Exhibit 10.1
DITECH NETWORKS,
INC.
825 E. MIDDLEFIELD
ROAD
MOUNTAIN VIEW, CA.
94043
September 2, 2009
Lamassu Holdings, LLC
21 Whitesands Drive
Newport Coast, CA 92657
Attn: Timothy Leehealey
Samuel Healey
21 Whitesands Drive
Newport Coast, CA 92657
Frank J. Sansone
2933 Arboridge Court
Fullerton, CA 92835
The following sets forth the agreement (the
“ Agreement ”) between Lamassu Holdings
L.L.C. and each of its affiliates listed in the signature blocks
below (collectively, “ Lamassu ”), and
Ditech Networks, Inc. (“ Ditech
”):
1.
Ditech hereby covenants and agrees
that each of Mr. Alan Howe and Mr. Frank J. Sansone will
be nominated by the Ditech Board of Directors (the “
Board ”) for election at the 2009 annual
meeting of stockholders (the “ 2009 Annual
Meeting ”), to the class the term of office of which
will expire at the 2012 annual meeting of stockholders.
Mr. Howe and Mr. Sansone will replace Mr. Avis and
Mr. Manoliu, each of whom will cease to be members of the
Board at such time.
2.
Prior to the 2009 Annual Meeting,
(i) the Board shall recommend that Ditech’ stockholders
vote in favor of Mr. Howe and Mr. Sansone at the 2009
Annual Meeting and (ii) Ditech shall solicit proxies for the
election of Mr. Howe and Mr. Sansone at the 2009 Annual
Meeting.
3.
For so long as Lamassu continues to
beneficially own not less than 5% of the outstanding shares of
Ditech common stock: if the Lamassu Designee (as defined
below) is unable or unwilling to continue to serve on the Board and
as a result there is a vacancy created on the Board, the Board
shall, consistent with its fiduciary duties, appoint a replacement
director designated by Lamassu Holdings L.L.C. (other than Timothy
Leehealey, who shall not be designated by Lamassu Holdings L.L.C.)
to fill the resulting vacancy, provided that such
replacement director is reasonably acceptable to Ditech (and the
Board will not unreasonably withhold acceptance of any such
replacement director); and Ditech will use its commercially
reasonable efforts to secure the election to the Board of such
replacement director; provided , however ,
that
1
the Board may determine, in its sole
discretion, that a replacement director is not reasonably
acceptable if such replacement director shall not have signed a
conditional resignation as a director of Ditech in the form
attached here to as Schedule A . Ditech hereby
confirms that Mr. Sansone is reasonably acceptable to the
Nominating and Corporate Governance Committee (“
NCGC ”) and the Board (provided that he has
signed a conditional resignation as a director of Ditech in the
form attached here to as Schedule A ), and his
nomination to the Board in satisfaction of the requirement of
paragraph 1 meets the requirements of this paragraph 3.
For purposes of this Agreement, Mr. Sansone and any
replacement director for Mr. Sansone shall each be deemed a
“ Lamassu Designee ”.
4.
Lamassu shall use its best efforts
to cause each Lamassu Designee to tender to Ditech a conditional
resignation as a director of Ditech in the form attached here to as
Schedule A . If Lamassu shall cease to
beneficially own at least 5% of the outstanding shares of Ditech
common stock, the Board may accept the Lamassu Designee conditional
resignation as a director of Ditech referred to above.
5.
Lamassu will vote all of the shares
it beneficially owns in support of the slate of Directors nominated
by the Board for the 2009 Annual Meeting (and will not support or
participate in any “withhold the vote” or similar
campaign, or support any other nominees other than the slate of
Directors nominated by the Board).
6.
For a period beginning on the date
of this letter agreement and continuing until 90 days from the date
of the 2009 Annual Meeting, Lamassu will not (i) make any
public statement regarding Ditech, the Board or any of
Ditech’s officers, directors or employees, except for the
press release attached hereto as Schedule A, or as may be required
by law, or (ii) disparage Ditech, the Board, or any of
Ditech’s officers, directors or employees, in any manner,
including in any manner which could be harmful to Ditech or its
business, the Board or its reputation, or the business reputation
or personal reputation of any officer, director or employee of
Ditech.
7.
Subject to the nominations of
Mr. Howe and Mr. Sansone as specified in paragraph 1 as
directors of Ditech, Lamassu hereby withdraws its previously
announced notice of its in
