SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
__________
SCHEDULE
13D
[Rule
13d-101]
INFORMATION
TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO
§ 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§
240.13d-2(a)
(Amendment
No. 4)*
Agilysys,
Inc.
|
(Name
of Issuer)
|
Common
Stock, without par value
|
(Title
of Class of Securities)
|
00847J105
|
(CUSIP
Number)
|
Howard
M. Berkower, Esq.
McCarter
& English, LLP
245
Park Avenue
New
York, New York 10167
(212)
609-6800
|
(Name,
Address and Telephone Number of Person
Authorized
to Receive Notices and Communications)
|
June
25, 2010
|
(Date
of Event Which Requires Filing of this
Statement)
|
If the filing
person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box. o
Note:
Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See § 240.13d-7 for other
parties to whom copies are to be sent.
*The
remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any
subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
The
information required on the remainder of this cover page shall not be deemed to
be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934
(the "Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP
NO.: 00847J105
|
|
|
|
|
1.
|
NAME
OF REPORTING PERSONS
|
|
MAK
Capital One LLC
|
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
x
(b) o
|
|
|
3.
|
SEC
USE ONLY
|
|
|
4.
|
SOURCE
OF FUNDS
|
|
WC
|
5.
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or
2(e)
o
|
|
|
6.
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
|
|
Delaware
|
7.
|
SOLE
VOTING POWER
|
|
0
|
8.
|
SHARED
VOTING POWER
|
|
4,683,245
|
9.
|
SOLE
DISPOSITIVE POWER
|
|
0
|
10.
|
SHARED
DISPOSITIVE POWER
|
|
4,683,245
|
11.
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
|
|
4,683,245
|
12.
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o
|
|
|
13.
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
20.4%
|
14.
|
TYPE
OF REPORTING PERSON
00
|
CUSIP
NO.: 00847J105
|
|
|
|
|
1.
|
NAME
OF REPORTING PERSONS
|
|
Michael
A. Kaufman
|
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
x
(b) o
|
|
|
3.
|
SEC
USE ONLY
|
|
|
4.
|
SOURCE
OF FUNDS
AF
|
|
|
5.
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or
2(e)
o
|
|
|
6.
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States
|
|
|
7.
|
SOLE
VOTING POWER
|
|
0
|
8.
|
SHARED
VOTING POWER
|
|
4,683,245
|
9.
|
SOLE
DISPOSITIVE POWER
|
|
0
|
10.
|
SHARED
DISPOSITIVE POWER
|
|
4,683,245
|
11.
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
|
|
4,683,245
|
12.
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o
|
|
|
13.
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
20.4%
|
14.
|
TYPE
OF REPORTING PERSON
IN
|
CUSIP
NO.: 00847J105
|
|
|
|
|
1.
|
NAME
OF REPORTING PERSONS
|
|
|
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
x
(b) o
|
|
|
3.
|
SEC
USE ONLY
|
|
|
4.
|
SOURCE
OF FUNDS
|
|
|
5.
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or
2(e)
o
|
|
|
6.
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Bermuda
|
|
|
7.
|
SOLE
VOTING POWER
|
|
0
|
8.
|
SHARED
VOTING POWER
|
|
2,910,959
|
9.
|
SOLE
DISPOSITIVE POWER
|
|
0
|
10.
|
SHARED
DISPOSITIVE POWER
|
|
2,910,959
|
11.
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
|
|
2,910,959
|
12.
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o
|
|
|
13.
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
12.7%
|
14.
|
TYPE
OF REPORTING PERSON
PN
|
CUSIP
NO.: 00847J105
|
|
|
|
|
1.
|
NAME
OF REPORTING PERSONS
|
|
Paloma
International L.P.
|
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
x
(b) o
|
|
|
3.
|
SEC
USE ONLY
|
|
|
4.
|
SOURCE
OF FUNDS
|
|
|
5.
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or
2(e)
o
|
|
|
6.
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
|
|
7.
|
SOLE
VOTING POWER
|
|
0
|
8.
|
SHARED
VOTING POWER
|
|
1,772,286
|
9.
|
SOLE
DISPOSITIVE POWER
|
|
0
|
10.
|
SHARED
DISPOSITIVE POWER
|
|
1,772,286
|
11.
