SCHEDULE
14A
(Rule
14a-101)
INFORMATION
REQUIRED IN PROXY STATEMENT
SCHEDULE
14A INFORMATION
PROXY
STATEMENT PURSUANT TO SECTION 14(a) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Filed
by the Registrant [ ]
Filed
by a Party Other than the Registrant [x]
Check
the Appropriate Box:
[ ]
Preliminary Proxy Statement
[ ]
Confidential, for Use of the Commission Only (as permitted by
Rule
14a-6(e)(2))
[X]
Definitive Proxy Statement
[ ]
Definitive Additional Materials
[ ]
Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
AGILYSYS,
INC.
(Name
of registrant as specified in its charter)
MAK
Capital Fund LP,
Paloma
International L.P.,
Sunrise
Partners Limited Partnership,
MAK
Capital One LLC,
MAK
GP LLC,
Trust
Asset Management LLP,
Michael
A. Kaufman,
S.
Donald Sussman,
and
R.
Andrew Cueva
(Name
of person(s) filing proxy statement, if other than the registrant)
Payment
of Filing Fee (Check the Appropriate Box):
[x]
No fee required.
[ ]
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
(1)
Title of each class of securities to which transaction applies:
(2)
Aggregate number of securities to which transaction applies:
(3)
Per unit price or other underlying value of transaction computed pursuant
to
Exchange
Act Rule 0-11 (set forth the amount on which the filing fee is
calculated
and state how it is determined):
(4)
Proposed maximum aggregate value of transaction:
(5)
Total fee paid:
[ ]
Fee paid previously with preliminary materials:
[ ]
Check box if any part of the fee is offset as provided by Exchange
Act
Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the form or schedule and the date of its filing.
(1)
Amount Previously Paid:
(2)
Form, Schedule or Registration Statement no.:
(3)
Filing Party:
(4)
Date Filed:
MAK
CAPITAL
590
Madison Avenue, 9th
Floor, New York, NY 10022
Tel:
212-486-3211 Fax: 212-486-4779
January 22,
2010
Dear
Fellow Shareholder,
MAK
Capital One LLC is the investment manager for MAK Capital Fund LP and Paloma
International L.P. (collectively, “MAK Capital” or “we”) with respect to
Agilysys, Inc. (“Agilysys” or the “company”), and we beneficially own 19.2% of
Agilysys’s outstanding shares. We are seeking your approval, as
required under Ohio law, to increase our stake in the company to a maximum
ownership of 33.3%.
We
have been substantial shareholders since January 2007 June
2008 the company invited a member of our firm, R. Andrew Cueva, to join its
board of directors. We believe that Mr. Cueva has been instrumental
in driving the change of management that led to a significant improvement in
profitability despite lower revenues and an increasingly intense competitive
environment.
Since
2007, MAK Capital has grown significantly while at the same time our investment
in Agilysys has declined in value due to the lower stock price. We
would like the opportunity to once again make our investment in Agilysys a
significant position relative to our total portfolio. Furthermore,
given the meaningful amount of time that Andrew Cueva dedicates to Agilysys, we
wish to purchase more shares to warrant the investment of our time and
resources.
In
order to promote best corporate governance practices and to alleviate any
concerns some shareholders and certain voting services they employ may have if
we acquire approximately 33.3% of the shares of the company, MAK Capital has
voluntarily entered into a Voting Trust Agreement that will limit our voting
power in certain circumstances. Specifically, whenever a matter
requiring a 66.67% supermajority for passage comes before the shareholders MAK
Capital will limit its direct vote to:
·
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20%
of the company's total outstanding shares (or our actual ownership
interest if that amount is less than 20%) when the issue involves a
takeover offer for the company, the disposition of assets owned by the
company or certain takeover proposals made by the company (a category of
transactions that we refer to as “Strategic Transactions” in our proxy
materials).
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·
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25%
of the company's total outstanding shares (or our actual ownership
interest if that amount is less than 25%) on all other issues requiring a
supermajority approval.
|
Any
shares that MAK Capital owns above the thresholds discussed above (we refer to
these as “Excess Shares” in our proxy materials) will be voted by the Trustee of
the Voting Trust pro-rata with all other votes cast (including our votes that
are not subject to the Voting Trust).
MAK
Capital Letter to Agilysys Shareholders
Page
2.
By
approving this measure, MAK Capital would have the opportunity to buy more stock
of Agilysys in the open market, which may have the effect of increasing the
stock price. Additionally, if we are able to increase our ownership
of the company, it will only strengthen our commitment to continue working
toward improving the operations and performance of Agilysys. We are
long-term investors and our increased participation in the Company would inure
to the benefit of all shareholders.
We
are asking you to vote “FOR” our proposals on the enclosed blue proxy card and
to return it today (with the completed certification of eligibility accompanying
the proxy card). If you have any questions with regard to Agilysys or
our proposals, please contact our proxy solicitors at MacKenzie Partners, Inc.
at 800-322-2885.
Thank
you for giving this issue your time and consideration.
Best
regards,
/s/
Michael A. Kaufman
Michael
A. Kaufman,
Managing
Member of MAK Capital One LLC
PROXY
SOLICITATION STATEMENT
---------------------------
PROXY
SOLICITATION STATEMENT
OF
MAK
Capital Fund LP,
Paloma
International L.P.,
Sunrise
Partners Limited Partnership,
MAK
Capital One LLC,
MAK
GP LLC,
Trust
Asset Management LLP,
Michael
A. Kaufman,
S.
Donald Sussman,
and
R.
Andrew Cueva
---------------------------
INTRODUCTION
MAK
Capital Fund, LP (“MAK Capital
Fund”), Paloma International L.P. (“Paloma”), and the other
participants in this solicitation (collectively, “we” or “us”), collectively
beneficially own 4,418,447 shares of the common stock, without par value (the
“Common Stock”), of
Agilysys, Inc., an Ohio corporation (“Agilysys” or the “Corporation”), representing
approximately 19.13% of the issued and outstanding shares of Common
Stock. We are furnishing this Proxy Solicitation Statement (the
“Proxy Statement”) in
connection with our solicitation of proxies from the holders of Common Stock to
be used at a special meeting of the Corporation’s shareholders and at
any adjournments or postponements thereof (the “Special
Meeting”). The Special Meeting is scheduled to be held on
February 18, 2010, at 8:30 a.m., local time, at the Corporation’s principal
executive offices at 28925 Fountain Parkway, Solon, Ohio 44139.
As
described further in this Proxy Statement, Section 1701.831 (the “Control Share Acquisition
Statute”) of the Ohio Revised Code (the “ORC”) requires us to obtain
the authorization of the Corporation’s shareholders before we can acquire any
shares of Agilysys that would entitle us to directly or indirectly control 20%
or more of the voting power of the Corporation in the election of the
Corporation’s directors. Pursuant to the Control Share Acquisition
Statute, on November 19, 2009, we delivered an acquiring person statement, a
copy of which is attached hereto as Exhibit I (the “Acquiring Person Statement”),
to the Corporation requesting the Corporation to call the Special Meeting in
order to hold a vote of the Agilysys shareholders to authorize the acquisition
by us of that number of the shares of Common Stock that, when added to all other
shares in respect of which we may exercise or direct the exercise of voting
power in the election of the Corporation’s directors, would equal one-fifth or
more (but less than one-third) of such voting power (the “Share
Acquisition”).
Accordingly,
we are furnishing to shareholders this Proxy Statement and the enclosed BLUE proxy card in connection
with the solicitation of proxies for the following actions:
(1) to
vote “FOR” the
authorization of the Share Acquisition; and
(2) to
vote “FOR” the
adjournment of the Special Meeting if deemed desirable by us in our sole
discretion, to allow additional time for the solicitation of proxies to assure a
quorum at the Special Meeting and to assure a vote in favor of the Share
Acquisition if there are insufficient affirmative shareholder votes at the
time of the Special Meeting to approve the Share Acquisition.
Proposals
1 and 2, above, shall be collectively referred to as the “Proposals.” To our
knowledge, no matters other than the Proposals are to be voted on at the Special
Meeting. If any other matters that we did not know about within a
reasonable time period before the date of this Proxy Statement properly come
before the Special Meeting, we will vote our shares of Common Stock and all
proxies held by us in accordance with our best judgment with respect to such
matters.
THIS
PROXY SOLICITATION IS BEING MADE BY MAK CAPITAL FUND, PALOMA AND THE OTHER
PARTICIPANTS IN THIS SOLICITATION AND NOT BY OR ON BEHALF OF
AGILYSYS. WE ARE ASKING THE SHAREHOLDERS OF THE CORPORATION TO VOTE
“FOR” THE PROPOSALS ON
THE ACCOMPANYING BLUE
PROXY CARD.
This
Proxy Statement and the enclosed BLUE Proxy card are first
being furnished to certain shareholders of Agilysys on or about January 22,
2010. The Proxy Statement is also available at www.ourmaterials.com/MAK.
The
record date for determining shareholders entitled to notice of and to vote at
the Special Meeting is January 15, 2010 (the “Record
Date”). Shareholders of record at the close of business on the
Record Date will be entitled to one vote at the Special Meeting for each share
of the Corporation's Common Stock held by them on the Record
Date. Based on information supplied by the Corporation, there were
23,096,119 shares
of Common Stock issued and outstanding as of the Record
Date. Authorization of the Share Acquisition at the Special Meeting
requires the affirmative vote of shareholders present at the Special Meeting in
person or by proxy at which a quorum is present, representing at least: (1) a
majority of the voting power entitled to vote in the election of Corporation
directors represented at the Special Meeting in person or by proxy (the “First Majority Approval”),
and (2) a
majority of the voting power entitled to vote in the election of Corporation
directors, excluding any shares which are “Interested Shares” (as defined below
– see “The Control Share Acquisition Statute” Section) represented at the
Special Meeting in person or by proxy (the “Second Majority
Approval”). A quorum shall be deemed to be present at the
Special Meeting if at least a majority of the voting power of the Corporation
entitled to vote for the election of directors is represented at the meeting in
person or by proxy.
