REDEMPTION AGREEMENT (this “Agreement”), dated as of the 11th day of May, 2020, by and between M&N Group Holdings, LLC, a Delaware limited liability company having an address at 290 Woodcliff Drive, Fairport, New York 14450 (“Group Holdings”), and MNA Advisors, Inc., a New York corporation having an address at 290 Woodcliff Drive, Fairport, New York 14450 (the “Company”).
W I T N E S S E T H:
WHEREAS, the parties to this Agreement have agreed that Group Holdings shall redeem Class A Units held by the Company;
WHEREAS, certain shareholders of the Company are each eligible to have the Company redeem their shares in connection with an exchange transaction among affiliated companies including Manning & Napier, Inc., Manning & Napier Group, LLC (“MN Group”), Manning & Napier Capital Company, and Group Holdings, and the Company has agreed to sell such redeemed shares to Group Holdings who will in turn sell corresponding units to MN Group;
WHEREAS, subject to the terms and conditions set forth in those certain Redemption Agreements entered into concurrently with this Agreement between some or all of the shareholders of the Company and the Company (collectively, the “Company Redemption Agreements”), the Shareholders are redeeming common stock of the Company in exchange for the redemption price specified in such Company Redemption Agreements; and
WHEREAS, subject to the terms and conditions set forth herein, the Company desires to irrevocably have redeemed by Group Holdings, and Group Holdings desires to redeem, 34,757,162.0859 of the Class A Units, which amount corresponds to the ownership percentage of the Company that is being redeemed pursuant to the Company Redemption Agreements (the “Redeemed Interests”), in exchange for the Redemption Price (as defined below).
NOW, THEREFORE, in consideration of the foregoing premises, the respective covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, hereby agree as follows:
SECTION 1.01. Redemption of the Securities. Subject to the terms and conditions set forth in this Agreement, on the Closing Date (as defined below), the Company hereby irrevocably submits for redemption and transfers, assigns and delivers to Group Holdings, and Group Holdings hereby redeems and accepts all right, title and interest in and to, the Redeemed Interests, free and
clear of all liens and encumbrances of any kind, for the Redemption Price. On the Closing Date (or thereafter pursuant to Section 5.01), the Company shall deliver to Group Holdings all instruments necessary to effect the transfer of the Redeemed Interests from the Company to Group Holdings.
SECTION 1.02. Redemption Price. The redemption price for the Redeemed Interests shall be $51,350,737.12 in cash (the “Redemption Price”). On or as promptly after the Closing Date as is practicable, Group Holdings shall pay the Redemption Price by check or wire transfer of immediately available funds to an account specified in writing by the Company.
SECTION 1.03. Closing. The closing of the redemption of the Redeemed Interests (the “Closing”) shall take place immediately following the execution of this Agreement on the date hereof (the “Closing Date”). The Closing shall take place at the offices of Group Holdings, or at such other location as may be mutually agreed to by the parties hereto.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Group Holdings as follows:
SECTION 2.01. Authorization and Validity of Agreement. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of New York. The Company has full legal capacity and authority to execute this Agreement and to carry out its obligations hereunder. To the extent applicable, the execution and delivery of this Agreement and the performance of the Company’s obligations hereunder have been duly authorized by all necessary action on behalf of the Company. This Agreement has been duly executed by the Company, and, assuming due authorization, execution and delivery by Group Holdings, this Agreement constitutes the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its terms. Each document and instrument of transfer contemplated by this Agreement (including pursuant to Section 5.01 hereof) is valid and legally binding upon the Company in accordance with its terms.
SECTION 2.02. Ownership of Redeemed Interests. The Company is the lawful owner of record and beneficially owns, and has good and marketable title to, the Redeemed Interests, free and clear of any security interest, pledge, mortgage, lien, call, option, charge, encumbrance, adverse claim, preferential arrangement or restriction of any kind, including, without limitation, any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership (collectively, “Encumbrances”). Upon the consummation of the transaction contemplated by this Agreement and payment of the Redemption Price, Group Holdings will own the Redeemed Interests free and clear of any Encumbrance.
SECTION 2.03. No Conflict or Violation. The execution and delivery of this Agreement by the Company and the consummation of the transactions contemplated hereby do not and will not (a) with or without the giving of notice or the passage of time or both, violate, conflict with, result in the breach or termination of, constitute a default under, or result in the right to accelerate or loss of rights under or the creation of any Encumbrance upon any assets or property of the Company, pursuant to the terms or provisions of any contract, agreement, commitment, indenture, mortgage, deed of trust, pledge, security agreement, note, lease, license, covenant,
understanding or other instrument or obligation to which the Company is a party or by which it or any of its properties or assets may be bound or affected, (b) violate or conflict with any provision of the organizational documents of the Company or (c) violate any provision of law or any order, writ, injunction, judgment or decree of any court, administrative agency or governmental body binding upon the Company.
SECTION 2.04. No Consent. No consent, approval or authorization of or declaration or filing with any governmental authority or other persons or entities on the part of the Company is required in connection with execution or delivery of this Agreement or the consummation of the transactions contemplated hereby.
