ex10-1.htm


    Exhibit
10.1

     

    
      


       

       

      AMENDED
AND RESTATED AGREEMENT

       

       

      THIS
AMENDED AND RESTATED AGREEMENT ("Agreement"), dated the 4th day of December,
2008 ("Effective Date"), is made by and between Fair Isaac Corporation, a
Delaware corporation (the "Company"), on the one hand, and Sandell 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" collectively with SAMC,
Castlerigg Master Investments, Castlerigg International and Castlerigg Holdings,
the "Sandell Group"), on the other hand.

       

       

      WHEREAS,
the Sandell Group has filed a Schedule 13D with the Securities and Exchange
Commission (the "SEC") on June 29, 2007, as amended on October 12, 2007,
December 7, 2007 and as may be amended from time to time (the "Schedule
13D");

       

       

      WHEREAS,
Directors Guy Henshaw and Tony Christianson have determined not to stand for
re-election to the Company's Board of Directors (the "Board") at the Company's
2009 Annual Meeting of Stockholders (including any adjournment or postponement
thereof, the "2009 Annual Meeting");

       

       

      WHEREAS,
the Company and the Sandell Group previously entered into that certain
agreement, dated as of December 7, 2007 (the "Prior Agreement"), to undertake
certain changes to the composition of the Company's Board; and

       

       

      WHEREAS,
the Company and the Sandell Group desire to amend and restate the Prior
Agreement and have agreed that it is in their mutual interests to enter into
this Agreement as hereinafter described.

       

       

      NOW,
THEREFORE, in consideration of the premises and the representations, warranties,
and agreements contained herein, and other good and valuable consideration, the
parties hereto mutually agree as follows:

       

       

      1.          Representations and
Warranties of the Sandell Group.  The Sandell Group hereby
represents and warrants to the Company as follows:

       

       

      (a)           The Sandell Group has beneficial
ownership of 2,874,000 shares of common stock of the Company and has full power
and authority to enter into this Agreement and to bind the entire number of
shares of the common stock of the Company which it holds, or may hold, including any shares
purchased in the future, to the terms of this Agreement.

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      (b)           This Agreement constitutes a valid and
binding agreement of the Sandell Group. Except that Thomas E. Sandell may be
deemed to beneficially own shares of the Company and except as set forth in Section
1(a) hereof, no "affiliate" or "associate" (as such terms are defined in the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of the Sandell Group beneficially
owns any shares or rights to acquire shares of common stock of the
Company.

       

       

      2.          Representations and
Warranties of the Company.  The Company hereby represents and
warrants to the Sandell Group, as follows:

       

       

      (a)           The Company has full power and authority
to enter into and perform its obligations under this Agreement, and the execution and
delivery of this Agreement by the Company has been duly authorized by the Board
and requires no further Board or stockholder action, other than amendment of the
bylaws of the Company to increase the size of the Board by two members.

       

       

      (b)           This Agreement constitutes a valid and
binding obligation of the Company and the performance of its terms does not
constitute a violation of its certificate of incorporation or
bylaws.

       

       

      3.          Directorships.  The
Company agrees that:

       

       

      (a)           Nick Graziano, Allan Loren, John S. McFarlane and an individual selected by the Board who is reasonably
acceptable to the Sandell Group (collectively, the "Nominees") will each be nominated by the Board as a director
at the Company's 2009 Annual Meeting of
Stockholders (including any
adjournment or postponement thereof, the "2009 Annual Meeting");

       

       

      (b)           the Company's Board will recommend a vote
"for" the Nominees at the 2009 Annual Meeting, and shall solicit its
stockholders to vote for such Nominees;

       

       

      (c)           proxies solicited by the
Company's Board will be voted "for" the Nominees at the 2009 Annual Meeting; and

       

       

      (d)           from the date hereof through the term of
his term of office as a
director, each of
Mr. Graziano, Mr. Loren and Mr. McFarlane may each be replaced by another designee
of the Sandell Group who is
reasonably acceptable to the Company's Board in the event that Mr. Graziano, Mr. Loren or Mr. McFarlane dies, is unable to perform his duties
as a director, or, in the
case of Mr. Graziano, is no
longer associated with the Sandell Group.

