XXXXX'X GENERAL STORES, INC.
AND
UMB BANK, N.A.
as Rights Agent
THIRD AMENDMENT
TO
RIGHTS AGREEMENT
Dated as of May 5, 1999
THIRD AMENDMENT
TO
RIGHTS AGREEMENT
This Third Amendment to Rights Agreement dated as of May 5, 1999 (the
"Third Amendment") between Xxxxx'x General Stores, Inc., an Iowa corporation
(the "Company") and UMB Bank, n.a. (formally known as United Missouri Bank of
Kansas City, n.a., and United Missouri Bank, n.a.), a national bank organized
under the laws of the United States (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights Agreement
dated as of June 14, 1989, as amended by a First Amendment to Rights Agreement
dated as of September 4, 1990 and a Second Amendment to Rights Agreement dated
as of March 29, 1994 (together, the "Rights Agreement"), and in accordance
therewith, the Board of Directors of the Company has authorized and declared a
dividend of one common share purchase right (a "Right") for each Common Share
(as defined therein) of the Company outstanding as of the close of business on
June 14, 1989 (the "Record Date"), each Right representing the right to purchase
one Common Share, upon the terms and subject to the conditions set forth
therein, and has further authorized and directed the issuance of one Right with
respect to each Common Share that shall become outstanding between the Record
Date and the earliest of the Distribution Date, the Redemption Date and the
Final Expiration Date (as such terms are defined in the Rights Agreement); and
WHEREAS, the Company has determined to amend the Rights Agreement in
several respects as contained in this Third Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth, the parties hereby agree as follows:
Section 1. Defintion of "Acquiring Person". The provisions of Section 1(a)
of the Rights Agreement, whereby there is established a definition for an
"Acquiring Person" within the meaning of the Rights Agreement, and all
references to an Acquiring Person otherwise contained in the Rights Agreement,
are hereby amended to provide that an Acquiring Person shall be defined as
follows:
(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 15% or more of the Common Shares of the
Company then outstanding, 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 entity holding Common
Shares for or pursuant to the terms of any such plan or (ii) any Person who or
which, together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 15% or more of the Common Shares of the Company then
outstanding in the good faith belief that such acquisition would not (x) cause
such Person and its Affiliates and Associates to become the Beneficial Owner of
15% or more of the Common Shares of the Company then outstanding and such Person
relied in good faith in computing the percentage of its voting power on publicly
filed reports or documents of the Company which are inaccurate or out-of-date or
(y) otherwise cause a Distribution Date or the adjustment provided for in
Section 11(a) to occur. Notwithstanding clause (ii) of the prior sentence, if
any Person that is not an Acquiring Person due to such clause (ii) does not
cease to be the Beneficial Owner of 15% or more of the Common Shares of the
Company then outstanding by the close of business on the fifth Business Day
after notice from the Company (the date of notice being the first day) that such
Person is the Beneficial Owner of 15% or more of the Common Shares of the
Company then outstanding, then such Person shall, at the end of such five
Business Day period, become an Acquiring Person (and such clause (ii) shall no
longer apply to such Person). For purposes of this definition, the determination
whether any Person acted in "good faith" shall be conclusively determined by the
Board of Directors of the Company. Notwithstanding the foregoing, no Person
shall become an Acquiring Person as a result of an acquisition of Common Shares
by the Company which, by reducing the number of shares outstanding, increases
the proportionate number of shares beneficially owned by such Person to 15% or
more of the Common Shares of the Company then outstanding; provided, however,
that if a Person shall become the Beneficial Owner of 15% or more of the Common
Shares of the Company then outstanding by reason of share purchases by the
Company and shall, after such share purchases by the Company, become the
Beneficial Owner of any additional Common Shares of the Company (other than
pursuant to a stock split, stock dividend or similar transaction), then such
Person shall be deemed to be an Acquiring Person.
Section 2. Issuance of Rights Certificates. The provisions of Section 3(a)
of the Rights Agreement, whereby there is established a 20% threshold for the
acquisition of Common Shares by any Person as triggering the issuance of Right
Certificates in accordance with the Rights Agreement, are hereby amended to
provide that the foregoing threshold would be reached, and Right Certificates
issued in accordance with the Rights Agreement, in the event any Person becomes
the Beneficial Owner of Common Shares aggregating 15% or more of the then
outstanding Common Shares, and for all purposes of the Rights Agreement the
threshold set forth in said Section 3(a) is hereby amended to provide that the
said threshold shall be 15%.
Section 3. Extension of Final Expiration Date. The provisions of Section
7(a) of the Rights Agreement establishing the Final Expiration Date, and all
references to the Final Expiration Date otherwise contained in the Rights
Agreement, are hereby amended to provide that the Final Expiration Date shall be
June 14, 2009.
Section 4. Adjustment of Purchase Price. The provisions of Section 7(b) of
the Rights Agreement establishing the Purchase Price, and all references to the
Purchase Price otherwise contained in the Rights Agreement, are hereby amended
to provide that the Purchase Price shall be $60.00.
Section 5. Effective Date of Third Amendment. The amendments provided for
herein shall be deemed effective as of May 5, 1999.
Section 6. Miscellaneous.
(a) Except as otherwise expressly provided herein, or unless the context
otherwise requires, all terms used herein have the meanings assigned to them in
the Rights Agreement.
(b) Each party hereto waives any requirement under the Rights Agreement
that any additional notice be provided to it pertaining to the matters covered
by this Third Amendment.
(c) This Third Amendment may be executed in any number of counterparts each
of which shall be deemed an original, and all such counterparts shall together
constitute but one and the same document.
(d) Except as amended herein, all other terms and conditions of the Rights
Agreement are in all respects ratified, confirmed and approved.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
Rights Agreement to be duly executed and attested, all as of the day and year
first above written.
XXXXX'X GENERAL STORES, INC.
By: /S/ Xxxxxx X. Xxxx
---------------------------------
Xxxxxx X. Xxxx, Chief Executive Officer
ATTEST:
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx, Secretary/Treasurer
(SEAL)
UMB BANK, n.a., as Rights Agent
By: /s/ Xxxxx X. Xxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
ATTEST:
By: /s/ Xxxxxxxx Xxxxx
-------------------
Name: Xxxxxxxx Xxxxx
Title: Assistant Vice President and
Assistant Secretary
