AMENDMENT NO. 2 TO THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF PVF HOLDINGS LLC
Exhibit 10.20.2
This Amendment No. 2 (this “Amendment”) to the Amended and Restated Limited Liability
Company Agreement of PVF Holdings LLC (the “Company”) dated October 31, 2007, as amended
(the “Agreement”) is entered into and effective as of October 30, 2009, by and among the
GSCP Members and the Company.
WITNESSETH
WHEREAS, pursuant to Section 14.12 of the Agreement, the amendments set forth herein may be
made with the written approval of the Members holding a majority of the then outstanding Common
Units (which majority must include the GSCP Members); and
WHEREAS, the GSCP Members, who, as of the date hereof hold in the aggregate a majority of the
outstanding Common Units, wish to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the GSCP Members hereby agree as follows:
1. Amendments.
1.1. ARTICLE I of the Agreement is hereby amended by deleting the first sentence of Section
1.6 and replacing it with the following:
The principal place of business of the Company is located at 00 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000.
1.2. ARTICLE III of the Agreement is hereby amended by adding the following at the end of
Section 3.2(b):
at the time of issuance of such Profits Units.
1.3. ARTICLE III of the Agreement is hereby amended by adding the following after the
reference to “a Management Member” in Section 3.9(a):
and as a “GSCP Member”, a “RM Member”, a “McJ Member”, a “TM Member”, a “Co-Invest
Management Member” or any other designation
1.4. ARTICLE III of the Agreement is hereby amended by deleting “or an Investor Member” and
replacing it with the following in Section 3.9(b)(iv):
, an Investor Member (including whether such Investor Member will be a GSCP Member,
a RM Member, a McJ Member, a TM Member or any other designation), or any other type
of Member.
1.5. ARTICLE IV of the Agreement is hereby amended by deleting Section 4.1(b) and replacing it
with the following:
(b) Board Composition.
(i) The Board shall consist of twelve (12) Directors or such greater number of
Directors as may from time to time be determined by the Board. From and after a
Qualified IPO, the Board shall be comprised of the number of Directors determined by
the GSCP Members holding a majority of the Units held by all GSCP Members.
(ii) Subject to Section 4.1(c), (x)(A) from and after the date hereof until the
earlier of (i) a Qualified IPO or (ii) October 31, 2009 (the “RM Initial
Period”), the RM Members shall collectively have the right to designate three
(3) Directors (the persons from time to time designated by the RM Members in
accordance with the foregoing being referred to herein as the “RM
Directors”), (B) from and after the date hereof until a Qualified IPO, (the
“TM Initial Period”) Xxxxxx Xxxxx shall have the right to be a Director
(Xxxxxx Xxxxx shall be referred to herein as the “TM Director”), and (C) the
GSCP Members shall collectively have the right to designate the remaining Directors,
and (y)(A) if a Qualified IPO has not occurred prior to October 31, 2009, the GSCP
Members shall thereafter collectively have the right to designate all of the
Directors other than the TM Director, and (B) following a Qualified IPO, the GSCP
Members shall collectively have the right to designate all of the Directors (the
persons from time to time designated by the GSCP Members in accordance with the
foregoing clauses (x) and (y) being referred to herein as the “GSCP
Directors”). One of the GSCP Directors shall be designated by GSCP
Institutional and one of the GSCP Directors shall be designated by GSCP Parallel.
As of the date hereof, the Directors shall be (i) Xxxxx Xxxxxxx, Xxxx X. Xxxx, and
Xxxxxxxxxxx A.S. Xxxxxxxx (who shall be the GSCP Directors), (ii) X.X. Xxxxxx, III,
Xxxxx Xxx, III, and X. Xxxxxx Xxxxxx (referred to herein as the “McJ
Directors”), (iii) Xxxxx Xxxxxxx and Xxxxx X. Xxxxxx (who shall be the RM
Directors), (iv) Xxxxxx Xxxxx, and (v) Xxxxx X. Xxxxxxx, Rhys J. Best and Xxx X.
Rovit (referred to herein as the “Independent Directors”). At all times
(including during the RM Initial Period and the TM Initial Period), if the Board
elects to increase the number of Directors, such additional Directors will be
elected by the GSCP Members holding a majority of the Units held by all GSCP
Members.
1.6. ARTICLE IV of the Agreement is hereby amended by deleting Section 4.1(c) and replacing it
with the following:
(c) Board Vacancies; Resignation; Removal.