       

       

      
        
          
          

        

        
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      4.          Voting at Meetings of
Stockholders.

       

       

      (a)           At the 2009 Annual Meeting, the Sandell Group shall
cause all of the shares of the Company common stock beneficially owned by it to
be present for quorum purposes and to be voted:

       

       

      (i)           For each of (A) the Nominees and (B) the
other candidates
recommended by the Board in the Schedule 14A filed by the Company with the SEC
for election to the Board (the "Company Nominees"); provided that the Company Nominees are each either
current members of the Board or otherwise reasonably acceptable to the Sandell Group;
and

       

       

      (ii)           for the ratification of the selection of
the Company's independent
auditors.

       

       

      5.          The Sandell Group's
Prohibited Conduct.  During the period commencing with the
execution of this Agreement and ending on the earlier to occur of (a) the date
that is eighty (80) days prior to the date of the Company's 2010 Annual Meeting
of Stockholders (provided, however, that if the
Board takes any action to amend the Company's restated bylaws in such a manner
as to increase the time period prior to the 2010 Annual Meeting of Stockholders
by which a holder of the Company's common stock must provide timely notice to
the Company of (i) its nomination of a person or persons to the Board at a
meeting of the Company's stockholders, (ii) or of its proposal to bring business
before a meeting of the Company's stockholders (clause (i) and (ii) together,
the "Stockholder Matters"), then the Standstill Period (as defined herein) shall
expire ten (10) days prior to the date on which a stockholder must give notice
to the Company with respect to any Stockholder Matters), and (b) a material
breach by the Company of its obligations under this Agreement (the "Standstill
Period"), neither the Sandell Group nor any of its controlled affiliates shall,
without the prior written consent of the Company:

       

       

      (a)           acquire or agree to acquire, or publicly
offer or propose to acquire, directly or indirectly, by purchase or otherwise,
any voting securities or direct or indirect rights or options to acquire any
voting securities of the Company or any subsidiary thereof, or any
assets of the Company or any subsidiary or division thereof; provided, however, that nothing herein shall limit the
ability of the Sandell Group to (i) transfer any voting securities or direct or
indirect rights or options
to acquire any voting securities of the Company to any of its controlled
affiliates, so long as such any such controlled affiliates agree to be bound by
the terms of this Agreement and execute a joinder agreement to this Agreement,
in the form attached hereto as Exhibit A (a "Joinder Agreement"), (ii) enter into any swap or other
arrangement whereby it acquires the economic consequences of ownership of the
common stock without also acquiring the voting or other rights, privileges or
powers associated with the
ownership of the underlying common stock, or (iii) subject to applicable law,
including federal securities laws prohibiting insider trading, acquire up to ten
percent (10%) of the outstanding shares of Company common
stock;

       

       

      
        
          
          

        

        
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      (b)           other than as provided in this Agreement, seek or propose to
influence or control the management or the policies of the Company (provided
that the Nominees' actions (or those of their replacements
as contemplated by Section 3) as members of the Board shall not be deemed to
violate the foregoing) or
to obtain representation on the Board (other than the nomination of the
Nominees), directly or indirectly engage in any activities in opposition to the
recommendation of the Board (including the recommendation of the Nominees and
the Company Nominees as directors to be elected
at the 2009 Annual Meeting), submit any proposal
(whether pursuant to Rule 14a-8 or otherwise) or nomination of a director or
directors for stockholder action, or solicit, or encourage or in any way
participate in the
solicitation of, any proxies or consents with respect to any voting securities
of the Company, provided, however, that the foregoing shall not prohibit
the Sandell Group from (i) making public statements (including statements
contemplated by Rule 14a-1(1)(2)(iv) under the Exchange Act), or
(ii) engaging in discussions with other stockholders or (iii) soliciting, or
encouraging or participating in the solicitation of, proxies or consents with
respect to voting securities of the Company (so long as such discussions are in compliance with
subsection (d) hereof (clauses (i), (ii) and (iii), together, "Permitted Actions") with respect to any transaction that
has been publicly announced by the Company involving (1) the recapitalization of
the Company, (2) an acquisition, disposition or sale of assets
or a business by the Company where (A) the consideration to be received or paid
in such transaction exceeds $400 million in the aggregate or (B) requires
approval by the holders of common stock of the Company, or (3) a change of control of the Company
(each, a "Material Transaction"), provided, further, that in the event that one of the
Nominees votes against an acquisition, disposition or sale of assets or a
business by the Company, which is neither a Material Transaction nor an acquisition, disposition
or sale of assets or a business by the Company where the consideration to be
received or paid in such transaction is less than $125 million in the aggregate,
at the Board meeting approving such transaction, the Company will make a public statement that such
Nominee so voted;

