EX-4.1



 





Exhibit 4.1




NATIONAL FUEL GAS COMPANY




and




THE BANK OF NEW YORK, Rights Agent




RIGHTS AGREEMENT




Amended and Restated as of September 1, 2007




 









 








TABLE OF CONTENTS




Page




	 	 	 	 	 
	Section 1. Certain Definitions
	 	 	2	 
	 
	 
	Section 2. Appointment of Rights Agent
	 	 	6	 
	 
	 
	Section 3. Issue of Right Certificates
	 	 	6	 
	 
	 
	Section 4. Form of Right Certificates
	 	 	8	 
	 
	Section 5. Countersignature and Registration
	 	 	8	 
	 
	Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates
	 	 	9	 
	 
	Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights
	 	 	10	 
	 
	Section 8. Cancellation and Destruction of Right Certificates
	 	 	11	 
	 
	Section 9. Reservation and Availability of Shares of Common Stock
	 	 	12	 
	 
	Section 10. Common Stock Record Date
	 	 	13	 
	 
	Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights
	 	 	13	 
	 
	Section 12. Certificate of Adjusted Purchase Price or Number of Shares
	 	 	20	 
	 
	Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power
	 	 	20	 
	 
	Section 14. Fractional Rights and Fractional Shares
	 	 	22	 
	 
	Section 15. Rights of Action
	 	 	23	 
	 
	Section 16. Agreement of Right Holders
	 	 	23	 
	 
	Section 17. Right Certificate Holder Not Deemed a Stockholder
	 	 	24	 
	 
	Section 18. Concerning the Rights Agent
	 	 	24	 
	 
	Section 19. Merger or Consolidation or Change of Name of Rights Agent
	 	 	25	 
	 
	Section 20. Duties of Rights Agent
	 	 	26	 
	 
	Section 21. Change of Rights Agent
	 	 	28	 
	 
	Section 22. Issuance of New Right Certificates
	 	 	28	 
	 
	Section 23. Redemption and Termination
	 	 	29	 






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Page





	 	 	 	 	 
	Section 24. Exchange
	 	 	30	 
	 
	Section 25. Notice of Certain Events
	 	 	31	 
	 
	Section 26. Notices
	 	 	31	 
	 
	Section 27. Supplements and Amendments
	 	 	32	 
	 
	Section 28. Successors; Assignment
	 	 	33	 
	 
	Section 29. Determinations and Actions by the Board of Directors
	 	 	33	 
	 
	Section 30. Benefits of This Agreement
	 	 	33	 
	 
	Section 31. Severability
	 	 	33	 
	 
	Section 32. Governing Law
	 	 	34	 
	 
	Section 33. Counterparts
	 	 	34	 
	 
	Section 34. Descriptive Headings
	 	 	34	 
	 
	 	 	 	 
	Exhibit A - Form of Right Certificate 
	 	 	A-1	 
	Form of Assignment 
	 	 	A-4	 
	Certificate 
	 	 	A-5	 
	Notice 
	 	 	A-6	 
	Form of Election to Purchase 
	 	 	A-7	 
	Exhibit B - Summary of Rights to Purchase Common Stock 
	 	 	B-1	 







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AMENDED AND RESTATED RIGHTS AGREEMENT



This AMENDED AND RESTATED RIGHTS AGREEMENT, dated as of September 1, 2007 (the “Agreement”),
between NATIONAL FUEL GAS COMPANY, a New Jersey corporation (the “Company”), and THE BANK OF NEW
YORK, a banking corporation organized under the laws of the State of New York (the “Rights Agent”).




W I T N E S S E T H




     WHEREAS, the Company and HSBC Bank USA, National Association, as successor in interest to
Marine Midland Bank (the “Original Rights Agent”), have heretofore entered into that certain Rights
Agreement, dated as of June 12, 1996 (the “Original Agreement”); and



     WHEREAS, the Board of Directors of the Company on March 19, 1996 (the “Rights Dividend
Declaration Date”) authorized and declared a dividend distribution (the “Distribution”) of one
Right for each share of Common Stock, $1.00 par value, of the Company (the “Common Stock”)
outstanding at the close of business on July 31, 1996 (the “Record Date”), the record date
established by the Board of Directors on June 13, 1996; and



     WHEREAS, on the Rights Dividend Declaration Date, the Board of Directors further authorized
and directed the issuance of one Right (as such number may be adjusted pursuant to the provisions
of Section 11(i) hereof) for each share of Common Stock issued (whether originally issued or
delivered from the Company’s treasury stock) between the Record Date and the earlier of the
Distribution Date or the Expiration Date (as such terms are hereinafter defined), each Right
initially representing the right to purchase one-half of one share of Common Stock, upon the terms
and subject to the conditions hereinafter set forth (the “Rights”); and



     WHEREAS, the Company and the Original Rights Agent entered into that certain Amended and
Restated Rights Agreement, dated as of April 30, 1999, as further amended and restated on June 8,
2007 (the “Amended and Restated Agreement”); and



     WHEREAS, pursuant to Section 27 of the Amended and Restated Agreement, the Company is
authorized to amend the Amended and Restated Agreement from time to time and, so long as its
interests are not adversely affected thereby, the Rights Agent has undertaken to execute any such
amendment; and



     WHEREAS, the Board of Directors of the Company has determined that it is necessary and
desirable that the Amended and Restated Agreement be amended in certain respects; and



     WHEREAS, the Rights Agent has determined that the amendments to the Amended and Restated
Agreement proposed by the Company and reflected in this Agreement (i) are in compliance with the
terms of Section 27 of the Amended and Restated Agreement and (ii) will not adversely affect its
interests thereunder; and



 









 





     WHEREAS, on September 7, 2001, the Company effectuated a two-for-one split of its Common Stock
and in connection therewith executed a Certificate of Amendment pursuant to Section 27 as a result
of which (i) the purchase price per share of Common Stock upon the exercise of the Rights was
adjusted pursuant to Section 11(a)(i) to $65.00 (being $32.50 per half share) and (ii) the price at
which the Rights may be redeemed was adjusted pursuant to Section 23(a) to $.005 per Right; and



     WHEREAS, effective September 1, 2007, the Original Rights Agent resigned as Rights Agent
hereunder and, pursuant to Section 21 of the Amended and Restated Agreement, the Company
substituted The Bank of New York as successor Rights Agent; and



     WHEREAS, the Company and the Rights Agent have agreed that, for ease and convenience of
reference, it is desirable to incorporate such amendments into an instrument which restates in its
entirety the Amended and Restated Agreement, as so amended;



     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:



     (a) “Acquiring Person” shall mean any Person (as such term is hereinafter defined) who or
which, together with all Affiliates and Associates (as such terms are hereinafter defined) of such
Person, shall be the Beneficial Owner (as such term is hereinafter defined) of securities of the
Company constituting a Substantial Block (as such term is hereinafter defined), but shall not
include (i) the Company, any Subsidiary (as such term is hereinafter defined) of the Company, any
employee benefit plan of the Company or of any Subsidiary of the Company or any Person organized,
appointed or established by the Company or any Subsidiary of the Company for or pursuant to the
terms of any such plan, (ii) any Person who becomes the Beneficial Owner of a Substantial Block of
the shares of Voting Stock then outstanding as a result of a reduction in the number of shares of
Voting Stock outstanding due to the repurchase of shares of Voting Stock by the Company unless and
until such Person, after becoming aware that such Person has become the Beneficial Owner of a
Substantial Block of the then outstanding shares of Voting Stock, acquires beneficial ownership of
additional shares of Voting Stock representing one percent (1%) or more of the shares of Voting
Stock then outstanding or (iii) any Person who otherwise would be an Acquiring Person but whom the
Board of Directors determines, in good faith, to have become such inadvertently (including, without
limitation, because (A) such person was unaware that he or it was the Beneficial Owner of a
percentage of Common Stock that otherwise would cause such person to be an Acquiring Person, or (B)
such Person was aware of the extent to which he or it is the Beneficial Owner of Common Stock but
had no actual knowledge of the consequences of being such a Beneficial Owner under this Agreement)
and without any intention of changing or influencing control of the Company, and if such Person,
after being advised of such determination and within a period of time set by the Board of
Directors, divests himself or itself of a sufficient number of shares of Common Stock so that such
Person would no longer be the Beneficial Owner of a Substantial Block of the Common Stock of the
Company then outstanding, then such Person shall not be deemed to be or to have become an Acquiring
Person for any purposes of this
Agreement; and during any period of time (x) prior to the time the Board of Directors shall
have



2









 







become aware that such Person would have become an Acquiring Person but for the provisions of
this clause (iii), (y) during which the Board of Directors is making the determination called for
under this clause (iii), and (z) during which such Person is divesting himself or itself of a
sufficient number of shares of Common Stock so that such Person no longer would be the Beneficial
Owner of a Substantial Block of the Common Stock of the Company then outstanding, such Person shall
not be deemed to be or to have become an Acquiring Person for any purpose under this Agreement.



     (b) “Act” shall have the meaning set forth in Section 9(c) hereof.



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



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



     (e) “Agreement” shall have the meaning set forth in the introduction hereto.



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




     (i) which such Person or any of such Person’s Affiliates or Associates has, directly or
indirectly, the right to acquire (whether such right is exercisable immediately or only
after the passage of time or upon the occurrence of an event) pursuant to any agreement,
arrangement or understanding (whether or not in writing), or upon the exercise of conversion
rights, exchange rights, rights, warrants or options, or otherwise; provided, however, that
a Person shall not be deemed the “Beneficial Owner” of, or to “beneficially own,” (1)
securities tendered pursuant to a tender or exchange offer made by such Person or any of
such Person’s Affiliates or Associates until such tendered securities are accepted for
purchase or exchange, (2) securities issuable upon exercise of Rights at any time prior to
the occurrence of a Triggering Event (as such term is hereinafter defined), or (3)
securities issuable upon exercise of Rights from and after the occurrence of a Triggering
Event, which Rights were acquired by such Person or any of such Person’s Affiliates or
Associates prior to the Distribution Date or pursuant to Section 3(a) hereof (“Original
Rights”) or pursuant to Section 11(i) or Section 22 hereof in connection with an adjustment
made with respect to Original Rights; or




     (ii) which such Person or any of such Person’s Affiliates or Associates has, directly
or indirectly, the right to vote or dispose of or has “beneficial ownership” of (as
determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange
Act), including pursuant to any agreement, arrangement or understanding (whether or not in
writing); provided, however, that a Person shall not be deemed the “Beneficial Owner” of, or
to “beneficially own,” any security under this subparagraph (ii) if the agreement,
arrangement or understanding to vote such security (1) arises solely from a revocable proxy
given in response to a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations of the Exchange Act and (2)



3









 






is not then reportable on Schedule 13D under the Exchange Act (or any comparable or
successor report); or




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


Notwithstanding the foregoing, nothing contained in this definition shall cause a Person ordinarily
engaged in business as an underwriter of securities to be the “Beneficial Owner” of, or to
“beneficially own,” any securities acquired in a bona fide firm commitment underwriting pursuant to
an underwriting agreement with the Company.




