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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported) April 13, 2000
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RAILAMERICA, INC.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
0-20618 65-0328006
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(Commission File Number) (IRS Employer Identification No.)
5300 Broken Sound Blvd., N.W.
Boca Raton, Florida 33487
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(Address of principal executive offices, including Zip Code)
Registrant's telephone number, including area code (561) 994-6015
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N/A
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
On April 13, 2000, the Board of Directors of RailAmerica, Inc. (the
"Company") amended its 1998 Common Stock Purchase Rights Agreement (the "Rights
Agreement") to provide that EGS Associates, L.P., a Delaware limited
partnership, EGS Partners L.L.C., a Delaware limited liability company, Bev
Partners, L.P., a Delaware limited partnership, Jonas Partners, L.P., a New York
limited partnership, EGS Management, L.L.C., a Delaware limited liability
company, William Ehrman, Frederic Greenberg, Jonas Gerstl and Julia Oliver
(collectively, the "Shareholders") would not be considered "Acquiring Persons,"
as that term is defined in the Rights Agreement, unless such persons shall be
the beneficial owners, individually or in the aggregate, of twenty-five percent
(25%) or more of the shares of Common Stock then outstanding.
In addition, the Company and the Shareholders entered into that certain
Waiver and Supplemental Agreement dated as of April 13, 2000 (the "Standstill
Agreement Amendment") in which the Company waived certain restrictions on the
Shareholders' ability to hold more than 19.9% of the outstanding common stock of
the Company (the "Common Stock") to allow the Shareholders to hold, in the
aggregate, no more than 25.0% of the outstanding Common Stock and set forth
amendments in which the Shareholders gave certain representations and warranties
and agreed to vote at any annual or special meeting of stockholders either (1)
in favor of the nominees or proposals of the Company's management or (2) in the
same proportion as the other holders of common stock vote on any proposal.
Reference is made to the Fourth Amendment to Rights Agreement and to
the Waiver and Supplemental Agreement filed as Exhibit 4.1 and Exhibit 4.2
respectively hereto. The Fourth Amendment set forth in Exhibit 4.1 and the
Waiver and Supplemental Agreement set forth in Exhibit 4.2 are hereby
incorporated by reference herein.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
Exhibit
Number Description
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4.1 Fourth Amendment to Rights Agreement, dated as of April 13,
2000, between the Company and American Stock Transfer & Trust
Company.
4.2 Waiver and Supplemental Agreement dated as of April 13, 2000
among the Company and EGS Associates, L.P, EGS Partners
L.L.C., Bev Partners, L.P., Jonas Partners, L.P., EGS
Management, L.L.C., William Ehrman, Frederic Greenberg, Jonas
Gerstl and Julia Oliver.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RAILAMERICA, INC.
Dated: April 18, 2000 By: /s/ Donald D. Redfearn
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Name: Donald D. Redfearn
Its: Chief Administrative Officer,
Executive Vice President and
Secretary
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EXHIBIT 4.1
FOURTH AMENDMENT TO RIGHTS AGREEMENT
THIS FOURTH AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is made as
of the 13th day of April, 2000, by and between RAILAMERICA, INC., a Delaware
corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY (the
"Rights Agent").
RECITALS
WHEREAS, on January 6, 1998, the Board of Directors of the Company
authorized and declared a dividend distribution of one Right for each share of
common stock, $.001 par value, of the Company outstanding at the close of
business on January 20, 1998; and
WHEREAS, the Company and the Rights Agent entered into a certain Rights
Agreement, dated as of January 6, 1998, as amended September 3, 1998, April 18,
1999 and January 13, 2000 (the "Rights Agreement"), providing, among other
things, for the issuance of the Rights (all capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings ascribed to
such terms in the Rights Agreement); and
WHEREAS, the Board of Directors of the Company has approved the
amendment of the Rights Agreement as hereinafter set forth, pursuant to
resolutions duly adopted at a meeting of the Board of Directors held on April
13, 2000;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Section 1 of the Rights Agreement is hereby amended by deleting the
definition of "Acquiring Person" set forth in subsection (a) thereof in its
entirety and substituting therefor a new definition of "Acquiring Person" to
read as follows:
"Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of fifteen percent (15%) or more of the shares of
Common Stock then outstanding. Notwithstanding the foregoing, the term
"Acquiring Person" shall not include (i) the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity organized, appointed
or established by the Company for or pursuant to the terms of any such
plan, (ii) EGS Associates, L.P., a Delaware limited partnership, EGS
Partners L.L.C., a Delaware limited liability company, Bev Partners,
L.P., a Delaware limited partnership, Jonas Partners, L.P., a New York
limited partnership, EGS Management, L.L.C., a Delaware limited
