EXHIBIT 4
AGREEMENT
This Agreement entered into this 20th day of November, 1997 between
President Casinos, Inc. ("President"), a Delaware corporation, Xxxx X.
Xxxxxxxx, an individual, Cruise Lines, Inc., J. Xxxxxx Xxxxxxxx Associates,
Inc. and the Customer Rollover XXX, an Individual Retirement Account for the
benefit of Xxxx X. Xxxxxxxx, together owning a total of 1,764,114 shares of
President all of whom are Exempt Person(s) in that definition of Exempt
Person(s) set forth on Exhibit A hereto (hereinafter collectively the "Exempt
Person(s)").
WHEREAS, President's Board of Directors has determined that it is in the
best interest of the stockholders of President to enter into a Stockholder
Rights Agreement restricting the ability of stockholders to own blocks of
President's shares in an amount equal to or greater than 20% of the
outstanding common stock without the prior consent of the Board of Directors;
and
WHEREAS, the Exempt Person(s) collectively hold shares approximating 35% of
President's outstanding shares; and
WHEREAS, the Exempt Person(s) may, from time to time, wish to sell such
shares; and
WHEREAS, President is desirous of accommodating the needs of the Exempt
Person(s), while at the same time maintaining the integrity of its Stockholder
Rights Plan.
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained the parties agree as follows:
1. If and when an Exempt Person(s) (the "Selling Shareholder") determines
to sell twenty percent (20%) or more of the outstanding shares of President's
common stock to a person other than an Exempt Person (such shares being
referred to as the "Offered Shares"), the Selling Shareholder shall provide a
written notice to President (the "Determination Notice") which shall contain
the following information: (a) the number of Offered Shares proposed to be
sold, (b) if one exists, the name, address and telephone number of any person
the Selling Shareholder has identified as a potential purchaser of the Offered
Shares (a "Selling Shareholder Purchaser") and (c) the purchase price that the
Selling Shareholder Purchaser proposes to pay for the Offered Shares. The
Selling Shareholder shall include with the Determination Notice copies of any
offer documents any Selling Shareholder Purchaser has provided to the Selling
Shareholder, unless the transmittal of such documents would violate a
confidentiality agreement or law.
2. In the Determination Notice, the Selling Shareholder shall identify (by
name, address, telephone number and biographical information establishing
credentials, the "Bio-Info") a proposed appraiser of the Offered Shares who
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has agreed to perform in accordance with the terms of this Agreement and who
shall be able, by virtue of background and ability, to appraise the value of
the shares of a company engaged in lines of business similar to those of
President (a "Qualified Appraiser"). Within ten (10) days after receipt of
the Determination Notice, President shall provide its own written notice to
the Selling Shareholder naming a second "Qualified Appraiser" accompanied by
Bio-Info as to such person. Each Qualified Appraiser shall independently
appraise the value of the Offered Shares and shall render their decision as to
the value of the Offered Shares within thirty (30) days after the date of
President's notice naming the second Qualified Appraiser.
Each Qualified Appraiser shall deliver his appraisal to the parties hereto
and to the other Qualified Appraiser. If the two appraisals are within ten
percent (10%), in dollar value of one another, the "Appraised Value" of the
Offered Shares shall be the average of the two appraisals. If the two
appraisals differ by more than ten percent (10%) from one another, the two
Qualified Appraisers will, within five (5) days after the time the last of the
two appraisals is rendered, select a third Qualified Appraiser agreeable to
both of them as to qualifications and ability. The third Qualified Appraiser
will deliver an appraisal of the value of the Offered Shares, which value must
fall within the values set by the first two Qualified Appraisers, within
fifteen (15) days of appointment and the Appraised Value shall be the value
set by the third Qualified Appraiser.
Each party shall bear the costs of his or its own appraiser, and the costs
of any third Qualified Appraiser shall be borne equally by the Selling
Shareholder and President.
3. At the conclusion of the appraisal process, the Selling Shareholder
shall have five days to withdraw his determination to sell (the date of such
withdrawal being the "Withdrawal Date"). If the determination to sell is
withdrawn, the Selling Shareholder shall not be able to sell to a single
acquiror or affiliated group of acquirors more shares than an Acquiring
Person, as defined in President's Stockholder Rights Plan, may purchase,
without triggering the subsequent issuance of rights under the Stockholder
Rights Plan, except by following the procedures set forth in this Agreement;
provided, however, that if the Selling Shareholder determines to sell the
Offered Shares within ninety (90) days after the Withdrawal Date, no Qualified
Appraisers shall be appointed and the Appraised Value shall be the Appraised
Value set immediately prior to the Withdrawal Date.
4. From and after the date that the Appraised Value is determined, which
shall be the date the last appraisal necessary pursuant to Paragraph 2 is
delivered to President or, if no appraisals are necessary pursuant to
Paragraph 3, the date that the Selling Shareholder notifies President of his
determination to sell the Offered Shares, President shall have the exclusive
right for a period of (90) days (the "Exclusivity Period") to locate a buyer
for the Offered Shares (which buyer may be President) and cause such buyer to
execute a legally enforceable agreement (a "Purchase Agreement") obligating
the buyer to purchase the Offered Shares at the Offer Price (as defined below)
for cash or immediately available funds and subject to no conditions other
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than (a) due performance by the Selling Shareholder and (b) receiving approval
under applicable gaming laws of various states, within one hundred eighty days
(180) after the date of the Purchase Agreement or such shorter period as may
be required by law. The Offer Price shall mean the higher of (a) the
Appraised Value, (b) the purchase price identified in the Determination Notice
or (c) if the buyer located by President made an offer to any Exempt Person(s)
to acquire President Common stock within the twelve months prior to the date
of the Determination Notice, the price such buyer had previously offered to
pay.
