AMENDMENT NO. 1 TO STOCKHOLDER AGREEMENT
Exhibit
99.1
AMENDMENT
NO. 1 TO
This
AMENDMENT NO. 1 TO STOCKHOLDER AGREEMENT (the “Amendment”) is
entered into as of April 20, 2009, by and between Xxxxxxx Properties, Inc., a
Maryland corporation (the “Company”), on the one
hand, and JMB Capital Partners Master Fund L.P., a Cayman Islands limited
partnership, Smithwood Advisers, L.P., a California limited partnership,
Smithwood General Partner, LLC, a California limited liability company, and
Smithwood Partners, LLC, a California limited liability company (all parties
other than the Company collectively, the “Stockholder Group”),
on the other hand. The Company and the Stockholder Group are referred
to herein sometimes individually as a “Party” and
collectively as the “Parties.”
RECITALS
A.
The
Company and the Stockholder Group entered into that certain Stockholder
Agreement, dated as of July 28, 2008 (the “Stockholder
Agreement”), pursuant to which, among other things, the Parties set forth
certain agreements concerning the composition of the Board of Directors of the
Company (the “Board”) and the
Company’s 2008 Annual Meeting.
B. Pursuant
to Section
1(c) of
the Stockholder Agreement, the Parties agreed that the Company’s 2009 Annual
Meeting of Stockholders (the “2009 Annual Meeting”)
would not be held prior to October 2, 2009.
C. The
Parties desire to accelerate the timing of the 2009 Annual Meeting to July
2009.
D. In order
to reflect the acceleration of the 2009 Annual Meeting, the Parties desire
to amend Section
1(c) of
the Stockholder Agreement.
E. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Stockholder Agreement.
NOW
THEREFORE, in consideration of the foregoing, the Parties agree as
follows:
AGREEMENT
1. Annual Meeting
Date. The Parties agree to amend the Stockholder Agreement by
restating the last sentence of Section 1(c) in its
entirety as follows:
“The
parties agree that the 2009 Annual Meeting shall be held at a date in July 2009
set by the Board.”
2. Governing
Law. The validity, interpretation and effect of this Amendment
are governed by and shall be construed in accordance with the laws of the State
of California applicable to contracts made and performed in such State and
without regard to conflicts of law doctrines except to the extent that certain
matters are preempted by Federal law or are governed by the law of the
jurisdiction of organization of the respective Parties.
3. Counterparts. This
Amendment may be executed in one or more counterparts, each of which is an
original, but all of which together constitute one and the same
instrument.
4. Full Force and
Effect. Each Party confirms that the Stockholder Agreement is
in full force and effect and remains a binding obligation of the
Parties.
5. No Obligation for Other
Amendments. This Amendment is intended to be a part of, and
will serve as a valid written amendment to, the Stockholder Agreement as
required by Section 24 thereof. Except as otherwise set forth in this
Amendment, this Amendment shall not by implication or otherwise alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Stockholder Agreement, all of which are ratified
and affirmed in all respects and shall continue in full force and
effect.
[SIGNATURE
PAGE FOLLOWS]
2
IN WITNESS WHEREOF, the Parties hereto have
executed this Stockholder Agreement as of the date first set forth
above.
XXXXXXX
PROPERTIES, INC.,
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JMB
Capital Partners Master Fund L.P.,
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a
Maryland corporation
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a
Cayman Island limited partnership
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By:
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/s/
XXXXXX X. RISING
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By:
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Smithwood
Partners, LLC,
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Its:
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President
and CEO
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Its:
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General
Partner
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By:
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/s/
XXXXXXXX XXXXXX
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Name:
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Xxxxxxxx
Xxxxxx
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Its:
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Managing
Member
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Smithwood
Advisers, L.P.,
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a
California limited partnership
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By:
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Smithwood
General Partner, LLC
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Its:
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General
Partner
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||||||||
By:
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/s/
XXXXXXXX XXXXXX
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Name:
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Xxxxxxxx
Xxxxxx
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||||||||
Its:
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Managing
Member
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||||||||
Smithwood
General Partner, LLC,
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a
California limited liability company
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|||||||||
By:
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/s/
XXXXXXXX XXXXXX
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Name:
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Xxxxxxxx
Xxxxxx
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||||||||
Its:
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Managing
Member
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||||||||
Smithwood
Partners, LLC,
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a
California limited liability company
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|||||||||
By:
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/s/
XXXXXXXX XXXXXX
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Name:
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Xxxxxxxx
Xxxxxx
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Its:
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Managing
Member
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