Exhibit 4.1


 


 


 


 


 


 


 


 


 





 



 


 


 


 


 


TAX BENEFITS PRESERVATION PLAN


 


Gulfport Energy Corporation


 


and


 


Computershare Trust Company, N.A.


 


as Rights Agent


 


Dated as of April 30, 2020


 


 


 


 


 





 



 


 


 


 


 


 


 


 


 


 


 


 


 




     


     


    

 


Table of Contents


 


	 	 	Page
	Section 1.	Certain Definitions	1
	Section 2.	Appointment of Rights Agent	10
	Section 3.	Issuance of Rights Certificates	10
	Section 4.	Form of Rights Certificates	12
	Section 5.	Countersignature and Registration	13
	Section 6.	Transfer, Split Up, Combination and Exchange of Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates	13
	Section 7.	Exercise of Rights; Exercise Price; Expiration Time of Rights	14
	Section 8.	Cancellation and Destruction of Rights Certificates	16
	Section 9.	Reservation and Availability of Capital Stock	17
	Section 10.	Preferred Stock Record Date	18
	Section 11.	Adjustment of Exercise Price, Number and Kind of Shares or Number of Rights	19
	Section 12.	Certificate of Adjusted Exercise Price or Number of Shares	26
	Section 13.	Consolidation, Merger or Sale or Transfer of Assets, Cash Flow or Earning Power	26
	Section 14.	Fractional Rights and Fractional Shares	30
	Section 15.	Rights of Action	31
	Section 16.	Agreement of Rights Holders	31
	Section 17.	Rights Certificate Holder Not Deemed a Stockholder	32
	Section 18.	Concerning the Rights Agent	32
	Section 19.	Merger or Consolidation or Change of Name of Rights Agent	33
	Section 20.	Duties of Rights Agent	34
	Section 21.	Change of Rights Agent	37
	Section 22.	Issuance of New Rights Certificates	38
	Section 23.	Redemption and Termination	38
	Section 24.	Exchange	39
	Section 25.	Notice of Certain Events	41
	Section 26.	Notices	42
	Section 27.	Supplements and Amendments	43
	Section 28.	Successors	43
	Section 29.	Determination and Action by the Board	43
	Section 30.	Benefits of this Agreement	44
	Section 31.	Tax Compliance and Withholding	44
	Section 32.	Process to Seek Exemption	44
	Section 33.	Severability	45
	Section 34.	Governing Law; Submission to Jurisdiction	45
	Section 35.	Counterparts	46
	Section 36.	Descriptive Headings; Interpretation	46
	Section 37.	Force Majeure	46


 


	Exhibit A	-	Form of Certificate of Designation
	Exhibit B	-	Form of Rights Certificate
	Exhibit C	-	Summary of Rights to Purchase Preferred Stock


 




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TAX BENEFITS PRESERVATION PLAN


 


This TAX BENEFITS PRESERVATION
PLAN, dated as of April 30, 2020 (this “Agreement”), by and between Gulfport Energy Corporation, a Delaware
corporation (the “Company”), and Computershare Trust Company, N.A., a national banking association, as rights
agent (the “Rights Agent”).


 


W I T N E S S E T H:


 


WHEREAS, the
Company has generated net operating losses for United States federal income tax purposes (“NOLs”) and certain
other tax benefits may potentially provide valuable tax benefits to the Company, the Company desires to avoid an “ownership
change” within the meaning of Section 382 (as defined below) and thereby preserve the ability to utilize fully such NOLs
and certain other tax benefits and, in furtherance of such objective, the Company desires to enter into this Agreement; and


 


WHEREAS, on
April 30, 2020 (the “Rights Dividend Declaration Date”), the board of directors of the Company (the “Board”)
authorized and declared a dividend distribution of one right (a “Right”) for each share of Common Stock outstanding
at the Close of Business on May 15, 2020 (the “Record Date”), each Right initially representing the right to
purchase one one-thousandth of one share of Series B Junior Participating Preferred Stock of the Company having the rights, powers
and preferences set forth in the form of Certificate of Designation attached hereto as Exhibit A, upon the terms and subject
to the conditions hereinafter set forth, and has further authorized the issuance of one Right (as such number may hereinafter be
adjusted pursuant to Section 11) for each share of Common Stock that shall become outstanding between the Record Date
(whether originally issued or delivered from the Company’s treasury) and the earlier of the Distribution Time and the Expiration
Time or, in certain circumstances provided in Section 22, after the Distribution Time.


 


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


 


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


 


“Acquiring
Person” shall mean any Person, which, together with all of its Related Persons, is the Beneficial Owner of 4.9% or more
of the shares of Common Stock then outstanding, but shall exclude the Exempt Persons and any Grandfathered Persons.


 


Notwithstanding anything
in this Agreement to the contrary, no Person shall become an “Acquiring Person”:


 


(i) as
the result of an acquisition of shares of Common Stock by the Company which, by reducing the number of shares of Common Stock outstanding,
increases the percentage of the shares of Common Stock Beneficially Owned by such Person, together with all of its Related Persons,
to 4.9% or more of the shares of Common Stock then outstanding; provided, however, that if a Person, together with
all of its Related Persons, becomes the Beneficial Owner of 4.9% or more of the shares of Common Stock then outstanding by reason
of share acquisitions by the Company and, after such share acquisitions by the Company, becomes the Beneficial Owner of any additional
shares of Common Stock (other than pursuant to a dividend or distribution paid or made by the Company on the outstanding Common
Stock or pursuant to a split or subdivision of the outstanding Common Stock), then such Person shall be deemed to be an “Acquiring
Person” unless, upon becoming the Beneficial Owner of such additional shares of Common Stock, such Person, together with
all of its Related Persons, does not Beneficially Own 4.9% or more of the Common Stock then outstanding;


 






     


     


    

 


(ii) if
(A) the Board determines that such Person has become an “Acquiring Person” inadvertently (including because (1) such
Person was unaware that it Beneficially Owned a percentage of the then outstanding Common Stock that would otherwise cause such
Person to be an “Acquiring Person” or (2) such Person was aware of the extent of its Beneficial Ownership of Common
Stock but had no actual knowledge of the consequences of such Beneficial Ownership under this Agreement); and (B) such Person
divests as promptly as practicable (as determined by the Board) a sufficient number of shares of Common Stock so that such Person
would no longer be an “Acquiring Person”;


 


(iii) solely
as a result of any unilateral grant of any security by the Company, or through the exercise of any options, warrants, rights or
similar interests (including restricted stock) granted by the Company to its directors, officers or employees; provided,
however, that if a Person, together with all of its Related Persons, becomes the Beneficial Owner of 4.9% or more of the
shares of Common Stock then outstanding by reason of a unilateral grant of a security by the Company, or through the exercise of
any options, warrants, rights or similar interests (including restricted stock) granted by the Company to its directors, officers
and employees, then such Person shall nevertheless be deemed to be an “Acquiring Person” if, subject to clause (a)(ii)
above, such Person, together with all of its Related Persons, thereafter becomes the Beneficial Owner of any additional shares
of Common Stock (unless upon becoming the Beneficial Owner of additional shares of Common Stock, such Person, together with all
of its Related Persons, does not Beneficially Own 4.9% or more of the Common Stock then outstanding), except as a result of (A) a
dividend or distribution paid or made by the Company on the outstanding Common Stock or a split or subdivision of the outstanding
Common Stock or (B) the unilateral grant of a security by the Company, or through the exercise of any options, warrants, rights
or similar interest (including restricted stock) granted by the Company to its directors, officers or employees;


 


(iv) by
means of share purchases or issuances (including debt to equity exchanges), directly from the Company or indirectly through an
underwritten offering of the Company, in a transaction approved by the Board; provided, however, that a Person shall
be deemed to be an “Acquiring Person” if such Person (A) is or becomes the Beneficial Owner of 4.9% or more of
the shares of Common Stock then outstanding following such transaction and (B) following such transaction, becomes the Beneficial
Owner of any additional shares of Common Stock without the prior written consent of the Company and then Beneficially Owns 4.9%
or more of the shares of Common Stock then outstanding;


 






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(v) if
such Person is a bona fide swaps dealer who has become an “Acquiring Person” as a result of its actions in the
ordinary course of its business that the Board determines, in its sole discretion, were taken without the intent or effect of evading
or assisting any other Person to evade the purposes and intent of this Agreement, or otherwise seeking to control or influence
the management or policies of the Company.


 


Notwithstanding the
foregoing definition of “Acquiring Person,” the Board may also determine that any Person is an “Acquiring Person”
under this Agreement if such Person becomes the Beneficial Owner of 4.9% of the Common Stock of the Company then outstanding (as
the term “stock” is defined in Treasury Regulations Sections 1.382-2(a)(3) and 1.382-2T(f)(18)).


 


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


 


“Adjustment
Shares” shall have the meaning set forth in Section 11(a)(ii).


 


“Affiliate”
shall have the meaning ascribed to such term in Rule 12b-2 of the Exchange Act Regulations as in effect on the date of this
Agreement and, to the extent not included within the foregoing clause, shall also include, with respect to any Person, any other
Person (other than an Exempt Person or a Grandfathered Person) whose shares of Common Stock would be deemed constructively owned
by such first Person or otherwise aggregated with shares owned by such first Person, pursuant to the provisions of Section 382
and the Treasury Regulations; provided, however, that a Person will not be deemed to be an Affiliate of another Person solely
because either or both Persons are or were directors or officers of the Company.


 


“Agreement”
shall have the meaning set forth in the preamble to this Agreement.


 


“Associate”
shall have the meaning ascribed to such term in Rule 12b-2 of the Exchange Act Regulations as in effect on the date of this
Agreement and, to the extent not included within the foregoing clause, shall also include, with respect to any Person, any other
Person (other than an Exempt Person or a Grandfathered Person) whose shares of Common Stock would be deemed constructively owned
by such first Person or otherwise aggregated with shares owned by such first Person, pursuant to the provisions of Section 382
and the Treasury Regulations; provided, however, that a Person will not be deemed to be an Associate of another Person solely
because either or both Persons are or were directors or officers of the Company.


 


A Person shall be deemed
the “Beneficial Owner” of, and shall be deemed to “Beneficially Own” and have “Beneficial
Ownership” of any securities (that are as such, “Beneficially Owned”):


 


(i) that
such Person would be deemed to directly, indirectly or constructively own (as determined for purposes of Section 382 or the Treasury
Regulations), including any coordinated acquisition of securities by any Persons who have a formal or informal understanding with
respect to such acquisition (to the extent ownership of such securities would be attributed to such Persons under Section 382 and
the Treasury Regulations);


 


(ii) that
such Person or any of such Person’s Related Persons beneficially owns, directly or indirectly, as determined pursuant to
Rule 13d-3 of the Exchange Act Regulations as in effect on the date of this Agreement;


 






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(iii) that
such Person or any of such Person’s Related Persons, directly or indirectly, has the right or obligation to acquire (whether
such right is exercisable, or such obligation is required to be performed, immediately or only after the passage of time or the
satisfaction of other conditions) pursuant to any agreement, arrangement or understanding (whether or not in writing and other
than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering
of securities) or upon the exercise of conversion rights, exchange rights, rights (other than the Rights), warrants or options,
or otherwise; provided, however, that a Person shall not be deemed the “Beneficial Owner” of, or to “beneficially
own,” (A) securities tendered pursuant to a tender or exchange offer made in accordance with the Exchange Act Regulations
by or on behalf of such Person or any of such Person’s Related Persons until such tendered securities are accepted for purchase
or exchange, (B) securities issuable upon exercise of Rights at any time prior to the occurrence of a Triggering Event, (C) securities
issuable upon exercise of Rights from and after the occurrence of a Triggering Event which Rights were acquired by such Person
or any such Person’s Related Persons prior to the Distribution Time or pursuant to Section 22 (the “Original
Rights”) or pursuant to Section 11(i) in connection with an adjustment made with respect to any Original
Rights or (D) securities which such Person or any of such Person’s Related Persons may acquire, does or do acquire or may
be deemed to have the right to acquire, pursuant to any merger or other acquisition agreement between the Company and such Person
(or one or more of such Person’s Related Persons), if such agreement has been approved by the Board prior to such Person’s
becoming an Acquiring Person;


 


(iv) that
such Person or any of such Person’s Related Persons, directly or indirectly, has the right to vote pursuant to any agreement,
arrangement or understanding;


 


(v) that
are Beneficially Owned, directly or indirectly, by any other Person (or any Related Person of such Person) with which such Person
(or any of such Person’s Related Persons) has any agreement, arrangement or understanding (whether or not in writing and
other than customary agreements with and between underwriters and selling group members with respect to a bona fide public
offering of securities); provided, however, that a Person shall not be deemed the “Beneficial Owner” of, or
to “beneficially own,” any security if such agreement, arrangement or understanding (1) 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 applicable
provisions of the Exchange Act Regulations and (2) is not also then reportable by such Person on Schedule 13D under the
Exchange Act (or any comparable or successor report); or


 


(vi) that
are Beneficially Owned, directly or indirectly, by a Counterparty (or any of such Counterparty’s Related Persons) under any
Derivatives Contract (without regard to any short or similar position under the same or any other Derivatives Contract) to which
such Person or any of such Person’s Related Persons is a Receiving Party; provided, however, that the number of shares
of Common Stock that a Person is deemed to Beneficially Own pursuant to this clause (vi) in connection with a particular Derivatives
Contract shall not exceed the number of Notional Common Shares with respect to such Derivatives Contract; provided, further,
that the number of securities Beneficially Owned by each Counterparty (including its Related Persons) under a Derivatives Contract
shall, for purposes of this clause (vi) include all securities that are Beneficially Owned, directly or indirectly, by any
other Counterparty (or any of such other Counterparty’s Related Persons) under any Derivatives Contract to which such first
Counterparty (or any of such first Counterparty’s Related Persons) is a Receiving Party, with this proviso being applied
to successive Counterparties as appropriate.


 






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Nothing in this definition
shall cause a Person engaged in business as an underwriter of securities to be the “Beneficial Owner” of, or to “beneficially
own,” any securities acquired through such Person’s participation in good faith in a firm commitment underwriting until
the expiration of forty (40) days after the date of such acquisition, and no officer or director of the Company shall be deemed
to Beneficially Own any securities of any other Person solely by virtue of any actions that such officer or director takes in such
capacity.


 


With respect to any
Person, for all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular
time, including for purposes of determining the particular percentage of the outstanding shares of Common Stock of which such Person
is the Beneficial Owner, shall include the number of shares of Common Stock not outstanding at the time of such calculation that
such Person is otherwise deemed to Beneficially Own for purposes of this Agreement, provided, however, that the number of
shares of Common Stock not outstanding that such Person is otherwise deemed to Beneficially Own for purposes of this Agreement
shall not be included for the purpose of computing the percentage of the outstanding shares of Common Stock Beneficially Owned
by any other Person (unless such other Person is also deemed to Beneficially Own, for purposes of this Agreement, such shares of
Common Stock not outstanding).


 


“Board”
shall have the meaning set forth in the recitals of this Agreement.


 


“Business
Day” shall mean any day other than a Saturday, a 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.


 


“Close of
Business” on any given date shall mean 5:00 P.M., New York City time, on such date, provided, however, that
if such date is not a Business Day, “Close of Business” shall mean 5:00 P.M., New York City time, on the next
succeeding Business Day.


 


“Closing Price”
in respect of any security for any day shall mean the last sale price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to trading on the Nasdaq or the NYSE or, if such shares of common
stock (or other security) are not listed or admitted to trading on the Nasdaq or the NYSE, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal national securities exchange on which such shares
of common stock (or other security) are listed or admitted to trading or, if such shares of common stock (or other security) are
not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average
of the high bid and low asked prices in the over-the-counter market, as reported by the OTC Bulletin Board service or such other
quotation system then in use, or, if on any such date such shares of common stock (or other security) are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such
common stock (or other security) selected by the Board. If on any such date no such market maker is making a market in such common
stock (or other security), the fair value of such common stock (or other security) on such date as determined in good faith by
the Board shall be used.


 






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“Code”
means the Internal Revenue Code of 1986, as amended, or any successor statute.


 


“Common Stock”
shall mean the common stock, par value $0.01 per share, of the Company and any other interest that the Board determines would be
treated as “stock” of the Company for purposes of Section 382 of the Code (including Treasury Regulation Section 1.382-2T(f)(18))
in this Agreement in which such meaning is necessary in order to ensure that this Agreement is effective in preserving the Company’s
NOLs and certain other tax benefits.


 


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


 


“Company”
shall have the meaning set forth in the preamble to this Agreement.


 


“Counterparty”
shall have the meaning set forth in the definition of “Derivatives Contract.”


 


“Current Market
Price” shall have the meaning set forth in Section 11(d)(i).


 


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


 


“Derivatives
Contract” shall mean a contract, including all related documentation, between two parties (the “Receiving Party”
and the “Counterparty”) that is designed to produce economic benefits and risks to the Receiving Party that
correspond substantially to the ownership by the Receiving Party of a number of shares of Common Stock specified or referenced
in such contract (the number corresponding to such economic benefits and risks, the “Notional Common Shares”),
regardless of whether obligations under such contract are required or permitted to be settled through the delivery of cash, shares
of Common Stock or other property, without regard to any short position under the same or any other Derivatives Contract. For the
avoidance of doubt, interests in broad-based index options, broad-based index futures and broad-based publicly traded market baskets
of stocks approved for trading by the appropriate federal governmental authority shall not be deemed “Derivatives Contracts.”