We
beneficially own 4,418,447 shares of Common Stock representing approximately
19.13% of the shares outstanding. We intend to vote all of our shares
of Common Stock at the Special Meeting: (1) “FOR” the authorization of the
Share Acquisition; and (2) “FOR” the adjournment of the
Special Meeting if deemed desirable by us in our sole discretion to allow
additional time for the solicitation of proxies to assure a quorum at the
Special Meeting and to assure a vote in favor of the Share Acquisition if there
are insufficient affirmative shareholder votes at the time of the Special
Meeting to approve the Share Acquisition. If any other matters that
we did not know about within a reasonable time period before the date of this
Proxy Statement properly come before the Special Meeting, we will vote our
shares of Common Stock and all proxies held by us in accordance with our best
judgment with respect to such matters.
MAK
Capital Fund is the record owner of 1,000 shares of Common Stock and the
beneficial owner of an additional 2,645,161 shares of Common Stock held in
street name. Paloma, through its subsidiary, Sunrise Partners Limited
Partnership (“Sunrise”),
is the beneficial owner of 1,772,286 shares of Common Stock held in street
name. In addition to the beneficial ownership described above (i) MAK
GP LLC (“MAK GP”), the
general partner of MAK Capital Fund, may be deemed to beneficially own the
shares of Common Stock held by MAK Capital Fund, (ii) Trust Asset Management
LLP, a general partner of Paloma with investment discretion over securities held
by Paloma and Sunrise (“TAM”), may be deemed to
beneficially own the shares of Common Stock held by Paloma through Sunrise,
(iii) S. Donald Sussman, the controlling person of Paloma, Sunrise and TAM, may
be deemed to beneficially own the shares of Common Stock held by Paloma through
Sunrise, (iv) MAK Capital One LLC, the investment manager of MAK Capital Fund
and Paloma with respect to the Agilysys securities held by each reported in this
Proxy Statement, may be deemed to have beneficial ownership of the shares held
by each, and (v) Michael A. Kaufman, as the controlling person of MAK Capital
One LLC, MAK GP and MAK Capital Fund, may be deemed to be the beneficial owner
of the shares of Common Stock held by MAK Capital Fund and Paloma. R.
Andrew Cueva, an employee of MAK Capital One LLC and a director of the
Corporation, does not own directly or indirectly, beneficially or of record, any
securities of Agilysys.
The
holdings above are as of January 21, 2010.
We
urge you to vote in favor of the Proposals by signing, dating and returning the
enclosed BLUE proxy
card.
IMPORTANT
NOTICE:
TO
VOTE FOR OUR PROPOSALS, PLEASE PROMPTLY SIGN, DATE AND RETURN THE ENCLOSED BLUE PROXY
CARD. REMEMBER TO COMPLETE THE
CERTIFICATION ON THE BACK SIDE OF THE BLUE PROXY CARD BEFORE MAILING
IT.
PLEASE
DO NOT RETURN ANY PROXY CARD SENT TO YOU BY THE CORPORATION OR ANY OTHER
PERSON.
If
your shares of Common Stock are held in your own name, please sign, DATE and
mail or hand-deliver the enclosed BLUE Proxy card today in the
enclosed postage-paid envelope to MacKenzie Partners, Inc., at the address
below.
If
your shares of Common Stock are held in “Street Name,” only your bank or broker
can execute a Proxy on your behalf, but only upon receipt of your specific
instructions. Please sign, DATE and mail or hand-deliver the enclosed BLUE Proxy instruction form to
your bank or broker today in the postage-paid envelope provided. To
ensure that your Proxy is effective, please contact the persons responsible for
your account and instruct them to execute the BLUE Proxy card on your behalf
and make sure to DATE the Proxy.
Any
abstention from voting on a proxy that has not been revoked will be considered
present for the purpose of determining whether a quorum exists and will count as
a vote AGAINST both the authorization of the Share Acquisition and the
adjournment of the Special Meeting. A broker non-vote will be
considered present for the purpose of determining whether a quorum
exists. A broker non-vote occurs when a nominee holding shares of a
beneficial owner, or in “Street Name,” does not vote on a particular matter
because the nominee does not have discretionary voting power with respect to
that matter. When brokers do not receive voting instructions from a
customer, they are permitted to exercise discretionary voting authority with
respect to the customer’s shares on “routine” matters being voted on at a
meeting. If there are non-routine matters also being voted upon at the same
meeting, the broker is not permitted to exercise discretionary voting authority
on such matters, and the shares voted by the broker in its discretion on routine
matters are considered broker non-votes with respect to the non-routine matters.
The authorization of the Share Acquisition proposal is a non-routine matter and,
therefore, broker non-votes will count as votes AGAINST the
proposal. The adjournment proposal is considered a routine matter
and, therefore, broker non-votes will not affect that vote.
IF
YOU HAVE ANY QUESTIONS OR REQUIRE ANY ASSISTANCE IN EXECUTING OR DELIVERING YOUR
PROXY, PLEASE WRITE TO OR CALL:
MacKenzie
Partners, Inc.
105
Madison Avenue,
New
York, NY 10016
Phone
800-322-2885
See
“HOW TO DELIVER YOUR PROXY” below for more information.
WHO
WE ARE
The
participants in this solicitation are (i) MAK Capital Fund LP, (ii) Paloma
International L.P., (iii) Sunrise Partners Limited Partnership, (iv) MAK Capital
One LLC, (v) MAK GP LLC, (vi) Trust Asset Management LLP, (vii) Michael A.
Kaufman, (viii) S. Donald Sussman and (ix) R. Andrew Cueva (collectively, the
“Participants”).
MAK
Capital Fund is a private investment fund. MAK GP is the general
partner of MAK Capital Fund. MAK Capital One LLC serves as the
investment manager of MAK Capital Fund and other funds and
accounts. Michael A. Kaufman is the managing member and controlling
person of each of MAK GP and MAK Capital One LLC. R. Andrew Cueva is
a Managing Director at MAK Capital One LLC and a member of the Corporation’s
Board of Directors (the “Board”). The
principal address of MAK Capital Fund is c/o Dundee Leeds Management Services
Ltd., 129 Front Street, Hamilton, HM 12, Bermuda. The principal
address of each of MAK GP, MAK Capital One LLC, Michael A. Kaufman and R. Andrew
Cueva is 590 Madison Avenue, 9th Floor, New York, New York 10022.
Paloma
is a private investment fund, and it owns its shares of Agilysys Common Stock
through its subsidiary, Sunrise. TAM is the general partner with
investment discretion over the securities held by Paloma. S. Donald
Sussman is the controlling person of Paloma and TAM. MAK Capital One
LLC is the investment manager with respect to the shares of Common Stock of
Paloma reported in this Proxy Statement. The principal address of
each of Paloma and Sunrise is Two American Lane, Greenwich, Connecticut
06836-2571. The principal address of each of TAM and Mr. Sussman is
6100 Red Hook Quarter, 18B, Suites C, 1-6, St. Thomas, United States, Virgin
Islands 00802.
BACKGROUND
MAK Capital Fund and Paloma (through
Sunrise) first became holders of Agilysys Common Stock in January
2007. MAK Capital Fund and Paloma have increased their position since
such time because they believe in the long term prospects of the
Corporation. In June 2008, R. Andrew Cueva, an employee of MAK
Capital One LLC was appointed to the board of directors of Agilysys to serve as
a Class B director. Mr. Cueva is not a party to any arrangement or
agreement concerning board representation. MAK Capital Fund and
Paloma now collectively own 19.13% of the outstanding shares of Common
Stock. We now seek the authorization of Agilysys shareholders under
Ohio law in order to acquire more than 20% (but less than 33 1/3%) of the
outstanding shares of Agilysys Common Stock.
After we submitted our Acquiring Person
Statement, dated November 19, 2009, to the Corporation, the Corporation
announced on November 20, 2009 that it would hold the Special Meeting to vote on
the Share Acquisition on January 5, 2010. On December 18, 2009, MAK
Capital Fund, Paloma and the Corporation entered into an agreement to reschedule
the date of the Special Meeting until a date mutually agreed upon by the parties
thereto in order to permit sufficient time for the shareholders of the
Corporation to consider definitive proxy materials and to vote their shares with
respect to the Share Acquisition. On January 13, 2010, MAK Capital
Fund, Paloma and the Corporation agreed to hold the Special Meeting on February
18, 2010.
PROPOSAL
NUMBER 1: THE SHARE ACQUISITION PROPOSAL
We
propose to acquire that number of shares of Common Stock that, when added to all
other shares in respect of which we may exercise or direct the exercise of
voting power in the election of the Corporation’s directors, would equal
one-fifth or more (but less than one-third) of such voting power. We
intend to acquire the additional shares of Common Stock in one or more
transactions to occur during the 360-day period following the date shareholders
authorize the Share Acquisition. Although we have not yet determined
the method to acquire such additional shares of Common Stock, we may do so by
acquiring such shares (i) in one or more purchases in the open market, (ii) in
one or more block trades, (iii) through an intermediary, (iv) pursuant to a
tender offer, and/or (v) by any other legally permitted method. There
can be no assurance that we will be able to complete the purchases of the
additional shares of Common Stock contemplated by the Share Acquisition, or that
market conditions, market prices, developments with the Corporation, changes in
the Corporation’s prospects or other factors will not render such purchases
financially undesirable to us.
Collectively,
we beneficially own approximately 19.13% of the outstanding shares of Common
Stock (based upon the Corporation’s public filings). We are seeking your support
to approve the Share Acquisition.
