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Exhibit 10.39(g)
AMENDMENT NO. 1
TO
STOCK PURCHASE RELATED AGREEMENT
AMENDMENT NO. 1 TO STOCK PURCHASE RELATED AGREEMENT, effective as of
January 1, 1995, among the stockholders named in Schedule 1 hereto (each, a
"Stockholder," together the "Stockholders"), and ALLEGHANY CORPORATION, a
Delaware corporation ("Alleghany").
W I T N E S S E T H:
WHEREAS, Alleghany and the Stockholders other than Xxxxx Xxxxx, Xx.,
Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxx and Xxxxxxx X. Xxxxx, Xx. are parties to the
Stock Purchase Related Agreement dated as of July 28, 1993, as supplemented by
the Supplement to Stock Purchase Agreement dated as of August 12, 1993
(collectively, the "Stock Purchase Related Agreement");
WHEREAS, the parties hereto desire to add Xxxxx Xxxxx, Xx., Xxxxxx X.
Xxxxxx, Xxxxxx X. Xxxx and Xxxxxxx X. Xxxxx, Xx. as "Stockholder" parties to the
Stock Purchase Related Agreement; and
WHEREAS, the parties hereto desire to amend the Stock Purchase Related
Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, agreements and provisions contained herein, the parties hereto agree
as follows:
Section 1. Definitions. Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Stock Purchase Related Agreement.
Section 2. Additional Parties to Stock Purchase Related Agreement. Each
of Xxxxx Xxxxx, Xx., Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxx and Xxxxxxx X. Xxxxx, Xx.
is hereby added as a "Stockholder" party to the Stock Purchase Related Agreement
as amended hereby, upon such Stockholder's execution of a counterpart hereof.
Section 3. Amendments to Stock Purchase Related Agreement. The Stock
Purchase Related Agreement is hereby amended as follows:
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(i) Section 1(d)(vi) of the Stock Purchase Related Agreement
is hereby amended to read in its entirety as follows:
(vi) lapse if not exercised prior to the earliest of (A)
the expiration of the option, (B) the termination of employment
for any reason whatsoever and the subsequent completion of a
tender offer for the Common Stock by Alleghany, or (C) two
years after termination of employment for any reason
whatsoever.
(ii) Section 1(d)(vii) of the Stock Purchase Related Agreement
is hereby deleted.
(iii) Section 5(b) of the Stock Purchase Related Agreement is
hereby amended to read in its entirety as follows:
(b) Eligible Shares. "Eligible Shares" shall mean 100% of
the shares of Common Stock owned by each Stockholder on the
Closing Date, as set forth on Schedule 5 hereto (referred to
herein as the "Post-Closing Ownership"), on a cumulative basis
on the fourth anniversary of the Closing, with 25% of such
Post-Closing Ownership becoming eligible on each of the first
four anniversaries of the Closing.
(iv) Section 6 of the Stock Purchase Related Agreement is
hereby amended to read in its entirety as follows:
Section 6. Purchase of Common Stock Upon Termination of
Employment.
(a) Purchase of Common Stock. Upon the termination of
employment with NHC or any of its subsidiaries of any
Stockholder who holds at the time of termination shares of
Common Stock which were owned by such Stockholder on the
Closing Date (the "Repurchase Shares"), prior to an Initial
Public Offering (as defined below) or a Sale (as defined in
Section 7 hereof), Alleghany shall purchase from such
Stockholder or the Permitted Transferees (as defined in Section
10 hereof) of such Stockholder (the "Selling Person"), and such
Selling Person shall sell to Alleghany, all of the Repurchase
Shares held by such Selling Person at a price per share of
Common Stock (the "Repurchase Price") equal to the fully
diluted book value of the Common Stock, determined in
accordance with generally accepted accounting principles as at
the end of the calendar quarter immediately preceding
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such termination, as determined by NHC and as reported upon by
the independent public accountants of NHC, provided, however,
that if employment of such Stockholder was terminated by NHC
without Cause (as defined below) or terminated as a result of
death or permanent disability, the Repurchase Price shall equal
the Adjusted Book Value of the Common Stock, as at the end of
the calendar quarter immediately preceding such termination, as
determined by NHC and as reported upon by the independent
public accountants of NHC. Non-employee directors shall be
subject, in respect of any Repurchase Shares held by them, to
the same terms and conditions set forth in this Section 6 with
respect to the Stockholders.
