Exhibit (4)
STOCK PURCHASE AGREEMENT
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This is a Stock Purchase Agreement, dated as of May 1, 2000 (this
"Agreement"), by and among ING Xxxxxx Xxxx Asset Management LLC, a Delaware
limited liability company ("ING Asset Management"), ING Xxxxxx Xxxx Investors
III LP, a Delaware limited partnership ("Xxxxxx Xxxx Investors III"), ING
Barings U.S. Leveraged Equity Fund LLC, a Delaware limited liability company
("Barings U.S. Fund") and ING Barings Global Leveraged Equity Fund Ltd., a
Bermuda corporation ("Barings Global Fund" and, together with Xxxxxx Xxxx
Investors III and Barings U.S. Fund, the "Purchasers").
BACKGROUND
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A. Xxxxxx Xxxx Investors II L.P. ("Xxxxxx Xxxx Investors II"), FS Employee
Investors LLC (FS Employee Investors"), FS Parallel Fund L.P. ("FS Parallel
Fund" and, together with Xxxxxx Xxxx Investors II and FS Employee Investors, the
"Investors") and ING Asset Management purchased an aggregate of 300,000 shares
of Series B Cumulative Convertible Preferred Stock ("Series B Preferred Stock")
pursuant to a Preferred Stock Purchase Agreement dated as of February 18, 2000
(the "Preferred Stock Purchase Agreement") by and among ABC-NACO Inc., a
Delaware corporation (the "Company"), and the Investors.
B. ING Asset Management desire to sell to the Purchasers an aggregate of
150,000 shares of Series B Preferred Stock (the "Shares"), and the Purchasers
desire to purchase the Shares, on the terms and subject to the conditions set
forth in this Agreement.
C. Capitalized terms appearing herein and not otherwise defined shall have
the respective meanings given such terms in the Preferred Stock Purchase
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and intending to be legally bound hereby, the parties hereto agree as follows:
TERMS
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1. ING Asset Management hereby sells and transfers to each Purchaser,
and each Purchaser purchases from ING Asset Management, the number of shares of
Series B Preferred Stock set forth opposite its name on Annex A hereto, for a
purchase price of One Hundred Dollars ($100) per share.
2. Contemporaneously with the execution and delivery of this Agreement,
ING Asset Management will instruct the Company to issue stock certificates
representing the Shares to the Purchasers, and the Purchasers will deliver to
ING Asset Management by wire transfer to accounts previously designated by ING
Asset Management, the purchase price for the Shares pursuant to paragraph 1 of
this Agreement.
3. The Purchasers hereby makes the following representations and
warranties to ING Asset Management:
a. Each Purchaser is duly organized or formed, validly existing
and in good standing under the laws of the jurisdiction in which such Purchaser
was organized or formed and has the requisite corporate or other power to carry
on its business as it is now being conducted.
b. Authority Relative to this Agreement; No Conflict. Each
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Purchaser has the requisite power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby without the consent of any other person (except
for such consents as have heretofore been obtained). This Agreement has been
duly and validly executed and delivered by each Purchaser and, assuming this
Agreement constitutes a valid and binding obligation of ING Asset Management,
this Agreement constitutes a valid and binding agreement of each Purchaser
enforceable against such Purchaser in accordance with its terms, and will not
conflict with any other agreement to which any Purchaser is a party.
c. Investment Intent. The shares of Series B Preferred Stock
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being purchased by each Purchaser are being purchased by such Purchaser for
investment for its own account, and not with a view to any resale, distribution
or other transfer thereof that would violate the Securities Act, or the
applicable state securities laws of any state. None of the Purchasers will
distribute the shares of Series B Preferred Stock in violation of the Securities
Act or the applicable securities laws of any state.
d. Economic Risk. Each Purchaser is well versed in financial
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matters, has had extensive dealings over the years in securities and is fully
familiar with the operating history and financial results of the Company and is
fully capable of understanding the type of investment being made pursuant to
this Agreement and the risks involved in connection therewith. Each Purchaser is
financially able to hold the Series B Preferred Stock for long-term investment,
believes that the nature and amount of the Series B Preferred Stock being
acquired by each Purchaser are consistent with such Purchaser's overall
investment program and financial position, and recognizes that there are
substantial risks involved in the acquisition of the Series B Preferred Stock.
e. Additional Representations. Each Purchaser: (i) is an
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accredited investor within the meaning of Rule 501(a) under the Securities Act,
(ii) is aware of the limits on resale imposed by virtue of the nature of the
transactions contemplated by this Agreement and is aware that the certificates
representing each Purchaser's respective ownership of Series B Preferred Stock
will bear related restrictive legends; (iii) is acquiring the shares of the
Company hereunder without registration under the Securities Act in reliance on
the exemption from registration contained in Section 4(2) of the Securities Act;
(iv) has been given the opportunity to ask questions of, and receive answers
from, the officers of the Company regarding the Company, its current and
proposed business operations and the Series B Preferred Stock, and the officers
of the Company have made available to each Purchaser all documents and
information that such
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Purchaser has requested relating to an investment in the Company; (v) has access
to all of the Company's public filings with the SEC; and (vi) acknowledges that
ING Asset Management is entering into this Agreement in reliance upon each
Purchaser's representations and warranties and other covenants and agreements
contained herein.
f. Rule 144. Each Purchaser acknowledges that the Series B
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Preferred Stock must be held indefinitely unless registered under the Securities
Act or unless an exemption for such registration is available. Each Purchaser is
aware of the provisions of Rule 144 promulgated under the Securities Act which
permit limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, which may include, among other things, the
existence of a public market for the shares, the availability of certain current
public information about the Company, the resale occurring not less than one
year after a party has purchased and paid for the security to be sold, the sale
being effected through a "broker's transaction" or in transactions directly with
a "market maker" and the number of shares being sold during any three-month
period not exceeding specified limitations.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on their behalf.
ING XXXXXX XXXX ASSET
MANAGEMENT LLC
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
PURCHASERS:
ING XXXXXX XXXX INVESTORS III LP
ING BARINGS U.S. LEVERAGED
EQUITY PLAN LLC
ING BARINGS GLOBAL LEVERAGED
EQUITY PLAN LTD.
By: FS PRIVATE INVESTMENTS III
LLC, Manager
By:/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Managing Member
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ANNEX A
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Number of Shares of Series
B Preferred Stock Purchased Purchase Price
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ING Xxxxxx Xxxx Investors III LP 104,170.86 $10,417,086.00
ING Barings U.S. Leveraged Equity
Plan LLC 31,679.42 $ 3,167,942.00
ING Barings Global Leveraged Equity
Plan Ltd. 13,649.72 $ 1,364,972.00
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Totals 150,000 $15,000,000.00
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