Exhibit 10.3
[XXXXXX A.S.L., LTD. LETTERHEAD]
September 13, 1999
Whippoorwill Associates, Inc., as agent
for various discretionary accounts
00 Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Gentlemen:
This letter will confirm our agreement that Xxxxxx A.S.L.,
Ltd., a Delaware company (the "Company"), will adjourn its Annual Meeting of
Stockholders to be held on September 14, 1999 in respect of proposals 1 and 2
(or schedule a new meeting to consider such proposals); such adjourned portion
of the Annual Meeting or new meeting is referred to herein as the "Adjourned
Meeting". The Adjourned Meeting will be held not less than 45 days (but no more
than 90 days) after September 14, 1999 in order to permit discussions among
stockholders regarding the composition of the Company's Board of Directors and
the impact of the 1999 Share Incentive Plan. Such Adjourned Meeting shall
qualify as an "annual meeting" for the purposes of Section 3.2 of the By-laws.
The Board of Directors has unanimously determined that in
the event any stockholder desires to nominate a slate of proposed directors for
consideration by stockholders at the Adjourned Meeting, the Board of Directors
will amend the bylaws so that the provisions of Section 2.7(A)(2) and (3) will
be inapplicable to such vote (and will not impose any other restrictions on the
ability of stockholders to bring director nominations to such meeting other
than, if desired, a deadline of no less than 30 days after public announcement
of the date and location of the Adjourned Meeting for any stockholder to provide
the notice described in said Section 2.7).
The Company agrees that if any stockholder desires to
nominate a slate of director nominees at the Adjourned Meeting, the Company will
cooperate and not interfere with, including the prompt supply of a stockholder
list as of the applicable Record Date, and provide sufficient time to, such
stockholder to enable such stockholder to prepare, file and distribute its own
proxy materials and solicit proxies from other stockholders, and to enable the
Company's stockholders to vote on such stockholder's slate at the Adjourned
Meeting.
The Board of Directors has unanimously approved the
Company's execution and delivery of this letter agreement. The Board and the
Company understand that Whippoorwill Associates, Inc., as agent for various
discretionary accounts, will be relying on the Company's compliance with its
obligations set forth herein and the Board's actions described herein. The
Company acknowledges and agrees that irreparable damage would occur in the event
that any
of the provisions of this letter agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
Whippoorwill Associates, Inc., as agent for various discretionary accounts,
shall be entitled to an injunction or injunctions to prevent or cure breaches of
the provisions hereof and to enforce specifically the terms and provisions
hereof, this being in addition to any other remedy to which it may be entitled
by law or equity.
Very truly yours,
XXXXXX A.S.L. LTD.
/s/ Xxxxxx X. Xxxxxx
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By: Xxxxxx X. Xxxxxx
Chairman of the Board and
Chief Executive Officer
ACCEPTED AND AGREED:
WHIPPOORWILL ASSOCIATES, INC., as agent
for various discretionary accounts
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
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