AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT dated as of May 22, 1998 (the
"Amendment") to the Rights Agreement dated as of July
3, 1992, and amended and restated as of September 24,
1997 (the "Agreement"), is made between SHOPKO STORES,
INC., a Wisconsin corporation (the "Company"), and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION (the
"Rights Agent"). Capitalized terms used herein and not
otherwise defined shall have the meanings given to them
in the Agreement.
WHEREAS, the Company and ShopKo Stores, Inc., a
Minnesota corporation (the "Predecessor"), entered into
an Agreement and Plan of Merger dated as of March 31,
1998 whereby the Predecessor merged with and into the
Company (the "Merger") with the purpose and effect of
changing the Predecessor's state of incorporation from
Minnesota to Wisconsin; and
WHEREAS, the Board has determined to amend the
Agreement in several respects in accordance with
Section 27 thereof to reflect the effectuation of the
Merger and to implement such amendments by executing
this Amendment.
Accordingly, in consideration of the premises and
the mutual agreements herein set forth, the parties
hereby agree as follows:
1. All references in the Agreement and the
exhibits thereto to the "Company" shall be deemed to be
references to ShopKo Stores, Inc., a Wisconsin
corporation.
2. All references in the Agreement and the
exhibits thereto to the Minnesota Business Corporation
Act shall be deemed to be references to the Wisconsin
Business Corporation Law. Section 1(r) of the
Agreement is hereby amended by deleting "302A.601" and
inserting "180.1102" in place thereof. Section 16(d)
of the Agreement is hereby amended by deleting
"302A.409" and inserting "180.0627" in place thereof.
3. Section 31 of the Agreement is hereby amended
by deleting the word "Minnesota" in each place where it
occurs and inserting the word "Wisconsin" in place
thereof.
4. Exhibit A of the Agreement is hereby deleted
in its entirety and the Attachment to the Articles of
Incorporation of ShopKo Stores, Inc., a Wisconsin
corporation, a copy of which is attached hereto,
inserted in place thereof.
5. All references in the Agreement to the "Form
of Certificate of Designations" shall be deemed to be
reference to the Attachment to Articles of
Incorporation of ShopKo Stores, Inc., a Wisconsin
corporation.
6. All references in the exhibits to the
Agreement to the "Rights Agreement" shall be deemed to
be references to the Agreement as amended by this
Amendment.
This Amendment 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.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed as of the day and
year first above written.
SHOPKO STORES, INC. NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
------------------------------------ ---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman, President and Chief Title: Account Officer
Executive Officer
ATTACHMENT
TO THE
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
NEW SHOPKO, INC.
PREFERENCES, LIMITATIONS AND
RELATIVE RIGHTS OF THE SERIES B
JUNIOR PARTICIPATING PREFERRED STOCK
1. Dividends and Distributions.
(a) Subject to the rights of the holders of any
shares of any series of Preferred Stock (or any similar
stock) ranking prior and superior to the Series B
Junior Participating Preferred Stock (the "Series B
Preferred Stock") with respect to dividends, the
holders of shares of Series B Preferred Stock, in
preference to the holders of Common Stock, par value
$0.01 per share (the "Common Stock") of the Corporation
and of any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of
Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the
first day of March, June, September and December in
each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series B
Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (i) $10 or (ii)
subject to the provision for adjustment hereinafter set
forth, 1,000 times the aggregate per share amount of
all cash dividends, and 1,000 times the aggregate per
share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of
the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common
Stock since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series
B Preferred Stock. In the event the Corporation shall
at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount to
which holders of shares of Series B Preferred Stock
were entitled immediately prior to such event under
clause (ii) of the preceding sentence shall be adjusted
by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
(b) The Corporation shall declare a dividend or
distribution on the Series B Preferred Stock as
provided in paragraph (A) of this Section immediately
after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares
of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on
the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $10 per
share on the Series B Preferred Stock shall
nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(c) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series B Preferred
Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the
date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless
the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the
determination of holders of shares of Series B
Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares
of Series B Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record
date for the determination of holders of shares of
Series B Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which
record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
2. Voting Rights. The holders of shares of
Series B Preferred Stock shall have the following
voting rights:
(a) Subject to the provision for adjustment
hereinafter set forth, each share of Series B Preferred
Stock shall entitle the holder thereof to 1,000 votes
on all matters submitted to a vote of the shareholders
of the Corporation. In the event the Corporation shall
at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after
such event and the denominator of which is the number
of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided herein, in any
Articles of Amendment or such other similar document
creating a series of Preferred Stock or any similar
stock, or by law, the holders of shares of Series B
Preferred Stock and the holders of shares of Common
Stock and any other capital stock of the Corporation
having general voting rights shall vote together as one
class on all makers submitted to a vote of shareholders
of the Corporation.
(c) Except as set forth herein, or as otherwise
provided by law, holders of Series B Preferred Stock
shall have no special voting rights and their consent
shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set
forth herein) for taking any corporate action.
3. Certain Restrictions.
(a) Whenever quarterly dividends or other
dividends or distributions payable on the Series B
Preferred Stock as provided in Section C.1, above, are
in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared,
on shares of Series B Preferred Stock outstanding shall
have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred
Stock, except dividends paid ratably on the Series B
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up), to the Series B Preferred
Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series B Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series B Preferred Stock,
or any shares of stock ranking on a parity with the
Series B Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
(b) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under
paragraph (a) of this Section 3, purchase or otherwise
acquire such shares at such time and in such manner.
4. Reacquired Shares. Any shares of Series B
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred
Stock subject to the conditions and restrictions on
issuance set forth herein, in the Articles of
Incorporation, or in any Articles of Amendment or such
other similar document creating a series of Preferred
Stock or any similar stock or as otherwise required by
law.
5. Liquidation, Dissolution or Winding Up. Upon
any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (a) to the
holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding
up) to the Series B Preferred Stock unless, prior
thereto, the holders of shares of Series B Preferred
Stock shall have received $1,000 per share, plus an
amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the
date of such payment, provided that the holders of
shares of Series B Preferred Stock shall be entitled to
receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal
to 1,000 times the aggregate amount to be distributed
per share to holders of shares of Common Stock, or (b)
to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred
Stock, except distributions made ratably on the Series
B Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation
shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of
shares of Series B Preferred Stock were entitled
immediately prior to such event under the proviso in
clause (b) of the preceding sentence shall be adjusted
by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
6. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property,
then in any such case each share of Series B Preferred
Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the
provision for adjustment hereinafter set forth, equal
to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. In the
event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding
sentence with respect to the exchange or change of
shares of Series B Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
7. No Redemption. The shares of Series B
Preferred Stock shall not be redeemable.
8. Rank. The Series B Preferred Stock shall
rank, with respect to the payment of dividends and the
distribution of assets, junior to all series of any
other class of the Corporation's Preferred Stock.