Exhibit 10.20


 


AMENDMENT NO. 2 TO

AMENDED AND RESTATED

2013 MULTI-YEAR OUTPERFORMANCE AGREEMENT


 


This AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
2013 MULTI-YEAR OUTPERFORMANCE AGREEMENT, dated as of December 31, 2014 (this “Amendment”), is entered
into by and among RCS Capital Corporation (the “Company”), RCS Capital Holdings, LLC (“Holdings”),
and RCS Capital Management, LLC, the Company’s service provider (the “Service Provider”).


 


WHEREAS, the Company, Holdings and the
Service Provider are party to that certain Amended and Restated RCS Capital Corporation 2013 Multi-Year Outperformance Agreement,
dated as of February 11, 2014(the “OPP Agreement”), pursuant to which the Service Provider was granted LTIP
Units in Holdings (the “Award LTIP Units”);


 


WHEREAS, the Company, Holdings and the
Service Provider are party to that certain Amendment No.1 to Amended and Restated 2013 Multi-Year Outperformance Agreement, dated
as April 29, 2014 (“Amendment No.1”; capitalized terms used but not defined herein will have the respective
meanings set forth for them in the OPP Agreement and Amendment No.1, as applicable), pursuant to which the parties agreed that
April 28, 2014 would be the First Valuation Date under the OPP Agreement, any Award LTIP Units earned as of such First Valuation
Date (“Earned LTIP Units”) would be subject to vesting in accordance with the OPP Agreement and that any Award
LTIP Units not earned on such First Valuation Date would be cancelled and forfeited;


 


WHEREAS, pursuant to the OPP Agreement,
the Earned LTIP Units will either vest ratably on June 4, 2016, June 4, 2017 and June 4, 2018, or in full upon the termination
of the Service Provider’s service by either party for any reason;


 


WHEREAS, pursuant to that certain Agreement
dated as of April 29, 2014 (the “LTIP Assignment Agreement”), among the Service Provider, the Company and each
of the individuals identified as the “LTIP Members” on the signature page hereto (collectively, the “LTIP
Members”), effective as of April 29, 2014, the Service Provider distributed, transferred and assigned to the LTIP Members
its entire interest in the Earned LTIP Units as set forth in the LTIP Assignment Agreement;


 


WHEREAS, pursuant to the Limited Liability
Company Agreement of Holdings, entered into as of February 11, 2014, between the Company and the Service Provider, as amended by
the First Amendment to Limited Liability Company Agreement of Holdings, dated as of April 29, 2014, among the Company and the LTIP
Members (the “LLC Agreement”), an Earned LTIP Unit will automatically convert into a Class C Unit 30 days following
the vesting of the Earned LTIP Unit, provided that the LTIP Economic Capital Account Balance (as defined in the LLC Agreement)
attributable to the Earned LTIP Unit is equal to the Common Unit Economic Balance (as defined in the LLC Agreement).


 




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WHEREAS, Class C Units are redeemable
for cash or Class A Common Stock (the “Exchange Consideration”) and, in accordance with the LLC Agreement, such
redemption is to occur 60 days after the Company receives written notice of a Member’s election to redeem Class C Units.


 


WHEREAS, the Company, as managing member
of Holdings has determined that the LTIP Economic Capital Account Balance attributable to each of the Earned LTIP Units is equal
to the Common Unit Economic Balance and has taken such steps under the LLC Agreement as is required in connection therewith.


 


WHEREAS, in order (i) for the Company
to be entitled to a 100% dividends received deduction with respect to dividends from its corporate subsidiaries, (ii) to facilitate
future corporate acquisitions by the Company in a tax efficient manner, including eliminating the potential for tax associated
with the deconsolidation of corporate targets and (iii) to further streamline the structure of the Company and its subsidiaries,
the Board of Directors of the Company (the “Board”) has determined that it is in the best interest of the Company
and Holdings to facilitate the LTIP Members’ exchange of their Earned LTIP Units for the Exchange Consideration prior to
December 31, 2014.