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(i) Subject to Section 4.1(c)(ii), each Director shall hold his office until his
death or until his successor shall have been duly elected and qualified in
accordance with this Section 4.1. If any GSCP Director, any McJ Director or any
Independent Director shall cease for any reason to serve as a Director, the vacancy
resulting thereby shall be filled by another person designated by the GSCP Members.
During the RM Initial Period, if any RM Director shall cease for any reason to serve
as a Director, the vacancy resulting thereby shall be filled by another person
designated by the RM Members holding a majority of the Units then held by all RM
Members (after the expiration of the RM Initial Period such vacancies shall be
filled by a person designated by the GSCP Members). During the TM Initial Period and
after expiration of the TM Initial Period, if Xxxxxx Xxxxx shall cease for any
reason to serve as a Director, the vacancy resulting thereby shall be filled by
another person designated by the GSCP Members.
(ii) (A) The removal from the Board of any GSCP Director, McJ Director or
Independent Director shall be only at the written request of the GSCP Members, (B)
during the RM Initial Period, the removal from the Board of any RM Director shall be
only at the written request of the RM Members, and (C) during the TM Initial Period,
the removal from the Board of the TM Director shall be only at the written request
of Transmark Holdings N.V. Following the RM Initial Period, any RM Director may be
removed from the Board at the written request of the GSCP Members and following the
TM Initial Period, the TM Director may be removed from the Board at the written
request of the GSCP Members. Upon receipt of any such written request, the Board
and the Members shall promptly take all such action necessary or desirable to cause
the removal of such Director from office. Notwithstanding the foregoing, any
Director may be removed for Director Cause by a Majority in Interest. Upon removal
from the Board, the Director shall cease to be a “manager” (within the meaning of
the Delaware Act).
1.7. ARTICLE IV of the Agreement is hereby amended by deleting Section 4.1(e) and replacing it
with the following:
(e) Quorum and Acts of the Board. At all meetings of the Board, a quorum
shall consist of not less than a number of Directors holding a majority of the votes
held by all Directors, provided that during the RM Initial Period and the TM
Initial Period a quorum shall include at least three (3) GSCP Directors (who, for
the avoidance of doubt, shall not include any McJ Director or any Independent
Director). All actions of the Board shall require the affirmative vote of at least
a majority of the votes held by all Directors (whether or not present at the
meeting). Each Director shall be entitled to one vote on each matter that comes
before the Board; provided that each of Xxxxx Xxxxxxx, Xxxx X. Xxxx and
Xxxxxxxxxxx A.S. Xxxxxxxx shall be entitled to six (6) votes on each matter that
comes before the Board. From and after the date hereof, the GSCP Members shall be
entitled, upon provision of written notice to the Company, to increase or decrease
the number of votes held by any GSCP Director. Any action that may be taken at a
meeting of the Board or any committee thereof may also be taken by written consent
of Directors holding a majority of the votes held by all Directors or members of the
3
committee holding a majority of the votes held by all members of the committee in
lieu of a meeting.
1.8. ARTICLE IV of the Agreement is hereby amended by deleting the proviso at the end of the
second sentence of Section 4.1(g) and replacing it with the following:
provided that each such committee shall include, during the TM Initial Period, the
TM Director and, during the RM Initial Period, at least one RM Director.
1.9. ARTICLE IV of the Agreement is hereby amended by deleting the first sentence of Section
4.1(i) and replacing it with the following:
(A) If, at any time, GSCP Institutional owns any Units, GSCP Institutional shall
have such other rights as are set forth in a letter agreement entered into as of the
Effective Time between the Company and GSCP Institutional (the “GSCP
Institutional Letter Agreement”); and (B) if, at any time, GSCP Parallel owns
any Units, GSCP Parallel shall have such other rights as are set forth in a letter
agreement entered into as of October 31, 2007 between the Company and GSCP Parallel
(the “GSCP Parallel Letter Agreement”).
1.10. ARTICLE IV of the Agreement is hereby amended by deleting the first sentence of Section
4.3 and replacing it with the following:
The Board shall from time to time as it deems advisable, appoint officers of the
Company (the “Officers”) and assign such officers titles.
1.11. ARTICLE V of the Agreement is hereby amended by deleting the last sentence of Section
5.1(d) and replacing it with the following:
For purposes of this Section 5.1(d), the Company includes each Subsidiary of the
Company and their respective businesses.
1.12. ARTICLE V of the Agreement is hereby amended by adding the following at the end of
Section 5.2(b):
, and (iii) TM Members holding a majority of the outstanding Common Units then
held by all TM Members.
