Filed by Bowne Pure Compliance





Exhibit
4.02





ATMI, Inc.




and




Fleet National Bank




RIGHTS AGREEMENT




Dated as of October 13, 2000




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 1. Certain Definitions
	 	 	2	 
	Section 2. Appointment of Rights Agent
	 	 	9	 
	Section 3. Issuance of Rights Certificates
	 	 	9	 
	Section 4. Form of Rights Certificates
	 	 	11	 
	Section 5. Execution, Countersignature and Registration
	 	 	12	 
	Section 6. Transfer, Division, Combination and Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen Rights Certificates
	 	 	12	 
	Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights
	 	 	13	 
	Section 8. Cancellation and Destruction of Rights Certificates
	 	 	15	 
	Section 9. Reservation and Availability of Preferred Stock
	 	 	15	 
	Section 10. Preferred Stock Record Date
	 	 	17	 
	Section 11. Adjustments to Purchase Price, Number of Shares or
Number of Rights
	 	 	17	 
	Section 12. Certification of Adjustments
	 	 	25	 
	Section 13. Assets or Earning Power
	 	 	25	 
	Section 14. Fractional Rights and Fractional Shares
	 	 	28	 
	Section 15. Rights of Action
	 	 	29	 
	Section 16. Agreement of Rights Holders Concerning Transfer and Ownership of Rights
	 	 	30	 
	Section 17. Rights Holder Not Deemed a Stockholder
	 	 	30	 
	Section 18. Concerning the Rights Agent
	 	 	31	 
	Section 19. Merger or Consolidation or Change of Name of Rights Agent
	 	 	31	 
	Section 20. Duties of Rights Agent
	 	 	32	 
	Section 21. Change of Rights Agent
	 	 	34	 
	Section 22. Issuance of New Rights Certificates
	 	 	35	 
	Section 23. Redemption
	 	 	35	 
	Section 24. Notice of Certain Events
	 	 	36	 
	Section 25. Notices
	 	 	37	 
	Section 26. Amendments and Supplements
	 	 	37	 
	Section 27. Successors
	 	 	38	 
	Section 28. Benefits of this Agreement; Determinations and Actions by the Board of
Directors
	 	 	38	 
	Section 29. Severability
	 	 	38	 
	Section 30. Governing Law
	 	 	39	 
	Section 31. Counterparts
	 	 	39	 
	Section 32. Descriptive Headings
	 	 	39	 
	Section 33. Grammatical Construction
	 	 	39	 





 


 









 





RIGHTS AGREEMENT




Rights 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 S




The Board of Directors of the Company has authorized and declared the payment of a dividend of one
preferred share purchase right (the “Right”) for each share of Common Stock (as defined in Section
1) outstanding on the Record Date (as defined in Section 1) and has authorized the issuance of one
Right for each share of Common Stock issued between the Record Date and the Distribution Date (as
such terms are defined in Section 1), and, in certain cases, following the Distribution Date. Each
Right represents, as of the Record Date, the right to purchase one one-hundredth of a share of
Preferred Stock (as defined in Section 1) upon the terms and subject to the conditions hereinafter
set forth.



NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth in this
Agreement, the parties hereby agree as follows:



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



(a) (i) “Acquiring Person” means any Person who or which, together with all Affiliates and
Associates of such Person, is (or has previously been, at any time after the date of this
Agreement, whether or not such Person(s) continues to be) the Beneficial Owner of 15% or more of
the Outstanding Common Stock (as defined in this Section 1). However, “Acquiring Person” shall not
include any Exempt Person.



(ii) A Person does not become an “Acquiring Person” solely as the result of (A) an acquisition of
Common Stock by the Company or any of its Subsidiaries which, by reducing the number of shares
outstanding, 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% or
more of the Outstanding Common Stock solely as a result of an Exempt Event; provided, however, that
if a Person becomes the
Beneficial Owner of 15% or more of the Outstanding Common Stock solely by reason of such a share
acquisition by the Company or the occurrence of such an Exempt Event and such Person shall, after
becoming the Beneficial Owner of such Common Stock, become the Beneficial Owner of additional
shares of Common Stock constituting 1% or more of the then Outstanding Common Stock by any means
whatsoever (other than as a result of the subsequent occurrence of an
Exempt Event, a stock dividend or a subdivision of the Common Stock into a larger number of shares
or a similar transaction), then such Person shall be deemed to be an “Acquiring Person”; or(C) the inadvertent acquisition of beneficial ownership of
15% or more of the Common Stock of the Company if the Board of Directors determines in good faith
that such acquisition was inadvertent and such Person immediately divests itself of a sufficient
number 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 the
Beneficial Owner of 15% or more of the Outstanding Common Stock solely by reason of such
Institutional Investor’s Regular Trading Activities; provided, however, that if an Institutional
Investor becomes the Beneficial Owner of 20% or more of the then Outstanding Common Stock other
than 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 a
sufficient number of shares of Common Stock as that it is no longer the Beneficial Owner of 20% or
more 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 in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in effect on the date of
this Agreement.



(c) “Associate” of a Person has the meaning given to such term in Rule 12b-2 of the General Rules
and Regulations under the Exchange Act, as in effect on the date of this Agreement.



(d) Except as provided below, a Person is the “Beneficial
Owner” 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 or
indirectly, the right or obligation (whether or not then exercisable or effective) to
acquire pursuant to any agreement, arrangement or understanding (whether or not in
writing), or upon the exercise of conversion rights, exchange rights, rights (other
than these Rights), warrants or options or otherwise; provided, however, that a Person
will not be deemed the Beneficial Owner of, or to beneficially own, securities tendered
pursuant to a tender or exchange offer made by or on behalf of such Person or any
Affiliate or Associate of such Person until such tendered securities are accepted for purchase or
exchange; and provided further, that prior to the occurrence of a Triggering Event, a
Person will not be deemed the Beneficial Owner of, or to beneficially own, securities
obtainable upon exercise of the Rights;




(iii) which such Person or any Affiliate or Associate of such Person has, directly or
indirectly, the right (whether or not then exercisable or effective) to vote, or to
direct the voting of, pursuant to any agreement, arrangement or understanding (whether or
not in writing); provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, any security pursuant to this clause (iii) if the
agreement, arrangement or understanding to vote, or to direct the voting of, such
security (A) arises solely from a revocable proxy or consent given in response to a
public proxy or consent solicitation made pursuant to, and in accordance with, the
Exchange Act and applicable rules and regulations thereunder and (B) is not also then
reportable on Schedule 13D under the Exchange Act (or any comparable or successor
schedule or report);


 


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(iv) which such Person or any Affiliate or Associate of such Person has “beneficial
ownership” of (as determined pursuant to Rule 13d-3 of the General Rules and Regulations
under the Exchange Act or any comparable or successor provision); or




(v) which are beneficially owned, directly or indirectly, by any other Person or any
Affiliate or Associate of such other Person with whom such Person or any Affiliate or
Associate of such Person has any agreement, arrangement or understanding (whether or not in
writing) for the purpose of acquiring, holding, voting (except pursuant to a revocable proxy
as described in subparagraph (iii) of this Section 1(d)) or disposing of any securities of
the Company.



Nothing in this Section 1(d) causes a Person engaged in business as an underwriter of securities to
be the “Beneficial Owner” of, or to “beneficially own,” any securities acquired through such
Person’s participation in good faith in a firm commitment underwriting until the expiration of 40
days after the date of such acquisition.



Notwithstanding anything in this Agreement to the contrary, for purposes of this Agreement, no
Person is to be treated as the “Beneficial Owner” of, or to “beneficially own,” any securities
owned 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 constituted
from time to time, or if the Company ceases to exist as a result of a Business Combination or
otherwise, 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 banking
institutions in the State of New York are authorized or obligated by law or executive order to
close.



(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, New
York time, on the next succeeding Business Day.



(i) “Common Stock” when used in any context applicable prior to a Business Combination means the
common stock, par value $.01 per share, of the Company (as the same may be changed by reason of any
combination, subdivision or reclassification of the Common Stock). “Common Stock” when used with
reference to any Person (other than the Company prior to a Business Combination) mean shares of
capital stock of such Person (if such Person is a corporation) of any class or series, or units of
equity interests in such Person (if such Person is not a corporation) of any class or series, the
terms of which shares or units do not limit (as a fixed amount and not merely
in proportional terms) the amount of dividends or income payable or distributable on such shares or units or the
amount of property or assets distributable on such shares or units upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person and do not provide that such
shares or units are subject to redemption at the option of such Person, or any shares of capital
stock 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 capital
stock of or equity interests in such Person, “Common Stock” of such Person will include all such
classes and series substantially in the proportion of the total number of shares or other units of
each 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 any
date is the average of the daily closing prices per share of such Common Stock, Preferred Stock or
Equivalent 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 computation
under this Agreement except computations made pursuant to Section 11(a)(iii), and for the 10
consecutive Trading Days immediately following such date for the purpose of any computation under
Section 11(a)(iii); provided, however, that in the event that the Current Market Price per share of
Common Stock, Preferred Stock or Equivalent Shares is determined during a period following the
announcement by the issuer of such Common Stock, Preferred Stock or Equivalent Shares of (i) a
dividend or distribution on such Common Stock, Preferred Stock or Equivalent Shares other than a
regular quarterly cash dividend, or (ii) any subdivision, combination or reclassification of such
Common Stock, Preferred Stock or Equivalent Shares, and prior to the expiration of 30 Trading Days
after the “ex-dividend” date for such dividend or distribution or the record date for such
subdivision, combination or reclassification, then, and in each such case, the “Current Market
Price” shall be appropriately adjusted to take into account such dividend, distribution,
subdivision, combination or reclassification. The closing price for each Trading Day shall be the
last sale price, regular way, on such day, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, on such day, in either case as reported
in the principal consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange (“NYSE”) or, if the Common Stock, Preferred
Stock or Equivalent Shares are not listed or admitted to trading on the NYSE, as reported in the
principal consolidated transaction reporting system with respect to securities listed on the
principal United States national securities exchange on which the Common Stock, Preferred Stock or
Equivalent Shares are listed or admitted to trading or, if the Common Stock, Preferred Stock or
Equivalent Shares 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 low asked prices in the over-the-counter market on such day, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System (“NASDAQ”) or such other system
then in use. If on any such day the Common Stock, Preferred Stock or Equivalent Shares are not
quoted by any such system, the average of the closing bid and asked prices on such day as furnished
by a professional market maker making a market in the Common Stock, Preferred Stock or Equivalent
Shares selected by a majority of the Board of Directors shall be used (which selection shall be
final, binding and conclusive for all purposes). If on such day



 


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no such market maker is making a
market, the fair market value of such shares on such day as determined in good faith by a majority
of the Board of Directors or the Board of Directors of the issuer of such Common Stock, Preferred Stock or
Equivalent Shares must be used, which determination must be described in a statement filed with the
Rights 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 Common
Stock, Preferred Stock or Equivalent Shares are listed or admitted to trading is open for the
transaction of business or, if the Common Stock, Preferred Stock of Equivalent Shares are not
listed or admitted to trading on any United States national securities exchange, but are traded in
the over-the-counter market and reported
by NASDAQ, then any day for which NASDAQ reports the high bid and low asked prices in the
over-the-counter market, or if the Common Stock, Preferred Stock or Equivalent Shares are not
traded in the over-the-counter market and reported by NASDAQ, then a Business Day. If the Common
Stock, Preferred Stock or Equivalent Shares have not been so listed or admitted to trading for 30
or more Trading Days or traded in the over-the-counter market and reported by NASDAQ for 30 or
more Trading Days, “Current Market Price” per share means the fair market value per share as
determined in good faith by a majority of the Board of Directors, whose determination must be
described in a statement filed with the Rights Agent and shall be final, binding and conclusive for
all purposes.



(k) “Distribution Date” means the earlier of (i) the Stock Acquisition Date, and (ii) the tenth
Business Day, after the Tender Offer Date. The Board of Directors of the Company may, at its
election, defer the date set forth in clause (ii) of the preceding sentence to a specified later
date 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 the
Preferred Stock, which is entitled to participate on a proportional basis with the Preferred Stock
in dividends and other distributions, including distributions upon the liquidation, dissolution or
winding up of the Company. In calculating the number of any class or series of Equivalent Shares
for purposes of Section 11, the number of shares, or fractions of a share, of such class or series
of capital stock that is entitled to the same dividend or distribution as a whole share of
Preferred Stock shall be deemed to be one share.



(m) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor
statute.



(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 Beneficial
Ownership of Common Stock of the Company solely as a result of the occurrence of a Triggering Event
and the effect of such Triggering Event on the last proviso of clause (ii) of the definition of
Beneficial 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 employee
benefit plan of the Company or of any Subsidiary of the Company, and (iv) any Person holding Common
Stock for any such employee benefit plan or for employees of the Company or of any Subsidiary of
the 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 managing
investment funds for unaffiliated securities investors and, as part of such Person’s duties as
agent for fully managed accounts, holds or exercises voting or dispositive power over shares of
Common Stock.



(s) “Outstanding Common Stock” shall be determined in accordance with the last sentence of Rule
13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act (or any successor or
comparable provision); provided, however, that any such calculation made for purposes of
determining the particular percentage of outstanding shares of Common Stock of which any Person is
the Beneficial Owner shall also include any such other securities not then actually issued and
outstanding which such Person would be deemed to be the Beneficial Owner of, or to “beneficially
own,” 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 include
any “group” as that term is used in Rule 13d-5(b) of the General Rules and Regulations under the
Exchange Act (or any successor provision).



(u) “Preferred Stock” means the Company’s Junior Participating Preferred Stock, par value $.01 per
share, having the rights and preferences set forth in the Certificate of Designation, Preferences
and 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 any
securities into which shares of Common Stock of the Company are converted or for which they are
exchanged in such Business Combination or, if there is more than one such issuer, the issuer of the
Common 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 one
such 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 Section
13(a), the Person that receives the greatest portion of the property, assets or earning power
transferred pursuant to such Business Combination or, if each Person that is a party to such
Business Combination receives the same portion of the property, assets or earning power so
transferred or if the Person receiving the greatest portion of the assets or earning power cannot
reasonably be determined, whichever of such Persons is the issuer of the Common Stock which has the
greatest aggregate market value; provided, however, that in any such case, if the Common Stock of
such Person is not at such time and has not been continuously over the preceding 12-month period
registered under Section 12 of the Exchange Act and such Person is a direct or indirect Subsidiary
of 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 registered
under Section 12 of the Exchange Act; (B) if the Common Stocks of two or more of such other Persons
are and have been so registered, “Principal Party” refers to whichever of such other Persons is
the issuer of the Common Stock which has the greatest aggregate market value; or (C) if the Common
Stock of none of such other Persons has been so registered, “Principal Party” refers to whichever
of such other Persons (other than an individual) is the Person which has the equity securities with
the greatest aggregate market value. In case such Person is owned, directly or indirectly, by a
joint venture formed by two or more Persons that are not owned, directly or indirectly, by the same
Person, the rules set forth above apply to each of the chains of ownership having an interest in
such joint venture as if such Person were a Subsidiary of both or all of such joint venturers and
the Principal Parties in each such chain shall bear the obligations set forth in Section 13 in the
same ratio as their direct or indirect interests in such Person bear to the total of such
interests.