We
are seeking to increase our investment in Agilysys because we believe the
current equity market capitalization is significantly below the intrinsic value
of the Corporation. Although one of MAK Capital One LLC’s employees,
R. Andrew Cueva, currently sits on the Board, we are not seeking to control the
Corporation. We have a constructive relationship with the Board and
management and, although we have no specific plans at this time, we are
committed to working to enhance the Corporation’s strategic position, operating
performance and market value.
We
believe the approval by shareholders of our request to increase our ownership
stake will provide added buying interest with respect to the shares of Common
Stock and provide an exit to shareholders seeking to sell their
positions.
We
urge you to vote “FOR”
the authorization of the Share Acquisition by voting the enclosed BLUE proxy card.
VOTING
TRUST AGREEMENT
We have become aware that some
shareholders and certain voting services they employ may have concerns if we
acquire approximately 33 1/3% of the voting power of the
Corporation. In particular, some believe that if we acquire such a
position, we may have the ability to block approval of any vote that requires
the consent of two-thirds of the Corporation’s voting power, especially with
respect to any merger and acquisition-type transaction. To alleviate
such concerns, MAK Capital Fund and Paloma entered into a Voting Trust Agreement
with Computershare Trust Company, N.A. a national banking association (“CTC”), dated as of December
31, 2009 (the “Voting Trust
Agreement”), which provides in relevant part as
follows:
·
|
Any
shares of Common Stock acquired by us within 360 days following approval
by the Corporation’s shareholders of the Share Acquisition and which, when
added with other shares of Common Stock beneficially owned by us,
represent more than 19.99% of the then outstanding Common Stock (the
“Excess Shares”)
shall be transferred into a voting
trust.
|
·
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CTC
shall act as trustee of such trust pursuant to the terms of the Voting
Trust Agreement.
|
·
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For
so long as the Voting Trust Agreement is in effect, if at any time there
is a shareholder vote to approve a merger, consolidation, conversion, sale
or disposition of stock, a sale or disposition of assets or other business
combination transaction that requires the approval of two-thirds of the
voting power of the Corporation (each a “Strategic
Transaction”), CTC shall vote the Excess Shares
representing more than 20% of the then outstanding shares of the
Corporation eligible to vote for such transaction (the “20% Excess Shares”),
solely in connection with such vote in favor of or against or abstaining
from voting with respect to such transaction, in the same proportion as
those shares that are not 20% Excess Shares are voted by the Corporation’s
shareholders (including the our shares that are not 20% Excess
Shares).
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·
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For
so long as the Voting Trust Agreement is in effect, if at any time there
is a shareholder vote to approve any transaction or other action, in each
case that is not a Strategic Transaction, that requires the approval of
two-thirds of the voting power of the Corporation (each an “Other Transaction”), CTC
shall vote the Excess Shares representing more than 25% of the then
outstanding shares of the Corporation eligible to vote for such
transaction (the “25%
Excess Shares”), solely in connection with a shareholder vote in
favor of or against or abstaining from voting with respect to such Other
Transaction in the same proportion as shares that are not 25% Excess
Shares are voted by the Corporation’s shareholders (including our shares
that are not 25% Excess Shares). Any Excess Shares that are not
25% Excess Shares shall be voted according to the instructions given by us
to CTC.
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·
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The
Voting Trust Agreement shall become effective at (and not before) the time
on which the Corporation’s shareholders approve the Share
Acquisition.
|
·
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The
Voting Trust Agreement shall terminate (a) if the Share Acquisition is not
approved; (b) if the vote necessary to approve all forms of Strategic
Transactions and Other Transactions is lowered to the affirmative vote of
a majority of the then outstanding shares (from two-thirds); (c) if the
MAK Capital Fund/Paloma group dissolves and is no longer deemed a group
under Section 13(d) of the Securities Exchange Act of 1934, as amended,
provided that the Voting Trust Agreement will remain in effect for either
the MAK Capital Fund or the Paloma group if at the time of such
dissolution, the MAK Capital Fund or Paloma group beneficially owns at
least 20% of the then outstanding shares; (d) on the tenth anniversary of
the Voting Trust Agreement (provided that the agreement shall be extended
for five additional years if the Reporting Persons continue to
beneficially own greater than 20% of the then outstanding shares); or (e)
at any time that any person (other than us) beneficially owns greater than
20% of the then outstanding shares, provided that the Voting Trust
Agreement shall not terminate if such person shall prior to acquiring such
shares in excess of 20% enter into a voting agreement that restricts such
person’s ability to vote such shares in a manner that is at least as
restrictive as the provisions applicable to us under the Voting Trust
Agreement.
|
A
copy of the Voting Trust Agreement is publicly available and you are encouraged
to read it. You can find it attached to the Schedule 13D (Amendment
No.2) filed by us on January 5, 2010 at www.sec.gov, at www.ourmaterials.com/MAK,
or by calling MacKenzie Partners, Inc. at 800-322-2885.
THE
CONTROL SHARE ACQUISITION STATUTE
The
Control Share Acquisition Statute provides that unless the articles of
incorporation or the regulations of an issuing public corporation provide
otherwise, any control share acquisition of such corporation shall be made only
with the prior authorization of its shareholders in accordance with the Control
Share Acquisition Statute. An “issuing public corporation” is an Ohio
corporation with 50 or more shareholders that has its principal place of
business, its principal executive offices, assets having substantial value, or a
substantial percentage of its assets in Ohio, and as to which there is no close
corporation agreement in existence. The Corporation is an issuing public
corporation, as so defined. See Exhibit II attached
hereto for other definitions under the Control Share Acquisition
Statute.
A
“control share acquisition” means the acquisition, directly or indirectly, by
any person of shares of an issuing public corporation that, when added to all
other shares of the issuing public corporation in respect of which such person
may exercise or direct the exercise of voting power, would entitle such person,
immediately after such acquisition, directly or indirectly, alone or with
others, to control any of the following ranges of voting power of such issuing
public corporation in the election of directors within any of the following
ranges: (a) one-fifth or more but less than one-third of such voting power, (b)
one-third or more but less than a majority of such voting power, or (c) a
majority or more of such voting power. An acquisition of shares of an issuing
public corporation, however, does not constitute a control share acquisition if,
among other things, the acquisition is consummated pursuant to a merger,
consolidation or other transaction authorized by vote of the shareholders of
such issuing public corporation effected in compliance with any of Sections
1701.78, 1701.781, 1701.79, 1701.191 or 1701.83 of the ORC, or pursuant to a
merger adopted in compliance with Section 1701.801 of the ORC.
Any
person who proposes to make a control share acquisition must deliver an
“acquiring person statement” to the issuing public corporation, which statement
shall include: (a) the identity of the acquiring person, (b) a statement that
the acquiring person statement is given pursuant to the Control Share
Acquisition Statute, (c) the number of shares of the issuing public corporation
owned, directly or indirectly, by such acquiring person, (d) the range of voting
power in the election of directors under which the proposed share acquisition
would, if consummated, fall (i.e., in excess of 20%, 33 1/3% or 50%), (e) a
description of the terms of the proposed share acquisition and (f)
representations of the acquiring person that the proposed control share
acquisition, if consummated, will not be contrary to law and that such acquiring
person has the financial capacity to make the proposed share acquisition
(including the facts upon which such representations are based).
Within
ten days of receipt of a qualifying acquiring person statement, the directors of
the issuing public corporation must call a special shareholders meeting to vote
on the proposed acquisition. Unless the acquiring person and the issuing public
corporation otherwise agree, the meeting must be held within 50 days of receipt
of such statement. However, the acquiring person may request in the acquiring
person statement that the meeting be held no sooner than 30 days after the
receipt of such statement.
The
issuing public corporation is required to send a notice of the special meeting
as promptly as reasonably practicable to all shareholders of record as of the
record date set for such meeting, together with a copy of the acquiring person
statement and a statement of the issuing public corporation, authorized by its
directors, of its position or recommendation, or that it is taking no position
or making no recommendation, with respect to the proposed control share
acquisition.
The
Control Share Acquisition Statute provides that an acquiring person may make the
proposed control share acquisition only if (i) the proposed control share
acquisition receives the affirmative vote of shareholders present at the meeting
in person or by proxy at which a quorum is present, representing at least: (a) a
majority of the voting power entitled to vote in the election of Corporation
directors represented at the Special Meeting in person or by proxy, and (b) a majority of
the voting power entitled to vote in the election of Corporation directors,
excluding any shares which are “Interested Shares,” represented at the meeting
in person or by proxy, and (ii) such acquisition is consummated, in accordance
with the terms so authorized, within 360 days following such
authorization. “Interested Shares” is defined
in the ORC to mean shares of an issuing public corporation as to which any of
the following may exercise or direct the exercise of voting power of the issuing
public corporation in the election of directors: (I) an acquiring person, (II)
an officer of the issuing public corporation elected or appointed by its
directors, (III) any employee of the issuing public corporation who is also a
director of such corporation, and (IV) shares of the issuing public corporation
acquired, directly or indirectly, by any person or group for valuable
consideration during the period beginning with the date of the first public
disclosure for, or expression of interest in, a control share acquisition of the
issuing public corporation or any proposed merger, consolidation or other
transaction which would result in a change in control of the corporation or its
assets, and ending on the record date of any special meeting of the
corporation’s shareholders held thereafter pursuant to the Control Share
Acquisition Statute for the purpose of voting on a control share acquisition
proposed by an acquiring person, if either of the following apply: (A) the
aggregate consideration paid or otherwise given by the person who acquired the
shares, and any other persons acting in concert with such person, for all shares
exceeds $250,000 or (B) the number of shares acquired by the person who acquired
the shares, and any other persons acting in concert with such person, exceeds
one-half of one percent of the outstanding shares of the corporation entitled to
vote in the election of directors.
Dissenters’
rights are not available to shareholders of an issuing public corporation in
connection with the authorization of a control share acquisition.