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



     (h) “Certification” shall have the meaning set forth in Section 18 hereof.



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



     (j) “Common Stock,” when used with reference to the Company, shall mean the shares of common
stock, $1.00 par value, of the Company. “Common Stock,” when used with reference to any Person
other than the Company, shall mean either the capital stock with the greatest voting power of such
other Person or, if such Person is a Subsidiary of another Person, the equity securities or other
equity interest having power to control or direct the management of such Person.



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



     (l) “Company” shall have the meaning set forth in the introduction hereto.



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



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



     (o) “Distribution” shall have the meaning set forth in the recitals hereto.



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



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



4









 





     (r) “Exchange Act” shall have the meaning set forth in the definitions of “Affiliate” and
“Associate” above.



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



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



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



     (v) [Intentionally omitted]



     (w) “Original Rights” shall have the meaning set forth in the definition of “Beneficial Owner”
above.



     (x) “Person” shall mean any individual, firm, corporation, limited liability company,
partnership (general, limited or limited liability), trust or other entity, and shall include any
successor (by merger or otherwise) of such entity.



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



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



     (aa) “Record Date” shall have the meaning set forth in the recitals hereto.



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



     (cc) “Right Certificate” shall have the meaning set forth in Section 3(a) hereof.



     (dd) “Rights” shall have the meaning set forth in the recitals hereto.



     (ee) “Rights Agent” shall have the meaning set forth in the introduction hereto.



     (ff) “Rights Dividend Declaration Date” shall have the meaning set forth in the recitals
hereto.



     (gg) “Section 11(a)(ii) Event” shall mean any event described in Section 11(a)(ii).



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



     (ii) “Section 13 Event” shall mean any event described in Section 13(a).



     (jj) “Shares Acquisition Date” shall mean the first date of public announcement (which, for
purposes of this definition, includes a report filed pursuant to Section 13(d) of the Exchange Act)
by the Company or an Acquiring Person that an Acquiring Person has become such.



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



5









 





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



     (mm) “Substantial Block” shall mean a number of shares of Voting Stock which have 10% or more
of the aggregate voting power of all outstanding shares of Voting Stock.



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



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



     (pp) “Trading Day” shall have the meaning set forth in Section 11(d) hereof.



     (qq) “Triggering Event” shall mean any Section 11(a)(ii) Event or Section 13 Event.



     (rr) “Voting Stock,” as of the date of any determination, shall mean the shares of Common
Stock, $1.00 par value, then outstanding and any other shares of capital stock of the Company which
are entitled to vote generally in the election of directors.



     Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent to
act as agent for the Company in accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Company shall act as Co-Rights Agent and may from time
to time appoint such other Co-Rights Agents as it may deem necessary or desirable upon ten calendar
days’ written notice to the Rights Agent. In no event shall the Rights Agent have any duty to
supervise or in any way be liable for such Co-Rights Agents.



     Section 3. Issue of Right Certificates. (a) Until the earlier of (i) the close of business
on the tenth calendar day after the Shares Acquisition Date (or, if the tenth day after the Shares
Acquisition Date occurs before the Record Date, the close of business on the Record Date) or (ii)
the close of business on the tenth business day (or such later date as the Board shall determine)
after the date of the commencement of, or of the first public announcement of the intention of any
Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company or any Person organized, appointed or established by
the Company or any Subsidiary of the Company for or pursuant to the terms of any such plan) to
commence, a tender or exchange offer if, upon consummation thereof, such Person would become an
Acquiring Person (the earlier of the dates in subsection (i) and (ii) hereof being herein referred
to as the “Distribution Date”) (x) the Rights will be evidenced (subject to the provisions of
paragraph (b) of this Section 3) by the certificates for the Common Stock registered in the names
of the holders of the Common Stock (which certificates for Common Stock shall be deemed also to be
Right Certificates) and not by separate Right Certificates, and (y) the right to receive Right
Certificates will be transferable only
in connection with the transfer of Common Stock. As soon as practicable after receipt by the
Rights Agent of written notice from the Company of the Distribution Date, the Rights Agent, at the
Company’s expense, will send by first-class, postage prepaid mail, to each record holder of Common
Stock as of the close of



6









 







business on the Distribution Date, at the address of such holder shown on
the records of the Company, a Right Certificate, in substantially the form of Exhibit A hereto (a
“Right Certificate”), evidencing one Right for each share of Common Stock so held, subject to
adjustment as provided herein. As of the Distribution Date, the Rights will be evidenced solely by
such Right Certificates.



     (b) As soon as practicable following the Record Date, the Company will send a copy of a
Summary of Rights to Purchase Common Stock, in substantially the form attached hereto as Exhibit B
(the “Summary of Rights”), by first-class, postage prepaid mail, to each record holder of Common
Stock as of the close of business on the Record Date, at the address of such holder shown on the
records of the Company. With respect to certificates for Common Stock outstanding as of the Record
Date, until the Distribution Date, the Rights will be evidenced by such certificates for Common
Stock, and the registered holders of Common Stock shall also be the registered holders of the
associated Rights. Until the Distribution Date (or earlier redemption or expiration of the
Rights), the surrender for transfer of any of the certificates for Common Stock outstanding on the
Record Date shall also constitute the transfer of the Rights associated with Common Stock
represented by such certificate.



     (c) Rights shall be issued in respect of all shares of Common Stock issued after the Record
Date but prior to the earlier of the Distribution Date or the Expiration Date (as such term is
defined in Section 7), or, in certain circumstances provided in Section 22 hereof, after the
Distribution Date. Certificates representing such shares of Common Stock shall have impressed on,
printed on, written on or otherwise affixed to them the following legend:




     This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in a Rights Agreement between National Fuel Gas Company and
Marine Midland Bank (subsequently known as HSBC Bank USA) dated as of June 12, 1996,
as amended or restated from time to time (the “Rights Agreement”), the terms of
which are hereby incorporated herein by reference and a copy of which is on file at
the principal executive offices of National Fuel Gas Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will be evidenced
by separate certificates and will no longer be evidenced by this certificate.
National Fuel Gas Company will mail to the holder of this certificate a copy of the
Rights Agreement as in effect on the date of mailing without charge within five
Business Days after receipt of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights beneficially owned by an
Acquiring Person may become null and void.



          After the due execution of any supplement or amendment to this Agreement in accordance with
the terms hereof, the reference to this Agreement in the foregoing legend shall mean the Agreement
as so supplemented or amended. Until the Distribution Date, the Rights associated with Common
Stock represented by certificates containing the foregoing legend shall be evidenced by such
certificates alone, and the surrender for transfer of any of such certificates shall also
constitute the transfer of the Rights associated with Common Stock represented by such
certificates. In the event that the Company purchases or acquires any shares of Common Stock
after the Record Date but prior to the Distribution Date, any Rights associated with such Common
Stock shall be deemed canceled and retired so that the Company shall not be entitled to exercise
any Rights associated with the shares of Common Stock which are no longer outstanding. The



7









 







failure
to print the foregoing legend on any such Common Stock certificate or any other defect therein
shall not affect in any manner whatsoever the application or interpretation of the provisions of
Section 7(e) hereof.



     Section 4. Form of Right Certificates. (a) The Right Certificates (and the forms of
election to purchase shares and of assignment to be printed on the reverse thereof) shall be
substantially the same as Exhibit A hereto and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this 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 usage. The Right Certificates shall be in machine-printable format and in a form reasonably
satisfactory to the Rights Agent. Subject to the provisions of Section 11 and Section 22 hereof,
the Right Certificates, whenever distributed, shall be dated as of the Record Date (or, with
respect to Rights appurtenant to shares of Common Stock issued or, in the case of Company treasury
stock, delivered thereafter, dated as of the date of issuance or delivery of such shares), shall
show the date of countersignature, and on their face shall entitle the holders thereof to purchase
such number of shares of Common Stock (or following a Triggering Event, other securities, cash or
other assets, as the case may be) as shall be set forth therein at the price set forth therein
(such exercise price per share of Common Stock, the “Purchase Price”), but the number of such
shares and the Purchase Price shall be subject to adjustment as provided herein.



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




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



     Section 5. Countersignature and Registration. The Right Certificates shall be executed on
behalf of the Company by one of its authorized officers either manually or by



8









 







facsimile signature.
The Right Certificates shall be countersigned by an authorized signatory of the Rights Agent either
manually or by facsimile signature and shall not be valid for any purpose unless so countersigned.
In case any officer of the Company who shall have signed any of the Right Certificates shall cease
to be such officer of the Company before countersignature by the Rights Agent and issuance and
delivery by the Company, such Right Certificates, nevertheless, may be countersigned by the Rights
Agent, issued and delivered with the same force and effect as though the person who signed such
Right Certificates had not ceased to be such officer of the Company; and any Right Certificate may
be signed on behalf of the Company by any person who, at the actual date of the execution of such
Right Certificate, shall be a proper officer of the Company to sign such Right Certificate,
although at the date of the execution of this Rights Agreement any such person was not such an
officer.



     In case any authorized signatory of the Rights Agent who shall have countersigned any of the
Right Certificates shall cease to be such signatory before delivery by the Company, such Right
Certificates, nevertheless, may be issued and delivered by the Company with the same force and
effect as though the person who countersigned such Right Certificates had not ceased to be such
signatory; and any Right Certificates may be countersigned on behalf of the Rights Agent by any
person who, at the actual date of the countersignature of such Right Certificate, shall be a proper
signatory of the Rights Agent to countersign such Right Certificate, although at the date of the
execution of this Rights Agreement any such person was not such a signatory.



     Following the Distribution Date, the Rights Agent will keep or cause to be kept, at its office
designated for such purpose, books for registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the respective holders of the Right
Certificates issued hereunder, the number of Rights evidenced on its face by each of the Right
Certificates, the date of each of the Right Certificates and the date of countersignature of each
of the Right Certificates.



     Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates. Subject to the provisions of Section 14 hereof,
at any time after the close of business on the Distribution Date, and at or prior to the close of
business on the Expiration Date, any Right Certificate or Right Certificates (other than any Right
Certificate or Rights Certificates representing Rights that may have been exchanged pursuant to
Section 24 hereof) may be transferred, split up, combined or exchanged for another Right
Certificate or Right Certificates, entitling the registered holder to purchase a like number of
shares of Common Stock (or following a Triggering Event, other securities, cash or other assets, as
the case may be) as the Right Certificate or Right Certificates surrendered then entitled such
holder (or, in the case of a transfer, such former holder) to purchase. Any registered holder
desiring to transfer, split up, combine or
exchange any Right Certificate or Right Certificates shall make such request in writing delivered
to the Rights Agent, and shall surrender the Right Certificate or Right Certificates to be
transferred, split up, combined or exchanged at the office of the Rights Agent designated for such
purpose, along with a signature guarantee and such other and further documentation as the Rights
Agent may reasonably request. Neither the Rights Agent nor the Company shall be obligated to take
any action whatsoever with respect to the transfer of any such surrendered Right Certificate until
the registered holder shall have completed and signed the certificate contained in the form of
assignment on the reverse side of such Right Certificate and shall have provided such additional
evidence, as the Company shall reasonably request, of the



9









 







identity of the Beneficial Owner,
Affiliates or Associates of such Beneficial Owner or holder, or of any other Person with which such
holder or any of such holder’s Affiliates or Associates has any agreement, arrangement or
understanding (whether or not in writing) for the purpose of acquiring, holding, voting or
disposing of securities of the Company. Thereupon the Rights Agent shall, subject to Section 14
and Section 20(k) hereof, countersign and deliver to the Person entitled thereto a Right
Certificate or Right Certificates, as the case may be, as so requested. The Company may require
payment from a Right Certificates holder 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
Right Certificates.



     Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to them
of the loss, theft, destruction or mutilation of a Right Certificate, and, in case of loss, theft
or destruction, of indemnity or security reasonably satisfactory to them, along with a signature
guarantee and such other and further documentation as the Rights Agent may reasonably request, and
if requested by the Company, 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 Right
Certificate if mutilated, the Company will make and deliver a new Right Certificate of like tenor
to the Rights Agent for delivery to the registered owner in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.



     Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights. (a) Subject to
Section 7(e) hereof, the registered holder of any Right Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein, including, without limitation, the
restrictions on exercisability set forth in Sections 9 (c), 11 (a) (iii), 23 (a) and 24 (b) hereof)
in whole or in part at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof duly executed, to
the Rights Agent at the designated office of the Rights Agent, together with payment of the
aggregate Purchase Price for the total number of shares of Common Stock (or other securities, cash
or other assets, as the case may be) as to which the Rights are then exercisable, at or prior to
the earliest of (i) the close of business on July 31, 2008 (the “Final Expiration Date”), (ii) the
time at which the Rights are redeemed as provided in Section 23 hereof or (iii) the time at which
all exercisable Rights are exchanged as provided in Section 24 hereof, (such earliest date being
herein referred to as the “Expiration Date”).



     (b) The Purchase Price for each full share of Common Stock pursuant to the exercise of a Right
shall be $65.00 (being $32.50 per half share of Common Stock), shall be
subject to adjustment from time to time as provided in Sections 11 and 13 hereof and shall be
payable in accordance with paragraph (c) below.



     (c) Upon receipt of a Right Certificate representing exercisable Rights, with the form of
election to purchase and the certificate duly executed and completed, accompanied by payment of the
Purchase Price for the number of shares of Common Stock (or other securities, cash or other assets,
as the case may be) to be purchased and an amount equal to any applicable transfer tax, the Rights
Agent shall thereupon, subject to Section 20(k), promptly (i) requisition from the Company
certificates for the total number of shares of Common Stock to be purchased, (ii) when appropriate,
requisition from the Company the amount of cash to be paid in lieu of issuance of fractional shares
in accordance with Section 14, (iii) promptly after receipt of such certificates,



10









 







cause the same to
be delivered to or upon the order of the registered holder of such Right Certificate, registered in
such name or names as may be designated by such holder and (iv) when appropriate, after receipt
promptly deliver such payment to or upon the order of the registered holder of such Right
Certificate. The payment of the Purchase Price must be made by certified bank check or bank draft
or money order payable to the order of the Company or the Rights Agent. In the event that the
Company is obligated to issue securities, distribute property or make payment pursuant to section
11(a)(iii) hereof, the Company will make all arrangements necessary so that check, property or
securities are available for issuance, distribution or payment by the Rights Agent, if and when
appropriate.



     (d) In case the registered holder of any Right Certificate shall exercise less than all the
Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right
Certificate or to his duly authorized assigns, subject to the provisions of Section 14 hereof.



     (e) Notwithstanding anything in this Agreement to the contrary, from and after the first
occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring Person
or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or
of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes
such, or (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives
such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring
Person to holders of equity interests in such Acquiring Person or to any Person which whom the
Acquiring Person has any continuing agreement, arrangement or understanding (whether or not in
writing) regarding the transferred Rights or (B) a transfer which the Board of Directors of the
Company has determined is part of a plan, arrangement or understanding (whether or not in writing)
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 use all reasonable efforts to insure that the provisions of this Section 7(e) and Section
4(b) hereof are complied with, but shall have no liability to any holder of Right Certificates or
other Person as a result of its failure to make any determinations with respect to an Acquiring
Person, or any of its Affiliates, Associates 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 shall have (i) completed and signed the certificate contained in the
form of election to purchase set forth on the reverse side of the Right Certificate surrendered for
such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner,
Affiliates or Associates of such Beneficial Owner or holder, or of any other Person with which such
holder or any of such holder’s Affiliates or Associates has any agreement, arrangement or
understanding (whether or not in writing) for the purpose of acquiring, holding, voting or
disposing of any securities of the Company as the Company shall reasonably request.



     Section 8. Cancellation and Destruction of Right Certificates. All Right Certificates
surrendered for the purpose of exercise, transfer, split up, combination or exchange



11









 







shall, if
surrendered to the Company or to any of its agents, be delivered to the Rights Agent for
cancellation or in canceled form, or, if surrendered to the Rights Agent, shall be canceled by it,
and no Right Certificates shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Rights Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire, any other Right
Certificate purchased or acquired by the Company otherwise than upon the exercise thereof. The
Rights Agent shall deliver all canceled Right Certificates to the Company, or shall, at the written
request of the Company, destroy such canceled Right Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.



     Section 9. Reservation and Availability of Shares of Common Stock. (a) The Company
covenants and agrees that it will use every reasonable effort to reserve and make available out of
its authorized and unissued shares of Common Stock (and following the occurrence of a Triggering
Event, out of its authorized and unissued other securities), or out of its authorized and issued
shares of Common Stock (and, following the occurrence of a Triggering Event, out of its authorized
and issued other securities) held in its treasury, the number of shares of Common Stock (and,
following the occurrence of a Triggering Event, other securities) that will be sufficient to permit
the exercise in full of all outstanding Rights (it being understood that any of the foregoing
shares or securities may also be reserved for other purposes) or will take such other steps as are
appropriate to assure that the number of such shares or securities (or their equivalents)
sufficient to permit the exercise in full of all outstanding Rights will be available upon such
exercise. The Company shall use every reasonable effort to obtain, as soon as practicable
following the occurrence of a Triggering Event (to the extent not theretofore obtained), such
regulatory approvals and take such other action as may be necessary for it to issue and/or sell
securities purchasable upon the exercise of the Rights.



     (b) So long as the shares of Common Stock (and, following the occurrence of a Triggering
Event, other securities) issuable upon the exercise of Rights may be listed on any national
securities exchange, the Company shall use its best efforts to cause, from and after such time as
the Rights become exercisable (but only to the extent that it is reasonably likely that the Rights
will be exercised), all shares reserved for such issuance to be listed on such exchange upon
official notice of issuance upon such exercise.



     (c) The Company shall use its best efforts to (i) file, as soon as practicable following the
first occurrence of a Section 11(a)(ii) Event, or as soon as required by law, as the case may be, a
registration statement under the Securities Act of 1933, as amended (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 Date. The Company will also take such
action as may be appropriate under the blue sky laws of the various states. The Company may
temporarily suspend, for a period of time not to exceed ninety (90) days after the date set forth
in clause (i) of the first sentence of this Section 9(c), the exercisability of the Rights in order
to prepare and file such registration statement and permit it to become effective. Upon any such
suspension, the Company shall issue a public announcement and shall give simultaneous written
notice to the Rights Agent stating that the exercisability of the Rights has been temporarily



12









 







suspended, as well as a public announcement and notice to the Rights Agent at such time as the
suspension is no longer in effect. In addition, if the Company shall determine that a registration
statement is required following the Distribution Date, the Company may temporarily suspend the
exercisability of the Rights until such time as a registration statement has been declared
effective. Notwithstanding any provision of this Agreement to the contrary, the Rights shall not
be exercisable in any jurisdiction unless the requisite qualifications in such jurisdiction shall
have been obtained.



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



     (e) The Company further covenants and agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be payable in respect of the issuance or
delivery of the Right Certificates or of any shares of the Common Stock (or other securities, as
the case may be) upon the exercise of Rights. The Company shall not, however, be required (a) to
pay any transfer tax which may be payable in respect of any transfer involved in the transfer or
delivery of Right Certificates or the issuance or delivery of certificates for Common Stock (or
other securities, as the case may be) in a name other than that of the registered holder of the
Right Certificate evidencing Rights surrendered for exercise or (b) to issue or deliver any
certificates for a number of shares of Common Stock (or other securities, as the case may be) upon
the exercise of any Rights until any such tax shall have been paid (any such tax being payable by
the holder of such Right Certificate at the time of surrender) or until it has been established to
the Company’s satisfaction that no such tax is due.



     Section 10. Common Stock Record Date. Each Person in whose name any certificate for any
number of shares of Common Stock (or other securities, as the case may be) is issued upon the
exercise of Rights shall for all purposes be deemed to have become the holder of record of the
shares of Common Stock (or other securities, as the case may be) represented thereby on, and such
certificate shall be dated the date upon which
the Right Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price
(and any applicable transfer taxes) was made and shall show the date of countersignature; provided,
however, that if the date of such surrender and payment is a date upon which Common Stock (or other
securities, as the case may be) transfer books of the Company are closed, such Person shall be
deemed to have become the record holder of such shares on, and such certificate shall be dated, the
next succeeding Business Day on which the Common Stock (or other securities, as the case may be)
transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Right Certificate shall not be entitled to any rights of a stockholder of the Company
with respect to shares for which the Rights shall be exercisable, including, without limitation,
the right to vote, to receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings of the Company, except
as provided herein.



     Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights. The
Purchase Price, the number 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.



13









 





     (a) (i) In the event the Company shall at any time after the date of this Agreement (A)
declare a dividend on the Common Stock payable in shares of the Common Stock, (B) subdivide the
outstanding Common Stock, (C) combine the outstanding Common Stock into a smaller number of shares
or (D) issue any shares of its capital stock in a reclassification of Common Stock (including any
such reclassification in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), except as otherwise provided in this Section 11(a) and
Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend
or of the effective date of such subdivision, combination or reclassification, and the number and
kind of shares of Common 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 Purchase Price then in effect, the aggregate number and
kind of shares of capital stock which, if such Right had been exercised immediately prior to such
date and at a time when Common Stock (or other securities) transfer books of the Company were open,
he or she would have owned upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification. If an event occurs which would require an
adjustment under both this Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in
this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii).