(w) “Purchase Price” with respect to each Right is initially $175.00 per one one-hundredth of a
share of Preferred Stock, shall be subject to adjustment from time to time as provided in Sections
11 and 13, and shall be payable in lawful money of the United States of America in cash or by
certified 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 provided
in 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 Institutional
Investor’s normal course of business and not for the purpose of exercising, either alone or in
concert with any other Person, power to direct or cause the direction of the management and
policies of the Company.



(bb) “Rights Agent” means Fleet National Bank or any co-Rights Agent or successor Rights Agent
appointed 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 date
which is on or after the date of this Agreement and prior to the issuance of the Rights) of public
disclosure by the Company, an Acquiring Person or otherwise that a Person has become an Acquiring
Person.



(ee) “Subsidiary” has the meaning given to such term in Rule 12b-2 of the General Rules and
Regulations 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 to
commence (including any such commencement or public disclosure which occurs on or after the date of
this Agreement and prior to the issuance of the Rights) a tender offer or exchange offer by a
Person if,
after acquiring the maximum number of securities sought pursuant to such offer, such
Person, or any Affiliate or Associate of such Person, would be an Acquiring Person.


 


8









 





(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 as
agent for the Company in accordance with the terms and conditions hereof, and the Rights Agent
hereby accepts such appointment. The Company may from time to time appoint such co-Rights Agents
as it may deem necessary or desirable, upon ten (10) days’ prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and shall in no event be liable for, the
acts or omissions of any such co-Rights Agents.



Section 3. Issuance of Rights Certificates.



(a) Until the Distribution Date: (i) the Rights shall be issued in respect of and shall be
evidenced by the certificates representing the shares of Common Stock issued and outstanding on the
Record Date and shares of Common Stock issued or which become outstanding after the Record Date and
prior to the earliest of the Distribution Date, the Redemption Date, the Exchange Date and the
Expiration Date (which certificates for Common Stock shall be deemed to also be certificates
evidencing the Rights), and not by separate certificates; (ii) the registered holders of such
shares of Common Stock shall also be the registered holders of the Rights associated with such
shares; and (iii) the Rights shall be transferable only in connection with the transfer of shares
of Common Stock and the surrender for transfer of any certificate for such shares of Common Stock
shall also constitute the surrender for transfer of the Rights associated with the shares of Common
Stock represented thereby. As soon as practicable after the Company has notified the Rights Agent
of the occurrence of the Distribution Date, the Company will prepare and execute, and the Company
will deliver to the Rights Agent to be countersigned, which the Rights Agent shall do, and the
Rights Agent shall mail, by first-class, insured, postage prepaid mail, to each record holder of
the Common Stock as of the Close of Business on the Distribution Date, as shown by the records of
the Company, at the address of such holder shown on such records, one or more certificates
evidencing 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 of
Common Stock so held. From and after the Distribution Date, the Rights will be evidenced solely by
such Rights Certificates. In the event that an adjustment in the number of Rights per share of
Common Stock has been made pursuant to Section 11(o), at the time of distribution of the Rights
Certificates, the Company may make the necessary and appropriate adjustments (in accordance with
Section 14(a)) so that Rights Certificates representing only whole numbers of Rights are
distributed 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 a
Summary 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 Stock
as of the close of business on the Record Date (other than any Acquiring Person or any Associate or
Affiliate of any Acquiring Person), at the address of such holder shown on the records of the
Company. With respect to certificates for Common Stock outstanding as of the Record Date, until
the Distribution Date, the Rights will be evidenced by such certificates registered in the names of
the holders thereof together with the Summary of Rights. Until the Distribution Date (or the
earlier of the Redemption Date and the Expiration Date), the surrender for transfer of any
certificate for Common Stock outstanding on the Record Date, with or without a copy of the Summary
of Rights, shall also constitute the transfer of the Rights associated with the Common Stock
represented thereby.


 


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(c) Rights shall be issued in respect of all shares of Common Stock which are issued or sold by the
Company after the Record Date but prior to the earliest of the Distribution Date, the Redemption
Date, the Exchange Date or the Expiration Date. In addition, in connection with the issuance or
sale of Common Stock by the Company following the Distribution Date and prior to the earliest of
the Redemption Date, the Exchange Date or the Expiration Date, the Company shall, with respect to
Common Stock so issued or sold pursuant to (i) the exercise of stock options issued prior to the
Distribution 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 the
Distribution Date, issue Rights and Rights Certificates representing the appropriate number of
Rights in connection with such issuance or sale; provided, however, that (x) no such Rights and
Rights Certificates shall be issued if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material adverse tax consequences to
the Company or the Person to whom such Rights Certificates would be issued; and (y) no such Rights
and Rights Certificates shall be issued, if, and to the extent that, appropriate adjustment shall
otherwise have been made in lieu of the issuance thereof. Certificates issued after the Record
Date representing shares of Common Stock outstanding on the Record Date or shares of Common Stock
issued after the Record Date but prior to the earliest of the Distribution Date, the Redemption
Date, the Exchange Date and the Expiration Date shall have impressed, printed, written on or
otherwise affixed to them a legend substantially in the following form:




This certificate also evidences and entitles the holder hereof to certain Rights as set
forth 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 hereby
incorporated herein by reference and a copy of which is on file at the principal executive
offices 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 by
this certificate. ATMI, Inc. will mail to the holder of this certificate a copy of the
Rights Agreement without charge after receipt of a written request therefore. Under certain
circumstances, as set forth in the Rights Agreement, Rights that were, are or become
beneficially owned by Acquiring Persons or their Associates or Affiliates (as such terms are
defined in the Rights Agreement) may become null and void and the holder of any of such
Rights (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 assignment
to be printed on the reverse thereof) shall be in substantially the form of Exhibit B hereto and
may have such marks of identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not inconsistent with the provisions
of this Agreement, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which the Rights may from
time to time be listed or any securities association on whose interdealer quotation system the
Rights may be from time to time authorized for quotation, or to conform to usage. Subject to the
provisions of this Agreement, the Rights Certificates, whenever issued, shall be dated as of the
Distribution Date, and on their face shall entitle the holders thereof to purchase such number of
shares 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 as
provided in this Agreement.



(b) Notwithstanding any other provision of this Agreement, (i) any Rights Certificate issued
pursuant to this Agreement that represents Rights beneficially owned or formerly beneficially
owned, on or after the Distribution Date, by a Person known by the Company to be: (A) an Acquiring
Person or an Associate or Affiliate of an Acquiring Person; (B) a direct or indirect transferee of
an Acquiring Person (or of an Associate or Affiliate of such Acquiring Person) who becomes or
becomes entitled to be a transferee after the Acquiring Person becomes such; or (C) a direct or
indirect transferee of an Acquiring Person (or of an Associate or Affiliate of such Acquiring
Person) who becomes or becomes entitled to be a transferee prior to or concurrently with the
Acquiring Person becoming such and receives such Rights pursuant to either (x) a direct or indirect
transfer (whether or not for consideration) from the Acquiring Person (or from an Associate or
Affiliate of such Acquiring Person) to holders of equity interests in such Acquiring Person (or to
holders of equity interests in an Associate or Affiliate of such Acquiring Person) or
to any Person with whom such Acquiring Person (or an Associate or Affiliate of such Acquiring
Person) has any continuing agreement, arrangement or understanding regarding the transferred
Rights, or (y) a direct or indirect transfer which a majority of the Board of Directors has
determined is part of a plan, arrangement or understanding which has as a primary purpose or
effect the avoidance of
Section 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 Person
referred 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 Person
who was or became an Acquiring Person or an Affiliate or Associate of an Acquiring Person
(as such terms are defined in the Rights Agreement). Accordingly, this Rights Certificate
and the Rights represented hereby may become null and void in the circumstances specified in
Section 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 of
the Board, Chief Executive Officer, President or any Vice President, either manually or by
facsimile signature, and shall have affixed thereto the Company’s seal or a facsimile thereof which
shall be attested by the Company’s Secretary or an Assistant Secretary, either manually or by
facsimile signature. Each Rights Certificate shall be countersigned by the Rights Agent either
manually or, if permitted by the Company, by facsimile signature and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who shall have signed a Rights
Certificate shall cease to be such officer of the Company before countersignature by the Rights
Agent and issuance and delivery by the Company, such Rights Certificate nevertheless may be
countersigned by the Rights Agent and issued and delivered with the same force and effect as though
the Person who signed such Rights Certificate had not ceased to be such officer of the Company; and
any Rights Certificate may be signed on behalf of the Company by any Person who, at the actual date
of the execution of such Rights Certificate, shall be a proper officer of the Company to sign such
Rights Certificate, although at the date of the execution of this Agreement any such Person was not
such an officer.



(b) Following the Distribution Date, the Rights Agent shall keep or cause to be kept, at its
principal corporate trust office, books for registration and transfer of the Rights Certificates
issued hereunder. Such books shall show the names and addresses of the respective holders of the
Rights Certificates, the number of Rights evidenced by each Rights Certificate, and the certificate
number 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 the
Distribution 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 be
transferred, 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 such
holder to purchase immediately prior to such surrender. Any registered holder desiring to
transfer, divide, combine or exchange any Rights Certificate shall make such request in writing
delivered to the Rights Agent, and shall surrender the Rights Certificate or Rights Certificates to
be transferred, divided, combined or exchanged at the principal corporate office of the Rights
Agent. Thereupon the Rights Agent shall countersign and deliver to the Person entitled thereto a
Rights Certificate or Rights Certificates, as the case may be, as so requested. As a condition to
such transfer, division, combination or exchange, the Company may require payment by the
surrendering holder of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection therewith. Neither the Rights Agent nor the Company shall be obligated to take any
action whatsoever with respect to the transfer of any such surrendered Rights Certificate until the
registered holder shall have duly completed and executed the form of assignment on the reverse side
of such Rights Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or such former or proposed Beneficial Owner) thereof or such
Beneficial Owner’s Affiliates or Associates as the Company shall reasonably request.


 


12









 





(b) Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to them of
the loss, theft, destruction or mutilation of a Rights Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them, and reimbursement to the
Company and the Rights Agent of all reasonable expenses incidental thereto, and upon surrender to
the Rights Agent and cancellation of the Rights Certificate if mutilated, the Company will make and
deliver a new Rights Certificate of like tenor to the Rights Agent for countersignature by the
Rights 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 this
Agreement) 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 the
earliest 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, as
the case may be, as provided herein), subject to adjustment from time to time as provided in
Sections 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 a
Right may be exercised) at any time after the Distribution Date and prior to the earliest of the
Expiration 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 Rights
Agent at the principal corporate trust office of the Rights Agent, together with payment of the
Purchase Price for each one one-hundredth of a share of Preferred Stock (or other securities, cash
or other property or assets, as the case may be, as provided herein) as to which the Rights are
exercised.



(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election
to purchase duly executed, accompanied by payment of the Purchase Price for each one one-hundredth
of a share of Preferred Stock (or other securities, cash or other property or assets, as the case
may be, as provided herein) to be purchased and an amount in cash, certified bank check or bank
draft payable to the order of the Company equal to any applicable transfer tax required to be paid
by the surrendering holder pursuant to Section 9(d), the Rights Agent shall, subject to the
provisions of this Agreement, thereupon promptly (i)(A) requisition from any transfer agent for the
Preferred Stock (or make available, if the Rights Agent is the transfer agent for the Preferred
Stock) certificates for the total number of one one-hundredths of a share of Preferred Stock to be
purchased (and the Company hereby irrevocably authorizes its transfer agent to comply with all such
requests), or (B) if the Company shall have elected to deposit the total number of shares of
Preferred Stock issuable upon exercise of the Rights with a depositary agent, requisition from the
depositary agent depositary receipts representing such number of one one-hundredths of a share of
Preferred Stock as are to be purchased (in which case certificates for the Preferred Stock
represented 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 receipt
of such certificates or depositary receipts, cause the same to be delivered to or upon the order of
the registered holder of such Rights Certificate, registered in such name or names as may be
designated by such holder; and (iii) if appropriate, requisition from the Company the amount of
cash 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 the
registered holder of such Rights Certificate. In the event that the Company is obligated to issue
other securities (including shares of Common Stock) of the Company, pay cash and/or distribute
other property pursuant to this Agreement, the Company will make all arrangements necessary so that
such other securities, cash and/or other property are available for distribution by the Rights
Agent, if and when appropriate.



(d) In case the registered holder of any Rights Certificate shall exercise less than all the Rights
evidenced thereby, a new Rights Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the
Rights Agent and delivered to, or upon the order of, the registered holder of such Rights
Certificate 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 were
formerly beneficially owned on or after the Distribution Date by (i) an Acquiring Person or any
Associate or Affiliate of an Acquiring Person; (ii) a direct or indirect transferee of an Acquiring
Person (or of an Associate or Affiliate of such Acquiring Person) who becomes, or becomes entitled
to be, a transferee after the Acquiring Person becomes such; or (iii) a direct or indirect
transferee of an Acquiring Person (or of an Associate or Affiliate of such Acquiring Person) who
becomes, or becomes entitled to be, a transferee prior to or concurrently with the Acquiring Person
becoming 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 of
such Acquiring Person) to holders of equity interests in such Acquiring Person (or to holders of
equity interests in any Associate or Affiliate of such Acquiring Person) or to any Person with whom
the Acquiring Person (or an Associate or Affiliate of such Acquiring Person) has any continuing
agreement, arrangement or understanding regarding the transferred Rights, and (B) a direct or
indirect transfer which a majority of the Board of Directors of the Company determines is part of a
plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this
Section 7(e), shall, from and after the first occurrence of a Triggering Event and without any
further action, be null and void and no holder of such Rights shall have any rights whatsoever with
respect to such Rights whether under this Agreement or otherwise; provided, however, that, in the
case of transferees described in clause (ii) or clause (iii) of this Section 7(e), any Rights
beneficially owned by such transferee shall be null and void only if and to the extent such Rights
were formerly beneficially owned by a Person who was, at the time such Person beneficially owned
such Rights, or who later became, an Acquiring Person or an Affiliate or Associate of such
Acquiring Person. The Company shall use all reasonable efforts to ensure that the provisions of
this Section 7(e) and of Section 4(b) are complied with but shall have no liability to any holder
of a Rights Certificate or to any other Person as a result of the Company’s failure to make, or any
delay in making (including any such failure or delay by the Board of Directors of the Company), any
determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees
under this Section 7(e) or any other provision of this Agreement.


