<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM 8-A12G/A
AMENDMENT NO. 1 TO
REGISTRATION STATEMENT ON FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commerce Bancshares, Inc.
(Exact name of registrant as specified in its charter)
Missouri 43-0889454
(State of incorporation or organization) (IRS Employer
Identification No.)
1000 Walnut Street
Kansas City, MO 64106
(Address of principal executive offices) (Zip Code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None None
Securities to be registered pursuant to Section 12(g) of the
Act:
Preferred Stock Purchase Rights
(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be
Registered.
On August 23, 1988, the Board of Directors of Commerce
Bancshares, Inc., a Missouri corporation (the "Company"),
declared a dividend of one preferred stock purchase right (a
"Right") for each outstanding share of Common Stock, $5.00 par
value ("Common Stock"), of the Company held of record at the
close of business on September 7, 1988 (the "Record Date"), or
issued thereafter and prior to the Distribution Date (as defined
in the Original Rights Agreement described below). The Rights
were issued pursuant to a Rights Agreement, dated as of
August 23, 1988, between the Company and Morgan Shareholder
Services Trust Company (the name of which was later changed to
First Chicago Trust Company of New York), as rights agent (the
"Original Rights Agreement"). On June 7, 1996, the Company
amended and restated the Original Rights Agreement in its
entirety (the "Amended Rights Agreement") and appointed Commerce
Bank, N.A. to replace First Chicago Trust Company of New York.
In addition, due to adjustments in the number of Rights pursuant
to the terms of the Original Rights Agreement, each share of
Common Stock had, as of June 7, 1996, .302 of a Right associated
with it. Accordingly, on June 7, 1996, the Board of Directors
declared a dividend of an additional .698 of a Right for each
share of Common Stock outstanding as of June 21, 1996. The terms
of the Rights, as so amended, are summarized herein.
Each Right entitles its registered holder to purchase
from the Company, after the Distribution Date, one one-hundredth
of a share of Class A Preferred Stock, $1.00 par value (the
"Preferred Stock"), for $150 (the "Purchase Price"), subject to
adjustment. The Rights will be evidenced by the Common Stock
certificates until the close of business on the earlier of the
date (either, the "Distribution Date") which is (i) the tenth
business day (or such later date as the Board of Directors of the
Company may from time to time fix by resolution adopted prior to
the Distribution Date that would otherwise have occurred) after
the date on which any Person (as defined in the Amended Rights
Agreement) commences a tender or exchange offer which, if
consummated, would result in such Person's becoming an Acquiring
Person, as defined below, or (ii) the tenth business day (or such
earlier or later date as the Board of Directors of the Company
may from time to time fix by resolution adopted prior to the
Flip-in Date (as defined below) that would otherwise have
occurred) after the first date of public announcement by the
Company that such Person has become an Acquiring Person (the
"Flip-in Date"); provided that if a tender or exchange offer
referred to in clause (i) is cancelled, terminated or otherwise
withdrawn prior to the Distribution Date without the purchase of
any shares of stock pursuant thereto, such offer shall be deemed
never to have been made. An Acquiring Person is any Person who
<PAGE>
is the Beneficial Owner (as defined in the Amended Rights
Agreement) of 15% or more of the outstanding shares of Common
Stock, provided, however, such term shall not include (i) the
Company, any wholly-owned subsidiary of the Company or any
employee stock ownership or other employee benefit plan of the
Company, (ii) any person who is the Beneficial Owner of 10% or
more of the outstanding Common Stock as of the date of the
Amended Rights Agreement or who shall become the Beneficial Owner
of 15% or more of the outstanding Common Stock solely as a result
of an acquisition of Common Stock by the Company, until such time
as such Person acquires additional Common Stock, other than
through a dividend or stock split, (iii) any Person who becomes
an Acquiring Person without any plan or intent to seek or affect
control of the Company if such Person promptly divests sufficient
securities such that such 15% or greater Beneficial Ownership
ceases or (iv) any Person who Beneficially Owns shares of Common
Stock consisting solely of (A) shares acquired pursuant to the
grant or exercise of an option granted by the Company in
connection with an agreement to merge with, or acquire, the
Company prior to a Flip-in Date, (B) shares owned by such Person
and its Affiliates and Associates at the time of such grant, (C)
shares, amounting to less than 1% of the outstanding Common
Stock, acquired by Affiliates and Associates of such Person after
the time of such grant or (D) shares which are held by such
Person in trust accounts, managed accounts and the like or
otherwise held in a fiduciary capacity, that are beneficially
owned by third persons who are not Affiliates or Associates of
such Person or acting together with such Person to hold shares,
or which are held by such Person in respect of a debt previously
contracted. The Amended Rights Agreement provides that, until
the Distribution Date, the Rights will be transferred with and
only with the Common Stock. Common Stock certificates issued
prior to the Distribution Date shall evidence one Right for each
share of Common Stock represented thereby and shall contain a
legend incorporating by reference the terms of the Amended Rights
Agreement (as such may be amended from time to time). Notwith-
standing the absence of the aforementioned legend, certificates
evidencing shares of Common Stock outstanding on or prior to the
Record Date or which bear an earlier form of legend shall also
evidence one Right for each share of Common Stock evidenced
thereby. Promptly following the Distribution Date, separate
certificates evidencing the Rights ("Rights Certificates") will
be mailed to holders of record of Common Stock at the
Distribution Date.
The Rights will not be exercisable until the Business
Day (as defined in the Amended Rights Agreement) following the
Distribution Date. The Rights will expire on the earliest of
(i) the Exchange Time (as defined below), (ii) the close of
business on June 7, 2006, (iii) the date on which the Rights are
redeemed as described below and (iv) upon certain mergers of the
<PAGE>
Company with another corporation pursuant to an agreement entered
into prior to a Flip-in Date (in any such case, the "Expiration
Time").
The Purchase Price and the number of Rights
outstanding, or in certain circumstances the securities
purchasable upon exercise of the Rights, are subject to
adjustment from time to time to prevent dilution in the event of
a Common Stock dividend on, or a subdivision or a combination
into a smaller number of shares of, Common Stock, or the issuance
or distribution of any securities or assets in respect of, in
lieu of or in exchange for Common Stock.
In the event that prior to the Expiration Time a Flip-
in Date occurs, each Right (other than Rights Beneficially Owned
by the Acquiring Person or any Affiliate or Associate thereof,
which Rights shall become void) shall constitute the right to
purchase from the Company, upon the exercise thereof in
accordance with the terms of the Amended Rights Agreement, that
number of shares of Common Stock of the Company having an
aggregate Market Price (as defined in the Amended Rights
Agreement), on the date of the public announcement of an
Acquiring Person's becoming such (the "Stock Acquisition Date")
that gave rise to the Flip-in Date, equal to twice the Purchase
Price for an amount in cash equal to the then current Purchase
Price. In addition, the Board of Directors of the Company may,
at its option, at any time after a Flip-in Date and prior to the
time an Acquiring Person becomes the Beneficial Owner of more
than 50% of the outstanding shares of Common Stock, elect to
exchange all (but not less than all) the then outstanding Rights
(other than Rights Beneficially Owned by the Acquiring Person or
any affiliate or associate thereof, which Rights become void) for
shares of Common Stock at an exchange ratio of one share of
Common Stock per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring
after the date of the Distribution Date (the "Exchange Ratio").
Immediately upon such action by the Board of Directors (the
"Exchange Time"), the right to exercise the Rights will terminate
and each Right will thereafter represent only the right to
receive a number of shares of Common Stock equal to the Exchange
Ratio.
Whenever the Company shall become obligated under the
preceding paragraph to issue shares of Common Stock upon exercise
of or in exchange for Rights, the Company, at its option, may
substitute therefor shares of Preferred Stock, at a ratio of one
one-hundredth of a share of Preferred Stock for each share of
Common Stock so issuable.
In the event that prior to the Expiration Time the
Company enters into, consummates or permits to occur a trans-
<PAGE>
action or series of transactions after the time an Acquiring
Person has become such in which, directly or indirectly, (i) the
Company shall consolidate or merge or participate in a binding
share exchange with any other Person if, at the time of the
consolidation, merger or share exchange or at the time the
Company enters into an agreement with respect to such
consolidation, merger or share exchange, the Acquiring Person
Controls the Board of Directors of the Company (as defined in the
Amended Rights Agreement) and either (A) any term of or
arrangement concerning the treatment of shares of capital stock
in such merger, consolidation or share exchange relating to the
Acquiring Person is not identical to the terms and arrangements
relating to other holders of Common Stock or (B) the Person with
whom the transaction or series of transactions occurs is the
Acquiring Person or an Affiliate or Associate of the Acquiring
Person or (ii) the Company shall sell or otherwise transfer (or
one or more of its subsidiaries shall sell or otherwise transfer)
assets (A) aggregating more than 50% of the assets (measured by
either book value or fair market value) or (B) generating more
than 50% of the operating income or cash flow, of the Company and
its subsidiaries (taken as a whole) to any other Person (other
than the Company or one or more of its wholly-owned subsidiaries)
or to two or more such Persons which are affiliated or otherwise
acting in concert, if, at the time such sale or transfer of
assets or at the time the Company (or any such subsidiary) enters
into an agreement with respect to such sale or transfer, the
Acquiring Person Controls the Board of Directors of the Company
(a "Flip-over Transaction or Event"), the Company shall take such
action as shall be necessary to ensure, and shall not enter into,
consummate or permit to occur such Flip-over Transaction or Event
until it shall have entered into a supplemental agreement with
the Person engaging in such Flip-over Transaction or Event or the
parent corporation thereof (the "Flip-over Entity"), for the
benefit of the holders of the Rights, providing, that upon
consummation or occurrence of the Flip-over Transaction or Event
(i) each Right shall thereafter constitute the right to purchase
from the Flip-over Entity, upon exercise thereof in accordance
with the terms of the Amended Rights Agreement, that number of
shares of common stock of the Flip-over Entity having an
aggregate Market Price on the date of consummation or occurrence
of such Flip-over Transaction or Event equal to twice the
Purchase Price for an amount in cash equal to the then current
Purchase Price and (ii) the Flip-over Entity shall thereafter be
liable for, and shall assume, by virtue of such Flip-over
Transaction or Event and such supplemental agreement, all the
obligations and duties of the Company pursuant to the Amended
Rights Agreement. For purposes of the foregoing description, the
term "Acquiring Person" shall include any Acquiring Person and
its Affiliates and Associates counted together as a single
Person.