       

       

      (c)           make any public announcement with
respect to, or publicly offer to effect, seek or propose (with or without
conditions) a merger, consolidation, business combination or other extraordinary
transaction with or
involving the Company or any of its subsidiaries or any of its or their
securities or assets, provided, however, that nothing in this subsection (c)
shall restrict the Sandell Group from taking Permitted Actions with respect to a
Material Transaction;

       

       

      (d)           (i) form, join or in any way participate
in a "group" as defined in Section 13(d)(3) of the
Exchange Act, and the rules and regulations promulgated thereunder, other than a
"group" that includes all or some lesser number
of persons identified as members of the Sandell Group, or (ii)
enter into any negotiations, arrangements or understandings with any third
parties, other than members of the Sandell Group solely with respect to the
existing members of the Sandell Group, in connection with becoming a "group" as defined in Section 13(d)(3) of the
Exchange Act;

       

       

      (e)           publicly disparage any member of the
Board or management of the Company; or

       

       

      
        
          
          

        

        
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      (f)           publicly seek or request permission to
do any of the foregoing, request to amend or waive any provision of this Section
5 (including, without
limitation, any of clauses (a)-(e) hereof), or make or seek permission to make
any public announcement with respect to any of the
foregoing.

       

       

      6.          Transfer
Restrictions.  The Sandell Group agrees that, during the
Standstill Period, it shall not offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend (other than in a customary
commingled brokerage account in the ordinary course of business), or otherwise
transfer or dispose of, directly or indirectly, any shares of common stock or
any securities convertible into or exercisable or exchangeable, directly or
indirectly, for common stock, whether any such transaction described above is to
be settled by delivery of common stock or such other securities, in cash or
otherwise (any such action a "Transfer"), in each case without the prior written
consent of the Company; provided that the foregoing
shall not restrict the Sandell Group from (i) a Transfer of any shares to a
controlled affiliate which agrees to be bound by the terms of this Agreement and
executes a Joinder Agreement, (ii) subject to compliance with law, the Transfer
of shares in either (1) brokers' transactions (within the meaning of Rule 144(g)
of the Securities Act of 1933 (the "Securities Act")), but not in transactions
directly with a market maker (as defined in Section 3(a)(38) of the Exchange
Act), or (2) private Transfers (including transactions with, or indirectly
through, a market maker), in a single Transfer or series of related Transfers,
so long as the Sandell Group, at the time of such Transfer, does not have actual
knowledge, after reasonable inquiry, that such Transfer or series of Transfers
would result in the ultimate purchaser of such shares of common stock from the
Sandell Group beneficially owning, together with its affiliates, following such
Transfer or Transfers, in excess of five percent (5%) of the Company's common
stock in the aggregate, or (iii) Transfers made pursuant to (x) tender offers in
respect of the Company's common stock made by the Company or any third party, or
(y) repurchase offers in respect of the Company's common stock made directly
with the Company.