 


14









 





(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the
Company shall be obligated to undertake any action with respect to the registered holder of a
Rights Certificate upon the occurrence of any purported exercise as set forth in this Section 7
unless such registered holder shall have (i) completed and signed the certificate contained in the
form of election to purchase set forth on the reverse side of the Rights Certificate surrendered
for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial
Owner (or former or proposed Beneficial Owner) thereof or the Affiliates or Associates of such
Beneficial Owner (or former or proposed Beneficial Owner) as the Company shall reasonably request.



Section 8. Cancellation and Destruction of Rights Certificates. All
Rights Certificates surrendered for the purpose of exercise, transfer, division, combination or
exchange shall, if surrendered to the Company or to any of its agents, be delivered to the Rights
Agent for cancellation or in canceled form, or, if surrendered to the Rights Agent, shall be
canceled by it, and no Rights Certificates shall be issued in lieu therefore except as expressly
permitted by the provisions of this Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire, any other Rights
Certificate purchased or acquired by the Company otherwise than upon the exercise thereof. The
Rights Agent shall deliver all canceled Rights Certificates to the Company, or shall, at the
written request of the Company, destroy such canceled Rights Certificates, and in such case shall
deliver 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 all
times out of its authorized and unissued shares of Preferred Stock or its authorized and issued
shares of Preferred Stock held in its treasury (and, following the occurrence of a Triggering Event
or a Business Combination, out of its authorized and unissued shares of Common Stock and/or other
securities or out of its authorized and issued shares of Common Stock and/or other securities held
in its treasury) free from preemptive rights or any right of first refusal, a sufficient number of
shares of Preferred Stock (and, following the occurrence of a Triggering Event or a Business
Combination, shares of Common Stock and/or other securities) to permit the exercise in full of all
Rights from time to time outstanding.



(b) The Company further covenants and agrees, so long as the Preferred Stock (and, following the
occurrence of a Triggering Event or a Business Combination, shares of Common Stock and/or other
securities) issuable upon the exercise of Rights may be listed on any United States national
securities exchange or quoted on any automated quotation system, to use its reasonable best efforts
to cause, from and after the time that the Rights become exercisable, all such shares and/or other
securities reserved for such issuance to be listed on such exchange or quoted on such automated
quotation system upon official notice of issuance upon such exercise.


 


15









 





(c) The Company further covenants and agrees that it will take all such action as may be necessary
to ensure that all shares of Preferred Stock (and, following the occurrence of a Triggering Event
or a Business Combination, shares of Common Stock and/or other securities) delivered upon the
exercise of Rights shall, at the time of delivery of the certificates for such shares and/or such
other securities (subject to payment of the Purchase Price), be duly and validly authorized and
issued, fully paid, nonassessable, freely tradeable, not subject to liens or encumbrances, and free
of preemptive rights, rights of first refusal or any other restrictions or limitations on the
transfer 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 all
federal and state transfer taxes and charges which may be payable in respect of the original
issuance or delivery of the Rights Certificates or of any certificates for shares of Preferred
Stock (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 in
respect of any transfer involved in the issuance or delivery of any Rights Certificates or the
issuance or delivery of any certificates for shares of Preferred Stock (or Common Stock and/or
other securities as the case may be) to a Person other than, or in a name other than that of, the
registered 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 of
Preferred Stock (or Common Stock and/or other securities as the case may be) upon the exercise of
any Rights until any such tax shall have been paid (any such tax being payable by the holder of
such Rights Certificate at the time of surrender) or until it has been established to the Company’s
satisfaction that no such tax is due.



(e) The Company shall use its reasonable best efforts (i) as soon as practicable following the
Stock Acquisition Date (provided the consideration to be delivered by the Company upon exercise of
the Rights has been determined in accordance with Section 11(a)(iii)), or as soon as is otherwise
required by law following the Distribution Date, as the case may be, to prepare and file a
registration statement on an appropriate form under the Securities Act with respect to the
securities purchasable upon exercise of the Rights; (ii) to cause such registration statement to
become effective as soon as practicable after such filing; and (iii) to cause such registration
statement to remain effective (with a prospectus at all times meeting the requirements of the
Securities Act) until the earlier of (A) the date as of which Rights are no longer exercisable for
such securities or (B) the Expiration Date. The Company shall also use its reasonable best efforts
to take such action as may be necessary or appropriate under, or to ensure compliance with, the
securities 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 set
forth in clause (i) of this Section 9 (e), the exercisability of the Rights in order to prepare and
file such registration statement and permit it to become effective. Upon any such suspension, the
Company shall make a public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the suspension is no longer
in effect. Notwithstanding any provision of this Agreement to the contrary, the Rights shall not
be exercisable in any jurisdiction unless the requisite qualification in such jurisdiction shall
have been obtained and until a registration statement has been declared effective under the
Securities Act.


 


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Section 10. Preferred Stock Record Date. Each Person in whose name any certificate for shares of
Preferred Stock (or Common Stock and/or other securities, as the case may be) is issued upon the
exercise of Rights shall for all purposes be deemed to have become the holder of record of the
Preferred Stock (or Common Stock and/or other securities, as the case may be) represented thereby
on, and such certificate shall be dated, the date upon which the Rights Certificate evidencing such
Rights was duly surrendered and payment of the Purchase Price (and any
applicable transfer taxes) was made; provided, however, that if the date of such surrender and
payment is a date upon which the Preferred Stock (or Common Stock and/or other securities, as the
case may be) transfer books of the Company are closed, such Person shall be deemed to have become
the record holder of such 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 Preferred
Stock (or Common Stock and/or other securities, as the case may be) transfer books of the Company
are open.



Section 11. Adjustments to Purchase Price, Number of Shares or Number of Rights. The Purchase
Price, the number and kind of securities, cash and other property obtainable upon exercise of each
Right and the number of Rights outstanding shall be subject to adjustment from time to time as
provided 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 a
dividend or make a distribution on the outstanding shares of Preferred Stock payable in shares of
Preferred Stock, (B) subdivide (by a stock split or otherwise) the outstanding Preferred Stock into
a larger number of shares, (C) combine (by a reverse stock split or otherwise) the outstanding
Preferred Stock into a smaller number of shares, or (D) issue any securities in a reclassification
of the Preferred Stock (including any such reclassification in connection with a consolidation or
merger in which the
Company is the surviving corporation), except as otherwise provided in this Section 11(a), then in
each such event the Purchase Price and the Redemption Price set forth in Section 23, as each is in
effect at the time of the record date for such dividend or distribution, or of the effective date
of such subdivision, combination or reclassification, and the number and kind of shares of capital
stock or interests therein issuable on such date, shall be proportionately adjusted so that the
holder of any Right exercised after such time shall be entitled to receive the aggregate number and
kind of shares of capital stock or interests therein which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Stock transfer books of the company
were open, such holder would have owned upon such exercise and been entitled to receive by virtue
of such dividend, subdivision, combination or reclassification. If an event occurs which would
require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii), the adjustment
provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 11(a)(ii).


 


17









 





(ii) Upon the first occurrence of a Triggering Event, proper provision shall be made so that each
holder of a Right, except as otherwise provided in this Agreement, shall thereafter have the right
to receive, and the Company shall issue, upon exercise thereof at a price equal to the then-current
Purchase Price multiplied by the number of one one-hundredths of a share of Preferred Stock for
which a Right is then exercisable in accordance with the terms of this Agreement, in lieu of the
number of one one-hundredths of a share of Preferred Stock or other securities receivable upon
exercise of a Right prior to the occurrence of the Triggering Event, such number of shares of
Common Stock of the Company as shall equal the result obtained by (x) multiplying the then-current
Purchase Price by the number of one-hundredths of a share of Preferred Stock or other securities
for 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 of
the occurrence of the Triggering Event (such number of shares being referred to as the “Adjustment
Shares”); provided, however, that if the transaction or event that would otherwise give rise to the
foregoing adjustment is also subject to the provisions of Section 13, then only the provisions of
Section 13 shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii). Upon
the occurrence of such Triggering Event, the Purchase Price required to be paid in order to
exercise a Right shall be unchanged, and the Purchase Price shall be appropriately adjusted to
reflect, and shall thereafter mean, the amount required to be paid per share of Common Stock upon
exercise of a Right.



(iii) In lieu of issuing shares of Common Stock in accordance with Section 11(a) (ii), the Company
may, if a majority of the Board of Directors of the Company determines that such action is
necessary or appropriate and not contrary to the interests of holders of Rights, elect to, and, if
that the number of shares of Common Stock which are authorized by the Company’s certificate of
incorporation, but which are not outstanding or reserved for issuance for purposes other than upon
exercise of the Rights, are not sufficient to permit the exercise in full of the Rights in
accordance with Section 11(a) (ii), the Company shall take all such action as may be necessary to
authorize, issue or pay, upon the exercise of Rights, cash (including by way of a reduction of the
Purchase Price), debt securities, property, assets or other equity securities of the Company
(including, without limitation, shares or units of shares of
preferred stock) which the Board of Directors of the Company has determined (which determination
shall be final, binding and conclusive for all purposes) to have essentially the same value or
economic rights as shares of Common Stock (such equity securities referred to herein as “Common
Stock Equivalents), or any combination of the foregoing, having an aggregate value equal to the
value 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 (which
determination shall be final, binding and conclusive for all purposes). If a majority of the Board
of Directors determines to issue or deliver any equity securities (other than Common Stock or
Common Stock Equivalents), debt securities and/or other property or assets pursuant to this Section
11(a) (iii), the value of such securities and/or property or assets shall be determined by a
majority of the Board of
Directors of the Company based upon the advice of a nationally recognized investment banking firm
selected by a majority of the Board of Directors of the Company (which determination shall be
final, binding and conclusive for all purposes). If the Company is required to make adequate
provision to deliver value pursuant to the first sentence of this Section 11(a) (iii) and the
Company shall not have made such adequate provision to deliver value within ninety (90) days
following the first occurrence of a Triggering Event (the “Substitution” Period”), then
notwithstanding any provision of Section 11(a) (ii) or this Section 11(a)



 


18









 






 (iii) to the contrary,
the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without
requiring payment of the Purchase Price, shares of Common Stock (to the extent available) and then,
if necessary, cash, which shares and/or cash have an aggregate value equal to the excess of the
value of the Adjustment Shares over the Purchase Price. If both Common Stock and cash are to be
delivered pursuant to the preceding sentence, amounts of both Common Stock and cash shall be
delivered upon surrender of each Right in a ratio of Common Stock to cash that bears the same ratio
as the total value of all Common Stock to be delivered (as determined pursuant to this Section
11(a) (iii)) bears to the total value of all cash to be delivered; provided, however, that the
Company may adjust such ratio to avoid issuing any fractional shares of Common Stock so long as the
method of adjustment is applied consistently to each holder of Rights entitled to receive value
with respect thereto pursuant to this Section 11(a) (iii). To the extent that the Company
determines that some action is to be taken pursuant to the first and/or third sentences of this
Section 11(a) (iii), the Company may suspend the exercisability of the Rights but in no event to a
time 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 has
been temporarily suspended, as well as a public announcement at such time as the suspension is no
longer in effect. For purposes of this Section 11(a) (iii), the value of each Adjustment Share
shall be the Current Market Price per share of the Common Stock on the Stock Acquisition Date and
the per share or per unit value of any Common Stock Equivalent shall be deemed to equal the Current
Market 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 from
time to time after the first occurrence of a Triggering Event, cause the Company to exchange, for
all or part of the then-outstanding and exercisable Rights (which shall not include Rights that
have become void pursuant to the provisions of Section 7 e)), shares of Common Stock or Common
Stock Equivalents at an exchange ratio of one share of Common Stock per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date
of this Agreement (such exchange ratio being hereinafter referred to as the “Exchange Ratio”). Any
partial exchange shall be effected on a pro rata basis based on the number of Rights (other than
Rights which have become void pursuant to the provisions of Section 7 (e)) held by each holder of
Rights. Notwithstanding the foregoing, the Board of Directors shall not be empowered to effect
such exchange at any time after any Person (other than an Exempt Person), together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of 50% or more of the Outstanding Common
Stock.