 


“Distribution
Time” shall mean the earlier of (i) the Close of Business on the tenth (10th) day after the Stock Acquisition
Date (or, if the tenth (10th) day after the Stock Acquisition Date occurs before the Record Date, the Close of Business on
the Record Date) or (ii) the Close of Business on the tenth (10th) Business Day (or, if such tenth (10th) Business
Day occurs before the Record Date, the Close of Business on the Record Date), or such later date as may be determined by action
of the Board prior to such time as any Person becomes an Acquiring Person, after the date that a tender or exchange offer by any
Person (other than any Exempt Person) is first published or sent or given within the meaning of Rule 14d-2(a) of the Exchange
Act Regulations, if upon consummation thereof, such Person would become an Acquiring Person.


 


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


 






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


 


“Exchange
Act Regulations” shall mean the general rules and regulations promulgated under the Exchange Act.


 


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


 


“Exempt Person”
shall mean (i) the Company or any of its Subsidiaries, (ii) any officer, director or employee of the Company or any
of its Subsidiaries solely in respect of such Person’s status or authority as such (including any fiduciary capacity), (iii) any
employee benefit plan of the Company or of any Subsidiary of the Company or any entity or trustee holding (or acting in a fiduciary
capacity in respect of) shares of capital stock of the Company for or pursuant to the terms of any such plan, or for the purpose
of funding other employee benefits for employees of the Company or any Subsidiary of the Company or (iv) any other Person (together with all of its Related Persons) whose Beneficial Ownership of 4.9% or more of the then-outstanding
shares of Common Stock will not jeopardize or endanger the availability to the Company of any Tax Benefit, as determined by
the Board in its sole discretion prior to the time any Person becomes an Acquiring Person, provided, however,
that such Person will cease to be an Exempt Person if the Board subsequently makes a contrary determination in its sole discretion,
regardless of the reason for such contrary determination.


 


“Exemption
Request” shall have the meaning set forth in Section 32.


 


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


 


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


 


“Final Expiration
Time” shall have the meaning set forth in Section 7(a).


 


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


 


“Flip-in Trigger
Date” shall have the meaning set forth in Section 11(a)(iii).


 


“Flip-over
Event” shall have the meaning set forth in Section 13(a).


 


“Flip-over
Party” shall have the meaning set forth in Section 13(b).


 


“Flip-over
Stock” shall mean the capital stock (or similar equity interest) with the greatest voting power in respect of the election
of directors (or other Persons similarly responsible for the direction of the business and affairs) of the Flip-over Party.


 


“Grandfathered
Person” shall mean (x) any Person who or which, together with all of such Person’s Related Persons, is, as of immediately
prior to the first public announcement of the adoption of this Agreement, the Beneficial Owner of 4.9% or more of the shares of
Common Stock then outstanding and (y) any Person who or which becomes the Beneficial Owner of 4.9% or more of the shares of Common
Stock then outstanding as a result of the acquisition of Beneficial Ownership of shares of Common Stock from an individual described
in the preceding clause (x) if such acquisition occurs upon such individual’s death pursuant to such individual’s will
or pursuant to a charitable trust created by such individual for estate planning purposes. A Person ceases to be a “Grandfathered
Person” if and when (i) such Person becomes the Beneficial Owner of less than 4.9% of the shares of Common Stock then
outstanding or (ii) such Person increases such Person’s Beneficial Ownership of shares of Common Stock to an amount
equal to or greater than the greater of (A) 4.9% of the shares of Common Stock then outstanding and (B) the sum of (1) the
lowest Beneficial Ownership of such Person as a percentage of the shares of Common Stock outstanding as of any time from and after
the first public announcement of the adoption of this Agreement (other than as a result of an acquisition of shares of Common Stock
by the Company) plus (2) one share of Common Stock. The foregoing definition shall grandfather the security or instrument
underlying such Beneficial Ownership only in the type and form as of the date of this Agreement and shall not grandfather any subsequent
change, modification, swap or exchange of such security or instrument into a different type or form of security or instrument (unless
such change, modification, swap or exchange is contemplated explicitly by the terms of such security or instrument). For the avoidance
of doubt, the swap or exchange of contracts for differences for shares of Common Stock or other equity securities of the Company
shall not be grandfathered under this Agreement.


 






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“Nasdaq”
shall mean the Nasdaq Stock Market.


 


“NOLs”
shall have the meaning set forth in the recitals of this Agreement.


 


“Notional
Common Shares” shall have the meaning set forth in the definition of “Derivatives Contract.”


 


“NYSE”
shall mean the New York Stock Exchange.


 


“Person”
shall mean any individual, partnership, firm, corporation, limited liability company, association, trust, limited liability partnership
or other entity, or a group of Persons making a “coordinated acquisition” of shares or otherwise treated as an entity
within the meaning of Section 1.382-3(a)(1) of the Treasury Regulations, and shall include any successor (by merger or otherwise)
of such individual or entity, but shall not include a “Public Group” (as such term is defined in Section 1.382-2T(f)(13)
of the Treasury Regulations).


 


“Preferred
Stock” shall mean the Series B Junior Participating Preferred Stock, par value $0.01 per share, of the Company having
the designations, rights and preferences set forth in the form of certificate of designation attached to this Agreement as Exhibit
A, and, to the extent that there is not a sufficient number of shares of Series B Junior Participating Preferred Stock authorized
to permit the full exercise of the Rights, any other series of preferred stock, par value $0.01 per share, of the Company designated
for such purpose containing terms substantially similar to the terms of the Series B Junior Participating Preferred Stock. “Receiving
Party” shall have the meaning set forth in the definition of “Derivatives Contract.”


 


“Record Date”
shall have the meaning set forth in the recitals of this Agreement.


 


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


 


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


 


“Related Person”
shall mean, as to any Person, any Affiliate or Associate of such Person.


 






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“Requesting
Person” shall have the meaning set forth in Section 32.


 


“Right”
shall have the meaning set forth in the recitals of this Agreement.


 


“Rights Agent”
shall have the meaning set forth in the preamble to this Agreement.


 


“Rights Certificate”
shall have the meaning set forth in Section 3(b).


 


“Rights Dividend
Declaration Date” shall have the meaning set forth in the recitals of this Agreement.


 


“Section 382”
shall mean Section 382 of the Code or any successor or replacement provision.


 


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


 


“Stock Acquisition
Date” shall mean the first date of public announcement (which, for purposes of this definition, shall include a report
filed pursuant to Section 13(d) under the Exchange Act) by the Company or an Acquiring Person indicating that an Acquiring Person
has become such, or such other date, as determined by the Board, on which a Person has become an Acquiring Person.


 


“Subsidiary”
shall mean, with reference to any Person, any Person of which (i) a majority of the voting power of the voting securities
or equity interests is Beneficially Owned, directly or indirectly, by such first-mentioned Person or otherwise controlled by such
first-mentioned Person or (ii) an amount of voting securities or equity interests sufficient to elect at least a majority
of the directors (or other Persons similarly responsible for the direction of the business and affairs of such other Person) of
such corporation or other Person is Beneficially Owned, directly or indirectly, by such Person, or otherwise controlled by such
Person.


 


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


 


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


 


“Tax Benefits”
shall mean NOLs, capital loss carryovers, general business credit carryovers, alternative minimum tax credit carryovers, foreign
tax credit carryovers, any loss or deduction attributable to a “net unrealized built-in loss” within the meaning of
Section 382, and any other attribute the benefit of which is subject to possible limitation under Section 382.


 


“Trading Day”
shall mean a day on which the principal national securities exchange on which shares of an issuer’s common stock (or other
security) are listed or admitted to trading is open for the transaction of business or, if such shares of common stock (or other
security) are not listed or admitted to trading on any national securities exchange, a Business Day.


 


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


 


“Triggering
Event” shall mean a Flip-in Event or a Flip-over Event.


 






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“Trust”
shall have the meaning set forth in Section 24(a).


 


“Trust Agreement”
shall have the meaning set forth in Section 24(a).


 


Section 2.
Appointment of Rights Agent. The Company hereby appoints the Rights Agent to act as agent for the Company in accordance
with the express terms and conditions of this Agreement (and no implied terms and conditions), 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 (the term
“Rights Agent” being used herein to refer, collectively, to the Rights Agent together with any such co-Rights Agents),
upon ten (10) days’ prior written notice to the Rights Agent. In the event the Company appoints one or more co-Rights Agents,
the respective duties of the Rights Agent and any co-Rights Agents shall be as the Company reasonably determines, provided that
such duties are consistent with the terms and conditions of this Agreement and that contemporaneously with such appointment the
Company shall notify, in writing, the Rights Agent and any co-Rights Agents of any such duties. 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 earlier of the Distribution Time and the Expiration Time, (i) with respect to shares of Common Stock outstanding as of the
Record Date, or which become outstanding subsequent to the Record Date, the Rights shall be evidenced by the certificates for shares
of Common Stock registered in the names of the holders of shares of Common Stock (or, in the case of uncertificated shares of Common
Stock, by the book-entry account that evidences record ownership of such shares) (which certificates or book entries for Common
Stock shall be deemed also to be certificates or book entries for Rights), and not by separate certificates (or book entries),
(ii) the surrender for transfer of any certificate representing shares of Common Stock (or, in the case of uncertificated shares
of Common Stock, the effectuation of a book-entry transfer of such shares of Common Stock) in respect of which Rights have been
issued shall also constitute the transfer of the Rights associated with such shares of Common Stock and (iii) the Rights shall
be transferable only in connection with the transfer of the underlying shares of Common Stock. As of and after the Distribution
Time, the Rights shall be evidenced solely by such Rights Certificates, and the Rights Certificates and the Rights shall be transferable
separately from the Common Stock.


 


(b) The
Company shall promptly notify the Rights Agent of a Distribution Time and request its transfer agent (if such transfer agent is
not the Rights Agent) to give the Rights Agent a stockholder list together with all other relevant information. As soon as practicable
after the Rights Agent is notified of the Distribution Time and receives such information, the Rights Agent shall send by first-class,
insured, postage prepaid mail, to each record holder of the Common Stock as of the Close of Business on the Distribution Time,
at the address of such holder shown on the records of the Company, one or more Rights certificates, in substantially the form of
Exhibit B (the “Rights Certificates”), evidencing one Right for each share of Common Stock so held,
subject to adjustment as provided herein. To the extent that a Flip-in Event has also occurred, the Company may implement such
procedures, as it deems appropriate in its sole discretion (but which do not affect the rights, duties, liabilities or responsibilities
of the Rights Agent), to minimize the possibility that Rights Certificates are received by Persons whose Rights would be null and
void under Section 7(e) and provide reasonably prompt written notice thereof to the Rights Agent. In the event that
any adjustment in the number of Rights per share of Common Stock has been made pursuant to Section 11, at the time
of distribution of the Rights Certificates, the Company shall make the necessary and appropriate rounding adjustments (in accordance
with Section 14(a)) so that Rights Certificates representing only whole numbers of Rights are distributed and cash
is paid in lieu of any fractional Rights.


 






    10


     


    

 


(c) The
Company shall make available, as promptly as practicable, a copy of a Summary of Rights, in substantially the form attached as
Exhibit C (the “Summary of Rights”), to any holder of Rights who may so request from time to time
prior to the Expiration Time.


 


(d) Rights
shall be issued in respect of all shares of Common Stock that are issued (whether originally issued or from the Company’s
treasury) after the Record Date but prior to the earlier of the Distribution Time or the Expiration Time or, in certain circumstances
provided in Section 22, after the Distribution Time. Certificates representing such shares of Common Stock shall also
be deemed to be certificates for Rights, and shall bear a legend substantially in the following form:


 


“[This
certificate] [These shares] also evidence[s] and entitle[s] the holder hereof to certain rights (the “Rights”)
as set forth in the Tax Benefits Preservation Plan by and between Gulfport Energy Corporation, a Delaware corporation (the “Company”)
and Computershare Trust Company, N.A. dated as of April 30, 2020, as the same may be amended from time to time (the “Tax
Benefits Preservation Plan”), the terms of which are hereby incorporated herein by reference and a copy of which is on
file at the principal executive offices of the Company. Under certain circumstances, as set forth in the Tax Benefits Preservation
Plan, such Rights shall be evidenced by separate certificates and will no longer be evidenced by [this certificate] [these shares].
The Company will mail to the holder of [this certificate] [these shares] a copy of the Tax Benefits Preservation Plan, as in effect
on the date of mailing, without charge, upon receipt of a written request therefor.


 


Under certain
circumstances set forth in the Tax Benefits Preservation Plan, Rights that are Beneficially Owned by any Person who or which is,
was or becomes an Acquiring Person or any Related Persons thereof or specified transferees of such Acquiring Person (or Related
Person thereof) (as such terms are defined in the Tax Benefits Preservation Plan) whether currently held by or on behalf of such
Person or by any subsequent holder, may become null and void and will no longer be transferable.”


 


With respect to any
book-entry shares of Common Stock, such legend shall be included in a notice to the record holder of such shares to the extent
required by applicable law. With respect to certificated shares of Common Stock containing the foregoing legend, or any notice
of the foregoing legend delivered to record holders of book-entry shares, until the earlier of (i) the Distribution Time or
(ii) the Expiration Time, the Rights associated with such shares of Common Stock represented by such stock certificates or
registered in book-entry form shall be evidenced by such certificates alone, or such registration in book-entry form alone, and
registered holders of such shares of Common Stock shall also be the registered holders of the associated Rights, and the transfer
of any of such shares of Common Stock represented by such certificates or book-entries shall also constitute the transfer of the
Rights associated with the shares of Common Stock represented by such certificates or book entries. In the event the Company purchases
or acquires any shares of Common Stock after the Record Date but prior to the Distribution Time, any Rights associated with such
shares shall be deemed cancelled and retired so that the Company shall not be entitled to exercise any Rights associated with shares
of Common Stock that are no longer outstanding. The omission of any legend described in this Section 3 shall not affect
the status, validity or enforceability of any part of this Agreement or the rights of any holder of the Rights.


 






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Section 4.
Form of Rights Certificates.


 


(a) The
Rights Certificates (and the forms of election to purchase and of assignment to be printed on the reverse thereof), when and if
issued, shall each be substantially in the form set forth in Exhibit B and may have such marks of identification or
designation and such legends, summaries or endorsements printed thereon as the Company may deem appropriate (but which do not affect
the rights, duties, liabilities or responsibilities of the Rights Agent) and as are not inconsistent with this Agreement, or as
may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Rights may from time to time be listed, or to conform to customary usage. Subject to Section 11
and Section 22, the Rights Certificates, whenever distributed, shall be dated as of the Record Date or, in the case
of Rights with respect to shares of Common Stock issued or becoming outstanding after the Record Date, the same date as the date
of the stock certificate evidencing such shares (or, with respect to uncertificated shares of Common Stock, the date of the issuance
of such shares of Common Stock indicated in the books of the registrar and transfer agent), and on their face shall entitle the
holders thereof to purchase such number of one one-thousandths of a share of Preferred Stock as shall be set forth therein at the
price set forth therein (such exercise price per one one-thousandth of a share, the “Exercise Price”), but the
amount and type of securities purchasable upon the exercise of each Right and the Exercise Price thereof shall be subject to adjustment
from time to time as provided in Section 11 and Section 13(a).


 


(b) Any
Rights Certificate issued pursuant to Section 3(a), Section 11(a)(ii) or Section 22 that represents Rights Beneficially
Owned by any Person known to be (i) an Acquiring Person or any Related Person of an Acquiring Person, (ii) a transferee
of an Acquiring Person (or of any such Related Person) who becomes a transferee after the Acquiring Person becomes such or (iii) a
transferee of an Acquiring Person (or of any such Related Person) who becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the
Acquiring Person (or any Related Person thereof) to holders of equity interests in such Acquiring Person (or any Related Person
thereof) or to any Person with whom such Acquiring Person (or any Related Person thereof) has any continuing agreement, arrangement
or understanding regarding the transferred Rights or (B) a transfer which the Board has determined is part of a plan, arrangement
or understanding which has as a primary purpose or effect of avoidance of Section 7(e), and any Rights Certificate issued
pursuant to Section 6 or Section 11 upon transfer, exchange, replacement or adjustment of any other Rights Certificate
referred to in this sentence, shall contain (to the extent feasible) the following legend:


 


“The
Rights represented by this Rights Certificate are or were Beneficially Owned by a Person who was or became an Acquiring Person
or a Related Person of an Acquiring Person (as such terms are defined in the Tax Benefits Preservation Plan dated as of April 30,
2020, by and between Gulfport Energy Corporation and Computershare Trust Company, N.A. (the “Tax Benefits Preservation
Plan”)). Accordingly, this Rights Certificate and the Rights represented hereby may become null and void in the circumstances
specified in Section 7(e) of such Tax Benefits Preservation Plan.”


 






    12


     


    

 


The absence of the
foregoing legend on any Rights Certificate shall in no way affect any of the other provisions of this Agreement, including the
provisions of Section 7(e). The Company shall instruct the Rights Agent in writing of the Right that should be so legended.
The Company shall give written notice to the Rights Agent as soon as practicable after it becomes aware of the existence and identity
of any Acquiring Person or any Related Person thereof.


 


Section 5.
Countersignature and Registration.