<PAGE>
The Board of Directors of the Company may, at its
option, at any time prior to the close of business on the Flip-in
Date, redeem all (but not less than all) the then outstanding
Rights at a price of $.01 per Right) (the "Redemption Price"), as
provided in the Amended Rights Agreement. Immediately upon the
action of the Board of Directors of the Company electing to
redeem the Rights, without any further action and without any
notice, the right to exercise the Rights will terminate and each
Right will thereafter represent only the right to receive the
Redemption Price in cash for each Right so held.
The holders of Rights will, solely by reason of their
ownership of Rights, have no rights as stockholders of the
Company, including, without limitation, the right to vote or to
receive dividends.
The Amended Rights Agreement (which includes as
Exhibit A the forms of Rights Certificate and Election to Exer-
cise) is attached hereto as an exhibit and is incorporated herein
by reference. The foregoing description of the Rights is quali-
fied in its entirety by reference to the Amended Rights Agreement
and such exhibit thereto.
Item 2. Exhibits.
Exhibit No. Description
1 Amended and Restated Rights Agreement.
2 Form of Rights Certificate and of Election
to Exercise, included in Exhibit A to the
Amended Rights Agreement.
3 Designation of Preferred Stock, included in
Exhibit B to the Amended Rights Agreement.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused
this registration statement to be signed on its behalf by the
undersigned, hereunto duly authorized.
COMMERCE BANCSHARES, INC.
By s/J. Daniel Stinnett
Name: J. Daniel Stinnet
Title: Secretary
Date: June 7, 1996
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
(1) Amended and Restated Rights
Agreement, dated as of June 7,
1996 (the "Amended Rights
Agreement"), between Commerce
Bancshares, Inc. and Commerce
Bank, N.A., as Rights Agent.
(2) Form of Rights Certificate and
of Election to Exercise,
included as Exhibit A to the
Amended Rights Agreement
(Exhibit 1 hereto).
(3) Designation of Preferred Stock
of the Company, included as
Exhibit B to the Amended
Rights Agreement (Exhibit 1
hereto).
<PAGE>
Exhibit 1
AMENDED AND RESTATED RIGHTS AGREEMENT
dated as of
June 7, 1996
between
COMMERCE BANCSHARES, INC.
and
COMMERCE BANK, N.A.
as Rights Agent
<PAGE>
AMENDED AND RESTATED RIGHTS AGREEMENT
Table of Contents
Page
ARTICLE I
CERTAIN DEFINITIONS
1.1 Certain Definitions . . . . . . . . . . . . . . . . . . . .2
ARTICLE II
THE RIGHTS
2.1 Legend on Common Stock Certificates . . . . . . . . . . . 13
2.2 Exercise of Rights; Separation of Rights. . . . . . . . . 14
2.3 Adjustments to Purchase Price; Number of Rights . . . . . 17
2.4 Date on Which Exercise is Effective . . . . . . . . . . . 20
2.5 Execution, Authentication, Delivery and Dating of Rights
Certificates. . . . . . . . . . . . . . . . . . . . . . . 20
2.6 Registration, Registration of Transfer and Exchange . . . 21
2.7 Mutilated, Destroyed, Lost and Stolen Rights Certificates 22
2.8 Persons Deemed Owners . . . . . . . . . . . . . . . . . . 24
2.9 Delivery and Cancellation of Certificates . . . . . . . . 24
2.10 Agreement of Rights Holders . . . . . . . . . . . . . . . 25
ARTICLE III
ADJUSTMENT TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.2 Flip-over . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IV
THE RIGHTS AGENT
i
4.1 General . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.2 Merger or Consolidation or Change of Name of Rights Agent 32
4.3 Duties of Rights Agent. . . . . . . . . . . . . . . . . . 34
4.4 Change of Rights Agent. . . . . . . . . . . . . . . . . . 37
ARTICLE V
MISCELLANEOUS
5.1 Redemption. . . . . . . . . . . . . . . . . . . . . . . . 39
5.2 Expiration. . . . . . . . . . . . . . . . . . . . . . . . 39
5.3 Issuance of New Rights Certificates . . . . . . . . . . . 40
5.4 Supplements and Amendments. . . . . . . . . . . . . . . . 41
5.5 Fractional Shares . . . . . . . . . . . . . . . . . . . . 41
5.6 Rights of Action. . . . . . . . . . . . . . . . . . . . . 42
5.7 Holder of Rights Not Deemed a Stockholder . . . . . . . . 43
5.8 Notice of Proposed Actions. . . . . . . . . . . . . . . . 43
5.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.10 Suspension of Exercisability. . . . . . . . . . . . . . . 45
5.11 Costs of Enforcement. . . . . . . . . . . . . . . . . . . 45
5.12 Successors. . . . . . . . . . . . . . . . . . . . . . . . 46
5.13 Benefits of this Agreement. . . . . . . . . . . . . . . . 46
5.14 Determination and Actions by the Board of Directors, etc. 46
5.15 Descriptive Headings. . . . . . . . . . . . . . . . . . . 47
5.16 Governing Law . . . . . . . . . . . . . . . . . . . . . . 47
5.17 Counterparts. . . . . . . . . . . . . . . . . . . . . . . 47
5.18 Severability. . . . . . . . . . . . . . . . . . . . . . . 47
ii
EXHIBIT A
Form of Rights Certificate
(Together with Form of
Election to Exercise)
EXHIBIT B
Form of Certificate of Designation
of Series A Preferred Stock
iii
AMENDED AND RESTATED RIGHTS AGREEMENT
AMENDED AND RESTATED RIGHTS AGREEMENT (as amended from time to
time, this "Agreement"), dated as of June 7, 1996, between Commerce
Bancshares, Inc., a Missouri corporation (the "Company"), and
Commerce Bank, N.A., as Rights Agent (the "Rights Agent", which
term shall include any successor Rights Agent hereunder).
WITNESSETH:
WHEREAS, the Company and Morgan Shareholder Services Trust
Company (the name of which was later changed to "First Chicago
Trust Company of New York"), as rights agent, entered into a Rights
Agreement, dated as of August 23, 1988 (hereinafter referred to as
the "Original Rights Agreement") with respect to the declaration of
one right ("Right") in respect of each share of Common Stock (as
hereinafter defined) held of record as of the close of business on
September 7, 1988 (the "Record Date"), each Right representing the
right to purchase one one-hundredth of a share of Preferred Stock
(as hereinafter defined), upon the terms and conditions set forth
in the Original Rights Agreement, and the Board of Directors
authorized the issuance of one Right (adjusted as provided in the
Original Rights Agreement) in respect of each share of Common Stock
issued after the Record Date and prior to the Distribution Date (as
defined in the Original Rights Agreement);
WHEREAS, due to adjustments in the number of Rights pursuant
to the terms of the Original Rights Agreement, each share of Common
Stock of the Company now has a fractional Right (.302) associated
with it and the Company has eliminated the fractional Rights and
1
restored the one Right per share of Common Stock by authorizing and
declaring a dividend distribution of .698 of a Right in respect of
each outstanding share of Common Stock held of record at the close
of business on June 21, 1996;
WHEREAS, the Original Rights Agreement provides that prior to
the Distribution Date (as defined in the Original Rights
Agreement), the Company may at any time or from time to time amend
the Original Rights Agreement in any respect without the approval
of any holders of Rights;
WHEREAS, the Distribution Date (as defined in the Original
Rights Agreement) has not occurred;
WHEREAS, the Company desires to appoint Commerce Bank, N.A. to
replace First Chicago Trust Company of New York as rights agent;
and
WHEREAS, the Company and the Rights Agent wish to amend and
restate the Original Rights Agreement in its entirety as follows:
NOW THEREFORE, in consideration of the premises and the
respective agreements set forth herein, the parties hereby agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
"Acquiring Person" shall mean any Person who is a
Beneficial Owner of 15% or more of the outstanding shares of
Common Stock; provided, however, that the term "Acquiring
2
Person" shall not include any Person (i) who is the Beneficial
Owner of 15% or more of the outstanding shares of Common Stock on
the date of this Agreement or who shall become the Beneficial Owner
of 15% or more of the outstanding shares of Common Stock solely as
a result of an acquisition by the Company of shares of Common
Stock, until such time hereafter or thereafter as any of such
Persons shall become the Beneficial Owner (other than by means of
a stock dividend or stock split) of any additional shares of Common
Stock, (ii) who is the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock but who acquired Beneficial
Ownership of shares of Common Stock without any plan or intention
to seek or affect control of the Company, if such Person promptly
enters into an irrevocable commitment promptly to divest, and
thereafter promptly divests (without exercising or retaining any
power, including voting, with respect to such shares), sufficient
shares of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) so that such
Person ceases to be the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock or (iii) who Beneficially Owns
shares of Common Stock consisting solely of one or more of (A)
shares of Common Stock Beneficially Owned pursuant to the grant or
exercise of an option granted to such Person by the Company in
connection with an agreement to merge with, or acquire, the Company
entered into prior to a Flip-in Date, (B) shares of Common Stock
(or securities convertible
3
into, exchangeable into or exercisable for Common Stock)
Beneficially Owned by such Person or its Affiliates or Associates
at the time of grant of such option, (C) shares of Common Stock (or
securities convertible into, exchangeable into or exercisable for
Common Stock) acquired by Affiliates or Associates of such Person
after the time of such grant which, in the aggregate, amount to
less than 1% of the outstanding shares of Common Stock or (D)
Common Stock (or securities convertible into, exchangeable into or
exercisable for Common Stock) which are held by such Person in
trust accounts, managed accounts and the like or otherwise held in
a fiduciary capacity, that are beneficially owned by third persons
who are not Affiliates or Associates of such Person or acting
together with such Person to hold such shares, or which are held by
such Person in respect of a debt previously contracted. In
addition, the Company, any wholly-owned Subsidiary of the Company
and any employee stock ownership or other employee benefit plan of
the Company or a wholly-owned Subsidiary of the Company shall not
be an Acquiring Person.
"Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Securities Exchange
Act of 1934, as such Rule is in effect on the date of this
Agreement.
A Person shall be deemed the "Beneficial Owner", and to have
"Beneficial Ownership" of, and to "Beneficially Own", any
securities as to which such Person or any of such Person's
4
Affiliates or Associates is or may be deemed to be the beneficial
owner of pursuant to Rules 13d-3 and 13d-5 under the Securities
Exchange Act, as such Rules are in effect on the date of this
Agreement, as well as any securities as to which such Person or any
of such Person's Affiliates or Associates has the right to become
Beneficial owner (whether such right is exercisable immediately or
only after the passage of time or the occurrence of conditions)
pursuant to any agreement, arrangement or understanding, or upon
the exercise of conversion rights, exchange rights, rights (other
than the Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the "Beneficial Owner",
or to have "Beneficial Ownership" of, or to "Beneficially Own", any
security (i) solely because such security has been tendered
pursuant to a tender or exchange offer made by such Person or any
of such Person's Affiliates or Associates until such tendered
security is accepted for payment or exchange or (ii) solely because
such Person or any of such Person's Affiliates or Associates has or
shares the power to vote or direct the voting of such security
pursuant to a revocable proxy given in response to a public proxy
or consent solicitation made to more than ten holders of shares of
a class of stock of the Company registered under Section 12 of the
Securities Exchange Act of 1934 and pursuant to, and in accordance
with, the applicable rules and regulations under the Securities
Exchange Act of 1934, except if such power (or
5
the arrangements relating thereto) is then reportable under Item 6
of Schedule 13D under the Securities Exchange Act of 1934 (or any
similar provision of a comparable or successor report).
Notwithstanding the foregoing, no officer or director of the
Company shall be deemed to Beneficially Own any securities of any
other Person (i) by virtue of any actions such officer or director
takes in such capacity as an officer or director, or (ii) by virtue
of holding such position of officer or director. For purposes of
this Agreement, in determining the percentage of the outstanding
shares of Common Stock with respect to which a Person is the
Beneficial owner, all shares as to which such Person is deemed the
Beneficial owner shall be deemed outstanding.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in Kansas City,
Missouri are generally authorized or obligated by law or executive
order to close.
"Close of business" on any given date shall mean 5:00 p.m.
Kansas City, Missouri time on such date (or, if such date is not a
Business Day, 5:00 p.m. Kansas City, Missouri time on the next
succeeding Business Day).
"Common Stock" shall mean the shares of Common Stock of the
Company.
"Distribution Date" shall mean the close of business on the
earlier of (i) the tenth business day (or such later date as the
Board of Directors of the Company may from time to time
6
fix by resolution adopted prior to the Distribution Date that would
otherwise have occurred) after the date on which any Person
commences a tender or exchange offer which, if consummated, would
result in such Person's becoming an Acquiring Person and (ii) the
Flip-in Date; provided, that if any tender or exchange offer
referred to in clause (i) of this paragraph is cancelled,
terminated or otherwise withdrawn prior to the Distribution Date
without the purchase of any shares of Common Stock pursuant
thereto, such offer shall be deemed, for purposes of this
paragraph, never to have been made.
"Exchange Time" shall mean the time at which the right to
exercise the Rights shall terminate pursuant to Section 3.1(c)
hereof.
"Expiration Time" shall mean the earliest of (i) the Exchange
Time, (ii) the Redemption Time, (iii) June 7, 2006 and (iv)
pursuant to an agreement entered into prior to a Flip-in Date, upon
the merger of the Company into another corporation or with another
corporation in which all shares of Common Stock are either
converted into cash and/or securities of another corporation or,
with respect to treasury shares and shares owned by the other party
to the merger or its affiliates, cancelled.
"Flip-in Date" shall mean the tenth business day after any
Shares Acquisition Date or such earlier or later date as the Board
of Directors of the Company may from time to time
7
fix by resolution adopted prior to the Flip-in Date that would
otherwise have occurred.
"Flip-over Entity," for purposes of Section 3.2, shall mean
(i) in the case of a Flip-over Transaction or Event described in
clause (i) of the definition thereof, the Person issuing any
securities into which shares of Common Stock are being converted or
exchanged and, if no such securities are being issued, the other
party to such Flip-over Transaction or Event and (ii) in the case
of a Flip-over Transaction or Event referred to in clause (ii) of
the definition thereof, the Person receiving the greatest portion
of the assets or earning power being transferred in such Flip-over
Transaction or Event, provided in all cases if such Person is a
subsidiary of a corporation, the parent corporation shall be the
Flip-over Entity.
"Flip-over Stock" shall mean the capital stock (or similar
equity interest) with the greatest voting power in respect of the
election of directors (or other persons similarly responsible for
direction of the business and affairs) of the Flip-over Entity.
"Flip-over Transaction or Event" shall mean a transaction or
series of transactions after a Flip-in Date in which, directly or
indirectly, (i) the Company shall consolidate or merge or
participate in a share exchange with any other Person if, at the
time of the consolidation, merger or share exchange or at the time
the Company enters into any agreement with
8
respect to any such consolidation, merger or share exchange, the
Acquiring Person "controls" the Board of Directors of the Company
and either (A) any term of or arrangement concerning the treatment
of shares of capital stock in such consolidation, merger or share
exchange relating to the Acquiring Person is not identical to the
terms and arrangements relating to other holders of the Common
Stock or (B) the Person with whom the transaction or series of
transactions occurs is the Acquiring Person or an Affiliate or
Associate of the Acquiring Person or (ii) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell
or otherwise transfer) assets (A) aggregating more than 50% of the
assets (measured by either book value or fair market value) or (B)
generating more than 50% of the operating income or cash flow of
the Company and its Subsidiaries (taken as a whole) to any Person
(other than the Company or one or more of its wholly owned
Subsidiaries) or to two or more such Persons which are Affiliates
or Associates or otherwise acting in concert, if, at the time of
the entry by the Company (or any such Subsidiary) into an agreement
with respect to such sale or transfer of assets, the Acquiring
Person "controls" the Board of Directors of the Company. An
Acquiring Person shall be deemed to "control" the Company's Board
of Directors when, following a Flip-in Date, the persons who were
directors of the Company before the Flip-in Date shall cease to
constitute a majority of the Company's Board of Directors.
9
"Market Price" per share of any securities on any date shall
mean the average of the daily closing prices per share of such
securities (determined as described below) on each of the 20
consecutive Trading Days through and including the Trading Day
immediately preceding such date; provided, however, that if an
event of a type analogous to any of the events described in Section
2.3 hereof shall have caused the closing prices used to determine
the Market Price on any Trading Days during such period of 20
Trading Days not to be fully comparable with the closing price on
such date, each such closing price so used shall be appropriately
adjusted in order to make it fully comparable with the closing
price on such date. The closing price per share of any securities
on any date shall be the last reported sale price, regular way, or,
in case no such sale takes place or is quoted on such date, the
average of the closing bid and asked prices, regular way, for each
share of such securities, in either case as reported in the
principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock
Exchange, Inc. or, if the securities are not listed or admitted to
trading on the New York Stock Exchange, Inc., as reported in the
principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on
which the securities are listed or admitted to trading or, if the
securities are not listed or admitted to
10
trading on any national securities exchange, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotation System or such other system then in use, or, if on any
such date the securities are not listed or admitted to trading on
any national securities exchange or quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
securities selected by the Board of Directors of the Company;
provided, however, that if on any such date the securities are not
listed or admitted to trading on a national securities exchange or
traded in the over-the-counter market, the closing price per share
of such securities on such date shall mean the fair value per share
of securities on such date as determined in good faith by the Board
of Directors of the Company, after consultation with a nationally
recognized investment banking firm, and set forth in a certificate
delivered to the Rights Agent.
"Person" shall mean any individual, firm, partnership,
association, group (as such term is used in Rule 13d-5 under the
Securities Exchange Act of 1934, as such Rule is in effect on the
date of this Agreement), corporation or other entity.
"Preferred Stock" shall mean the Series A Preferred Stock of
the Company having the rights, powers and preferences set forth in
the Certificate of Designation attached as Exhibit B hereto.
11
"Purchase Price" shall mean, as of any date, the price at
which a holder may purchase the securities issuable upon exercise
of one whole Right. Until adjustment thereof in accordance with
the terms hereof, the Purchase Price shall equal $150.00.
"Redemption Price" shall mean an amount equal to one cent,
$0.01.
"Redemption Time" shall mean the time at which the right to
exercise the Rights shall terminate pursuant to Section 5.1 hereof.
"Shares Acquisition Date" shall mean the first date of public
announcement by the Company (by any means) that an Acquiring Person
has become such.
"Subsidiary" of any specified Person shall mean any
corporation or other entity of which a majority of the voting power
of the equity securities or a majority of the equity interest is
Beneficially Owned, directly or indirectly, by such Person.
"Trading Day," when used with respect to any securities, shall
mean a day on which the New York Stock Exchange, Inc. is open for
the transaction of business or, if such securities are not listed
or admitted to trading on the New York Stock Exchange, Inc., a day
on which the principal national securities exchange on which such
securities are listed or admitted to trading is open for the
transaction of business
12
or, if such securities are not listed or admitted to trading on any
national securities exchange, a Business Day.