liability company, William Ehrman,
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Frederic Greenberg, Jonas Gerstl and Julia Oliver, unless (a) such
Persons shall be the Beneficial Owners, individually or in the
aggregate, of more than twenty-five percent (25%) of the shares of
Common Stock then outstanding, (b) the Agreement, dated August 21,
1998, between the Company, EGS Associates, L.P., EGS Partners, L.L.C.,
BEV Partners, L.P., Jonas Partners, L.P., William Ehrman, Frederic
Greenberg, Frederick Ketcher, Jonas Gerstl, James McLaren and William
Lautman, as such Agreement may be amended or supplemented from time to
time, shall be determined to be unenforceable by a court of competent
jurisdiction or (c) such Persons shall challenge the enforceability of
such Agreement, (iii) Barclays Bank PLC and the lenders named in that
certain Senior Secured Loan Facility and Guaranty Agreement (the
"Facility") dated as of April 30, 1999 among Freight Victoria, the
Company, RailAmerica Australia Pty Ltd., Barclays Bank PLC and the
lenders named therein (such lenders collectively with Barclays Bank PLC
to be referred to hereinafter as the "Lenders"), but only with respect
to (A) warrants (the "Warrants") to purchase shares of Common Stock
issued by the Company to the Lenders pursuant to the Facility and
pursuant to that certain Warrant Agreement dated as of April 30, 1999
between the Company and the Lenders and (B) the shares of Common Stock
issuable upon exercise of the Warrants, it being understood that all
other shares of Common Stock acquired by the Lenders independent of (A)
or (B) above shall be considered for purposes of determining Acquiring
Person status of Lenders; or (iv) any Person who or which, together
with all Affiliates and Associates of such Person, would be an
Acquiring Person solely by reason of a reduction in the number of
issued and outstanding shares of Common Stock of the Company pursuant
to a transaction or series of related transactions approved by a
majority of the Independent Directors, if any, then in office and
approved by a Supermajority Vote; provided, further, however, that in
the event that such Person described in the foregoing clause (iv) does
not become an Acquiring Person by reason of the foregoing clause (iv),
such Person shall nonetheless become an Acquiring Person in the event
such Person thereafter acquires Beneficial Ownership of an additional
one percent (1%) of the Common Stock of the Company, unless such
additional Common Stock ownership results solely from a subsequent
reduction in the number of issued and outstanding shares of Common
Stock of the Company."
2. Except as specifically amended hereby, the Rights Agreement is and
remains unmodified and in full force and effect and is hereby ratified and
confirmed.
3. This Amendment shall be deemed a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts made and to be
performed entirely within such State.
4. This Amendment may be executed in counterparts and both of such
counterparts shall for all purposes be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
RAILAMERICA, INC.
By: /s/ Gary O. Marino
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AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Herbert J. Lemmer
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Herbert J. Lemmer
Vice-President
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EXHIBIT 4.2
WAIVER AND SUPPLEMENTAL AGREEMENT
THIS WAIVER AND SUPPLEMENTAL AGREEMENT (this "Supplement") is made as
of the 13 day of April, 2000, by and between RAILAMERICA, INC., a Delaware
corporation (the "Company"), and EGS Associates, L.P., a Delaware limited
partnership, EGS Partners, L.L.C., a Delaware limited liability company, BEV
Partners, L.P., a Delaware limited partnership, Jonas Partners, L.P., a New York
limited partnership, EGS Management, L.L.C., a Delaware limited liability
company, William Ehrman, Frederic Greenberg, Jonas Gerstl and Julia Oliver
(collectively the "Shareholders").
RECITALS
WHEREAS, the Company and the Shareholders (other than EGS Management,
L.L.C. and Julia Oliver) and Frederick Ketcher, James McLaren and William
Lautman (the "Former Members") are parties to that certain Agreement, dated as
of August 21, 1998 (the "Original Agreement"), pursuant to which the Company
agreed to modify certain terms of the Company's 1998 Common Stock Purchase
Rights Agreement (the "Rights Agreement") on the condition that the
Shareholders, other than EGS Management, L.L.C. and Julia Oliver, and the Former
Members enter into the Original Agreement; and
WHEREAS, the Company has agreed to further modify those terms of the
Rights Agreement as set forth on Exhibit A attached hereto, as well as those
terms of the Original Agreement as set forth below, on the condition that the
Shareholders enter into this Supplement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. COMPANY SECURITIES. Each of the Shareholders represents and agrees
that Schedule 1 attached hereto accurately and completely sets forth as of April
12, 2000 the number of shares of the Company's common stock, $.001 par value
(the "Common Stock"), owned of record or beneficially by any Shareholder. No
Shareholder owns of record or beneficially any other securities of the Company
not set forth on Schedule 1 for such Shareholder or any other Shareholder. Each
of the Shareholders agrees that they will not acquire beneficially or of record,
individually or in the aggregate, in excess of 25% of the outstanding shares of
Common Stock.
