Exhibit 10.1
March 11, 2009
This Settlement
Agreement (this “Agreement”) is made and entered into
as of March 11, 2009, by and among Agilysys, Inc., an Ohio
corporation (“Agilysys” or the “Company”),
and each of the entities and natural persons listed on
Exhibit A hereto (such entities and natural persons,
collectively, the “Ramius Group” and each,
individually, a “member” of the Ramius Group) which
presently are or may be deemed to be members of a
“group” with respect to the beneficial ownership of the
common stock of the Company, no par value (the “Common
Stock”), pursuant to Rule 13d-5 promulgated by the
Securities and Exchange Commission (the “SEC”) under
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”).
WHEREAS, the
Company and the Ramius Group have engaged in various discussions
and communications concerning the Company’s business,
financial performance and strategic plans;
WHEREAS, the
Ramius Group duly submitted a nomination letter to the Company on
June 20, 2008 (the “Nomination Letter”) nominating
a slate of three (3) director candidates for election to the
Company’s board of directors (the “Board”) at the
2008 annual meeting of shareholders of the Company (including any
adjournment or postponement thereof (the “2008 Annual
Meeting”);
WHEREAS, on
February 18, 2009, the Ramius Group filed a definitive proxy
statement on Schedule 14A, as amended (the “Ramius
Proxy”), with the SEC related to the matters set forth in the
Nomination Letter; and
WHEREAS, the
Company and the members of the Ramius Group have determined to come
to an agreement with respect to certain matters related to the 2008
Annual Meeting, the 2009 annual meeting of shareholders of the
Company (the “2009 Annual Meeting”) and certain other
matters, as provided in this Agreement.
NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants
and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1 Board
Matters; Board Appointments; 2008 Annual Meeting; 2009 Annual
Meeting; 2010 Annual Meeting;
(a) The
Company hereby confirms that effective as of the execution of this
Agreement two current members of the Board, other than R. Andrew
Cueva, have resigned as members of the Board and that the Board has
appointed Steve Tepedino and John Mutch to serve as directors of
the Board, each in a Class to be determined by the Board, but in no
event in the Class of directors whose terms expire at the 2010
annual meeting of shareholders of the Company (Steve Tepedino and
John Mutch and any of their Replacement Directors, collectively,
the “Ramius Directors”).
(b) The
Company agrees that the Ramius Directors shall be nominated for
re-election, together with the other members of their respective
Class, at either the 2008 Annual Meeting or the 2009 Annual
Meeting, as the case may be, and that the Company will recommend,
support and solicit proxies for the election of the Ramius
Directors in the same manner as for the Company’s other
nominees up for election at such annual meeting.
(c) The
Company agrees to use its commercially reasonable efforts to
(i) hold the 2008 Annual Meeting no later than March 31,
2009, (ii) hold the 2009 Annual Meeting no later than
September 30, 2009, and (iii) hold the 2010 annual
meeting of shareholders of the Company (the “2010 Annual
Meeting”) no later than September 30, 2010.
(d) The
Company agrees that it will not increase the size of the Board to
more than nine (9) directors at any time before the Company’s
2010 Annual Meeting.
(e) The
Company has disbanded the Special Committee of the Board formed to
oversee an evaluation of the Company’s strategic
alternatives. The Company agrees that one of the Ramius Directors
will be included as a member of any special committee that is
established by the Board while the Ramius Directors are serving as
directors of the Board.
(f) The
Company agrees to disband the Executive Committee of the Board no
later than the next regularly scheduled meeting of the
Board.
(g) The
Company agrees that from the date hereof up to and including the
date of the 2010 Annual Meeting, the Company will not take any
action to limit or restrict the rights of its shareholders by
amending the Company’s Amended Code of Regulations or
otherwise.
(h) If
either of the Ramius Directors leaves the Board (whether by
resignation or otherwise) before the 2010 Annual Meeting, the
Ramius Group will be entitled to recommend to the Nominating and
Corporate Governance Committee of the Board replacement director(s)
who will qualify as “independent” pursuant to NASDAQ
listing standards. The Nominating and Corporate Governance
Committee will not unreasonably withhold acceptance of any
replacement director(s) recommended by the Ramius Group; provided
however, that it shall at all times act in accordance with its
fiduciary duties. In the event the Nominating and Corporate
Governance Committee does not accept a replacement director(s)
recommended by the Ramius Group, the Ramius Group will have the
right to recommend additional replacement director(s) for
consideration by the Nominating and Corporate Governance Committee.
Upon the acceptance of a replacement director nominee by the
Nominating and Corporate Governance Committee, the Board will
appoint such replacement director to the Board no later than five
(5) business days after the Nominating and Corporate
Governance Committee’s recommendation of such replacement
director (the “Replacement Director”).