     (ii) Subject to Section 24 of this Agreement, in the event any Person, alone or together
with its Affiliates and Associates, becomes at any time after the Rights Dividend
Declaration Date, an Acquiring Person except as the result of a transaction set forth in
Section 13(a) hereof, then, prior to the later of (x) the date on which the Company’s rights
of redemption pursuant to Section 23(a) expire, or (y) five (5) days after the date of the
first occurrence of a Section 11(a)(ii) Event, proper provision shall be made so that each
holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have a right
to receive, upon exercise thereof at the then current Purchase Price in accordance with the
terms of this Agreement, such number of shares of Common Stock of the Company as
shall equal the result obtained by (x) multiplying the then current Purchase Price for
a full share of Common Stock by the number of shares of Common Stock for which a Right is
then exercisable and dividing that product by (y) 50% of the Current Market Price per share
of Common Stock of the Company (determined pursuant to Section 11(d)) on the date of the
occurrence of the event described above in this subparagraph (ii) (such number of shares is
hereinafter referred to as the “Adjustment Shares”), provided that the Purchase Price and
the number of Adjustment Shares shall be further adjusted as provided in this Agreement to
reflect any events occurring after the date of such first occurrence.




     (iii) If (x) the number of shares of Common Stock which are authorized by the Company’s
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 the foregoing subparagraph (ii), or (y) any regulatory approvals
necessary for the issuance of such Common Stock have not been obtained by the Company, or
(z) the issuance of Common Stock of the Company shall not then be permitted under the
Company’s certificate of incorporation or any applicable law or administrative or judicial
regulation or order, the Company shall (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
Purchase Price (such excess, the “Spread”), and (B) with



14









 






respect to each Right, but subject
to Section 9 hereof and, if and to the extent required, to the receipt by the Company of any
necessary regulatory approvals, make adequate provision to substitute for the Adjustment
Shares, upon exercise of the Rights and payment of the applicable Purchase Price, (1) cash,
(2) a reduction in the Purchase Price, (3) other equity securities of the Company
(including, without limitation, shares of preferred stock which the Board of Directors of
the Company has deemed to have the same value as shares of Common Stock (such shares of
preferred stock, “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, where such aggregate value has been determined by the Board of Directors of
the Company based upon the advice of a nationally recognized investment banking firm
selected by the Board of Directors of the Company; provided, however, that if the Company
shall not have 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 Section 11(a)(ii)
Event and (y) the date on which the Company’s rights of redemption pursuant to Section 23(a)
expire (the later of (x) and (y) being referred to herein as the “Section 11(a)(ii) Trigger
Date”), then the Company shall be obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price, shares of Common Stock (to the
extent available and subject to receipt by the Company of any necessary regulatory
approvals) and then, if necessary, cash, which shares and/or cash have an aggregate value
equal to the Spread. If the Board of Directors of the Company shall determine in good faith
that it is likely that sufficient additional shares of Common Stock could be authorized for
issuance upon exercise in full of the Rights and that any necessary regulatory approvals for
such issuance could be obtained, the thirty (30) day period set forth above may be extended
to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii)
Trigger Date, in order that the Company may seek stockholder approval for the authorization
of such additional shares and/or regulatory approvals for the issuance of such additional
shares (such period, as it may be extended, the “Substitution Period”). To the extent that
the
Company determines that some action need be taken and/or additional regulatory
approvals obtained pursuant to the first and/or second sentences of this subparagraph (iii),
the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply
uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights
until the expiration of the Substitution Period in order to seek any authorization of
additional shares, to obtain any required regulatory approvals 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 and shall give concurrent written notice to the Rights Agent stating that the
exercisability of the Rights has been temporarily suspended, as well as a public
announcement and notice to the Rights Agent at such time as the suspension is no longer in
effect. For purposes of this subparagraph (iii), the value of the Common Stock shall be the
Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Common
Stock on the Section 11 (a) (ii) Trigger Date and the value of any Common Stock Equivalent
shall be deemed to be the same as the value of Common Stock on such date. The Company shall
give the Rights Agent notice of the selection of any Common Stock Equivalent under this
subparagraph (iii).



15









 





     (b) In case the Company shall fix a record date for the issuance of rights, options or
warrants to all holders of Common Stock entitling them (for a period expiring within 45 calendar
days after such record date) to subscribe for or purchase Common Stock (or securities having
substantially the same rights, privileges and preferences as the shares of Common Stock
(“Equivalent Common Stock”) or convertible into Common Stock or Equivalent Common Stock) at a price
per share of Common Stock or Equivalent Common Stock (or having a conversion price per share, if a
security convertible into Common Stock or Equivalent Common Stock) less than the Current Market
Price (as defined in Section 11(d) per share of Common Stock or Equivalent Common Stock, as the
case may be) on such record date, the Purchase Price to be in effect after such record date shall
be determined by multiplying the Purchase Price in effect immediately prior to such record date by
a fraction, of which the numerator shall be the number of shares of Common Stock outstanding on
such record date plus the number of shares of Common Stock or Equivalent Common Stock which the
aggregate offering price of the total number of shares of Common Stock or Equivalent Common Stock
so to be offered (and/or the aggregate initial conversion price of the convertible securities so to
be offered) would purchase at such Current Market Price and of which the denominator shall be the
number of shares of Common Stock outstanding on such record date plus the number of additional
shares of Common Stock and/or Equivalent Common Stock to be offered for subscription or purchase
(or into which the convertible securities so to be offered are initially convertible). In case
such subscription price may be paid by delivery of consideration part or all of which shall be in a
form other than cash, the value of such consideration shall be as determined in good faith by the
Board of Directors of the Company, whose determination shall be described in a statement filed with
the Rights Agent. Shares of Common Stock owned by or held for the account of the Company shall not
be deemed outstanding for the purpose of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed; and in the event that such rights, options or
warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.



     (c) In case the Company shall fix a record date for the making of a distribution to all
holders of Common Stock (including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular periodic cash dividend or a dividend payable in Common
Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)), the
Purchase Price to be in effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a fraction, of which the
numerator shall be the Current Market Price per share of Common Stock (as defined in Section 11(d))
on such record date, less the fair market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement filed with the
Rights Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to one share of Common Stock and of which the
denominator shall be such Current Market Price per share of Common Stock. Such adjustments shall
be made successively whenever such a record date is fixed; and in the event that such distribution
is not so made, the Purchase Price shall again be adjusted to be the Purchase Price which would
then be in effect if such record date had not been fixed.



     (d) For the purpose of any computation hereunder, other than computations made pursuant to
Section 11(a)(iii), the “Current Market Price” per share of Common Stock on any



16









 







date shall be
deemed to be the average of the daily closing prices per share of such Common Stock for the thirty
(30) consecutive Trading Days (as such term is hereinafter defined in this paragraph (d))
immediately prior to such date and, for purposes of computations made pursuant to Section
11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed
to be the average of the daily closing prices per share of such Common Stock for the ten (10)
consecutive Trading Days immediately following such date; provided, however, that in the event that
the Current Market Price per share of Common Stock is determined during the period following the
announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common
Stock payable in shares of such Common Stock or securities convertible into shares of such Common
Stock (other than the Rights) or (B) any subdivision, combination or reclassification of such
Common Stock, and prior to the expiration of the requisite 30 Trading Day or 10 Trading Day period,
as set forth above, after the ex-dividend date for such dividend or distribution or the record date
for such subdivision, combination or reclassification, then, and in each such case, the Current
Market Price shall be appropriately adjusted to take into account ex-dividend trading. The closing
price for each day shall be the last sale price, regular way, or, in case no such sale takes place
on such day, the average of the 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 New York Stock Exchange or, if the shares of the Common Stock
are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on the principal
national securities exchange on which the shares of the Common Stock are listed or admitted to
trading or, if the shares of the Common Stock are not listed or admitted to trading on any national
securities exchange, the last quoted price, or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System (“NASDAQ”) or such other system then in use,
or, if on any such date the shares of Common Stock are not quoted by such organization, the average
of the closing bid and asked prices as furnished by a professional market maker making a market in
Common Stock selected by the Board of Directors of the Company. If on any such date
no market maker is making a market in the Common Stock, the fair value of such shares on such
date shall be as determined by the Board of Directors of the Company upon the advice of a
nationally-recognized, independent investment banking firm selected by the Board of Directors,
whose determination shall be described in a statement filed with the Rights Agent and shall be
conclusive for all purposes. The term “Trading Day” shall mean a day on which the principal
national securities exchange on which the shares of Common Stock are listed or admitted to trading
is open for the transaction of business or, if the shares of Common Stock are not listed or
admitted to trading on any national securities exchange, a Monday, Tuesday, Wednesday, Thursday or
Friday on which banking institutions in the State of New York are not authorized or obligated by
law or executive order to close. If the Common Stock is not publicly held or not so listed or
traded, “Current Market Price” per share shall mean the fair value per share as determined by the
Board of Directors of the Company upon the advice of a nationally-recognized, independent
investment banking firm selected by the Board of Directors, whose determination shall be described
in a statement filed with the Rights Agent and shall be conclusive for all purposes.



     (e) Anything herein to the contrary notwithstanding, no adjustment in the Purchase Price shall
be required unless such adjustment would require an increase or decrease of at least 1% in such
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



17









 







adjustment.
All calculations under this Section 11 shall be made to the nearest cent or to the nearest
ten-thousandth of a share of Common Stock. Notwithstanding the first sentence of this Section
11(e), any adjustment required by this Section 11 shall be made no later than the earlier of (i)
three years from the date of the transaction which mandates such adjustment or (ii) the Expiration
Date.



     (f) If, as a result of an adjustment made pursuant to Section 11(a) or Section 13(a), the
holder of any Right thereafter exercised shall become entitled to receive any shares of capital
stock other than shares of Common Stock, thereafter the number of such other shares so receivable
upon exercise of any Right and the Purchase Price thereof shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect
to the Common Stock contained in Section 11(a) through (p), inclusive, and the provisions of
Sections 7, 9, 10, 13 and 14 with respect to Common Stock shall apply on like terms to any such
other shares.



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



     (h) Unless the Company shall have exercised its election as provided in Section 11(i), upon
each adjustment of the Purchase Price as a result of the calculations made in Section 11(b) and
(c), each Right outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of shares (calculated
to the nearest tenth-thousandth) obtained by (i) multiplying (x) the number of shares covered by a
Right immediately prior to this adjustment by (y) the Purchase Price in effect immediately prior to
such adjustment of the Purchase Price and (ii) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the Purchase Price.



     (i) The Company may elect on or after the date of any adjustment of the Purchase Price to
adjust the number of Rights, in substitution for any adjustment in the number of shares of Common
Stock purchasable upon the exercise of a Right. Each of the Rights outstanding after such
adjustment of the number of Rights shall be exercisable for the number of shares of Common 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 ten-thousandth) obtained by dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect immediately after the adjustment
of the Purchase Price. The Company shall make a public announcement and shall give simultaneous
written notice to the Rights Agent of its election to adjust the number of Rights, indicating the
record date for the adjustment to be made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Right Certificates have been issued, shall be
at least 10 days later than the date of the public announcement. If Right Certificates have been
issued, upon each adjustment of the number of Rights pursuant to this subparagraph (i), the Company
shall, as promptly as practicable, cause to be distributed to holders of Right Certificates on such
record date Right 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



18









 







replacement for the
Right Certificates held by such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Company, new Right Certificates evidencing all the Rights to which such
holders shall be entitled after such adjustment. Right Certificates so to be distributed shall be
issued, executed and countersigned in the manner provided for herein (and may bear, at the option
of the Company, the adjusted Purchase Price) and shall be registered in the names of the holders of
record of Right Certificates on the record date specified in the public announcement.



