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Exhibit 10.1
AGREEMENT
THIS AGREEMENT (the "Agreement"), made this 16th day of September,
1999, is entered into by ECC International Corp., a Delaware corporation (the
"Company"), Steel Partners II, L.P., a Delaware limited partnership (together
with its affiliates, "Steel") and Xxxxxx X. Xxxxxxxxxxxx ("Xxxxxxxxxxxx").
Steel and Xxxxxxxxxxxx currently own an aggregate of 1,947,501 shares
of Common Stock, $.10 par value per share, of the Company. For purposes of this
Agreement, "Voting Securities" shall mean all classes of capital stock of the
Company which are then entitled to vote generally in the election of directors
of the Company. In consideration of the mutual covenants and promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties hereto, and in order to provide
a constructive and mutually beneficially relationship among the Company, Steel
and Xxxxxxxxxxxx, the parties agree as follows:
1. TERM OF AGREEMENT AND TERMINATION
(a) The respective covenants and agreements of the
Company, Steel and Xxxxxxxxxxxx contained in this Agreement will continue in
full force and effect until the date immediately following the date of the
Company's Annual Meeting of Stockholders held in calendar year 2000 (the
"Termination Date"), unless earlier terminated in accordance with Section 1(b).
(b) Either party may terminate this Agreement, in its
sole discretion, if the other party fails to perform or observe in any material
respects any of its obligations pursuant to this Agreement, including any
decision by either Xxxxxxxxxxxx or Xxxxx X. Xxxxxxxxx ("Xxxxxxxxx") not to be
elected to the Company's Board of Directors (the "Board") at the annual meeting
scheduled for November 10, 1999.
(c) From and after the Termination Date or earlier
termination of this Agreement, the covenants of the parties set forth herein
shall be of no further force or effect and the parties shall be under no further
obligation with respect thereto PROVIDED, HOWEVER, that Section 2(c) shall
survive the termination of this Agreement.
2. COVENANTS OF THE COMPANY
(a) The Company shall cause Xxxxxxxxxxxx and Xxxxxxxxx to
be nominated by the Board at the meeting of the Board to be held on September
16, 1999, for election to the Board at the annual meeting of stockholders to be
held on November 10, 1999. Until the Termination Date or earlier termination of
this Agreement, the Board shall include Xxxxxxxxxxxx and Xxxxxxxxx (for so long
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as each is willing to serve as a director) in the slate of nominees recommended
by the Board to stockholders for election as directors at each annual meeting of
stockholders of the Company commencing with the November 10, 1999 annual meeting
of stockholders.
(b) Until the Termination Date or earlier termination of
this Agreement, the number of members of the Board shall not exceed eight (8).
(c) The Company shall not hold the 2001 Annual Meeting of
Stockholders of the Company on a date prior to June 30, 2001.
(d) At the meeting of the Board of Directors to be held
on September 16, 1999, the Company's By-Laws shall be amended to provide that,
for the period commencing on the date immediately following the date of the
Company's Annual Meeting of Stockholders held in calendar year 2000 and ending
on the date of the Company's Annual Meeting of Stockholders held in calendar
year 2001, any director or the entire Board of Directors may be removed, with or
without cause, at any special meeting of stockholders called for such purpose by
the holders of a majority of the shares present at such meeting and entitled to
vote thereat. Such By-Law amendment shall not be amended prior to the election
of Xxxxxxxxxxxx and Xxxxxxxxx to the Board, and shall thereafter only be amended
with the consent of Messrs. Xxxxxxxxxxxx and Xxxxxxxxx.
3. COVENANTS OF STEEL AND XXXXXXXXXXXX
Prior to the Termination Date or earlier termination of this Agreement:
(a) Each of Steel and Xxxxxxxxxxxx shall take all such
action as may be required so that all Voting Securities beneficially owned by
either of them are voted for the slate of director nominees recommended by the
majority of the directors of the Company to be voted on at any annual or special
meeting of stockholders or by written consent of stockholders in lieu of a
meeting. Each of Steel and Xxxxxxxxxxxx, as holders of Voting Securities, shall
be present, in person or by proxy, at all meetings of stockholders of the
Company so that all Voting Securities beneficially owned by them may be counted
for the purpose of determining the presence of a quorum at such meetings.
(b) Neither Steel nor Xxxxxxxxxxxx shall deposit any
Voting Securities in a voting trust or subject any Voting Securities to any
arrangement or agreement with respect to the voting of such Voting Securities.
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(c) Neither Steel nor Xxxxxxxxxxxx shall join a
partnership, limited partnership, syndicate or other group, or otherwise act in
concert with any other person, for the purpose of acquiring, holding, voting or
disposing of Voting Securities, or otherwise become a "person" within the
meaning of Section 13(d)(3) of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act") (in each case other than solely with each other).
(d) Neither Steel nor Xxxxxxxxxxxx, as holders of Voting
Securities, shall call, or join in a call for, a special meeting of the
stockholders of the Company.
4. MISCELLANEOUS
(e) Each of the parties hereto acknowledge and agree that
irreparable damage would occur in the event any of the provisions of this
Agreement are not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state thereof having jurisdiction, in addition
to any other remedy to which they may be entitled at law or equity.
(f) If any provisions of this Agreement shall be found by
any court of competent jurisdiction to be invalid or unenforceable, the parties
hereby waive such provision to the extent that it is found to be invalid or
unenforceable. Such provision shall, to the maximum extent allowable by law, be
modified by such court so that it becomes enforceable, and, as modified, shall
be enforced as any other provision hereof, all the other provisions hereof
continuing in full force and effect.
(g) As used herein, the term "affiliate" shall have the
meaning set forth in Rule 12b-2 under the Exchange Act.
(h) This Agreement contains the entire understanding of
the parties with respect to the transactions contemplated hereby and this
Agreement may be amended only by an agreement in writing executed by the parties
hereto.
(i) All notices, consents, requests, instructions,
approvals and other communications provided for herein shall be validly given,
made or served, if in writing and delivered personally, by telecopy or sent by
registered mail, postage prepaid or overnight courier, if to:
The Company: ECC International Corp.
0000 Xxxx Xxx Xxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: President
fax: (000) 000-0000
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Copies to: General Xxxxxxx X. XxXxxx
00000 XX Xxxxxxxxx
Xxxx Xxxxxx, XX 00000
fax: (000) 000-0000
Xxxx and Xxxx XXX
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, P.C.
fax: (000) 000-0000
Steel: Steel Partners II, L.P.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxxxx
fax: (000) 000-0000
Copy to: Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Esq.
fax: (000) 000-0000
Xxxxxxxxxxxx: c/o Steel Partners II, L.P.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
fax: (000) 000-0000
Copy to: Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Esq.
fax: (000) 000-0000
or to such other address or telecopy number as any party may, from time to time,
designate in a written notice given in a like manner. Notice given by telecopy
shall be deemed delivered on the day the sender receives telecopy confirmation
that such notice was received at the telecopier number of the addressee. Notice
given by mail as set out above shall be deemed delivered five days after the
date the same is postmarked.
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(j) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed therein.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal, all as of the day and year first above written.
ECC INTERNATIONAL CORP.
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
Title: Chairman of the Board
STEEL PARTNERS II, L.P..
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxxx
Title: General Partner
/s/ Xxxxxx X. Xxxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxxx
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