 


(a) The
Rights Certificates shall be executed on behalf of the Company by its Chairman of the Board, Chief Executive Officer, President,
Chief Financial Officer, General Counsel, Corporate Secretary or any Assistant Secretary of the Company, or any other officer of
the Company, either manually or by facsimile or other electronic signature. The Rights Certificates shall have affixed thereto
the Company’s corporate seal (or a facsimile thereof), and shall be attested by the Company’s Secretary. The Rights
Certificates shall be countersigned manually or by facsimile or other electronic signature by the Rights Agent and shall not be
valid for any purpose unless so countersigned. In case any officer of the Company who shall have signed or attested any of the
Rights Certificates shall cease to be such officer of the Company before countersignature by the Rights Agent and issuance and
delivery by the Company, such Rights Certificates, nevertheless, may be countersigned by the Rights Agent and issued and delivered
by the Company with the same force and effect as though the Person who signed or attested such Rights Certificates had not ceased
to be such officer of the Company; and any Rights Certificates may be signed or attested 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 or attest
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 Time, the Rights Agent shall keep or cause to be kept, at its offices designated as the appropriate place for
surrender of Rights Certificates upon exercise or transfer, books for registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of the respective holders of the Rights Certificates, the number of Rights
evidenced on its face by each of the Rights Certificates and the certificate number and the date of each of the Rights Certificates.


 


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


 


(a) Subject
to Section 4(b), Section 7(e) and Section 14, at any time after the Close of Business on the Distribution Time,
and at or prior to the Close of Business on the Expiration Time, any Rights Certificate (other than Rights Certificates representing
Rights that have become null and void pursuant to Section 7(e), that have been redeemed pursuant to Section 23 or that
have been exchanged pursuant to Section 24) may be transferred, split up, combined or exchanged for another Rights Certificate,
entitling the registered holder to purchase a like number of one one-thousandths of a share of Preferred Stock (or, following a
Triggering Event, Common Stock, other securities, cash or other assets, as the case may be) as the Rights Certificate surrendered
then entitled such holder (or former holder in the case of a transfer) to purchase. Any registered holder desiring to transfer,
split up, combine or exchange any Rights Certificate shall make such request in writing delivered to the Rights Agent, and shall
surrender the Rights Certificate to be transferred, split up, combined or exchanged at the offices of the Rights Agent designated
for such purpose. Neither the Rights Agent nor the Company shall be obligated to take any action whatsoever with respect to the
transfer, split up, combination or exchange of any such surrendered Rights Certificate until the registered holder has properly
completed and duly executed the certificate contained in the form of assignment on the reverse side of such Rights Certificate
accompanied by a signature guarantee and such other documentation as the Rights Agent reasonably requests. Thereupon the Rights
Agent shall, subject to Section 4(b), Section 7(e), Section 14 and Section 24, countersign and deliver to the
Person entitled thereto a Rights Certificate or Rights Certificates, as the case may be, as so requested. The Company may require
payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer, split
up, combination or exchange of Rights Certificates. If and to the extent the Company does require payment of any such taxes or
charges, the Company shall give the Rights Agent prompt written notice thereof and the Rights Agent shall not deliver any Rights
Certificate unless and until it is satisfied that all such payments have been made, and the Rights Agent shall forward any such
sum collected by it to the Company or to such Persons as the Company specifies by written notice. The Rights Agent shall have no
duty or obligation to take any action with respect to a Rights holder under this Agreement that requires the payment by such Rights
holder of applicable taxes and/or charges unless and until the Rights Agent is satisfied that all such taxes and/or charges have
been paid.


 






    13


     


    

 


(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 valid Rights Certificate, and, in case of loss, theft or destruction, of indemnity or security 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 Certificates if mutilated, the Company shall prepare, execute and deliver a new Rights Certificate of like tenor
to the Rights Agent for countersignature and delivery to the registered owner in lieu of the Rights Certificate so lost, stolen,
destroyed or mutilated.


 


(c) Notwithstanding
any other provision hereof, the Company and the Rights Agent may amend this Agreement to provide for uncertificated Rights in addition
to or in lieu of Rights evidenced by Rights Certificates, to the extent permitted by applicable law.


 


Section 7.
Exercise of Rights; Exercise Price; Expiration Time of Rights.


 


(a) Subject
to Section 7(e), the registered holder of any Rights Certificate may exercise the Rights evidenced thereby (except
as otherwise provided herein including the restrictions on exercisability set forth in Section 7(c), Section 9(c),
Section 11(a)(iii) and Section 23(a)) in whole or in part at any time after the Distribution Time upon
surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly
completed and duly executed, to the Rights Agent at the offices of the Rights Agent designated for such purpose, accompanied by
a signature guarantee and such other documentation as the Rights Agent may reasonably request together with payment of the aggregate
Exercise Price with respect to the total number of one one-thousandths of a share of Preferred Stock (or Common Stock, other securities,
cash or other assets, as the case may be) as to which such surrendered Rights are then exercisable, at or prior to the earliest
of (i) the Close of Business on April 29, 2021 (the “Final Expiration Time”), (ii) the time at which
the Rights are redeemed as provided in Section 23, (iii) the time at which such Rights are exchanged pursuant
Section 24, (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement
of the type described in Section 13(f), at which time, the Rights are terminated and (v) the time at which the Board
determines that the NOLs are utilized in all material respects or that an ownership change under Section 382 would not adversely
impact in any material respect the time period in which the Company could use the NOLs, or materially impair the amount of the
NOLs that could be used by the Company in any particular time period, for applicable tax purposes (the earliest of (i), (ii), (iii),
(iv) and (v) being herein referred to as the “Expiration Time”).


 






    14


     


    

 


(b) The
Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right shall initially be
$8.00, and shall be subject to adjustment from time to time as provided in Section 11 and Section 13(a)
and shall be payable in accordance with Section 7(c).


 


(c) Upon
receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate properly
completed and duly executed, accompanied by payment, with respect to each Right so exercised, of the Exercise Price per one one-thousandth
of a share of Preferred Stock (or other shares, securities, cash or other assets, as the case may be) to be purchased as set forth
below and an amount equal to any applicable transfer tax or charge required to be paid by the holder of the Rights Certificate
in accordance with Section 9(e), the Rights Agent shall, subject to Section 20(l), thereupon promptly (i) (A) requisition
from any transfer agent of the shares of Preferred Stock (or make available, if the Rights Agent is the transfer agent for such
shares) certificates for the total number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are
integral multiples of one one-thousandth 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 has elected to deposit the total number of shares
of Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent
depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchased (in which
case certificates for the shares of 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 with such request, (ii) requisition from
the Company the amount of cash, if any, to be paid in lieu of fractional shares in accordance with Section 14, (iii) 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 (iv) after receipt thereof,
deliver such cash, if any, to or upon the order of the registered holder of such Rights Certificate. The payment of the Exercise
Price (as such amount may be reduced pursuant to Section 11(a)(iii)) shall be made in cash or by certified bank check
or bank draft payable to the order of the Company. In the event that the Company is obligated to issue other securities (including
Common Stock) of the Company, pay cash and/or distribute other property pursuant to Section 11(a), the Company shall
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 necessary to comply with the terms of this Agreement, and until so received, the Rights Agent shall have
no duties or obligations with respect to such securities, cash and/or property. The Company reserves the right to require prior
to the occurrence of a Triggering Event that, upon any exercise of Rights, a number of Rights be exercised so that only whole shares
of Preferred Stock would be issued.


 






    15


     


    

 


(d) In
case the registered holder of any Rights Certificate exercises 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, registered in such name or names as may be designated by such holder,
subject to Section 14.


 


(e) Notwithstanding
anything in this Agreement to the contrary, from and after the first occurrence of a Flip-in Event, any Rights Beneficially Owned
by (i) an Acquiring Person or a Related Person of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of
any such Related Person) who becomes a transferee after the Acquiring Person becomes such or (iii) a transferee of an Acquiring
Person (or of any such Related Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such
and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person (or
any Related Person thereof) to holders of equity interests in such Acquiring Person (or any Related Person thereof) or to any Person
with whom the Acquiring Person (or any Related Person thereof) has any continuing agreement, arrangement or understanding, whether
or not in writing, regarding the transferred Rights or (B) a transfer which the Board has determined is part of an agreement,
arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7(e), shall become
null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights,
whether under any provision of this Agreement or otherwise. The Company shall notify the Rights Agent in writing when this Section 7(e)
applies and shall use commercially reasonable efforts to ensure that this Section 7(e) and Section 4(b)
are complied with, but neither the Company nor the Rights Agent shall have any liability to any holder of Rights or other Person
(without limiting the rights of the Rights Agent under Section 18) as a result of the Company’s failure to make
any determinations with respect to an Acquiring Person or any of its Related Persons or transferees hereunder.


 


(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 a registered holder upon the occurrence of any purported exercise as set forth in this Section 7 unless
such registered holder has (i) properly completed and duly executed 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 Beneficial Owner) or Related Persons thereof as the Company or the Rights Agent
reasonably requests.


 


Section 8.
Cancellation and Destruction of Rights Certificates. All Rights Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the Company or any of its agents, be delivered to the Rights
Agent for cancellation or in cancelled form, or, if surrendered to the Rights Agent, shall be cancelled by it, and no Rights Certificates
shall be issued in lieu thereof, except as expressly permitted by 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 Certificates purchased or acquired
by the Company otherwise than upon the exercise thereof. At the expense of the Company, the Rights Agent shall deliver all cancelled
Rights Certificates to the Company, or shall, at the written request of the Company, destroy or cause to be destroyed such cancelled
Rights Certificates, and in such case shall deliver a certificate of destruction thereof, executed by the Rights Agent, to the
Company.


 






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Section 9.
Reservation and Availability of Capital Stock.


 


(a) The
Company shall cause to be reserved and kept available out of its authorized and unissued shares of Preferred Stock (and, following
the occurrence of a Triggering Event, out of its authorized and unissued shares of Common Stock and/or other securities, or out
of its authorized and issued shares held in its treasury), the number of shares of Preferred Stock (and, following the occurrence
of a Triggering Event, Common Stock and/or other securities) that, as provided in this Agreement, including Section 11(a)(iii),
shall be sufficient to permit the exercise in full of all outstanding Rights.


 


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


 


(c) If
the Company is required to file a registration statement pursuant to the Act with respect to the securities purchasable upon exercise
of the Rights, the Company shall use commercially reasonable efforts to (i) prepare and file, as soon as practicable following
the earliest date after the first occurrence of a Flip-in Event on which 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 required by applicable
law following the Distribution Time, as the case may be, a registration statement under the Act with respect to the securities
purchasable upon exercise of the Rights on an appropriate form, (ii) cause such registration statement to become effective
as soon as practicable after such filing and (iii) cause such registration statement to remain effective (with a prospectus
at all times meeting the requirements of the Act) until the earlier of (A) the date as of which the Rights are no longer exercisable
for such securities and (B) the Expiration Time. The Company shall also take such action as may be appropriate under, or to
ensure compliance with, the securities or “blue sky” laws of the various states in connection with the exercisability
of the Rights. The Company may temporarily suspend (with prompt written notice to the Rights Agent), for a period of time not to
exceed ninety (90) days after the date set forth in clause (i) of the first sentence of this Section 9(c),
the exercisability of the Rights in order to prepare and file such registration statement and permit it to become effective. Upon
any such suspension, the Company shall issue a public announcement (with prompt written notice thereof to the Rights Agent) stating
that the exercisability of the Rights has been temporarily suspended, as well as a public announcement (with prompt written notice
thereof to the Rights Agent) at such time as the suspension is no longer in effect. In addition, if the Company determines that
a registration statement is required following the Distribution Time, and a Flip-in Event has not occurred, the Company may temporarily
suspend (with prompt written notice thereof to the Rights Agent) the exercisability of Rights until such time as a registration
statement has been declared effective. Notwithstanding any provision of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction if the requisite qualification or exemption in such jurisdiction shall not have been obtained,
the exercise thereof shall not be permitted under applicable law or a registration statement shall not have been declared effective.


 






    17


     


    

 


(d) The
Company shall take all such actions as may be necessary to ensure that all one one-thousandths of a share of Preferred Stock (and,
following the occurrence of a Triggering Event, shares of Common Stock and/or other securities) delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such shares (subject to payment of the Exercise Price), be duly and validly
authorized and issued and fully paid and nonassessable.


 


(e) The
Company shall be responsible for the payment of any and all transfer taxes and governmental charges which may be payable in respect
of the issuance or delivery of the Rights Certificates and of any certificates for a number of one one-thousandths of a share of
Preferred Stock (or Common Stock and/or other securities) upon the exercise of Rights. The Company shall not, however, be required
to pay any tax or charge that may be payable in respect of any transfer or delivery of Rights Certificates to a Person other than,
or the issuance or delivery of a number of one one-thousandths of a share of Preferred Stock (or Common Stock and/or other securities)
in respect of a name other than that of, the registered holder of the Rights Certificates evidencing Rights surrendered for exercise
or to issue or deliver any certificates for a number of one one-thousandths of a share of Preferred Stock (or Common Stock and/or
other securities) in a name other than that of the registered holder upon the exercise of any Rights until such tax has 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 or charge is due.


 


Section 10. Preferred
Stock Record Date. Each Person in whose name any certificate for Preferred Stock (or Common Stock and/or other
securities) is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of
such shares of Preferred Stock (or Common Stock and/or other securities) 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 Exercise
Price (and all applicable transfer taxes) was made; provided, however, that if the date of such surrender and payment is a
date upon which the applicable transfer books of the Company are closed, such Person shall be deemed to have become the
record holder of such securities (fractional or otherwise) on, and such certificate shall be dated, the next succeeding
Business Day on which the applicable transfer books of the Company are open; provided, further, that if delivery of a number
of one one-thousandths of a share of Preferred Stock is delayed pursuant to Section 9(c), such Persons shall be
deemed to have become the record holders of such number of one one-thousandths of a share of Preferred Stock only when such
shares of Preferred Stock first become deliverable. Prior to the exercise of the Rights evidenced thereby, the holder of a
Rights Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares or other
securities for which the Rights are exercisable, including the right to vote, to receive dividends or other distributions or
to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company, except
as provided herein


 






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


 


(a) 


 


(i) In
the event the Company at any time after the date of this Agreement (A) declares a dividend on any outstanding shares
of Preferred Stock payable in shares of Preferred Stock, (B) subdivides any outstanding shares of Preferred Stock, (C) combines
any outstanding shares of Preferred Stock into a smaller number of shares or (D) issues any shares of its capital stock in
a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in
which the Company is the continuing or surviving entity), except as otherwise provided in this Section 11(a) and Section 7(e),
the Exercise Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination
or reclassification, and the number and kind of shares (or fractions thereof) of Preferred Stock or capital stock, as the case
may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall
be entitled to receive, upon payment of the Exercise Price then in effect, the aggregate number and kind of shares (or fractions
thereof) of Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to
such date and at a time when the 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 that 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).


 


(ii) Subject
to Section 24, in the event any Person (other than any Exempt Person) becomes an Acquiring Person (such event, a “Flip-in
Event”), unless the event causing such Person to become an Acquiring Person is a Flip-over Event, then proper provision
shall be made so that promptly following the Redemption Period, each holder of a Right (except as provided below and in Section 7(e))
thereafter has the right to receive, upon exercise thereof at a price equal to the then-current Exercise Price in accordance with
the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock, such number of shares of
Common Stock as shall be equal to the result obtained by (A) multiplying the then-current Exercise Price by the then number
of one one-thousandths of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence
of a Flip-in Event and (B) dividing that product (which, following such first occurrence shall thereafter be referred to as
the “Exercise Price” for each Right and for all purposes of this Agreement) by fifty percent (50%) of the Current Market
Price per share of Common Stock on the date of such first occurrence (such number of shares, the “Adjustment Shares”).


 






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(iii) In
the event that the number of shares of Common Stock authorized by the Restated Certificate of Incorporation of the Company (as
amended from time to time, the “Certificate of Incorporation”) but not outstanding or reserved for issuance
for purposes other than upon exercise of the Rights, is not sufficient to permit the exercise in full of the Rights in accordance
with Section 11(a)(ii), the Board shall, to the extent permitted by applicable law and by any agreements or instruments
then in effect to which the Company is a party, (A) determine the excess of (1) the value of the Adjustment Shares issuable
upon the exercise of a Right (the “Current Value”) over (2) the Exercise Price (such excess being the “Spread”)
and (B) with respect to each Right (subject to Section 7(e)), make adequate provision to substitute for some or
all of the Adjustment Shares, upon the exercise of a Right and payment of the applicable Exercise Price, (1) cash; (2) a
reduction in the Exercise Price, (3) shares or fractions of a share of Preferred Stock or other equity securities of the Company
(including shares, or units of shares, of Preferred Stock which the Board has determined to have substantially the same value or
economic rights as shares of Common Stock) (such shares of equity securities being herein called “Common Stock Equivalents”),
(4) debt securities of the Company, (5) other assets or (6) any combination of the foregoing, having an aggregate
value equal to the Current Value (less the amount of any reduction in the Exercise Price), where such aggregate value has been
determined by the Board based upon the advice of a financial advisor selected by the Board; provided, however, if the Company
has not made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later
of (x) the first occurrence of a Flip-in Event and (y) the date on which the Redemption Period expires (the later of
(x) and (y) being referred to herein as the “Flip-in Trigger Date”), then the Company shall be obligated
to deliver, to the extent permitted by applicable law, upon the surrender for exercise of a Right and without requiring payment
of the Exercise Price, shares of Common Stock (to the extent available), and then, if necessary, such number or fractions of shares
of Preferred Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal
to the Spread. If, upon the occurrence of a Flip-in Event, the Board determines in good faith that it is likely that sufficient
additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day
period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Flip-in Trigger
Date, in order that the Company may seek stockholder approval for the authorization of such additional shares (such thirty (30) day
period, as it may be extended, the “Substitution Period”). To the extent the Company determines that action
should be taken pursuant to the first sentence or third sentence of this Section 11(a)(iii), the Company (X) shall
provide, subject to Section 7(e), that such action shall apply uniformly to all outstanding Rights and (Y) may
suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such stockholder approval
for authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first
sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as
the suspension is no longer in effect (with prompt written notice of such announcements to the Rights Agent). For purposes of this
Section 11(a)(iii), the value of each Adjustment Share shall be the Current Market Price per share of Common Stock
on the Flip-in Trigger Date and the value of any Common Stock Equivalent shall be deemed to equal the Current Market Price per
share of the Common Stock on such date. The Board may establish procedures to allocate the right to receive shares of Common Stock
upon the exercise of the Rights among holders of Rights pursuant to this Section 11(a)(iii).