THE
FOREGOING SUMMARY DOES NOT PURPORT TO BE A COMPLETE STATEMENT OF THE PROVISIONS
OF THE CONTROL SHARE ACQUISITION STATUTE AND THE RELATED PROVISIONS OF THE ORC.
THE FOREGOING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE CONTROL
SHARE ACQUISITION STATUTE (A COPY OF WHICH IS ATTACHED AS EXHIBIT II TO THIS
PROXY STATEMENT, ALONG WITH SECTION 1701.01 OF THE ORC, WHICH DEFINES CERTAIN
TERMS USED THEREIN) AND THE ORC. YOU ARE ENCOURAGED TO READ AND
FAMILIARIZE YOURSELF WITH EXHIBIT II ATTACHED HERETO.
PROPOSAL
NUMBER 2: PROPOSAL TO ADJOURN THE SPECIAL MEETING
Some
Agilysys shareholders may not have an adequate opportunity to return proxies in
order for their votes to be counted towards the First Majority Approval or the
Second Majority Approval with respect to the Share Acquisition proposal, and
there could possibly be difficulty obtaining a quorum for the Special
Meeting. In either case, if deemed desirable by us in our sole
discretion, we may propose a resolution to adjourn the Special Meeting to allow
additional time for the solicitation of proxies to assure a quorum at the
Special Meeting and to assure a vote in favor of the Share Acquisition if there
are insufficient affirmative shareholder votes at the time of the Special
Meeting to approve the Share Acquisition.
The
Acquiring Person urges you to vote “FOR” the adjournment of the
Special Meeting if deemed desirable by us in our sole discretion to allow
additional time for the solicitation of proxies to assure a quorum and to assure
a vote in favor of the Share Acquisition if there are insufficient affirmative
shareholder votes at the time of the Special Meeting to approve the Share
Acquisition.
OTHER
MATTERS
Except
for the matters discussed above, the Participants know of no other matters to be
presented for approval by shareholders at the Special Meeting. If any
other matters should properly come before the Special Meeting, and you vote the
enclosed BLUE
proxy card, it is intended that the persons named on the enclosed BLUE proxy card
will vote those proxies on such other matters in accordance with such persons’
best judgment with respect to such matters.
VOTING
RULES AND PROCEDURES
The
shares of Common Stock are the only class of capital stock of the Corporation
entitled to vote to and to authorize the Proposals. Every holder of
Common Stock on the Record Date is entitled to one vote for each share of Common
Stock held.
Only
holders of record as of the close of business on the Record Date will be
entitled to vote for the Proposals. If you were a shareholder of
record on the Record Date, you will retain your voting rights with respect to
voting on the Proposals even if you sell or have sold your Common Stock after
the Record Date. Accordingly, it is important that you
vote the shares you held on the Record Date, or grant a proxy to vote such
shares on the BLUE Proxy card, even if you sell or have already sold your
shares.
The
record date for determining shareholders entitled to vote and authorize the
Proposals is January 15, 2010. Shareholders of record
at the close of business on the Record Date will be entitled to one vote to vote
for each Proposal for each share of Common Stock held by them on the Record
Date. Based on information supplied by the Corporation, there were
23,096,119 shares
of Common Stock issued and outstanding as of the Record Date. If you
hold your shares in “Street Name,” please see the “Important Instructions For
‘Street Name’ Shareholders” Section below.
The
Share Acquisition proposal requires the First Majority Approval and the Second
Majority Approval as described above. The proposal to adjourn the
Special Meeting requires the affirmative vote of a majority of the voting shares
present in person or by proxy and entitled to vote. For more
information on which shares of Common Stock are eligible to vote for the First
Majority Approval and the Second Majority Approval, please see the “VOTING
ELIGIBILITY” Section below.
Your
execution of the BLUE
proxy card will not affect your right to attend the Special Meeting and vote in
person. Any proxy given by you may be revoked at any time prior to
the Special Meeting by delivering a written notice of revocation, or a later
dated proxy for the Special Meeting, to the Acquiring Person at the above
address, or to the Secretary of Agilysys at its principal executive offices, or
by voting in person at the Special Meeting. If the BLUE proxy card is your latest
proxy submission and no direction is given by you on such card, it will be
deemed to be a direction to vote “FOR” the
Proposals. REMEMBER, ONLY YOUR LATEST DATED PROXY FOR THE SPECIAL
MEETING WILL COUNT. YOUR VOTE IS IMPORTANT -- PLEASE ACT
TODAY.
Any
abstention from voting on a proxy that has not been revoked will be considered
present for the purpose of determining whether a quorum exists and will count as
a vote AGAINST both the authorization of the Share Acquisition and the
adjournment of the Special Meeting.
VOTING
ELIGIBILITY
As
of the Record Date, there were 23,096,119 shares of Common Stock issued and
outstanding, all of which are eligible to be voted in determining whether the
Share Acquisition will be approved by the First Majority Approval required under
the Control Share Acquisition Statute.
The
number of shares of Common Stock eligible to be voted in determining whether the
Share Acquisition has been approved by the Second Majority Approval under the
Control Share Acquisition Statute, consisting of the voting power of all the
outstanding shares of Common Stock as of the Record Date excluding the voting
power of Interested Shares, will be determined as of the time of the Special
Meeting in the manner described in this Proxy Statement. The categories of
Interested Shares that will not be eligible to be voted in determining the
Second Majority Approval are as follows:
|
1.
|
The
4,418,447 shares of Common Stock owned by us, which as of the Record Date,
represented 19.13% of the outstanding shares of Common
Stock. For purposes of the Second Majority Approval, such
shares are Interested Shares that are not eligible to be voted in
determining the Second Majority
Approval.
|
|
2.
|
Shares
of Common Stock owned by officers of Agilysys elected or appointed by the
Board or owned by any employee of Agilysys who is also a director of
Agilysys. Based on the proxy statement filed by Agilysys, as of the Record
Date, these individuals own, in the aggregate, 382,924 shares of Common
Stock, which are, for this purpose, Interested Shares and are not eligible
to be voted in determining the Second Majority
Approval.
|
|
3.
|
Shares
of Common Stock acquired by any person for valuable consideration during
the period beginning November 20, 2009, the date of the first public
disclosure by Agilysys of our proposed Share Acquisition, and ending on
the Record Date (such period being referred to herein as the “Restricted Period”), if
the aggregate consideration paid by such person for such shares exceeds
$250,000.
|
|
4.
|
Shares
of Common Stock owned by any person that transfers such shares for
valuable consideration after the Record Date, if the shares are
accompanied by the voting power of such transferred shares in the form of
a blank proxy, an agreement to vote as instructed by the transferee, or
otherwise.
|
For
purposes of the foregoing, the term “owned” means shares of Common Stock as to
which a person may exercise or direct the exercise of the voting power entitled
to vote in the election of directors. Shareholders who acquire, prior to the
commencement of the Restricted Period, shares of Common Stock that are not
Interested Shares and who acquire additional shares of Common Stock
during the Restricted Period for an aggregate consideration in excess of
$250,000 will be entitled to have their shares of Common Stock acquired prior to
the Restricted Period voted in determining whether the Second Majority Approval
has been obtained if they provide an appropriate certification of eligibility,
as described below under the “INTERESTED SHARES” Section.
All
shares of Common Stock acquired during the Restricted Period for an aggregate
purchase price of more than $250,000 will be considered Interested Shares,
including the first $250,000 of such shares. Shares of Common Stock
that are considered Interested Shares because they were purchased during the
Restricted Period as part of an aggregate purchase of more than $250,000 of
Common Stock will remain Interested Shares if owned by such purchaser as of the
Record Date even if the purchaser of such shares at some point during that
period disposes of some of such shares. For example, in the case of a person who
buys $1,000,000 worth of Common Stock during the Restricted Period, then sells
$800,000 worth of Common Stock during that period, all of such person’s Common
Stock acquired during the Restricted Period and still owned as of the Record
Date are Interested Shares.
The
Control Share Acquisition Statute requires that Common Stock acquired by persons
acting in concert be aggregated for the purpose of calculating the $250,000
threshold for determination of Interested Share status. In the event
that shares of Common Stock are entitled to be voted by more than one person,
all of such shares will be considered to be owned by each such person for
purposes of determining whether such shares are Interested Shares.
Each
investment advisor or other person who holds Common Stock for different
beneficial owners, based on its own circumstances and arrangements with its
clients, will need to make its own determination as to whether any of the shares
of Common Stock held in its accounts for the benefit of such beneficial owners
are Interested Shares.
Under
the Control Share Acquisition Statute, Common Stock owned by directors who are
not employees of Agilysys, and who do not fall into any other category described
in subparagraph (1), (2), (3) or (4) above, would not be Interested
Shares. Agilysys’ non-employee directors, excluding R. Andrew Cueva,
an employee of MAK Capital One LLC, owned an aggregate of 254,418 shares of
Common Stock as of the Record Date and, to the best of our knowledge, none of
these shares of Common Stock are Interested Shares.
Based
on the proxy statement filed by Agilysys, all shares of Common Stock as to which
a signed certification of eligibility, as described below under the “INTERESTED
SHARES” Section, has been provided on the proxy card or ballot (provided at the
Special Meeting for voting in person) indicating that such shares are not
Interested Shares will be presumed by Agilysys to be eligible to be voted in
determining whether the Share Acquisition is approved by the Second Majority
Approval. This presumption may be rebutted if a shareholder signing the proxy
card or ballot provides subsequent information indicating that some or all of
the Common Stock represented by the original proxy card or ballot are, or have
become, Interested Shares or a successful challenge is made to such
certification on the basis of information available to the challenging
party. Common Stock subject to a proxy card or ballot without a
certification of eligibility completed by the shareholder shall be presumed to
be Interested Shares and not eligible to be voted in determining whether the
Share Acquisition has been approved by the Second Majority
Approval.