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



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



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



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



     (n) The Company covenants and agrees that, after the Distribution Date, it will not, except as
permitted by Sections 23, 24 and 27 hereof, take (nor will it permit any of its Subsidiaries 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.



19









 





     (o) The Company covenants and agrees that it shall not, at any time after the Distribution
Date, (i) consolidate with any other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(n)), (ii) merge with or into any other Person (other
than a Subsidiary of the Company in a transaction which complies with Section 11(n)), or (iii) sell
or transfer (or permit any of its Subsidiaries to sell or transfer), in one or more transactions,
assets or earning power aggregating more than 50% of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to any other Person or Persons (other than the Company and/or
any of its Subsidiaries in one or more transactions each of which complies with Section 11(n)) if
(x) at the time of or immediately after such consolidation, merger or sale 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 or
(y) prior to, simultaneously with or immediately after such consolidation, merger or sale, the
stockholders of the Person who constitutes, or would constitute, the “Principal Party” for purposes
of Section 13(a) hereof shall have received a distribution of Rights previously owned by such
Person or any of its Affiliates and Associates.



     (p) Notwithstanding anything in this Agreement to the contrary, prior to the Distribution
Date, the Company may, in lieu of making any adjustment to the Purchase Price, the number of shares
of Common Stock eligible for purchase on exercise of each Right or the number of Rights
outstanding, which adjustment would otherwise be required by Section 11(a)(i), 11(b), 11(c), 11(h)
or 11(i), make such other equitable adjustment or adjustments thereto as the Board of Directors
(whose determination shall be conclusive) deems appropriate in the circumstances and not
inconsistent with the objectives of the Board of Directors in adopting this Agreement and such
Sections.



     Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an
adjustment is made as provided in Sections 11 and 13, the Company shall (a) promptly prepare a
certificate setting forth such adjustment, a brief statement of the facts accounting for such
adjustment and the adjusted Purchase Price, (b) promptly file with the Rights Agent and with each
transfer agent for the Common Stock a copy of such certificate and (c) mail a
brief summary thereof to each holder of a Right Certificate in accordance with Section 26. The
Rights Agent shall be fully protected in relying on any such certificate and on any adjustment
therein contained.



     Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power. (a) In
the event that, following the Shares Acquisition Date, directly or indirectly, (x) the Company
shall consolidate with, or merge with or into, any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(n)) and the Company shall not be the
continuing or surviving corporation of such consolidation or merger, (y) any Person (other than a
Subsidiary of the Company in a transaction which complies with Section 11(n)) shall consolidate,
merge with or into the Company and the Company shall be the continuing or surviving corporation of
such consolidation or merger and in connection with such consolidation or merger, all or part of
the Common Stock shall be changed into or exchanged for stock or other securities of any other
Person or cash or any other property, or (z) the Company shall sell or otherwise transfer (or one
or more of its Subsidiaries shall sell or otherwise transfer), in one or more transactions, assets
or earning power aggregating more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than the Company or any of



20









 







its Subsidiaries in one or more transactions each of which complies with Section 11(n) hereof),
then, and in each such case, proper provision shall be made so that (i) each holder of a Right
(except as provided in Section 7(e)) shall thereafter have the right to receive, upon the exercise
thereof at the then current Purchase Price in accordance with the terms of this Agreement, such
number of validly issued, fully paid, nonassessable and freely tradable shares of Common Stock of
the Principal Party (as hereinafter defined) , not subject to any liens, encumbrances, rights of
call or first refusal, or other adverse claims as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price for a full share of Common Stock by the number of
shares of Common Stock for which a Right is exercisable immediately prior to the first occurrence
of a Section 13 Event (or, if a Section 11(a) (ii) Event has occurred prior to the first occurrence
of a Section 13 Event, multiplying the number of such shares for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a) (ii) Event by the Purchase Price for a
full share of Common Stock in effect immediately prior to such first occurrence), and dividing that
product (which, following the first occurrence of a Section 13 Event, shall be referred to as the
“Purchase Price” for each Right and for all purposes of this Agreement) by (2) 50% of the Current
Market Price per share of the Common Stock of such Principal Party (determined in the manner
described in Section 11 (d) ) on the date of consummation of such consolidation, merger, sale or
transfer; (ii) the Principal Party shall thereafter be liable for, and shall assume, by virtue of
such Section 13 Event, all the obligations and duties of the Company pursuant to this Agreement;
(iii) the term “Company” shall thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 shall thereafter apply to such Principal
Party, (iv) such Principal Party shall take such steps (including, but not limited to, the
reservation of a sufficient number of shares of its Common Stock in accordance with Section 9) in
connection with such consummation as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to the shares of its Common
Stock thereafter deliverable upon the exercise of the Rights, and (v) the provisions of Section
11(a)(ii) hereof shall be of no effect following the first occurrence of any Section 13 Event.



     (b) “Principal Party” shall mean



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




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




21









 








          (3) The Company shall not consummate any Section 13 Event unless the Principal Party shall
have a sufficient number of authorized shares of its Common Stock which are neither outstanding nor
reserved for issuance to permit the exercise in full of the Rights in accordance with this Section
13 and unless prior thereto the Company and such Principal Party shall have executed and delivered
to the Rights Agent a supplemental agreement providing for the terms set forth in paragraphs (a)
and (b) of this Section 13 and further providing that, as soon as practicable after the date of any
consolidation, merger or sale of assets mentioned in paragraph (a) of this Section 13, the
Principal Party




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




               (ii) shall take all such other action as may be necessary to enable the Principal Party to
issue the securities purchasable upon exercise of the Rights, including but not limited to the
registration or qualification of such securities under all requisite securities laws of
jurisdictions of the various states and the listing of such securities on such exchanges and
trading markets as may be necessary or appropriate; and




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



The provisions of this Section 13 shall similarly apply to successive Section 13 Events. In the
event that a Section 13 Event shall occur at any time after the occurrence of a Section 11(a)(ii)
Event, the Rights which have not theretofore been exercised shall thereafter become exercisable in
the manner described in Section 13(a).




     Section 14. Fractional Rights and Fractional Shares. (a) The Company shall not be required
to issue fractions of Rights or to distribute Right Certificates which evidence fractional Rights.
In lieu of such fractional Rights, the Company shall pay to the registered holders of the Right
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 the purposes of
this Section 14(a), the current market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which such fractional Rights would have
been otherwise issuable. The closing price for any day shall be the last sale price, regular way,
or, in case no such sale takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the
Rights are not listed or admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities listed on the
principal national securities exchange on which the Rights are listed or admitted to trading or, if
the Rights are not listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked prices in the



22









 







over-the-counter market, as reported by NASDAQ or such other system then in use, or, if on any such
date the Rights are not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the Rights selected by the
Board of Directors of the Company. If on any such date no such market maker is making a market in
the Rights, the fair value of the Rights on such date, as determined in good faith by the Board of
Directors of the Company, shall be used.



     (b) The Company shall not be required to issue fractions of shares of Common Stock or Common
Stock Equivalents (i) upon exercise or exchange of the Rights or (ii) following the occurrence of a
Triggering Event, or to distribute certificates which evidence fractional shares of Common Stock or
Common Stock Equivalents. In lieu of fractional shares of Common Stock or Common Stock
Equivalents, the Company may pay to the registered holders of Right Certificates at the time the
Rights evidenced thereby are exercised or exchanged as herein provided an amount in cash equal to
the same fraction of the current market value of Common Stock or Common Stock Equivalents. For
purposes of this Section 14(b), the current market value of one share of Common Stock shall be the
closing price of a share of Common Stock (as determined pursuant to Section 11(d)) for the Trading
Day immediately prior to the date of such exercise or exchange, as the case may be, and the current
market value of any Common Stock Equivalent shall be the same as the current market value of the
Common Stock on such date.



     (c) The holder of a Right by the acceptance of the Right expressly waives his right to receive
any fractional Rights or any fractional shares upon exercise or exchange of a Right, except as
otherwise permitted by this Section 14.



     Section 15. Rights of Action. All rights of action in respect of this Agreement are vested
in the respective registered holders of the Right Certificates (and, prior to the Distribution
Date, the registered holders of the Common Stock); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Common Stock), may, in his own behalf and
for his own benefit, enforce, and may institute and maintain any suit, action or proceeding against
the Company to enforce, or otherwise act in respect of, his right to exercise the Rights evidenced
by such Right Certificate in the manner provided in such Right Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate remedy at law for
any breach of this Agreement and will be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened violations of the obligations
hereunder of any Person subject to this Agreement.



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



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



     (b) after the Distribution Date, the Right Certificates will be transferable only on the
registry books of the Rights Agent if surrendered at the office of the Rights Agent designated



23









 







for
such purpose, duly endorsed or accompanied by a proper instrument of transfer and with the
appropriate forms and certificates fully executed, along with a signature guarantee and such other
and further documentation as the Rights Agent may reasonably request;



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



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



     Section 17. Right Certificate Holder Not Deemed a Stockholder. No holder, as such, of any
Right Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of the number of shares of Common Stock or any other securities of the Company that may at
any time be issuable on the exercise of the Rights represented thereby, nor shall anything
contained herein or in any Right Certificate be construed to
confer upon the holder of any Right 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 Right Certificate shall have been exercised or exchanged for Common Stock in
accordance with the provisions hereof.



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



24









 





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



     In addition to the foregoing, the Rights Agent shall be protected and shall incur no liability
for, or in respect of, any action taken or omitted by it in connection with its administration of
this Agreement in reliance upon (i) the proper execution of the certification appended to the Form
of Assignment and the Form of Election to Purchase included as part of Exhibit A hereto (the
“Certification”), unless the Rights Agent shall have actual knowledge that, as executed, the
Certification is untrue or (ii) the non-execution or failure to complete the Certification
including, without limitation, any refusal to honor any otherwise permissible assignment or
election by reason of such nonexecution or failure.



     Notwithstanding anything in this Agreement to the contrary, in no event shall the Rights Agent
be liable for special, indirect or consequential loss or damage of any kind whatsoever (including
but not limited to lost profit), even if the Rights Agent has been advised of the likelihood of
such loss or damage and regardless of the form of the action, and the Company agrees to indemnify
the Rights Agent and to hold it harmless against any loss, liability or expense incurred as a
result of claims for special, indirect or consequential loss or damages of any kind whatsoever.



