AMENDMENT TO AMENDED AND RESTATED SHAREHOLDER AGREEMENT OF MNA ADVISORS, INC. A New York Corporation
AMENDMENT
TO
AMENDED AND RESTATED
OF
MNA ADVISORS, INC.
A New York Corporation
This Second Amendment (this “Amendment”) to the Amended and Restated Shareholder Agreement of MNA Advisors, Inc., a New York corporation (the “Company”), is entered into as of December 1, 2013 (the “Effective Date”), by and among the undersigned Shareholders of the Company.
RECITALS
WHEREAS, the Shareholders entered into the Amended and Restated Shareholder Agreement dated November 23, 2011 and the First Amendment to Amended and Restated Shareholder Agreement effective November 23, 2011 (together, the “Shareholder Agreement”);
WHEREAS, the Shareholders wish to further amend the Shareholder Agreement to modify the repurchase option with respect to Unvested Shares;
WHEREAS, the Shareholders are parties to that certain Amended and Restated Operating Agreement of Xxxxxxx & Xxxxxx Capital Company, L.L.C. dated November 23, 2011, which agreement shall be amended on even date herewith;
WHEREAS, pursuant to Section 22.2 of the Shareholder Agreement, the Shareholder Agreement may be amended by a written consent signed by Xxxxxxx and Shareholders owning more than 50% of the Outstanding Shares (excluding the Outstanding Shares owned by Xxxxxxx as of November 23, 2011); and
NOW, THEREFORE, for good and valuable consideration and intending to be legally bound hereby, the undersigned Shareholders agree as follows:
1. Definitions. Any capitalized term used, but not defined, in this Amendment shall have its respective meaning as set forth in the Shareholder Agreement.
2. Amendments. From and after the Effective Date:
(a) Section 6.4.4 shall be amended and restated in its entirety to read as follows:
“Notwithstanding any provision of this Agreement to the contrary, if the PIC determines in its review of the 2014 performance of the Shareholders that certain Shares shall remain Unvested Performance Shares, then such Shares are subject to purchase by the Company pursuant to Article 8 below.”
(b) Article 8 shall be amended and restated in its entirety to read as follows:
“ARTICLE 8. COMPANY OPTION TO PURCHASE UNVESTED SHARES OWNED BY AN EMPLOYEE UPON CERTAIN EVENTS
8.1. Company Purchase Option. In compliance with Section 6.4.4, the Company shall have the option to purchase all or a portion of the Unvested Shares (the “DDR Shares”) owned by each Employee (each a “DDR Selling Shareholder”) (a) on or after February 21, 2015 or (b) earlier, on the date the DDR Selling Shareholder’s employment is terminated for any reason other than death or Disability. The Company may exercise its option with respect to the DDR Shares by written notice given to the DDR Selling Shareholder or to his Personal Representative. The Company will pay the purchase price set forth in Section 8.2 to the DDR Selling Shareholder or to his Personal Representative upon the payment terms set forth in Section 8.3.
8.2. Purchase Price. The purchase price for the DDR Shares will be the lesser of (i) the cost for such shares and (ii) the fair market value of such shares, as determined in the sole discretion of the Board.
8.3. Terms of Payment. The Company will pay the purchase price for the DDR Shares to the DDR Selling Shareholder (i) in cash at the closing or (ii) over 12 payments, on each of the next 12 Payment Dates, beginning on the next Payment Date after the closing of the sale. In addition, if the Company elects to pay based on (ii) above, each such payment will include an amount of interest equal to the Stated Rate (prorated for the time the unpaid purchase amount remains unpaid) on the unpaid purchase price. Any sale contemplated by this Section 8.3 shall be pursuant to a purchase agreement reasonably satisfactory to the parties.
8.4. The Closing. The closing with respect to any purchase and sale of Shares pursuant to this Article 8 shall be in accordance with Article 14.”
3. Miscellaneous Provisions
(a) This Amendment shall constitute and evidence the unanimous written consent of the undersigned Shareholders to this Amendment within the meaning of Section 22.2 of the Shareholder Agreement.
(b) Except as expressly amended hereby, the terms and conditions of the Shareholder Agreement are hereby ratified and confirmed, and shall continue in full force and effect. In the event of any conflict or inconsistency between the terms set forth herein and the terms of the Shareholder Agreement, the terms contained in this Amendment shall control.
(c) This Amendment shall be governed by, and construed in accordance with, the laws and decisions of the State of New York, without regard to conflict of law rules applied in such State.