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
|
|
1,772,286
|
12.
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o
|
|
|
13.
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
7.7%
|
14.
|
TYPE
OF REPORTING PERSON
PN
|
CUSIP
NO.: 00847J105
|
|
|
|
|
1.
|
NAME
OF REPORTING PERSONS
|
|
|
2.
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
x
(b) o
|
|
|
3.
|
SEC
USE ONLY
|
|
|
4.
|
SOURCE
OF FUNDS
|
|
|
5.
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or
2(e)
o
|
|
|
6.
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States
|
|
|
7.
|
SOLE
VOTING POWER
|
|
0
|
8.
|
SHARED
VOTING POWER
|
|
1,772,286
|
9.
|
SOLE
DISPOSITIVE POWER
|
|
0
|
10.
|
SHARED
DISPOSITIVE POWER
|
|
1,772,286
|
11.
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON
|
|
1,772,286
|
12.
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
o
|
|
|
13.
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
7.7%
|
14.
|
TYPE
OF REPORTING PERSON
IN
|
This
statement is filed with respect to the shares of the common stock, without par
value (the "Common Stock"), of Agilysys, Inc. (the "Issuer"), beneficially owned
by the Reporting Persons (as defined below) as of June 28, 2010 and amends and
supplements the Schedule 13D filed on July 1, 2008, as previously amended
(collectively, the "Schedule 13D"). Except as set forth herein, the
Schedule 13D is unmodified.
The
names of the persons filing this statement on Schedule 13D are: MAK Capital One
L.L.C., a Delaware limited liability company (“MAK Capital”), MAK Capital Fund
LP, a Bermuda limited partnership (“MAK Fund”), Michael A. Kaufman, a United
States citizen (“Mr. Kaufman”), Paloma International L.P., a Delaware limited
partnership ("Paloma"), and S. Donald Sussman, a United States citizen (“Mr.
Sussman,” and collectively, the "Reporting Persons").
The
Reporting Persons collectively beneficially own 4,683,245 shares of Common Stock
representing 20.4% of the outstanding shares of Common Stock. MAK
Fund individually owns 2,910,959 shares of Common Stock representing 12.7% of
the outstanding shares of Common Stock. Paloma individually owns
1,772,286 shares of Common Stock representing 7.7% of the outstanding shares of
Common Stock. Paloma holds its shares of Common Stock through its
subsidiary, Sunrise Partners Limited Partnership, a Delaware limited
partnership. This amendment is being filed, among other things, to
report the acquisition of additional shares of Common Stock.
ITEM
3.
|
SOURCE
AND AMOUNT OF FUNDS OR OTHER
CONSIDERATION.
|
Within
the past sixty days, MAK Fund acquired an aggregate of 264,798 shares of Common
Stock for an aggregate purchase price of $1,792,100.82, which was funded from
its working capital.
ITEM
4.
|
PURPOSE
OF TRANSACTION.
|
Item
4 of Schedule 13D is supplemented by the following:
At the
Issuer’s Special Meeting of Shareholders held on February 18, 2010, the
shareholders of the Issuer approved the Reporting Persons’ proposal to permit
the Reporting Persons to increase their ownership to 20% or more, but not to
exceed one-third of the Issuer’s outstanding shares of Common
Stock.
MAK Fund
entered into an agreement, designed to satisfy the requirements of Rule 10b5-1
of the Act, to purchase additional shares of Common Stock. The Purchase
Agreement dated June 16, 2010 (the “Rule 10b5-1 Purchase Agreement”) between MAK
Fund and Goldman Sachs & Co. (the “Broker”), authorizes the Broker to
purchase on behalf of MAK Fund, in the open market or through privately
negotiated transactions, during the period June 17, 2010 through February 17,
2011 (the “Purchase Period”), up to 900,000 shares
of Common Stock based on market conditions. The Rule 10b5-1
Purchase Agreement shall be terminated upon the earliest of the date on which
(i) an aggregate of 900,000 shares of Common Stock has been acquired pursuant to
the Rule 10b5-1 Purchase Agreement, (ii) the Purchase Period ends, (iii) a
public announcement is made with respect to certain events involving the Issuer,
or (iv) receipt of written termination is received from MAK Fund.