1.13. ARTICLE VI of the Agreement is hereby amended to add the following after “common stock
of Red Man to the Company pursuant to a contribution agreement entered into by each such Member” in
the last sentence of Section 6.1:
, the TM Members have contributed ordinary shares of Transmark to the Company
pursuant to a contribution agreement entered into by each such Member
1.14. ARTICLE VII of the Agreement is hereby amended to add the following after “in a manner
more favorable to such Management Member” in Section 7.2(a)(ii):
4
and subject to Section 7.2(a)(iii) and 7.2(a)(iv),
1.15. ARTICLE IX of the Agreement is hereby amended to delete the reference to “Capital
Contributions” in the last line of Section 9.1(a)(i) and replace it with the following:
Booked-Up Capital Contributions
1.16. ARTICLE IX of the Agreement is hereby amended to add the following immediately after the
second sentence of Section 9.1(d):
In this regard, it is agreed that with respect to any Common Units existing
immediately prior to the Transmark Closing Date, once the holders of such Common
Units have received a return of their Capital Contributions out of distributions
with respect to such Common Units under Section 9.1(a)(i), all additional
distributions to such holders with respect to such Common Units under Section
9.1(a)(i) shall be shared between such holders and the holders of Profits Units
existing immediately prior to the Transmark Closing Date, as if (x) such additional
distributions were made pursuant to Section 9.1(a)(ii) and (y) the only Units
outstanding were the Common Units and the Profits Units existing immediately prior
to the Transmark Closing Date.
1.17. ARTICLE XI of the Agreement is hereby amended to add a new Section 11.6 (and the
existing Section 11.6 (Severability) shall be renumbered Section 11.7 accordingly):
Other Rights; Continuation of Right to Indemnification. All rights to
indemnification under this Article XI shall be deemed to be a contract between the
Company and each Covered Person. Any repeal or modification of this Article XI or
any repeal or modification of relevant provisions of the Delaware Act or any other
applicable laws shall not in any way diminish any rights to indemnification of such
Covered Person or the obligations of the Company arising hereunder with respect to
any proceeding arising out of, or relating to, any actions, transactions or facts
occurring prior to the final adoption of such repeal or modification.
1.18. ARTICLE XII of the Agreement is hereby amended to add “TM Member,” before each reference
to “McJ Member” in the first sentence of Section 12.1.
1.19. ARTICLE XII of the Agreement is hereby amended by adding the following to the end of
Section 12.9(a):
, and (z) any such amendment that would adversely impact the TM Members in a manner
differently than it impacts the GSCP Members shall be subject to the prior approval of TM
Members holding a majority of the Common Units then held by all TM Members, such approval
not to be unreasonably withheld.
1.20. ARTICLE XII of the Agreement is hereby amended to add a new 12.10(c) as follows:
5
(c) Redemption by TM Members. From and after the first anniversary of a
Qualified IPO, TM Members holding a majority of the outstanding Common Units then held by
all TM Members will have the right to cause the Company to redeem the Common Units held by
all TM Members in return for their share of the Company’s assets that they would receive if
the Company were to be liquidated under Article XIII on such redemption date (or use its
reasonable best efforts to cause the shares of any Subsidiary to be distributed to the TM
Members if the Qualified IPO is a Subsidiary IPO). The date of such redemption requested by
the TM Members shall be the date determined by the Board in its reasonable discretion. Upon
a redemption pursuant to this Section 12.10(c), each Member agrees that the Company may
(without the consent of any Member) amend the Registration Rights Agreement and this
Agreement (including amendments to allocations of income, gain or loss, to cause the TM
Members to have a capital account balance immediately before the distribution equal to the
value of the assets being distributed to them, as determined by the Board in its sole
discretion) to reflect the transactions contemplated by this Section 12.10(c).
Notwithstanding the forgoing, the Company will not be required to make any redemption
pursuant to this Section 12.10(c) if the Board determines that such redemption is reasonably
likely to have a material adverse tax consequence to the Company or to any Member other than
the Members requesting such redemption.
