AMENDMENT NO. 1 TO MEMBERSHIP INTEREST PURCHASE AGREEMENT
Exhibit 10.14.1
Execution
Copy
AMENDMENT
NO. 1 TO
AMENDMENT NO. 1, dated October
5, 2009 (this “Amendment”), to the MEMBERSHIP INTEREST PURCHASE
AGREEMENT (as amended, modified or supplemented from time to time, the
“Purchase Agreement”)
dated November 10, 2008, by and among MDC Acquisition Inc., a
Delaware corporation (“MDC
Sub”); CPB Acquisition
Inc., a Delaware Corporation (“Acquisition Co.”); MDC Partners Inc., a Canadian
corporation (“MDC
Partners”); Crispin
& Xxxxxx Advertising, Inc. (d/b/a Xxxxxxx Xxxxxx & Bogusky), a
Florida corporation (“CPB
Inc.” or “Seller”); Xxxxxxx Xxxxxx (“Xxxxxx”), Xxxx Xxxxxxx (“Bogusky”), Xxxx Xxxxx (“Xxxxx”), and Xxxx Xxxxxxxxx (“Xxxxxxxxx”; together with
Xxxxxx, Bogusky and Xxxxx collectively referred to as the “Employee Members” and
individually as an “Employee Member”); MDC Sub, together
with the Acquisition Co., Employee Members and CPB Inc., collectively referred
to as the “Members” and
individually a “Member”)).
W I T N E S S E T H :
WHEREAS, the parties hereto
desire to amend the Purchase Agreement as hereinafter set forth and agree to
certain other matters contained herein;
WHEREAS, pursuant to the Purchase
Agreement, CPB Inc. (the “Seller”) sold, and MDC Sub
purchased, an aggregate amount equal to 17% of the issued and outstanding
Membership Interests in the Company (the “Purchased Interests”);
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth in this
Amendment, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Capitalized
terms used but not defined herein shall have the meanings ascribed to such terms
in the Purchase Agreement.
2. The
parties hereto agree that the “Final Purchase Payment” shall
be paid 100% in cash. Therefore, the second sentence of Section
2(a)(ii) of the Purchase Agreement is hereby amended and restated in its
entirety as follows:
“An
amount equal to 100% of the Final Purchase Payment paid in respect of the Period
Three Formula Amount shall be paid in cash by wire transfer notwithstanding MDC
Sub’s right to elect to pay a portion of such payment in shares of MDC Stock
pursuant to Section 10.5(e) of the LLC Agreement.”
3. Section
2(a)(iv) of the Purchase Agreement is hereby amended by deleting the second
sentence therein.
4. Pursuant
to prior agreements and the Purchase Agreement, MDC previously issued an
aggregate amount of 600,662 shares of MDC Partners’ Class A subordinate voting
shares to CPB Inc. (the “Restricted Shares”),
represented by Certificate No. A-32221 for 495,662 shares and Certificate No.
A-03328 for 105,000 shares. With respect to the Restricted Shares,
CPB Inc. hereby agrees that, during the “Lock-Up Period” (as defined
below), CPB Inc. (i) will not offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, the Restricted Shares; or (ii)
enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Restricted
Shares. The foregoing restriction is expressly agreed to preclude CPB
Inc. from engaging in any hedging or other transaction which is designed to or
which reasonably could be expected to lead to or result in a sale or disposition
of the Restricted Shares. Such prohibited hedging or other transactions would
include without limitation any short sale or any purchase, sale or grant of any
right (including without limitation any put or call option) with respect to any
of the Restricted Shares or with respect to any security that includes, relates
to, or derives any significant part of its value from the Restricted Shares. For
the purposes of this Amendment, the “Lock-Up Period” means (A) with
respect to 300,662 of the Restricted Shares, the period commencing on August 31,
2009 and ending on August 31, 2010 and (B) with respect to 300,000 of the
Restricted Shares, the period commencing on August 31, 2009 and ending on
February 28, 2011.
5. Except
as set forth above, the Purchase Agreement, as amended herein, shall remain in
full force and effect without further modification.
6. This
Amendment may be executed in one or more counterparts, and each such counterpart
shall be deemed an original instrument, but all such counterparts taken together
shall constitute but one agreement. Facsimile signatures shall
constitute an original.
7. This
Amendment, including the other documents referred to herein that form a part
hereof, contains the entire understanding of the parties hereto with respect to
the subject matter contained herein and therein. This Amendment
supersedes all prior agreements and understandings between the parties with
respect to the subject matter contained in this Amendment.
* * * * *
IN WITNESS WHEREOF, the
undersigned have executed this Amendment No. 1 to the Purchase Agreement, as of
the day and year first above written.
| MDC ACQUISITION INC. | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxx | |||
| Title: President | |||
|
CPB
ACQUISITION INC.
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|||
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|
By:
|
/s/ Xxxxxxx Xxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxx | |||
| Title: President | |||
|
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By:
|
/s/ Xxxxxxxx Xxxxxx | |
| Name: Xxxxxxxx Xxxxxx | |||
| Title: General Counsel | |||
|
CRISPIN
& XXXXXX ADVERTISING, INC.
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|||
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By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: CEO | |||
|
Employee
Members:
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|||
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By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Xxxxxxx Xxxxxx | |||
| By: | /s/ Xxxx Xxxxxxx | ||
| Xxxx Xxxxxxx | |||
| By: | /s/ Xxxx Xxxxx | ||
| Xxxx Xxxxx | |||
|
By:
|
/s/ Xxxx Xxxxxxxxx | ||
| Xxxx Xxxxxxxxx | |||