ARTICLE II
THE RIGHTS
2.1 Legend on Common Stock Certificates. Certificates for
the Common Stock issued after the date hereof but prior to the
Distribution Date shall evidence one Right for each share of Common
Stock represented thereby and shall have impressed on, printed on,
written on or otherwise affixed to them the following legend:
This certificate also evidences and entitles
the holder hereof to certain Rights as set
forth in an Amended and Restated Rights
Agreement between Commerce Bancshares, Inc.
and Commerce Bank, N.A. dated as of June 7,
1996 (the "Rights Agreement"), the terms of
which are hereby incorporated herein by
reference and a copy of which is on file at
the principal executive offices of Commerce
Bancshares, Inc. Under certain circumstances,
as set forth in the Rights Agreement, such
Rights may be redeemed, may expire, or may be
evidenced by separate certificates and will no
longer be evidenced by this certificate.
Commerce Bancshares, Inc. will mail to the
holder of this certificate a copy of the
Rights Agreement without charge within five
days after receipt of a written request
therefor. Under certain circumstances, Rights
issued to, or which are or were Beneficially
Owned by, Acquiring Persons or their
Affiliates or Associates (as such terms are
defined in the Rights Agreement) and any
subsequent holder of such Rights may become
null and void.
Certificates representing shares of Common Stock that were issued
and outstanding at the Record Date shall evidence one Right for
each share of Common Stock evidenced thereby notwithstanding the
13
absence of the foregoing legend and certificates representing
shares of Common Stock issued after the Record Date but prior to
the date hereof bearing the form of legend set forth in the
Original Rights Agreement shall evidence one Right for each share
of Common Stock on the terms set forth in this Agreement.
2.2 Exercise of Rights; Separation of Rights. (a) Subject to
Sections 3.1, 5.1 and 5.10 and subject to adjustment as herein set
forth, each Right will entitle the holder thereof, after the
Distribution Date and prior to the Expiration Time, to purchase,
for the Purchase Price, one one-hundredth of a share of Preferred
Stock.
(b) Until the Distribution Date, (i) no Right may be
exercised and (ii) each Right will be evidenced by the certificate
for the associated share of Common Stock and will be transferable
only together with, and will be transferred by a transfer of, such
associated share.
(c) Subject to this Section 2.2 and to Sections 3.1, 5.1
and 5.10, after the Distribution Date and prior to the Expiration
Time, the Rights (i) may be exercised and (ii) may be transferred
independent of shares of Common Stock. Promptly following the
Distribution Date, the Rights Agent will mail to each holder of
record of Common Stock as of the Distribution Date (other than any
Person whose Rights have become void pursuant to Section 3.1(b)),
at such holder's address as shown by the records of the Company
(the Company hereby agreeing to furnish copies of such records to
the Rights Agent for this purpose), (x) a certificate (a "Rights
14
Certificate") in substantially the form of Exhibit A hereto
appropriately completed, representing the number of Rights held by
such holder at the Distribution Date and having such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of
any national securities exchange or quotation system on which the
Rights may from time to time be listed or traded, or to conform to
usage, and (y) a disclosure statement describing the Rights.
(d) Subject to Sections 3.1, 5.1 and 5.10, Rights may be
exercised on any Business Day after the Distribution Date and prior
to the Expiration Time by submitting to the Rights Agent the Rights
Certificate evidencing such Rights with an Election to Exercise (an
"Election to Exercise") substantially in the form attached to the
Rights Certificate duly completed, accompanied by payment in cash,
or by certified or official bank check or money order payable to
the order of the Company, of a sum equal to the Purchase Price
multiplied by the number of Rights being exercised and a sum
sufficient to cover any transfer tax or charge which may be payable
in respect of any transfer involved in the transfer or delivery of
Rights Certificates or the issuance or delivery of certificates for
shares or depositary receipts (or both) in a name other than that
of the holder of the Rights being exercised.
15
(e) Upon receipt of a Rights Certificate, with an
Election to Exercise accompanied by payment as set forth in Section
2.2(d), and subject to Sections 3.1, 5.1 and 5.10, the Rights Agent
will thereupon promptly (i)(A) requisition from a transfer agent
stock certificates evidencing such number of shares or other
securities to be purchased (the Company hereby irrevocably
authorizing its transfer agents to comply with all such
requisitions) and (B) if the Company elects pursuant to Section 5.5
not to issue certificates representing fractional shares,
requisition from the depositary selected by the Company depositary
receipts representing the fractional shares to be purchased or
requisition from the Company the amount of cash to be paid in lieu
of fractional shares in accordance with Section 5.5 and (ii) after
receipt of such certificates, depositary receipts and/or cash,
deliver the same to or upon the order of the registered holder of
such Rights Certificate, registered (in the case of certificates or
depositary receipts) in such name or names as may be designated by
such holder.
(f) In case the holder of any Rights shall exercise less
than all the Rights evidenced by such holder's Rights Certificate,
a new Rights Certificate evidencing the Rights remaining
unexercised will be issued by the Rights Agent to such holder or to
such holder's duly authorized assigns.
(g) The Company covenants and agrees that it will (i)
take all such action as may be necessary to ensure that all shares
delivered upon exercise of Rights shall, at the time of delivery of
16
the certificates for such shares (subject to payment of the
Purchase Price), be duly and validly authorized, executed, issued
and delivered and fully paid and nonassessable; (ii) take all such
action as may be necessary to comply with any applicable
requirements of the Securities Act of 1933 or the Securities
Exchange Act of 1934, and the rules and regulations thereunder, and
any other applicable law, rule or regulation, in connection with
the issuance of any shares upon exercise of Rights; and (iii) pay
when due and payable any and all federal and state transfer taxes
and charges which may be payable in respect of the original
issuance or delivery of the Rights Certificates or of any shares
issued upon the exercise of Rights, provided that the Company shall
not be required to pay any transfer tax or charge which may be
payable in respect of any transfer involved in the transfer or
delivery of Rights Certificates or the issuance or delivery of
certificates for shares in a name other than that of the holder of
the Rights being transferred or exercised.
2.3 Adjustments to Purchase Price; Number of Rights. (a) In
the event the Company shall at any time after the date hereof and
prior to the Distribution Date (i) declare or pay a dividend on
Common Stock payable in Common Stock, (ii) subdivide the
outstanding Common Stock or (iii) combine the outstanding Common
Stock into a smaller number of shares of Common Stock, (x) the
Purchase Price in effect after such adjustment will be equal to the
Purchase Price in effect immediately prior to such adjustment
divided by the number of shares of Common Stock (the "Expansion
17
Factor") that a holder of one share of Common Stock immediately
prior to such dividend, subdivision or combination would hold
thereafter as a result thereof and (y) each Right held prior to
such adjustment will become that number of Rights equal to the
Expansion Factor, and the adjusted number of Rights will be deemed
to be distributed among the shares of Common Stock with respect to
which the original Rights were associated (if they remain
outstanding) and the shares issued in respect of such dividend,
subdivision or combination, so that each such share of Common Stock
will have exactly one Right associated with it. Each adjustment
made pursuant to this paragraph shall be made as of the payment or
effective date for the applicable dividend, subdivision or
combination.
In the event the Company shall at any time after the date
hereof and prior to the Distribution Date issue any shares of
Common Stock otherwise than in a transaction referred to in the
preceding paragraph, each such share of Common Stock so issued
shall automatically have one new Right associated with it, which
Right shall be evidenced by the certificate representing such
share. To the extent provided in Section 5.3, Rights shall be
issued by the Company in respect of shares of Common Stock that are
issued or sold by the Company after the Distribution Date.
(b) In the event the Company shall at any time after the
date hereof and prior to the Distribution Date issue or distribute
any securities or assets in respect of, in lieu of or in exchange
for Common Stock (other than pursuant to a regular periodic cash
18
dividend or a dividend paid solely in Common Stock) whether by
dividend, in a reclassification or recapitalization (including any
such transaction involving a merger, consolidation or share
exchange), or otherwise, the Company shall make such adjustments,
if any, in the Purchase Price, number of Rights and/or securities
or other property purchasable upon exercise of Rights as the Board
of Directors of the Company, in its sole discretion, may deem to be
appropriate under the circumstances in order to adequately protect
the interests of the holders of Rights generally, and the Company
and the Rights Agent shall amend this Agreement as necessary to
provide for such adjustments.
(c) Each adjustment to the Purchase Price made pursuant
to this Section 2.3 shall be calculated to the nearest cent.
Whenever an adjustment to the Purchase Price is made pursuant to
this Section 2.3, the Company shall (i) promptly prepare a
certificate setting forth such adjustment and a brief statement of
the facts accounting for such adjustment and (ii) promptly file
with the Rights Agent and with each transfer agent for the Common
Stock a copy of such certificate.
(d) Rights Certificates shall represent the securities
purchasable under the terms of this Agreement, including any
adjustment or change in the securities purchasable upon exercise of
the Rights, even though such certificates may continue to express
the securities purchasable at the time of issuance of the initial
Rights Certificates.
19
2.4 Date on Which Exercise is Effective. Each person in
whose name any certificate for shares is issued upon the exercise
of Rights shall for all purposes be deemed to have become the
holder of record of the shares represented thereby on the date upon
which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price for such Rights (and
any applicable taxes and other governmental charges payable by the
exercising holder hereunder) was made; provided, however, that if
the date of such surrender and payment is a date upon which the
stock transfer books of the Company are closed, such person shall
be deemed to have become the record holder of such shares on, and
such certificate shall be dated, the next succeeding Business Day
on which the stock transfer books of the Company are open.
2.5 Execution, Authentication, Delivery and Dating of Rights
Certificates. (a) The Rights Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its Chief
Executive officer, its President, any of its Vice Presidents or its
Treasurer, under its corporate seal reproduced thereon attested by
its Secretary or any of its Assistant Secretaries. The signature
of any of these officers on the Rights Certificates may be manual
or facsimile.
Rights Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the countersignature and delivery of such Rights Certificates.
