Exhibit 4.1
[FORM OF]
AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT, dated as of August
29, 2006, is made between ▇▇▇▇▇▇▇▇ Corporation, a Missouri corporation (the
"Company"), and UMB Bank, N.A. (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on August 25, 1998, the Company and the Rights Agent
entered into a Rights Agreement (the "Rights Agreement");
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Company and the Rights Agent may from time to time supplement or amend the
Rights Agreement in accordance with the provisions of Section 27 thereof;
and
WHEREAS, the Board of Directors of the Company has determined that
it is in the best interests of the Company and its shareholders to amend the
Rights Agreement pursuant to Section 27;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Clause (y) in the first sentence of Section 11(c) of the Rights
Agreement, which currently reads as follows, "(y) any class or series of
preferred stock (or other equity securities) of the Company, including, but
not limited to Preferred Stock, equal in the aggregate to the Number of
Adjustment Shares where the Board of Directors shall have in good faith
deemed such shares or units, other than the shares of Common Stock, to have
at least the same value and voting rights as the Common Stock (a "Common
Stock Equivalent");" is hereby amended to read in its entirety as follows:
(y) any class or series of preferred stock (or other equity
securities) of the Company, including, but not limited to Preferred
Stock (or fractional shares thereof), equal in the aggregate to the
Number of Adjustment Shares where the Board of Directors shall have
in good faith deemed such shares, fractional shares or units, other
than the shares of Common Stock, to have at least the same value
(excluding voting rights, in the case of fractional shares of
Preferred Stock) as the Common Stock (a "Common Stock Equivalent");
2. Section 24(c) of the Rights Agreement is hereby amended to read in its
entirety as follows:
In any exchange pursuant to this Section 24, the Company, at its
option, may substitute Preferred Stock for Common Stock
exchangeable for Rights, at the initial rate of one one-hundredth
of a share of Preferred Stock for each share of Common Stock, as
appropriately adjusted for such events as stock splits, stock
dividends and
recapitalizations with respect to the Common Stock occurring after
the date of this Agreement.
3. Exhibit A to the Rights Agreement is hereby amended to read in its
entirety as set forth in Exhibit A attached hereto.
4. The fourth sentence of the twelfth paragraph of the Summary of Preferred
Stock Purchase Rights in Exhibit C to the Rights Agreement, which currently
reads as follows, "Each one one-hundredth of a share of Preferred Stock will
have one vote, voting together with the shares of Common Stock", is hereby
amended to read in its entirety as follows:
Each share of Preferred Stock will have one vote, voting together
with the shares of Common Stock.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to the Rights Agreement to be duly executed as of the day and year
first above written.
▇▇▇▇▇▇▇▇ CORPORATION
By:
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Name:
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Title:
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UMB BANK, N.A.
By:
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Name:
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Title:
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EXHIBIT A
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[FORM OF CERTIFICATE OF DESIGNATION]
AMENDMENT TO
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF CLASS B SERIES 2 JUNIOR PARTICIPATING PREFERRED STOCK
OF
▇▇▇▇▇▇▇▇ CORPORATION
▇▇▇▇▇▇▇▇ Corporation (hereinafter called the "Company"), a
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corporation organized and existing under the General and Business
Corporation Law of Missouri, hereby certifies that:
That, pursuant to the authority vested in the Board of
Directors of the Company by Article Three of the Articles of Incorporation
of the Company, the following resolutions were duly adopted at a meeting of
the Board of Directors of the Company duly called and held on August __,
2006:
RESOLVED, that, pursuant to authority vested in the Board
of Directors of the Company by Article Three of the Articles of
Incorporation of the Company, the Board of Directors of the Company hereby
adopts and approves an amendment (the "Amendment") of the Certificate of
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Designation, Preferences and Rights of Class B Series 2 Junior Participating
Preferred Stock of the Company (the "Class B Series 2 Preferred Stock")
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filed with the Secretary of State of the State of Missouri on September 2,
1998, which Amendment amends and restates the designation, amount, powers,
preferences and relative, participating, optional and other special rights
of the shares of the Class B Series 2 Preferred Stock, and the
qualifications, limitations or restrictions thereof, to read in their
entirety as set forth in Appendix A attached hereto;
FURTHER RESOLVED, that, upon the filing of the Amendment
with the Secretary of State of the State of Missouri, the Class B Series 2
Preferred Stock shall have the designation and amount thereof and the
powers, preferences and relative, participating, optional and other special
rights, and the qualifications, limitations or restrictions thereof, as set
forth in Appendix A attached hereto.
