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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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
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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
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Name: Xxxx Xxxxxxxx
/s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
/s/ Xxxx X. XxXxxxxxx
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Name: Xxxx X. XxXxxxxxx