As of the
close of business on June 28, 2010, MAK Fund has purchased in the aggregate
123,816 shares of Common Stock pursuant to the Rule 10b5-1 Purchase
Agreement.
A copy of
the Rule 10b5-1 Purchase Agreement is attached hereto as Exhibit D and is
incorporated herein by reference.
Shares of Common Stock acquired by MAK Fund which, when
added to the other shares of Common Stock beneficially owned by the Reporting
Persons represent more than 19.99% of the then outstanding Common Stock, will be
transferred, pursuant to that certain Voting Trust Agreement dated as of
December 31, 2009 (the “Voting Trust Agreement”) with Computershare Trust
Company, N.A., a national banking association (“CTC”), into a voting trust of
which CTC will be the trustee.
MAK Capital additionally wishes to reiterate and
reconfirm its previous statements that it does not seek to control the
Issuer. A single MAK Capital employee, R. Andrew Cueva, serves on the
Issuer’s Board of Directors (the “Board”), after having been invited to join by
the Board in 2008. MAK Capital has no desire at this time to have
more than one representative on the Issuer’s Board. For avoidance of
doubt, MAK Capital will not seek control of more than one-third of the Board in
the future.
ITEM
5.
|
INTEREST
IN SECURITIES OF THE ISSUER.
|
(a) The
Reporting Persons beneficially own:
The
Reporting Persons collectively beneficially own 4,683,245 shares of Common Stock
representing 20.4% percent of the outstanding shares of Common
Stock. The ownership calculation has been based on the
23,011,111 shares of Common Stock outstanding as of June 18, 2010 as reported in
the Proxy Statement for the Annual Meeting of Shareholders of the Issuer, which
was filed by the Issuer with the Securities and Exchange Commission on June 25,
2010.
MAK
Fund individually owns 2,910,959 shares of Common Stock representing 12.7% of
the outstanding shares of Common Stock.
Paloma
individually owns 1,772,286 shares of Common Stock representing 7.7% of the
outstanding shares of Common Stock. Paloma holds its shares of Common
Stock through its subsidiary, Sunrise Partners Limited Partnership, a Delaware
limited partnership.
(b) MAK
Capital, MAK Fund and Mr. Kaufman have shared power to vote or direct the vote
of the 2,910,959 shares of Common Stock owned by MAK Fund.
Paloma,
Mr. Sussman, MAK Capital and Mr. Kaufman have shared power to vote or direct the
vote of the 1,772,286 shares of Common Stock owned by Paloma.
MAK
Capital, MAK Fund and Mr. Kaufman have shared power to dispose or direct the
disposition of the 2,910,959 shares of Common Stock owned by MAK
Fund.
Paloma,
Mr. Sussman, MAK Capital and Mr. Kaufman have shared power to dispose or direct
the disposition of the 1,772,286 shares of Common Stock owned by
Paloma.
(c) Within
the past sixty days, MAK Fund acquired an aggregate of 264,798 shares of Common
Stock for an aggregate purchase price of $1,792,100.82, which was funded from
its working capital. A list of the transactions in the Issuer’s
Common Stock that were effected by the Reporting Persons during the past sixty
days is attached hereto as Exhibit B.
(d) Not
applicable.
(e) Not
applicable.
ITEM
6.
|
CONTRACTS,
ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES
OF THE ISSUER.
|
MAK
Fund entered into the Rule 10b5-1 Purchase Agreement which is described in Item
4 hereto and is hereby incorporated by reference herein.
ITEM
7.
|
MATERIALS
TO BE FILED AS EXHIBITS.
|
Exhibit
A –Joint Filing Agreement (previously filed)
Exhibit
B – List of the transactions in the Issuer’s Common Stock that were effected by
the Reporting Persons during the past sixty days
Exhibit
C – Power of Attorney executed May 9, 2006 by S. Donald Sussman (incorporated by
reference to Exhibit C to the Reporting Persons’ Schedule 13D/A filed on
February 1, 2010).