SPECIAL
INSTRUCTIONS
If
you were a record holder of shares of the Common Stock as of the close of
business on the Record Date, you may elect to vote for, against or abstain with
respect to each Proposal by marking the “FOR,” “AGAINST” or “ABSTAIN” box, as
applicable, underneath each such Proposal on the accompanying BLUE proxy card and signing,
dating and returning it promptly in the enclosed postage-paid envelope or by
mailing the proxy card to MacKenzie Partners, Inc. at the address set forth
below under “HOW TO DELIVER YOUR PROXY.” Remember to complete the
certification on the back side of the BLUE proxy card before mailing
it.
IMPORTANT:
IF YOU HOLD SHARES THROUGH A BROKER OR BANK, ONLY IT CAN EXECUTE A BLUE PROXY
CARD ON YOUR BEHALF. PLEASE CONTACT THE PERSON RESPONSIBLE FOR YOUR
ACCOUNT AND INSTRUCT THEM TO EXECUTE A BLUE PROXY CARD ON YOUR BEHALF
TODAY.
If
the record holder signing, dating and returning the BLUE proxy card has failed to
check a box marked “FOR,” “AGAINST” or “ABSTAIN” for any of the Proposals, such
record holder will be deemed to have voted for each such Proposal.
INTERESTED
SHARES
In order to help determine whether the
Second Majority Approval has been obtained, it is very important that all
shareholders returning a proxy card complete the certification regarding whether
such shares being voted are Interested Shares or not. If no box is checked indicating
whether the shares represented by your proxy card are “Interested Shares,” the
shares represented by your proxy card will be deemed to be “Interested Shares”
and therefore ineligible to vote in connection with the Second Majority
Approval. The certification and the instructions for completing it are on
the reverse side of the BLUE proxy
card. Please see the proxy card for further information.
HOW
TO DELIVER YOUR PROXY
If
you are a registered shareholder, please promptly sign, date and mail the
enclosed BLUE proxy card
in the enclosed postage-paid envelope to the following address:
MacKenzie
Partners, Inc.
105
Madison Avenue,
New
York, NY 10016
Phone
800-322-2885
Remember to complete the
certification on the back side of the BLUE proxy card before mailing
it.
Please
call MacKenzie Partners, Inc. at 800-322-2885 if you require assistance voting
your shares or have any questions.
If
you hold your shares through a bank, broker, custodian or other recordholder,
please promptly sign, date and mail in the post-paid envelope provided in the
enclosed BLUE proxy card
(or voting instruction form) you received from the brokerage firm, bank nominee
or other institutions in whose name your shares are held.
IMPORTANT
INSTRUCTIONS FOR “STREET NAME” SHAREHOLDERS
If
any of your shares of Common Stock are held in the name of a brokerage firm,
bank nominee or other institution, only that institution can sign a BLUE proxy card with respect
to your shares and only after receiving your specific instructions. Accordingly,
please promptly sign, date and mail in the postage-paid envelope provided the
enclosed BLUE proxy card
(or voting instruction form) you received from the brokerage firm, bank nominee
or other institutions in whose name your shares are held. Please
check the voting instruction form used by that broker, bank or other institution
to see if it also offers telephone or Internet voting. Please do so
for each
account you maintain to ensure that all of your shares are voted.
To
ensure that your shares are voted in accordance with your wishes, you should
also contact the person responsible for your account and give instructions for a
BLUE proxy card to be
issued representing your shares of Common Stock.
A
broker non-vote will be considered present for the purpose of determining
whether a quorum exists. A broker non-vote occurs when a nominee
holding shares of a beneficial owner, or in “Street Name,” does not vote on a
particular matter because the nominee does not have discretionary voting power
with respect to that matter. When brokers do not receive voting
instructions from a customer, they are permitted to exercise discretionary
voting authority with respect to the customer’s shares on “routine” matters
being voted on at a meeting. If there are non-routine matters also being voted
upon at the same meeting, the broker is not permitted to exercise discretionary
voting authority on such matters, and the shares voted by the broker in its
discretion on routine matters are considered broker non-votes with respect to
the non-routine matters. The authorization of the Share Acquisition proposal is
a non-routine matter and, therefore, broker non-votes will count as votes
AGAINST the proposal. The adjournment proposal is considered a
routine matter and, therefore, broker non-votes will not affect that
vote.
CERTAIN
ADDITIONAL INFORMATION CONCERNING THIS SOLICITATION
None
of the participants in this solicitation or any of their associates has a
substantial interest, direct or indirect, by security holdings or otherwise,
that will be acted upon with respect to this solicitation at the Special Meeting
other than the approval of the Proposals.
To
the knowledge of the participants in this solicitation, there has been no change
in control of Agilysys since the beginning of Agilysys’ last fiscal
year.
FACTS
ABOUT OUR SOLICITATION OF PROXIES
We
may solicit proxies by mail, advertisement, telephone, facsimile, e-mail, and in
person. Solicitations may be made by our agents and/or their employees, none of
whom will receive any additional compensation for such solicitations. We will
request banks, brokerage houses and other custodians, nominees and fiduciaries
to forward all of our solicitation materials to the beneficial owners of the
shares of Common Stock which such individuals or entities hold of
record. We will reimburse these record holders for customary clerical
and mailing expenses incurred by them in forwarding these materials to the
beneficial owners of the Common Stock.
We
expect the total cost of this solicitation to be approximately
$200,000. MacKenzie Partners, Inc. has been retained for solicitation
and advisory services in connection with the solicitation of proxies for a fee
not to exceed $75,000, and we will reimburse MacKenzie Partners, Inc. for
certain reasonable out-of-pocket expenses. We have agreed to
indemnify MacKenzie Partners, Inc. against certain liabilities and expenses
relating to this proxy solicitation.
MAK
Capital Fund and Paloma will pay all costs associated with our solicitation of
proxies.
SECURITY
OWNERSHIP
Information
about the security ownership of certain beneficial owners of Common Stock is set
forth on Schedule
1 attached hereto and incorporated herein by reference.
SHAREHOLDER
PROPOSALS
The
below was copied from the definitive proxy statement filed by the Corporation
with the Securities and Exchange Commission on June 24, 2009 in connection with
the Corporation’s 2009 Annual Meeting of Shareholders, and provides information
regarding the submission of shareholder proposals. While we believe
this information to be accurate, you should contact the Corporation or review
publicly filed reports for free on www.sec.gov regarding the below.
“Any
shareholder that intends to present a proposal at the 2010 Annual Meeting of
Shareholders must ensure the proposal is received by the Company’s Secretary at
the Company’s principal executive offices no later than February 26, 2010, for
inclusion in the Proxy Statement and form of Proxy relating to that Annual
Meeting. Each proposal submitted should be accompanied by the name and address
of the shareholder submitting the proposal and the number of Common Shares
owned. If the proponent is not a shareholder of record, proof of beneficial
ownership should also be submitted. All proposals must be a proper subject for
action and comply with the proxy rules of the SEC.
The
Company may use its discretion in voting Proxies with respect to shareholder
proposals not included in the Proxy Statement for the fiscal year ended March
31, 2010, unless the Company receives notice of such proposals prior to May 12,
2010.”
PLEASE
INDICATE YOUR SUPPORT OF OUR TWO PROPOSALS BY PROMPTLY SIGNING, DATING AND
MAILING THE ENCLOSED BLUE PROXY CARD TO MACKENZIE PARTNERS, INC. IN THE POSTAGE
PAID ENVELOPE PROVIDED.
Please
call MacKenzie Partners, Inc. at 800-322-2885 if you have any questions or need
assistance.
No
postage is necessary if you mail the proxy card from within the United
States.
MAK
Capital Fund LP,
Paloma
International L.P.,
Sunrise
Partners Limited Partnership,
MAK
Capital One LLC,
MAK
GP LLC,
Trust
Asset Management LLP,
Michael
A. Kaufman,
S.
Donald Sussman, and
R.
Andrew Cueva
January
22, 2010
11
EXHIBIT
I
ACQUIRING
PERSON STATEMENT
12
ACQUIRING
PERSON STATEMENT
PURSUANT
TO SECTION 1701.831 OF THE OHIO REVISED CODE
DELIVERED
TO
AGILYSYS,
INC.
(Name
of Issuing Public Corporation)
28925
FOUNTAIN PARKWAY, SOLON, OHIO 44139
(Address
of Principal Executive Offices)
ITEM
1. IDENTITY OF ACQUIRING PERSON.
This
Acquiring Person Statement is being delivered to Agilysys, Inc., an Ohio
corporation (the “Corporation”), at its
principal executive offices, which are located at 28925 Fountain Parkway, Solon,
Ohio 44139, by MAK Capital Fund LP, a Bermuda limited partnership (the “MAK Capital Fund”),
and Paloma International L.P., a Delaware limited partnership (“Paloma” and, together
with MAK Capital Fund, the “Acquiring
Person”).
ITEM
2. DELIVERY OF ACQUIRING PERSON STATEMENT.
This
Acquiring Person Statement is being delivered pursuant to Section 1701.831 of
the Ohio Revised Code. The Acquiring Person requests that the
Corporation hold the special shareholders meeting in connection with this
Acquiring Person Statement no sooner than thirty (30) days after the
Corporation’s receipt of this Acquiring Person Statement.