20
Promptly after the Distribution Date, the Company will
notify the Rights Agent of such Distribution Date and will deliver
Rights Certificates executed by the Company to the Rights Agent for
countersignature, and, subject to Section 3.1(b), the Rights Agent
shall manually countersign and deliver such Rights Certificates to
the holders of the Rights pursuant to Section 2.3(c) hereof. No
Rights Certificate shall be valid for any purpose unless manually
countersigned by the Rights Agent.
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.6 Registration, Registration of Transfer and Exchange. (a)
After the Distribution Date, the Company will cause to be kept a
register (the "Rights Register") in which, subject to such
reasonable regulations as it may prescribe, the Company will
provide for the registration and transfer of Rights. The Rights
Agent is hereby appointed "Rights Registrar" for the purpose of
maintaining the Rights Register for the Company and registering
Rights and transfers of Rights after the Distribution Date as
herein provided. In the event that the Rights Agent shall cease to
be the Rights Registrar, the Rights Agent will have the right to
examine the Rights Register at all reasonable times after the
Distribution Date.
After the Distribution Date and prior to the Expiration
Time, upon surrender for registration of transfer or exchange of
any Rights Certificate, and subject to the provisions of Sections
2.6(c) and (d), the Company will execute, and the Rights Agent will
21
countersign and deliver, in the name of the holder or the
designated transferee or transferees, as required pursuant to the
holder's instructions, one or more new Rights Certificates
evidencing the same aggregate number of Rights as did the Rights
Certificate so surrendered.
(b) Except as otherwise provided in Section 3.1(b), all
Rights issued upon any registration of transfer or exchange of
Rights Certificates shall be the valid obligations of the Company,
and such Rights shall be entitled to the same benefits under this
Agreement as the Rights surrendered upon such registration of
transfer or exchange.
(c) Every Rights Certificate surrendered for
registration of transfer or exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer in form
satisfactory to the Company or the Rights Agent, as the case may
be, duly executed by the holder thereof or such holder's attorney
duly authorized in writing. As a condition to the issuance of any
new Rights Certificate under this Section 2.6, the Company may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
(d) The Company shall not be required to register the
transfer or exchange of any Rights after such Rights have become
void under Section 3.1(b), been exchanged under Section 3.1(c) or
been redeemed or terminated under Section 5.1.
2.7 Mutilated, Destroyed, Lost and Stolen Rights
Certificates. (a) If any mutilated Rights Certificate is
22
surrendered to the Rights Agent prior to the Expiration Time, then,
subject to Sections 3.1(b), 3.1(c) and 5.1, the Company shall
execute and the Rights Agent shall countersign and deliver in
exchange therefor a new Rights Certificate evidencing the same
number of Rights as did the Rights Certificate so surrendered.
(b) If there shall be delivered to the Company and the
Rights Agent prior to the Expiration Time (i) evidence to their
satisfaction of the destruction, loss or theft of any Rights
Certificate and (ii) such security or indemnity as may be required
by them to save each of them and any of their agents harmless,
then, subject to Sections 3.1(b), 3.1(c) and 5.1 and in the absence
of notice to the Company or the Rights Agent that such Rights
Certificate has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Rights Agent shall
countersign and deliver, in lieu of any such destroyed, lost or
stolen Rights Certificate, a new Rights Certificate evidencing the
same number of Rights as did the Rights Certificate so destroyed,
lost or stolen.
(c) As a condition to the issuance of any new Rights
Certificate under this Section 2.7, the Company may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Rights Agent)
connected therewith.
(d) Every new Rights Certificate issued pursuant to this
Section 2.7 in lieu of any destroyed, lost or stolen Rights
23
Certificate shall evidence an original additional contractual
obligation of the Company, whether or not the destroyed, lost or
stolen Rights Certificate shall be at any time enforceable by
anyone, and, subject to Section 3.1(b), shall be entitled to all
the benefits of this Agreement equally and proportionately with any
and all other Rights duly issued hereunder.
2.8 Persons Deemed Owners. Prior to due presentment of a
Rights Certificate (or, prior to the Distribution Date, the
associated Common Stock certificate) for registration of transfer,
the Company, the Rights Agent and any agent of the Company or the
Rights Agent may deem and treat the person in whose name such
Rights Certificate (or, prior to the Distribution Date, such Common
Stock certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby for all purposes whatsoever,
including the payment of the Redemption Price and neither the
Company nor the Rights Agent shall be affected by any notice to the
contrary. As used in this Agreement, unless the context otherwise
requires, the term "holder" of any Rights shall mean the registered
holder of such Rights (or, prior to the Distribution Date, the
associated shares of Common Stock).
2.9 Delivery and Cancellation of Certificates. All Rights
Certificates surrendered upon exercise or for registration of
transfer or exchange shall, if surrendered to any person other than
the Rights Agent, be delivered to the Rights Agent and, in any
case, shall be promptly cancelled by the Rights Agent. The Company
may at any time deliver to the Rights Agent for cancellation any
24
Rights Certificates previously countersigned and delivered
hereunder which the Company may have acquired in any manner
whatsoever, and all Rights Certificates so delivered shall be
promptly cancelled by the Rights Agent. No Rights Certificates
shall be countersigned in lieu of or in exchange for any Rights
Certificates cancelled as provided in this Section 2.9, except as
expressly permitted by this Agreement. The Rights Agent shall
return all cancelled Rights Certificates to the Company.
2.10 Agreement of Rights Holders. Every holder of Rights by
accepting the same consents and agrees with the Company and the
Rights Agent and with every other holder of Rights that:
(a) prior to the Distribution Date, each Right will be
transferable only together with, and will be transferred by a
transfer of, the associated share of Common Stock;
(b) after the Distribution Date, the Rights Certificates
will be transferable only on the Rights Register as provided
herein;
(c) prior to due presentment of a Rights Certificate
(or, prior to the Distribution Date, the associated Common Stock
certificate) for registration of transfer, the Company, the Rights
Agent and any agent of the Company or the Rights Agent may deem and
treat the person in whose name the Rights Certificate (or, prior to
the Distribution Date, the associated Common Stock certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever, and neither the
25
Company nor the Rights Agent shall be affected by any notice to the
contrary;
(d) Rights beneficially owned by certain Persons will,
under the circumstances set forth in Section 3.1(b), become void;
and
(e) this Agreement may be supplemented or amended from
time to time pursuant to Section 2.3(b) or 5.4 hereof.
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in. (a) In the event that prior to the Expiration
Time a Flip-in Date shall occur, except as provided in this Section
3.1, each Right shall constitute the right to purchase from the
Company, upon exercise thereof in accordance with the terms hereof
(but subject to Section 5.10), that number of shares of Common
Stock having an aggregate Market Price on the Shares Acquisition
Date equal to twice the Purchase Price for an amount in cash equal
to the Purchase Price (such right to be appropriately adjusted in
order to protect the interests of the holders of Rights generally
in the event that on or after such Shares Acquisition Date an event
of a type analogous to any of the events described in Section
2.3(a) or (b) shall have occurred with respect to the Common
Stock).
(b) Notwithstanding the foregoing, any Rights that are
or were Beneficially Owned on or after the Shares Acquisition Date
by an Acquiring Person or an Affiliate or Associate thereof or by
26
any transferee, direct or indirect, of any of the foregoing shall
become void and any holder of such Rights (including transferees)
shall thereafter have no right to exercise or transfer such Rights
under any provision of this Agreement. If any Rights Certificate
is presented for assignment or exercise and the Person presenting
the same will not complete the certification set forth at the end
of the form of assignment or notice of election to exercise and
provide such additional evidence of the identity of the Beneficial
owner and its Affiliates and Associates (or former Beneficial
Owners and their Affiliates and Associates) as the Company shall
reasonably request, then the Company shall be entitled conclusively
to deem the Beneficial owner thereof to be an Acquiring Person or
an Affiliate or Associate thereof or a transferee of any of the
foregoing and accordingly will deem the Rights evidenced thereby to
be void and not transferable or exercisable.
(c) The Board of Directors of the Company may, at its
option, at any time after a Flip-in Date and prior to the time that
an Acquiring Person becomes the Beneficial Owner of more than 50%
of the outstanding shares of Common Stock, elect to exchange all
(but not less than all) the then outstanding Rights (which shall
not include Rights that have become void pursuant to the provisions
of Section 3.1(b)) for shares of Common Stock at an exchange ratio
of one share of Common Stock per Right, appropriately adjusted in
order to protect the interests of holders of Rights generally in
the event that after the Distribution Date an event of a type
analogous to any of the events described in Section 2.3(a) or (b)
27
shall have occurred with respect to the Common Stock (such exchange
ratio, as adjusted from time to time, being hereinafter referred to
as the "Exchange Ratio").
Immediately upon the action of the Board of Directors of
the Company electing to exchange the Rights, without any further
action and without any notice, the right to exercise the Rights
will terminate and each Right (other than Rights that have become
void pursuant to Section 3.1(b)) will thereafter represent only the
right to receive a number of shares of Common Stock equal to the
Exchange Ratio. Promptly after the action of the Board of
Directors electing to exchange the Rights, the Company shall give
notice thereof (specifying the steps to be taken to receive shares
of Common Stock in exchange for Rights) to the Rights Agent and the
holders of the Rights (other than Rights that have become void
pursuant to Section 3.1(b)) outstanding immediately prior thereto
by mailing such notice in accordance with Section 5.9.
Each Person in whose name any certificate for shares is
issued upon the exchange of Rights pursuant to this Section 3.1(c)
or Section 3.1(d) shall for all purposes be deemed to have become
the holder of record of the shares represented thereby on, and such
certificate shall be dated, the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment
of any applicable taxes and other governmental charges payable by
the holder was made; provided, however, that if the date of such
surrender and payment is a date upon which the stock transfer books
of the Company are closed, such Person shall be deemed to have
28
become the record holder of such shares on, and such certificate
shall be dated, the next succeeding Business Day on which the stock
transfer books of the Company are open.