SECTION 2.05. Sufficient Knowledge. The Company acknowledges that it has (a) been provided access to or been furnished with sufficient facts and information to evaluate and make an informed decision with respect to the redemption of the Redeemed Interests pursuant to the terms of this Agreement, (b) read and understands all of such information, (c) been provided sufficient opportunity to ask questions and all of such questions have been answered to its full satisfaction, (d) not relied on any oral or written representations made by or on behalf of Group Holdings or any of its affiliates (other than as set forth in this Agreement) and shall not construe or rely on any communication or documentation from or on behalf of Group Holdings or any of its affiliates as investment, legal or tax advice and (e) obtained such advice (including without limitation the advice of counsel of the Company’s choosing) as it deemed appropriate in order to make an informed decision with respect to the redemption of the Redeemed Interests pursuant to the terms of this Agreement. The Company acknowledges and agrees that the Redemption Price represents the fair market value of the Redeemed Interests.
REPRESENTATIONS AND WARRANTIES OF GROUP HOLDINGS
Group Holdings hereby represents and warrants to the Company as follows:
SECTION 3.01. Organization; Authorization and Validity of Agreement. Group Holdings is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. Group Holdings has all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution and delivery of this Agreement and the performance of Group Holdings’ obligations hereunder have been duly authorized by all necessary action, and no other proceedings on the part of Group Holdings is necessary to authorize such execution, delivery and performance. This Agreement has been duly executed by Group Holdings and, assuming due execution by the Company, constitutes legal, valid and binding obligations of Group Holdings, enforceable against Group Holdings in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, moratorium or similar laws of general application relating to or affecting creditors’ rights generally and except for the limitations imposed by general principles of equity.
SECTION 3.02. No Conflict or Violation. The execution, delivery and performance by Group Holdings of this Agreement does not and will not (i) violate or conflict with any provision
of the organizational documents of Group Holdings or (ii) violate any provision of law, or any order, judgment or decree of any court or other governmental entity.
SECTION 4.01. Company Indemnity. The Company covenants and agrees to indemnify and hold Group Holdings and its officers, directors and stockholders, harmless from and against, and to reimburse such indemnitees for, any claim for any losses, damages, liabilities, deficiencies and expenses (including reasonable counsel fees and expenses) (a “Claim”) incurred by Group Holdings or any such indemnitee after the date hereof by reason of, or arising from, (a) any misrepresentation or breach of any representation or warranty contained in this Agreement or in any instrument or document executed by the Company and delivered to Group Holdings pursuant to the terms hereof or (b) any failure by the Company to perform any obligation or covenant required to be performed by it under any provision of this Agreement.
SECTION 4.02. Group Holdings Indemnity. Group Holdings covenants and agrees to indemnify and hold the Company and its officers, directors and stockholders, harmless from and against, and to reimburse such indemnitees for, any claim for any losses, damages, liabilities, deficiencies and expenses (including reasonable counsel fees and expenses) incurred by the Company or any such indemnitee after the date hereof by reason of, or arising from, (a) any misrepresentation or breach of any representation or warranty contained in this Agreement or in any instrument or document executed by Group Holdings and delivered to the Company pursuant to the terms hereof or, (b) any failure by Group Holdings to perform any obligation or covenant required to be performed by it under any provision of this Agreement.
SECTION 5.01. Further Assurances. Each party hereto shall execute, deliver, file and record, or cause to be executed, delivered, filed and recorded, such further agreements, instruments and other documents, and take, or cause to be taken, such further actions, as any other party hereto may reasonably request as being necessary or advisable to effect or evidence the transactions contemplated by this Agreement.
SECTION 5.02. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with regard to the subject matter hereof.
SECTION 5.03. Amendments; Waivers. This Agreement may be amended, modified or superseded, and any of the terms, covenants, representations, warranties or conditions hereof may be waived, only by a written instrument executed by parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the party against whom enforcement is sought. The failure of any party at any time or times to require performance of any provisions hereof will in no manner affect the right at a later time to enforce the same. No waiver by any party of any condition, or of any breach of any term, covenant, representation or warranty contained in this Agreement, in any one or more instances, will be deemed to be or construed as a further or
continuing waiver of any such condition or breach or a waiver of any other condition or of any breach of any other term, covenant, representation or warranty.
SECTION 5.04. Successors and Assigns. All of the terms, covenants, representations, warranties and conditions of this Agreement will be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.
SECTION 5.05. Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of New York, without giving effect to any choice of law or conflict of law provisions or rule that would cause the application of the laws of any jurisdiction other than the State of New York.
SECTION 5.06. Severability. If any provision of this Agreement shall become illegal, invalid, unenforceable or against public policy for any reason, or shall be held by any court of competent jurisdiction to be illegal, invalid, unenforceable or against public policy, then such provision shall be severed from this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall remain in full force and effect. In lieu of each provision that becomes or is held to be illegal, invalid, unenforceable or against public policy, there shall be automatically added to this Agreement a provision as similar in substance to the objectionable provision as may be possible and still be legal, valid, enforceable and in compliance with public policy.
SECTION 5.07. Section and Paragraph Headings. The section and paragraph headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
SECTION 5.08. Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties hereto had executed the same document. All such counterparts shall be construed together and shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
M&N GROUP HOLDINGS, LLC
By: /s/ Sarah Turner
Name: Sarah Turner
Title: Authorized Signatory
MNA ADVISORS, INC.:
By: /s/ Michelle Thomas
Name: Michelle Thomas
Title: Corporate Secretary