 


19









 





Immediately upon the action of a majority of the Board of Directors of the Company ordering the
exchange of any Rights pursuant to this Section 11(a) (iv) and without any further action and
without any notice, the right to exercise such Rights shall terminate and the only right thereafter
of a holder of such Rights shall be to receive that number of shares of Common Stock and/or Common
Stock Equivalents equal to the number of such Rights held by such holder multiplied by the Exchange
Ratio. The Company shall promptly give public notice of any such exchange and, in addition, the
Company shall promptly mail a notice of any such exchange to all of the holders of such Rights in
accordance with Section 25; provided, however, that the failure to give, any delay in giving or any
defect in, such notice shall not affect the validity of such exchange. Each such notice of
exchange will state the method by which the exchange of the Common Stock or Common Stock
Equivalents for Rights will be effected and, in the event of
any partial exchange, the number of Rights which will be exchanged. In the event that the number
of shares of Common Stock which is authorized but not outstanding or reserved for issuance for a
purpose other than exercise of the Rights is not sufficient to permit any exchange of Rights as
contemplated in accordance with this Section 11(a) (iv), the Board of Directors of the Company
shall take all such action within its power as may be necessary to authorize additional shares of
Common Stock for issuance upon exchange of the Rights. The Company shall not be required to issue
fractions of shares of Common Stock or Common Stock Equivalents or to distribute certificates which
evidence fractional shares of Common Stock or Common Stock Equivalents. In lieu of such fractional
shares of Common Stock or Common Stock Equivalents, the Company shall pay to the registered holders
of the Rights Certificates with regard to which such fractional shares of Common Stock or Common
Stock Equivalents would otherwise be issuable an amount in cash equal to the product derived by
multiplying (x) the subject fraction, by (y) the last sale price of the Company’s Common Stock on
the fifth Trading Day following the public announcement of the exchange by the Company, or, in case
no 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 the
principal consolidated transaction reporting system with respect to securities listed or admitted
to trading on the NYSE (or, if the Company’s Common Stock is not so listed or traded, then as
determined in the manner provided under the definition of “Current Market Price,” adjusted to take
into account the exchange). For the purposes of this Section 11(a) (iv), the value of any Common
Stock Equivalent on any date shall be the same as the value of the Common Stock, as determined
pursuant 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 for
the issuance of rights, options or warrants to holders of Preferred Stock entitling them (for a
period expiring within 45 calendar days after such record date) to subscribe for or purchase
Preferred Stock or Equivalent Shares (or securities convertible into or exchangeable for Preferred
Stock or Equivalent Shares) at a price per share of Preferred Stock or Equivalent Shares (or, in
the case of a convertible or exchangeable security, having a conversion or exchange price per share
of Preferred Stock or Equivalent Shares) less than the Current Market Price per share of Preferred
Stock on such record date, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of shares of Preferred Stock and Equivalent
Shares (if any) outstanding on such record date, plus the number of shares of Preferred Stock or
Equivalent Shares, as the case may be, which the aggregate exercise, conversion and/or exchange
price 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 or
convertible or exchangeable securities would purchase at such Current Market Price, and the
denominator of which shall be the number of shares of Preferred Stock and Equivalent Shares (if
any) outstanding on such record date, plus the number of additional shares of Preferred Stock or
Equivalent Shares, as the case may be, which may be obtained upon exercise, conversion and/or
exchange of such rights, options, warrants or convertible or exchangeable securities. In case such
subscription price may be paid in a consideration part or all of which shall be in a form other
than cash, the value of such consideration shall be as determined in good faith by a majority of
the Board of Directors of the Company, whose determination shall be described in a statement filed
with the Rights Agent and shall be final, binding and conclusive for all purposes. Preferred Stock
and Equivalent Shares owned by or held for the account of the Company or any Subsidiary of the
Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is fixed; and in the event that such rights,
options or warrants are not issued following such adjustment, the Purchase Price shall be
readjusted to be the Purchase Price that would have been in effect if such record date had not been
fixed.




 


20









 







(c) In case the Company shall at any time after the date of this Agreement fix a record date for
the making of a distribution to holders of Preferred Stock (including any such distribution made in
connection with a reclassification of the Preferred Stock or a consolidation or merger in which the
Company 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 the
annual rate of the regular cash dividend paid on the Preferred Stock during the immediately
preceding fiscal year (or, if the Preferred Stock was not outstanding during such preceding fiscal
year, then 125% of the annual rate of the regular cash dividend paid on the Common Stock during
such 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 the
Preferred Stock on the date such regular cash dividend was first declared), property, evidences
of indebtedness, or assets, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the Current Market Price per share of Preferred Stock on
such record date, less the fair market value (as determined in good faith by a majority of the
Board of Directors of the Company, whose determination shall be described in a statement filed with
the Rights Agent and shall be final, binding and conclusive for all purposes) of the portion of
such securities, cash, property, evidences of indebtedness or assets to be so distributed in
respect of one share of Preferred Stock, and the denominator of which shall be such Current Market
Price per share of Preferred Stock on such record date. Such adjustments shall be made
successively whenever such a record date is fixed; and in the event that such distribution is not
made following such adjustment, the Purchase Price shall be readjusted to be the Purchase Price
that 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 such
adjustment would require an increase or decrease of at least 1% in the Purchase Price; provided,
however, that any adjustments which by reason of this Section 11(d) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment. All calculations
under this Section 11 shall be made to the nearest cent, to the nearest one hundred-thousandth of a
share 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 Section
11 shall be made no later than the earlier of (i) three years from the date of the transaction
which requires such adjustment and (ii) the Expiration Date.


 


21









 





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



(f) All Rights originally issued by the Company subsequent to any adjustment made to the Purchase
Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the number of
shares of Preferred Stock or other securities, cash or other property purchasable from time to time hereunder upon
exercise 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 each
adjustment 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 adjustment
shall thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of one
one-hundredths of a share of Preferred Stock (calculated to the nearest one hundred-thousandths of
a share of Preferred Stock) obtained by (i) multiplying the number of one one-hundredths of a share
of Preferred Stock covered by a Right immediately prior to adjustment pursuant to this Section
11(g) by the Purchase Price in effect immediately prior to such adjustment of the Purchase Price
and (ii) dividing the product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.



(h) The Company may elect, on or after the date of any adjustment of the Purchase Price or any
adjustment to the number of shares of Preferred Stock for which a Right may be exercised, to adjust
the number of Rights, in lieu of an adjustment in the number of one one-hundredths of a share of
Preferred Stock purchasable upon the exercise of a Right. Each of the Rights outstanding after
such adjustment of the number of Rights shall be exercisable for the number of one one-hundredths
of a share of Preferred Stock for which a Right was exercisable immediately prior to such
adjustment. Each Right outstanding prior to such adjustment of the number of Rights shall become
that number of Rights (calculated to the nearest one hundred-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to such adjustment by the Purchase Price in effect
immediately after such adjustment. The Company shall make a public announcement of its election to
adjust the number of Rights, indicating the record date for the adjustment, and, if known at the
time, the amount of the adjustment to be made. This record date may be the date on which the
Purchase Price is adjusted or any day thereafter, but, if the Rights Certificates have been
issued, shall be at least 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, as
promptly as practicable, cause to be distributed to holders of record of Rights Certificates on
such record date a new Rights Certificate evidencing, subject to Section 14, the additional Rights
to which such holders shall be entitled as a result of such adjustment, or, at the option of the
Company, shall cause to be distributed to such holders of record, in substitution and replacement
for the Rights Certificates held by such holders prior to the date of adjustment and upon surrender
thereof (if required by the Company), new Rights Certificates evidencing all the Rights to which
such holders shall be entitled after such adjustment. Rights Certificates to be so distributed
shall be issued, executed and countersigned in the manner provided for in this Agreement (and may
bear, at the option of the Company, the adjusted Purchase Price) and shall be registered in the
names of the holders of record of Rights Certificates on the record date specified in the public
announcement.




 


22









 








(i) Irrespective of any adjustment or change in the Purchase Price or the number or kind of shares
issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued
may continue to express the Purchase Price per one one-hundredth of a share of Preferred Stock and
the number of shares of Preferred Stock which were expressed in the initial Rights Certificates
issued hereunder.



(j) Before taking any action that would cause an adjustment reducing the Purchase Price below the
then par value, if any, of one one-hundredth of a share of Preferred Stock issuable upon exercise
of the Rights, the Company shall take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally issue fully paid and
nonassessable 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 of
a record date for a specified event, the Company may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after such record date the shares of
Preferred Stock and other securities, cash or property of the Company, if any, issuable upon such
exercise over and above the shares of Preferred Stock and other securities, cash or property of the
Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to
such adjustment; provided, however, that the Company shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder’s right to receive such additional shares
(fractional or otherwise) or other securities, cash or property upon the occurrence of the event
requiring such adjustment.



(l) Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled to
make such reductions in the Purchase Price, in addition to those adjustments expressly required by
this Section 11, as and to the extent that the Board of Directors of the Company in its sole
discretion shall determine to be advisable in order that any combination or subdivision of the
Preferred Stock, issuance wholly for cash of any Preferred Stock at less than the Current Market
Price per share of Preferred Stock, issuance wholly for cash of Preferred Stock or securities which
by their terms are convertible into or exchangeable or exercisable for Preferred Stock, stock
dividends or issuance of rights, options or warrants referred to in this Section 11, hereafter made
by the Company to holders of its Preferred Stock, shall not be taxable to such stockholders.


 


23









 





(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 or
a series of related transactions) property, assets or earning power aggregating more than 50% of
the property, assets or earning power of the Company and its Subsidiaries taken as a whole, to any
other 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 outstanding
or agreements in effect which would substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights; (B)prior to, simultaneously with or immediately after such
consolidation, merger, sale, lease, transfer or disposition the stockholders (or equity holders) of
the Person who constitutes, or would constitute, the Principal Party for purposes of Section 13(a)
hereof shall have received a distribution of Rights previously owned by such Person or any of its
Affiliates or Associates; or (C) the form or nature of organization of the Principal Party would
preclude or limit the exercisability of the Rights. The Company shall not consummate any such
consolidation, merger, sale, lease, transfer or disposition unless prior thereto the
Company and such other Person shall have executed and delivered to the Rights Agent a supplemental
agreement evidencing compliance with this Section 11(m).



(n) The Company covenants and agrees that, after the Stock Acquisition Date, it will not, except
as permitted by Section 11(a) (iv), 26 or 29(b), take (or permit any Subsidiary to take) any action
if at the time such action is taken it is reasonably foreseeable that such action will, directly or
indirectly, 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 time
prior to the Distribution Date (i) pay a dividend
or 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 a
reverse 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 such
reclassification in connection with a consolidation or merger in which the Company is the surviving
corporation), then the number of Rights associated with each share of Common Stock or (in a
reclassification) each security then outstanding, or issued or delivered thereafter but prior to
the Distribution Date, and the Purchase Price under, and the number of one one-hundredths of a
share of Preferred Stock issuable in respect of, the Rights, shall be proportionately adjusted, so
that following such event one Right (with the Purchase Price and the number of one one-hundredths
of a share of Preferred Stock proportionately adjusted thereunder) shall thereafter be associated
with each share of Common Stock or (in a reclassification) each security then outstanding, or
issued or delivered thereafter but prior to the Distribution Date. For example, if the Company
effects a two-for-one stock split of the Common Stock at a time when each Right (if it becomes
exercisable) would entitle the holder to purchase one one-hundredth of a share of Preferred Stock
for a Purchase Price of $“Z”, then following such stock split each previous Right would be split
into 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 of
Preferred Stock at a Purchase Price of 1/2 x $“Z”.


 


24









 





Section 12. Certification of Adjustments. Whenever an adjustment is made as provided in Section
11 or 13, the Company shall (a) promptly prepare a certificate setting forth such adjustment and a
brief statement of the facts accounting for such adjustment, (b) promptly file with the Rights
Agent and with each transfer agent for the Preferred Stock a copy of such certificate, and (c) mail
or 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 representing
shares of Common Stock) in accordance with Section 25. Notwithstanding the foregoing sentence, the
failure of the Company to give such notice shall not affect the validity of or the force or effect
of or the requirement for such adjustment. Any adjustment to be made pursuant to Section 11 or 13
shall 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 event
that, 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 Company
in a transaction that complies with Section 11(m) and Section 11(n)) in a transaction in which the
Company 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 Section
11(m) and Section 11(n)) shall, directly or indirectly, consolidate with the Company, or shall
merge with and into the Company, in a transaction in which the Company is the continuing, resulting
or surviving corporation of such merger or consolidation and, in connection with such merger or
consolidation, all or part of the Common Stock shall be changed (including, without limitation, any
conversion into or exchange for securities of the Company or of any other Person, cash or any other
property); (iii) the Company shall, directly or indirectly, effect a share exchange in which all or
part of the Common Stock shall be changed (including, without limitation, any conversion into or
exchange for securities of any other Person, cash or any other property); or (iv) the Company
shall, directly or indirectly, sell, lease, exchange, mortgage, pledge (other than pledges in the
ordinary course of the Company’s financing activities) or otherwise transfer or dispose of (or one
or more of its Subsidiaries shall directly or indirectly sell, lease, exchange, mortgage, pledge
(other than pledges in the
ordinary course of the Company’s financing activities) or otherwise transfer or dispose of), in one
transaction or a series of related transactions, property, assets or earning power aggregating more
than 50% of the property, assets or earning power of the Company and its Subsidiaries (taken as a
whole) to any other Person (other than the Company or any of its Subsidiaries in one or more
transactions each and all of which comply with Section 11(m) and Section 11(n)).


 


25









 





In the event of a Business Combination, proper provision shall be made so that each holder of a
Right (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 first
occurrence of a Triggering Event multiplied by the number of one one-hundredths of a share of
Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a
Triggering Event (without giving effect to the Triggering Event) in accordance with the terms of
this Agreement, such number of shares of Common Stock of the Principal Party as shall be equal to
the result obtained by (x) multiplying the Purchase Price immediately prior to the first occurrence
of a Triggering Event by the number of one one-hundredths of a share of Preferred Stock for which a
Right was exercisable immediately prior to the first occurrence of a Triggering Event (without
giving effect to the Triggering Event), and (y) dividing that product by 50% of the Current Market
Price per share of the Common Stock of such Principal Party immediately prior to the consummation
of such Business Combination. All shares of Common Stock of any Person for which any Right may be
exercised 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 authorized
and issued, fully paid, nonassessable, freely tradeable, not subject to liens or encumbrances, and
free of preemptive rights, rights of first refusal or any other restrictions or limitations on the
transfer 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 further
act, 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 reservation
of a sufficient number of shares of its Common Stock in accordance with Section 9) in connection
with such Business Combination as is necessary to ensure that the provisions of this Agreement
shall thereafter be applicable, as nearly equivalent as practicable, in relation to the shares of
its Common Stock thereafter deliverable upon the exercise of the Rights.



(c) The Company shall not consummate any Business Combination unless prior thereto (i) the
Principal Party shall have a sufficient number of authorized shares of its Common Stock which have
not been issued or reserved for issuance (other than shares reserved for issuance pursuant to this
Agreement to the holders of Rights) to permit the exercise in full of the Rights in accordance with
this Section 13; (ii) the Company and such Principal Party shall have executed and delivered to the
Rights Agent a supplemental agreement providing for the fulfillment of the Principal Party’s
obligations and the terms as set forth in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable on or after the date of such Business Combination, the
Principal Party, at its own expense, shall (A) prepare and file, if necessary, a registration
statement on an appropriate form under the Securities Act with respect to the Rights and the
securities purchasable upon exercise of the Rights; (B) use its reasonable best efforts to cause
such registration statement to become effective as soon as practicable after such filing and
remain 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 statements
for the Principal Party and each of its Affiliates which comply in all respects with the
requirements for registration on Form 10 (or any successor form) under the Exchange Act; (D) use
its



 


26









 






 reasonable best efforts to qualify or register the Rights and the securities purchasable upon
exercise of the Rights under the state securities or “blue sky” laws of such jurisdictions as may
be necessary or appropriate; (E) use its reasonable best efforts to list the Rights and the
securities 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 Common
Stock of the Principal Party subject to purchase upon exercise of outstanding Rights; (iii) the
Company and the Principal Party shall have furnished to the Rights Agent an opinion of independent
counsel stating that such supplemental agreement is a legal, valid and binding agreement of the
Principal Party enforceable against the Principal Party in accordance with its terms; and (iv) the
Company and the Principal Party shall have filed with the Rights Agent a certificate of a
nationally recognized firm of independent
accountants setting forth the number of shares of Common Stock of such issuer which may be
purchased 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 a
Triggering Event, the Rights which have not theretofore been exercised shall thereafter be
exercisable for the consideration and in the manner described in Section 13(a). Following a
Business 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 the
number of shares of Preferred Stock (or fractions of a share) or other securities, cash or other
property for which a Right is exercisable or the number of Rights outstanding or associated with
each share of Common Stock or any similar or other adjustment shall be made or be effective if such
adjustment would have the effect of reducing or limiting the benefits the holders of the Rights
would have had absent such adjustment, including, without limitation, the benefits under Sections
11 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 the
time of, or immediately after such Business Combination, there are any rights, options, warrants or
other instruments outstanding which would diminish or otherwise eliminate the benefits intended to
be afforded by the Rights.



