of a Rights Certificate, inaccordance with Section 25, notice of the occurrence of such Triggering Event or BusinessCombination, which shall specify the Triggering Event or Business Combination and include adescription of the consequences of such event to holders of Rights under Section 11(a) (ii) or 13.
 
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The failure to give notice as required by this Section 24 or any defect therein shall not affectthe legality or validity of the action taken by the Company or the vote upon any such action.Section 25. Notices. Notices or demands authorized by this Agreementto be given or made by the Rights Agent or by the holder of any Rights Certificate to or on theCompany shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed(until another address (or another person’s attention) is filed in writing with the Rights Agent)as follows:ATMI, Inc.