 






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


 


(c) In
case the Company fixes a record date for a distribution to all holders of Preferred Stock (including any such distribution made
in connection with a consolidation or merger in which the Company is the continuing or surviving entity) of evidences of indebtedness,
cash (other than a regular periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than
a dividend payable in Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or subscription
rights, options or warrants (excluding those referred to in Section 11(b)), the Exercise Price to be in effect after
such record date shall be determined by multiplying the Exercise 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 the Board, whose determination shall be described in a statement filed with the Rights Agent
and shall be binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness
so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Stock and the denominator of
which shall be such Current Market Price per share of Preferred Stock. Such adjustments shall be made successively whenever such
a record date is fixed, and in the event that such distribution is not so made, the Exercise Price shall be adjusted to be the
Exercise Price that would have been in effect if such record date had not been fixed.


 






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(d) 


 


(i) For
the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii), the “Current
Market Price” per share of common stock (or similar equity interest) of an issuer on any date shall be deemed to be the
average of the daily Closing Prices per share of such common stock (or other security) for the thirty (30) consecutive Trading
Days immediately prior to but not including such date, and for purposes of computations made pursuant to Section 11(a)(iii),
the “Current Market Price” per share of Common Stock on any date shall be deemed to be the average of the daily
Closing Prices per share of such Common Stock for the ten (10) consecutive Trading Days immediately following but not including
such date; provided, however, that in the event that the Current Market Price per share of common stock (or other security)
of an issuer is determined during a period following the announcement by the issuer of such common stock (or other security) of
(A) a dividend or distribution on such common stock (or other security) payable in shares of such common stock (or other security)
or securities convertible into shares of such common stock (or other security) (other than the Rights) or (B) any subdivision,
combination or reclassification of such common stock (or other security), and the ex-dividend date for such dividend or distribution,
or the record date for such subdivision, combination or reclassification shall not have occurred prior to the commencement of the
requisite thirty (30) Trading Day or ten (10) Trading Day period, as set forth above, then, and in each such case, the “Current
Market Price” shall be properly adjusted to take into account any trading during the period prior to such ex-dividend date
or record date.


 


If an issuer’s
shares of common stock (or other security) are not publicly held or not so listed or traded, “Current Market Price”
per share shall mean the fair value per share as determined in good faith by the Board, whose determination shall be described
in a statement filed with the Rights Agent and shall be conclusive for all purposes.


 


(ii) For
the purpose of any computation hereunder, the “Current Market Price” per share of Preferred Stock shall be determined
in the same manner as set forth above for the Common Stock in Section 11(d)(i) (other than the last sentence thereof).
If the Current Market Price per share of Preferred Stock cannot be determined in the manner provided above, or if the Preferred
Stock is not publicly held or listed or traded in a manner described in Section 11(d)(i), the “Current Market
Price” per share of Preferred Stock shall be conclusively deemed to be an amount equal to 1,000 (as such number may be
appropriately adjusted for such events as stock splits, reverse stock splits, stock dividends and recapitalizations with respect
to the Common Stock occurring after the date of this Agreement) multiplied by the Current Market Price per share of the Common
Stock. If neither the Common Stock nor the Preferred Stock is publicly held or so listed or traded, “Current Market Price”
per share of the Preferred Stock shall mean the fair value per share as determined in good faith by the Board, whose determination
shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights.
For all purposes of this Agreement, the “Current Market Price” of one one-thousandth of a share of Preferred
Stock shall be equal to the Current Market Price of one share of Preferred Stock divided by 1,000.


 






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


 


(f) If
as a result of an adjustment made pursuant to Section 11(a)(ii) or Section 13(a), the holder of any Right
thereafter exercised becomes entitled to receive any shares of capital stock other than Preferred Stock, thereafter the number
of such other shares so receivable upon exercise of any Right and the Exercise Price thereof shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Preferred Stock
contained in Section 11(a), (b), (c), (e), (g), (h), (i), (j), (k)
and (m), and the provisions with respect to the Preferred Stock of Sections 7, 9, 10, 13 and
14 shall apply on like terms to any such other shares.


 


(g) All
Rights originally issued by the Company subsequent to any adjustment made to the Exercise Price hereunder shall evidence the right
to purchase, at the adjusted Exercise Price, the number of one one-thousandths of a share of Preferred Stock (or other securities,
other assets or amount of cash or combination thereof) purchasable from time to time hereunder upon exercise of the Rights, all
subject to further adjustment as provided herein.


 


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


 






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(i) The
Company may elect on or after the date of any adjustment of the Exercise Price to adjust the number of Rights, in lieu of any adjustment
in the number of one one-thousandths of a share of Preferred Stock purchasable upon the exercise of a Right. Each of the Rights
outstanding after the adjustment in the number of Rights shall be exercisable for the number of one one-thousandths of a share
of Preferred Stock for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one ten-thousandth) obtained by
dividing the Exercise Price in effect immediately prior to adjustment of the Exercise Price by the Exercise Price in effect immediately
after adjustment of the Exercise Price. The Company shall make a public announcement (with prompt written notice thereof to the
Rights Agent) 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 Exercise Price is adjusted or any
day thereafter, but, if the Rights Certificates have been issued, shall be at least ten (10) days later than the date of the
public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 11(i),
the Company shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record
date Rights Certificates evidencing, subject to 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 so to be distributed shall be issued, executed and countersigned in the manner provided for herein (and may
bear, at the option of the Company, the adjusted Exercise Price) and shall be registered in the names of the holders of record
of Rights Certificates on the record date specified in the public announcement.


 


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


 


(k) Before
taking any action that would cause an adjustment reducing the Exercise Price below the then stated value, if any, of the number
of one one-thousandths of a share of Preferred Stock issuable upon exercise of the Rights, the Company shall take any corporate
action which may, upon advice of its counsel, be necessary in order that the Company may validly and legally issue fully paid and
nonassessable shares of Preferred Stock at such adjusted Exercise Price.


 


(l) In
any case in which this Section 11 requires that an adjustment in the Exercise Price be made effective as of a record
date for a specified event, the Company may elect to defer (with prompt written notice thereof to the Rights Agent) until the occurrence
of such event the issuance to the holder of any Right exercised after such record date the number of one one-thousandths of a share
of Preferred Stock and other capital stock or securities of the Company, if any, issuable upon such exercise over and above the
number of one one-thousandths of a share of Preferred Stock and other capital stock or securities of the Company, if any, issuable
upon such exercise on the basis of the Exercise Price in effect prior to such adjustment (and shall provide the Rights Agent prompt
written notice of such election); provided, however, that the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder’s right to receive such additional shares (fractional or otherwise) or securities upon
the occurrence of the event requiring such adjustment.


 


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


 






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(n) The
Company shall not, at any time after the Distribution Time, (i) consolidate with any other Person (other than a direct or
indirect, wholly owned Subsidiary of the Company in a transaction that complies with Section 11(o)), (ii) merge
with or into any other Person (other than a direct or indirect, wholly owned Subsidiary of the Company in a transaction that complies
with Section 11(o)) or (iii) sell or transfer (or permit any Subsidiary to sell or transfer), in one transaction,
or a series of related transactions, assets, cash flow or earning power aggregating to fifty percent (50%) or more of the assets,
cash flow or earning power of the Company and its Subsidiaries (taken as a whole) to any other Person or Persons (other than the
Company or any of its Subsidiaries in one or more transactions each of which complies with Section 11(o)), if (A) at
the time of or immediately after such consolidation, merger, sale or transfer there are any rights, warrants or other instruments
or securities outstanding or agreements in effect that would substantially diminish or otherwise eliminate the benefits intended
to be afforded by the Rights or (B) prior to, simultaneously with or immediately after such consolidation, merger, sale or transfer,
the stockholders of the Person who constitutes, or would constitute, the “Flip-over Party” for purposes of Section 13(a)
shall have received a distribution of Rights previously owned by such Person or any of its Related Persons; provided, however,
this Section 11(n) shall not affect the ability of any Subsidiary of the Company to consolidate with, merge with or
into, or sell or transfer assets of earning power to, any other Subsidiary of the Company.


 


(o) After
the Distribution Time, and as long as any Rights are outstanding (other than Rights that have become null and void pursuant to
Section 7(e)), the Company shall not, except as permitted by Section 23, Section 24 or Section 27,
take (or permit any Subsidiary to take) any action if at the time such action is taken it is reasonably foreseeable that such action
will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.


 


(p) Notwithstanding
anything in this Agreement to the contrary, in the event that the Company at any time after the Rights Dividend Declaration Date
and prior to the Distribution Time (i) declares a dividend on the outstanding shares of Common Stock payable in shares of
Common Stock, (ii) subdivides any outstanding shares of Common Stock, (iii) combines any of the outstanding shares of
Common Stock into a smaller number of shares or (iv) issues any shares of its capital stock in a reclassification of the Common
Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing
or surviving entity), then the number of Rights associated with each share of Common Stock then outstanding, or issued or delivered
thereafter but prior to the Distribution Time, shall be proportionately adjusted so that the number of Rights thereafter associated
with each share of Common Stock following any such event equals the result obtained by multiplying the number of Rights associated
with each share of Common Stock immediately prior to such event by a fraction the numerator of which shall be the total number
of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the
total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustments provided
for in this Section 11(p) shall be made successively whenever such a dividend is declared or paid or such a subdivision,
combination or reclassification is effected. If an event occurs that would require an adjustment under Section 11(a)(ii)
and this Section 11(p), the adjustments provided for in this Section 11(p) shall be in addition and prior
to any adjustment required pursuant to Section 11(a)(ii).


 






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Section 12.
Certificate of Adjusted Exercise Price or Number of Shares. Whenever an adjustment is made as provided in Section 11
or Section 13, the Company shall (a) promptly prepare a certificate setting forth such adjustment and a brief,
reasonably detailed statement of the facts and computations accounting for such adjustment, (b) promptly file with the Rights
Agent, and with each transfer agent for the Preferred Stock and the Common Stock, a copy of such certificate and (c) if a
Distribution Time has occurred, mail a brief summary thereof to each holder of a Rights Certificate in accordance with Section 26.
Notwithstanding the foregoing sentence, the failure of the Company to make such certification or give such notice shall not affect
the validity of or the force or effect of the requirement for such adjustment. Any adjustment to be made pursuant to Section 11
or Section 13 shall be effective as of the date of the event giving rise to such adjustment. The Rights Agent
shall be fully protected in relying on any such certificate and on any adjustment therein contained and shall have no duty or
liability with respect to, and shall not be deemed to have knowledge of such adjustment unless and until it shall have received
such certificate.


 


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


 


(a) In
the event that, following the Stock Acquisition Date, directly or indirectly, (i) the Company shall consolidate with, or merge
with and into, any other Person (other than a direct or indirect, wholly-owned Subsidiary of the Company in a transaction that
complies with Section 11(o)), and the Company is not the continuing or surviving entity of such consolidation or merger,
(ii) any Person (other than a direct or indirect, wholly-owned Subsidiary of the Company in a transaction that complies with
Section 11(o)) shall engage in a share exchange with or shall consolidate with, or merge with or into, the Company,
and the Company is the continuing or surviving entity of such consolidation or merger and, in connection with such share exchange,
consolidation or merger, all or part of the outstanding shares of Common Stock is converted into or exchanged for stock or other
securities of any other Person or cash or any other property or (iii) the Company sells or otherwise transfers (or one or
more of its direct or indirect, wholly-owned Subsidiaries sells or otherwise transfers) in one transaction or a series of related
transactions, assets, cash flow or earning power aggregating to fifty percent (50%) or more of the assets, cash flow or earning
power of the Company and its Subsidiaries (taken as a whole) to any Person or Persons (other than the Company or any of its direct
or indirect, wholly-owned Subsidiaries in one or more transactions each of which complies with Section 11(o)) (any
event described in clause (i), (ii) or (iii) of this Section 13(a) following the Stock Acquisition Date, a “Flip-over
Event”), then, and in each such case, proper provision shall be made so that: (A) each holder of a Right, except
as provided in Section 7(e), shall have the right to receive upon the exercise thereof at the then-current Exercise
Price in accordance with the terms of this Agreement, in lieu of a number of one one-thousandths of a share of Preferred Stock,
such number of validly authorized and issued, fully paid, non-assessable and freely tradeable shares of Flip-over Stock, not subject
to any liens, encumbrances, rights of first refusal or other adverse claims, as shall be equal to the result obtained by (1) multiplying
the then-current Exercise Price by the number of one one-thousandths of a share of Preferred Stock for which a Right is exercisable
immediately prior to the first occurrence of a Flip-over Event (or, if a Flip-in Event has occurred prior to the first occurrence
of a Flip-over Event, multiplying the number of such one one-thousandths of a share of Preferred Stock for which a Right was exercisable
immediately prior to the first occurrence of a Flip-in Event by the Exercise Price in effect immediately prior to such first occurrence)
and (2) dividing that product (which, following the first occurrence of a Flip-over Event, shall be referred to as the “Exercise
Price” for each Right and for all purposes of this Agreement) by fifty percent (50%) of the Current Market Price (determined
pursuant to Section 11(d)(i)) per share of the Flip-over Stock on the date of consummation of such Flip-over Event;
(B) such Flip-over Party shall thereafter be liable for, and shall assume, by virtue of such Flip-over Event, all the obligations
and duties of the Company pursuant to this Agreement; (C) the term “Company” shall thereafter be deemed to refer
to such Flip-over Party, it being specifically intended that the provisions of Section 11 shall apply only to such
Flip-over Party following the first occurrence of a Flip-over Event; (D) such Flip-over Party shall take such steps (including
the reservation of a sufficient number of shares of Flip-over Stock) in connection with the consummation of any such transaction
as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be, in relation
to its shares of Common Stock thereafter deliverable upon the exercise of the Rights; and (E) the provisions of Section 11(a)(ii)
shall be of no effect following the first occurrence of any Flip-over Event.


 






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(b) “Flip-over
Party” shall mean:


 


(i) in
the case of any transaction described in Section 13(a)(i) or (ii), (A) the Person (including the Company
as successor thereto or as the surviving entity) that is the issuer of any securities into which shares of Common Stock are converted
or exchanged in such share exchange, consolidation or merger, or, if there is more than one such issuer, the issuer whose common
stock (or similar equity interest) has the highest aggregate market value; and (B) if no securities are so issued, (1) the
Person that is the other party to such merger, if such Person survives the merger, or, if there is more than one such Person, the
Person whose common stock (or similar equity interest) has the highest aggregate market value, (2) if the Person that is the
other party to such share exchange, consolidation or merger does not survive the merger, the Person that does survive the merger
(including the Company, if it survives) or (3) the Person resulting from the consolidation; and


 


(ii) in
the case of any transaction described in Section 13(a)(iii), the Person that is the party receiving the greatest portion
of the assets, cash flow or earning power transferred pursuant to such transaction or transactions, or, if each Person that is
a party to such transaction or transactions receives the same portion of the assets, cash flow or earning power transferred pursuant
to such transaction or transactions or if the Person receiving the greatest portion of the assets, cash flow or earning power cannot
be determined, whichever such Person the common stock (or similar equity interest) of which has the highest aggregate market value;


 


provided, however, that in
any such case described in the foregoing clause (i) or (ii) of this Section 13(b), (x) if the common stock
(or similar equity interest) of such Person is not at such time and has not been continuously over the preceding twelve (12) month
period registered under Section 12 of the Exchange Act, and such Person is a direct or indirect Subsidiary of another Person,
the common stock (or similar equity interest) of which is and has been so registered, “Flip-over Party” shall refer
to such other Person; (y) in case such Person is a Subsidiary, directly or indirectly, of more than one Person, the common
stock (or similar equity interest) of two or more of which are and have been so registered, “Flip-over Party” shall
refer to whichever of such Persons is the issuer of the common stock (or similar equity interest) having the greatest aggregate
market value; and (z) if the common stock (or similar equity interest) of such Person is not at such time and has not been
so registered and 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 in the foregoing clauses (x) and (y) will 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 ventures, and the Flip-over Parties in each such chain shall bear the obligations set forth in this Section 13
in the same ratio as their direct or indirect interests in such Person bear to the total of such interests.