(g) Without limiting the generality of this Section 13, in the event the nature of the
organization of any Principal Party shall preclude or limit the acquisition of Common Stock of such
Principal Party upon exercise of the Rights as required by Section 13(a) as a result of a Business
Combination, it shall be a condition to such Business Combination that such Principal Party shall
take such steps (including, but not limited to, a reorganization) as may be necessary to ensure
that the benefits intended to be derived under this Section 13 upon the exercise of the Rights are
assured to the holders thereof.


 


27









 





(h) In addition to, and without limiting, any other provision of this Section 13, in case the
Principal Party which is to be a party to a transaction referred to in this Section 13 has
provision in any of its authorized securities or in its certificate of incorporation or by-laws or
other instrument governing its corporate affairs (or equivalent documents for a non-corporate
Person), which provision would have the effect of (i) causing such Principal Party to issue (other
than 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 Principal
Party at less than the then Current Market Price per share or securities exercisable for, or
convertible 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 the
issuance 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 not
consummate any such transaction unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent a supplemental agreement providing that the
provision in question of such Principal Party shall have been cancelled, waived or amended, or that
the authorized securities shall be redeemed, so that the applicable provision will have no effect
in connection with, or as a consequence of, the consummation of the proposed transaction.



Section 14. Fractional Rights and Fractional Shares.



(a) The Company shall not be required to issue fractional Rights or to distribute Rights
Certificates which evidence fractional Rights. In lieu of such fractional Rights, the Company may
at its option pay to the registered holders of the Rights Certificates with respect to which such
fractional Rights would otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this Section 14(a), the current market
value of a whole Right shall be the closing price of a Right for the Trading Day immediately prior
to the date on which such fractional Rights otherwise would have been issuable. The closing price
for any Trading Day shall be the last sale price, regular way, on such day, or, in case no such
sale takes place on such day, the average of the closing bid and asked prices, regular way, on such
day, in either case as reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the NYSE or, if
the Rights are not listed or admitted to trading on the NYSE, as reported in the principal
consolidated transaction reporting system with respect to securities listed on the principal United
States national securities exchange on which the Rights are listed or admitted to trading or, if
the Rights are not listed or admitted to trading on any 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 low
asked prices in the over-the-counter market on such day, as reported by NASDAQ or such other system
then in use or, if on such day the Rights are not quoted by any such system, the average of the
closing bid and asked prices on such day as furnished by a professional market maker making a
market in the Rights selected by a majority of the Board of Directors of the Company (which
selection shall be final, binding and conclusive for all purposes). If on such day no such market
maker is making a market in the Rights, the current market value of the Rights on such day shall be
determined in good faith by a majority of the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent and shall be final,
binding and conclusive for all purposes.


 


28









 





(b) The Company shall not be required to issue fractions of shares of Preferred Stock (other than
fractions which are integral multiples of one one-hundredth of a share of Preferred Stock) upon
exercise of the Rights or to distribute certificates which evidence fractional shares of Preferred
Stock (other than fractions which are integral multiples of one one-hundredth of a share of
Preferred Stock). Fractions of shares of Preferred Stock may, at the election of the Company, be
evidenced by depositary receipts pursuant to an appropriate agreement between the Company and a
depositary selected by it, provided that such agreement shall provide that the holders of such
depositary receipts shall have all the rights, privileges and preferences to which they are
entitled as beneficial owners of the Preferred Stock. In lieu of fractional shares of Preferred
Stock that are not integral multiples of one one-hundredth of a share of Preferred Stock, the
Company may at its option (i) issue scrip or warrants in registered form (either represented by a
certificate or uncertificated) or in bearer form (represented by a certificate) which shall entitle
the holder to receive a full one one-hundredth of a share of Preferred Stock upon the surrender of
such 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 are
exercised as provided in this Agreement an amount in cash equal to the same fraction of the current
market value of a share of Preferred Stock. For purposes of this Section 14(b), the current market
value of a share of Preferred Stock shall be the closing price of a share of Preferred Stock (as
determined pursuant to the second sentence of the definition of “Current Market Price” in Section
1) 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 Stock
Equivalents or to distribute certificates which evidence fractional shares of Common Stock or
Common Stock Equivalents. In lieu of such fractional shares of Common Stock or Common Stock
Equivalents, the Company shall pay to the registered holders of the Rights Certificates with regard
to which such fractional shares of Common Stock or Common Stock Equivalents would otherwise be
issuable 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 any
fractional Rights or any fractional shares upon exercise of a Right (except as otherwise provided
in this Agreement).



Section 15. Rights of Action. Except as otherwise provided, all rights of action in respect of
this 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 any
registered holder of any Rights Certificate (or, prior to the Distribution Date, any share of
associated Common Stock), without the consent of the Rights Agent or of the holder of any other
Right, may, on his own behalf and for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company or any Principal Party to enforce, or otherwise act
in respect of, his rights pursuant to this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically acknowledged that the holders of
Rights would not have an adequate remedy at law for any breach of this Agreement and will be
entitled, without posting any bond, to specific performance of the obligations under, and
injunctive relief against any actual or threatened violation of the obligations of any Person
subject to, this Agreement.


 


29









 





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



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



(b) after the Distribution Date, the Rights Certificates will be transferable on the registry books
of the Rights Agent only if surrendered at the principal corporate trust office of the Rights
Agent, 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 Rights
Certificate (or, prior to the Distribution Date, the associated Common Stock certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Rights Certificate or the associated Common Stock
certificate made by anyone other than the Company, the transfer agent for the Common Stock or the
Rights Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary; and



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



Section 17. Rights Holder Not Deemed a Stockholder. No holder, as such, of any Rights Certificate
shall be entitled to vote or to receive dividends or distributions or shall be deemed for any
purpose the holder of Preferred Stock or any other securities, cash or other property which may at
any time be issuable on the exercise of the Rights represented thereby, nor shall anything
contained in this Agreement or in any Rights Certificate be construed to confer upon the holder of
any Rights Certificate, as such, any of the rights of a stockholder of the Company, including,
without limitation, any right (i) to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, (ii) to give or withhold consent to any corporate
action, (iii) to receive notice of meetings or other actions affecting stockholders (except as
provided in Section 24), (iv) to receive dividends, distributions or subscription rights, or (v) to
institute, as a holder of Preferred Stock or other securities issuable on exercise of the Rights
represented by any Rights Certificate, any derivative action on behalf of the Company, or
otherwise, until and only to the extent that the Right or Rights evidenced by such Rights
Certificate shall have been exercised in accordance with the provisions of this Agreement.


 


30









 





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



The Rights Agent shall be protected and shall incur no liability for or in respect of any action
taken, suffered or omitted by it in connection with its administration of this Agreement in
reliance upon any Rights Certificate or certificate for Preferred Stock or Common Stock or for
other securities of the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate, statement or other paper
or document reasonably believed by it to be genuine and to be signed, executed and, when necessary,
verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel
as set forth in Section 20.



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



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


 


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



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



(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it
necessary or desirable that any fact or matter (including, without limitation, the identity of any
Acquiring Person or any Affiliate or Associate of an Acquiring Person or the determination of
Current Market Price) be proved or established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect thereof be specifically
prescribed in this Agreement) may be deemed to be conclusively proved and established by a
certificate signed by the Chairman of the Board, the President, the Chief Executive Officer, any
Vice President, the Treasurer or the Secretary of the Company and delivered to the Rights Agent;
and such certificate shall be full authorization to the Rights Agent for any action taken or
omitted 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, willful
misconduct 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 or
recitals contained in this Agreement or in the Rights
Certificates (except its countersignature thereof) or be required to verify the same, but all such
statements and recitals are and shall be deemed to have been made by the Company only.



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


 


32









 





(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Rights Agent for the carrying out or performance by
the 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 the
performance 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 to
such officers for advice or instructions in connection with its duties, and it shall not be liable
for any action taken or omitted to be taken by it in good faith in accordance with instructions of
any such officer or for any delay in acting while waiting for such instructions. When applying to
any such officer for instructions, the Rights Agent may set forth in writing (i) any proposed
action or omission of the Rights Agent with respect to its duties or obligations under this
Agreement and (ii) the date on or after which the Rights Agent proposes such action will be taken
or omitted. Such date shall not be less than three Business Days after any such officer receives
such application for instructions from the Rights Agent. Unless the Rights Agent has received
written instructions from the Company (including any such officer) with respect to such proposed
action 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 for
the actions or omissions set forth in such application, provided that such action or omission does
not violate any express provision of this Agreement.



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



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



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


 


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(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or
transfer, the certificate attached to the form of assignment or form of election to purchase, as
the case may be, either has not been completed or indicates an affirmative response to clause 1
and/or 2 thereof, the Rights Agent shall not take any further action with respect to such requested
exercise or transfer without first consulting with the Company.



Section 21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may resign and
be discharged from its duties under this Agreement upon 30 days’ notice in writing mailed to the
Company and to each transfer agent of the Common Stock or Preferred Stock by registered or
certified mail, and to the holders of the
Rights Certificates by first-class mail. The Company may remove the Rights Agent or any successor
Rights Agent upon 30 days’ notice in writing, mailed to the Rights Agent or successor Rights Agent,
as the case may be, and to each transfer agent of the Common Stock or Preferred Stock by registered
or certified mail, and to the holders of the Rights Certificates by first-class mail. If the
Rights Agent shall resign or be removed or shall otherwise become incapable of acting, the Company
shall appoint a successor to the Rights Agent. Notwithstanding any other provision of this
Agreement, in no event shall the resignation or removal of a Rights Agent be effective until a
successor Rights Agent shall have been appointed and have accepted such appointment. If the
Company shall fail to make such appointment within a period of 30 days after such removal or after
it has been notified in writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by any holder of a Rights Certificate (who shall, with such notice, submit his
Rights Certificate for inspection by the Company), then the incumbent Rights Agent or the
registered holder of any Rights Certificate may apply to any court of competent jurisdiction for
the appointment of a new Rights Agent. Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be (i) a corporation or other entity organized and doing business
under the laws of the United States or any state of the United States so long as such Person is
authorized to conduct a corporate trust or banking business under the laws of such state and is in
good standing, which is authorized under such laws to exercise corporate trust powers or stock
transfer powers and is subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined capital surplus and undivided
profits aggregating of at least $100,000,000, according to its last published statement of
condition or (ii) an Affiliate of a Person described in clause(i). After appointment, the
successor Rights Agent shall be vested with the same powers, rights, duties and responsibilities as
if it had been originally named as Rights Agent without further act or deed but the predecessor
Rights Agent shall deliver and transfer to the successor Rights Agent any property at the time held
by it hereunder and execute and deliver any further assurance, conveyance, act or deed necessary
for such purpose. Not later than the effective date of any such appointment, the Company shall file
notice thereof in writing with the predecessor Rights Agent and each transfer agent of the Common
Stock or Preferred Stock and mail a notice thereof in writing to the registered holders of the
Rights 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 or
removal 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 this
Agreement or of the Rights Certificates to the contrary, the Company may, at its option, issue new
Rights Certificates evidencing new Rights in such form as may be approved by a majority of the
Board of Directors of the Company to reflect any adjustment or change in the Purchase Price per
share and the number or kind or class of securities, cash or other property purchasable under the
Rights Certificates made in accordance with the provisions of this Agreement. In addition, in
connection with the issuance or sale of Common Stock following the Distribution Date and prior to
the 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 the
exercise, conversion or exchange of securities notes or debentures issued by the Company or (iv) a
contractual obligation of the Company, in each case existing prior to the Distribution Date, issue
Rights Certificates representing the appropriate number of Rights in connection with such issuance
or 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 of
the 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 occurring
after the date of this Agreement. The Company may, at its option, pay the Redemption Price in
cash, shares (including fractional shares) of Common Stock (based on the Current Market Price of
the Common Stock at the time of redemption) or any other form of consideration deemed appropriate
by the Board of Directors.



(b) At the time and date of effectiveness set forth in any resolution of the Board of Directors of
the Company ordering the redemption of the Rights (the “Redemption Date”), without any further
action and without any further notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the Redemption Price; provided,
however, that such resolution of the Board of Directors of the Company
may be revoked, rescinded or otherwise modified at any time prior to the time and date of
effectiveness set forth in such resolution, in which event the right to exercise will not terminate
at 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 the
redemption of the Rights, the Company shall give notice of such redemption to the Rights Agent and
to the holders of the then-outstanding Rights by mailing such notice to all such holders at their
last addresses as they appear upon the registry books of the Rights Agent or, prior to the issuance
of Rights Certificates, on the registry books of the transfer agent for the Common Stock. Any
notice which is mailed in the manner provided in this Agreement shall be deemed given, whether or
not the holder receives the notice. Each such notice of redemption will state the method by which
the payment of the Redemption Price will be made. In any case, failure to give such notice by
mail, or any defect in the notice, to any particular holder of Rights shall not affect the
sufficiency of the notice to other holders of Rights. In the case of a redemption permitted under
this Section 23, the Company may, at its option, discharge all of its obligations with respect to
the Rights by (i) issuing a press release announcing the manner of redemption of the Rights and (ii) mailing payment of the Redemption Price to the registered holders of the Rights at their last
addresses as they appear on the registry books of the Rights Agent or, prior to the issuance of the
Rights Certificates, on the registry books of the transfer agent for the Common Stock, and upon
such action, all outstanding Rights Certificates shall be null and void without any further action
by the Company. Neither the Company nor any of its Affiliates or Associates may redeem, acquire or
purchase for value any Rights at any time in any manner other than as specifically set forth in
this Section 23 and other than in connection with the purchase of shares of Common Stock prior to
the earlier of the Distribution Date and the Expiration Date.




