Exhibit 4(a)
FIRST AMENDMENT TO
STOCK PURCHASE AND STANDSTILL AGREEMENT
This FIRST AMENDMENT TO STOCK PURCHASE AND STANDSTILL AGREEMENT (the
"Amendment"), dated as of August 11, 2003, among Solidus Company (formerly known
as Solidus, LLC), a Tennessee general partnership (the "Purchaser"), and ▇.
▇▇▇▇▇▇▇▇▇'▇ Corporation, a Tennessee corporation (the "Company"). All
capitalized terms not defined herein shall have the meanings ascribed to such
terms in the Stock Purchase and Standstill Agreement, dated as of March 22,
1999, among the Company and the Purchaser (the "Agreement").
WHEREAS, the parties hereto are parties to the Agreement;
WHEREAS, pursuant to the Agreement, the Purchaser agreed not to sell,
transfer or otherwise dispose of the securities described on Schedule A hereto
(the "Securities"); and
WHEREAS, in connection with the Loan Agreement between the Purchaser
and AmSouth Bank, N.A. (the "Bank") dated August 11, 2003 (the "Credit
Agreement"), the Company and the Purchaser desire to amend certain provisions of
the Agreement to allow the Purchaser to pledge the Securities as collateral
security for the payment and performance of the Purchaser's obligations under
the Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Amendment and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound,
the parties hereby agree as follows:
1. The provisions of Article II, Section 4 of the Agreement will
not apply to any pledge of the Securities by the Purchaser in
order to secure the payment and performance of the obligations
of the Purchaser under the terms of the Credit Agreement,
provided that, if the Purchaser defaults on its obligations
under the Credit Agreement:
a. The Bank shall first sell the collateral described on
Schedule B hereto (the "Other Collateral") to satisfy
the payment and performance of the Purchaser's
obligations under the Credit Agreement.
b. If the proceeds from the sale of the Other Collateral
do not satisfy the payment and performance of the
Purchaser's obligations to the Bank under the Credit
Agreement, the Bank shall give the Company written
notice setting forth the amount of the Securities to
be sold and the price at which the Bank proposes to
sell the Securities (the "Notice"). The Company shall
have the exclusive right during the first 30 days
following receipt of such Notice to elect to purchase
all or any portion of the Securities proposed to be
sold at the price specified. If the Company does not
exercise its right to purchase any portion of the
Securities described in the Notice, the Bank may sell
such portion of the Securities described in the
Notice on terms no more favorable than the terms
stated in the Notice. If the Bank does not exercise
its right to sell the
Securities within 50 days after the expiration of the
Company's 30 day period, the Bank may not thereafter
sell the Securities without again complying with the
provisions of Paragraph 1.
c. If the Purchaser sells any of the Other Collateral,
the proceeds from the sale of the Other Collateral
shall be used to permanently reduce amounts
outstanding under the Credit Agreement and amounts
available for borrowing under the Credit Agreement on
a dollar for dollar basis.
2. Except as expressly stated herein, all other portions of the
Agreement remain in full force and effect.
3. The Amendment may not be assigned by any party hereto.
4. This Amendment may be executed in counterparts and each such
counterpart shall be deemed to be an original instrument.
5. This Amendment, including the exhibits and other documents
referred to herein or delivered pursuant hereto, contains the
entire understanding of the parties with respect to its
subject matter. This Amendment supersedes all prior agreements
and understandings between the parties with respect to its
subject matter.
6. This Amendment shall be governed by and construed in
accordance with the laws of the State of Tennessee.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment as of the date first written above.
SOLIDUS COMPANY
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Partner
▇. ▇▇▇▇▇▇▇▇▇'▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
Title: President and Chief Executive
Officer
AmSouth Bank, N.A. hereby joins in the execution of this Amendment for
the purposes of consenting to and agreeing to be bound by Paragraph 1 of the
Amendment.
AMSOUTH BANK, N.A.
By: /s/ ▇. ▇▇▇ Blank
-----------------------------------
Name: ▇. ▇▇▇ Blank
---------------------------------
Title: Senior Vice President
--------------------------------
SCHEDULE A
SECURITIES
1,747,846 shares of the Company's common stock, par value $.05 per share.
