Contract
EXHIBIT
10.18.4
THIRD AMENDMENT dated as of February
26, 2009 (this “Amendment”), among
NOVAMERICAN STEEL INC.
f/k/a Symmetry Holdings Inc., a Delaware corporation (the “Company”), PLAYFORD GRANTOR RETAINED ANNUITY
TRUST U/A/D 2/12/07 (the “GRAT”), PLAYFORD SPAC PORTFOLIO LTD. (“Portfolio”), XXXXXXX X. XXXXXXXX REVOCABLE TRUST
(the “Trust”), and CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, as escrow agent (the “Escrow Agent”), to
the Stock Escrow Agreement, dated March 12, 2007, as amended as of November 15,
2007 and December 23, 2008 (the “Agreement”;
capitalized terms used without definition herein shall have the meanings given
to them therein), among Xxxxxxx X. Xxxxxxxx, Xxxxxxx Xx Xxxxxxxx, Portfolio,
Xxxxxxxx Xxxxxx, Xxxxx X. Xxxxx, X. Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxxx, Xx. and
Xxxxxx X. Xxxxxx (collectively, the “Original
Stockholders”), the Company and the Escrow Agent.
WITNESSETH:
WHEREAS, in connection with an acquisition that closed on November 15, 2007, the
Original Stockholders, the Company, and certain purchasers of units
including shares of common stock (including certain affiliates of Xx.
Xxxxxxxx), entered
into the Amendment dated
as of November 15, 2007 (the “First
Amendment”), pursuant to
which such purchasers of units including shares
became parties to the
Agreement and Exhibit
A thereto was updated to reflect shares
received in the directed unit
program (including
an aggregate of 125,000
shares of common stock, represented by Certificate No. 3 (the “DUP
Shares”), received by
Portfolio).
WHEREAS, (a) following the
execution of the First Amendment, Portfolio transferred the DUP Shares to the
Trust, (b) following the execution of the Second Amendment, Playford Holdings,
Ltd. transferred
the 312,500 shares of common stock it received on November 15, 2007 to the
Trust, and The Xxxxxxx X
Xxxxxxxx 2007 Charitable Remainder Trust U/A/D 6/12/07 transferred 580,331 shares of
its common stock to the Trust, in each case in escrow pursuant to Section 2.3(c)
of the Agreement, and (c) Portfolio now wishes to transfer its 1,172,500 shares
of common stock to the GRAT and the GRAT wishes to transfer, immediately
thereafter, the same 1,172,500 shares of common stock to the Trust, in each case
in escrow pursuant to Section 2.3(c) of the Agreement.
NOW, THEREFORE, in consideration
of the premises, representations and warranties and the mutual covenants and
agreements contained herein and other good, valuable and sufficient
consideration, the receipt of which is hereby acknowledged, the parties,
intending to be legally bound, agree that:
1. Exhibit A, Definitions and
Agreement. Exhibit A attached to
the Agreement is hereby superseded by Exhibit A attached
hereto. The definition of “Existing
Stockholders” in the Agreement is hereby deemed to include the GRAT, and
the GRAT hereby agrees to be bound by the terms and conditions of the
Agreement.
2. Full Force and
Effect. Except as expressly amended hereby, all of the
provisions of the Agreement are hereby affirmed and shall continue in full force
and effect in accordance with their respective terms.
3. Governing
Law. The construction, validity and performance of this
Amendment will be governed in all respects by the laws of the State of New York,
without regard to its conflicts of laws principles.
4. Counterparts;
Signatures. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. The exchange
of copies of this Amendment and of signature pages by facsimile transmission
shall constitute effective execution and delivery of this Amendment as to the
parties and may be used in
lieu of the
original Amendment for all purposes. Signatures of the parties transmitted by
facsimile shall be deemed to be their original signatures for all
purposes.
[remainder
of page intentionally left blank]
2
IN WITNESS WHEREOF, the
parties hereto have executed and delivered this Amendment as of the date first
above written.
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NOVAMERICAN
STEEL INC.