       

       

      7.          Resignation.  Each
of Mr. Graziano, Mr. Loren and Mr. McFarlane (and any replacement director
appointed to the Board pursuant to Section 3(d)) shall immediately tender his
resignation from the Board, if requested by the Board as a result of a majority
vote of the directors, other than the Nominees, in favor of such resignations
from the Board, in the event that the Sandell 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 solely as a result of a
Transfer or series of Transfers by the Sandell Group.

       

       

      8.          Nondisparagement.  During
the Standstill Period, the Company shall not publicly disparage the Sandell
Group or any member of the management of the Sandell Group.

       

       

      9.          Public
Announcement.  The Company shall disclose the existence of this
Agreement after its execution pursuant to a Company press release reasonably
acceptable to the Sandell Group; however, neither
party shall disclose the existence of this Agreement until the press release is
issued except as otherwise required by applicable law, rule or regulation and


       

       

      
        
          
          

        

        
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      provided
that the non-disclosing party is provided a reasonable opportunity to review and
comment upon any such disclosure and the disclosing party considers in good
faith any such comments provided by the non-disclosing party.

       

       

      10.          Remedies.  The
Company and the Sandell Group acknowledge and agree that a breach or threatened
breach by either party may give rise to irreparable injury inadequately
compensable in damages, and accordingly each party shall be entitled to
injunctive relief to prevent a breach of the provisions hereof and to enforce
specifically the terms and provisions hereof in any state or federal court
having jurisdiction, in addition to any other remedy to which such aggrieved
party may be entitled to at law or in equity. In the event either party
institutes any legal action to enforce such party's rights under, or recover
damages for breach of, this Agreement, the prevailing party or parties in such
action shall be entitled to recover from the other party or parties all costs
and expenses, including but not limited to reasonable attorneys' fees, court
costs, witness fees, disbursements and any other expenses of litigation or
negotiation incurred by such prevailing party or parties.

       

       

      11.          Notices.  All
notice requirements and other communications shall be deemed given when
delivered or on the following business day after being sent by overnight courier
with a nationally recognized courier service such as Federal Express, addressed
to the Company, SAMC, Castlerigg Master Investments, Castlerigg International,
Castlerigg Holdings and Mr. Sandell as follows:

       

       

      The
Company:

       

      Fair
Isaac Corporation

      901
Marquette Avenue, Suite 3200

      Minneapolis,
MN 55402-3232

      Facsimile:  (612)
758-6002

      Attention:
General Counsel

       

      With
a copy to (which shall not constitute notice):

       

      Skadden,
Arps, Slate, Meagher & Flom LLP

      525
University Avenue, Suite 1100

      Palo
Alto, California 94301

      Facsimile:  (650)
470-4570

      Attention:  Kenton
J. King

                   
M.
Amr Razzak

       

      The
Sandell Group:

       

      Sandell
Asset Management Corp.

      40
W 57th Street, 26th Floor

      New
York, NY 10019

      Facsimile:
(212) 603-5725

       

       

      
        
          
          

        

        
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      Attn:
General Counsel

       

      with
copies to (which shall not constitute notice):

       

      Schulte
Roth & Zabel LLP

      919
Third Avenue

      New
York, NY 10022

      Facsimile:
(212) 593-5955

      Attention:  Marc
Weingarten

       

      12.          Entire
Agreement.  This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements understandings, negotiations
and discussions of the parties in connection therewith not referred to
herein.

       

       

      13.          Counterparts;
Facsimile.  This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, and signature
pages may be delivered by facsimile, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.

       

       

      14.          Headings.  The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.

       

       

      15.          Governing
Law.  This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without regard to
choice of law principles that would compel the application of the laws of any
other jurisdiction.

       

       

      16.          Severability.  In
the event one or more of the provisions of this Agreement should, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.

       

       

      17.          Successors and
Assigns.  This Agreement shall not be assignable by any of the
parties to this Agreement.  This Agreement, however, shall be binding
on successors of the parties hereto.

       

       

      18.          Survival of Representations,
Warranties and Agreements.  All representations, warranties,
covenants and agreements made herein shall survive the execution and delivery of
this Agreement.