(d) Whenever the Company shall become obligated under
Section 3.1(a) or (c) to issue shares of Common Stock upon exercise
of or in exchange for Rights, the Company, at its option, may
substitute therefor shares of Preferred Stock, at a ratio of one
one-hundredth of a share of Preferred Stock for each share of
Common Stock so issuable.
(e) In the event that there shall not be sufficient
treasury shares or authorized but unissued shares of Common Stock
or Preferred Stock of the Company to permit the exercise or
exchange in full of the Rights in accordance with Section 3.1(a) or
(c), the Company shall either (i) call a meeting of stockholders
seeking approval to cause sufficient additional shares to be
authorized (provided that if such approval is not obtained the
Company will take the action specified in clause (ii) of this
sentence) or (ii) take such action as shall be necessary to ensure
and provide, to the extent permitted by applicable law and any
agreements or instruments in effect on the Shares Acquisition Date
to which it is a party, that each Right shall thereafter constitute
the right to receive, (x) at the Company's option, either (A) in
return for the Purchase Price, debt or equity securities or other
assets (or a combination thereof) having a fair value equal to
twice the Purchase Price, or (B) without payment of consideration
(except as otherwise required by applicable law), debt or equity
29
securities or other assets (or a combination thereof) having a fair
value equal to the Purchase Price, or (y) if the Board of Directors
of the Company elects to exchange the Rights in accordance with
Section 3.1(c), debt or equity securities or other assets (or a
combination thereof) having a fair value equal to the product of
the Market Price of a share of Common Stock on the Flip-in Date
times the Exchange Ratio in effect on the Flip-in Date, where in
any case set forth in (x) or (y) above the fair value of such debt
or equity securities or other assets shall be as determined in good
faith by the Board of Directors of the Company, after consultation
with a nationally recognized investment banking firm.
3.2 Flip-over. (a) Prior to the Expiration Time, the
Company shall not enter into any agreement with respect to,
consummate or permit to occur any Flip-over Transaction or Event
unless and until it shall have entered into a supplemental
agreement with the Flip-over Entity, for the benefit of the holders
of the Rights, providing that, upon consummation or occurrence of
the Flip-over Transaction or Event (i) each Right shall thereafter
constitute the right to purchase from the Flip-over Entity, upon
exercise thereof in accordance with the terms hereof, that number
of shares of Flip-over Stock of the Flip-over Entity having an
aggregate Market Price on the date of consummation or occurrence of
such Flip-over Transaction or Event equal to twice the Purchase
Price for an amount in cash equal to the Purchase Price (such right
to be appropriately adjusted in order to protect the interests of
the holders of Rights generally in the event that after such date
30
of consummation or occurrence an event of a type analogous to any
of the events described in Section 2.3(a) or (b) shall have occurred
with respect to the Flip-over Stock) and (ii) the Flip-over Entity
shall thereafter be liable for, and shall assume, by
virtue of such Flip-over Transaction or Event and such supplemental
agreement, all the obligations and duties of the Company pursuant
to this Agreement. The provisions of this Section 3.2 shall apply
to successive Flip-over Transactions or Events.
(b) Prior to the Expiration Time, unless the Rights will
be redeemed pursuant to Section 5.1 hereof in connection therewith,
the Company shall not enter into any agreement with respect to,
consummate or permit to occur any Flip-over Transaction or Event if
at the time thereof there are any rights, warrants or securities
outstanding or any other arrangements, agreements or instruments
that would eliminate or otherwise diminish in any material respect
the benefits intended to be afforded by this Rights Agreement to
the holders of Rights upon consummation of such transaction.
ARTICLE IV
THE RIGHTS AGENT
4.1 General. (a) The Company hereby appoints the Rights
Agent to act as agent for the Company in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements
31
incurred in the administration and execution of this Agreement and
the exercise and performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of the
Rights Agent, for anything done or omitted to be done by the Rights
Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against
any claim of liability.
(b) The Rights Agent shall be protected and shall incur
no liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Agreement in reliance upon any certificate for securities
purchasable upon exercise of Rights, Rights Certificate,
certificate for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or
other paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowledged, by
the proper person or persons.
4.2 Merger or Consolidation or Change of Name of Rights
Agent. (a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent is a party, or any corporation succeeding to the stockholder
32
services business of the Rights Agent or any successor Rights
Agent, will be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor
Rights Agent under the provisions of Section 4.4 hereof. In case
at the time such successor Rights Agent succeeds to the agency
created by this Agreement any of the Rights Certificates have been
countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and in case at
that time any of the Rights Certificates have not been
countersigned, any successor Rights Agent may countersign such
Rights Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such
cases such Rights Certificates will have the full force provided in
the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is
changed and at such time any of the Rights Certificates shall have
been countersigned but not delivered, the Rights Agent may adopt
the countersignature under its prior name and deliver Rights
Certificates so countersigned; and in case at that time any of the
Rights Certificates shall not have been countersigned, the Rights
Agent may countersign such Rights Certificates either in its prior
name or in its changed name; and in all such cases such Rights
33
Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
4.3 Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Company and the holders
of Rights Certificates, by their acceptance thereof, shall be
bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such
counsel will be full and complete authorization and protection to
the Rights Agent as to any action taken or omitted by it in good
faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent deems it necessary or desirable that any
fact or matter be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established
by a certificate signed by a person believed by the Rights Agent to
be the Chairman of the Board, the Chief Executive Officer, the
President or any Vice President and by the Treasurer or the
Secretary or any Assistant Secretary of the Company and delivered
to the Rights Agent; and such certificate will be full
authorization to the Rights Agent for any action taken or suffered
in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
34
(c) The Rights Agent will be liable hereunder only for
its own [negligence], bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason
of any of the statements of fact or recitals contained in this
Agreement or in the certificates for securities purchasable upon
exercise of Rights or the Rights Certificates (except its
countersignature thereof) or be required to verify the same, but
all such statements and recitals are and will be deemed to have
been made by the Company only.
(e) The Rights Agent will not be under any
responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due authorization,
execution and delivery hereof by the Rights Agent) or in respect of
the validity or execution of any certificate for securities
purchasable upon exercise of Rights or Rights Certificate (except
its countersignature thereof), nor will it be responsible for any
breach by the Company of any covenant or condition contained in
this Agreement or in any Rights Certificate; nor will it be
responsible for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to Section 3.1(b)
hereof) or any adjustment required under the provisions of Section
2.3, 3.1 or 3.2 hereof or responsible for the manner, method or
amount of any such adjustment or the ascertaining of the existence
of facts that would require any such adjustment (except with
respect to the exercise of Rights after receipt of the certificate
contemplated by Section 2.3 describing any such adjustment); nor
35
will it by any act hereunder be deemed to make any representation
or warranty as to the authorization or reservation of any
securities purchasable upon exercise of Rights or any Rights or as
to whether any securities purchasable upon exercise of Rights will,
when issued, be duly and validly authorized, executed, issued and
delivered and fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights Agent
of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of its
duties hereunder from any person believed by the Rights Agent to be
the Chairman of the Board, the Chief Executive Officer, the
President or any Vice President or the Secretary or any Assistant
Secretary or the Treasurer of ,the Company, and to apply to such
persons for advice or instructions in connection with its duties,
and it shall not be liable for any action taken or suffered by it
in good faith in accordance with instructions of any such person.
(h) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal in
Common Stock, Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may
be interested, or contract with or lend money to the Company or
36
otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the
Rights Agent will not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or agents or
for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in
the selection and continued employment thereof.
4.4 Change of Rights Agent. The Rights Agent may resign and
be discharged from its duties under this Agreement upon 90 days,
notice (or such lesser notice as is acceptable to the Company) in
writing mailed to the Company and to each transfer agent of Common
Stock by registered or certified mail. The Company may remove the
Rights Agent upon 30 days' notice in writing, mailed to the Rights
Agent and to each transfer agent of the Common Stock by registered
or certified mail. If the Rights Agent should resign or be removed
or otherwise become incapable of acting, the Company will appoint
a successor to the Rights Agent. If the Company fails to make such
appointment within a period of 30 days after such removal or after
it has been notified in writing of such resignation or incapacity
by the resigning or incapacitated Rights Agent or by the holder of
any Rights (which holder shall, with such notice, submit such
37
holder's Rights Certificate for inspection by the Company), then
the holder of any Rights may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such
a court, shall be a corporation organized and doing business under
the laws of the United States or of the State of Missouri or any
other State of the United States, in good standing, which is
authorized under such laws to exercise the powers of the Rights
Agent contemplated by this Agreement and is subject to supervision
or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000. After appointment, the successor
Rights Agent will be vested with the same powers, rights, duties
and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent
shall deliver and transfer to the successor Rights Agent any
property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such
appointment, the Company will file notice thereof in writing with
the predecessor Rights Agent and each transfer agent of the Common
Stock. Failure to give any notice provided for in this Section
4.4, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or
the appointment of the successor Rights Agent, as the case may be.
38
ARTICLE V
MISCELLANEOUS
5.1 Redemption. (a) The Board of Directors of the Company
may, at its option, at any time prior to the close of business on
the Flip-in Date, elect to redeem all (but not less than all) the
then outstanding Rights at the Redemption Price and the Company, at
its option, may pay the Redemption Price either in cash or shares
of Common Stock or other securities of the Company deemed by the
Board of Directors, in the exercise of its sole discretion, to be
at least equivalent in value to the Redemption Price.
(b) Immediately upon the action of the Board of
Directors of the Company electing to redeem the Rights (or, if the
resolution of the Board of Directors electing to redeem the Rights
states that the redemption will not be effective until the
occurrence of a specified future time or event, upon the occurrence
of such future time or event), without any further action and
without any notice, the right to exercise the Rights will terminate
and each Right will thereafter represent only the right to receive
the Redemption Price in cash or securities, as determined by the
Board of Directors. Promptly after the Rights are redeemed, the
Company shall give notice of such redemption to the Rights Agent
and the holders of the then outstanding Rights by mailing such
notice in accordance with Section 5.9.
