Exhibit 10.1
VESTAR/XXXX INVESTORS LLC
AMENDMENT, dated as of June 4, 2001 (the "Amendment"), to the Amended
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and Restated Limited Liability Company Agreement (the "LLC Agreement") of
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Vestar/Xxxx Investors LLC, a Delaware limited liability company (the "LLC"),
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dated as of July 7, 1999, by and among Vestar/SJK Investors LLC, a Delaware
limited liability company (the "Vestar Member"), the parties listed on Schedule
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1 to the LLC Agreement (each a "Xxxx Member" and, collectively, the "Xxxx
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Members") and such other Persons as shall hereinafter become Members of the LLC
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as provided in the LLC Agreement.
W I T N E S S E T H
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WHEREAS, the LLC, the Vestar Member and the Xxxx Members are parties
to the LLC Agreement; and
WHEREAS, the parties desire to amend the LLC Agreement as set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein made and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
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used herein which are defined in the LLC Agreement are used herein as therein
defined.
2. Amendment to the LLC Agreement. The LLC Agreement is hereby
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amended as follows:
(a) Amendment of Section 1.1. Section 1.1 of the LLC Agreement
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is hereby amended by adding, in appropriate alphabetical order, the
following new definition:
"Chief Executive Officer" shall mean, in the case of the Company,
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the Chief Executive Officer of the Company, and, in the case of the
Parent, the Chief Executive Officer of the Parent.
(b) Amendment of Section 4.9(b)(A). Section 4.9(b)(A) of the LLC
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Agreement is hereby amended by deleting such Section in its entirety and
replacing it with the following:
(b) Election of Directors.
(A) The Managing Member hereby agrees that so long as this
Agreement shall remain in effect, it will vote all of the Shares so as to
elect and, during such period, to continue in office a Board of Directors
of the Parent and the Company, each consisting solely of the following:
(i) 4 designees of the Vestar Member (so long as the Vestar
Member and its Affiliates are allocated an aggregate
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number of Allocated Shares not less than one-half (1/2)
of the number of Allocated Shares allocated to the
Vestar Member on the date of execution and delivery of
this Agreement) or, if the foregoing condition is not
satisfied, 3 designees of the Vestar Member (so long as
the Vestar Member and its Affiliates are allocated an
aggregate number of Allocated Shares not less than one-
third (1/3) of the total number of Allocated Shares
allocated to the Vestar Member on the date of its
execution and delivery of this Agreement) or, if the
foregoing condition is not satisfied, 1 designee of the
Vestar Member (so long as the Vestar Member and its
Affiliates are allocated an aggregate number of
Allocated Shares not less than one-tenth (1/10) of the
total number of Allocated Shares allocated to the
Vestar Member immediately following the Effective Time
of the Acquisition Merger), provided, however, that so
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long as the Xxxx Members have the right to appoint at
least 1 designee and the Vestar Member (and its
Affiliates) has more Allocated Shares allocated to it
than the aggregate number of Allocated Shares allocated
to the Xxxx Members (and their Permitted Transferees),
the Vestar Member shall have the right to appoint at
least as many designees as the Xxxx Members;
(ii) 2 designees of the Xxxx Members (so long as the Xxxx
Members and their respective Affiliates are allocated
an aggregate number of Allocated Shares not less than
one-half (1/2) of the number of Allocated Shares
allocated to the Xxxx Members on the date of their
execution and delivery of this Agreement) or, if the
foregoing condition is not satisfied, 1 designee of the
Xxxx Members (so long as the Xxxx Members and their
respective Affiliates are allocated an aggregate number
of Allocated Shares not less than one-fifth (1/5) of
the number of Allocated Shares allocated to the Xxxx
Members immediately following the Effective Time of the
Acquisition Merger); and
(iii) the Chief Executive Officer (provided that such Chief
Executive Officer is not (A) an employee or an
Affiliate of Vestar or (B) a Xxxx Member or a member of
the Family Group of the Xxxx Members, in which case the
Chief Executive Officer shall be counted as a designee
of either Vestar or the Xxxx Representative, as the
case may be, for purposes of this Section 4.9(b)(A)).
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3. Continuing Effect of LLC Agreement. This Amendment shall not
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constitute an amendment or waiver of or consent to any provision of the LLC
Agreement not expressly referred to herein. Except as expressly consented to
hereby, the provisions of the LLC Agreement are and shall remain in full force
and effect.
4. Counterparts. This Amendment may be executed in any number of
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counterparts, all of which together shall constitute a single instrument.
5. Governing Law. This Amendment shall be governed by and construed
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in accordance with the laws of the State of Delaware applicable to contracts
executed and to be performed in such State.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
VESTAR/SJK INVESTORS LLC
By: Vestar Capital Partners III, L.P.,
its Managing Member
By: Vestar Associates III, L.P.,
its General Partner
By: Vestar Associates Corporation III,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
/s/ Xxx Xxxx
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XXX XXXX
/s/ Xxxxx Xxxx
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XXXXX XXXX
/s/ Xxxxx X. Xxxx
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XXXXX X. XXXX
XXXX FAMILY TRUST
By: /s/ Xxx Xxxx
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Name: Xxx Xxxx
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
XXXXX XXX XXXX TRUST
By: /s/ Xxx Xxxx
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Name: Xxx Xxxx
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