1.21. ARTICLE XIV of the Agreement is hereby amended by adding the following at the end of
Section 14.1:
If to the TM Members:
x/x Xxxxxx Xxxxx
Xxxxxxxxxxxxxxx 00
0000 XX Xxx Xxxx
The Netherlands
Fax: + 00 00 000 0000
Xxxxxxxxxxxxxxx 00
0000 XX Xxx Xxxx
The Netherlands
Fax: + 00 00 000 0000
and
Xxxx Xxxxxxxx
00 Xxxxxxxx Xxxx Xxxxx
Xxxx
X00X 0XX
Xxxxxx Xxxxxxx
00 Xxxxxxxx Xxxx Xxxxx
Xxxx
X00X 0XX
Xxxxxx Xxxxxxx
and
Xxxx Xxxxx
Xxxxxxxx House
00 Xxxx Xxxx
Xxxxxxx
Xxxxxx
XX00 0XX
Xxxxxx Xxxxxxx
Xxxxxxxx House
00 Xxxx Xxxx
Xxxxxxx
Xxxxxx
XX00 0XX
Xxxxxx Xxxxxxx
6
with copies to:
Holland & Knight LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
and:
Xxxxx & Overy LLP
Xxxxxxxxxx 00
0000 XX Amsterdam
The Netherlands
Attention: Xxxxx Xxxxx
Fax: x00 00 000 0000
Xxxxxxxxxx 00
0000 XX Amsterdam
The Netherlands
Attention: Xxxxx Xxxxx
Fax: x00 00 000 0000
and
DLA Piper UK LLP
Princes Exchange
Xxxxxxx Xxxxxx
Xxxxx
XX0 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxx Xxxxxxxx
Fax: 00 (0) 000 000 0000
Princes Exchange
Xxxxxxx Xxxxxx
Xxxxx
XX0 0XX
Xxxxxx Xxxxxxx
Attention: Xxxxx Xxxxxxxx
Fax: 00 (0) 000 000 0000
1.22. ARTICLE XIV of the Agreement is hereby amended by deleting Section 14.12 and replacing
it with the following:
14.12 Amendment and Waiver. Subject to Section 12.9 and except as otherwise
expressly provided in this Agreement, any provisions of this Agreement may be amended,
modified, supplemented or waived with the written approval of the Members holding a majority
of the then outstanding Common Units (which majority must include the GSCP Members);
provided, however, that (a) any amendment, modification, supplement or
waiver of any of the provisions of Sections 3.10, 4.1 (other than 4.1(b)(ii)), 11.4, 12.1,
12.7, 14.11 or 14.12, in each case that affects the McJ Members disproportionately vis-à-vis
the GSCP Members and results in a material adverse effect on the McJ Members will require
the written approval of both of the GSCP Members and of the McJ Members holding a majority
of the outstanding Units then held by all McJ Members (such approval by the McJ Members not
to be unreasonably withheld or delayed), (b)(i) any amendment, modification, supplement or
waiver of any of the provisions of Sections 3.10, 4.1 (other than 4.1(b)(ii)), 11.4, 12.1,
12.7, 14.11 or 14.12, in each case that affects the RM Members disproportionately vis-à-vis
the GSCP Members
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and results in a material adverse effect on the RM Members will require the written
approval of both of the GSCP Members and of the RM Members holding a majority of the
outstanding Units then held by all RM Members (such approval by the RM Members not to be
unreasonably withheld or delayed), and (ii) during the RM Initial Period, any amendment,
modification, supplement or waiver of Section 4.1(b)(ii) (subject to the terms thereof) to
decrease the number of RM Directors on the Board will require the written approval of both
of the GSCP Members and of the RM Members holding a majority of the outstanding Common Units
then held by all RM Members, and (c)(i) any amendment, modification, supplement or waiver of
any of the provisions of Sections 3.10, 4.1 (other than 4.1(b)(ii)), 11.4, 12.1, 12.7, 14.11
or 14.12, in each case that affects the TM Members disproportionately vis-à-vis the GSCP
Members and results in a material adverse effect on the TM Members will require the written
approval of both of the GSCP Members and of the TM Members holding a majority of the
outstanding Units then held by all TM Members (such approval by the TM Members not to be
unreasonably withheld or delayed), and (ii) during the TM Initial Period, any amendment,
modification, supplement or waiver of Section 4.1(b)(ii) (subject to the terms thereof) to
decrease the number of TM Directors on the Board will require the written approval of both
of the GSCP Members and of the TM Members holding a majority of the outstanding Common Units
then held by all TM Members. No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision hereof (whether or not
similar). No failure or delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof or of any other or future exercise of
any such right, power or privilege.
1.23. ARTICLE XV of the Agreement is hereby amended to add the following definitions:
“Independent Director” has the meaning set forth in Section 4.1(b)(ii).
“TM Director” has the meaning set forth in Section 4.1(b)(ii).
“TM Initial Period” has the meaning set forth in Section 4.1(b)(ii).
“TM Member” shall mean each of Transmark Holdings N.V., Xxxx Xxxxxxxx and
Xxxx Xxxxx, and shall include any Person admitted as an additional or substitute TM
Member pursuant to this Agreement.