Exhibit
D – Rule 10b5-1 Purchase Agreement
Exhibit E - Voting Trust Agreement (incorporated by
reference to Exhibit E to the Reporting Persons’ Schedule 13D/A filed on
February 1, 2010)
SIGNATURES
After
reasonable inquiry and to the best of my knowledge and belief, the undersigned
each certify that the information with respect to it set forth in this statement
is true, complete and correct.
Date:
June 29, 2010
MAK
CAPITAL ONE L.L.C.
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Michael
A. Kaufman |
|
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|
|
Michael
A. Kaufman,
|
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MAK
CAPITAL FUND LP
|
|
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By: |
MAK
GP LLC, general partner |
|
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By: |
/s/
Michael
A. Kaufman |
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Michael
A. Kaufman, |
|
|
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|
Managing
Member
|
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/s/ Michael
A. Kaufman |
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PALOMA
INTERNATIONAL L.P.
|
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By: |
Paloma
Partners Company L.L.C., general partner |
|
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By: |
/s/
Douglas W. Ambrose |
|
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Douglas
W. Ambrose, |
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Vice
President
|
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S.
DONALD SUSSMAN
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By:
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/s/
Douglas W. Ambrose |
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Douglas
W. Ambrose, |
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Attorney-in-Fact
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EXHIBIT
B
TRANSACTIONS
DURING THE PAST 60 DAYS
The
following transactions were effected by MAK Capital Fund LP during the past
sixty (60) days:
Date
|
Security
|
Amount
of Shs.
Bought
(Sold)
|
Approx.
Price per
Share
(excl. of
Commissions)
|
06/08/10
|
Common
|
83,741
|
$6.2148
|
06/09/10
|
Common
|
37,142
|
$6.5408
|
06/10/10
|
Common
|
20,099
|
$6.7171
|
06/21/10
|
Common
|
20,4091
|
$7.22042
|
06/22/10
|
Common
|
34,2011
|
$7.22733
|
06/23/10
|
Common
|
15,4551
|
$7.18384
|
06/24/10
|
Common
|
3,4901
|
$7.22385
|
06/25/10
|
Common
|
43,3831
|
$7.21856
|
06/28/10
|
Common
|
6,8781 |
$7.23807 |
The
above transactions were effected on the open market.
1 The
purchases were made pursuant to the Rule 10b5-1 Purchase
Agreement. These shares were purchased in multiple transactions on
the open market. The Reporting Person undertakes to provide Agilysys,
Inc., any security holder of Agilysys, Inc. or the staff of the Securities and
Exchange Commission, upon request, full information regarding the number of
shares purchased at each separate purchase price within the range set forth
herein.
2 Weighted
Average Price, prices ranged from $7.14 to 7.24 per
share.
3 Weighted
Average Price, prices range from $7.16 to $7.26 per
share.
4 Weighted
Average Price, prices range from $7.02 to $7.24 per
share.
5 Weighted
Average Price, prices range from $7.16 to $7.24 per
share.
6 Weighted
Average Price, prices range from $7.16 to $7.24 per
share.
7 Weighted
Average Price, prices range from $7.23 to $7.24 per share.
EXHIBIT
D
PURCHASE
AGREEMENT
Purchase
Agreement, dated June 16, 2010 (the “Purchase Agreement”), between MAK Capital
Fund LP (the “Purchaser”) and Goldman, Sachs & Co. (the
“Broker”).
WHEREAS,
Purchaser desires to appoint Broker to purchase on behalf of Purchaser shares of
outstanding common stock, $ 0.00 par value (the “Stock”) issued by Agilysis,
Inc. (the “Issuer”); and
WHEREAS,
the parties intend that the purchases of Stock made pursuant to this Purchase
Agreement shall comply with the requirements of Rule 10b5-l(c)(l)(i) and that
this Purchase Agreement shall be interpreted to comply with the requirements of
that rule.