 


35









 








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 Preferred
Stock or to make any other distribution to the holders of its Preferred Stock (other than a regular
periodic regular cash dividend at an annual rate not in excess of: (x) 125% of the annual rate of
the cash dividend paid on the Preferred Stock during the immediately preceding fiscal year, or if
the Preferred Stock was not outstanding during such preceding fiscal year, then 125% of the annual
rate of the regular cash dividend paid on the Common Stock during such 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 the Preferred Stock on the date such
regular cash dividend was first declared); or (b) offer to the holders of its Preferred Stock
rights, options or warrants to subscribe for or to purchase any additional shares of Preferred
Stock or shares of stock of any class or any other securities, rights or options; or (c) effect any
reclassification of the Preferred Stock (other than a reclassification involving only the
subdivision of outstanding shares of Preferred Stock, a change in the par value of such Preferred
Stock or a change from par value to no par value); or (d) directly or indirectly effect any
consolidation or merger into or with, or effect any sale, lease, exchange or other transfer or
disposition (or to permit one or more of its Subsidiaries to effect any sale, lease, exchange or
other transfer or disposition), in one transaction or a series of related transactions, of more
than 50% of the property, assets or earning power of the Company and its Subsidiaries (taken as a
whole) to, any other Person; or (e) effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to each holder of a Right, in accordance
with Section 25, a notice of such proposed action, which shall specify any record date for the
purposes of such stock dividend, distribution or rights, or the date on which such
reclassification, 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 any
such date is to be fixed, and such notice shall be so given in the case of any action covered by
clause (a) or (b) above at least 20 days prior to the record date for determining holders of the
Preferred Stock for purposes of such action, and in the case of any such other action, at least 20
days 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, the
Company shall as soon as practicable thereafter give to each holder of a Rights Certificate, in
accordance with Section 25, notice of the occurrence of such Triggering Event or Business
Combination, which shall specify the Triggering Event or Business Combination and include a
description 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 affect
the 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 Agreement
to be given or made by the Rights Agent or by the holder of any Rights Certificate to or on the
Company shall be sufficiently given or made 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.

7 Commerce Drive

Danbury, Connecticut 06810

Attention: General Counsel




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



Fleet National Bank

c/o EquiServe Limited Partnership

150 Royall Street

Canton, MA 02021

Attention: Client Administration




Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to or on the holder of any Rights Certificate shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed to such holder at the address
of such holder as shown on the registry books of the Company (or, if no Rights Certificates have
been issued, if sent by first-class mail, postage prepaid, addressed to the holder of a certificate
representing shares of Common Stock at the address of such holder as shown on the Company’s Common
Stock registry books).



Section 26. Amendments and Supplements. This Agreement may not be amended or supplemented except
as permitted in Section 26(a) or 26(b) or as contemplated by Section 11(a) (iii).



(a) At any time prior to the Stock Acquisition Date, a majority of the Board of Directors of the
Company may, and the Rights Agent shall, if so directed, amend or supplement any provision of this
Agreement without the approval of any holders of Rights.


 


37









 





(b) From and after the Stock Acquisition Date, a majority of the Board of Directors of the Company
may, and the Rights Agent shall, if so directed, amend or supplement this Agreement without the
approval of any holders of Rights Certificates (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained in this Agreement which may be defective or inconsistent with
any other provision of this Agreement, or (iii) to change or supplement the provisions hereunder in
any manner which the Company may deem necessary or desirable and which shall not adversely affect
the interests of the holders of Rights Certificates (other than an Acquiring Person or an Affiliate
or Associate of an Acquiring Person).



(c) Immediately upon the action of a majority of the Board of Directors providing for any amendment
or supplement pursuant to this Section 26, and without any further action and without notice, such
amendment or supplement shall be deemed effective. Promptly following the adoption of any
amendment or supplement pursuant to this Section 26, the Company shall deliver to the Rights Agent
a copy, certified by the Secretary or any Assistant Secretary of the Company, of resolutions of a
majority of the Board of Directors of the Company adopting such amendment or supplement. Upon such
delivery, the amendment or supplement shall be administered by the Rights Agent as part of this
Agreement in accordance with the terms of this Agreement, as so amended or supplemented.



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



Section 28. Benefits of this Agreement; Determinations and Actions by the Board of Directors.
Nothing in this Agreement shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of Rights any legal or equitable right, remedy or claim
under this Agreement; and this Agreement shall be for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Rights.



The Board of Directors of the Company shall have the exclusive power and authority to administer
this Agreement and to exercise all rights and powers specifically granted to the Board of Directors
of the Company or the Company, or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to (i) interpret the provisions of
this Agreement, and (ii) make all determinations deemed necessary or advisable for the
administration of this Agreement (including a determination to redeem or not redeem the Rights, to
exchange or not exchange the Rights for Common Stock or other securities of the Company, or to
amend or supplement this Agreement). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board of Directors of the Company in good faith, shall (x)
be final, conclusive and binding on the Company, the Rights Agent, the holders of the Rights and
all other Persons, and (y) not subject the Board of Directors of the Company to any liability to
the holders of the Rights.



Section 29. Severability.



(a) If any term, provision, covenant or restriction of this Agreement or the application thereof to
any Person or to any circumstance is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.


 


38









 





(b) If legal counsel to the Company delivers to the Company a written opinion to the effect that,
as a result of changes in federal law or Delaware law, any term, provision, covenant or restriction
of this Agreement may be invalid, void or unenforceable, then, notwithstanding any other provision
of this Agreement to the contrary, the Company and the Rights Agent may amend this Agreement to
modify, revise or delete such term, provision, covenant or restriction to the extent necessary to
comply with such law as so changed.



Section 30. Governing Law. This Agreement and each Rights Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the internal laws of such State applicable to
contracts to be made and performed entirely within such State.



Section 31. Counterparts. This Agreement may be executed in counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and both such counterparts shall
together constitute but one and the same instrument.



Section 32. Descriptive Headings. Descriptive headings of the several Sections of this Agreement
are inserted for convenience only and shall not control or affect the meaning or construction of
any of the provisions of this Agreement.



Section 33. Grammatical Construction. Throughout this Agreement, where such meanings would be
appropriate, (a) any pronouns used herein shall include the corresponding masculine, feminine or
neuter forms (e.g., references to “he” shall also include “she” and “it” and references to “who”
and “whom” shall also include “which”), (b) the plural form of nouns and pronouns shall include the
singular and vice-versa, (c) reference to a Section means a Section of this Agreement, and (d) the
word “including” means “including, without limitation,” whether expressly stated or not.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]



 


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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and their
respective corporate seals to be hereunto affixed and attested, all as of the day and year first
above written.



ATMI, INC.




Attest:




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 
	 	 	Secretary	 	Name: 	Daniel P. Sharkey	 
	 

	 	 	 	Title: 	Vice President, Chief Financial Officer and	 
	 	 	 	Treasurer	 





[Corporate Seal]





FLEET NATIONAL BANK




Attest:




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 
	 	 	Name:	 	Name:	 	 
	 	 	Title:	 	Title:	 	 






[Corporate Seal]





 


40












 




Exhibit A




Form of Certificate of Designation




Certificate of Designation

of

ATMI, Inc.




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



We, Daniel P. Sharkey, Vice President, Chief Financial Officer and Treasurer, and Ward Stevens,
Secretary, of ATMI, Inc., a corporation organized and existing under the General Corporation Law of
the State of Delaware (the “Corporation”), in accordance with the provisions of Section 103
thereof, DO HEREBY CERTIFY:



That pursuant to the authority conferred upon the Board of Directors by the Certificate of
Incorporation of the Corporation, the Board of Directors on October 13, 2000, adopted the following
resolution creating a series of 350,000 shares of Preferred Stock designated as Series A Junior
Participating Preferred Stock:



RESOLVED, that, pursuant to the authority vested in the Board of Directors of the Corporation in
accordance with the provisions of its Certificate of Incorporation, a series of Preferred Stock of
the Corporation be and it hereby is created, and that the preferences and relative, participating,
optional or other rights and the qualifications, limitations or restrictions thereof are as
follows:



SECTION 1. Designation and Amount. The designation of the series of Preferred Stock created by
this resolution shall be “Series A Junior Participating Preferred Stock” and the number of shares
constituting such series shall be 350,000.



SECTION 2. Dividends and Distributions.



(A) Out of the surplus or net profits of the Corporation legally available for the payment of
dividends, the holders of shares of Series A Junior Participating Preferred Stock shall be entitled
to receive, when and as such dividends may be declared by the Board of Directors, quarterly
dividends payable in cash on the tenth days of March, June, September and December in each year
(each such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of
Series A Junior Participating Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1.00 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock, par value $.01 per share,
of the Corporation (the “Common Stock”) since the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Junior Participating Preferred Stock. In
the event the Corporation shall at any time after November 9, 2000 (the “Rights Declaration Date”)
(i) pay any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of
shares or (iv) issue any shares by reclassification of its shares of Common Stock, then in each
such case the amount to which holders of shares of Series A Junior Participating Preferred Stock
shall have been entitled immediately prior to such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of which shall be the
number of shares of Common Stock outstanding immediately after such event and the denominator of
which shall be the number of shares of Common Stock that were outstanding immediately prior to
such event.


 


41









 





(B) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series A Junior Participating Preferred Stock, unless the date of issue of
such shares shall be prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date on which shares of Series A
Junior Participating Preferred Stock are first issued, or unless the date of issue shall be a
Quarterly Dividend Payment Date or shall be a date after the record date for the next Quarterly
Dividend Payment Date and before such Quarterly Dividend Payment Date, in either of which events
such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date.
No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments which may be in arrears.



(C) Dividends payable upon the share of Series A Junior Participating Preferred Stock shall be
cumulative (whether or not in any dividend period or periods there shall be surplus or net profits
of the Corporation legally available for the payment of such dividends) so that, if on any
Quarterly Dividend Payment Date dividends upon the outstanding shares of Series A Junior
Participating Preferred Stock shall not have been paid, or declared and a sum sufficient for the
payment thereof set apart for such payment, the amount of the deficiency shall be fully paid, but
without interest, or dividends in such amount declared on the shares of Series A Junior
Participating Preferred Stock and a sum sufficient for the payment thereof set apart for such
payment, before any dividend shall be declared or paid upon or set apart for, or any other
distribution shall be made in respect of, or any payment shall be made in respect of, or any
payment shall be made on account of the purchase of, the Common Stock or any series of Preferred
Stock subordinate to the Series A Junior Participating Preferred Stock.



SECTION 3. Distributions to Holders of Series A Junior Participating Preferred Stock and Common
Stock. Out of any surplus or net profits of the Corporation legally available for dividends remaining after full cumulative dividends upon any
series of Preferred Stock ranking senior to Series A Junior Participating Preferred Stock shall
have been paid for all past dividend periods, and after or concurrently with making payment of, or
declaring and setting apart for payment, full dividends on any series of Preferred Stock ranking
senior to the Series A Junior Participating Preferred Stock then outstanding to the most recent
Quarterly Dividend Payment Date and
after the Corporation shall have complied with the provisions in respect of any and all amounts
then or theretofore required to be set aside in respect of any sinking fund or purchase fund with
respect to any series of Preferred Stock ranking senior to Series A Junior Participating
Preferred Stock then outstanding and entitled to the benefit of a sinking fund or purchase fund,
and after the Corporation shall have made provision for compliance in respect of the current
sinking fund or purchase period for any series of Preferred Stock ranking senior to Series A Junior
Participating Preferred Stock, then and not otherwise the holders of Series A Junior Participating
Preferred Stock shall be entitled to or may receive dividends and redemption payments as provided
herein. Out of any surplus or net profits of the Corporation legally available for dividends
remaining after full cumulative dividends upon the shares of Series A Junior Participating
Preferred Stock then outstanding shall have been paid through the preceding Quarterly Dividend
Payment Date, and after the Corporation shall have complied with the provisions in respect of any
and all amounts then or theretofore required (if any) to be set aside or applied in respect of any
redemption payments in respect of shares of Series A Junior Participating Preferred Stock, then and
not otherwise, the holders of Common Stock and of any series of Preferred Stock ranking subordinate
to Series A Junior Participating Preferred Stock shall, subject to the rights of any other series
of Preferred Stock then outstanding, to paragraph (A) of Section 2 hereof and to the provisions of
the Certificate of Incorporation, be entitled to receive such dividends as may from time to time be
declared by the Board of Directors.


 


42









 





SECTION 4. Voting.



(A) Holders of shares of Series A Junior Participating Preferred Stock shall be entitled to 100
votes for each share of stock held. In the event the Corporation shall at any time after the
Rights Declaration Date (i) pay any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares by reclassification of its shares of Common
Stock, then in each such case the number of votes per share to which holders of shares of Series A
Junior Participating Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number of votes by a fraction the numerator of which shall be the
number of shares of Common Stock outstanding immediately after such event and the denominator of
which shall be the number of shares of Common Stock that were outstanding immediately prior to
such event. Except as provided in this Section 4 and except as may be required by applicable law,
holders of shares of Series A Junior Participating Preferred Stock shall vote with the Common Stock
on all matters required to be submitted to holders of Common Stock and shall not be entitled to
vote as a separate class with respect to any matter.



(B) So long as any shares of Series A Junior Participating Preferred Stock shall be outstanding,
the Corporation shall not, without the affirmative vote or written consent of the holders of a
majority of the aggregate number of shares of Series A Junior Participating Preferred Stock at the
time outstanding (or such greater percentage as may be required under applicable law), acting as a
single class, alter or change the powers, preferences or rights given to the Series A Junior
Participating Preferred Stock by the Certificate of Incorporation so as to affect such powers,
preferences or rights adversely.