(b) Certain Definitions. The term "Initial Public
Offering" shall mean the sale by Alleghany, of shares of Common
Stock equal to 20% or more of the then outstanding shares of
Common Stock in a public offering pursuant to a registration
statement under the Securities Act or a public distribution of
shares of Common Stock by Alleghany to its stockholders. The
term "Cause" shall mean (i) material breach of the
Stockholder's Employment Agreement (as defined in Section 17
hereof), (ii) dishonesty of the Stockholder detrimental to the
best interests of NHC or any of its subsidiaries or affiliates
or conviction of the Stockholder of a crime which constitutes a
felony, (iii) any material act or omission by the Stockholder
involving willful malfeasance or gross negligence in the
performance of his duties with NHC or its subsidiaries, and
(iv) continued inattention and neglect by the Stockholder of
his duties with NHC or its subsidiaries (other than inattention
or neglect resulting from illness or disability of the
Stockholder) which inattention and neglect does not cease
within fifteen days after written notice thereof specifying the
details of such conduct is given by the Board of Directors of
NHC to the Stockholder. The Stockholder shall be entitled to
only one such fifteen day notice and right to cure.
(c) Notice. No later than thirty days following the
termination of employment of such Stockholder, Alleghany shall
send to such Selling Person written notice with respect to its
purchase of all Repurchase Shares held by such Selling Person.
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(d) Payment. Alleghany shall cause NHC to determine the
Repurchase Price, which shall be reported upon by the
independent public accountants of NHC, and Alleghany shall send
written notice of said determination to such Selling Person.
The closing of the purchase shall take place at the principal
office of Alleghany on the fifteenth day after delivery by
Alleghany of its notice pursuant to paragraph (c) above.
Delivery of the stock certificates covering the Repurchase
Shares shall be made by such Selling Person on the closing date
against payment in the manner set forth below. The stock
certificates, when delivered to Alleghany, shall be endorsed in
blank or accompanied by stock powers executed in blank. Payment
therefor shall be made in full in cash (or by wire transfer or
certified or official bank check) at the closing.
(v) Section 10(a) of the Stock Purchase Related Agreement is
hereby amended to read in its entirety as follows:
(a) a transfer made to Alleghany or any Stockholder;
(vi) Section 12 of the Stock Purchase Related Agreement is
hereby amended to read in its entirety as follows:
Section 12. Put Option. (a) Each Stockholder shall have
the right commencing the year following the tenth anniversary
of the Closing and each year thereafter as herein provided to
require Alleghany to repurchase all, or any part, of the
Eligible Shares held by such Stockholder at a price per share
of Common Stock (the "Put Option Price") equal to the fully
diluted book value per share of Common Stock, determined in
accordance with generally accepted accounting principles as of
the end of the year immediately preceding the exercise of such
right by a Stockholder, as determined by NHC and as reported
upon by the independent public accountants of NHC. Each
Stockholder wishing to exercise his rights under this Section
12 shall send to Alleghany written notice of his intention to
exercise his rights no later than sixty (60) days following the
delivery to such Stockholder of the audited financial
statements of NHC (the "Audited Financial Statements") for the
end of the year preceding such notice.
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(b) Commencing the year following the tenth anniversary
of the Closing and each year thereafter, Alleghany shall cause
NHC to determine the Put Option Price, which shall be reported
upon by the independent public accountants of NHC, and
Alleghany shall send written notice of said determination to
each Stockholder together with the Audited Financial
Statements. The closing of the purchase shall take place at the
principal office of Alleghany on the fifteenth day after
delivery of a Stockholder's notice as provided in Section
12(a). Delivery of the stock certificates covering the Eligible
Shares held by such Stockholder and any transferees of such
Stockholder, shall be made by such Stockholder and any
transferees of such Stockholder on the closing date against
payment in the manner set forth below. The stock certificates,
when delivered to Alleghany, shall be endorsed in blank or
accompanied by stock powers executed in blank. Payment therefor
shall be made at the closing in full in cash (or by wire
transfer or certified or official bank check).
(vii) A new Section 36 is hereby added to the Stock Purchase
Related Agreement to read in its entirety as follows:
Section 36. Change in Control. (a) In the event of a
Change in Control, all of the options then held by any of the
Stockholders, whether or not then exercisable, shall be
immediately exercisable, and each Stockholder shall have the
right to require Alleghany to repurchase all, or any part, of
(i) the shares of Common Stock issued upon such exercise of
options held by such Stockholder at a price per share equal to
the Adjusted Book Value per share of the Common Stock; or (ii)
the options then held by such Stockholder at a price per
underlying share equal to the Adjusted Book Value per share of
the Common Stock less the Option Price per share, as defined in
the 1993 Plan and as set forth in the relevant Option Agreement
evidencing the options. For purposes of this Section 36,
"Adjusted Book Value" shall mean the higher of (x) Adjusted
Book Value as at the end of the calendar quarter immediately
preceding such Change in Control, or (y) eighty-five percent
(85%) of Adjusted Book Value as at the end of the year
immediately preceding such Change in Control, in each case as
determined by NHC and as reported upon by the independent
public accountants of NHC. A "Change in Control" shall be
deemed to have occurred if (x) any person or group (within the
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meaning of Rule 13d-5 of the Securities and Exchange Commission
as in effect on January 1, 1995) other than Alleghany or any
affiliate of Alleghany shall own, beneficially or of record,
shares representing more than fifty percent (50%) of the
aggregate ordinary voting power represented by the issued and
outstanding capital stock of NHC; (y) any person or group
(within the meaning of Rule 13d-5 of the Securities and
Exchange Commission as in effect on January 1, 1995) other than
the principal stockholders of Alleghany identified in
Alleghany's proxy statement dated March 27, 1995, or any of the
respective children, spouses or issue thereof or any entity
beneficially owned by one or more of them, shall own,
beneficially or of record, shares representing more than 50% of
the aggregate ordinary voting power represented by the issued
and outstanding capital stock of Alleghany; or (z) a majority
of the seats (other than vacant seats) on the board of
directors of Alleghany shall at any time be occupied by persons
who were neither nominated or appointed by a majority of the
directors of Alleghany who were in office as of January 1, 1995
nor who were nominated or appointed by directors so nominated.
