EXHIBIT 4.2
-------------------------------------------------------------------------------
XXXXX'X GENERAL STORES, INC.
AND
UMB BANK, N.A.
as Rights Agent
FOURTH AMENDMENT
TO
RIGHTS AGREEMENT
Dated as of September 17, 1999
-------------------------------------------------------------------------------
FOURTH AMENDMENT
TO
RIGHTS AGREEMENT
This Fourth Amendment to Rights Agreement dated as of September 17, 1999
(the "Fourth 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, a Second Amendment to Rights Agreement dated as
of March 29, 1994, and a Third Amendment to Rights Agreement dated as of May 5,
1999 (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 Fourth Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth, the parties hereby agree as follows:
Section 1. MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES. The
provisions of Section 6 of the Rights Agreement, whereby there are established
procedures for the delivery of a new Right Certificate in lieu of a lost,
stolen, destroyed or mutilated Right Certificate, are hereby amended by deleting
the second unnumbered paragraph of said Section 6 and inserting in lieu thereof
the following:
Upon receipt by the Rights Agent of evidence reasonably satisfactory to
it 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 it, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all reasonable fees
and 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 holder in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 2. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES. The
provisions of Section 8 of the Rights Agreement, whereby there are established
procedures for the cancellation and destruction of surrendered Right
Certificates, are hereby amended by deleting the last sentence of such section
and inserting in lieu thereof the following:
The Rights Agent shall deliver a certificate of cancellation of Right
Certificates to the Company, and shall destroy such cancelled Right
Certificates in accordance with applicable regulations.
Section 3. ADDITIONAL DUTIES OF RIGHTS AGENT. The provisions of Section 20
of the Rights Agreement, whereby there are established the terms and conditions
upon which the Rights Agent undertakes the duties and obligations imposed by the
Rights Agreement, are hereby amended to add the following three new subsections:
(j) If, with respect to any Right Certificate surrendered to the Rights
Agent for exercise or transfer, the certificate contained in the form of
assignment or the form of election to purchase set forth on the reverse thereof,
as the case may be, has not been completed to certify the holder is not an
Acquiring Person (or an Affiliate or Associate thereof), the Rights Agent may
take no further action with respect to such requested exercise or transfer until
receiving written instructions from the Company.
(k) The Rights Agent shall have no responsibility to the Company, any
holders of Rights or any stockholder for interest or earnings on any monies held
by the Rights Agent pursuant to this Agreement.
(l) The Rights Agent shall not be required to take notice or be deemed to
have notice of any event or condition hereunder, including, but not limited to,
a Distribution Date, a Redemption Date, any adjustment of the Purchase Price of
the Common Shares, the existence of an Acquiring Person or a beneficial owner or
any other event or condition that may require action by the Rights Agent, unless
the Rights Agent shall be specifically notified in writing of such event or
condition by the Company, and all notices or other requirements required by this
Agreement to be delivered to the Rights Agent must, in order to be effective, be
received at the principal office of the Rights Agent, and in the absence of such
notice so delivered, the Rights Agent may conclusively assume no such event or
condition exists.
Section 4. CHANGE OF RIGHTS AGENT. The provisions of Section 21 of the
Rights Agreement, whereby the Rights Agent or any successor Rights Agent may
resign or be discharged from its duties under the Rights Agreement, are hereby
amended by deleting the fourth sentence of said Section 21 and inserting in lieu
thereof the following:
If the Company shall fail to make such appointment within a period of 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 a holder of a Right Certificate (who shall, with such notice,
submit his Right Certificate for inspection by the Company), then the registered
holder of any Right Certificate or the resigning or incapacitated Rights Agent
may apply to any court of competent jurisdiction for the appointment of a new
Rights Agent.
Section 5. NOTICES AND REPLACEMENT OF ADDRESS OF RIGHTS
AGENT.
(a) The provisions of Section 26 of the Rights Agreement, whereby there are
set forth the addresses to be used for sending any notices or demands authorized
to be given or made under the Rights Agreement, are hereby amended by deleting
the address of the Rights Agent set forth therein, and inserting in lieu thereof
the following:
UMB Bank, n.a., as Rights Agent
X.X. Xxx 000000
Xxxxxx Xxxx, XX 00000-0000
ATTN: Corporate Trust Department
Section 6. FORM OF RIGHT CERTIFICATE. The Form of Right Certificate
attached as Exhibit A to the Rights Agreement is hereby amended by deleting the
sentence immediately following the heading "Signature Guaranteed" in the Form of
Assignment included as a part thereof and inserting in lieu thereof the
following:
Signature must be guaranteed by an Eligible Guarantor Institution as
defined by SEC Rule 17 Ad-15 (17 CFR 240.17 Ad-15).
Section 7. EFFECTIVE DATE OF FOURTH AMENDMENT. The amendments provided for
herein shall be deemed effective as of September 17, 1999.
Section 8. 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 Fourth Amendment.
(c) This Fourth 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 Fourth 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