 






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(c) The
Company shall not consummate any Flip-over Event unless the Flip-over Party has a sufficient number of authorized shares of Flip-over
Stock (or similar equity interest) which have not been issued or reserved for issuance to permit the exercise in full of the Rights
in accordance with this Section 13 and unless prior thereto the Company and such Flip-over Party shall have executed
and delivered to the Rights Agent a supplemental agreement providing for the terms set forth in Section 13(a) and Section 13(b)
and further providing that, as soon as practicable after the date of any exchange, consolidation, merger, sale or transfer of assets
mentioned in Section 13(a), the Flip-over Party, at its own expense, shall:


 


(i) if
required to file a registration statement under the Act with respect to the Rights and the securities purchasable upon exercise
of the Rights, (A) prepare and file such registration statement on an appropriate form and (B) use its 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 Act) until the Expiration Time;


 


(ii) qualify
or register the Rights and take such action as may be required to ensure that any such acquisition of such securities purchasable
upon exercise of the Rights under blue sky laws of each jurisdiction, as may be necessary or appropriate;


 


(iii) deliver
to holders of the Rights historical financial statements for the Flip-over Party and each of its Affiliates that comply in all
respects with the requirements for registration on Form 10 under the Exchange Act;


 


(iv) use
its best efforts to obtain any and all necessary regulatory approvals as may be required with respect to the securities purchasable
upon exercise of the Rights;


 


(v) use
its best efforts, if the common stock of the Flip-over Party is listed or admitted to trading on the Nasdaq, the NYSE or on another
national securities exchange, to list or admit to trading (or continue the listing of) the Rights and the securities purchasable
upon exercise of the Rights on the Nasdaq, the NYSE or on such securities exchange, or if the securities of the Flip-over Party
that may be acquired upon exercise of the Rights are not listed or admitted to trading on the Nasdaq, the NYSE or on another national
securities exchange, to cause the Rights and the securities purchasable upon exercise of the Rights to be authorized for quotation
on any other system then in use; and


 






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(vi) obtain
waivers of any rights of first refusal or preemptive rights in respect of the common stock of the Flip-over Party subject to purchase
upon exercise of outstanding Rights.


 


(d) In
case the Flip-over Party has, at any relevant time (including the time of the Flip-over Event or immediately thereafter), a provision
in any of its authorized securities or in its certificate or articles of incorporation, bylaws or other instrument governing its
affairs, or any other agreements or arrangements, which provision would have the effect of (i) causing such Flip-over 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 Flip-over Event, shares of common stock (or similar equity interests) of such Flip-over Party at less than
the then Current Market Price or securities exercisable for, or convertible into, common stock of such Flip-over Party at less
than such then Current Market Price; (ii) providing for any special payment, tax or similar provision in connection with the
issuance of common stock of such Flip-over Party pursuant to this Section 13 or (iii) otherwise eliminating or
substantially diminishing the benefits intended to be afforded by the Rights in connection with, or as a consequence of, a Flip-over
Event, then in each such case, the Company may not consummate any such Flip-over Event unless prior thereto, the Company and such
Flip-over Party have executed and delivered to the Rights Agent a supplemental agreement providing that the provision in question
of such Flip-over Party has been cancelled, waived or amended, or that the authorized securities have been redeemed, so that the
applicable provision will have no effect in connection with, or as a consequence of, the consummation of such Flip-over Event.


 


(e) The
Company covenants and agrees that it shall not, at any time after a Flip-in Event, enter into any transaction of the type described
in Section 13(a)(i) through Section 13(a)(iii) if (i) at the time of or immediately after such transaction
there are any rights, warrants or other instruments or securities outstanding or agreements in effect which would substantially
diminish or otherwise eliminate the benefits intended to be afforded by the Rights; (ii) prior to, simultaneously with or immediately
after such transaction, the stockholders of the Person who constitutes, or would constitute, the Flip-over Party for purposes of
Section 13(b) has received a distribution of Rights previously owned by such Person or any Related Person thereof or
(iii) the form or nature of organization of the Flip-over Party would preclude or limit the exercisability of the Rights.


 


(f) Notwithstanding
anything herein to the contrary, in the event of any merger or acquisition transaction involving the Company pursuant to a merger
or other acquisition agreement between the Company and any Person (or one or more of such Person’s Related Persons), which
agreement has been approved by the Board prior to any Person becoming an Acquiring Person, this Agreement and the rights of holders
of Rights hereunder shall be terminated in accordance with Section 7(a).


 


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


 






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Section 14.
Fractional Rights and Fractional Shares.


 


(a) The
Company shall not be required to issue fractions of Rights, except prior to the Distribution Time as provided in Section 11,
or to distribute Rights Certificates which evidence fractional Rights. In lieu of such fractional Rights, there shall be paid to
the registered holders of the Rights Certificates with regard to which such fractional Rights would otherwise be issuable, an amount
in cash equal to the same fraction of the current market value of a whole Right. For purposes of this Section 14(a),
the current market value of a whole Right shall be the Closing Price of the Rights for the Trading Day immediately prior to the
date on which such fractional Rights would have been otherwise issuable.


 


(b) The
Company shall not be required to issue fractions of shares of Preferred Stock (other than fractions that are integral multiples
of one one-thousandth of a share of Preferred Stock) upon exercise of the Rights or to distribute certificates which evidence fractional
shares of Preferred Stock (other than fractions that are integral multiples of one one-thousandth of a share of Preferred Stock).
Fractions of shares of Preferred Stock in integral multiples of one one-thousandth of a share 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,
however, 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 shares represented by such depositary receipts. In lieu
of fractional shares of Preferred Stock that are not integral multiples of one one-thousandth of a share of Preferred Stock, the
Company shall pay to the registered holders of Rights Certificates at the time such Rights are exercised as herein provided an
amount in cash equal to the same fraction of the current market value of one one-thousandth of a share of Preferred Stock. For
purposes of this Section 14(b), the current market value of one one-thousandth of a share of Preferred Stock shall
be one one-thousandth of the Closing Price of a share of Preferred Stock for the Trading Day immediately prior to the date of such
exercise.


 


(c) Following
the occurrence of a Triggering Event, the Company shall not be required to issue fractions of shares of Common Stock, Common Stock
Equivalents or other securities upon exercise of the Rights or to distribute certificates which evidence fractional shares of Common
Stock, Common Stock Equivalents or other securities. In lieu of fractional shares of Common Stock, Common Stock Equivalents or
other securities, the Company shall pay to the registered holders of Rights Certificates at the time such Rights are exercised
as herein provided an amount in cash equal to the same fraction of the current market value of one share of Common Stock, Common
Stock Equivalents or such other securities. For purposes of this Section 14(c), the current market value of one share
of Common Stock or other security (other than a Common Stock Equivalent) shall be the Closing Price of one share of Common Stock
or such other security, as applicable, for the Trading Day immediately prior to the date of such exercise, and the current market
value of a Common Stock Equivalent shall be deemed to equal the Closing Price of one share of Common Stock for the Trading Day
immediately prior to the date of such exercise.


 


(d) The
holder of a Right by the acceptance of the Rights expressly waives such holder’s right to receive any fractional Rights or
any fractional shares upon exercise of a Right, except as permitted by this Section 14.


 






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(e) Whenever
a payment for fractional Rights or fractional shares is to be made by the Rights Agent under this Agreement, the Company shall
(i) promptly prepare and deliver to the Rights Agent a certificate setting forth in reasonable detail the facts related to
such payment and the prices or formulas utilized in calculating such payments and (ii) provide sufficient monies to the Rights
Agent in the form of fully collected funds to make such payments. The Rights Agent may rely upon such a certificate and has no
duty with respect to, and will not be deemed to have knowledge of, any payment for fractional Rights or fractional shares under
any Section of this Agreement relating to the payment of fractional Rights or fractional shares unless and until the Rights Agent
has received such a certificate and sufficient monies.


 


Section 15.
Rights of Action. All rights of action in respect of this Agreement, other than rights of action vested in the Rights
Agent pursuant to the terms of this Agreement, are vested in the respective registered holders of the Rights Certificates (and,
prior to the Distribution Time, the registered holders of the Common Stock); and any registered holder of any Rights Certificate
(or, prior to the Distribution Time, any registered holder of shares of the Common Stock), without the consent of the Rights Agent
or of the holder of any other Rights Certificate (or, prior to the Distribution Time, of the Common Stock), may, in such holder’s
own behalf and for such holder’s own benefit, enforce, and may institute and maintain any suit, action or proceeding against
the Company or any other Person to enforce, or otherwise act in respect of, such holder’s right to exercise the Rights evidenced
by such Rights Certificate in the manner provided in such Rights Certificate and in this 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 by the Company and shall be entitled to specific performance of the
obligations hereunder and injunctive relief against actual or threatened violations of the obligations of the Company under this
Agreement.


 


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


 


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


 


(b) after
the Distribution Time, the Rights Certificates shall be transferable only on the registry books of the Rights Agent if surrendered
at the offices of the Rights Agent designated for such purposes, duly endorsed or accompanied by a proper instrument of transfer
and with the appropriate forms and certificates properly completed and duly executed, accompanied by a signature guarantee and
such other documentation as the Rights Agent may reasonably request;


 


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


 






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(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, judgment or ruling (whether interlocutory or final) issued by a court of competent
jurisdiction or by a governmental, regulatory, self-regulatory or administrative agency or commission, or any statute, rule, regulation
or executive order promulgated or enacted by any governmental authority, prohibiting or otherwise restraining performance of such
obligation; provided, however, the Company shall use commercially reasonable efforts to have any such injunction, order,
decree, judgment or ruling lifted or otherwise overturned as promptly as practicable.


 


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


 


Section 18. Concerning
the Rights Agent.


 


(a) The
Company agrees to pay to the Rights Agent reasonable compensation for all services rendered by it hereunder in accordance with
a fee schedule to be mutually agreed upon and, from time to time, on demand of the Rights Agent, its reasonable and documented
expenses and counsel fees and disbursements and other disbursements incurred in the preparation, negotiation, execution, administration,
delivery and amendment of this Agreement and the exercise and performance of its duties hereunder. The Company also covenants and
agrees to indemnify the Rights Agent for, and to hold it harmless against, any loss, liability, damage, judgment, fine, penalty,
claim, demand, settlement, cost or expense (including the reasonable fees and expenses of legal counsel) that may be paid, incurred
or suffered by it, or to which it may become subject, without gross negligence, bad faith or willful misconduct on the part of
the Rights Agent (which gross negligence, bad faith, or willful misconduct must be determined by a final, non-appealable judgment
of a court of competent jurisdiction) for any action taken, suffered or omitted by the Rights Agent in connection with the execution,
acceptance, administration, exercise and performance of its duties under this Agreement, including the reasonable costs and expenses
of defending against any claim of liability arising therefrom, directly or indirectly, or of enforcing its rights under this Agreement.


 






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(b) The
Rights Agent shall be authorized and protected and shall incur no liability for or in respect of any action taken, suffered or
omitted to be taken by it in connection with its acceptance and administration of this Agreement and the exercise and performance
of its duties hereunder in reliance upon any Rights Certificate or Common Stock certificate or for other securities of the Company,
instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, instruction, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine and to be duly signed, executed and, where necessary,
guaranteed, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice of counsel as set forth in
Section 20. The Rights Agent shall not be deemed to have knowledge of any event of which it was supposed to receive
notice thereof hereunder, and the Rights Agent shall be fully protected and shall incur no liability for failing to take action
in connection therewith unless and until it has received such notice in writing.


 


(c) To
the extent the Company is not also a party to an action, proceeding, suit or claim against the Rights Agent concerning this Agreement
or the performance by the Rights Agent of its duties hereunder, the Rights Agent shall as promptly as practicable notify the Company
in accordance with Section 26 of the assertion of such action, proceeding, suit or claim against the Rights Agent,
after the Rights Agent has actual notice of such assertion of an action, proceeding, suit or claim or has been served with the
summons or other first legal process giving information as to the nature and basis of the action, proceeding, suit or claim; provided
that the failure to provide such notice shall not affect the rights of the Right Agent hereunder, except to the extent a court
of competent jurisdiction determines that such failure actually prejudiced the Company. The Company shall be entitled to participate,
at its own expense, in the defense of any such action, proceeding, suit or claim. The Rights Agent agrees not to settle any litigation
in connection with any action, proceeding, suit or claim with respect to which it may seek indemnification from the Company without
the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.


 


(d) Section 18
and Section 20 shall survive the termination of this Agreement, the resignation, replacement or removal of the Rights
Agent and the exercise, termination and expiration of the Rights. Notwithstanding anything in this Agreement to the contrary, in
no event shall the Rights Agent be liable for special, punitive, incidental, indirect or consequential loss or damage of any kind
whatsoever, even if the Rights Agent has been advised of the likelihood of such loss or damage and regardless of the form of the
action. Notwithstanding anything to the contrary herein, any liability of the Rights Agent under this Agreement shall be limited
to the amount of fees (but not including any reimbursed costs) paid by the Company to the Rights Agent during the twelve (12) months
immediately preceding the event for which recovery from the Rights Agent is being sought.


 


Section 19.
Merger or Consolidation or Change of Name of Rights Agent.


 


(a) Any
Person into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any Person
resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or any Person
succeeding to the stock transfer or other shareholder services 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 paper or any further act on the
part of any of the parties hereto; provided, however, that such Person would be eligible for appointment as a successor
Rights Agent under Section 21. The purchase of all or substantially all of the Rights Agent’s assets employed
in the performance of the transfer agent activities shall be deemed a merger or consolidation for purposes of this Section 19.
In case at the time such successor Rights Agent succeeds to the agency created by this Agreement, any of the Rights Certificates
has been countersigned but not delivered, any such successor Rights Agent may adopt the countersignature of a predecessor Rights
Agent and deliver such Rights Certificates so countersigned; and in case at the time any of the Rights Certificates has not been
countersigned, any successor Rights Agent may countersign such Rights Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases such Rights Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.


 






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(b) In
case at any time the name of the Rights Agent is changed, and at such time any of the Rights Certificates has 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 has not been countersigned, the Rights Agent may countersign such Rights
Certificates either in its prior name or in its changed name; and in all such cases such Rights Certificates shall have the full
force provided in the Rights Certificates and in this Agreement.


 


Section 20.
Duties of Rights Agent. The Rights Agent undertakes to perform only the duties and obligations expressly set forth
in this Agreement, and no implied duties or obligations shall be read into this Agreement against the Rights Agent. The Rights
Agent shall perform such duties and obligations, by all of which the Company and the holders of Rights or shares of Common Stock
or Preferred Stock by their acceptance thereof, shall be bound.


 


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


 


(b) Whenever
in the performance of its duties under this Agreement the Rights Agent deems it necessary or desirable that any fact or matter
(including the identity of any Acquiring Person and the determination of the Current Market Price) be proved or established by
the Company prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed
by the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer, General Counsel, Corporate Secretary
or any Assistant Secretary of the Company, or any other authorized officer of the Company and delivered to the Rights Agent; and
such certificate shall be full and complete authorization and protection to the Rights Agent, and the Rights Agent shall incur
no liability for or in respect of any action taken, suffered or omitted to be taken by it under this Agreement in reliance upon
such certificate. The Rights Agent shall have no duty to act without such certificate as set forth in this Section 20(b).


 


(c) 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 or be required to verify the same (except as to its countersignature on such Rights Certificates), but
all such statements and recitals are and shall be deemed to have been made by the Company only.


 






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(d) The
Rights Agent shall not have any liability for or be under any responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by the Rights Agent) or in respect of the legality or 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 liable or responsible for
any adjustment or calculation required under Section 11, Section 13, Section 14 or Section 24
or responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of
facts that would require any such adjustment or calculation (except with respect to the exercise of Rights evidenced by
Rights Certificates subject to the terms and conditions hereof after actual notice of any such adjustment); 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 Common Stock
or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any shares of Common Stock
or Preferred Stock will, when so issued, be validly authorized and issued, fully paid and nonassessable.


 


(e) The
Rights Agent shall not be liable or responsible for any failure of the Company to comply with any of its obligations relating to
any registration statement filed with the Securities and Exchange Commission or this Agreement, including obligations under applicable
regulation or law.


 


(f) The
Rights Agent shall not have any duty or responsibility in the case of the receipt of any written demand from any holder of Rights
with respect to any action or default by the Company, including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.


 


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


 


(h) The
Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from
any person reasonably believed by the Rights Agent to be the Chairman of the Board, Chief Executive Officer, Chief Financial Officer,
Corporate Secretary or any Assistant Secretary of the Company and to apply to such officers for advice or instructions in connection
with its duties under this Agreement, and such instructions shall provide full authorization and protection to the Rights Agent
and the Rights Agent shall not be liable for and it shall incur no liability for or in respect of any action taken, suffered or
omitted by it in accordance with instructions of any such officer. Any application by the Rights Agent for written instructions
from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken, suffered or omitted
to be taken by the Rights Agent under this Agreement and the date on and/or after which such action shall be taken or such omission
shall be effective. The Rights Agent shall be fully authorized and protected in relying upon the most recent instructions received
from any such officer, and shall not be liable for any action taken, suffered or omitted to be taken by the Rights Agent in accordance
with a proposal included in any such application on or after the date specified in such application unless, prior to taking any
such action (or the effective date, in the case of an omission), the Rights Agent has received written instructions in response
to such application specifying the action to be taken or omitted.