5.2 Expiration. The Rights and this Agreement shall expire
at the Expiration Time and no Person shall have any rights pursuant
to this Agreement or any Right after the Expiration Time, except,
39
if the Rights are exchanged or redeemed, as provided in Section 3.1
or 5.1 hereof.
5.3 Issuance of New Rights Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the
contrary, the Company may, at its option, issue new Rights
Certificates evidencing Rights in such form as may be approved by
its Board of Directors to reflect any adjustment or change in the
number or kind or class of shares of stock purchasable upon
exercise of Rights made in accordance with the provisions of this
Agreement. In addition, in connection with the issuance or sale of
shares of Common Stock by the Company following the Distribution
Date and prior to the Expiration Time pursuant to the terms of
securities convertible or redeemable into shares of Common Stock or
to options, in each case issued or granted prior to, and
outstanding at, the Distribution Date, the Company shall issue to
the holders of such shares of Common Stock, Rights Certificates
representing the appropriate number of Rights in connection with
the issuance or sale of such shares of Common Stock; provided,
however, in each case, (i) no such Rights Certificate shall be
issued, if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or to the Person
to whom such Rights Certificates would be issued, (ii) no such
Rights Certificates shall be issued if, and to the extent that,
appropriate adjustment shall have otherwise been made in lieu of
the issuance thereof, and (iii) the Company shall have no
40
obligation to distribute Rights Certificates to any Acquiring
Person or Affiliate or Associate of an Acquiring Person or any
transferee of any of the foregoing.
5.4 Supplements and Amendments. The Company and the Rights
Agent may from time to time supplement or amend this Agreement
without the approval of any holders of Rights Certificates in order
(i) to cure any ambiguity, (ii) to correct or supplement any
provision contained herein which may be defective or inconsistent
with any other provisions herein, (iii) prior to the Distribution
Date, to change or supplement the provisions hereunder which the
Company may deem necessary or desirable, or (iv) following the
Distribution Date, to change or supplement the provisions hereunder
in any manner which the Company may deem necessary or desirable and
which shall not adversely affect the interests of the holders of
Rights Certificates. Upon the delivery of a certificate from an
appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this
Section 5.4, the Rights Agent shall execute such supplement or
amendment unless the Rights Agent shall have determined in good
faith that such supplement or amendment would adversely affect its
interests under this Agreement. Prior to the Distribution Date,
the interests of the holders of Rights shall be deemed coincident
with the interests of the holders of Common Stock.
5.5 Fractional Shares. If the Company elects not to issue
certificates representing fractional shares upon exercise or
redemption of Rights, the Company shall, in lieu thereof, in the
41
sole discretion of the Board of Directors, either (a) evidence such
fractional shares by depositary receipts issued pursuant to an
appropriate agreement between the Company and a depositary selected
by it, providing that each holder of a depositary receipt shall
have all of the rights, privileges and preferences to which such
holder would be entitled as a beneficial owner of such fractional
share, or (b) sell such shares on behalf of the holders of Rights
and pay to the registered holder of such Rights the appropriate
fraction of the price per share received upon such sale.
5.6 Rights of Action. Subject to the terms of this Agreement
(including Section 3.1(b)), rights of action in respect of this
Agreement, other than rights of action vested solely in the Rights
Agent, are vested in the respective holders of the Rights; and any
holder of any Rights, without the consent of the Rights Agent or of
the holder of any other Rights, may, on such holder's own behalf
and for such holder's own benefit and the benefit of other holders
of Rights, enforce, and may institute and maintain any suit, action
or proceeding against the Company to enforce, or otherwise act in
respect of, such holder's right to exercise such holder's Rights in
the manner provided in such holder's Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies
available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against
42
actual or threatened violations of, the obligations of any Person
subject to this Agreement.
5.7 Holder of Rights Not Deemed a Stockholder. No holder, as
such, of any Rights shall be entitled to vote, receive dividends or
be deemed for any purpose the holder of shares or any other
securities which may at any time be issuable on the exercise of
such Rights, nor shall anything contained herein or in any Rights
Certificate be construed to confer upon the holder of any Rights,
as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as
provided in Section 5.8 hereof), or to receive dividends or
subscription rights, or otherwise, until such Rights shall have
been exercised or exchanged in accordance with the provisions
hereof.
5.8 Notice of Proposed Actions. In case the Company shall
propose after the Distribution Date and prior to the Expiration
Time (i) to effect or permit occurrence of any Flip-over
Transaction or Event or (ii) to effect the liquidation, dissolution
or winding up of the Company, then, in each such case, the Company
shall give to each holder of a Right, in accordance with Section
5.9 hereof, a notice of such proposed action, which shall specify
the date on which such Flip-over Transaction or Event, liquidation,
dissolution, or winding up is to take place, and such notice shall
43
be so given at least 20 Business Days prior to the date of the
taking of such proposed action.
5.9 Notices. Notices or demands authorized or required by
this Agreement to be given or made by the Rights Agent or by the
holder of any Rights to or on the Company shall be sufficiently
given or made if delivered or sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Commerce Bancshares, Inc.
1000 Walnut Street
P.O. Box 13686
Kansas City, MO 64199-3686
Attention: Secretary
Any notice or demand authorized or required by this Agreement to be
given or made by the Company or by the holder of any Rights to or
on the Rights Agent shall be sufficiently given or made if
delivered or sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the Company) as
follows:
Commerce Bank, N.A.
1000 Walnut Street
P.O. Box 419248
Kansas City, MO 64141-6248
Notices or demands authorized or required by this Agreement to be
given or made by the Company or the Rights Agent to or on the
holder of any Rights shall be sufficiently given or made if
delivered or sent by first-class mail, postage prepaid, addressed
to such holder at the address of such holder as it appears upon the
registry books of the Rights Agent or, prior to the Distribution
44
Date, on the registry books of the transfer agent for the Common
Stock. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice.
5.10 Suspension of Exercisability. To the extent that the
Company determines in good faith that some action will or need be
taken pursuant to Section 3.1 or to comply with federal or state
securities laws, the Company may suspend the exercisability of the
Rights for a reasonable period in order to take such action or
comply with such laws. In the event of any such suspension, the
Company shall issue as promptly as practicable a public
announcement stating that the exercisability or exchangeability of
the Rights has been temporarily suspended. Notice thereof pursuant
to Section 5.9 shall not be required.
Failure to give a notice pursuant to the provisions of
this Agreement shall not affect the validity of any action taken
hereunder.
5.11 Costs of Enforcement. The Company agrees that if the
Company or any other Person the securities of which are purchasable
upon exercise of Rights fails to fulfill any of its obligations
pursuant to this Agreement, then the Company or such Person will
reimburse the holder of any Rights for the costs and expenses
(including legal fees) incurred by such holder in actions to
enforce such holder's rights pursuant to any Rights or this
Agreement.
45
5.12 Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent
shall bind and inure to the benefit of their respective successors
and assigns hereunder.
5.13 Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any Person other than the Company,
the Rights Agent and the holders of the Rights any legal or
equitable right, remedy or claim under this Agreement and this
Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the holders of the Rights.
5.14 Determination and Actions by the Board of Directors, etc.
The Board of Directors of the Company shall have the exclusive
power and authority to administer this Agreement and to exercise
all rights and powers specifically granted to the Board or to the
Company, or as may be necessary or advisable in the administration
of this Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement and (ii)
make all determinations deemed necessary or advisable for the
administration of this Agreement. All such actions, calculations,
interpretations and determinations (including, for purposes of
clause (y) below, all omissions with respect to the foregoing)
which are done or made by the Board in good faith, shall (x) be
final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties, and (y) not subject
the Board of Directors of the Company to any liability to the
holders of the Rights.
46
5.15 Descriptive Headings. Descriptive headings appear herein
for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
5.16 Governing Law. THIS AGREEMENT AND EACH RIGHT ISSUED
HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF
THE STATE OF MISSOURI AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE APPLICABLE TO
CONTRACTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE.
5.17 Counterparts. This Agreement 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.
5.18 Severability. If any term or provision hereof or the
application thereof to any circumstance shall, in any jurisdiction
and to any extent, be invalid or unenforceable, such term or
provision shall be ineffective as to such jurisdiction to the
extent of such invalidity or unenforceability without invalidating
or rendering unenforceable the remaining terms and provisions
hereof or the application of such term or provision to
circumstances other than those as to which it is held invalid or
unenforceable.
47
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
COMMERCE BANCSHARES, INC.
By:s/J. Daniel Stinnett
Name: J. Daniel Stinnett
Title: Secretary
COMMERCE BANK, N.A.
By: s/Dan Bolen
Name: Dan Bolen
Title: Executive Vice-President
48
EXHIBIT A
[Form of Rights Certificate]
Certificate No. W- ________ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY EXCHANGE, AT
THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. RIGHTS BENEFICIALLY OWNED BY ACQUIRING
PERSONS OR AFFILIATES OR ASSOCIATES THEREOF (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT) OR TRANSFEREES OF ANY OF THE
FOREGOING WILL BE VOID.
Rights Certificate
COMMERCE BANCSHARES, INC.
This certifies that __________________________, or registered
assigns, is the registered holder of the number of Rights set forth
above, each of which entitles the registered holder thereof,
subject to the terms, provisions and conditions of the Amended and
Restated Rights Agreement, dated as of June 7, 1996 (as amended
from time to time, the "Rights Agreement"), between Commerce
Bancshares, Inc., a Missouri corporation (the "Company"), and
Commerce Bank, N.A., as Rights Agent (the "Rights Agent", which
term shall include any successor Rights Agent under the Rights
Agreement), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement)
and prior to the close of business on June 7, 2006, one one-hundredth of a
fully paid share of Series A Preferred Stock, $1.00
par value (the "Preferred Stock"), of the Company (subject to
adjustment as provided in the Rights Agreement) at the Purchase
Price referred to below, upon presentation and surrender of this
Rights Certificate with the Form of Election to Exercise duly
executed at the principal office of the Rights Agent in Kansas
City, Missouri. The Purchase Price shall initially be $150.00 per
Right and shall be subject to adjustment in certain events as
provided in the Rights Agreement.