NOW
THEREFORE, the Purchaser and Broker hereby agree as follows:
1. Broker
shall effect one or more purchases (each a “Purchase”) of shares of Stock as set
forth on Annex A. The share amounts and per share prices in Annex A
shall be adjusted automatically on a proportionate basis to take into account
any stock split, reverse stock split or stock dividend with respect to the Stock
that occurs during the period this Purchase Agreement remains in
effect. Broker’s sole compensation for services rendered under this
Purchase Agreement shall be a commission of $0.02 per share of Stock
purchased.
2. This
Purchase Agreement shall become effective on June 17, 2010 and shall terminate
on the earliest of: (i) the date an aggregate of 900,000 shares of Stock have
been purchased pursuant to this Purchase Agreement; (ii) the date that any
person publicly announces a tender or exchange offer with respect to the Stock;
(iii) the date of public announcement of a merger, acquisition, reorganization,
recapitalization or comparable transaction affecting the securities of the
Issuer as a result of which the Stock is to be exchanged or converted into other
securities or property, (iv) the date on which Broker receives notice of the
intended or actual commencement of any proceedings in respect of or triggered by
Purchaser’s bankruptcy, insolvency or similar proceeding; (v) the date on which
any event of termination described herein shall occur; (vi) promptly after the
receipt of written notice of termination signed by a senior officer of Purchaser
and confirmed by telephone, it being understood that any such termination shall
not cause Purchases previously effected pursuant to this Purchase Agreement to
fail to be entitled to the benefits of Rule 10b5-l(c). Any such
termination notice shall not indicate the reasons for the termination or contain
any material non-public information; or (vii) February 17, 2011, the date in
which the Repurchase Period ends.
3. Broker
may make purchases pursuant to this Purchase Agreement in the open market or
through privately negotiated transactions.
4. Purchaser
represents, warrants and covenants that:
(i) As
of the date hereof, Purchaser is not aware of material nonpublic information
concerning Purchaser and is entering into this Purchase Agreement in good faith
and not as part of a plan or scheme to evade the prohibitions of Rule
10b5-l;
(ii) Purchaser
will not, during the period this Purchase Agreement is in effect, enter into any
comparable agreement with any other broker if the period of such comparable
agreement shall overlap with the period of this Purchase Agreement;
(iii) Purchases
of Stock pursuant to this Purchase Agreement are not prohibited or restricted by
any legal, regulatory or contractual restriction or undertaking binding on the
Purchaser;
(iv) Purchaser
is not an “affiliated purchaser” (within the meaning of Rule 10b-18 under the
Securities Exchange Act of 1934) of the Issuer; and
(iv) Purchaser
shall immediately notify Broker if any of the statements contained in paragraphs
4(ii), 4(iii) or 4(iv) above become inaccurate prior to the termination of this
Purchase Agreement.
5. Payment
for Stock purchased under this Purchase Agreement shall be made in accordance
with normal settlement procedures. Broker shall establish a Purchase
account for Purchaser into which purchased shares of Stock will be deposited
against payment to Broker of the purchase price and Broker’s
compensation. These shares of Stock will be placed into transfer on a
weekly basis. Purchaser agrees that the obligation of Broker to make
Purchases on any day on which Purchases are to occur pursuant to this Purchase
Agreement is conditioned upon Purchaser maintaining compliance with normal
settlement procedures. Any failure by Purchaser to maintain such
compliance, as reasonably determined by Broker, shall be deemed an event of
termination, and no further Purchases shall thereafter be made pursuant to this
Purchase Agreement.
6. Broker
shall provide Purchaser with written confirmation of purchases executed on
behalf of Purchaser on a daily basis (showing the date of the transactions, the
number of shares purchased, the price paid, Broker’s compensation for the
purchases, and settlement dates), as well as other market data or account
reports that Purchaser may reasonably request. Unless otherwise directed by
Purchaser, such confirmation shall be delivered to Ray Jimenez [phone:
212-486-3213, fax: 212-486-4779, e-mail: [email protected]].
7. Purchaser
understands that Broker may not be able to effect a Purchase due to a market
disruption or a legal or regulatory restriction or a restriction under the terms
of any contract applicable to Broker (including any restriction, whether
pursuant to a contract, internal policy or otherwise, applicable to Broker when
it is involved in a distribution of Stock on behalf of Purchaser or another
party) (a “Blackout”). Purchaser also understands that even in the
absence of a Blackout, Broker may be unable to effect Purchases consistent with
ordinary principles of best execution due to insufficient volume of trading,
failure of the Stock to reach and sustain a limit order price, or other market
factors in effect on the date of a Purchase set forth in Annex A (“Unfilled
Purchases”).
