1
EXHIBIT 4.2
--------------------------------------------------------------------------------
XXXXX'X GENERAL STORES, INC.
AND
UMB BANK, N.A.
as Rights Agent
THIRD AMENDMENT
TO
RIGHTS AGREEMENT
Dated as of May 5, 1999
--------------------------------------------------------------------------------
2
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. Definition 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
-2-
3
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
-3-
4
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.
-4-
5
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
-5-