ITEM
3. OWNERSHIP OF SHARES BY ACQUIRING PERSON.
As
of the date hereof, the Acquiring Person directly and indirectly collectively
owns 4,418,447 shares of the Corporation’s common stock, without par value
(“Shares”)
representing approximately 19.18% of the total issued and outstanding Shares
(based upon the 23,031,119 Shares stated by the Corporation in the Corporation’s
Quarterly Report on Form 10-Q for the period ended September 30, 2009 to be
issued and outstanding as of October 31, 2009). Of the 4,418,447
Shares owned by the Acquiring Person: (a) 2,646,161 Shares are owned by MAK
Capital Fund, representing approximately 11.49% of the total issued and
outstanding Shares, and (b) 1,772,286 Shares are owned by Paloma through its
subsidiary, Sunrise Partners Limited Partnership, a Delaware limited partnership
(“Sunrise”),
representing approximately 7.70% of the total issued and outstanding
Shares.
In
addition to the beneficial ownership described above (i) MAK GP LLC (“MAK GP”), the general
partner of MAK Capital Fund, may be deemed to beneficially own the Shares held
by MAK Capital Fund, (ii) Trust Asset Management LLP, the general partner with
investment discretion over the securities held by Paloma and Sunrise (“TAM”), may be deemed
to beneficially own the Shares held by Paloma through Sunrise, (iii) S. Donald
Sussman, the controlling person of Paloma, Sunrise and TAM, may be deemed to
beneficially own the Shares held by Paloma through Sunrise, (iv) MAK Capital One
LLC, the investment manager of MAK Capital
13
Fund
and Paloma with respect to the Shares, may be deemed to have beneficial
ownership of the Shares held by each of them, and (v) Michael A. Kaufman, as the
controlling person of MAK Capital One LLC, MAK GP and MAK Capital Fund, may be
deemed to be the beneficial owner of the shares of Common Stock held by MAK
Capital Fund and Paloma. R. Andrew Cueva, an employee of MAK Capital
One LLC and a director of the Corporation, does not own directly or indirectly,
beneficially or of record, any securities of Agilysys. Each of
MAK GP, TAM, MAK Capital One LLC, Mr. Kaufman, Mr. Sussman and Mr. Cueva
disclaims beneficial ownership of the Shares held by MAK Capital Fund and Paloma
except to the extent of his or its pecuniary interest therein.
ITEM
4. RANGE OF VOTING POWER.
Collectively,
the Acquiring Person proposes to acquire an additional number of Shares that,
when added to the Acquiring Person’s current Share ownership, would equal
one-fifth or more (but less than one-third) of the Corporation’s voting power in
the election of directors, as described in Section 1701.01(Z)(1)(a) of the Ohio
Revised Code (the “Additional
Shares”). The Acquiring Person does not intend, either alone
or in concert with any other person, to exercise control of the Corporation by
proposing to acquire that number of Shares described in this Acquiring Person
Statement.
ITEM
5. TERMS OF PROPOSED CONTROL SHARE ACQUISITION.
The
Acquiring Person proposes to acquire the Additional Shares in one or more
transactions to occur during the 360-day period following the date the
Corporation’s shareholders authorize the proposed acquisition. The
Acquiring Person proposes to acquire the Additional Shares (i) in one or more
purchases in the open market, (ii) in one or more block trades, (iii) through an
intermediary, (iv) pursuant to a tender offer, and/or (v) by any other legally
permitted method.
ITEM
6. REPRESENTATIONS OF LEGALITY; FINANCIAL CAPACITY.
The
Acquiring Person hereby represents that the control share acquisition proposed
herein, if consummated, will not be contrary to law. This
representation is based on the facts that the Acquiring Person is delivering
this Acquiring Person Statement in accordance with Section 1701.831 of the Ohio
Revised Code, and the Acquiring Person intends to make the proposed acquisition
only if it is duly authorized by the shareholders of the Corporation at the
annual or a special meeting of the Corporation’s shareholders. The
Acquiring Person hereby represents that it has the financial capacity to
purchase the Additional Shares contemplated by this Acquiring Person
Statement. This representation is based on an assumed purchase price
of $8.13 per Share, the closing price of the Corporation’s Shares on November
19, 2009.
14
IN
WITNESS WHEREOF, the undersigned has executed this Acquiring Person Statement as
of the 19th day of November, 2009.
MAK
CAPITAL FUND LP
By:
MAK GP LLC, general partner
By: /s/ Michael A.
Kaufman
Michael A.
Kaufman,
Managing
Member
PALOMA
INTERNATIONAL L.P.
By:
Paloma Partners Company L.L.C.,
general partner
By: /s/ Michael J.
Berner
Michael J.
Berner,
Vice
President
[Signature
Page to Acquiring Person Statement]
15
EXHIBIT
II
SECTIONS
1701.01 AND 1701.831 OF THE OHIO REVISED CODE
1701.01
General corporation law definitions.
As
used in sections 1701.01 to 1701.98 of the Revised Code, unless the context
otherwise requires:
(A)
“Corporation” or “domestic corporation” means a corporation for profit formed
under the laws of this state.
(B)
“Foreign corporation” means a corporation for profit formed under the laws of
another state, and “foreign entity” means an entity formed under the laws of
another state.
(C)
“State” means the United States; any state, territory, insular possession, or
other political subdivision of the United States, including the District of
Columbia; any foreign country or nation; and any province, territory, or other
political subdivision of such foreign country or nation.
(D)
“Articles” includes original articles of incorporation, certificates of
reorganization, amended articles, and amendments to any of these, and, in the
case of a corporation created before September 1, 1851, the special charter and
any amendments to it made by special act of the general assembly or pursuant to
general law.
(E)
“Incorporator” means a person who signed the original articles of
incorporation.
(F)
“Shareholder” means a person whose name appears on the books of the corporation
as the owner of shares of the corporation. Unless the articles, the regulations
adopted by the shareholders, the regulations adopted by the directors pursuant
to division (A)(1) of section 1701.10 of the Revised Code, or the contract of
subscription otherwise provides, “shareholder” includes a subscriber to shares,
whether the subscription is received by the incorporators or pursuant to
authorization by the directors, and such shares shall be deemed to be
outstanding shares.
(G)
“Person” includes, without limitation, a natural person, a corporation, whether
nonprofit or for profit, a partnership, a limited liability company, an
unincorporated society or association, and two or more persons having a joint or
common interest.
(H)
The location of the “principal office” of a corporation is the place named as
the principal office in its articles.
(I)
The “express terms” of shares of a class are the statements expressed in the
articles with respect to such shares.
(J)
Shares of a class are “junior” to shares of another class when any of their
dividend or distribution rights are subordinate to, or dependent or contingent
upon, any right of, or dividend on, or distribution to, shares of such other
class.
(K)
“Treasury shares” means shares belonging to the corporation and not retired that
have been either issued and thereafter acquired by the corporation or paid as a
dividend or distribution in shares of the corporation on treasury shares of the
same class; such shares shall be deemed to be issued, but they shall not be
considered as an asset or a liability of the corporation, or as outstanding for
dividend or distribution, quorum, voting, or other purposes, except, when
authorized by the directors, for dividends or distributions in authorized but
unissued shares of the corporation of the same class.
(L)
To “retire” a share means to restore it to the status of an authorized but
unissued share.
(M)
“Redemption price of shares” means the amount required by the articles to be
paid on redemption of shares.
(N)
“Liquidation price” means the amount or portion of assets required by the
articles to be distributed to the holders of shares of any class upon
dissolution, liquidation, merger, or consolidation of the corporation, or upon
sale of all or substantially all of its assets.
(O)
“Insolvent” means that the corporation is unable to pay its obligations as they
become due in the usual course of its affairs.
(P)
“Parent corporation” or “parent” means a domestic or foreign corporation that
owns and holds of record shares of another corporation, domestic or foreign,
entitling the holder of the shares at the time to exercise a majority of the
voting power in the election of the directors of the other corporation without
regard to voting power that may thereafter exist upon a default, failure, or
other contingency; “subsidiary corporation” or “subsidiary” means a domestic or
foreign corporation of which another corporation, domestic or foreign, is the
parent.
(Q)
“Combination” means a transaction, other than a merger or consolidation, wherein
either of the following applies:
(1)
Voting shares of a domestic corporation are issued or transferred in
consideration in whole or in part for the transfer to itself or to one or more
of its subsidiaries, domestic or foreign, of all or substantially all the assets
of one or more corporations, domestic or foreign, with or without good will or
the assumption of liabilities;
(2)
Voting shares of a foreign parent corporation are issued or transferred in
consideration in whole or in part for the transfer of such assets to one or more
of its domestic subsidiaries.
“Transferee
corporation” in a combination means the corporation, domestic or foreign, to
which the assets are transferred, and “transferor corporation” in a combination
means the corporation, domestic or foreign, transferring such assets and to
which, or to the shareholders of which, the voting shares of the domestic or
foreign corporation are issued or transferred.
(R)
“Majority share acquisition” means the acquisition of shares of a corporation,
domestic or foreign, entitling the holder of the shares to exercise a majority
of the voting power in the election of directors of such corporation without
regard to voting power that may thereafter exist upon a default, failure, or
other contingency, by either of the following:
(1)
A domestic corporation in consideration in whole or in part, for the issuance or
transfer of its voting shares;
(2)
A domestic or foreign subsidiary in consideration in whole or in part for the
issuance or transfer of voting shares of its domestic parent.
(S)
“Acquiring corporation” in a combination means the domestic corporation whose
voting shares are issued or transferred by it or its subsidiary or subsidiaries
to the transferor corporation or corporations or the shareholders of the
transferor corporation or corporations; and “acquiring corporation” in a
majority share acquisition means the domestic corporation whose voting shares
are issued or transferred by it or its subsidiary in consideration for shares of
a domestic or foreign corporation entitling the holder of the shares to exercise
a majority of the voting power in the election of directors of such
corporation.
(T)
When used in connection with a combination or a majority share acquisition,
“voting shares” means shares of a corporation, domestic or foreign, entitling
the holder of the shares to vote at the time in the election of directors of
such corporation without regard to voting power which may thereafter exist upon
a default, failure, or other contingency.
