Contract
EXHIBIT
10.18.3
SECOND AMENDMENT
dated as of December 23, 2008 (this “Amendment”), among
NOVAMERICAN STEEL INC.
f/k/a Symmetry Holdings Inc., a Delaware corporation (the “Company”), PLAYFORD HOLDINGS, LTD. (“Holdings”), XXXXXXX X. XXXXXXXX REVOCABLE TRUST
(the “Trust”), THE XXXXXXX X
XXXXXXXX 2007 CHARITABLE REMAINDER TRUST U/A/D 6/12/07 (the “CRT”) and CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, as escrow agent (the “Escrow Agent”), to
the Stock Escrow Agreement, dated March 12, 2007 (the “Agreement”;
capitalized terms used without definition herein shall have the meanings given
to them therein), among Xxxxxxx X. Xxxxxxxx, Xxxxxxx Xx Xxxxxxxx, Xxxxxxxx SPAC
Portfolio Ltd. (“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) Holdings now wishes to transfer the 312,500 shares of common stock it
received on November 15, 2007 to the Trust, and (c) the CRT now wishes to
transfer 580,331 shares of its 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the Agreement is hereby superseded by Exhibit A attached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 Trust, and
the Trust 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]
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
HOLDINGS, LTD.
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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: General
Partner
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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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THE
XXXXXXX X XXXXXXXX 2007 CHARITABLE REMAINDER
TRUST U/A/D 6/12/07 |
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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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2
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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1,172,500
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19
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March
7, 2010 (3 years from IPO prospectus date)
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March
6, 2007
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Xxxxxxx
X. Xxxxxxxx Revocable Trust
[Playford
SPAC Portfolio Ltd. received shares in March 2007 and transferred them to
the Trust after Nov. 15, 2007]
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---
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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
[Received
625,000 shares on Nov. 15, 2007 (Certificate #SH 0004), transferred
580,331 of them to Trust Dec. 2008]
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44,669
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SH
00___
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---
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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. # SH 0005 dated 11/15/07) from Playford Holdings,
Ltd., 580,331 from CRT Dec. 2008]
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892,831
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SH
00___
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---
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November
15, 2009 (2 years from issuance date)
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---
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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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3
