AMENDMENT NO. 1 TO AMENDED AND RESTATED OPERATING AGREEMENT
Exhibit 10.2.2
AMENDMENT NO. 1
TO
AMENDED AND RESTATED
OPERATING AGREEMENT
This
AMENDMENT NO. 1 dated
July 29, 2010 (this “Amendment”) to the AMENDED AND RESTATED OPERATING
AGREEMENT (the “Operating Agreement”) of THE ARSENAL LLC, a Delaware
limited liability company formerly known as TEAM Holdings LLC (the “Company”) dated as of March 1,
2010, is made and entered into by and among the Company, MDC ACQUISITION INC., a
Delaware corporation (“MDC
Holdco”), WWG, LLC,
a Florida limited liability company (“WWG”), and WWG2, LLC, a Florida limited
liability company ("WWG2").
WITNESSETH :
WHEREAS, the parties hereto
desire to amend the Operating Agreement as hereinafter set forth and agree to
certain other matters contained herein;
WHEREAS, WWG, WWG2 and MDC
Holdco are members of the Company having sufficient authority under Sections 4.1
and 14.4 of the Operating Agreement to cause the amendments contained
herein;
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 Operating Agreement.
2. Article
VIII of the Operating Agreement is hereby amended by adding a new Section 8.2
immediately following Section 8.1, as follows:
“Section 8.2. Use of
Company as Administrator of Certain Payments. If permitted by applicable
law, the Members agree that the Company may administer the payment of amounts to
certain members of WWG in connection with the payment to WWG of the Extra
Payments (as defined in the Purchase Agreement) (including collection of tax
withholding, making appropriate governmental filings, and remittance of all
payroll and other related taxes to the appropriate governmental authorities)
provided that WWG shall have paid to the Company in advance all amounts to be
paid by the Company.”
3. Section
10.4(a) of the Operating Agreement is hereby amended such that when determining
each of the First Class B Payment, Second Class B Payment and Final Class B
Payment, the value determined by operation of Section 10.4(a) in the Operating
Agreement without giving effect to this Amendment shall, in each case, be
further reduced by the Reduction Amount.
4. Section
10.4(e) of the Operating Agreement is hereby amended by adding new clauses (xix)
and (xx) immediately following clause (xviii) to include the following
definitions:
“(xix)
"Reduction Amount" shall
mean the sum of (i) if Xxxxxx Xxxxxxx’x employment with the Company is
terminated prior to December 31, 2012, the result of (x) $1,017,500, multiplied
by (y) a fraction, the numerator of which is the number of days in the period
commencing on his Date of Termination and ending on December 31, 2012, and the
denominator of which is the number of days in the period commencing April 1,
2010 and ending on December 31, 2012, (ii) if Xxxx Xxxxxx’x employment with the
Company is terminated prior to December 31, 2012, the result of (x) $1,237,500,
multiplied by (y) a fraction, the numerator of which is the number of days in
the period commencing on his Date of Termination and ending on December 31,
2012, and the denominator of which is the number of days in the period
commencing April 1, 2010 and ending on December 31, 2012, (iii) if Xxxx
X’Xxxxx’x employment with the Company is terminated prior to December 31, 2012,
the result of (x) $811,250, multiplied by (y) a fraction, the numerator of which
is the number of days in the period commencing on his Date of Termination and
ending on December 31, 2012, and the denominator of which is the number of days
in the period commencing April 1, 2010 and ending on December 31, 2012 and (iv)
if Xxxxxxx Xxxxx’x employment with the Company is terminated prior to December
31, 2012, the result of (x) $550,000, multiplied by (y) a fraction, the
numerator of which is the number of days in the period commencing on his Date of
Termination and ending on December 31, 2012, and the denominator of which is the
number of days in the period commencing April 1, 2010 and ending on December 31,
2012.
(xx) “Applicable Reduction Amount”
shall mean, with respect to any calendar year, the portion of the Reduction
Amount attributable to such calendar year.”
5. Section
10.4(e)(xiii) of the Operating Agreement is hereby amended by deleting the word
“and” following clause (16), replacing the period following clause (17) with a
semicolon, and adding two new clauses (18) and (19) immediately following clause
(17) to read as follows:
“(18) for
each calendar year in respect of which an Extra Payment (as defined in the
Purchase Agreement) is required to be made under the Purchase Agreement, PBT
shall be reduced by an amount equal to the Extra Payment made in respect of such
calendar year; and
(19) PBT
for each of 2010, 2011 and 2012 shall, if applicable, be increased by an amount
equal to the Applicable Reduction Amount in respect of such calendar year;
provided, however, any such increase shall in no event be greater that the
amount of reduction to PBT for such calendar year described in clause (18)
above.”
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4. Section
13.1 of the Operating Agreement is hereby amended by replacing the existing
definition of “GAAP PBT” with the following:
“"GAAP PBT" shall mean, for any
calendar (or partial) year, the consolidated net income (loss) of the Company
and its subsidiaries (if any) before provision for all federal, state and local
income taxes for such period, determined in accordance with GAAP less (A) (i)
with respect to calendar year 2010, $986,250 or (ii) with respect to calendar
years 2011 or 2012, $1,315,000; plus (B) if applicable, the Applicable Reduction
Amount in respect of such calendar (or partial) year; provided, however, for
calendar year 2010, GAAP PBT shall be calculated from and after the Effective
Time through December 31, 2010.”
6. As
used in the Operating Agreement, the term “Agreement” shall mean the Operating
Agreement, as from time to time amended (including, without limitation, this
Amendment). Except as set forth above, the Operating Agreement, as
amended herein, shall remain in full force and force without further
modification.
7. 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.
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IN WITNESS WHEREOF, the
parties hereto have executed this Amendment No. 1 to the Operating Agreement, as
of the day and year first above written.
| MDC ACQUISITION INC. | |||
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By:
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Name:
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Title:
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| WWG, LLC | |||
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Name:
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Title:
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| WWG2, LLC | |||
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Name:
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Title:
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| THE ARSENAL LLC | |||
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Name:
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Title:
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