(U)
“An emergency” exists when the governor, or any other person lawfully exercising
the power and discharging the duties of the office of governor, proclaims that
an attack on the United States or any nuclear, atomic, or other disaster has
caused an emergency for corporations, and such an emergency shall continue until
terminated by proclamation of the governor or any other person lawfully
exercising the powers and discharging the duties of the office of
governor.
(V)
“Constituent corporation” means an existing corporation merging into or into
which is being merged one or more other entities in a merger or an existing
corporation being consolidated with one or more other entities into a new entity
in a consolidation, whether any of the entities is domestic or foreign, and
“constituent entity” means any entity merging into or into which is being merged
one or more other entities in a merger, or an existing entity being consolidated
with one or more other entities into a new entity in a consolidation, whether
any of the entities is domestic or foreign.
(W)
“Surviving corporation” means the constituent domestic or foreign corporation
that is specified as the corporation into which one or more other constituent
entities are to be or have been merged, and “surviving entity” means the
constituent domestic or foreign entity that is specified as the entity into
which one or more other constituent entities are to be or have been
merged.
(X)
“Close corporation agreement” means an agreement that satisfies the three
requirements of division (A) of section 1701.591 of the Revised
Code.
(Y)
“Issuing public corporation” means a domestic corporation with fifty or more
shareholders that has its principal place of business, its principal executive
offices, assets having substantial value, or a substantial percentage of its
assets within this state, and as to which no valid close corporation agreement
exists under division (H) of section 1701.591 of the Revised Code.
(Z)(1)
“Control share acquisition” means the acquisition, directly or indirectly, by
any person of shares of an issuing public corporation that, when added to all
other shares of the issuing public corporation in respect of which the person
may exercise or direct the exercise of voting power as provided in this
division, would entitle the person, immediately after the acquisition, directly
or indirectly, alone or with others, to exercise or direct the exercise of the
voting power of the issuing public corporation in the election of directors
within any of the following ranges of such voting power:
(a)
One-fifth or more but less than one-third of such voting power;
(b)
One-third or more but less than a majority of such voting power;
(c)
A majority or more of such voting power.
A
bank, broker, nominee, trustee, or other person that acquires shares in the
ordinary course of business for the benefit of others in good faith and not for
the purpose of circumventing section 1701.831 of the Revised Code shall,
however, be deemed to have voting power only of shares in respect of which such
person would be able, without further instructions from others, to exercise or
direct the exercise of votes on a proposed control share acquisition at a
meeting of shareholders called under section 1701.831 of the Revised
Code.
(2)
The acquisition by any person of any shares of an issuing public corporation
does not constitute a control share acquisition for the purpose of section
1701.831 of the Revised Code if the acquisition was or is consummated in,
results from, or is the consequence of any of the following
circumstances:
(a)
Prior to November 19, 1982;
(b)
Pursuant to a contract existing prior to November 19, 1982;
(c)
By bequest or inheritance, by operation of law upon the death of an individual,
or by any other transfer without valuable consideration, including a gift, that
is made in good faith and not for the purpose of circumventing section 1701.831
of the Revised Code;
(d)
Pursuant to the satisfaction of a pledge or other security interest created in
good faith and not for the purpose of circumventing section 1701.831 of the
Revised Code;
(e)
Pursuant to a merger or consolidation adopted, or a combination or majority
share acquisition authorized, by vote of the shareholders of the issuing public
corporation in compliance with section 1701.78, 1701.781, 1701.79, 1701.791, or
1701.83 of the Revised Code, or pursuant to a merger adopted in compliance with
section 1701.802 of the Revised Code;
(f)
The person’s being entitled, immediately thereafter, to exercise or direct the
exercise of voting power of the issuing public corporation in the election of
directors within the same range theretofore attained by that person either in
compliance with the provisions of section 1701.831 of the Revised Code or as a
result solely of the issuing public corporation’s purchase of shares issued by
it.
The
acquisition by any person of shares of an issuing public corporation in a manner
described under division (Z)(2) of this section shall be deemed a control share
acquisition authorized pursuant to section 1701.831 of the Revised Code within
the range of voting power under division (Z)(1)(a), (b), or (c) of this section
that such person is entitled to exercise after the acquisition, provided, in the
case of an acquisition in a manner described under division (Z)(2)(c) or (d) of
this section, the transferor of shares to such person had previously obtained
any authorization of shareholders required under section 1701.831 of the Revised
Code in connection with the transferor’s acquisition of shares of the issuing
public corporation.
(3)
The acquisition of shares of an issuing public corporation in good faith and not
for the purpose of circumventing section 1701.831 of the Revised Code from any
person whose control share acquisition previously had been authorized by
shareholders in compliance with section 1701.831 of the Revised Code, or from
any person whose previous acquisition of shares of an issuing public corporation
would have constituted a control share acquisition but for division (Z)(2) or
(3) of this section, does not constitute a control share acquisition for the
purpose of section 1701.831 of the Revised Code unless such acquisition entitles
the person making the acquisition, directly or indirectly, alone or with others,
to exercise or direct the exercise of voting power of the corporation in the
election of directors in excess of the range of voting power authorized pursuant
to section 1701.831 of the Revised Code, or deemed to be so authorized under
division (Z)(2) of this section.
(AA)
“Acquiring person” means any person who has delivered an acquiring person
statement to an issuing public corporation pursuant to section 1701.831 of the
Revised Code.
(BB)
“Acquiring person statement” means a written statement that complies with
division (B) of section 1701.831 of the Revised Code.
(CC)(1)
“Interested shares” means the shares of an issuing public corporation in respect
of which any of the following persons may exercise or direct the exercise of the
voting power of the corporation in the election of directors:
(a)
An acquiring person;
(b)
Any officer of the issuing public corporation elected or appointed by the
directors of the issuing public corporation;
(c)
Any employee of the issuing public corporation who is also a director of such
corporation;
(d)
Any person that acquires such shares for valuable consideration during the
period beginning with the date of the first public disclosure of a proposal for,
or expression of interest in, a control share acquisition of the issuing public
corporation; a transaction pursuant to section 1701.76, 1701.78, 1701.781,
1701.79, 1701.791, 1701.83, or 1701.86 of the Revised Code that involves the
issuing public corporation or its assets; or any action that would directly or
indirectly result in a change in control of the issuing public corporation or
its assets, and ending on the record date established by the directors pursuant
to section 1701.45 and division (D) of section 1701.831 of the Revised Code, if
either of the following applies:
(i)
The aggregate consideration paid or given by the person who acquired the shares,
and any other persons acting in concert with the person, for all such shares
exceeds two hundred fifty thousand dollars;
(ii)
The number of shares acquired by the person who acquired the shares, and any
other persons acting in concert with the person, exceeds one-half of one per
cent of the outstanding shares of the corporation entitled to vote in the
election of directors.
(e)
Any person that transfers such shares for valuable consideration after the
record date described in division (CC)(1)(d) of this section as to shares so
transferred, if accompanied by the voting power in the form of a blank proxy, an
agreement to vote as instructed by the transferee, or otherwise.
(2)
If any part of this division is held to be illegal or invalid in application,
the illegality or invalidity does not affect any legal and valid application
thereof or any other provision or application of this division or section
1701.831 of the Revised Code that can be given effect without the invalid or
illegal provision, and the parts and applications of this division are
severable.
(DD)
“Certificated security” and “uncertificated security” have the same meanings as
in section 1308.01 of the Revised Code.
(EE)
“Entity” means any of the following:
(1)
A for profit corporation existing under the laws of this state or any other
state;
(2)
Any of the following organizations existing under the laws of this state, the
United States, or any other state:
(a)
A business trust or association;
(b)
A real estate investment trust;
(c)
A common law trust;
(d)
An unincorporated business or for profit organization, including a general or
limited partnership;
(e)
A limited liability company;
(f)
A nonprofit corporation.
Effective
Date: 09-16-2003; 10-12-2006
1701.831
Control share acquisitions procedures.
(A)
Unless the articles , the regulations adopted by the shareholders, or the
regulations adopted by the directors pursuant to division (A)(1) of section
1701.10 of the Revised Code of the issuing public corporation provide that this
section does not apply to control share acquisitions of shares of such
corporation, any control share acquisition of an issuing public corporation
shall be made only with the prior authorization of the shareholders of such
corporation in accordance with this section.
(B)
Any person who proposes to make a control share acquisition shall deliver an
acquiring person statement to the issuing public corporation at the issuing
public corporation’s principal executive offices. Such acquiring person
statement shall set forth all of the following:
(1)
The identity of the acquiring person;
(2)
A statement that the acquiring person statement is given pursuant to this
section;
(3)
The number of shares of the issuing public corporation owned, directly or
indirectly, by the acquiring person;
(4)
The range of voting power, described in division (Z)(1)(a), (b), or (c) of
section 1701.01 of the Revised Code, under which the proposed control share
acquisition would, if consummated, fall;
(5)
A description in reasonable detail of the terms of the proposed control share
acquisition;
(6)
Representations of the acquiring person, together with a statement in reasonable
detail of the facts upon which they are based, that the proposed control share
acquisition, if consummated, will not be contrary to law, and that the acquiring
person has the financial capacity to make the proposed control share
acquisition.
(C)(1)
Within ten days after receipt of an acquiring person statement that complies
with division (B) of this section, the directors of the issuing public
corporation shall call a special meeting of shareholders of the issuing public
corporation for the purpose of voting on the proposed control share acquisition.
Subject to division (C)(2) of this section, unless the acquiring person and the
issuing public corporation agree in writing to another date, such special
meeting of shareholders shall be held within fifty days after receipt by the
issuing public corporation of the acquiring person statement. If the acquiring
person so requests in writing at the time of delivery of the acquiring person
statement, such special meetings shall be held no sooner than thirty days after
receipt by the issuing public corporation of the acquiring person statement.