 


43









 





(C) If at the time of any annual meeting of stockholders of the Corporation for the election of
directors a default in preference dividends, as the term “default in preference dividends” is
hereinafter defined with respect to the Series A Junior Participating Preferred Stock, shall exist,
the holders of the Series A Junior Participating Preferred Stock, voting separately as a class with
the holders of any other series of Preferred Stock so entitled to vote, shall have the right to
elect two members of the Board of Directors; and the holders of the Common Stock shall not be
entitled to vote in the election of the directors of the Corporation to be elected as provided in
the foregoing clause. Whenever a default in preference dividends shall commence to exist, the
Corporation, upon the written request of the holders of 5% or more of the outstanding shares of
Preferred Stock so entitled to vote, shall call a special meeting of the holders of the Preferred
Stock so entitled to vote, such special meeting to be held within 120 days after the date on which
such request shall be received by the Corporation, for the purpose of enabling such holders to
elect members of the Board of Directors as provided in the immediately preceding sentence;
provided, however, that such special meeting need not be called if an annual meeting of
stockholders of the Corporation for the election of directors shall be scheduled to be held within
such 120 days; and provided further that in lieu of any such special meeting, the election of the
directors to be elected thereat may be effected by the written consent of the holders of a majority
of the outstanding shares that would be entitled to be voted upon at such special meeting. Prior
to any such special meeting or meetings, the number of directors of the Corporation shall be
increased to the extent necessary to provide as additional places on the Board of Directors the
directorships to be filled by the directors to be elected thereat. Any director elected as
aforesaid by the holders of shares of referred Stock or of any series thereof shall cease to serve
as such director whenever a default in preference dividends shall cease to exist. If, prior to the
end of the term of any director elected as aforesaid by the holders of shares of the Preferred
Stock or of any series thereof, or elected by the holders of Common Stock, a vacancy in the office
of such director shall occur by reason of death, resignation, removal or disability, or for any
other cause, such vacancy shall be filled for the unexpired term in the manner provided in the
Bylaws; provided, however, that if such vacancy shall be filled by election by the stockholders at
a meeting thereof, the right to fill such vacancy shall be vested in the holders of that class of
stock or series thereof which elected the director the vacancy in the office of whom is so to be
filled, unless, in any such case, no default in preference dividends shall exist at the time of
such election. For the purposes of this paragraph (C), a “default in preference dividends” with
respect to the Series A Junior Participating Preferred Stock shall be deemed to have occurred
whenever the amount of dividends in arrears upon the Series A Junior Participating Preferred Stock
shall be equivalent to six full quarterly dividends or more, and, having so occurred, such default
in preference dividends shall be deemed to exist thereafter until, but only until, all dividends in
arrears on all shares of the Series A Junior Participating Preferred Stock then outstanding shall
have been paid. The term “dividends in arrears” whenever used in this paragraph (C) with reference
to the Series A Junior Participating Preferred Stock shall be deemed to mean (whether or not in any
dividend period in respect of which such term is used there shall have been surplus or net profits
of the Corporation legally available for the payment of dividends) that amount which shall be equal
to cumulative dividends at the rate for the Series A Junior
Participating Preferred Stock for all past quarterly dividend periods less the amount of all
dividends paid, or deemed paid, for all such periods upon such Series A Junior Participating
Preferred Stock. Nothing herein contained shall be deemed to prevent an increase in the number of
directors of the Corporation pursuant to its Bylaws as from time to time in effect so as to provide
as additional places on the Board of Directors directorships to be filled by the directors so to be
elected by the holders of the Series A Junior Participating Preferred Stock, or to prevent any
other change in the number of the directors of the Corporation.


 


44









 





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



SECTION 5. Reacquired Shares. Any shares of Series A Junior Participating Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or resolutions of the Board of Directors.



SECTION 6. Liquidation Rights.



(A) Upon any liquidation (voluntary or otherwise), dissolution or winding up of the Corporation
(“Liquidation”), the holders of shares of Series A Junior Participating Preferred Stock shall be
entitled to receive out of the assets of the Corporation available for distribution to its
stockholders, before any payment or distribution shall be made on the shares of any series of
Preferred Stock subordinate to Series A Junior Participating Preferred Stock as to assets in the
event of any Liquidation (“Junior Shares”) or on the Common Stock, the amount of $100.00 per share,
plus a sum equal to all dividends (whether or not earned or declared) on such shares accrued and
unpaid thereon through the date of final distribution (the “Series A Liquidation Preference”).



(B) The shares of Series A Junior Participating Preferred Stock shall be subordinate to any other
series of Preferred Stock unless the provisions of such other series provide otherwise, and shall
be preferred over the Common Stock, as to assets in the event of any Liquidation. In the event of
any Liquidation, the holders of the shares of Series A Junior Participating Preferred Stock shall
be entitled to receive, out of the assets of the Corporation available for distribution to its
stockholders (after payment in full of all amounts payable in respect of any series of Preferred
Stock ranking senior to Series A Junior Participating Preferred Stock), an amount determined as
provided in paragraph (A) of this Section 6 for every share of Series A Junior Participating
Preferred Stock before any distribution of assets shall be made to the holders of any Junior Shares
or to the holders of the Common Stock. If, in the event of any Liquidation, the holders of the
Series A Junior Participating Preferred Stock shall have received all the amounts to which they
shall be entitled in accordance with the terms of paragraph (A) of this Section 6, no additional
distributions shall be made to the holders of shares of Series A Junior Participating Preferred
Stock unless,
prior thereto, the holders of shares of Common Stock shall have received an amount per share (the
“Common Adjustment”) equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in paragraph (C) of this Section 6
to reflect such events as stock splits, stock dividends and recapitalizations with respect to the
Common Stock) (such number in clause (ii) being referred to herein as the “Adjustment Number”).
Following the payment of the full amount of the Common Adjustment in respect of all outstanding
shares of Common Stock, holders of Series A Junior Participating Preferred Stock and holders of
shares of Common Stock shall receive their ratable and proportionate share of the remaining assets
to be distributed to the holders of Series A Junior Participating Preferred Stock and Common Stock
in the ratio of the Adjustment Number to 1 with respect to such Preferred Stock and Common Stock,
on a per share basis, respectively. If, upon any Liquidation, the amounts payable on or with
respect to Series A Junior Participating Preferred Stock and any series of Preferred Stock ranking
on a parity with Series A Junior Participating Preferred Stock are not paid in full, the holders of
shares of such Preferred Stock shall share ratably in any distribution of assets according to the
respective amounts which would be payable in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to such Preferred Stock were paid in full.


 


45









 





(C) In the event the Corporation shall at any time after the Rights Declaration Date (i) pay any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, (iii) combine the outstanding Common Stock into a smaller number of shares or (iv) issue any
shares by reclassification of its shares of Common Stock, then in each such case the Adjustment
Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment
Number by a fraction the numerator of which shall be the number of shares of Common Stock
outstanding immediately after such event and the denominator of which shall be the number of shares
of Common Stock that were outstanding immediately prior to such event.



(D) Neither the sale, lease or exchange (for cash, shares of stock, securities or other
consideration) of all or substantially all the property and assets of the Corporation nor the
merger or consolidation of the Corporation into or with any other corporation or other entity or
the merger or consolidation of any other corporation or other entity into or with the Corporation
shall be deemed to be a Liquidation for the purposes of this Section 6.



SECTION 7. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock shall
be exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case the shares of Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any time after the
Rights Declaration Date (i) pay any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares by reclassification of its shares
of Common Stock, then in each such case the amount set forth in the preceding sentence with respect
to the exchange or change of shares of Series A Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of which shall be the number of
shares of Common Stock outstanding immediately after such event and the denominator of which shall
be the number of shares of Common Stock that were outstanding immediately prior to such event.



 


46









 





SECTION 8. Optional Redemption.



(A) The Corporation shall have the option to redeem the whole or any part of the Series A Junior
Participating Preferred Stock at any time at a redemption price equal to, subject to the provision
for adjustment hereinafter set forth, 100 times the “current per share market price” of the Common
Stock on the date of the mailing of the notice of redemption, together with unpaid accumulated
dividends to the date of such redemption. In the event the Corporation shall at any time after the
Rights Declaration Date (i) pay any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares by reclassification of its shares of Common
Stock, then in each such case the amount to which holders of shares of Series A Junior
Participating Preferred Stock shall be otherwise entitled immediately prior to such event under the
immediately preceding sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which shall be the number of shares of Common Stock outstanding immediately after such
event and the denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event. The “current per share market price” on any date
shall be deemed to be the average of the closing prices per share of such Common Stock for the 10
consecutive Trading Days (as such term in hereinafter defined) immediately prior to such date. The
closing price for each Trading Day shall be the last sale price, regular way, on such day or, in
case no such sale takes place on such day, the average of the closing bid and asked prices, regular
way, on such day in either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New York Stock Exchange
(“NYSE”) or, if the Common Stock is not listed or admitted to trading on the NYSE, as reported in
the principal consolidated transaction reporting system with respect to securities listed on the
principal United States national securities exchange on which the Common Stock is listed or
admitted to trading or, if the Common Stock is not listed or admitted to trading on any 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 low asked prices in the over-the-counter market on such day, as
reported by the National Association of Securities Dealers, Inc. Automated Quotation System
(“NASDAQ”) or such other system then in use or, if on any such day the Common Stock is not quoted
by any such system, the average of the closing bid and asked prices on such day as furnished by a
professional market maker making a market in the Common Stock selected by the Board of Directors of
the Corporation (which selection shall be final, binding and conclusive for all purposes) or, if
on such day no such market maker is be making a market in the Common Stock, the fair market value
of the Common Stock on such date as determined in good faith by the Board of Directors of the
Corporation (which determination shall be final, binding and conclusive for all purposes). The
term “Trading Day” shall mean a day on which the principal United States national securities
exchange on
which the Common Stock is be listed or admitted to trading is open for the transaction of business
or, if the Common Stock is not listed or admitted to trading on any United States national
securities exchange, but are traded in the over-the-counter market and reported by NASDAQ, then any
day for which NASDAQ reports the high bid and low asked prices in the over-the-counter market, or
if the Common Stock is not traded in the over-the counter market and reported by NASDAQ, then any
day other than a Saturday, Sunday or a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to close.


 


47









 





(B) Notice of any such redemption shall be given by mailing to the holders of the Series A Junior
Participating Preferred Stock a notice of such redemption, first class postage prepaid, not later
than the thirtieth day and not earlier than the sixtieth day before the date fixed for redemption,
at their last address as the same shall appear upon the books of Corporation. Any notice which
shall be mailed in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the stockholder shall have received such notice, and failure duly to give
such notice by mail, or any defect in such notice, to any holder of Series A Junior Participating
Preferred Stock shall not affect the validity of the proceedings for the redemption of such Series
A Junior Participating Preferred Stock.



(C) If less than all the outstanding shares of the Series A Junior Participating Preferred Stock
are to be redeemed by the Corporation, the number of shares to be redeemed shall be determined by
the Board of Directors and the shares to be redeemed shall be determined by lot or pro rata or in
such fair and equitable other manner as may be prescribed by resolution of the Board of Directors.



(D) The notice of redemption to each holder of Series A Junior Participating Preferred Stock shall
specify (a) the number of shares of Series A Junior Participating Preferred Stock of such holder to
be redeemed, (b) the date fixed for redemption, (c) the redemption price and (d) the place of
payment of the redemption price.



(E) If any such notice of redemption shall have been duly given or if the Corporation shall have
given to the bank or trust company hereinafter referred to irrevocable written authorization
promptly to give or complete such notice, and if on or before the redemption date specified therein
the funds necessary for such redemption shall have been deposited by the Corporation with the bank
or trust company designated in such notice, doing business in the United States of America and
having a capital, surplus and undivided profits aggregating at least $100,000,000 according to its
last published statement of condition, in trust for the benefit of the holders of Series A Junior
Participating Preferred Stock called for redemption, then, notwithstanding that any certificate for
such shares so called for redemption shall not have been surrendered for cancellation, from and
after the time of such deposit all such shares called for redemption shall no longer be deemed
outstanding, all rights with respect to such shares shall no longer be deemed outstanding and all
rights with respect to such shares shall forthwith cease and terminate, except the right of the
holders thereof to receive from such bank or trust company at any time after the time of such
deposit the funds so deposited, without interest. In case less than all the shares represented by
any surrendered certificate shall be redeemed, a new certificate shall be issued representing the
unredeemed shares. Any interest accrued on such
funds so deposited shall be paid to the Corporation from time to time. Any funds so deposited and
unclaimed at the end of six years from such redemption date shall be repaid to the Corporation,
after which the holders of shares of Series A Junior Participating Preferred Stock called for
redemption shall look only to the Corporation for payment thereof; provided, however, that any
funds so deposited which shall not be required for redemption because of the exercise of any
privilege of conversion or exchange subsequent to the date of deposit shall be repaid to the
Corporation forthwith.




 


48












 




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



SECTION 10. Fractional Shares. Series A Junior Participating Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such holder’s fractional
shares, to exercise voting rights, receive dividends, participate in distributions and to have the
benefit of all other rights of holders of Series A Junior Participating Preferred Stock.



IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do affirm the foregoing as
true under the penalties of perjury this 13th day of October, 2000.



	 	 	 
	 


	 	 
	Daniel P. Sharkey
	 	 
	Vice President, Chief Financial Officer and 
	 	 
	Treasurer
	 	 






Attest:



	 	 	 
	 


	 	 
	Ward Stevens
	 	 
	Secretary
	 	 






Exhibit B

Form of Rights Certificate




Certificate No. R-                    




Rights




NOT EXERCISABLE AFTEROCTOBER 12, 2010 OR EARLIER IF NOTICE OF REDEMPTION OR EXCHANGE IS GIVEN. THE
RIGHTS ARE SUBJECT TO REDEMPTION OR EXCHANGE, AT THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH
IN THE RIGHTS AGREEMENT. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE
OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS
RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF THE RIGHTS AGREEMENT.]


 


49









 





Rights Certificate




ATMI, INC.




This certifies that                     , or registered assigns, is the registered owner of
the number of Rights set forth above, each of which entitles the owner thereof, subject to the
terms, provisions and conditions of the Rights Agreement dated as of October 13, 2000 (as amended,
the “Rights Agreement”) between ATMI, Inc., a Delaware corporation (the “Company”), and Fleet
National Bank (the “Rights Agent”), unless notice of redemption shall have been previously given by
the Company, to purchase from the Company at any time after the Distribution Date (as such term is
defined in the Rights Agreement) and prior to 5:00 P.M., New York, New York time on October 12,
2010, at the principal corporate trust office of the Rights Agent, or at the office of its
successor as Rights Agent, one one-hundredth of a fully paid and nonassessable share of the Junior
Participating Preferred Stock, par value $.01 per share, of the Company (the “Preferred Stock”), at
a purchase price (the “Purchase Price”) of $175.00 per one one-hundredth share, upon presentation
and surrender of this Rights Certificate with the Form of Election to Purchase duly executed. The
Purchase Price may be paid in cash or by certified bank check or bank draft payable to the order of
the Company.



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



If the Rights evidenced by this Rights Certificate are or were formerly beneficially owned, on or
after the earlier of the Distribution Date and the Stock Acquisition Date, by (i) an Acquiring
Person or any Associate or Affiliate of an Acquiring Person, or (ii) a direct or indirect
transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person), such
Rights may become null and void, in which event the holder of any such Right (including any
subsequent holder) shall not have any rights with respect to such Right.



