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EXHIBIT 4.3
AMENDMENT NO. 1 TO
INVESTOR AGREEMENT
This Amendment No. 1 to Investor Agreement ("Amendment"), is
entered into as of October 23, 1996 by and among XxXxxx, Inc., a Delaware
corporation (the "Company"); IES Investments Inc., an Iowa corporation ("IES");
Midwest Capital Group, Inc., an Iowa corporation ("MCG"); MWR Investments,
Inc., an Iowa corporation ("MWR"); Xxxxx X. XxXxxx ("XxXxxx"); and Xxxx X.
XxXxxx (collectively with XxXxxx, the "McLeods"). IES, MCG, MWR, and the
McLeods are referred to herein collectively as the "Principal Stockholders" and
individually as a "Principal Stockholder."
WHEREAS, the Principal Stockholders are parties to a certain
Investor Agreement, dated as of April 1, 1996, by and among the Principal
Stockholders and certain other stockholders of the Company (the "Original
Investor Agreement");
WHEREAS, Section 8.2 of the Original Investor Agreement
provides that no amendment of the Original Investor Agreement shall be valid or
binding unless set forth in writing and duly executed by the party against whom
enforcement of the amendment is sought; and
WHEREAS, the Principal Stockholders desire to amend certain
provisions of the Original Investor Agreement that are binding upon and
enforceable against only the Principal Stockholders.
NOW, THEREFORE, for and in consideration of the foregoing and
of the mutual covenants and agreements contained herein and in the Original
Investor Agreement, as amended hereby, the parties hereto agree as follows:
1. Section 1 of the Original Investor Agreement is
hereby amended and restated in its entirety as follows:
"1. VOTING AGREEMENT
1.1 BOARD OF DIRECTORS
For a period of three years commencing on the
Effective Date (as defined in Section 5 hereof), each
Principal Stockholder, for so long as such Principal
Stockholder owns at least 10% of the outstanding capital stock
of the Company, determined on a fully diluted basis, (that is,
all outstanding capital stock of the Company and all
outstanding options and other securities convertible into, or
exercisable for, such capital stock) shall take
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or cause to be taken all such action within their respective
power and authority as may be required:
(a) to establish and maintain the authorized
size of the Board of Directors of the Company
at nine directors;
(b) to cause to be elected to the Board of
Directors of the Company one director
designated by IES, subject to the provisions
of Section 1.2, for so long as IES owns at
least 10% of the outstanding capital stock of
the Corporation (determined on a fully
diluted basis);
(c) to cause to be elected to the Board of
Directors of the Company one director
designated by MWR, subject to the provisions
of Section 1.2, for so long as MWR owns at
least 10% of the outstanding capital stock of
the Corporation (determined on a fully
diluted basis);
(d) to cause to be elected to the Board of
Directors of the Company three directors who
are executive officers of the Company
designated by XxXxxx, for so long as the
McLeods collectively own at least 10% of the
outstanding capital stock of the Corporation
(determined on a fully diluted basis); and
(e) to cause to be elected to the Board of
Directors of the Company four independent
directors nominated by the Board of Directors
of the Company.
1.2 CERTAIN TRANSACTIONS
1.2.1 COMPANY CAPITAL STOCK OWNED BY MWR
In the event IES becomes the Beneficial Owner of 50%
or more of the shares of capital stock of the Company
beneficially owned by MWR, (i) the provisions of Section
1.1(c) shall be null and void and of no further force and
effect, (ii) at all meetings or votes, consents or
authorizations of the Company's stockholders through the
Expiration Date, IES shall vote, or use
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its best efforts to direct the voting of, all Excess Shares
beneficially owned by IES with respect to the election of
directors and all other matters either (A) in accordance with
the recommendations of the Board of Directors of the Company
or (B) for or against or abstaining in the same proportion as
the shares owned by all other stockholders (excluding IES and
its Affiliates and Associates) are voted or abstained from
voting with respect to such matter, (iii) IES shall cause, or
use its best efforts to cause, all shares of capital stock of
the Company beneficially owned by IES to be represented in
person or by proxy at all meetings of the Company's
stockholders through the Expiration Date, and (iv) IES shall
not, and shall use its best efforts to cause its Affiliates
and Associates not to, deposit any such shares of capital
stock of the Company in a voting trust or enter into a voting
agreement or other agreement of similar effect with any other
person prior to the Expiration Date.
1.2.2 COMPANY CAPITAL STOCK OWNED BY IES
In the event MWR becomes the Beneficial Owner of 50%
or more of the shares of capital stock of the Company
beneficially owned by IES, (i) the provisions of Section
1.1(b) shall be null and void and of no further force and
effect, (ii) at all meetings or votes, consents or
authorizations of the Company's stockholders through the
Expiration Date, MWR shall vote, or use its best efforts to
direct the voting of, all Excess Shares beneficially owned by
MWR with respect to the election of directors and all other
matters either (A) in accordance with the recommendations of
the Board of Directors of the Company or (B) for or against or
abstaining in the same proportion as the shares owned by all
other stockholders (excluding MWR and its Affiliates and
Associates) are voted or abstained from voting with respect to
such matter, (iii) MWR shall cause, or use its best efforts to
cause, all shares of capital stock of the Company beneficially
owned by MWR to be represented in person or by proxy at all
meetings of the Company's stockholders through the Expiration
Date, and (iv) MWR shall not, and shall use its best efforts
to cause its Affiliates and Associates not to, deposit any
such shares of capital stock of the Company in a voting trust
or enter into a voting agreement or other agreement of similar
effect with any other person prior to the Expiration Date.
