AMENDMENT NO. 2 TO MEMBERSHIP INTEREST PURCHASE AGREEMENT
Exhibit 10.14.2
Execution
Copy
AMENDMENT
NO. 2 TO
AMENDMENT NO. 2, dated
December 1, 2009 (this “Amendment”), to the MEMBERSHIP INTEREST PURCHASE
AGREEMENT dated November 10, 2008 (as amended, modified or supplemented
from time to time, the “Purchase Agreement”), 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. On
or prior to December 1, 2009, MDC Sub shall pay to Seller an amount equal to
$35.9 million (the “2009
Installment Payment”), as an initial installment of the final payment in
respect of the Period Three Formula Amount.
3. Section
2(a)(ii) of the Purchase Agreement is hereby amended and restated as
follows:
“On or
prior to April 1, 2010, a payment in an amount equal to the “Period Three Formula Amount”,
calculated in accordance with Section 10.4.3(c) of the LLC Agreement, minus
$40.1 million (such net amount, the “Final Purchase Payment”),
payable in cash. In the event that the Period Three Formula Amount is
equal to less than zero, there shall be no repayment obligation by the Seller to
MDC Sub.”
4. In
connection with the “Final
Purchase Payment” of the Put/Call Purchase Price payable to Seller, the
following terms and conditions shall apply:
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(1)
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On
or prior to December 18, 2009, MDC Sub shall pay to Seller an additional
amount equal to the amount of the discretionary incentive bonus pool
payable to the Company’s employees, inclusive of applicable payroll taxes,
in respect of 2009 (the “2009 Additional
Payment”). CPB Inc. will promptly pay the related
incentive payments to employees of the Company, as determined by it,
together with applicable payroll taxes;
and
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(2)
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PBT
for YP+1 (2009) shall be that amount of PBT for such calendar year as
determined and calculated in accordance with Section 10.4(b)(x) of the LLC
Agreement. For the avoidance of doubt, PBT for 2009 shall be
reduced by an amount equal to the 2009 Additional Payment (without
duplication).
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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. 2 to the Purchase Agreement, as of
the day and year first above written.
| MDC ACQUISITION INC. | |||
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By:
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/s/ Xxxxxxx Xxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxx | |||
| Title: President | |||
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CPB
ACQUISITION INC.
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By:
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/s/ Xxxxxxx Xxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxx | |||
| Title: President | |||
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By:
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/s/ Xxxxx X. Xxxx | |
| Name: Xxxxx X. Xxxx | |||
| Title: Chief Financial Officer | |||
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CRISPIN
& XXXXXX ADVERTISING, INC.
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|||
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By:
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/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: CEO | |||
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Employee
Members:
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By:
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/s/ Xxxxxxx Xxxxxx | |
| Xxxxxxx Xxxxxx | |||
| By: | /s/ Xxxx Xxxxxxx | ||
| Xxxx Xxxxxxx | |||
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By:
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/s/ Xxxx Xxxxx | ||
| Xxxx Xxxxx | |||
| By: | /s/ Xxxx Xxxxxxxxx | ||
| Xxxx Xxxxxxxxx | |||