 






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


 


(j) 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, omission, default,
neglect or misconduct of any such attorneys or agents or for any loss to the Company or any other Person resulting from any such
act, omission, default, neglect or misconduct, absent gross negligence or bad faith in the selection and continued employment thereof
(which gross negligence or bad faith must be determined by a final, non-appealable judgment of a court of competent jurisdiction).


 


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


 


(l) 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, has either not been properly completed or indicates an
affirmative response to clause 1 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; provided, however that Rights Agent shall not be liable for any
delays arising from the duties under this Section 20(l).


 


(m) The
Rights Agent shall have no responsibility to the Company, any holders of Rights or any other Person for interest or earnings on
any moneys held by the Rights Agent pursuant to this Agreement.


 


(n) The
Rights Agent shall not be required to take notice or be deemed to have notice of any event or condition hereunder, including any
event or condition that may require action by the Rights Agent, unless the Rights Agent shall be specifically notified in writing
of such event or condition by the Company, and all notices or other instruments required by this Agreement to be delivered to the
Rights Agent must, in order to be effective, be received by the Rights Agent as specified in Section 26 hereof, and in the absence
of such notice so delivered, the Rights Agent may conclusively assume no such event or condition exists.


 


(o) The
Rights Agent may rely on and be fully authorized and protected in acting or failing to act upon (a) any guaranty of signature by
an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program
or other comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the
foregoing; or (b) any law, act, regulation or any interpretation of the same.


 






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(p)
In the event the Rights Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction,
request or other communication, paper or document received by the Rights Agent hereunder, the Rights Agent, may (upon notice to
the Company of such ambiguity or uncertainty), in its sole discretion, refrain from taking any action, and shall be fully protected
and shall not be liable in any way to Company, the holder of any Rights Certificate or any other Person for refraining from taking
such action, unless the Rights Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty
to the satisfaction of Rights Agent.


 


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 thirty (30) days’ notice in writing to the Company, and to the holders of the
Rights Certificates by first-class mail. In the event any transfer agency relationship in effect between the Company and the Rights
Agent terminates, the Rights Agent will be deemed to have resigned automatically and be discharged from its duties under this
Agreement as of the effective date of such termination, and the Company shall be responsible for sending any required notice.
The Company may remove the Rights Agent or any successor Rights Agent upon no less than thirty (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
and the Preferred Stock, by registered or certified mail, and, if such removal occurs after the Distribution Time, to the holders
of the Rights Certificates by first-class mail. If the Rights Agent resigns or is removed or otherwise becomes incapable of acting,
the Company shall appoint a successor to the Rights Agent. If the Company fails to make such appointment within a period of thirty
(30) days after giving notice of such removal or after it has been notified in writing of such resignation or incapacity
by the resigning or incapacitated Rights Agent or by any registered holder of a Rights Certificate (who shall, with such notice,
submit such holder’s Rights Certificate for inspection by the Company), then any registered holder of any Rights Certificate
may apply to any court of competent jurisdiction for the appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be (a) a Person organized and doing business under the laws of the United
States or any state thereof, in good standing, which is authorized under such laws to exercise corporate trust, stock transfer
or stockholder services powers and is subject to supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at least $50,000,000 or (b) an Affiliate of such
Person. 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 under this Agreement 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 reasonable assurance, conveyance, act or deed necessary for the purpose, but such predecessor Rights Agent
shall not be required to make any additional expenditure or assume any additional liability in connection with the foregoing.
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 and the Preferred Stock, and, if such appointment occurs after the Distribution
Time, mail a notice thereof in writing to the registered holders of the Rights Certificates. Failure to give any notice provided
for in this Section 21 or any defect therein shall not affect the legality or validity of the resignation or removal
of the Rights Agent or the appointment of the successor Rights Agent, as the case may be.


 






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Section
22. Issuance of New Rights Certificates. Notwithstanding any of the provisions of this Agreement or of the Rights
to the contrary, the Company may, at its option, issue new Rights Certificates evidencing Rights in such form as may be approved
by its Board to reflect any adjustment or change in the Exercise Price and the number or kind or class of shares or other securities
or property purchasable under the Rights Certificates made in accordance with this Agreement. In addition, in connection with
the issuance or sale of shares of Common Stock following the Distribution Time and prior to the redemption or expiration of the
Rights, the Company (a) shall, with respect to shares of Common Stock so issued or sold pursuant to the exercise of stock
options or under any employee plan or arrangement, granted or awarded prior to the Distribution Time, or upon the exercise, conversion
or exchange of securities hereinafter issued by the Company, and (b) may, in any other case, if deemed necessary or appropriate
by the Board, issue Rights Certificates representing an appropriate number of Rights in connection with such issuance or sale;
provided, however, that (i) no such Rights Certificate shall be issued if, and to the extent that, the Company shall be advised
by counsel that such issuance would create a significant risk of material adverse tax consequences to the Company or the Person
to whom such Rights Certificate would be issued and (ii) no such Rights Certificate shall be issued if, and to the extent
that, appropriate adjustment shall otherwise have been made in lieu of the issuance thereof.


 


Section 23. Redemption
and Termination.


 


(a)
The Board may, at its option, at any time prior to the earlier of (i) the Stock Acquisition Date and (ii) the Final Expiration
Time (such time being hereinafter referred to as the “Redemption Period”), cause the Company to redeem all
but not less than all of the then outstanding Rights at a redemption price of $0.001 per Right, as such amount may be appropriately
adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after the date hereof
(such redemption price being hereinafter referred to as the “Redemption Price”). Notwithstanding anything contained
in this Agreement to the contrary, the Rights shall not be exercisable after the first occurrence of a Flip-in Event until such
time as the Company’s right of redemption hereunder has expired. The Company may, at its option, pay the Redemption Price
in cash, shares of Common Stock (based on the Current Market Price of the Common Stock at the time of redemption) or any other
form of consideration deemed appropriate by the Board. The redemption of the Rights by the Board may be made effective at such
time, on such basis and with such conditions as the Board in its sole discretion may establish.


 


(b)
Immediately upon the action of the Board ordering the redemption of the Rights pursuant to Section 23(a) or such later
time as the Board may establish for the effectiveness of such redemption, evidence of which shall have been filed with the Rights
Agent and without any further action and without any notice, the right to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption Price for each Right so held. Within ten (10) days
after the action of the Board ordering the redemption of the Rights, the Company shall give notice of such redemption to the Rights
Agent and the holders of the then outstanding Rights by mailing such notice to the Rights Agent and to all such holders at each
holder’s last address as it appears upon the registry books of the Rights Agent or, prior to the Distribution Time, on the
registry books of the transfer agent for the Common Stock; provided, however, that the failure to give, or any defect in,
such notice shall not affect the validity of such redemption. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice of redemption shall state the method by which the
payment of the Redemption Price will be made.


 






    38


     


    

 


Section
24.  Exchange.


 


(a)
The Board may, at its option, at any time after any Person becomes an Acquiring Person, exchange all or part of the then outstanding
and exercisable Rights (which shall not include Rights that have become null and void pursuant to Section 7(e)) for
shares of Common Stock at an exchange ratio of one share of Common Stock per Right, appropriately adjusted to reflect any stock
split, reverse stock split, stock dividend or similar transaction occurring after the date hereof (such exchange ratio being hereinafter
referred to as the “Exchange Ratio”). Notwithstanding the foregoing, the Board shall not be empowered to effect
such exchange at any time after any Acquiring Person, together with all of its Related Persons, becomes the Beneficial Owner of
fifty percent (50%) or more of the Common Stock then outstanding. From and after the occurrence of a Flip-over Event, any rights
that theretofore have not been exchanged pursuant to this Section 24(a) shall thereafter be exercisable only in accordance
with Section 13 and may not be exchanged pursuant to this Section 24(a). Before effecting an exchange
pursuant to this Section 24, the Board may direct the Company to enter into a trust agreement in such form and with
such terms as the Board shall then approve (the “Trust Agreement”). If the Board so directs, the Company shall
enter into the Trust Agreement and shall issue to the trust created by such agreement (the “Trust”) all or
some (as designated by the Board) of the shares of Common Stock issuable pursuant to the exchange, and all or some (as designated
by the Board) holders of Rights entitled to receive shares pursuant to the exchange shall be entitled to receive such shares (and
any dividends paid or distributions made thereon after the date on which such shares are deposited in the Trust) only from the
Trust and solely upon compliance with the relevant terms and provisions of the Trust Agreement.


 


(b)
Immediately upon the effectiveness of the action of the Board ordering the exchange of any Rights pursuant to Section 24(a)
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 any such Rights shall be to receive that number of shares of Common Stock equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio. The Company shall promptly give public notice (with prompt written
notice thereof to the Rights Agent) of any exchange. The Company promptly thereafter shall mail a notice of any such exchange
to all of the holders of such Rights at their last addresses as they appear upon the registry books of the Rights Agent. Any notice
which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such
notice of exchange shall state the method by which the exchange of the shares of Common Stock for Rights shall be effected and,
in the event of any partial exchange, the number of Rights which will be exchanged. Any partial exchange shall be effected pro rata
based on the number of Rights (other than Rights which have become null and void pursuant to Section 7(e)) held by
each holder of Rights. Prior to effecting any exchange and registering shares of Common Stock in any Person’s name, including
any nominee or transferee of a Person, the Company may require (or cause the trustee of the Trust to require), as a condition
thereof, that any holder of Rights provide evidence, including the identity of the Beneficial Owners thereof and their Related
Persons (or former Beneficial Owners thereof and their Related Persons) as the Company reasonably requests in order to determine
if such Rights are null and void. If any Person fails to comply with such request, the Company shall be entitled conclusively
to deem the Rights formerly held by such Person to be null and void pursuant to Section 7(e). No failure to give,
or any defect in, any notice provided under this Section 24(b) shall affect the validity of any exchange. Any shares
of Common Stock or other securities issued at the direction of the Board in connection herewith shall be validly issued, fully
paid and non-assessable shares of Common Stock or of such other securities, as the case may be.


 






    39


     


    

 


(c)
Upon declaring an exchange pursuant to this Section 24, or as promptly as reasonably practicable thereafter, the Company
may implement such procedures as it deems appropriate, in its sole discretion, for the purpose of ensuring that the Common Stock
(or such other consideration) issuable upon an exchange pursuant to this Section 24 is not received by holders of
Rights that have become null and void pursuant to Section 7(e).


 


(d)
In any exchange pursuant to this Section 24, the Company, at its option, may substitute shares of Preferred Stock
(or Equivalent Preferred Stock) for shares of Common Stock exchangeable for Rights, at the initial rate of one one-thousandth
of a share of Preferred Stock (or Equivalent Preferred Stock) for each share of Common Stock, as appropriately adjusted to reflect
adjustments in the voting rights of the Preferred Stock pursuant to the terms thereof, so that the fraction of a share of Preferred
Stock delivered in lieu of each share of Common Stock shall have the same voting rights as one share of Common Stock.


 


(e)
In the event that there are not sufficient shares of Common Stock issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 24, the Company shall take all such actions
as may be necessary to authorize additional shares of Common Stock for issuance upon exchange of the Rights. In the event the
Company, after good faith effort, is unable to take all such actions as may be necessary to authorize such additional shares of
Common Stock, the Company shall substitute, for each share of Common Stock that would otherwise be issuable upon exchange of a
Right, a number of shares of Preferred Stock or fraction thereof such that the current per share market price of one share of
Preferred Stock multiplied by such number or fraction is equal to the current per share market price of one share of Common Stock
as of the date of issuance of such shares of Preferred Stock or fraction thereof.


 


(f)
The Company shall not be required to issue fractions of shares of Common Stock or to distribute certificates which evidence fractional
shares of Common Stock. In lieu of such fractional shares of Common Stock, there shall be paid to the registered holders of the
Rights Certificates with regard to which such fractional shares of Common Stock would otherwise be issuable, an amount in cash
equal to the same fraction of the current market value of a whole share of Common Stock. For the purposes of this Section 24(f),
the current market value of a whole share of Common Stock shall be the Closing Price of a share of Common Stock for the Trading
Day immediately prior to the date of exchange pursuant to this Section 24.


 






    40


     


    

 


Section 25. Notice
of Certain Events.


 


(a)
In the event the Company proposes, at any time after the earlier of the Distribution Time or the Stock Acquisition Date, (i) to
pay any dividend payable in stock of any class or series to the holders of Preferred Stock or to make any other distribution to
the holders of Preferred Stock (other than a regular periodic cash dividend out of earnings or retained earnings of the Company),
(ii) to offer to the holders of Preferred Stock rights 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, (iii) to effect any reclassification
of its Preferred Stock (other than a reclassification involving only the subdivision of outstanding shares of Preferred Stock),
(iv) to effect any consolidation or merger into or with any other Person (other than a direct or indirect, wholly owned Subsidiary
of the Company in a transaction which complies with Section 11(o)), or to effect any sale or other transfer (or to
permit one or more of its Subsidiaries to effect any sale or other transfer), in one transaction or a series of related transactions,
of fifty percent (50%) or more of the assets, cash flow or earning power of the Company and its Subsidiaries (taken as a whole)
to any other Person or Persons (other than the Company or any of its Subsidiaries in one or more transactions each of which complies
with Section 11(o)), or (v) to effect the liquidation, dissolution or winding up of the Company, then, in each
such case, the Company shall give to the Rights Agent and to each holder of a Rights Certificate, to the extent feasible and in
accordance with Section 26, a notice of such proposed action, which shall specify the record date for the purposes
of such stock dividend, distribution of rights or warrants, or the date on which such reclassification, consolidation, merger,
sale, transfer, liquidation, dissolution, or winding up is to take place and the date of participation therein by the holders
of the shares of 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 the foregoing clause (i) or (ii) at least twenty (20) days prior to the record date for determining holders
of the shares of Preferred Stock for purposes of such action, and in the case of any such other action, at least twenty (20) days
prior to the date of the taking of such proposed action or the date of participation therein by the holders of the shares of Preferred
Stock, whichever shall be the earlier; provided, however, that no such action shall be taken pursuant to this Section 25(a)
that will or would conflict with any provision of the Certificate of Incorporation, provided further that no such notice is
required pursuant to this Section 25 if any Subsidiary of the Company effects a consolidation or merger with or into,
or effects a sale or other transfer of assets or earning power to, any other Subsidiary of the Company.


 


(b)
In case a Flip-in Event occurs, then, in any such case, (i) the Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate, to the extent feasible and in accordance with Section 26, a notice of the occurrence
of such event, which shall specify the event and the consequences of the event to holders of Rights under Section 11(a)(ii),
and (ii) all references in the preceding paragraph to Preferred Stock shall be deemed thereafter to refer to Common Stock
and/or, if appropriate, other securities.


 


(c)
In case any Flip-over Event occurs, the Company shall, as soon as practicable thereafter, give to each registered holder of a
Rights Certificate, to the extent feasible, and to the Rights Agent in accordance with Section 26, a written notice
of the occurrence of such event, which notice shall describe such event and the consequences of such event to holders of Rights
under Section 13(a).


 






    41


     


    

 


Section
26. 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 in writing and sent by first-class
or express United States mail, Federal Express or United Parcel Service or any other nationally recognized courier service, postage
prepaid, addressed (until another address is filed in writing with the Rights Agent) or by facsimile transmission (with receipt
confirmation) as follows:


 




Gulfport Energy Corporation

3001 Quail Springs Parkway


Oklahoma
City, OK 73134


Attention:
Patrick Craine


Email:
pcraine@gulfportenergy.com



 


with a copy to:



Sidley Austin LLP

787 Seventh Avenue

New York, NY 10019


 


Attention:
Kai H. Liekefett, Esq.


Email:
kliekefett@sidley.com





Subject
to 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 in writing and sent by first-class
or express United States mail, Federal Express or United Parcel Service or any other nationally recognized courier service, postage
prepaid, addressed (until another address is filed in writing with the Company) or by facsimile transmission (with receipt confirmation)
as follows:


 


Computershare
Trust Company, N.A.


150
Royall Street


Canton,
MA 02021


Attention:
Client Services

Facsimile: (781) 575-4210


 


Notices
or demands authorized by this Agreement to be given or made by the Company or the Rights Agent to the holder of any Rights Certificate
(or, if prior to the Distribution Time, to the holder of shares of Common Stock) shall be sufficiently given or made if in writing,
sent by first-class or express United States mail, Federal Express or United Parcel Service or any other overnight delivery service,
postage prepaid and properly addressed to such holder at the address of such holder as shown on the registry books of the Company.