“Transmark” shall mean Transmark Fcx Group B.V.
1.24. Clause (b) of the definition of “Fair Market Value” in Article XV of the Agreement is
hereby amended by adding the following before subclause (i) thereof:
or the definition of Equity Call Purchase Price,
1.25. ARTICLE XV of the Agreement is hereby amended by adding “TM Member, “ before each
reference to “McJ Member” in the definition of “Permitted Transfer”.
8
1.26. ARTICLE XV of the Agreement is hereby amended by adding “the TM Members,” after “the
GSCP Members,” in the definition of “Investor Member”.
1.27. ARTICLE XV of the Agreement is hereby amended by adding the following definition
immediately after the definition of “Board”:
“Booked-Up Capital Contribution” means, the amount set forth on Schedule A
under the heading “Booked-Up Capital Contribution,” which (a) for each Member
holding Common Units (including Restricted Common Units) prior to the Transmark
Closing Date shall reflect the value of the Common Units as of the Transmark Closing
Date and (b) for each TM Member shall be such TM Member’s Capital Contribution.
1.28. ARTICLE XV of the Agreement is hereby amended by adding the following definition
immediately after the definition of “Transfer”:
“Transmark Closing Date” means [insert closing date of Contribution
Agreement]
2. Capitalized Terms. Capitalized terms used herein and not otherwise defined shall have
the meanings given to them in the Agreement (as in effect immediately prior to the effectiveness of
this Amendment).
3. Governing Law. This Amendment shall be governed by and construed in accordance with the
laws of the state of Delaware.
[Signature page follows]
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IN WITNESS WHEREOF, the Company and the GSCP Members have caused this Amendment to be
executed and delivered as of the date first written above.
| THE COMPANY: | ||||||||
| PVF HOLDINGS LLC | ||||||||
| By: | /s/ Xxxxxxx X. Lake | |||||||
| Name: | Xxxxxxx X. Lake | |||||||
| Title: | Executive Vice President, General Counsel and | |||||||
| Corporate Secretary | ||||||||
| GSCP MEMBERS: | ||||||||
| GS Capital Partners V Fund, L.P. | ||||||||
| By: | GSCP V Advisors, L.L.C., | |||||||
| its general partner | ||||||||
| By: | /s/ Xxxx X. Xxxxxx
|
|||||||
| Title: Managing Director | ||||||||
| GS Capital Partners V Offshore Fund, L.P. | ||||||||
| By: | GSCP V Offshore Advisors, L.L.C., | |||||||
| its general partner | ||||||||
| By: | /s/ Xxxx X. Xxxxxx
|
|||||||
| Title: Managing Director | ||||||||
| GS Capital Partners V Institutional, L.P. | ||||||||
| By: | GS Advisors V, L.L.C., | |||||||
| its general partner | ||||||||
| By: | /s/ Xxxx X. Xxxxxx
|
|||||||
| Title: Managing Director | ||||||||
| GS Capital Partners V GmbH & Co. KG | ||||||||
| By: | GS Advisors V, L.L.C., | |||||||
| its managing limited partner | ||||||||
| By: | /s/ Xxxx X. Xxxxxx
|
|||||||
| Title: Managing Director | ||||||||
[Signature Page to Amendment No. 2 to the LLC Agreement]
| GS Capital Partners VI Fund, L.P. | ||||||||
| By: | GSCP VI Advisors, L.L.C., | |||||||
| its general partner | ||||||||
| By: | /s/ Xxxx X. Xxxxxx
|
|||||||
| Title: Managing Director | ||||||||
| GS Capital Partners VI Offshore Fund, L.P. | ||||||||
| By: | GSCP VI Offshore Advisors, L.L.C., | |||||||
| its general partner | ||||||||
| By: | /s/ Xxxx X. Xxxxxx
|
|||||||
| Title: Managing Director | ||||||||
| GS Capital Partners VI Parallel, L.P. | ||||||||
| By: | GS Advisors VI, L.L.C., | |||||||
| its general partner | ||||||||
| By: | /s/ Xxxx X. Xxxxxx
|
|||||||
| Title: Managing Director | ||||||||
| GS Capital Partners VI GmbH & Co. KG | ||||||||
| By: | GS Advisors VI, L.L.C., | |||||||
| its managing limited partner | ||||||||
| By: | /s/ Xxxx X. Xxxxxx
|
|||||||
| Title: Managing Director | ||||||||
[Signature Page to Amendment No. 2 to the LLC Agreement]
