Exhibit 4.11
AMENDED STOCK ELECTION AGREEMENT
AGREEMENT, dated as of October 12, 1999 by and between RSJ Acquisition Co.,
a Delaware corporation (the "Purchaser") and Xxxxxxx One Investments, LLC, a
Delaware limited liability company (the "Stockholder"). Capitalized terms used
but not defined herein shall have the meanings set forth in the Agreement and
Plan of Merger and Recapitalization, dated as of June 24, 1999, by and between
the Purchaser and Citation Corporation, a Delaware corporation (the "Company"),
as amended by Amendment No. 1 to the Agreement and Plan of Merger and
Recapitalization, by and between such parties, dated as of September 3, 1999,
and by Amendment Xx. 0 ("Xxxxxxxxx Xx. 0") to the Agreement and Plan of Merger
and Recapitalization dated as of October 12, 1999 (as so amended, and as such
agreement may be further amended from time to time, the "Merger Agreement").
WHEREAS, the Purchaser and the Company have entered into the Merger
Agreement, pursuant to which Purchaser will be merged with and into the Company
(the "Merger");
WHEREAS, on the date hereof, the Purchaser and the Company are amending the
Merger Agreement (the "Amendment") to provide for a reduction in the Merger
Consideration and the other the matters set forth in the Amendment;
WHEREAS, as a result of the foregoing amendments, the number of Non-Cash
Election Shares has been increased;
WHEREAS, as a condition to the Purchaser's entering into the Amendment, the
Purchaser is requiring that the Stockholder enter into this Agreement with
regard to certain of the Stockholder's shares of Common Stock, par value $.01
per share, of the Company ("Common Stock"); and
WHEREAS, the Stockholder and the Purchaser intend for this Agreement to
take effect simultaneous to the execution of the Amendment.
NOW, THEREFORE, in order to implement the foregoing and in consideration of
the mutual agreements contained herein, the parties hereby agree as follows:
Section 1. Covenants of the Stockholder. The Stockholder hereby covenants
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and agrees as follows:
(a) Irrevocable Stock Election. The Stockholder hereby irrevocably
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agrees that he will make, or cause to be made, a Stock Election with respect to
781,619 of the shares of Common Stock owned by the Stockholder (such shares, the
"Stock Election Shares"); it being understood and agreed such Stock Election
will be made by the Stockholder in accordance with the applicable terms and
provisions of the Merger Agreement.
(b) Stockholders Agreement and Registration Rights Agreement. At the
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Effective Time, the Stockholder shall execute and deliver a Stockholders
Agreement (the "Stockholders Agreement") and a Registration Rights Agreement
(the "Registration Rights Agreement") containing the applicable terms and
conditions set forth on Exhibit A hereto; it being understood and agreed that
the Stockholder shall be legally bound to accept such terms and provisions only
to the extent they relate to the Stock Election Shares, and all other terms and
provisions of such agreements shall be established by mutual agreement among the
various parties thereto.
(c) No Transfers. Prior to the Termination Date (as defined in
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Section 6), the Stockholder shall not, directly or indirectly (i) except
pursuant to the terms of the Merger Agreement or this Agreement, offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to the sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of any of the Stockholder's Stock Election Shares or any interest
therein, or (ii) take any action that would make any representation or warranty
of the Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing the Stockholder's
obligations under this Agreement.
(d) Waiver of Appraisal Rights. The Stockholder hereby waives any
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rights of appraisal or right to dissent from the Merger that the Stockholder may
have with respect to the Stock Election Shares.
Section 2. Covenants of the Purchaser. The Purchaser hereby covenants and
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agrees that at the Effective Time, the Purchaser shall execute, and shall cause
the Company, Xxxxx Investment Associates VI, L.P., a Delaware limited
partnership, and KEP VI, LLC, a Delaware limited liability company, to execute,
the Stockholders Agreement and the Registration Rights Agreement.