In certain circumstances described in the Rights
Agreement, the Rights evidenced hereby may entitle the registered
holder thereof to purchase securities of an entity other than the
Company or securities or assets of the Company other than Preferred
Stock, all as provided in the Rights Agreement.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder
of the Rights Agent, the Company and the holders of the Rights
Certificates. Copies of the Rights Agreement are on file at the
principal office of the Company and are available without cost upon
written request.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office of the Rights Agent
designated for such purpose, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor evidencing an
aggregate number of Rights equal to the aggregate number of Rights
evidenced by the Rights Certificate or Rights Certificates
surrendered. If this Rights Certificate shall be exercised in
2
part, the registered holder shall be entitled to receive, upon
surrender hereof, another Rights Certificate or Rights Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, each
Right evidenced by this Certificate may be (a) redeemed by the
Company under certain circumstances, at its option, at a redemption
price of $0.01 per Right or (b) exchanged by the Company under
certain circumstances, at its option, for one share of Common Stock
or one one-hundredth of a share of Preferred Stock per Right (or,
in certain cases, other securities or assets of the Company),
subject in each case to adjustment in certain events as provided in
the Rights Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose
the holder of any securities which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof,
as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Rights evidenced by
this Rights Certificate shall have been exercised or exchanged as
provided in the Rights Agreement.
3
This Rights Certificate shall not be valid or obligatory
for any purpose until it shall have been countersigned by the
Rights Agent.
4
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal.
Date:
ATTEST: COMMERCE BANCSHARES, INC.
By
Secretary
Countersigned:
COMMERCE BANK, N.A.
By:
Authorized Signature
5
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer this Rights Certificate.)
FOR VALUE RECEIVED hereby
sells, assigns and transfers unto
(Please print name and address of
transferee)
this Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint Attorney, to transfer the within
Rights Certificate on the books of the within-named Company, with
full power of substitution.
Dated:
Signature Guaranteed:
Signature
(Signature must correspond to name
as written upon the face of this
Rights Certificate in every
particular, without alteration or
enlargement or any change
whatsoever)
Signatures must be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations
and credit unions with membership in an approved signature
guarantee Medallion program), pursuant to SEC Rule 17Ad-15.
- -----------------------------------------------------------------------------
(To be completed if true)
1
The undersigned hereby represents, for the benefit of all holders
of Rights and shares of Common Stock, that the Rights evidenced
by this Rights Certificate are not, and, to the knowledge of the
undersigned, have never been, Beneficially owned by an Acquiring
Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).
Signature
- ---------------------------------------------------------------------------
NOTICE
In the event the certification set forth above is not
completed in connection with a purported assignment, the Company
will deem the Beneficial owner of the Rights evidenced by the
enclosed Rights Certificate to be an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights
Agreement) or a transferee of any of the foregoing and
accordingly will deem the Rights evidenced by such Rights
Certificate to be void and not transferable or exercisable.
[To be attached to each Rights Certificate]
2
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise the Rights Certificate.)
TO: COMMERCE BANCSHARES, INC.
The undersigned hereby irrevocably elects to exercise
whole Rights represented by the attached Rights
Certificate to purchase the shares of Preferred Stock issuable
upon the exercise of such Rights and requests that certificates
for such shares be issued in the name of:
Address:
Social Security or Other Taxpayer
Identification Number:
If such number of Rights shall not be all the Rights evidenced by
this Rights Certificate, a new Rights Certificate for the balance
of such Rights shall be registered in the name of and delivered
to:
Address:
Social Security or Other Taxpayer
Identification Number:
Dated:
1
Signature Guaranteed:
Signature
(Signature must correspond to name
as written upon the face of the
attached Rights Certificate in
every particular, without
alteration or enlargement or any
change whatsoever)
Signatures must be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations
and credit unions with membership in an approved signature
guarantee Medallion program), pursuant to SEC Rule 17Ad-15.
- -------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of
all holders of Rights and shares of Common Stock, that the Rights
evidenced by the attached Rights Certificate are not, and, to the
knowledge of the undersigned, have never been, Beneficially Owned
by an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement).
Signature
- ------------------------------------------------------------------------------
NOTICE
In the event the certification set forth above is not
completed in connection with a purported exercise, the Company
will deem the Beneficial owner of the Rights. evidenced by the
attached Rights Certificate to be an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights
Agreement) or a transferee of any of the foregoing and
accordingly will deem the Rights evidenced by such Rights
Certificate to be void and not transferable or exercisable.
2
EXHIBIT B
FORM OF
CERTIFICATE OF DESIGNATION
OF
COMMERCE BANCSHARES, INC.
SERIES A PREFERRED STOCK
Commerce Bancshares, Inc., a corporation organized and
existing under and by virtue of The General and Business
Corporation Law of Missouri, DOES HEREBY CERTIFY:
That at a meeting of the Board of Directors of Commerce
Bancshares, Inc. the following resolution was duly adopted
creating 200,000 shares of Preferred Stock, designated as Series
A Preferred Stock.
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of this Corporation in
accordance with the provisions of the Articles of
Incorporation, as amended, a series of Series A Preferred
Stock, of the Corporation be, and it hereby is created, and
the designation and amount thereof and the relative rights,
preferences and limitations thereof (in addition to the
provisions set forth in the Articles of Incorporation, as
amended, of the Corporation, which are applicable to the
Preferred Stock of all classes and series) are as follows:
1. Designation and Amount. The shares of such series
shall be designated as "Series A Preferred Stock, $1.00 par
value," and the number of shares initially constituting such
series shall be 200,000.
2. Dividends and Distribution.
(A) Subject to any prior and superior rights of the
holders of any series of Preferred Stock ranking prior and
superior to the shares of Series A Preferred Stock with respect
to dividends, the holders of shares of Series A Preferred Stock
shall be entitled prior to the payment of any dividends on shares
ranking junior to the Series A Preferred Stock 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 last day of February, May, August and November in each year
1
(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 A Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a)
$30.00 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, par
value $5.00 per share, of the Corporation (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 A Preferred Stock. In the event the Corporation shall at
any time after August 23, 1988 (the "Rights Declaration Date")
(i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number
of shares, then in each such case the amount to which holders of
shares of Series A Preferred Stock were entitled immediately
prior to such event under 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.
(B) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
paragraph (A) above 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 $30.00 per share on the Series A 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 A Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue
of such shares of Series A Preferred Stock, 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 A Preferred Stock
2
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
A 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
A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment herein-
after set forth, each share of Series A Preferred Stock shall
entitle the holder thereof to one vote on all matters voted on at
a meeting of the shareholders of the Corporation. In the event
the Corporation shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in shares
of Common Stock, or (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the number of votes per
share to which holders of shares of Series A 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 or by law, the
holders of shares of Series A Preferred Stock and the holders of
shares of Common
3
Stock shall vote together as one voting group on all matters
voted on at a meeting of stockholders of the Corporation.
(C) Except as set forth herein, holders of Series A
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.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A 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 Series A Preferred Stock outstanding shall have been
paid in full, the Corporation 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) to the
Series A Preferred Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares or stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except dividends
paid ratably on the Series A 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 on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, provided that the Corporation may
at any time redeem, purchase or otherwise acquire shares of any
such parity 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 A Preferred
Stock;
(iv) purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock or any
shares of stock ranking on a parity with the Series A 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
4
fair and equitable treatment among the respective series of
classes.
(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for consid-
eration, for its own account, any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
5. Liquidation, Dissolution or Winding Up.
(A) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the
holder of Series A Preferred Shares shall be entitled to receive
greater of (a) $100 per share, plus accrued dividends to the date
of distribution, whether or not earned or declared, or (b) an
amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to
be distributed per share to holders of Common Shares. In the
event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Shares
payable in Common Shares, (ii) subdivide the outstanding Common
Shares, or (iii) combine the outstanding Common Shares into a
smaller number of shares, then in each such case the amount to
which holders of Series A Preferred Shares were entitled
immediately prior to such event pursuant to clause (b) of the
preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of Common
Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
6. Merger, Consolidation, etc. In case the Corporation
shall enter into any merger, consolidation, combination or other
transaction in which the shares of Common Stock are exchanged or
changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series A 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 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 after the Rights Declaration Date (i) declare
any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in
each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common
5
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. Redemption. The Series A Preferred Stock shall not be
redeemable.
8. Ranking. The Series A Preferred Stock shall rank on a
parity with all other series of the Corporation's Preferred Stock
as to the Payment of dividends and other distribution of assets,
unless the terms of any such series shall provide otherwise.
9. Amendment. The Articles of Incorporation of the
Corporation shall not be further amended in any manner which
would alter or change the powers, references or special rights of
the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority of the
outstanding shares of Series A Preferred Stock, voting separately
as one voting group.
10. Fractional Shares. Series A Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A
Preferred Stock.
6
IN WITNESS WHEREOF, this Certificate of Designation is
executed on behalf of the Corporation by its President and
attested by its Secretary this 23rd day of August, 1988.
COMMERCE BANCSHARES, INC.
By:
President
ATTEST:
Secretary
STATE OF MISSOURI )
) ss.
COUNTY OF JACKSON )
Before me, the undersigned Notary Public in and for said
county and state, this day personally appeared David W. Kemper,
personally known to me to be the President of COMMERCE
BANCSHARES, INC., and who executed the foregoing instrument as
President of COMMERCE BANCSHARES, INC. and being first duly
sworn, acknowledged reading in full and fully understanding the
foregoing, acknowledged the facts therein stated to be true and
correct, and who further acknowledged the execution of the same
as the voluntary act of the Corporation.
Witness my hand and seal this 23rd day of August, 1988.
Notary Public
My Commission Expires:
7