(b) Each Stockholder wishing to exercise his rights under
this Section 36 shall send to Alleghany written notice of his
intention no later than fifteen (15) days following the
effective date of such Change in Control. The closing of the
purchase shall take place at the principal office of Alleghany
on the tenth day after delivery of a Stockholder's notice as
provided herein. Stock certificates representing shares of
Common Stock held by such Stockholder endorsed in blank or
accompanied by stock powers executed in blank, and/or an
assignment of the Option Agreement, as defined in the 1993
Plan, shall be delivered by such Stockholder on the closing
date against payment in full in cash (by wire transfer or
certified or official bank check).
(viii) A new Section 37 is hereby added to the Stock Purchase
Related Agreement to read in its entirety as follows:
Section 37. Cash-out Transactions. Alleghany hereby
agrees that so long as the Stockholders hold exercisable
options or Common Stock issued upon exercise of options,
Alleghany as a stockholder of NHC will not approve any sale,
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merger or other corporate transaction involving NHC in which
such exercisable options or Common Stock would be converted
into the right to receive cash or securities (other than
exercisable options or Common Stock of a successor to NHC
representing the same ownership interests theretofore
represented by such exercisable options or Common Stock) (a
"Cash-out Transaction"), unless: (a) the Stockholders would
receive in the Cash-out Transaction a consideration per share
of Common Stock issued upon exercise of options or issuable
upon exercise of exercisable options with a value equal to or
greater than the Adjusted Book Value per share of Common Stock,
or (b) Stockholders holding shares of Common Stock issued upon
exercise of options or issuable upon exercise of exercisable
options representing more than two-thirds of all such shares
shall have approved the Cash-out Transaction. For purposes of
this Section 37, "Adjusted Book Value" shall mean the higher of
(x) Adjusted Book Value as at the end of the calendar quarter
immediately preceding such Cash-out Transaction, or (y)
eighty-five percent (85%) of Adjusted Book Value as at the end
of the year immediately preceding such Cash-out Transaction, in
each case as determined by NHC and as reported upon by the
independent public accountants of NHC.
(ix) A new Section 38 is hereby added to the Stock Purchase
Related Agreement to read in its entirety as follows:
Section 38. Conflicts. In the event of any conflict or
inconsistency between the provisions of the Stock Purchase
Related Agreement as amended hereby and the 1993 Plan or a
Stockholders Nonstatutory Stock Option Agreement entered into
by NHC and a Stockholder upon the issuance of Options pursuant
to the 1993 Plan, the provisions of the Stock Purchase Related
Agreement as amended hereby shall be controlling, and NHC shall
be entitled to rely on the provisions of the Stock Purchase
Related Agreement as amended hereby unless otherwise instructed
in a writing signed by Alleghany and the affected Stockholder.
Section 4. Counterparts. This Amendment No. 1 may be executed
in one or more counterparts, all of which shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment No. 1 as of the date first written above.
ALLEGHANY CORPORATION
By:/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Attest: Title: Senior Vice
President
By:/s/Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Senior Vice President,
General Counsel and
Secretary
STOCKHOLDERS
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
/s/ F. Xxxx Xxxx
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F. Xxxx Xxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxxx
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/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxx
--------------------------------
Xxxxxx Xxxxxx
/s/ Xxxx X. Xxxx
--------------------------------
Xxxx X. Xxxx
/s/ Xxxx Xxxx
--------------------------------
Xxxx Xxxx
/s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx
/s/ Xxxxx Xxxxx, Xx.
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Xxxxx Xxxxx, Xx.
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxx
--------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------------
Xxxxxxx X. Xxxxx, Xx.
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Schedule 1
List of Stockholders
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxx
X. Xxxx Xxxx
Xxxxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxx
Xxxx X. Xxxx
Xxxx Xxxx
Xxxxx Xxxxx
Xxxxx Xxxxx, Xx.
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxx, Xx.