 






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Section
27. Supplements and Amendments. Except as otherwise provided in this Section 27, the Company, by
action of the Board, may from time to time and in its sole and absolute discretion, and the Rights Agent shall, if the Company
so directs, from time to time supplement or amend this Agreement in any respect without the approval of any holders of Rights
(a) prior to the Stock Acquisition Date, in any respect, and (b) on or after the Stock Acquisition Date, (i) to
make any changes that the Company may deem necessary or desirable that would not materially adversely affect the interests of
the holders of Rights (other than the Acquiring Person, any Related Person thereof or any transferee of any Acquiring Person or
any Related Person thereof), (ii) to cure any ambiguity, (iii) to correct or supplement any provision contained herein
that may be inconsistent with any other provision herein, including any change in order to satisfy any applicable law, rule or
regulation or (iv) to shorten or lengthen any time period under this Agreement. Without limiting the foregoing, the Company, by
action of the Board, may, at any time before any Person becomes an Acquiring Person, amend this Agreement to make this Agreement
inapplicable to a particular transaction by which a Person might otherwise become an Acquiring Person or to otherwise alter the
terms and conditions of this Agreement as they may apply with respect to any such transaction. For the avoidance of doubt, the
Company shall be entitled to adopt and implement such procedures and arrangements (including with third parties) as it may deem
necessary or desirable to facilitate the exercise, exchange, trading, issuance or distribution of the Rights (and the shares of
Preferred Stock issuable and deliverable upon the exercise of the Rights) as contemplated hereby and to ensure that an Acquiring
Person and its Related Persons and transferees do not obtain the benefits thereof, and any amendment in respect of the foregoing
shall be deemed not to adversely affect the interests of the holders of Rights. No supplement or amendment to this Agreement shall
be effective unless duly executed by the Rights Agent and the Company. The Rights Agent shall duly execute and deliver any supplement
or amendment hereto requested by the Company in writing, provided that the Company has delivered to the Rights Agent a certificate
from the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer, General Counsel, Corporate Secretary
or any Assistant Secretary of the Company, or any other officer of the Company that states that the proposed supplement or amendment
complies with the terms of this Agreement, including this Section 27. Notwithstanding anything in this Agreement to
the contrary, the Rights Agent may, but shall not be obligated to, enter into any supplement or amendment that adversely affects
the Rights Agent’s own rights, duties, immunities or obligations under this Agreement. Prior to the Distribution Time, the
interests of the holders of Rights shall be deemed coincident with the interests of holders of the Common Stock.


 


Section
28. 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
29. Determination and Action by the Board. The Board, or a duly authorized committee thereof, shall have
the exclusive power and authority to administer this Agreement and to exercise all rights and powers specifically granted to
the Board or to the Company, or as may be necessary or advisable in the administration of this Agreement, including the right
and power to (a) interpret the provisions of this Agreement and (b) make all determinations deemed necessary or
advisable for the administration of this Agreement (including a determination to redeem the Rights, to exchange the Rights
and/or to amend this Agreement). Without limiting any of the rights and immunities of the Rights Agent, all such actions,
calculations, interpretations and determinations (including for purposes of the following clause (ii), all omissions with
respect to the foregoing) which are done or made by the Board in good faith shall (i) be final, conclusive and binding
on the Company, the Rights Agent, the holders of the Rights and all other Persons and (ii) not subject the Board to any
liability to the holders of the Rights. The Rights Agent is entitled always to assume the Board acted in good faith and shall
be fully protected and incur no liability in reliance thereon.


 






    43


     


    

 


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


 


Section
31. Tax Compliance and Withholding. The Company hereby authorizes the Rights Agent to deduct from all payments
disbursed by the Rights Agent to the holders of the Rights, if applicable, the tax required to be withheld pursuant to the Code
or by any federal or state statutes subsequently enacted, and to make the necessary returns and payments of such tax to the relevant
taxing authority. The Company will provide withholding and reporting instructions in writing to the Rights Agent from time to
time as relevant, and upon request of the Rights Agent. The Rights Agent shall have no responsibilities with respect to tax withholding,
reporting or payment except as specifically instructed by the Company.


 


Section
32. Process to Seek Exemption. Any Person who desires to effect any transaction that might, if consummated,
result in such Person becoming the Beneficial Owner of 4.9% or more of the then-outstanding shares of Common Stock (a “Requesting
Person”) may, prior to the date of the transaction for which the Requesting Person is seeking a determination, request
in writing that the Board make a determination under this Agreement so that such Person would be deemed to be an “Exempt
Person” for the purposes of this Agreement (an “Exemption Request”). Any Exemption Request must be delivered
by registered mail, return receipt requested, to the Company at the address listed in Section 26. Such Exemption Request
will be deemed to have been made when actually received by the Company. Any Exemption Request must include: (i) the name, address
and telephone number of the Requesting Person; (ii) the number and percentage of shares of Common Stock then Beneficially Owned
by the Requesting Person; (iii) a reasonably detailed description of the transaction or transactions by which the Requesting Person
would propose to acquire Beneficial Ownership of shares of Common Stock, the maximum number and percentage of shares of Common
Stock that the Requesting Person proposes to acquire and the proposed tax treatment thereof; and (iv) a commitment by the Requesting
Person that such Requesting Person will not acquire Beneficial Ownership of 4.9% or more of the then-outstanding shares of Common
Stock or, if such Requesting Person Beneficially Owns 4.9% or more of the then-outstanding shares of Common Stock, any additional
shares of Common Stock prior to such time as the Board has responded to, or is deemed to have responded to, the Exemption Request
pursuant to this Section 32. The Board will endeavor to respond to any Exemption Request within 30 calendar days of
receiving such Exemption Request; provided, however, that the failure of the Board to make a determination within such
period will be deemed to constitute the denial by the Board of the Exemption Request. The Requesting Person must respond promptly
to reasonable and appropriate requests for additional information from the Company or the Board and its advisors to assist the
Board in making its determination. As a condition to making any determination requested pursuant to this Section 32,
the Board may, in its discretion, require (at the expense of the Requesting Person) a report from advisors selected by the Board
to the effect that the proposed transaction or transactions will not result in the application of any limitations on the use by
the Company of the Tax Benefits taking into account any and all other transactions that have been consummated prior to receipt
of the Exemption Request, any and all other proposed transactions that have been approved by the Board prior to its receipt of
the Exemption Request and any such other actual or proposed transactions involving the Common Stock as the Board may require;
provided, further, that the Board may make the determination requested in the Exemption Request notwithstanding the effect
of the proposed transaction or transactions on the Tax Benefits if it determines that such determination is in the best interests
of the Company. The Board may impose any conditions that it deems reasonable and appropriate in connection with a determination
pursuant to this Section 32, including restrictions on the ability of the Requesting Person to transfer shares of
Common Stock acquired by it in the transaction or transactions to which such determination relates. Any Exemption Request may
be submitted on a confidential basis and, except to the extent required by applicable law, the Company shall maintain the confidentiality
of such Exemption Request and the determination of the Board with respect thereto, unless the information contained in the Exemption
Request or the determination of the Board with respect thereto otherwise becomes publicly available.


 






    44


     


    

 


Section
33. Severability. If any term, provision, covenant or restriction of this Agreement or the Rights 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 and the Rights shall remain in full force and effect and shall in no way be affected,
impaired or invalidated; provided, however, that notwithstanding anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such court or authority to be invalid, void or unenforceable and the Board
determines in its good faith judgment that severing the invalid language from this Agreement or the Rights would adversely affect
the purpose or effect of this Agreement, the right of redemption set forth in Section 23 shall be reinstated and shall
not expire until the Close of Business on the tenth (10th) day following the date of such determination by the Board; further,
provided, however, that if such excluded provision shall materially and adversely affect the rights, immunities, liabilities,
duties or obligations of the Rights Agent, the Rights Agent shall be entitled to resign immediately upon written notice to the
Company.


 


Section
34. Governing Law; Submission to Jurisdiction. This Agreement, each Right and each Rights Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to contracts made and to be performed entirely within such
State. The Company and each holder of Rights hereby irrevocably submits to the exclusive jurisdiction of the Court of Chancery
of the State of Delaware, or, if such court lacks subject matter jurisdiction, the United States District Court for the District
of Delaware, over any suit, action or proceeding arising out of or relating to this Agreement. The Company and each holder of
Rights acknowledge that the forum designated by this Section 34 has a reasonable relation to this Agreement and to
such Persons’ relationship with one another. The Company and each holder of Rights hereby waive, to the fullest extent permitted
by applicable law, any objection which they now or hereafter have to personal jurisdiction or to the laying of venue of any such
suit, action or proceeding brought in any court referred to in this Section 34. The Company and each holder of Rights
undertake not to commence any action subject to this Agreement in any forum other than the forum described in this Section 34.
The Company and each holder of Rights agree that, to the fullest extent permitted by applicable law, a final and non-appealable
judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon such Persons.


 






    45


     


    

 


Section
35. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts
shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
Delivery of an executed signature page of the Agreement by facsimile or other customary means of electronic transmission (e.g.,
“pdf”) shall be effective as delivery of a manually executed counterpart hereof.


 


Section
36. Descriptive Headings; Interpretation. Descriptive headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. The
words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without
limitation.” Each reference in this Agreement to a period of time following or after a specified date or event shall be
calculated without including such specified date or the day on which such specified event occurs.


 


Section
37. Force Majeure. Notwithstanding anything to the contrary contained herein, the Rights Agent will not have
any liability for not performing, or a delay in the performance of, any act, duty, obligation or responsibility by reason of any
occurrence beyond the reasonable control of the Rights Agent (including any act or provision or any present or future law or regulation
or governmental authority, any act of God, epidemics, pandemics, war, civil or military disobedience or disorder, riot, rebellion,
terrorism, insurrection, fire, earthquake, storm, flood, strike, work stoppage, interruptions or malfunctions of computer facilities,
loss of data due to power failures or mechanical difficulties, labor dispute, accident or failure or malfunction of any utilities
communication or computer services or similar occurrence).


 


*
* * * * * *


 




    46


     


    


 


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


 


	 	GULFPORT ENERGY CORPORATION
	 	 
	 	By:	/s/
    Patrick Craine
	 	 	Name: Patrick Craine
	 	 	Title: EVP-GC
	 	 
	 	COMPUTERSHARE TRUST COMPANY,
    N.A.
	 	 
	 	By:	/s/ Patrick
    Hayes
	 	 	Name: Patrick Hayes
	 	 	Title: Vice President & Manager



 





 





[Signature Page to Tax Benefits Preservation
Plan]







 





    47


     


    


 


Exhibit
A


 


FORM
OF


 


CERTIFICATE
OF DESIGNATION


 


OF


 


SERIES
B JUNIOR PARTICIPATING PREFERRED STOCK


 


OF


 


GULFPORT
ENERGY CORPORATION


 


Pursuant
to Section 151 of the

General Corporation Law of the State of Delaware


 


The
undersigned hereby certifies that the following resolution was duly adopted by the board of directors of Gulfport Energy Corporation,
a Delaware corporation (the “Corporation”), on April 30, 2020:


 


RESOLVED,
that pursuant to the authority vested in the board of directors of the Corporation (the “Board”) by the Restated
Certificate of Incorporation of the Corporation (as may be amended from time to time, the “Charter”), the Board
hereby creates, authorizes and provides for the issue of a series of Preferred Stock, par value $0.01 per share, of the Corporation,
to be designated “Series B Junior Participating Preferred Stock” (hereinafter referred to as the “Series
B Preferred Stock”), initially consisting of 200,000 shares, and to the extent that the designations, powers, preferences
and relative and other special rights and the qualifications, limitations or restrictions of the Series B Preferred Stock are
not stated and expressed in the Charter, hereby fixes and herein states and expresses such designations, powers, preferences and
relative and other special rights and the qualifications, limitations and restrictions thereof, as follows:


 


Section 1.
Designation and Amount. The shares of such series shall be designated as “Series B Junior Participating Preferred
Stock,” and the number of shares constituting such series shall be 200,000. Such number of shares may be increased or decreased
by resolution of the Board; provided, however, that no decrease shall reduce the number of shares of Series B Preferred
Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise
of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible
into Series B Preferred Stock.


 






    A-1


     


    

 


Section 2.
Dividends and Distributions.


 


(a)
Subject to the prior and superior rights of the holders of any shares of any series of Preferred Stock (as defined in the Charter)
ranking prior and superior to the shares of Series B Preferred Stock with respect to dividends, the holders of shares of Series
B Preferred Stock, in preference to the holders of common stock, par value $0.01 per share, of the Corporation (the “Common
Stock”) shall be entitled to receive, when, as and if declared by the Board out of funds legally available for the purpose,
quarterly dividends payable in cash on the last business day of March, June, September and December in each year (each such date
being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of Series B Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (i) $1,000 or (ii) subject to the provision for adjustment hereinafter
set forth, 1,000 times the aggregate per share amount of all cash dividends, plus 1,000 times the aggregate per share amount (payable
in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision
of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series B Preferred Stock. In the event the Corporation at any time after April 30, 2020
(the “Rights Declaration Date”) (x) declares any dividend on Common Stock payable in shares of Common
Stock, (y) subdivides the outstanding Common Stock or (z) combines the outstanding Common Stock into a smaller number
of shares, then in each case the amount to which holders of shares of Series B Preferred Stock were entitled immediately prior
to such event under clause (ii) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding immediately prior to such event.


 


(b)
The Corporation shall declare a dividend or distribution on the Series B Preferred Stock as provided in Section 2(a)
immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common
Stock); provided, however, that, in the event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, subject
to the prior and superior rights of the holders of any shares of any series of Preferred Stock ranking prior to and superior to
the shares of Series B Preferred Stock with respect to dividends, a dividend of $1.00 per share on the Series B Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.


 


(c)
Dividends shall begin to accrue and be cumulative on outstanding shares of Series B Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series B Preferred Stock, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin
to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of shares of Series B Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares
of Series B Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board may
fix a record date for the determination of holders of shares of Series B Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be no more than sixty (60) days prior to the date fixed for the
payment thereof.


 






    A-2


     


    

 


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


 


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


 


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


 


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


 


Section 4.
Certain Restrictions.


 


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


 


(i)
declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any
shares of capital stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series B
Preferred Stock;


 


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


 






    A-3


     


    

 


(iii)
redeem or purchase or otherwise acquire for consideration shares of any capital stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series B Preferred Stock other than (A) such redemptions or purchases
that may be deemed to occur upon the exercise of stock options, warrants or similar rights or grant, vesting or lapse of restrictions
on the grant of any performance shares, restricted stock, restricted stock units or other equity awards to the extent that such
shares represent all or a portion of (x) the exercise or purchase price of such options, warrants or similar rights or other
equity awards or (y) the amount of withholding taxes owed by the holder of such award in respect of such grant, exercise,
vesting or lapse of restrictions; (B) such purchases necessary to satisfy the issuance of any shares upon the exercise or satisfy
the vesting and settlement of any options, warrants or similar rights or other equity awards pursuant to the terms of the Corporation’s
equity plans maintained for the benefit of its employees, directors and other service providers; or (C) the repurchase, redemption
or other acquisition or retirement for value of any such shares from employees, directors, former directors, consultants or former
consultants of the Corporation or their respective estate, spouse, former spouse or family member, pursuant to the terms of the
agreement pursuant to which such shares were acquired; provided, that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such parity stock in exchange for shares of any capital stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to the Series B Preferred Stock; or


 


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


 


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


 


Section 5.
Reacquired Shares. Any shares of Series B 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, subject to the conditions and restrictions on issuance set forth herein.


 


Section 6.
Liquidation, Dissolution or Winding Up.


 


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


 






    A-4


     


    

 


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


 


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


 


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


 


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


 


Section 9.
Ranking. The Series B Preferred Stock shall rank junior to all other series of the Corporation’s Preferred Stock
as to the payment of dividends and the distribution of assets, whether or not upon the dissolution, liquidation or winding up
of the Corporation, unless the terms of any such series provides otherwise.


 


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


 


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


 


*
* * * * * *


 




    A-5


     


    


 


IN
WITNESS WHEREOF, the Corporation has executed this Certificate of Designation as of April 30, 2020.


 


	 	GULFPORT ENERGY CORPORATION
	 	 
	 	By:	  
	 	 	Name:
	 	 	Title:



 





[Signature Page to Certificate of Designation]







 





     


     


    


 


Exhibit
B


 


[Form
of Rights Certificate]


 


	Certificate No. R-	_____________Rights




 


NOT
EXERCISABLE AFTER APRIL 29, 2021 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY OR SUCH OTHER EARLIER EXPIRATION TIME (AS
DEFINED IN THE TAX BENEFITS PRESERVATION PLAN). AS SET FORTH IN THE TAX BENEFITS PRESERVATION PLAN, THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.001 PER RIGHT, AND TO EXCHANGE ON THE TERMS SET FORTH IN THE TAX BENEFITS PRESERVATION
PLAN. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN “ACQUIRING PERSON” OR ANY “AFFILIATE”
OR “ASSOCIATE” OF AN “ACQUIRING PERSON” (AS SUCH TERMS ARE DEFINED IN THE TAX BENEFITS PRESERVATION PLAN)
AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS SHALL BECOME NULL AND VOID.


 


[THE
RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN “ACQUIRING
PERSON” OR AN “AFFILIATE” OR “ASSOCIATE” OF AN “ACQUIRING PERSON” (AS SUCH TERMS ARE
DEFINED IN THE TAX BENEFITS PRESERVATION PLAN). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY SHALL BECOME
NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]†


 


 






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



 






    B-1


     


    

 









Rights
Certificate


 


GULFPORT
ENERGY CORPORATION


 


This
certifies that ___________, or registered assigns, is the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of the Tax Benefits Preservation Plan, dated as of
April 30, 2020, as amended from time to time (the “Tax Benefits Preservation Plan”), by and between Gulfport
Energy Corporation, a Delaware corporation (the “Company”), and Computershare Trust Company, N.A., the rights
agent (and any successor rights agent, the “Rights Agent”), to purchase from the Company at any time prior
to the Expiration Time (as such term is defined in the Tax Benefits Preservation Plan at the office or offices of the Rights Agent
designated for such purpose, or its successors as Rights Agent, one one-thousandth of a fully paid, nonassessable share of Series
B Junior Participating Preferred Stock, par value $0.01 per share (the “Preferred Stock”), of the Company,
at an exercise price of $8.00 per one one-thousandth of a share (the “Exercise Price”), upon presentation and
surrender of this Rights Certificate with the Form of Election to Purchase and related Certificate properly completed and duly
executed. The number of Rights evidenced by this Rights Certificate (and the number of shares which may be purchased upon exercise
thereof) set forth above, and the Exercise Price per share set forth above, are the number and Exercise Price as of April 30,
2020, based on the Preferred Stock as constituted at such date. The Company reserves the right to require prior to the occurrence
of a Triggering Event (as such term is defined in the Tax Benefits Preservation Plan) that, upon any exercise of Rights, a number
of Rights be exercised so that only whole shares of Preferred Stock will be issued. Capitalized terms used and not defined herein
shall having the meanings specified in the Tax Benefits Preservation Plan.