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1.2.3 COMPANY CAPITAL STOCK OWNED BY MWR AND IES
In the event a third party becomes the Beneficial
Owner of 50% or more of the shares of capital stock of the
Company beneficially owned by IES and 50% or more of the
shares of capital stock of the Company beneficially owned by
MWR, (i) the provisions of Sections 1.1(b) and 1.1(c) shall be
null and void and of no further force and effect, (ii) at all
meetings or votes, consents or authorizations of the Company's
stockholders through the Expiration Date, IES and MWR shall
vote, or use their respective best efforts to direct the
voting of, all Excess Shares of capital stock of the Company
beneficially owned by such third party with respect to the
election of directors and all other matters either (A) in
accordance with the recommendations of the Board of Directors
of the Company or (B) for or against or abstaining in the same
proportion as the shares owned by all other stockholders
(excluding IES, MWR and their respective Affiliates and
Associates) are voted or abstained from voting with respect to
such matter, (iii) IES and MWR shall cause, or use their best
efforts to cause, all shares of capital stock of the Company
beneficially owned by them to be represented in person or by
proxy at all meetings of the Company's stockholders through
the Expiration Date, and (iv) IES and MWR shall not, and shall
use their best efforts to cause their respective Affiliates
and Associates not to, deposit any such shares of capital
stock of the Company in a voting trust or enter into a voting
agreement or other agreement of similar effect with any other
person prior to the Expiration Date.
1.2.4 DEFINITIONS
For purposes of this Section 1, the
following terms have the meanings indicated:
(a) "Affiliate" and "Associate" shall
have the respective meanings ascribed to such terms in Rule
12b-2 under the Securities Exchange Act of 1934, as amended.
(b) A person shall be deemed the
"Beneficial Owner" of and shall be deemed to "beneficially
own" any securities:
(i) which such person or any
of such person's Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such
right is exercisable
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immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (whether
or not in writing), or upon the exercise of conversion
rights, exchange rights, other rights, warrants or
options, or otherwise;
(ii) which such person or any
of such person's Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of or has
"beneficial ownership" of (as determined pursuant to
Rule 13d-3 under the Securities Exchange Act of 1934,
as amended), including pursuant to any agreement,
arrangement or understanding, whether or not in
writing; or
(iii) which are beneficially
owned, directly or indirectly, by any other person (or
any Affiliate or Associate thereof) with which such
person or any of such person's Affiliates or Associates
has any agreement, arrangement or understanding
(whether or not in writing), for the purpose of
acquiring, holding, voting or disposing of any voting
securities of the Company.
(c) "Excess Shares" shall mean, with
respect to the shares of capital stock of the Company
beneficially owned by a person, any shares of capital stock of
the Company beneficially owned by such person that, when
aggregated with all shares of capital stock of the Company
beneficially owned by such person and any of such person's
Affiliates or Associates, represent more than 25% of the
voting power of the outstanding capital stock of the Company.
(d) "Expiration Date" shall mean October
23, 1999."
2. All capitalized terms used but not defined in this
Amendment shall have the meaning given to them in the Original Investor
Agreement.
3. Except as expressly amended by this Amendment, all
terms of the Original Investor Agreement shall remain in full force and effect.
4. This Amendment may be signed in any number of
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Amendment, or have caused this Amendment to be duly executed on their behalf,
as of the day and year first hereinabove set forth.
XXXXXX, INC. MWR INVESTMENTS, INC.
By: /s/ XXXXX X. XXXXXX, XX. By: /s/ XXXXXX XXXXXXXX
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Name: Xxxxx X. Xxxxxx, Xx. Name: Xxxxxx Xxxxxxxx
Title: Title:
MIDWEST CAPITAL
IES INVESTMENTS INC. GROUP, INC.
By: By: /s/ R.W. STEPSON
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NAME: Name: R.W. Stepson
Title: Title:
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Xxxxx X. XxXxxx Xxxx X. XxXxxx
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IN WITNESS WHEREOF, the undersigned have duly executed this
Amendment, or have caused this Amendment to be duly executed on their behalf,
as of the day and year first hereinabove set forth.
XXXXXX, INC. MWR INVESTMENTS, INC.
By: By:
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Name: Name:
Title: Title:
MIDWEST CAPITAL
IES INVESTMENTS INC. GROUP, INC.
By: /s/ XXXXX X. XXXXXXXX By:
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Name: Xxxxx X. Xxxxxxxx Name:
Title: Vice President Title:
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Xxxxx X. XxXxxx Xxxx X. XxXxxx
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IN WITNESS WHEREOF, the undersigned have duly executed this
Amendment, or have caused this Amendment to be duly executed on their behalf,
as of the day and year first hereinabove set forth.
XXXXXX, INC. MWR INVESTMENTS, INC.
By: By:
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Name: Name:
Title: Title:
MIDWEST CAPITAL
IES INVESTMENTS INC. GROUP, INC.
By: By:
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Name: Name:
Title: Title:
/s/ XXXXX X. XXXXXX /s/ XXXX X. XXXXXX
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Xxxxx X. XxXxxx Xxxx X. XxXxxx
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