       

       

      
        
          
          

        

        
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      19.          Amendments.  This
Agreement may not be modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by all of the parties
hereto.

       

       

      20.          Further
Action.  Each party agrees to execute any and all documents,
and to do and perform any and all acts and things necessary or proper to
effectuate or further evidence the terms and provisions of this
Agreement.

       

       

      21.          Consent to
Jurisdiction.  Each of the parties hereby irrevocably submits
to the exclusive jurisdiction of any state court sitting in the State of
Delaware in any action or proceeding arising out of or relating to this
Agreement and each of the parties hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in any such
court.

       

       

      22.          Expenses.  Each
party agrees to bear its own expenses in connection with the transactions
contemplated hereby.

       

      


      


      [Signature Page
Follows]

       

       

      
        
          
          

        

        
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      The
Company and the Sandell Group each indicate its agreement with the foregoing by
signing and returning one copy of this agreement, whereupon this letter
agreement will constitute their agreement with respect to the subject matter
hereof.

       

       

      Accepted
to and agreed,

       

       

      as
of the date first written above:

       

      


      Fair
Isaac Corporation

      


      
        
          
            
              	      
                      By:         

                    	      
                      /s/
      Mark N. Greene

                    	
                       

                    
	
                      Name:     Mark
      N. Greene

                    
	
                      Title:       CEO

                    


            

          

        

      

      


      


      Sandell
Asset Management Corp.

      


      
        
          
            
              	      
                      By:

                    	/s/
      Thomas E. Sandell	
                       

                    
	
                      Name:     Thomas
      E. Sandell

                    
	
                      Title:       Chief
      Executive Officer

                    


            

          

        

      

      


      


      Castlerigg
Master Investments Ltd.

      By:
Sandell Asset Management Corp.

      


      
        
          
            
              	      
                      By:

                    	/s/
      Thomas E. Sandell	
                       

                    
	
                      Name:    
      Thomas E. Sandell

                    
	
                      Title:       Chief
      Executive Officer

                    


            

          

        

      

      


      


      Castlerigg
International Limited

      By:
Sandell Asset Management Corp.

      


      
        
          
            
              	      
                      By:

                    	/s/
      Thomas E. Sandell	
                       

                    
	
                      Name:     Thomas
      E. Sandell

                    
	
                      Title:       Chief
      Executive Officer

                    


            

          

        

      

      


      


      Castlerigg
International Holdings Limited

      By:
Sandell Asset Management Corp.

      


      
        
          
            
              	      
                      By:

                    	/s/
      Thomas E. Sandell	
                       

                    
	
                      Name:     Thomas
      E. Sandell

                    
	
                      Title:       Chief
      Executive Officer

                    


            

          

        

      

      


      


      
        
          
          

        

        
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      EXHIBIT
A

       

       

      FORM
OF JOINDER AGREEMENT

       

       

      The
undersigned hereby agrees, effective as of the date hereof, to become a party to
that certain Amended and Restated Agreement, dated as of December 4, 2008, by
and among Fair Isaac Corporation, a Delaware corporation (the "Company"),
Sandell 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, Castlerigg International
and Castlerigg Holdings, the "Sandell Group") (the "Agreement"). By executing
this joinder agreement, the undersigned hereby agrees to be, and shall be,
deemed a member of the "Sandell Group" for all purposes of the Agreement,
entitled to the rights and subject to the obligations thereunder with respect to
the voting securities of the Company acquired from the Sandell
Group.

       

       

      The
address and facsimile number to which notices may be sent to the undersigned is
as follows:

       

       

      Facsimile
No.:

       

       

      
         

        
          
            
              
                
                  
                    	
                            By:

                          	 
      
	 
      	 
      
	
                            Name:

                          	 
      
	 
      	 
      
	
                            Title:

                          	 
      
	 
      	 
      
	
                            Date:

                          	 
      


                  

                

              

            

          

        

         

        


         

      

       

      
 

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