Section 3. Representations and Warranties of the Stockholders. The
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Stockholder hereby represents and warrants to the Purchaser as follows:
(a) Ownership of Rollover Shares, etc. The Stockholder is the record
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and beneficial owner of the Stock Election Shares, free and clear of all liens,
security interests, encumbrances or adverse claims of any kind. The Stockholder
has (A) sole power of disposition, (B) sole voting power and (C) sole power to
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demand dissenter's or appraisal rights, in each case with respect to all of the
Stockholder's Stock Election Shares and with no restrictions on such rights,
subject to applicable federal securities laws and the terms of this Agreement.
(b) Legal Capacity, etc. The Stockholder has all requisite legal
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capacity, power and authority to enter into and perform all of the Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by the Stockholder will not violate any other agreement to which
the Stock holder is a party or by which the Stockholder is bound or violate any
order, writ, injunction, decree, judgment, statute, rule, regulation or
governmental permit or license applicable to the Stockholder or any of the
Stockholder's properties or assets. This Agreement has been duly and validly
authorized, executed and delivered by the Stockholder and constitutes a valid
and binding agreement of the Stockholder, enforceable against the Stockholder in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium or other similar laws affecting or
relating to the enforcement of creditors' rights generally or by general
principles of equity. After giving effect to Amendment No. 2, the Voting
Agreement, dated as of June 24, 1999, among Merger Co. and the individuals and
other parties thereto, will remain in full force and effect in accordance with
its terms.
(c) Investment Intent. The Stockholder is retaining the Stock
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Election Shares solely for the Stockholder's own account for investment and not
with a view to, or for sale in connection with, any distribution thereof. The
Stockholder will not, directly or indirectly, offer, transfer, sell, pledge,
hypothecate or otherwise dispose of any of the Stock Election Shares (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of any of the
Stock Election Shares) or any interest therein or any rights relating thereto,
except in compliance with the Securities Act of 1933, as amended, and the rules
and regulations thereunder (the "Act"), the Certificate of Incorporation of the
Company (the "Charter") and the Stockholders Agreement.
(d) Transfer Restrictions. The Stockholder acknowledges receipt of
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advice from the Purchaser that (i) none of the Stock Election Shares have yet
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been registered under the Act, (ii) all of the Stock Election Shares must be
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held indefinitely and the Stockholder must continue to bear the economic risk of
the investment in all such Stock Election Shares unless such Stock Election
Shares are subsequently registered
under the Act or an exemption from such registration is available, (iii) there
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may not be any public market for any of the Stock Election Shares in the
foreseeable future, (iv) Rule 144 promulgated under the Act is not presently
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expected to be available with respect to sales of any securities of the Company
following the Merger and neither the Company nor the Purchaser has made any
covenant to make such Rule available and such Rule is not anticipated to be
available in the foreseeable future, (v) when and if any of the Stock Election
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Shares may be disposed of without registration in reliance upon Rule 144, such
disposition can be made only in limited amounts and in accordance with the terms
and conditions of such Rule, (vi) if the exemption afforded by Rule 144 is not
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available, public sale of any of the Stock Election Shares without registration
will require the availability of an exemption under the Act, (vii) restrictive
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legends in the form set forth in the Stockholders Agreement shall be placed on
the certificates representing all of the Stock Election Shares and (viii) a
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notation shall be made in the appropriate records of the Company indicating that
all of the Stock Election Shares are subject to restrictions on transfer and, if
the Company should in the future engage the services of a stock transfer agent,
appropriate stop-transfer instructions will be issued to such transfer agent
with respect to the Stock Election Shares, if applicable.
(e) Ability to Bear Risk. The Stockholder's financial situation is
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such that the Stockholder can afford to bear the economic risk of holding all of
the Stock Election Shares for an indefinite period and the Stockholder can
afford to suffer the complete loss of the Stockholder's investment in all of the
Stock Election Shares.
