FIRST AMENDMENT TO STOCKHOLDERS AGREEMENT
EXHIBIT
10.20
FIRST
AMENDMENT
TO
This
FIRST AMENDMENT TO STOCKHOLDERS AGREEMENT (this “Amendment”),
dated
as of September 26, 2006, is by and among the signatories hereto. All
capitalized terms used in this Amendment which are not herein defined shall
have
the same meanings ascribed to them in the Agreement (as defined infra).
WHEREAS,
the undersigned are parties to that certain Stockholders Agreement dated as
of
July 21, 2006 relating to Wyndcrest DD Holdings, Inc. (the “Agreement”)
and,
collectively, hold a majority of the Stockholder Shares owned by the Investors
and a majority of the Falcon Securities, and such parties desire to amend the
Agreement as provided herein;
NOW,
THEREFORE, in consideration of the premises and the covenants and agreements
hereinafter set forth, the parties hereto hereby agree as follows:
1. Board
of Directors of the Company.
Paragraphs (a)(i) and (a)(ii)(A) of Section 2 of the Agreement shall be amended,
effective as of the date hereof, by being replaced in their entirety with the
following:
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“(i)
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the
Board shall be comprised of nine (9)
directors;
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(ii) the
following persons will be elected to the Board:
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(A)
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the
holders of the majority of Stockholder Shares held by the Investors
will
designate eight (8) directors, which designees shall initially be
Xxxx X.
Xxxxxx, Xxxxxxx Xxx, Xxxx Xxxxx, and five (5) persons to be designated
by
such holders after the date hereof;
and,”.
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2. Boards
of Directors of Significant Subsidiaries.
The
third sentence of Section 2(b) of the Agreement shall be amended, effective
as
of the date hereof, by being replaced in its entirety with the
following:
“The
person or persons who are to serve as the member(s) of the board of directors
of
each Significant Subsidiary shall be designated by the board of directors of
its
immediate parent company; provided, however, that, in the event that the Falcon
Director chooses, in his sole discretion, upon prior written notice thereof
to
the Company at any time or from time to time to serve on the board of directors
of any such Significant Subsidiary, he shall promptly thereupon be elected
to
said board of directors, and simultaneously the composition of said board of
directors and each committee thereof shall, where the appropriate persons are
willing to serve, be made identical to the composition of the Board and each
corresponding committee thereof; provided further that no member of the Board
shall be required to serve as a director or committee member of said Significant
Subsidiary. The parties agree that the foregoing shall in no way impair or
limit
the rights granted to Falcon under that certain letter agreement with the
Company and DDI dated as of July 21, 2006 relating to, among other things,
the
Venture Capital Operating Company regulations of the Department of
Labor.”
3. Continued
Effectiveness.
Except
as amended hereby, the Agreement shall remain unmodified and in full force
and
effect. In the event of any inconsistency between the provisions of the
Agreement and the provisions of this Amendment, the provisions of this Amendment
shall prevail.
4. Headings;
Counterparts.
Section
headings used herein are for convenience of reference only, are not part of
this
Amendment and shall not affect the construction of or be taken into
consideration in interpreting this Amendment. This Amendment may be executed
in
multiple counterparts, all of which shall constitute one and the same
instrument, and may be delivered by facsimile.
5. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the internal
laws of the State of Delaware, without giving effect to principles of conflicts
of laws or choice of law of the State of Delaware or any other jurisdiction
which would result in the application of the law of any jurisdiction other
than
the State of Delaware.
(signature
page follows)
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IN
WITNESS WHEREOF, the parties have executed this First Amendment to Stockholders
Agreement as of the day and year first above written.
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By:_________________________________
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By:_________________________________
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XXXXXXX
XXX
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XXXX
XXXXX
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By:_________________________________
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By:_________________________________
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XXXXXXXX
XXXXXXX
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XXXX
X. XXXXXX
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FALCON
MEZZANINE PARTNERS II, LP
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WYNDCREST
DD HOLDINGS, INC.
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By:
Falcon Mezzanine Investments II, LLC
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Its:
General Partner
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By:_________________________________
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By:_________________________________
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Name:_______________________________
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Name:_______________________________
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Title:________________________________
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Title:________________________________
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