(d) This Amendment constitutes the entire understanding among the parties hereto. No waiver or modification of the provisions of this Amendment shall be valid unless it is in writing and executed pursuant to Section 22.2 of the Shareholder Agreement and then, only to the extent therein set forth.
(e) This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement binding on the Shareholders. For purposes of this Amendment, any signature hereto transmitted by facsimile or e-mail (in PDF format) shall be considered to have the same legal and binding effect as any original signature hereto.
[THE NEXT PAGE IS THE SIGNATURE PAGE.]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set forth above.
SHAREHOLDERS:
_/s/ Xxxxxxx Manning____________
XXXXXXX XXXXXXX
/s/ Xxxx Xxxxxxxxxxx
XXXX XXXXXXXXXXX
XXXX XXXXXXXXXXX
/s/ Xxxxxx Xxxxxxx
XXXXXX XXXXXXX
_/s/ B. Reuben Auspitz___________
B. XXXXXX XXXXXXX
_/s/ Xxxx X. Galusha_____________
XXXX X. XXXXXXX
_/s/ Xxxxx Gambill_______________
XXXXX XXXXXXX
_/s/ Xxxxx Lester________________
XXXXX XXXXXX
_/s/ Xxxxxxx X. Stamey___________
XXXXXXX X. XXXXXX
_/s/ Christian Andreach__________
XXXXXXXXX XXXXXXXX
_/s/ Xxxxxxxxxxx Cummings_______
XXXXXXXXXXX XXXXXXXX
_/s/ Xxxxxxxxxxx X. Petrosino_______
XXXXXXXXXXX X. XXXXXXXXX
_/s/ Xxxxxxxxxxx Long____________
XXXXXXXXXXX XXXX
_/s/ Xxxxxxxxx X. Glavin__________
XXXXXXXXX X. XXXXXX
_/s/ Xxxxx X. Roewer____________
XXXXX X. XXXXXX
_/s/ Xxxx Daniels________________
XXXX XXXXXXX
_/s/ Xxxx Henderson_____________
XXXX XXXXXXXXX
_/s/ Xxxxxx X. Nobilski___________
XXXXXX X. XXXXXXXX
_/s/ Xxxx X. Bauer______________
XXXX X. XXXXX
_/s/ Xxxxx X. Herbst_____________
XXXXX X. XXXXXX
_/s/ Xxxxx Lisiak________________
XXXXX XXXXXX
_/s/ Xxx Welles_________________
XXX XXXXXX
_/s/ Xxxxxxx X. Herrmann_________
XXXXXXX X. XXXXXXXX
_/s/ Xxxxxxx X. Tyburski__________
XXXXXXX X. XXXXXXXX
_/s/ Xxxxxxx X. Coons____________
XXXXXXX X. XXXXX
_/s/ Xxxxxxx X. Donlon___________
XXXXXXX X. XXXXXX
_/s/ Xxxx X. Hedberg______________
XXXX X. XXXXXXX
_/s/ Xxxxxxx Maurer______________
XXXXXXX XXXXXX
_/s/ Xxxxx Harwood______________
XXXXX XXXXXXX
_/s/ Xxxxxxx Castner_______________
XXXXXXX XXXXXXX
_/s/ Xxxx X. Tommasi____________
XXXX X. XXXXXXX
_/s/ Xxxx Macpherson_____________
XXXX XXXXXXXXXX
_/s/ Xxxxxxx X. Magiera____________
XXXXXXX X. XXXXXXX
_/s/ Xxxxxxx Platania______________
XXXXXXX XXXXXXXX
_/s/ Xxxxxxx X. McGinn___________
XXXXXXX X. XXXXXX
_/s/ Xxxxxxx X. Mosca____________
XXXXXXX X. XXXXX
_/s/ Xxxx Odendahl_______________
XXXX XXXXXXXX
_/s/ Xxxxxxx Cunningham___________
XXXXXXX XXXXXXXXXX
_/s/ Xxxx X. Smith____________
XXXX X. XXXXX
_/s/ Xxxxxxx X. Yates_____________
XXXXXXX X. XXXXX
_/s/ Xxxxxx Conrad__________
XXXXXX XXXXXX
_/s/ Xxxxxx Pickels_______________
XXXXXX XXXXXXX
_/s/ Xxxxx Azzouz______________
XXXXX XXXXXX
_/s/ Xxxxx Pilchard________________
XXXXX XXXXXXXX
_/s/ Xxxx X. Yarton_______________
XXXX X. XXXXXX
_/s/ Xxxxxxx Willis_______________
XXXXXXX XXXXXX
_/s/ Virge Trotter________________
XXXXX XXXXXXX