     Section 19. Merger or Consolidation or Change of Name of Rights Agent. Any corporation
into which the Rights Agent or any successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any corporation succeeding to the
corporate trust 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 that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of Section 21. In case
at the time such successor Rights Agent shall succeed to the agency created by this Agreement, any
of the Right Certificates shall have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of the predecessor so countersigned; and in case at
that time any of the Right Certificates shall not have been countersigned, any successor Rights
Agent may countersign such Right Certificates either in the name of the predecessor Rights Agent or
in the name of the successor Rights Agent; and in all such cases such Right Certificates shall have
the full force provided in the Right Certificates and in this Agreement.



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



25









 







in its changed name; and in all
such cases such Right Certificates shall have the full force provided in the Right Certificates and
in this Agreement.



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



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



     (b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem
it necessary or desirable that any fact or matter be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by any one of the Chairman of the Board, the President, any Senior Vice
President, any Vice President, the Treasurer or the Secretary of the Company and delivered to the
Rights Agent; and such certificate shall be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such
certificate.



     (c) The Rights Agent shall be liable hereunder only for its own negligence, bad faith or
willful misconduct. The issuance or non-issuance of a Right Certificate or Common Stock or other
security issued in lieu of Common Stock in accordance with instructions given to the Rights Agent
by the Company pursuant to Section 20(k) hereof or in accordance with the terms hereof shall not
constitute negligence, bad faith or willful misconduct; provided, however, that in no event shall
the Rights Agent be liable for special, indirect or consequential loss or damages of any kind
whatsoever.



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



     (e) The Rights Agent shall not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Right 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 Right Certificate; nor shall it be
responsible for any adjustment required under the provisions of Section 11 or 13 or responsible for
the manner, method or amount of any such adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect to the exercise of Rights evidenced by
Right Certificates 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 to be issued pursuant to this Agreement or any Right Certificate or as to
whether



26









 







any shares of Common Stock will, when issued, be validly authorized and issued, fully paid
and nonassessable.



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



     (g) The Rights Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder and certificates delivered pursuant to any provision hereof
from any one of the Chairman of the Board, the President, any Senior Vice President, any Vice
President, the Secretary or the Treasurer of the Company, and is authorized to apply to such
officers for advice or instructions in connection with its duties, and it shall not be liable for
any action taken or suffered to be taken by it in good faith in accordance with instructions of any
such officer. An application by the Rights Agent for instructions may set forth in writing any
action proposed to be taken or omitted by the Rights Agent with respect to its duties and
obligations under this Agreement and the date on and/or after which such action shall be taken, and
the Rights Agent shall not be liable for any action taken or omitted in accordance with a proposal
included in any such application on or after the date specified therein (which date shall not be
less than one Business Day after the Company receives such application) without the consent of the
Company unless, prior to taking or omitting such action, the Rights Agent has received written
instructions in response to an application specifying the actions to be taken or omitted.



     (h) The Rights Agent and any stockholder, director, officer or employee of the Rights Agent
may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or contract with or lend
money to the Company, or otherwise act as fully and freely as though it were not 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 legal entity.



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



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



     (k) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or
transfer, the certificate attached to the form of assignment or form of election to purchase, as
the case may be, either has not been completed or does not indicate an affirmative response, the
Rights Agent shall not take any further action with respect to such requested exercise



27









 







or transfer
without first consulting the Company. The Company shall give the Rights Agent prompt written
instructions as to the action to be taken regarding the Right Certificates involved. The Rights
Agent shall not be liable for acting in accordance with such instructions.



     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 mailed to the Company by registered or certified mail, and, at the Company’s expense, to
the holders of the Right Certificates by first class mail. The Company may remove the Rights Agent
or any successor Rights Agent upon 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 by
registered or certified mail, and to the holders of the Right Certificates by first-class mail. If
the Rights Agent shall resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the Company shall fail 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 the holder of a Right Certificate (who shall, with such notice, submit his Right
Certificate for inspection by the Company), then the Company shall become the temporary Rights
Agent and the registered holder of any Right 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 corporation organized and doing business
under the laws of the United States or of the State of New York (or of any other state of the
United States so long as such corporation is authorized to do
business as a banking institution in the State of New York), in good standing, which is authorized
under such laws to exercise corporate trust powers, is subject to supervision or examination by
federal or state authority, and has at the time of its appointment as Rights Agent a combined
capital and surplus of at least $25 million. After appointment, the successor Rights Agent shall
be vested with the same powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor Rights Agent shall deliver
and transfer to the successor Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment the Company shall file notice thereof in
writing with the predecessor Rights Agent and each transfer agent of the Common Stock, and mail a
notice thereof in writing to the registered holders of the Right Certificates. Failure to give any
notice provided for in this Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be. Predecessor Rights Agent shall be released and
discharged from any and all further responsibility incurred after its termination as Rights Agent.



     Section 22. Issuance of New Right Certificates. Notwithstanding any of the provisions of
this Agreement or of the Rights to the contrary, the Company may, at its option, issue new Right
Certificates evidencing Rights in such form as may be approved by its Board of Directors to reflect
any adjustment or change in the Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Right Certificates made in accordance with the
provisions of this Agreement. In addition, in connection with the issuance or sale of shares of
Common Stock following the Distribution Date and prior to the redemption or expiration of the
Rights, the Company (a) shall, with respect to shares of Common Stock so issued or sold pursuant to
the exercise of stock options or under any employee plan or arrangement, or



28









 







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 of Directors of the Company, issue Right
Certificates representing the appropriate number of Rights in connection with such issuance or
sale; provided, however, that (i) no such Right 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 Right Certificate would
be issued, and (ii) no such Right 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 of Directors of the Company, upon
the affirmative vote of three-fourths of the entire Board of Directors, may, at its option, at any
time prior to the earlier of (x) the close of business on the tenth day following the Shares
Acquisition Date (or if the Shares Acquisition Date shall have occurred prior to the Record Date,
the close of business on the tenth day following the Record Date), or (y) the Final Expiration
Date, redeem all but not less than all of the then outstanding Rights at a redemption price of
$.005 per Right as appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such redemption price being hereinafter referred to as
the “Redemption Price”), and the Company may, at its option, pay the Redemption Price in shares of
its Common Stock (valued at their Current Market Price as
defined in Section 11(d) on the date of the redemption), other securities, cash, other assets or
any other form of consideration deemed appropriate by the Board of Directors. Notwithstanding
anything contained in this Agreement to the contrary, the Rights shall not be exercisable after the
first occurrence of a Section 11(a)(ii) Event until such time as the Company’s right of redemption
hereunder has expired.



     (b) In deciding whether or not to exercise the Company’s right of redemption hereunder, the
Board of Directors of the Company shall act in good faith, in a manner they reasonably believe to
be in the best interests of the Company and with such care, including reasonable inquiry, skill and
diligence, as a person of ordinary prudence would use under similar circumstances, and they may
consider the long-term and short-term effects of any action upon employees, customers and creditors
of the Company and upon communities in which offices or other establishments of the Company are
located, and all other pertinent factors.



     (c) Immediately upon the action of the Board of Directors of the Company ordering the
redemption of the Rights, and without any further action and without any notice, the right to
exercise the Rights will terminate and the only right thereafter of the holders of Rights shall be
to receive the Redemption Price for each Right held. Within 10 days after the action of the Board
of Directors ordering the redemption of the Rights, the Company shall give notice of such
redemption to the holders of the then outstanding Rights by mailing such notice to the Rights Agent
and to all such holders at their last addresses as they appear upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books of the Transfer Agent for
the Common Stock. 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 will state the
method by which the payment of the Redemption Price will be made. Neither the Company nor any of
its Affiliates or Associates may redeem, acquire or purchase for value any Rights at any time in
any manner other than that specifically set forth in this Section 23, and other than in connection
with the repurchase of Common Stock prior to the Distribution Date.



29









 





     Section 24. Exchange. (a) The Board of Directors of the Company, upon the affirmative vote
of three-fourths of the entire Board of Directors, may, at its option but subject to the receipt by
the Company of any required regulatory approvals, at any time and from time to time on or after a
Section 11(a)(ii) Event, exchange all or part of the then outstanding and exercisable Rights (which
shall not include Rights that have become void pursuant to the provisions of Section 7(e) hereof)
for shares of Common Stock at an exchange ratio of one share of Common Stock per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring
after the date of this Agreement (such exchange ratio being hereinafter referred to as the
“Exchange Ratio”). Notwithstanding the foregoing, the Board of Directors of the Company shall not
be empowered to effect such exchange at any time after any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or any such Subsidiary, or any
entity holding Common Stock for or pursuant to the terms of any such plan), together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of 50% or more of the Common
Stock then outstanding.



     (b) Immediately upon the action of the Board of Directors of the Company ordering the exchange
of any Rights pursuant to subsection (a) of this Section 24 and without any further action and
without any notice, the right to exercise such Rights shall terminate and the only right thereafter
of a holder of such Rights shall be to receive that number of shares of Common Stock equal to the
number of such Rights held by such holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided, however, that the failure to give, or
any defect in, such notice shall not affect the validity of such exchange. The Company promptly
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 will state the method by which the exchange will be effected and, in
the event of any partial exchange, the number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of Rights (other than Rights which have
become void pursuant to the provisions of Section 7(e) hereof) held by each holder of Rights.



     (c) In the event that there shall not be sufficient shares of Common Stock issued but not
outstanding, or authorized but unissued to permit any exchange of Rights as contemplated in
accordance with this Section 24, the Company shall take all such action as may be necessary to
authorize additional shares of Common Stock or for issuance upon exchange of the Rights, subject,
however, to Section 24(d) hereof.



     (d) In any exchange pursuant to this Section 24, the Company, at its option but subject to the
receipt by the Company of any required regulatory approvals, may substitute for any share of Common
Stock exchangeable for a Right (i) Common Stock Equivalents, (ii) cash, (iii) debt securities of
the Company, (iv) other assets, or (v) any combination of the foregoing, having an aggregate value
which three-fourths of the entire Board of Directors of the Company shall have determined in good
faith to be equal to the Current Market Price of one share of Common Stock (determined pursuant to
Section 11(d) hereof) on the Trading Day immediately preceding the date of exchange pursuant to
this Section 24.



30









 





     (e) 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 subsection (e), the current market value of a whole
share of Common Stock shall be the closing price of a share of Common Stock (as determined pursuant
to Section 11(d) hereof) for the Trading Day immediately prior to the date of exchange pursuant to
this Section 24.