 


WHEREAS, in order to facilitate the immediate
exchange of the Earned LTIP Units for Class A Common Stock, the Board has determined that it is in the best interests of the Company
and Holdings, and accordingly as of December 31, 2014 (the “Vesting Date”) has resolved to, (i) accelerate the
vesting in full of the Earned LTIP Units subject to the terms and conditions of this Agreement, (ii) cause Holdings to waive the
30-day waiting period prior to the automatic conversion of such vested Earned LTIP Units into Class C Units and (iii) waive the
60-day period prior to the delivery of the Exchange Consideration with respect to the Class C Units received by the LTIP Members
in exchange for such vested Earned LTIP Units.


 


WHEREAS, as a condition to the immediate
vesting of the Earned LTIP Units, each LTIP Member has agreed to redeem and exchange all of the Class C Units received by the LTIP
Member in exchange for such LTIP Member’s Earned LTIP Units in accordance with the terms and conditions of the LLC Agreement
pursuant to the Redemption and Exchange Agreement being entered into concurrently herewith by and between the Company, Holdings
and the LTIP Members (the “Redemption and Exchange Agreement”).


 


WHEREAS, the Board has determined that
it is in the best interest of the Company to issue the Exchange Consideration to the LTIP Members in the form of Class A Common
Stock. 


 


NOW, THEREFORE, in consideration of the premises
and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound, hereby agree to the following:


 


1.          The
parties hereto acknowledge and agree that, notwithstanding the provisions of Section 3(e) and 3(f) of the OPP Agreement and of
Amendment No.1, all of the Earned LTIP Units shall become fully vested on the Vesting Date and, on the Vesting Date, shall automatically
convert into Class C Units in accordance with the LLC Agreement.


 




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2.          Effective
as of the date hereof, this Amendment amends and is hereby incorporated in and forms a part of the OPP Agreement, and except as
amended hereby the OPP Agreement is confirmed in all respects and remains in full force and effect. The OPP Agreement, Amendment
No.1, this Amendment and the LTIP Assignment Agreement constitute the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior negotiations, representations or agreements relating thereto, whether written or
oral. No amendment or modification of this Amendment shall be valid or binding upon the parties unless in writing and signed by
the parties hereto.


 


3.          The
parties agree that if any provision of this Amendment is found to be invalid or unenforceable, it will not affect the validity
or enforceability of any other provision. This Amendment shall be governed by the laws of the State of New York, without regard
to the choice of law principles thereof.


 


4.          Except
as expressly provided herein, this Amendment shall automatically terminate and be of no further force and effect if any LTIP Member
fails to execute this Amendment or if the closing under the Redemption and Exchange Agreement does not occur with respect to any
LTIP Member.


 


[Signature page follows]


 




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IN WITNESS WHEREOF, the parties hereto have
duly executed this Amendment as of the date first above written.


 





 


	 	RCS CAPITAL CORPORATION
	 	 
	 	By:	/s/ Edward M. Weil, Jr.
	 	Name:  	Edward M. Weil, Jr.
	 	Title:	Chief Executive Officer
	 	 	 
	 	RCS Capital Holdings, LLC
	 	By:	RCS Capital Corporation, its managing member
	 	 	 
	 	By:	/s/ Edward M. Weil, Jr.
	 	Name:	Edward M. Weil, Jr.
	 	Title:	Chief Executive Officer
	 	 	 
	 	RCS CAPITAL MANAGEMENT, LLC
	 	 	 
	 	By:	/s/ Nicholas S. Schorsch
	 	Name:	Nicholas S. Schorsch
	 	Title:	Managing Member


 


ACKNOWLEDGED, AGREED AND CONSENTED TO BY

EACH OF THE “LTIP MEMBERS” LISTED BELOW:


 


	 	/s/ Nicholas S. Schorsch	 
	Name:	Nicholas S. Schorsch	 
	 	 	 
	 	/s/ William M. Kahane	 
	Name:	William M. Kahane	 
	 	 	 
	 	/s/ Nicholas S. Schorsch	 
	Name:	Shelley D. Schorch, by Nicholas S. Schorsch as attorney-in-fact
	 	 	 
	 	/s/ Peter M. Budko	 
	Name:	Peter M. Budko	 


 




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	 	/s/ Edward M. Weil, Jr.	 
	Name:	Edward M. Weil, Jr.	 
	 	 	 
	 	/s/ Brian S. Block	 
	Name:	Brian S. Block	 


 




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