 


Upon
the occurrence of a Flip-in Event, if the Rights evidenced by this Rights Certificate are Beneficially Owned by (1) an Acquiring
Person or a Related Person of any such Acquiring Person, (2) a transferee of any such Acquiring Person or Related Person
or (3) under certain circumstances specified in the Tax Benefits Preservation Plan, a transferee of a Person who, after such
transfer, became an Acquiring Person or a Related Person of such Acquiring Person, such Rights shall become null and void and
no holder hereof shall have any right with respect to such Rights from and after the occurrence of such Flip-in Event.


 


As
provided in the Tax Benefits Preservation Plan, the Exercise Price and the number and kind of shares of Preferred Stock or other
securities which may be purchased upon the exercise of the Rights evidenced by this Rights Certificate are subject to modification
and adjustment upon the happening of certain events, including Triggering Events.


 


This
Rights Certificate is subject to all of the terms, provisions and conditions of the Tax Benefits Preservation Plan, which terms,
provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Tax Benefits Preservation
Plan 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, which limitations of rights include the
temporary suspension of the exercisability of such Rights under the specific circumstances set forth in the Tax Benefits Preservation
Plan. Copies of the Tax Benefits Preservation Plan are on file at the office of the Company and are also available upon written
request to the Company.


 






    B-2


     


    

 










This
Rights Certificate, with or without other Rights Certificates, upon surrender at the offices of the Rights Agent designated for
such purpose, 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 one one-thousandths of a share of Preferred Stock as the Rights evidenced
by the Rights Certificates surrendered shall have entitled such holder to purchase. If this Rights Certificate shall be exercised
in part, the holder shall be entitled to receive upon surrender hereof another Rights Certificate or Rights Certificates for the
number of whole Rights not exercised.


 


Subject
to the Tax Benefits Preservation Plan, the Rights evidenced by this Rights Certificate may, in each case at the option of the
Company, be (1) redeemed by the Company at a Redemption Price of $0.001 per Right or (2) exchanged in whole or in part
for shares of Common Stock, par value $0.01 per share, of the Company. Immediately upon the action of the Board of Directors of
the Company authorizing redemption, the Rights shall terminate and the only right of the holders of Rights shall be to receive
the Redemption Price.


 


No
fractional shares of Preferred Stock shall be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions
which are integral multiples of one one-thousandth of a share of Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts), but in lieu thereof a cash payment shall be made, as provided in the Tax Benefits Preservation
Plan.


 


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


 


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


 


*
* * * * * *


 




    B-3


     


    


 


WITNESS
the facsimile signature of the proper officer of the Company.


 


Dated
as of _______ __, 20__


 


	 	GULFPORT ENERGY CORPORATION
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:




 


	Countersigned:	 
	 	 
	COMPUTERSHARE TRUST COMPANY, N.A.	 
	 	 
	By:	 	 
	 	Name:	 
	 	Title:	 




 






    B-4


     


    


 


[Form
of Reverse Side of Rights Certificate]


 


FORM
OF ASSIGNMENT


 


(To
be executed by the registered holder if such


 


holder
desires to transfer the Rights Certificate.)


 


FOR
VALUE RECEIVED ________________________________________ hereby sells, assigns and transfers unto ___________________________________________________


 


_____________________________________________________________________________________



 


(Please print name and address of transferee)





 


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


 


Dated:
______________, _______


 


	 	________________________________________________
	 	Signature


 


Signature
Guaranteed:


 




    B-5


     


    


 


CERTIFICATE


 


The
undersigned hereby certifies by checking the appropriate boxes that:


 


(1)
this Rights Certificate [ ] is [ ] is not being sold, assigned and transferred by or on behalf of a Person who is or was an Acquiring
Person or a Related Person of an Acquiring Person (as such terms are defined pursuant to the Tax Benefits Preservation Plan);
and


 


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


 


	Dated:___________,_______	________________________________________________
	 	Signature




 


Signature
Guaranteed:


 




    B-6


     


    


 


NOTICE


 


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


 


In
the event the certification set forth above is not completed, the Company shall deem the Beneficial Owner of the Rights evidenced
by this Rights Certificate to be an Acquiring Person or a Related Person thereof (as such terms are defined in the Tax Benefits
Preservation Plan) and the Election to Purchase will not be honored.


 




    B-7


     


    


 


FORM
OF ELECTION TO PURCHASE


 


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


 


TO:
GULFPORT ENERGY CORPORATION


 


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


 


Please
insert social security or other identifying number: ______________________


 


________________________________________________________________ 


                                       (Please print name and address)


 


________________________________________________________________


 


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


 


Please
insert social security or other identifying number: ______________________


 


_________________________________________________________________

                                       (Please print name and address)


 


_________________________________________________________________


 


Dated:
______________, _______


 


	 	_____________________________
	 	Signature




 


Signature
Guaranteed:


 




    B-8


     


    


 


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 a Related Person of an Acquiring Person (as such terms are defined pursuant to the Tax Benefits Preservation
Plan); and


 


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


 


	Dated: ______________, _______	________________________________________________
	 	Signature




 


Signature
Guaranteed:


 




    B-9


     


    


 


NOTICE


 


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


 


In
the event the certification set forth above is not completed, the Company shall deem the Beneficial Owner of the Rights evidenced
by this Rights Certificate to be an Acquiring Person or a Related Person thereof (as such terms are defined in the Tax Benefits
Preservation Plan) and, in the case of an Assignment, shall affix a legend to that effect on any Rights Certificates issued in
exchange for this Rights Certificate.


 




    B-10


     


    


 


Exhibit
C


 


SUMMARY
OF RIGHTS TO PURCHASE PREFERRED STOCK


 


On
April 30, 2020, the board of directors (the “Board”) of Gulfport Energy Corporation (the “Company”)
adopted a tax benefits preservation plan and declared a dividend distribution of one right (a “Right”) for
each outstanding share of Company common stock, par value $0.01 per share (the “Common Stock”) to stockholders
of record at the close of business on May 15, 2020 (the “Record Date”). Each Right entitles its holder, under
the circumstances described below, to purchase from the Company one one-thousandth of a share of Series B Junior Participating
Preferred Stock of the Company, par value $0.01 per share (the “Preferred Stock”), at an exercise price of
$8.00 per Right, subject to adjustment. The description and terms of the Rights are set forth in the tax benefits preservation
plan (the “Tax Benefits Preservation Plan”), dated as of April 30, 2020, between the Company and Computershare
Trust Company, N.A., as rights agent (and any successor rights agent, the “Rights Agent”).


 


The
Company adopted the Tax Benefits Preservation Plan in order to protect shareholder value against a possible limitation on the
Company’s ability to use its net operating losses (the “NOLs”) and certain other tax benefits to reduce
potential future U.S. federal income tax obligations. The NOLs are a valuable asset to the Company, which may inure to the benefit
of the Company and its stockholders. However, if the Company experiences an “ownership change,” as defined in Section
382 of the Internal Revenue Code of 1986, as amended (the “Code”), its ability to fully utilize the NOLs and
certain other tax benefits will be substantially limited and the timing of the usage of the NOLs and such other benefits could
be substantially delayed, which could significantly impair the value of those assets. Generally, an “ownership change”
occurs if the percentage of the Company’s stock owned by one or more of its “five-percent shareholders” (as
such term is defined in Section 382 of the Code) increases by more than 50 percentage points over the lowest percentage of stock
owned by such stockholder or stockholders at any time over a three-year period. The Tax Benefits Preservation Plan is intended
to prevent against such an “ownership change” by deterring any person or group, together with its affiliates and associates,
from acquiring beneficial ownership of 4.9% or more of the Company’s securities.


 


The
Rights. Initially, the Rights are associated with shares of Common Stock and evidenced by Common Stock certificates or, in
the case of uncertificated shares of Common Stock, the book-entry account that evidences record ownership of such shares, which
shall contain a notation incorporating the Tax Benefits Preservation Plan by reference, and are transferable with and only with
the underlying shares of Common Stock. New Rights shall attach to any shares of Common Stock that become outstanding after the
Record Date and prior to the earlier of the Distribution Time (as defined below) and the Expiration Time (as defined below).


 


Separation
and Distribution of Rights; Exercisability. Subject to certain exceptions, the Rights become exercisable and trade separately
from Common Stock only upon the “Distribution Time,” which occurs upon the earlier of:


 


		●	the
close of business on the tenth (10th) day after the “Stock Acquisition Date,” which is (a) the first date
of public announcement that a person or group of affiliated or associated persons (with certain exceptions, an “Acquiring
Person”) has acquired, or obtained the right or obligation to acquire, beneficial ownership of 4.9% or more of the outstanding
shares of Common Stock (with certain exceptions) or (b) such other date, as determined by the Board, on which a person or group
has become an Acquiring Person, or



 


		●	the
close of business on the tenth (10th) business day (or later date as may be determined by the Board prior to such time as
any person or group becomes an Acquiring Person) following the commencement of a tender offer or exchange offer which, if consummated,
would result in a person or group becoming an Acquiring Person.



 






    C-1


     


    

 


Any
existing stockholder or group that beneficially owns 4.9% or more of Common Stock shall be grandfathered at its current ownership
level, but the Rights shall not be exercisable if, at any time after the announcement of the Tax Benefits Preservation Plan, such
stockholder or group increases its ownership of Common Stock by one share of Common Stock. Certain synthetic interests in securities
created by derivative positions, whether or not such interests are considered to be ownership of the underlying Common Stock or
are reportable for purposes of Regulation 13D of the Securities Exchange Act of 1934, as amended, are treated as beneficial ownership
of the number of shares of Common Stock equivalent to the economic exposure created by the derivative position, to the extent
actual shares of Common Stock are directly or indirectly held by counterparties to the derivatives contracts.


 


Until
the earlier of the Distribution Time and the Expiration Time, the surrender for transfer of any shares of Common Stock shall also
constitute the transfer of the Rights associated with those shares. As soon as practicable after the Distribution Time, separate
rights certificates shall be mailed to holders of record of Common Stock as of the close of business on the Distribution Time.
From and after the Distribution Time, the separate rights certificates alone shall represent the Rights. Except as otherwise provided
in the Tax Benefits Preservation Plan, only shares of Common Stock issued prior to the Distribution Time will be issued with Rights.


 


The
Rights are not exercisable until the Distribution Time.


 


Expiration
Time. The Rights shall expire on the earliest to occur of (1) the close of business on April 29, 2021 (the “Final
Expiration Time”), (2) the time at which the Rights are redeemed or exchanged by the Company (as described below), (3)
upon the closing of any merger or other acquisition transaction involving the Company pursuant to a merger or other acquisition
agreement that has been approved by the Board before any person or group becomes an Acquiring Person and (4) the time at which
the Board determines that the NOLs are utilized in all material respects or that an ownership change under Section 382 would not
adversely impact in any material respect the time period in which the Company could use the NOLs or materially impair the amount
of NOLs that could be used by the Company in any particular time period, for applicable tax purposes (the earliest of (1), (2),
(3) and (4) being herein referred to as the “Expiration Time”).


 


Flip-in
Event. In the event that any person or group (other than certain exempt persons) becomes an Acquiring Person (a “Flip-in
Event”), each holder of a Right (other than any Acquiring Person and certain related parties, whose Rights automatically
become null and void) shall have the right to receive, upon exercise, shares of Common Stock having a value equal to two times
the exercise price of the Right.


 






    C-2


     


    

 


For
example, at an exercise price of $8.00 per Right, each Right not owned by an Acquiring Person (or by certain related parties)
following a Flip-in Event would entitle its holder to purchase $16.00 worth of shares of Common Stock (or other consideration,
as noted above) for $8.00. Assuming that Common Stock had a per share value of $2.23 at that time, the holder of each valid Right
would be entitled to purchase 7.17 shares of Common Stock for $1.12 per share.


 


Flip-over
Event. In the event that, at any time following the Stock Acquisition Date, any of the following occurs (each, a “Flip-over
Event”):


 


		●	the
Company consolidates with, or merges with and into, any other entity, and the Company is not the continuing or surviving entity;



 


		●	any
entity engages in a share exchange with or consolidates with, or merges with or into, the Company, and the Company is the continuing
or surviving entity and, in connection with such share exchange, consolidation or merger, all or part of the outstanding shares
of Common Stock are changed into or exchanged for stock or other securities of any other entity or cash or any other property;
or



 


		●	the
Company sells or otherwise transfers, in one transaction or a series of related transactions, fifty percent (50%) or more of the
Company’s assets, cash flow or earning power,



 


each
holder of a Right (except Rights which previously have been voided as described above) will have the right to receive, upon exercise,
common stock of the acquiring company having a value equal to two times the exercise price of the Right.


 


Preferred
Share Provisions. Each share of Preferred Stock, if issued: shall not be redeemable, shall entitle the holder thereof, when,
as and if declared, to quarterly dividend payments equal to the greater of $1,000 per share and 1,000 times the amount of all
cash dividends plus 1,000 times the amount of non-cash dividends or other distributions paid on one share of Common Stock, shall
entitle the holder thereof to receive $1,000 plus accrued and unpaid dividends per share upon liquidation, shall have the same
voting power as 1,000 shares of Common Stock and, if shares of Common Stock are exchanged via merger, consolidation or a similar
transaction, shall entitle the holder thereof to a per share payment equal to the payment made on 1,000 shares of Common Stock.


 


Anti-dilution
Adjustments. The exercise price payable and the number of shares of Preferred Stock or other securities or property issuable,
upon exercise of the Rights are subject to adjustment from time to time to prevent dilution:


 


		●	in
the event of a stock dividend on, or a subdivision, combination or reclassification of, the Preferred Stock,



 


		●	if
holders of the Preferred Stock are granted certain rights, options or warrants to subscribe for Preferred Stock or convertible
securities at less than the current market price of the Preferred Stock or



 


		●	upon
the distribution to holders of the Preferred Stock of evidences of indebtedness or assets (excluding regular quarterly cash dividends)
or of subscription rights or warrants (other than those referred to above).



 






    C-3


     


    

 


With
certain exceptions, no adjustment in the exercise price shall be required until cumulative adjustments amount to at least one
percent (1%) of the exercise price. No fractional shares of Preferred Stock shall be issued and, in lieu thereof, an adjustment
in cash shall be made based on the market price of the Preferred Stock on the last trading day prior to the date of exercise.


 


Redemption;
Exchange. At any time prior to the earlier of (1) the Stock Acquisition Date and (2) the Final Expiration Time, the Company
may redeem the Rights in whole, but not in part, at a price of $0.001 per Right (subject to adjustment and payable in cash, Common
Stock or other consideration deemed appropriate by the Board). Immediately upon the action of the Board authorizing any redemption,
the Rights shall terminate and the only right of the holders of Rights shall be to receive the redemption price. At any time after
any person or group becomes an Acquiring Person and prior to the acquisition by the Acquiring Person of fifty percent (50%) or
more of the outstanding shares of Common Stock, the Company may exchange the Rights (other than Rights owned by the Acquiring
Person, which shall have become null and void), in whole or in part, at an exchange ratio of one share of Common Stock, or one
one-thousandth of a share of Preferred Stock (or of a share of a class or series of the Company’s preferred stock having
equivalent rights, preferences and privileges), per Right (subject to adjustment).


 


Exemption
Requests. The Board may exempt certain persons from the 4.9% ownership threshold if the Board determines that their beneficial
ownership of more than 4.9% of Common Stock will not jeopardize the availability of the Company's NOLs. A person may also request
that the Board exempt a transaction that would cause such person to become the beneficial owner of 4.9% or more of Common Stock.


 


No
Rights as Stockholder. Until a Right is exercised, its holder shall have no rights as a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends.


 


Amendment
of the Tax Benefits Preservation Plan. The Company and the Rights Agent may from time to time amend or supplement the Tax
Benefits Preservation Plan without the consent of the holders of the Rights. However, on or after the Stock Acquisition Date,
no amendment can materially adversely affect the interests of the holders of the Rights (other than the Acquiring Person, certain
related parties thereof or any transferee of the foregoing persons).


 


Additional
Information. A copy of the Tax Benefits Preservation Plan has been filed with the Securities and Exchange Commission as an
exhibit to a registration statement on Form 8-A and a current report on Form 8-K dated April 30, 2020. A copy of the Tax Benefits
Preservation Plan is also available free of charge from the Company.


 


*
* * * *


 


This
description of the Rights does not purport to be complete and is qualified in its entirety by reference to the Tax Benefits Preservation
Plan, which is incorporated herein by reference.


 


 




C-4