     Section 25. Notice of Certain Events. In case the Company shall propose at any time
following the Distribution Date (a) to pay any dividend payable in stock of any class to the
holders of Common Stock or to make any other distribution to the holders of Common Stock (other
than a regular periodic cash dividend), or (b) to offer to the holders of Common Stock rights or
warrants to subscribe for or to purchase any
additional shares of Common Stock or shares of stock of any class or any other securities, rights
or options, or (c) to effect any reclassification of Common Stock (other than a reclassification
involving only the subdivision of outstanding Common Stock), or (d) to effect any consolidation or
merger into or with any other Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(n) hereof), or to effect any sale or other transfer (or to permit one or
more of its Subsidiaries to effect any sale or other transfer), in one or more transactions, of
more than 50% of the assets or earning power of the Company and its Subsidiaries (taken as a whole)
to, any other Person or Persons (other than the Company and/or any of its Subsidiaries in one or
more transactions each of which complies with Section 11(n) hereof), or (e) 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 Right, 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 Rights, 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 Common Stock, if any such date is to be fixed, and such
notice shall be so given in the case of any action covered by clause (a) or (b) above at least
twenty (20) days prior to the record date for determining holders of the Common Stock for purposes
of such action, and in the case of any such other action, at least twenty (20)) days prior to the
date of the taking of such proposed action or the date of participation therein by the holders of
the Common Stock, whichever shall be the earlier.



     In case a Section 11(a)(ii) Event shall occur, then, in any such case, the Company shall as
soon as practicable thereafter give to the Rights Agent and to each holder of a Right, 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).



     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 Right Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid, addressed (unless and
until another address is filed in writing with the Rights Agent) as follows:



31









 




National Fuel Gas Company

6363 Main Street

Williamsville, New York 14221

Attention: Corporate Secretary



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



The Bank of New York

101 Barclay Street – 11 East

New York, New York 10286

Attention: Stock Transfer Division



Notices or demands authorized by this Agreement to be given or made by the Company or the Rights
Agent to the holder of any Right Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Company.




     Section 27. Supplements and Amendments. Prior to the earlier of the Distribution Date or
the Shares Acquisition Date and subject to the penultimate sentence of this Section 27, the Company
may from time to time supplement or amend this Agreement in writing without the approval of any
holders of Right Certificates; provided that any such supplement or amendment shall have been
approved by the affirmative vote of three-fourths of the entire Board of Directors. From and after
the earlier of the Distribution Date or the Shares Acquisition Date, and subject to the penultimate
sentence of this Section 27, the Company, pursuant to a like three-fourths vote of its Board of
Directors, may from time to time supplement or amend this Agreement in writing without the approval
of any holders of Right Certificates in order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained herein which may be defective or inconsistent with any other
provisions herein, (iii) to lengthen the time period during which the Rights may be redeemed
following the Shares Acquisition Date for up to an additional twenty days beyond the time period
set forth in Section 23 (a), or (iv) to change or supplement the provisions hereunder in any manner
which the Company may deem necessary or desirable and which shall not adversely affect the
interests of the holders of Right Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person). Upon the delivery of a certificate from an appropriate officer
of the Company which states that the proposed supplement or amendment is in compliance with the
terms of this Section 27, the Rights Agent shall execute such supplement or amendment unless the
Rights Agent shall have determined in good faith that such supplement or amendment would adversely
affect its interests under this Agreement. Notwithstanding anything in this Agreement to the
contrary, no supplement or amendment shall be made on or after the Distribution Date which changes
the Redemption Price, the Final Expiration Date, the Purchase Price or the number of shares of
Common Stock for which a Right is then exercisable. Prior to the earlier of the Shares Acquisition
Date or the Distribution Date, the interests of the holders of Rights shall be deemed coincident
with the interests of the holders of Common Stock.



32









 





     Section 28. Successors; Assignment. 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. The Agreement shall extend to and shall be binding
upon the parties hereto and their respective successors and assigns; provided however, that this
Agreement shall not be assignable by either party without the prior written consent of the other
party; and provided, further, that (a) the foregoing proviso shall not apply to assignments by the
Rights Agent to an affiliate or subsidiary of the Rights Agent (provided such assignments are made
in compliance with Section
21 hereof) and (b) any reorganization, merger, consolidation, sale of assets or other form of
business combination by the Rights Agent shall not be deemed to constitute an assignment of this
Agreement.



     Section 29. Determinations and Actions by the Board of Directors. 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 such outstanding shares of
Common Stock of which any Person is the Beneficial owner, shall be made in accordance with the
provisions of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The
Board of Directors of the Company shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the Board or the Company,
or as may be necessary or advisable in the administration of this Agreement, including, without
limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make
all determinations deemed necessary or advisable for the administration of this Agreement
(including a determination to redeem or not redeem the Rights or to amend the Agreement); and,
where specifically prescribed herein, such Board actions, calculations, interpretations and
determinations shall be undertaken or made only pursuant to the affirmative vote of three-fourths
of the entire Board of Directors. All such actions, calculations, interpretations and
determinations (including, for the purpose of clause (ii) below, 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 Right Certificates and all other
parties, and (ii) not subject the Board to any liability to the holders of the Right Certificates.



     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 Right
Certificates (and, prior to the Distribution Date, 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 Right Certificates (and,
prior to the Distribution Date, registered holders of the Common Stock).



     Section 31. Severability. If any term, provision, covenant, or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such court or authority to be invalid, void or
unenforceable and the Board of Directors of the Company determines in its good faith judgment that
severing the invalid language from this Agreement would adversely affect the purpose or effect of
this Agreement, the right of redemption set forth in Section 23, hereof, if then



33









 







expired, shall be
reinstated and shall not expire until the close of business on the tenth day following the date of
such determination by the Board of Directors.



     Section 32. Governing Law. This Agreement and each Right 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 to be made and performed entirely within such State. Notwithstanding anything to the
contrary contained herein, any dispute regarding the carrying out of its obligations hereunder by
the Rights Agent shall be governed by the laws of New York.



     Section 33. 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.



     Section 34. Descriptive Headings. Descriptive headings of the several Sections of this
Agreement are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.



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



	 	 	 	 	 
	 	NATIONAL FUEL GAS COMPANY

 	 
	 	By:  	/s/ Philip C. Ackerman
 	 
	 	 	Name:  	Philip C.  Ackerman 	 
	 	 	Title: Chief Executive Officer 	 
	 



Attest:




	 	 	 	 	 
	By:

	 	/s/ James R. Peterson	 	 
	 

	 	 

Name: James R. Peterson
	 	 
	 

	 	Title: Assistant Secretary	 	 






[SEAL]




	 	 	 	 	 
	 	THE BANK OF NEW YORK

 	 
	 	By:  	/s/ Phil Triolo
 	 
	 	 	Name:  	Phil Triolo 	 
	 	 	Title: Assistant Vice President 	 
	 




Attest:



	 	 	 	 	 
	By:

	 	/s/ Eli Guardiola
 

Name: Eli Guardiola
	 	 
	 

	 	Title: Assistant Treasurer	 	 






34









 






EXHIBIT A




[Form of Right Certificate]




			
	 	 	 
	Certificate No. R-
	 	_________ Rights





NOT EXERCISABLE AFTER JULY 31, 2008 OR EARLIER IF NOTICE OF REDEMPTION OR EXCHANGE IS GIVEN. THE
RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.005 PER RIGHT AND TO EXCHANGE
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS MAY NOT BE
EXERCISABLE AND THE RIGHTS AGREEMENT MAY BE AMENDED WITHOUT THE APPROVAL OF THE RIGHTS OWNERS.




NATIONAL FUEL GAS COMPANY




Right Certificate




     This certifies that, or registered assigns, is the registered owner of the number of Rights
set forth above, each of which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement dated as of June 12, 1996, as amended and restated [___], and
as the same may from time to time be amended in accordance with its terms (as amended, the “Rights
Agreement”) between National Fuel Gas Company, a New Jersey corporation (the “Company”) and
                                         (the “Rights Agent”), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and prior to 5:00 P.M. (New
York, New York time) on July 31, 2008 at the designated office of the Rights Agent, or its
successors as Rights Agent, in                     , New York, one-half of one fully paid, nonassessable
share of the Common Stock, $1.00 par value (the “Common Stock”), of the Company, at a purchase
price of $65.00 per share (the “Purchase Price”), being $32.50 per half share, upon presentation
and surrender of this Right Certificate with the Form of Election to Purchase and related
certificate duly executed, along with a signature guarantee and such other and further
documentation as the Rights Agent may reasonably request. The number of Rights evidenced by this
Right Certificate (and the number of shares which may be purchased upon exercise thereof) set forth
above, and the Purchase Price per share set forth above, are the number and Purchase Price as of
                                        , based on the Common Stock of the Company as constituted at such date.



     Upon the occurrence of a Section 11(a)(ii) Event (as such term is defined in the Rights
Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement), (ii) a transferee of any such Acquiring Person, Associate or
Affiliate, or (iii) under certain circumstances specified in the Rights Agreement, a transferee of
a person who after such transfer, became an 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 Section 11(a)(ii) Event.



     As provided in the Rights Agreement, the Purchase Price and the number and kind of shares of
Common Stock (or, in certain circumstances, other securities) which may be



A-1









 







purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events, including Triggering Events (as
such term is defined in the Rights Agreement).



     This Right Certificate is subject to all of the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Right Certificates. Copies of the Rights Agreement are
on file at the above-mentioned office of the Rights Agent, and at the executive offices of the
Company.



     This Right Certificate, with or without other Right Certificates, upon surrender at the
designated office of the Rights Agent, along with a signature guarantee and such other and further
documentation as the Rights Agent may reasonably request, may be exchanged for another Right
Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of shares of Common Stock as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to receive upon
surrender hereof, along with a signature guarantee and such other and further documentation as the
Rights Agent may reasonably request, another Right Certificate or Right Certificates for the number
of whole Rights not exercised.



     Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate
(a) may be redeemed by the Company at its option at a redemption price of $.005 per Right prior to
the earlier of the close of business on (i) the tenth day following the Shares Acquisition Date and
(ii) the Final Expiration Date or (b) may be exchanged in whole or in part for shares of Common
Stock and/or other securities, cash or other assets of the Company deemed to have the same value as
shares of Common Stock, at any time after a Section 11(a)(ii) Event. The Rights Agreement may be
amended without the approval of the holders of the Rights as and to the extent set forth therein.



     No fractional shares of Common Stock will be issued upon the exercise or exchange of any Right
or Rights evidenced hereby, but in lieu thereof a cash payment will be made, as provided in the
Rights Agreement.



     No holder of this Right Certificate shall be entitled to vote or receive dividends or be
deemed for any purpose the holder of the Common 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
Rights Agreement 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 Rights Agreement), or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by this Right Certificate shall have been exercised or
exchanged for Common Stock as provided in the Rights Agreement.



A-2









 





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



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



[SEAL]




	 	 	 	 	 
	 	NATIONAL FUEL GAS COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Attest:




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






	 	 	 	 	 	 	 	 	 
	 	 	Countersigned:	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	,		 	 
	 	 	 	 	 	 	 
	 	 	as Rights Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Authorized Signature	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Date:	 	 	 	 






A-3









 






[Form of Reverse Side of Right Certificate]




FORM OF ASSIGNMENT



(To be executed by the registered holder if such holder desires to transfer the Right
Certificates.)




     FOR VALUE RECEIVED                                     hereby sells, assigns and transfers unto
                                                 this Right



(please print name and address of transferee)




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



	 	 	 
	 

	 	                                                            
	Dated:                                         

	 	Signature






Signature Guaranteed:




(Signatures must be guaranteed.)