2. VOTING. The Shareholders agree to vote all of their shares of Common
Stock with respect to any matter brought to a vote of the stockholders of the
Company, whether at an annual or special meeting of such stockholders or by
written consent of such stockholders either (a) in favor of (i) the nominees of
the Company's management and (ii) the proposals of the Company's management, in
either case consistent with the recommendations of the Company's management or
(b) in the same proportion as the holders of the Common Stock other than the
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Shareholders; provided, however, that the foregoing shall not modify or
eliminate the Shareholders' obligations under paragraph 3 of the Original
Agreement.
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Company to
enter into this Supplement and to amend the Rights Agreement, each of the
Shareholders represents and warrants to the Company that none of the Former
Members is either a member or an employee of any of the Shareholders or a member
of a "group" (within the meaning of Rule 13d-5 under the Securities Exchange Act
of 1934, as amended) which includes any of the Shareholders. In addition, the
Shareholders acknowledge that the United States securities laws prohibit any
person who has received material, non-public information concerning the Company
from purchasing or selling the securities of the Company or from communicating
such information to any other person under circumstances in which it is
reasonably foreseeable that such person is likely to purchase or sell securities
of the Company in reliance upon such information. The Shareholders agree not to
disclose any such non-public information in violation of the United States
securities laws.
4. WAIVER. The Company hereby waives the provisions of Section 1 of the
Original Agreement which restrict the Shareholders and the Former Members
individually and in the aggregate from holding more than 19.9% of the
outstanding Common Stock to allow the Shareholders to hold, in the aggregate, no
more than 25.0% of the outstanding Common Stock. In the event that (i) the
Shareholders, individually or in the aggregate, acquire beneficially or of
record in excess of 25.0% of the outstanding Common Stock, (ii) the Original
Agreement is determined to be unenforceable by a court of competent jurisdiction
or (iii) the Shareholders challenge the enforceability of the Original
Agreement, the foregoing waiver shall be void and of no further force and
effect.
5. EFFECT ON ORIGINAL AGREEMENT. Except as specifically provided
hereby, the Original Agreement is and remains unmodified and in full force and
effect and is hereby ratified and confirmed.
6. AGREEMENTS OF ADDITIONAL SHAREHOLDERS. Each of EGS Management,
L.L.C. and Julia Oliver agrees to be bound by the terms of the Original
Agreement.
7. GOVERNING LAW. This Supplement shall be deemed a contract made under
the laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and to be performed entirely within such State.
8. EXECUTION IN COUNTERPARTS.This Supplement may be executed in
counterparts and all of which counterparts shall for all purposes be deemed to
be an original, and which counterparts shall constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be duly executed as of the date first above written.
RAILAMERICA, INC.
By: /s/ Gary O. Marino
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EGS ASSOCIATES, L.P., a Delaware limited
partnership
By: /s/ William Ehrman
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EGS PARTNERS, L.L.C., a Delaware limited
liability company
By: /s/ William Ehrman
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BEV PARTNERS, L.P., a Delaware limited
partnership
By: /s/ William Ehrman
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JONAS PARTNERS, L.P., a New York limited
partnership
By: /s/ Jonas Gerstl
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EGS MANAGEMENT, L.L.C., a Delaware limited
liability company
By: /s/ William Ehrman
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/s/ William Ehrman
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William Ehrman
/s/ Frederic Greenberg
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Frederic Greenberg
/s/ Jonas Gerstl
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Jonas Gerstl
/s/ Julia Oliver
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Julia Oliver
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Schedule 1
Below is a listing of the number of shares of the Company's common stock, $.001
par value (the "Common Stock"), owned of record or beneficially owned by each of
the below listed Shareholders as of April 12, 2000.
SHAREHOLDER SHARES OF COMMON STOCK OWNED
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EGS Associates, L.P. 610,298
Bev Partners, L.P. 380,815
EGS Overseas Fund 6,100
EGS Partners Managed Account A 17,567
Jonas Partners, L.P. 62,195
EGS Partners Managed Account B 2,679,162
Fred Greenberg 100
Total 3,756,237