Time shall be of the essence with regard to locating a buyer and seeking
approval under applicable gaming laws and the Purchase Agreement shall so
provide and shall further provide that both President and the buyer located by
President shall use their collective and respective best efforts to receive
such approval as soon as possible after a sale agreement has been executed.
5. If President locates a buyer and such buyer executes a Purchase
Agreement within the Exclusivity Period the Selling Shareholder must sell the
Offered Shares to such buyer for the Purchase Price and the Selling
Shareholder shall execute all documents necessary to transfer to the buyer
good title to the Offered Shares, free and clear of all liens and
encumbrances.
6. If (a) a buyer located by President does not execute a Purchase
Agreement within the Exclusivity Period or (b) such buyer is not approved by
any applicable gaming authority or (c) such buyer breaches its obligations
under the Purchase Agreement, including, without limitation, its obligation to
use its best efforts to obtain approval under applicable laws as soon as
possible after the execution of a Purchase Agreement, the Selling Shareholder
shall be able to sell the Offered Shares to any third party at any price
during a period of 365 days following the (a) expiration of the Exclusivity
Period, (b) the date of non-approval or (c) the date of breach or, if an
alleged breach is contested, the date it is determined by a court of final
jurisdiction that a breach occurred.
7. If the Offered Shares are acquired, pursuant to paragraphs 4 or 6, the
transaction shall not cause the issuance of Rights pursuant to President's
Stockholder Rights Plan. Any purchaser, pursuant to paragraphs 4 or 6 shall
be permitted to transfer the Offered Shares to entities controlling,
controlled by or under common control with such purchaser without causing the
issuance of Rights pursuant to President's Stockholder Rights Plan, but no
such purchaser or any entities controlling, controlled by or under common
control with it may acquire more shares of President common stock without
causing the issuance of Rights under President's Stockholder Rights Plan
unless (a) the Stockholder Rights Plan has been amended to permit such
acquisition or (b) in a transaction approved by President's board of
directors.
8. During the period President is attempting to find a buyer, and during
any period during which the Selling Shareholder is attempting to find a buyer,
the parties hereto shall regularly communicate information regarding the
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identity of any possible buyer who they approach or who approaches them and
shall exchange information as to economic negotiations.
9. This Agreement shall inure to the benefit of and shall be binding on the
parties hereto, their heirs, successors and assigns. The Agreement is not
assignable other than among the parties who are Exempt Person(s) hereunder.
10. This Agreement shall terminate if and when the Exempt Person(s) hold
collectively less than 20% of the outstanding shares of common stock of
President.
11. Each of the parties hereto shall bear its own costs in any action
hereunder.
12. Time shall be of the essence in the parties' performance hereunder.
13. This Agreement shall be governed by Delaware law without reference to
its conflict of law rules.
PRESIDENT CASINOS, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxx, Executive Vice President
and Chief Financial Officer
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, an individual
CRUISE LINES, INC.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
President
J. XXXXXX XXXXXXXX ASSOCIATES, INC.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Chairman of the Board
CUSTOMER ROLLOVER XXX
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Xxxx X. Xxxxxxxx, beneficial owner
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EXHIBIT A
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"Exempt Person" shall mean any of the following: (i) Xxxx X. Xxxxxxxx, any
descendant of Xxxx X. Xxxxxxxx (including descendants by adoption and their
descendants), or any spouse, widow or widower of Xxxx X. Xxxxxxxx (and their
children) or any such descendant (collectively defined as the "Family
Members"); (ii) any trust which is in existence on the date of the Rights
Agreement of President Casinos, Inc. of even date herewith (the "Rights
Agreement") and which has been established by one or more Family Members and
any estate of a Family Member who died on or before the date of the Rights
Agreement (collectively defined as the "Existing Family Entities"); (iii) any
estate of a Family Member who dies after the date hereof or any trust
established after the date hereof by one or more Family Members or Existing
Family Entities; provided that one or more Family Members, Existing Family
Entities or charitable organizations which qualify as exempt organizations
under Section 501(c) of the Internal Revenue Code of 1986, as amended
("Charitable Organizations"), collectively, are the beneficiaries of at least
50% of the actuarially-determined beneficial interests in such estate or
trust; (iv) any Charitable Organization which is established by one or more
Family Members or Existing Family Entities (a "Family Charitable
Organization"); (v) any corporation of which a majority of the voting power
and a majority of the equity interest is held, directly or indirectly, by or
for the benefit of one or more Family Members, Existing Family Entities,
estates or trusts described in clause (iii) above or Family Charitable
Organizations; and (vi) any partnership or other entity or arrangement of
which a majority of the voting interest and majority of the economic interest
is held, directly or indirectly, by or for the benefit of one or more Family
Members, Existing Family Entities, estates or trusts described in clause (iii)
above or Family Charitable Organizations.
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