This Rights Certificate is subject to all of the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Rights Certificates. Capitalized terms used but not
defined in this Rights Certificate that are defined in the Rights Agreement shall have the same
meanings ascribed to them in the Rights Agreement. Copies of the Rights Agreement are on file at
the principal executive offices of the Company and the above-mentioned office of the Rights Agent.


 


50









 





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



Subject to the provisions of the Rights Agreement, the Rights evidenced by this Rights Certificate
(a) may be redeemed by the Board of Directors of the Company at its option at a redemption price of
$.01 per Right, subject to adjustment, payable, at the election of the Company, in cash or shares
(including fractional shares) of Common Stock or such other consideration as the Board of Directors
may determine at any time prior to the earlier of (i) 12:00 a.m. (midnight, New York, New York
time) on the Stock Acquisition Date, and (ii) the Expiration Date, or (b) may be exchanged after
the Stock Acquisition Date by the Board of Directors of the Company at its option in whole or in
part for shares of the Company’s Common Stock or other Company securities.



No fractional shares of Preferred Stock (other than fractions that are integral multiples of one
one-hundredth of a share of Preferred Stock, which may, at the election of the Company, be
evidenced by depository receipts) are required to be issued upon the exercise of any Right or
Rights evidenced hereby, but in lieu thereof the Company may elect to (i) evidence fractional
shares by depositary receipts, (ii) issue scrip or warrants in registered form (either represented
by a certificate or uncertificated) or in bearer form (represented by a certificate) which shall
entitle the holder to receive a full share upon the surrender of such scrip or warrants aggregating
a full share, or (iii) make a cash payment, as provided in the Rights Agreement.



No holder of this Rights Certificate, as such, shall be entitled to vote or to receive dividends
on, or shall be deemed for any purpose the holder of, Preferred Stock or of any other securities,
cash or property which may at any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or this Rights Certificate be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the Company, including, without limitation,
any right to vote for the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or
to receive dividends or subscription rights, or to institute, as a holder of Preferred Stock or
other securities issuable on the exercise of the Rights represented by this Rights Certificate, any
derivative action, or otherwise, until and only to the extent the Right or Rights evidenced by this
Rights Certificate shall have been exercised as provided in the Rights Agreement.



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


 


51









 





WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.
Dated as of _____      , _____.



ATMI, INC.




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Daniel P. Sharkey	 	 
	 

	 	Chief Financial Officer, Vice President and
Treasurer	 	 






Countersigned:



Fleet National Bank




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






[Form of Reverse Side of Rights Certificate]




Form of Assignment




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


to transfer the Rights Certificate.)




FOR VALUE RECEIVED the undersigned                      hereby sells, assigns and transfers unto




(Please print name and address of transferee)                      Rights evidenced by this Rights
Certificate, together with all right, title and interest therein, and does hereby irrevocably
constitute and appoint                      with a power of attorney to transfer the said
Rights and a Rights Certificate evidencing such Rights on the books of ATMI, Inc., with full power
of substitution.



A new Rights Certificate evidencing the remaining balance, if any, of such Rights not hereby sold,
assigned and transferred shall be mailed to and registered in the name of the undersigned unless
such person requests that such Rights Certificate be registered in the name of and mailed to
(complete only if a Rights Certificate evidencing any remaining balance of Rights is to be
registered in a name other than the name of the undersigned):



Please insert Social Security or other identifying number of transferee:



	 	 	 
	 


	 	 
	(Please print name and address:
	 	 
	 
	 	 
	 


	 	 
	 


	 	 
	 


	 	 






 


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The undersigned hereby certifies by checking the appropriate boxes that:



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



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



Dated:                     

Signature




Signature Guaranteed:



Signatures must be guaranteed by an eligible guarantor institution with membership in a recognized
signature guarantee medallion program as approved by the Stock Transfer Association.


 


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Notice




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



In the event the certification set forth above in the Form of Assignment is not completed, the
Company will deem the beneficial owner of the Rights evidenced by this Right Certificate to be an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and, in
the case of an assignment or other transfer of this Rights Certificate or any Rights evidenced
hereby, will affix a legend to that effect on any Rights Certificate issued in whole or partial
exchange for this Rights Certificate.


 


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Form of Election to Purchase




(To be executed if holder desires to exercise

the Rights represented by this Rights Certificate)




To: ATMI, Inc.



The undersigned hereby irrevocably elects to exercise                      Rights represented by
this Rights Certificate to purchase the shares of Preferred Stock or other securities, cash or
other property issuable upon the exercise of such Rights and requests that certificates for such
shares or other securities be issued in the name of, and such cash or other property be paid to:



Please insert social security or other identifying number:



	 	 	 	 	 
	 


	 	 	 	 
	 	 	 
	(Please print name and address)	 	 
	 
	 	 	 	 
	 	 	 






A new Rights Certificate evidencing the remaining balance, if any, of such Rights not hereby
exercised shall be mailed to and registered in the name of the undersigned unless such person
requests that such Rights Certificate be registered in the name of and mailed to (complete only if
Rights Certificate evidencing any remaining balance of Rights is to be registered in a name other
than the name of the undersigned):



Please insert social security or other identifying number:




	 	 	 	 	 
	 


	 	 	 	 
	 	 	 
	(Please print name and address)	 	 
	 
	 	 	 	 
	 	 	 






 


55









 





Certificate




The undersigned hereby certifies by checking the appropriate boxes that:



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



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



	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 

	 	 
	Signature:
	 	 	 	 
	 

	 	 

	 	 






Signature Guaranteed:



Signatures must be guaranteed by an eligible guarantor institution with membership in a recognized
signature guarantee medallion program as approved by the Stock Transfer Association.


 


56









 





Notice




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



In the event the certification set forth above in the Form of Election to Purchase is not
completed, the Company will deem the beneficial owner of the Rights evidenced by this Rights
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement) and, in the case of an assignment or other transfer of this Rights Certificate or
any Rights evidenced hereby, will affix a legend to that effect on any Rights Certificate issued in
whole or partial exchange for this Rights Certificate.


 


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Exhibit C




Summary of Rights to Purchase Preferred Stock




On October 13, 2000, the Board of Directors of ATMI, Inc. (the “Company”) authorized the issuance
of one preferred share purchase right (a “Right”) for each outstanding share of common stock, par
value $.01 per share (the “Common Stock”), of the Company. The distribution is payable to the
stockholders of record at the close of business on November 9, 2000 (the “Record Date”), which is
also the payment date, and with respect to all shares of Common Stock that become outstanding after
the Record Date and prior to the earliest of the Distribution Date (as defined below), the
redemption of the Rights, the exchange of the Rights, or the expiration of the Rights (and, in
certain cases, following the Distribution Date). Each Right entitles the registered holder to
purchase from the Company one one-hundredth of a share of a Junior Participating Preferred Stock,
par value $.01 per share, of the Company (the “Preferred Stock”) at an exercise price of $175.00
per one one-hundredth of a share of Preferred Stock (the “Purchase Price”), subject to adjustment.
The description and terms of the Rights, and certain defined terms used herein, are set forth in a
Rights Agreement (as amended, the “Rights Agreement”) between the Company and Fleet National Bank
as Rights Agent (the “Rights Agent”), dated as of October 13, 2000.



Until the earlier to occur of (i) the expiration of the Company’s redemption rights on the date of
public disclosure that a person or group other than certain Exempt Persons (an “Acquiring Person”),
together with persons affiliated or associated with such Acquiring Person (other than those that
are Exempt Persons), has acquired, or obtained the right to acquire, beneficial ownership of 15% or
more (20% or more in the case of certain acquisitions by institutional investors) of the
outstanding Common Stock (the “Stock Acquisition Date”) and (ii) the tenth business day after the
date (the “Tender Offer Date”) of commencement or public disclosure of an intention to commence a
tender offer or exchange offer by a person other than an Exempt Person if, upon consummation of the
offer, such person could acquire beneficial ownership of 15% or more of the outstanding Common
Stock (the earlier of such dates being called the “Distribution Date”), the Rights will be
evidenced by Common Stock certificates and not by separate certificates. The Rights Agreement
provides that, until the Distribution Date (or earlier redemption, exchange or expiration of the
Rights), the Rights will be transferred with and only with the Common Stock. Until the
Distribution Date (or earlier redemption, exchange or expiration of the Rights), new Common Stock
certificates issued after November 13, 2000, upon transfer or new issuance of shares of Common
Stock, will contain a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption, exchange or expiration of the Rights) the surrender for
transfer of any certificate for Common Stock will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate. As soon as practicable following
the Distribution Date, separate certificates evidencing the Rights (“Right Certificates”) will be
mailed to holders of record of the Common Stock as of the close of business on the Distribution
Date, and such separate Right Certificates alone will evidence the Rights.


 


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The Rights will first become exercisable on the Stock Acquisition Date (unless sooner redeemed or
exchanged). The Rights will expire at the close
of business on October 12, 2010 (the “Expiration Date”), unless earlier redeemed or exchanged by
the Company as described below.



The Purchase Price payable, and the number of shares of Preferred Stock or other securities, cash
or other property issuable, upon exercise of the Rights are subject to adjustment from time to time
to prevent dilution (i) in the event of a stock dividend or distribution on, or a subdivision,
combination or reclassification of, the Preferred Stock, (ii) upon the grant to holders of the
Preferred Stock of certain rights, options or warrants to subscribe for Preferred Stock or
securities convertible into or exchangeable for Preferred Stock at less than the current market
price of the Preferred Stock or (iii) upon the distribution to holders of the Preferred Stock of
evidences of indebtedness or assets (excluding regular periodic cash dividends, subject to certain
limitations set forth in the Rights Agreement) or of subscription rights or warrants (other than
those referred to above). In addition, the Purchase Price payable, and the number of shares of
Preferred Stock purchasable, on exercise of a Right is subject to adjustment in the event that the
Company should (i) declare or pay any dividend on the Common Stock payable in Common Stock or (ii)
effect a subdivision or combination of the Common Stock into a different number of shares of
Common Stock.



With certain exceptions, no adjustment in the Purchase Price will be required until cumulative
adjustments require an adjustment of at least 1% in such Purchase Price. No fractional shares of
Preferred Stock will be issued (other than fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts) and in lieu thereof, an adjustment in cash will be made based on
the market price of the Preferred Stock on the last trading date prior to the date of exercise.



In the event that there is public disclosure that an Acquiring Person has become such, proper
provision would be made so that each holder of a Right, other than Rights that are or were
beneficially owned by the Acquiring Person and certain related persons and transferees (which will
thereafter be void), will thereafter have the right to receive upon exercise that number of shares
of Common Stock (or other securities) having at the time of such transaction a market value of two
times the Purchase Price of the Right. In addition, the Company’s Board of Directors has the
option of exchanging all or part of the Rights (excluding void Rights) for an equal number of
shares of Common Stock in the manner described in the Rights Agreement.



In the event that, at any time following public disclosure that an Acquiring Person has become
such, the Company is involved in a merger or other business combination transaction where the
Company is not the surviving corporation or where the Common Stock is changed or exchanged or in a
transaction or transactions as a result of which 50% or more of its consolidated assets or earning
power are sold, proper provision would be made so that each holder of a Right (other than such
Acquiring Person and certain related persons or transferees) shall thereafter have the right to
receive, upon the exercise thereof at the then current Purchase Price of the Right, that number of
shares of common stock of the acquiring company or the Company, as the case may be, which at the
time of such transaction would have a market value of two times the Purchase Price of the Right.


 


59









 





At any time prior to public disclosure that an Acquiring Person has become such, the Board of
Directors of the Company may redeem the Rights in whole, but not in part, at a price of $.01 per
Right (the “Redemption Price”), payable in cash, shares (including fractional shares) of Common
Stock or any other form of consideration deemed appropriate by the Board of Directors.



At any time prior to the Distribution Date, the Board of Directors of the Company may amend or
supplement the Rights Agreement without the approval of the Rights Agent or any holder of the
Rights. From and after the Distribution Date, the Board of Directors of the Company may generally
only amend or supplement the Rights Agreement without such approval only to cure ambiguity, correct
or supplement any defective or inconsistent provision or change or supplement the Rights Agreement
in any manner which shall not adversely affect the interests of the holders of the Rights (other
than an Acquiring Person or an affiliate or associate thereof). Immediately upon the action of the
Board of Directors providing for any amendment or supplement, such amendment or supplement will be
deemed effective.



The Preferred Stock purchasable upon exercise of the Rights will not be redeemable. Each share of
Preferred Stock will be entitled to a minimum preferential quarterly dividend payment, when, as and
if declared by the Board of Directors of the Company, equal to the greater of $1.00 per share and
100 times the dividend declared per share of Common Stock, subject to anti-dilution adjustment. In
the event of liquidation, the holders of the Preferred Stock will be entitled to a preferential
liquidation payment equal to $100 per share, plus accrued and unpaid dividends, subject to
anti-dilution adjustment. Each share of Preferred Stock will have 100 votes per share, subject to
anti-dilution adjustment, voting together with the Common Stock. In the event of any merger,
consolidation or other transaction in which the Common Stock is exchanged, each share of Preferred
Stock will be entitled to receive 100 times the amount received per Common Stock, subject to
anti-dilution adjustment.



Exempt Persons include (i) the Company, (ii) any Subsidiary of the Company, (iii) any employee
benefit plan of the Company or of any Subsidiary of the Company and (iv) any Person holding Common
Stock for any such employee benefit plan or for employees of the Company or of any Subsidiary of
the Company pursuant to the terms of any such employee benefit plan.



The Rights may have certain anti-takeover effects. The Rights may cause substantial dilution to a
person or group (except as described above with respect to an Exempt Person) that attempts to
acquire the Company on terms not approved by the Board. The Rights should not interfere with any
merger or other business combination approved by the Board of Directors prior to the time a person
or group other than an Exempt Person has acquired beneficial ownership of 15% or more (20% or more
in the case of certain acquisitions by institutional investors) of the Common Stock, because until
such time the Rights may generally be redeemed by the Company at $.01 per Right.




Until a Right is exercised, the holder thereof, as such, will have no rights as a stockholder of
the Company, including, without limitation, the right to vote or to receive dividends.



A copy of the Rights Agreement has been filed with the Securities and Exchange Commission as an
Exhibit to the Company’s Current Report on Form 8-K.



A copy of the Rights Agreement is available free of charge from the Company. This summary
description of the Rights does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is hereby incorporated herein by reference.




 


60