exv10w1



 





Exhibit 10.1




AMENDMENT

TO THE

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

AXLE HOLDINGS II, LLC




     This Amendment (the “Amendment”) to the Amended and Restated Limited Liability Company
Agreement of Axle Holdings II, LLC (the “Company”), dated May 25, 2005 (the “LLC Agreement”), is
made effective as of this 2nd day of November, 2006. Capitalized terms used herein but not
otherwise defined herein shall have the respective meanings set forth in the LLC Agreement.



     WHEREAS, the Kelso Members desire to effect certain amendments to the LLC Agreement as it
relates to Thomas C. O’Brien;



     WHEREAS, pursuant to Section 15.11 of the LLC Agreement, the Kelso Members or the Compensation
Committee has the ability to treat a Management Member more favorably upon termination of
employment than is currently provided by Section 8.2(a)(ii) and the Kelso Members and the
Compensation Committee has determine to do so with respect to Thomas C. O’Brien only;



     NOW THEREFORE, pursuant to Section 15.11 of the LLC Agreement, the following shall occur:



     1. Solely as it relates to Thomas O’Brien, the lead-in to Section 8.2(a)(ii) is hereby amended
and restated in its entirety to be as set forth below. Such amended and restated Section
8.2(a)(ii) shall be the Section 8.2(a)(ii) for all purposes of the LLC Agreement as it relates to
Thomas O’Brien and shall replace in its entirety the lead-in to Section 8.2(a)(ii) as it relates to
Thomas O’Brien that existed prior to the date of this Amendment. The lead-in to Section 8.2(a)(ii)
for each Management Member (other than Thomas O’Brien) shall not be effected by this Amendment.



     “Other Termination. Unless otherwise determined by the Compensation Committee in a
manner more favorable to Thomas O’Brien, in the event that Thomas O’Brien employment with the
Company or any Subsidiary that employs such individual is terminated then, except as otherwise
provided in Section 8.4, in the event an Exit Event has not yet occurred, all of the Value Units
issued to Thomas O’Brien shall be forfeited (unless (1) Thomas O’Brien’s employment with the
Company or any Subsidiary that employs such individual is terminated by the Company or any such
Subsidiary without Cause and (2) a definitive agreement with respect to an Exit Event is entered
into within twenty-four (24) months of such termination and at anytime thereafter the transactions
contemplated by such definitive agreement relating to such Exit Event are consummated,



 









 







in which case such Value Units shall not be forfeited and shall be deemed retained and validly
existing as of the time such Exit Event pursuant to such agreement is consummated) and a percentage
of the Operating Units issued to Thomas O’Brien shall be forfeited according to the following
schedule:”



     2. Solely as it relates to Thomas O’Brien (and not any other Management Member), a new Section
8.4 shall be added to the LLC Agreement and shall read in its entirety as follows:



     “Section 8.4. ADESA Transaction. Notwithstanding anything to the contrary contained
in this Agreement, in the event (A) the Company or any of its Subsidiaries consummates an
acquisition of, or combination with, ADESA, Inc. (whether by way of a merger with or into ADESA,
Inc., purchase of shares, tender offer or exchange offer or other similar transaction, regardless
of the entity surviving such transaction) (an “ADESA Acquisition”) and (B) thereafter
Thomas O’Brien’s employment with the Company or any Subsidiary that employs such individual is
terminated by the Company or any such Subsidiary without Cause, then all of the Value Units and
Operating Units allocated to Thomas O’Brien as of December 1, 2006 shall be deemed to be retained
and validly existing at the time such ADESA Acquisition is consummated and such Override Units
shall no longer be subject to the forfeiture provisions of this Agreement; provided that the
participation of the Override Units in distributions under Section 10.1 shall remain subject to the
provisions of Section 8.1(b) and Section 10.1, as applicable.”



 









 





     IN WITNESS WHEREOF, the undersigned have executed this document as of date and year first
written above.



	 	 	 	 	 
	 	 	KELSO INVESTMENT ASSOCIATES VII, L.P.
	 
	 	 	 	 
	 

	 	By:
	 	Kelso GP VII, L.P., the general partner
	 
	 	 	 	 
	 

	 	By:
	 	Kelso GP VII, LLC., its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ James J. Connors, II
	 

	 	 	 	 
	 

	 	 	 	Name: James J. Connors, II
	 

	 	 	 	Title: Managing Member
	 
	 	 	 	 
	 	 	KEP VI, LLC
	 
	 	 	 	 
	 

	 	By:
	 	/s/ James J. Connors, II
	 

	 	 	 	 
	 

	 	 	 	Name: James J. Connors, II
	 

	 	 	 	Title: Managing Member