A-4









 








CERTIFICATE




     The undersigned hereby certifies by checking the appropriate space that:



     Exercising this Right Certificate will ___will not ___enable the undersigned, its
Affiliates, its Associates and/or any other Person with which the undersigned or any of the
undersigned’s Affiliates or Associates has any agreement, arrangement or understanding (whether or
not in writing) for the purpose of acquiring, holding, voting or disposing of securities of the
Company to obtain, individually or in the aggregate, beneficial ownership of Common Stock or other
securities that have 10% or more of the aggregate voting power of the outstanding shares of the
Common Stock and other securities having voting power.



	 	 	 
	Dated:                                         

	 	                                                            
	 

	 	Signature






Signature Guaranteed:




(Signatures must be guaranteed.)




A-5









 








NOTICE




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



A-6









 





FORM OF ELECTION TO PURCHASE




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




To National Fuel Gas Company:




     The undersigned hereby irrevocably elects to exercise ___Rights represented by this
Right Certificate to purchase the shares of Common Stock issuable upon the exercise of such 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 be issued in the name of:



	 	 	 
	 

	 	 

	 

	 	(Please
print name and address)

	 
	 	 
	 

	 	 

	 

	 	(Please insert social security or other taxpayer identifying number)






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



	 	 	 
	 

	 	 
	 	 	(Please print name and address)
	 
	 	 
	 

	 	 

	 

	 	(Please insert social security or other taxpayer identifying number)






Dated:                     , ____




                                                            

Signature




Signature Guaranteed:




(Signatures must be guaranteed.)





A-7









 








EXHIBIT B




SUMMARY OF RIGHTS TO PURCHASE COMMON STOCK




     On March 19, 1996, the Board of Directors (the “Board”) of National Fuel Gas Company (the
“Company”) authorized the Company to enter into the Rights Agreement, dated as of June 12, 1996
(the “Original Rights Agreement”), between the Company and Marine Midland Bank, as rights agent.
In connection therewith, the Board authorized and declared a dividend distribution of one right
(collectively, the “Rights”) for each outstanding share of Common Stock, $1.00 par value, of the
Company (the “Common Stock”). Rights were distributed to the holders of record of Common Stock
outstanding at the close of business on July 31, 1996 (the “Record Date”), the record date
established by the Board on June 13, 1996. Each Right entitles the registered holder to purchase
from the Company one-half of a share of Common Stock at a price of $65 per share (the “Purchase
Price”), being $32.50 per half share, subject to adjustment.



     On September 17, 1998, the Board approved certain amendments to the Original Rights Agreement
and authorized the Company to enter into an Amended and Restated Rights Agreement to reflect those
amendments. On April 30, 1999, the Company entered into the Amended and Restated Rights Agreement,
dated as of April 30, 1999 (the Original Rights Agreement, as amended and restated, being
hereinafter referred to as the “Rights Agreement”), with HSBC Bank USA, (formerly known as Marine
Midland Bank) as rights agent. Among the amendments made to the Original Rights Agreement are (i)
a two-year extension of the term of the Rights Agreement to July 31, 2008, (ii) the qualification
of certain obligations of the Company under the Rights Agreement by reference to any regulatory
approvals that may be required in connection therewith, and (iii) in connection with the voting
standard required under the Rights Agreement for certain Board actions, the substitution of the
affirmative vote of three-fourths of the entire Board for the “Independent Director” vote required
under the Original Rights Agreement.



     On June 7, 2007, the Board approved certain amendments to the Amended and Restated Rights
Agreement and authorized the Company to enter into a second Amended and Restated Rights Agreement
to reflect those amendments. On June 7, 2007, the Company entered into the second Amended and
Restated Rights Agreement, dated as of June 8, 2007 (the Original Rights Agreement, as amended and
restated, being hereinafter referred to as the “Rights Agreement”), with HSBC Bank USA, National
Association (a national banking association formerly known as Marine Midland Bank and as HSBC Bank
USA) as rights agent. Among the amendments made to the Original Rights Agreement are (i) a change
in the definition of “Acquiring Person” under the Rights Agreement, (ii) certain changes to the
date on which the Rights are distributed to shareholders in the event of a tender or exchange
offer, (iii) a change to permit the Company to pay the redemption price in respect of the rights in
cash, shares of common stock, or any other form of consideration deemed appropriate by the Board
and (iv) changes to effect certain other technical amendments.



     On [___], 2007, HSBC Bank USA, National Association, resigned as Rights Agent and the Company
subsititued The Bank of New York as successor Rights Agent.



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     Currently, the Rights are attached to all Common Stock certificates representing shares
presently outstanding and the Rights will be attached to any new Common Stock certificates
representing shares hereafter issued.



Distribution Date; Transfer of Rights




     Until the earlier to occur of (i) ten days following the date (the “Shares Acquisition Date”)
of the public announcement that a person or group of affiliated or associated persons (an
“Acquiring Person”) has acquired, or obtained the right to acquire, beneficial ownership of Common
Stock or other voting securities (“Voting Stock”) that have 10% or more of the voting power of the
outstanding shares of Voting Stock or (ii) ten business days following the commencement or
announcement of an intention to make a tender offer or exchange offer the consummation of which
would result in such person acquiring, or obtaining the right to acquire, beneficial ownership of
Voting Stock having 10% or more of the voting power of the outstanding shares of Voting Stock (the
earlier of such dates being called the “Distribution Date”), the Rights will be evidenced, with
respect to any of the Company’s Common Stock certificates outstanding as of the Record Date, by
such Common Stock certificate. The Rights Agreement provides that, until the Distribution Date,
the Rights will be transferred with and only with the Company’s Common Stock. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new Common Stock
certificates issued after the Record Date upon transfer or new issuance of the Company’s Common
Stock will contain a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the surrender for transfer
of any of the Company’s Common Stock certificates outstanding as of the Record Date will also
constitute the transfer of the Rights associated with the Common Stock represented by such
certificate. As soon as practicable following the Distribution Date, separate certificates
evidencing the Rights (“Right Certificates”) will be mailed to holders of record of the Company’s
Common Stock as of the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.



     The Rights are not exercisable until the Distribution Date. The Rights will expire at the
close of Business on July 31, 2008, unless earlier redeemed or exchanged by the Company as
described below.



Exercise of Rights for Common Stock of the Company




     Subject to redemption or exchange of the Rights, at any time following the Distribution Date,
each holder of a Right will thereafter have the right to receive, upon exercise, Common Stock (or,
in certain circumstances, cash, property or other securities of the Company) having a value equal
to two times the Purchase Price of the Right then in effect. Notwithstanding any of the foregoing,
following the occurrence of such event set forth in this paragraph, all Rights that are, or (under
certain circumstances specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person will be null and void.



Exercise of Rights for Shares of the Acquiring Company




     In the event that, at any time following the Shares Acquisition Date, (i) the Company is
acquired in a merger or other business combination transaction, or (ii) 50% or more of



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the Company’s assets or earning power is sold or transferred, each holder of a Right (except
Rights which previously have been voided as set forth above) shall thereafter have the right to
receive, upon exercise, Common Stock of the acquiring company having a value equal to two times the
Purchase Price of the Right then in effect.



Adjustments to Purchase Price




     The Purchase Price payable, and the number of shares of Common Stock (or other securities, as
the case may be) issuable upon exercise of the Rights are subject to adjustment from time to time
to prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Common Stock, (ii) upon the grant to holders of the Common Stock of
certain rights or warrants to subscribe for or purchase shares of the Common Stock or convertible
securities at less than the then Current Market Price of the Common Stock or (iii) upon the
distribution to holders of the Common Stock of evidences of indebtedness or assets (excluding
regular periodic cash dividends or dividends payable in the Common Stock) or of subscription rights
or warrants (other than those referred to above). Prior to the Distribution Date, the Board of
Directors of the Company may make such equitable adjustments as it deems appropriate in the
circumstances in lieu of any adjustment otherwise required by the foregoing.



     With certain exceptions, no adjustment in the Purchase Price will be required until the
earlier of (i) three years from the date of the event giving rise to such adjustment or (ii) the
time at which cumulative adjustments require an adjustment of at least 1% in such Purchase Price.
No fractional shares of Common Stock will be issued and, in lieu thereof, an adjustment in cash
will be made based on the market price of the Common Stock on the last trading date prior to the
date of exercise.



Redemption and Exchange of Rights




     At any time prior to 5:00 P.M. New York, New York time on the tenth day following the Shares
Acquisition Date, the Company may redeem the Rights in whole, but not in part, at a price of $.005
per Right (the “Redemption Price”). The decision to redeem shall require the affirmative vote of
three-fourths of the entire Board of Directors. Immediately upon the action of the Board of
Directors of the Company electing to redeem the Rights, the Company shall make announcement
thereof, and upon such action, the right to exercise the Rights will terminate and the only right
of the holders of Rights will be to receive the Redemption Price.



     At any time after the occurrence of the event set forth under the heading “Exercise of Rights
for Common Stock of the Company” above, the Board of Directors, acting by the affirmative vote of
three-fourths of the entire Board of Directors, may exchange the Rights (other than Rights owned by
an Acquiring Person, which have become void), in whole or in part, at an exchange ratio of one
share of Common Stock, and/or other securities, cash or other assets deemed to have the same value
as one share of Common Stock, per Right, subject to adjustment.



     Until a Right is exercised or exchanged for Common Stock, the holder thereof, as such, will
have no rights as a stockholder of the Company, including, without limitation, the right to vote or
to receive dividends. While the distribution of the Rights will not be taxable to stockholders or
to the Company, stockholders may, depending upon the circumstances, recognize



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taxable income in the event that the Rights become exercisable for Common Stock or other
consideration of the Company or for the stock of the Acquiring Person as set forth above, or are
exchanged as provided in the preceding paragraph.



Amendments to Terms of the Rights




     Any of the provisions of the Rights Agreement may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights prior to the Distribution Date; provided
that any such amendment is approved by the affirmative vote of three-fourths of the entire Board of
Directors. Thereafter, the provisions of the Rights Agreement may be amended by the Board of
Directors, acting by a like three-fourths vote, in order to cure any ambiguity, defect or
inconsistency, or to make changes which do not adversely affect the interests of holders of Rights
(excluding the interest of any Acquiring Person); provided, however, that no supplement or
amendment may be made on or after the Distribution Date which changes those provisions relating to
the principal economic terms of the Rights. The Board of Directors may also, by a like
three-fourths vote, extend the redemption period for up to an additional 20 days.



     A copy of the Rights Agreement has been filed with the Securities and Exchange Commission as
an Exhibit to a Registration Statement on Form 8-A dated June 12, 1996 (as such may be amended from
time to time). A copy of the Rights Agreement is available free of charge from the Company. This
summary description of the Rights does not purport to be complete and is qualified in its entirety
by reference to the Rights Agreement, which is hereby incorporated herein by reference.




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