8. Broker
agrees that if Purchaser enters into a transaction that results, in Purchaser’s
good faith determination, in the imposition of trading restrictions on the
Purchaser (each, a “Purchaser Restriction”), and if Purchaser shall provide
Broker prior notice, then Broker will cease effecting Purchases under this
Purchase Agreement until notified by Purchaser that such restrictions have
terminated. All required notifications to Broker under this paragraph
8 shall be made in writing (signed by Purchaser) and confirmed by telephone as
follows: (Attn: Corporate Repurchase Desk, c/o Neil Kearns; Fax No. (212)
493-9487; Tel: (212) 902-5281; or Matthew Chellgren; Fax No. (212) 428-1353;
Tel: (212) 902-3198). Broker shall resume effecting Purchases in
accordance with this Purchase Agreement as soon as practicable after the
cessation or termination of a Blackout or Purchaser Restriction. Any
Unfilled Purchase, and any Purchases that would have been executed in accordance
with the terms of Annex A but are not executed due to the existence of a
Blackout or Purchaser Restriction, shall be deemed to be cancelled and shall not
be effected pursuant to this Purchase Agreement.
9. Purchaser
agrees that it shall not, directly or indirectly, communicate any information
relating either to the Stock or to the Issuer to any employee of Broker or its
affiliates who is involved, directly or indirectly, in executing this Purchase
Agreement at any time while this Purchase Agreement is in
effect. Purchaser shall be solely responsible for complying with all
reporting or filing requirements, or with any laws not mentioned herein, that
may apply to Purchases under this Purchase Agreement.
10. Purchaser
agrees that, in the absence of bad faith, Broker and its affiliates and their
directors, officers, employees and agents (collectively, “Broker Persons”) shall
not have any liability whatsoever to the Purchaser for any action taken or
omitted to be taken in connection with this Purchase Agreement or the making of
any Purchase. Purchaser further agrees to hold each Broker Person
free and harmless from any and all losses, damages, liabilities or expenses
(including reasonable attorneys’ fees and costs) incurred or sustained by such
Broker Person in connection with or arising out of any suit, action or
proceeding relating to this Purchase Agreement (each an “Action”) and to
reimburse each Broker Person for such Broker Person’s expenses, as they are
incurred, in connection with any Action, unless such loss, damage, liability or
expense is determined in a non-appealable order of a court of competent
jurisdiction to be solely the result of such Broker Person’s bad
faith. This paragraph 10 shall survive termination of this Purchase
Agreement.
11. This
Purchase Agreement is not assignable or transferable, and constitutes the entire
agreement between the parties, superseding any prior written or oral agreements
or understandings with regard to this Purchase Agreement. This
Purchase Agreement may be executed in one or more counterparts, each of which
when so executed and delivered shall constitute a single, binding
instrument.
12. This
Purchase Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflict of law principles that
would result in the application of any law other than the law of the State of
New York and may be modified or amended only by a writing signed by the parties
hereto and provided that any such modification or amendment shall only be
permitted at a time when the Purchaser is otherwise permitted to effect
Purchases under this Purchase Agreement and at a time when the Purchaser is not
aware of material nonpublic information concerning the Purchaser or its
securities. In the event of a modification or amendment to this
Purchase Agreement, no purchases shall be effected during the ten business days
immediately following such modification or amendment (other than Purchases
already provided for in this Purchase Agreement prior to modification or
amendment).
IN
WITNESS WHEREOF, the undersigned have executed and delivered this Purchase
Agreement as of the dale first written above.
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MAK
CAPITAL FUND LP |
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/s/ Michael
A. Kaufman |
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Name: Michael
A. Kaufman |
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Title: President |
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GOLDMAN
SACHS & CO. |
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/s/
Neil Kearns |
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Name: Neil
Kearns |
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Title: Managing
Director
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