AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT
EXHIBIT 10.1
AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT
This Amendment No. 1, dated July 29, 2009, between Fair Xxxxx Corporation, a Delaware corporation (the "Company"), on the one hand, and Xxxxxxx Asset Management Corp., a Cayman Islands exempted company ("SAMC"), Castlerigg Master Investments Ltd., a British Virgin Islands company (“Castlerigg Master Investments”), Castlerigg
International Limited, a British Virgin Islands Company (“Castlerigg International”), Castlerigg International Holdings Limited, a British Virgin Islands company (“Castlerigg Holdings”, and collectively with SAMC, Castlerigg Master Investments, and Castlerigg International, the “Xxxxxxx Group”), on the other hand, amends the Amended and Restated Agreement, dated December 4, 2008, between the Company and the Xxxxxxx Group (the "Amended and Restated Agreement"). Terms used but
not defined herein shall have the meanings ascribed to such terms in the Amended and Restated Agreement.
WHEREAS, Xxxx Xxxxxxxx is currently a member of the Board, but as of July 24, 2009 ceased to be employed by the Xxxxxxx Group;
WHEREAS, while the Xxxxxxx Group has determined not to seek to replace Xx. Xxxxxxxx following the termination of his employment with the Xxxxxxx Group, and Xx. Xxxxxxxx will no longer be acting as a representative of the Xxxxxxx Group;
WHEREAS, the two other members of the Board named in connection with the Amended and Restated Agreement, Xx. Xxxxx and Xx. XxXxxxxxx, are independent of the Xxxxxxx Group;
WHEREAS, the parties wish to clarify that the Xxxxxxx Group will no longer have any representative on or influence over the composition of the Board of the Company, and to that end to amend the Amended and Restated Agreement to remove the right held by the Xxxxxxx Group to name replacements, in certain circumstances, in the event
Xx. Xxxxx, Xx. XxXxxxxxx or Xx. Xxxxxxxx cease to serve as directors of the Company and to make certain other related amendments;
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereby agree as follows:
1. Amendments.
(a) Section 3(c). Section 3(c) of the Amended and Restated Agreement is hereby amended by replacing “; and” at the end thereof with a period.
(b) Section 3(d). Section 3(d) of the Amended and Restated Agreement, providing the Xxxxxxx Group with the right to replace Xx. Xxxxxxxx, Xx. Xxxxx, and Xx. XxXxxxxxx in certain circumstances,
is hereby deleted in its entirety.
(c) Section 5(b). Section 5(b) of the Amended and Restated Agreement is hereby amended by: (i) deleting the words “(or those of their replacements as contemplated by Section 3)”
in the first parenthetical of this section; and (ii) deleting in its entirety the second proviso of this section.
(d) Section 7. Section 7 of the Amended and Restated Agreement is hereby amended by: deleting the words “(and any replacement director appointed to the Board pursuant to Section
3(d))” in the first parenthetical of this section.
2. Other Sections. Other than as specifically set forth in this Amendment No. 1, the Amended and Restated Agreement (including without limitation, the obligation of each of Xx. Xxxxxxxx, Xx. Xxxxx and Xx. XxXxxxxxx to tender his resignation from the Board in the event
the Xxxxxxx Group’s beneficial ownership of the Company’s common stock becomes less than three percent (3%) of the outstanding shares of common stock of the Company contained in Section 7 of the Amended and Restated Agreement) shall continue in full force and effect and shall terminate only in accordance with the terms of the Amended and Restated Agreement.
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IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed and delivered by each party hereto as of the date first above written.
FAIR XXXXX CORPORATION | ||
By: |
/s/ Xxxx X. Xxxxxx | |
Name: Xxxx X. Xxxxxx | ||
Title: CEO | ||
XXXXXXX ASSET MANAGEMENT CORP. | ||
By: |
/s/ Xxxxxx X. Xxxxxxx | |
Name: Xxxxxx X. Xxxxxxx | ||
Title: Chief Executive Officer | ||
CASTLERIGG MASTER INVESTMENTS LTD. | ||
BY: Xxxxxxx Asset Management Corp. | ||
By: |
/s/ Xxxxxx X. Xxxxxxx | |
Name: Xxxxxx X. Xxxxxxx | ||
Title: Chief Executive Officer | ||
CASTLERIGG INTERNATIONAL LIMITED. | ||
BY: Xxxxxxx Asset Management Corp. | ||
By: |
/s/ Xxxxxx X. Xxxxxxx | |
Name: Xxxxxx X. Xxxxxxx | ||
Title: Chief Executive Officer | ||
CASTLERIGG INTERNATIONAL HOLDINGS LIMITED | ||
BY: Xxxxxxx Asset Management Corp. | ||
By: |
/s/ Xxxxxx X. Xxxxxxx | |
Name: Xxxxxx X. Xxxxxxx | ||
Title: Chief Executive Officer | ||
Acknowledged and Agreed by: | ||
/s/ Xxxx Xxxxxxxx | ||
Name: Xxxx Xxxxxxxx | ||
/s/ Xxxxx Xxxxx | ||
Name: Xxxxx Xxxxx | ||
/s/ Xxxx X. XxXxxxxxx | ||
Name: Xxxx X. XxXxxxxxx |