(i) Notwithstanding
anything to the contrary contained in Section 1(h), if, during
the Standstill Period (as such term is defined below), the total
number of shares of Common Stock held in the aggregate by the
members of the Ramius Group falls below an amount equal to 3% of
the shares of Common Stock then outstanding, one of
Messrs. Mutch or Tepedino (or their Replacement Directors)
shall tender to the Company an irrevocable resignation letter in a
form satisfactory to the Company, pursuant to which he shall resign
from the Board and the right of the Ramius Group to recommend a
Replacement Director to fill the vacancy caused by the resignation
of Messrs. Mutch or Tepedino (or their Replacement Directors)
pursuant to Section 1(h) shall automatically terminate, provided,
however, that nothing herein shall limit the ability of the Ramius
Group to recommend a Replacement Director pursuant to Section 1(h)
with respect to the remaining Ramius Director. The Ramius Group has
obtained the conditional resignation letters from the Ramius
Directors necessary to effectuate the provisions of this
Section 1(i).
(j) Each
member of the Ramius Group agrees that it will vote in favor of the
Director nominees recommended to shareholders by the
Company’s Board of Directors at the Company’s 2008 and
2009 Annual Meetings of Shareholders. No member of the Ramius Group
shall take any position, make any statement or take any action
inconsistent with the foregoing.
(a) Each
member of the Ramius Group agrees that, from the date of this
Agreement until ten (10) business days prior to the deadline
set for the submission of shareholder proposals for the 2010 Annual
Meeting of Shareholders of the Company established in connection
with the 2010 Annual Meeting (such period, the “Standstill
Period”), neither it nor any of its Affiliates or Associates
under its control or direction will, and it will cause each of its
Affiliates and Associates under its control not to, directly or
indirectly, in any manner:
(i) engage
in any solicitation of proxies or consents or become a
“participant” in a “solicitation” (as such
terms are defined in Regulation 14A under the Securities
Exchange Act of 1934, as amended or the rules or regulations
thereunder) of proxies or consents (including, without limitation,
any solicitation of consents to call a special meeting of
shareholders), in each case, with respect to securities of the
Company, except in accordance with Sections 1(b) above;
(ii) seek
to advise, encourage, support or influence any person with respect
to the voting or disposition of any securities of the Company at
the 2008 Annual Meeting and 2009 Annual Meeting, except in
accordance with Sections 1(b) above;
(iii) initiate,
propose or otherwise “solicit” stockholders of the
Company for the approval of any stockholder proposal;
(iv) form,
join or in any way participate in any “group” pursuant
to Rule 13d-5 promulgated by the SEC under the Exchange Act
with respect to any securities of the Company, other than a
“group” that includes all or some lesser number of the
persons identified as part of the Ramius Group, but does not
include any other members who are not currently identified as
Ramius Group members as of the date hereof; or
(v) deposit
any securities of the Company in a voting trust or subject any
securities of the Company to any arrangement or agreement with
respect to the voting of the securities of the Company.
(b) As
used in this Agreement, the terms “Affiliate” and
“Associate” shall have the respective meanings set
forth in Rule 12b-2 promulgated by the SEC under the Exchange
Act; the terms “beneficial owner” and “beneficial
ownership” shall have the same meanings as set forth in Rule
13d-3 promulgated by the SEC under the Exchange Act; and the terms
“person” or “persons” shall mean any
individual, corporation (including not-for-profit), general or
limited partnership, limited liability company, joint venture,
estate, trust, association, organization or other entity of any
kind or nature.
(c) In
the event that the Company is in breach of its obligations under
this Agreement, including, without limitation, a failure to comply
in any respect with the provisions of Sections 1 or 7 of this
Agreement, and such breach is not cured within 30 days after
written notice thereof is provided to the Company by the Ramius
Group, then in addition to any other remedies that the members of
the Ramius Group may have, the provisions of Section 2 shall
also terminate.
(d) In
the event that the Ramius Group is in breach of its obligations
under this Agreement, and such breach is not cured within
30 days after written notice thereof is provided to the Ramius
Group by the Company, then in addition to any other remedies that
the Company may have, the provisions of Sections 1(c), 1(d),
1(e), 1(f), 1(g), 1(h) and 1(i) shall also terminate.
3
Representations and Warranties of the Company. The Company
represents and warrants to the Ramius Group that (a) the
Company has the corporate power and authority to execute the
Agreement and to bind it thereto, (b) this Agreement has been
duly and validly authorized, executed and delivered by the Company,
constitutes a valid and binding obligation and agreement of the
Company, and is enforceable against the Company in
accordanc
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