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: Vice
President, Chief Administrative Officer, General Counsel and
Secretary
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PLAYFORD
SPAC PORTFOLIO LTD.
By: PLAYFORD
SPAC MANAGEMENT
CORP., as General
Partner
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx
X. Xxxxxxxx
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Title: President
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XXXXXXX
X. XXXXXXXX REVOCABLE TRUST
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx
X. Xxxxxxxx
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Title: Trustee
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PLAYFORD
GRANTOR RETAINED ANNUITY TRUST U/A/D 2/12/07
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx
X. Xxxxxxxx
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Title: Trustee
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY, as Escrow Agent
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By:
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/s/
Xxxx X. Xxxxx, Xx.
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Name: Xxxx
X. Xxxxx, Xx.
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Title: Vice
President
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3
Exhibit A - Escrow
Shares
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Existing Stockholder
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Number of Shares
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Stock Cert. #
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Shares Issued in Directed Unit
Program
*
(with Stock Cert. #)
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Escrow Period
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Date of Insider Letter
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Original Stockholders:
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Xxxxxxx
Xx Xxxxxxxx
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1,875,000
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16
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---
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March
7, 2010 (3 years from IPO prospectus date)
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Xxxxx
0, 0000
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Xxxxxxxx
SPAC Portfolio Ltd.
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X/X
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X/X
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X/X
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X/X
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X/X
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Xxxxxxx
X. Xxxxxxxx Revocable Trust [Playford SPAC Portfolio Ltd. (a) received
125,000 shares in 3/07 and transferred them to the Trust after 11/15/07;
and (b) transferred 1,172,500 shares (Cert. #19) to Playford Grantor
Retained Annuity Trust u/a/d 2/12/07 in 2/09, which immediately
transferred such shares to Xxxxxxx X. Xxxxxxxx Revocable
Trust]
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1,172,500
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[___]
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125,000
/ #3
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March
7, 2010 (3 years from IPO prospectus date)
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March
6, 2007
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Xxxxxxxx
Xxxxxx
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700,000
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18
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---
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March
7, 2010 (3 years from IPO prospectus date)
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March
6, 2007
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Xxxxx
Xxxxxx Xxxxx
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235,000
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10
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18,750
/ #2
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March
7, 2010 (3 years from IPO prospectus date)
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March
6, 2007
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X.
Xxxxxxx Xxxxxx
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235,000
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12
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25,000
/ #1
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March
7, 2010 (3 years from IPO prospectus date)
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March
6, 2007
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Xxxxxx
X. Xxxxxx, Xx.
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235,000
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15,17
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---
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March
7, 2010 (3 years from IPO prospectus date)
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March
6, 2007
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Xxxxxx
X. Xxxxxx
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235,000
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11
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---
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March
7, 2010 (3 years from IPO prospectus date)
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March
6, 2007
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Subtotal
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4,687,500
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11/07 Stockholders:
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The
Xxxxxxx X Xxxxxxxx 2007 Charitable Remainder Trust U/A/D 6/12/07 (“CRT”) [Received 625,000 shares on
11/15/07 (Cert. #4), transferred
580,331 of them to Trust 12/08]
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44,669
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26
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November
15, 2009 (2 years from issuance date)
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---
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Xxxxxxx
X. Xxxxxxxx Revocable Trust
[Received
312,500 shares (Cert. #5 dated 11/15/07) from Playford Holdings, Ltd.,
580,331 from CRT 12/08]
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312,500
580,331
892,831
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24
25
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---
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November
15, 2009 (2 years from issuance date)
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---
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4
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Lions
Den Investments SA
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312,500
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SH
0006
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---
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November
15, 2009 (2 years from issuance date)
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---
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Chongwe
Investments SA
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312,500
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SH
0007
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---
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November
15, 2009 (2 years from issuance date)
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---
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Etosha
Investments SA
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312,500
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SH
0008
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---
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November
15, 2009 (2 years from issuance date)
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---
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Subtotal
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1,875,000
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TOTAL
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6,562,500
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5