IN WITNESS WHEREOF, this Amendment to Certificate of
Designation has been executed by the Company by its Vice President this 29th
day of August, 2006.
▇▇▇▇▇▇▇▇ CORPORATION
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▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
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APPENDIX A
DESIGNATION, PREFERENCES AND RIGHTS OF
CLASS B SERIES 2 JUNIOR PARTICIPATING PREFERRED STOCK
OF
▇▇▇▇▇▇▇▇ CORPORATION
Section 1. Designation and Amount.
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There shall be a series of the voting preferred stock of
the Company which shall be designated as the "Class B Series 2 Junior
Participating Preferred Stock," $1.00 stated value, and the number of shares
constituting such series shall be Two Hundred Thousand (200,000). Such
number of shares may be increased or decreased by resolution of the Board of
Directors; provided, however, that no decrease shall reduce the number of
shares of Class B Series 2 Junior Participating Preferred Stock to a number
less than that of the shares then outstanding plus the number of shares
issuable upon exercise of outstanding rights, options or warrants or upon
conversion of outstanding securities issued by the Company.
Section 2. Dividends and Distributions.
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(A) Subject to the rights of the holders of any shares of
any series of preferred stock of the Company ranking prior and superior to
the Class B Series 2 Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Class B Series 2 Junior Participating
Preferred Stock, in preference to the holders of shares of Common Stock,
$1.00 par value (the "Common Stock"), of the Company 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 or about the first day of January, April, July
and October 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 Class B Series 2 Junior Participating Preferred Stock, in an amount
per share (rounded to the nearest cent), subject to the provision for
adjustment hereinafter set forth, equal to the greater of (a) $1.00 or (b)
subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends and 100 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 Class B Series 2 Junior Participating Preferred Stock. In the
event the Company shall at any time after August 25, 1998 (the "Rights
Declaration Date") 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 Class B Series 2 Junior
Participating Preferred Stock were entitled immediately prior to such event
shall
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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 Company shall declare a dividend or distribution
on the Class B Series 2 Junior Participating 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, however, 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 $1.00 per share on the Class
B Series 2 Junior Participating 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 Class B Series 2 Junior Participating 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
Class B Series 2 Junior Participating 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 Class B
Series 2 Junior Participating 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 Class B Series 2 Junior
Participating 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.
Section 3. Voting Rights.
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The holders of shares of Class B Series 2 Junior
Participating Preferred Stock shall have the following voting rights:
(A) Each share of Class B Series 2 Junior Participating
Preferred Stock shall entitle the holder thereof to one vote on all matters
submitted to a vote of the stockholders of the Company.
(B) Except as otherwise provided herein, in the Company's
Articles of Incorporation or by law, the holders of shares of Class B Series
2 Junior Participating Preferred Stock, the holders of shares of Common
Stock, and the holders of shares of any other capital stock of the Company
having general voting rights shall vote together as one class on all matters
submitted to a vote of stockholders of the Company.
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(C) Except as otherwise set forth herein or in the
Company's Articles of Incorporation, and except as otherwise provided by
law, holders of Class B Series 2 Junior Participating 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.
Section 4. Certain Restrictions.