(f) Evaluation. The Stockholder has been granted the opportunity to
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ask questions of, and receive answers from, representatives of the Purchaser and
the Company concerning the terms and conditions of its retention of the Stock
Election Shares and to obtain any additional information that the Stockholder
deems necessary; the Stockholder's knowledge and experience in financial
business matters is such that the Stockholder is capable of evaluating the
merits and risk of the investment in the Stock Election Shares; and the
Stockholder has carefully reviewed the terms and provisions of the Charter and
the Stockholders Agreement and has evaluated the restrictions and obligations
contained therein.
(g) Accredited Investors. The Stockholder is an "accredited
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investor" as such term is defined in Rule 501(a) promulgated under the Act (a
copy of such Rule is attached to this Agreement as Exhibit C).
(h) Reliance. The Stockholder understands and acknowledges that the
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Purchaser is entering into the Amendment in reliance upon the Stockholder's
execution and delivery of this Agreement with the Purchaser.
Section 4. Further Assurances. From time to time, at the other party's
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request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
Section 5. Certain Events. The Stockholder agrees that this Agreement and
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the obligations hereunder shall attach to the Stock Election Shares and shall be
binding upon any person or entity to which legal or beneficial ownership (within
the meaning of Rule 13(d)-5 under the Securities and Exchange Act of 1934, as
amended) of such Stock Election Shares shall pass, whether by operation of law
or otherwise, including without limitation the Stockholder's heirs, guardians,
administrators or successors or as a result of any divorce.
Section 6. Effectiveness and Termination.
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(a) Effectiveness. This Agreement shall take effect on the first
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date on which the Amendment has been duly executed by all of the parties
thereto.
(b) Termination. The obligations of the Stockholder hereunder shall
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terminate upon the first to occur of (a) the Effective Time and (b) the date the
Merger Agreement is terminated in accordance with its terms (the "Termination
Date"); provided that the provisions of this Section 6 and Section 7 hereof and
any claim for breach of any representation, warranty, covenant or other
agreement under this agreement shall survive the Effective Time and/or the
Termination Date, as applicable.
Section 7. Miscellaneous.
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(a) Notices. All notices, requests, demands, waivers and other
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communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
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personally, (b) mailed, certified or registered mail with postage prepaid, (c)
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sent by next-day or overnight mail or delivery or (d) sent by fax, as follows
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(or to such other address as the party entitled to notice shall hereafter
designate in accordance with the terms hereof):
If to the Stockholder: Xxxxxxx One Investments, LLC
0 Xxxxxx Xxxx Xxxxxx, Xxxxx Xxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: T. Xxxxxx Xxxxxxx
and: Xxxxxxx & Xxxxxxx, LLC
000 Xxxxx 00/xx/ Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to the Purchaser: RSJ Acquisition Co.
c/o Kelso & Company
000 Xxxx Xxxxxx - 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, XX, Esq.
and: Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(b) Invalidity, etc. If any term or other provision of this
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Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner.
(c) Entire Agreement. This Agreement, including all exhibits and
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schedules hereto, and the Voting Agreement constitute the entire agreement and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof and
except as otherwise expressly provided herein.
(d) Assignment. Neither this Agreement not any of the rights or
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obligations hereunder may be assigned by any party (whether by operation of law
or otherwise) without the prior written consent of the other parties hereto.
Subject to the preceding sentence, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, and no other person shall have any right, benefit or
obligation under this Agreement as a third party beneficiary or otherwise.
(e) Specific Performance. The parties hereto agree that irreparable
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damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms. It is accordingly
agreed that the
parties hereto shall be entitled to specific performance of the terms hereof,
this being in addition to any other remedy to which they are entitled at law or
in equity.
(f) Governing Law. This Agreement and the rights and obligations of
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the parties hereunder and the persons subject hereto shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Delaware,
without giving effect to the choice of law principles thereof.
(g) Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY AND
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UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
(h) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
RSJ ACQUISITION CO.
By:
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Name: Xxxxx X. Xxxxxxx, XX
Title: Vice President
XXXXXXX ONE INVESTMENTS, LLC
By:
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Name: T. Xxxxxx Xxxxxxx
Title: Manager