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(A) Whenever dividends or distributions payable on the
Class B Series 2 Junior Participating Preferred Stock as provided in Section
2 are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Class B Series 2 Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Company shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Class B Series 2 Junior
Participating Preferred Stock;
(ii) declare or pay dividends on 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 Class B
Series 2 Junior Participating Preferred Stock, except dividends paid ratably
on the Class B Series 2 Junior Participating 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) except as permitted in Section 4(A)(iv)
below, redeem or purchase or otherwise acquire for consideration shares of
any stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Class B Series 2 Junior Participating
Preferred Stock, provided, however, that the Company may at any time redeem,
purchase or otherwise acquire shares of any such parity stock in exchange
for shares of any stock of the Company ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the Class B
Series 2 Junior Participating Preferred Stock; and
(iv) purchase or otherwise acquire for
consideration any shares of Class B Series 2 Junior Participating Preferred
Stock, or any shares of stock ranking on a parity with the Class B Series 2
Junior Participating 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 Company shall not permit any subsidiary of the
Company to purchase or otherwise acquire for consideration any shares of
stock of the Company unless the Company
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could, under paragraph (A) of this Section 4, purchase or otherwise acquire
such shares at such time and in such manner.
Section 5. Reacquired Shares.
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Any shares of Class B Series 2 Junior Participating
Preferred Stock purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. The Company shall cause all such shares upon their cancellation to
be authorized but unissued shares of Preferred Stock which may be reissued
as part of a new series of Preferred Stock, subject to the conditions and
restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
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(A) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Company, no distribution shall be made to
the holders of shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Class B Series 2 Junior
Participating Preferred Stock unless, prior thereto, the holders of shares
of Class B Series 2 Junior Participating Preferred Stock shall have received
$100.00 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment
(the "Class B Series 2 Liquidation Preference"). Following the payment of
the full amount of the Class B Series 2 Liquidation Preference, no
additional distributions shall be made to the holders of shares of Class B
Series 2 Junior Participating Preferred Stock, unless, prior thereto, the
holders of shares of Common Stock shall have received an amount per share
(the "Common Adjustment") equal to the quotient obtained by dividing (i) the
Class B Series 2 Liquidation Preference by (ii) 100 (as appropriately
adjusted as set forth in paragraph (C) of this Section 6 to reflect such
events as stock dividends, and subdivisions, combinations and consolidations
with respect to the Common Stock) (such number in clause (ii) being referred
to as the "Adjustment Number"). Following the payment of the full amount of
the Class B Series 2 Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Class B Series 2 Junior Participating
Preferred Stock and Common Stock, respectively, holders of Class B Series 2
Junior Participating Preferred Stock and holders of shares of Common Stock
shall receive their ratable and proportionate share of the remaining assets
to be distributed in the ratio of the Adjustment Number to 1 with respect to
such Class B Series 2 Junior Participating Preferred Stock and Common Stock,
on a per share basis, respectively.
(B) In the event there are not sufficient assets available
to permit payment in full of the Class B Series 2 Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Class B Series 2 Junior Participating
Preferred Stock, then such remaining assets shall be distributed ratably to
the holders of such parity shares in proportion to their respective
liquidation preferences. In the event there are not sufficient assets
available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common
Stock.
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(C) In the event the Company shall at any time after the
Rights Declaration Date declare or pay any dividend on 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 Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment 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 are outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc.
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In case the Company 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 the shares of Class B Series 2 Junior
Participating Preferred Stock shall at the same time be similarly exchanged
or changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 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 exchanged or
changed. In the event the Company shall at any time after the Rights
Declaration Date declare or pay any dividend on 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 Class B Series 2 Junior Participating 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 are outstanding immediately prior to such event.
Section 8. Redemption.
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The shares of Class B Series 2 Junior Participating
Preferred Stock shall not be redeemable.
Section 9. Ranking.
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The Class B Series 2 Junior Participating Preferred Stock
shall rank junior to all other series of the Company's Preferred Stock as to
the payment of dividends and the distribution of assets, unless the terms of
any such series shall provide otherwise.
Section 10. Fractional Shares.
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Class B Series 2 Junior Participating Preferred Stock may
be issued in fractions which are integral multiples of one one-hundredth of
a share. Fractions of shares of Class B Series 2 Junior Participating
Preferred Stock may, at the election of the Company, be evidenced
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by depositary receipts, pursuant to an appropriate agreement between the
Company and a depositary selected by the Company. The holders of such
depositary receipts shall have all the rights, privileges and preferences to
which they are entitled as beneficial owners of the Class B Series 2 Junior
Participating Preferred Stock represented by such depositary receipts.
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