Subject to division (C)(2) of this section, such special meeting of shareholders
shall be held no later than any other special meeting of shareholders that is
called, after receipt by the issuing public corporation of the acquiring person
statement, in compliance with this section or section 1701.76, 1701.78,
1701.781, 1701.79, 1701.791, 1701.801, or 1701.83 of the Revised
Code.
(2)
If, in connection with a proposed control share acquisition, the acquiring
person changes the percentage of the class of shares being sought, the
consideration offered, or the security dealer’s soliciting fee; extends the
expiration date of a tender offer for the shares being sought; or otherwise
changes the terms of the proposed control share acquisition, then the directors
of the issuing public corporation may reschedule the special meeting of
shareholders required by division (C)(1) of this section. If the proposed
control share acquisition is to be made pursuant to a tender offer, then the
meeting may be rescheduled to a date that is not later than the expiration date
of the offer. If the proposed control share acquisition is to be made other than
pursuant to a tender offer, the meeting may be rescheduled to a date that is not
later than ten business days after notice of the change is first given to the
shareholders.
(D)
Notice of the special meeting of shareholders shall be given as promptly as
reasonably practicable by the issuing public corporation to all shareholders of
record as of the record date set for such meeting, whether or not entitled to
vote at the meeting. The notice shall include or be accompanied by both of the
following:
(1)
A copy of the acquiring person statement delivered to the issuing public
corporation pursuant to this section;
(2)
A statement by the issuing public corporation, authorized by its directors, of
its position or recommendation, or that it is taking no position or making no
recommendation, with respect to the proposed control share
acquisition.
(E)
The acquiring person may make the proposed control share acquisition if both of
the following occur:
(1)
The shareholders of the issuing public corporation who hold shares as of the
record date of such corporation entitling them to vote in the election of
directors authorize the acquisition at the special meeting held for that purpose
at which a quorum is present by an affirmative vote of a majority of the voting
power of such corporation in the election of directors represented at the
meeting in person or by proxy, and a majority of the portion of the voting power
excluding the voting power of interested shares represented at the meeting in
person or by proxy. A quorum shall be deemed to be present at the special
meeting if at least a majority of the voting power of the issuing public
corporation in the election of directors is represented at the meeting in person
or by proxy.
(2)
The acquisition is consummated, in accordance with the terms so authorized, no
later than three hundred sixty days following shareholder authorization of the
control share acquisition.
(F)
Except as expressly provided in this section, nothing in this section shall be
construed to affect or impair any right, remedy, obligation, duty, power, or
authority of any acquiring person, any issuing public corporation, the directors
of any acquiring person or issuing public corporation, or any other person under
the laws of this or any other state or of the United States.
(G)
If any application of any provision of this section is for any reason held to be
illegal or invalid, the illegality or invalidity shall not affect any legal and
valid provision or application of this section, and the parts and applications
of this section are severable.
Effective
Date: 09-16-2003; 10-12-2006
SCHEDULE
1
SHARE
OWNERSHIP
The
following table, using the information provided in the preliminary proxy
statement filed by Agilysys, Inc. (“Agilysys” or the “Company”) with the Securities
and Exchange Commission on January 13, 2010, shows the number of shares of the
Company’s common stock beneficially owned as of January 1, 2010, unless
otherwise indicated, by: (i) each current director of Agilysys; (ii) all
individuals serving as the chief executive officer or chief financial officer
for Agilysys during the fiscal year ended March 31, 2009; (iii) the other three
most highly compensated executive officers of Agilysys at March 31, 2009 whose
total compensation exceeded $100,000 for the fiscal year ended March 31, 2009;
(iv) two additional individuals who would have been included in the foregoing
had they been serving as an executive officer of Agilysys at March 31, 2009; (v)
all directors and executive officers of Agilysys as a group; and (vi) each
person known to Agilysys to beneficially own more than 5% of the total
outstanding common stock of Agilysys; and the percent of the class so owned as
of January 1, 2010, unless otherwise indicated. While we believe this
information to be accurate, you should contact Agilysys or review publicly filed
reports for free on www.sec.gov.
Name
|
Number
of Common Shares
Beneficially
Owned
|
(1)
|
Percent
#
of Class
|
Directors
(Excluding Named Executive Officers)(2)
|
|
|
|
Thomas
A. Commes
|
94,927
|
(3)
|
.4
|
R.
Andrew Cueva
|
2,646,161
|
(4)
|
11.5
|
James
H. Dennedy
|
17,279
|
(5)
|
.1
|
Howard
V. Knicely
|
60,927
|
(6)
|
.3
|
Keith
M. Kolerus
|
95,434
|
(7)
|
.4
|
Robert
A. Lauer
|
72,427
|
(8)
|
.3
|
Robert
G. McCreary, III
|
99,211
|
(8)
|
.4
|
John
Mutch
|
11,713
|
(9)
|
.1
|
Named
Executive Officers(2)
|
|
|
|
Peter
J. Coleman
|
0
|
(10)
|
—
|
Paul
Civils, Jr.
|
54,546
|
(11)
|
.2
|
Martin
F. Ellis
|
482,161
|
(12)
|
2.1
|
Kenneth
J. Kossin, Jr.
|
66,933
|
(13)
|
.3
|
Arthur
Rhein
|
761,735
|
(14)
|
3.2
|
Richard
A. Sayers, II
|
51,427
|
(15)
|
.3
|
Tina
Stehle
|
41,100
|
(16)
|
.2
|
Curtis
Stout
|
49,549
|
(17)
|
.2
|
All
Directors and Executive Officers as a group
(19 persons)
|
4,707,496
|
(18)
|
19.5
|
Other
Persons
|
|
|
|
MAK
Capital One, LLC et al.
|
4,418,447
|
(19)
|
19.2
|
590
Madison Avenue, 9th
Floor
New
York, New York 10022
|
|
|
|
Ramius
LLC et al.
|
2,267,813
|
(20)
|
9.8
|
599
Lexington Avenue, 20th Floor
New
York, New York 10022
|
|
|
|
Dimensional
Fund Advisors L.P.
|
2,142,962
|
(21)
|
9.3
|
1299
Ocean Ave., 11th Floor
Santa
Monica, California 90401
|
|
|
|
Barclays
Global Investors, NA
|
1,740,748
|
(22)
|
7.5
|
45
Fremont Street
San Francisco,
California 94105
|
|
|
|
Goodwood,
Inc.
|
1,143,405
|
(23)
|
5.0
|
212
King Street West, Suite 201
Toronto,
ON, Canada M5H 1K5
|
|
|
|
(1)
|
Except
where otherwise indicated, beneficial ownership of the Common Shares held
by the persons listed in the table above comprises both sole voting and
dispositive power, or voting and dispositive power that is shared with the
spouse of such persons.
|
(2)
|
The
address of each Director and Named Executive Officer is 28925 Fountain
Parkway, Solon, Ohio 44139.
|
(3)
|
Includes
(i) 45,000 Common Shares which the Director had the right to acquire
within 60 days of January 1, 2010, through the exercise of stock
options granted to the Director under the 1999 and 2000 Stock Option Plans
for outside Directors, and the 2000 Stock Incentive Plan, and
(ii) 11,713 restricted Common Shares which the Director was granted
under the 2006 Stock Incentive Plan, as to which the Director has sole
voting power, but no dispositive power until such Common Shares
vest.
|
(4)
|
Comprised
entirely of Common Shares beneficially owned by MAK Capital Fund L.P.
and excludes Common Shares beneficially owned by Paloma International L.P.
Mr. Cueva may be deemed to share beneficial ownership in Common
Shares that MAK Capital Fund L.P. may be deemed to beneficially own.
However, Mr. Cueva disclaims beneficial ownership of the Common
Shares, except to the extent of his pecuniary interest in MAK Capital
Fund L.P.’s interest in such Common Shares. The inclusion in this
table of the Common Shares beneficially owned by MAK Capital
Fund L.P. shall not be deemed an admission by Mr. Cueva of
beneficial ownership of all of the reported Common Shares.
|
(5)
|
Comprised
entirely of 17,279 restricted Common Shares which the Director was granted
under the 2006 Stock Incentive Plan, as to which the Director has sole
voting power, but no dispositive power until such Common Shares
vest.
|
(6)
|
Includes
(i) 30,000 Common Shares which the Director had the right to acquire
within 60 days of January 1, 2010, through the exercise of stock
options granted to the Director under the 2000 Stock Option Plan for
outside Directors and the 2000 Stock Incentive Plan, and (ii) 11,713
restricted Common Shares which the Director was granted under the 2006
Stock Incentive Plan, as to which the Director has sole voting power, but
no dispositive power until such Common Shares vest.
|
(7)
|
Includes
(i) 47,500 Common Shares which the Director had the right to acquire
within 60 days of January 1, 2010, through the exercise of stock
options granted to the Director under the 1999 and 2000 Stock Option Plans
for outside Directors, and the 2000 Stock Incentive Plan, and
(ii) 11,713 restricted Common Shares which the Director was granted
under the 2006 Stock Incentive Plan, as to which the Director has sole
voting power, but no dispositive power until such Common Shares
vest.
|
(8)
|
Includes
(i) 37,500 Common Shares which the Director had the right to acquire
within 60 days of January 1, 2010, through the exercise of stock
options granted to the Director under the 2000 Stock Option Plan for
outside Directors and the 2000 Stock Incentive Plan, and (ii) 11,713
restricted Common Shares which the Director was granted under the 2006
Stock Incentive Plan, as to which the Director has sole voting power, but
no dispositive power until such Common Shares vest.
|
(9)
|
Comprised
entirely of 11,713 restricted Common Shares which the Director was granted
under the 2006 Stock Incentive Plan, as to which the Director has sole
voting power, but no dispositive power until such Common Shares
vest.
|
(10)
|
On
October 21, 2008, Mr. Coleman’s employment was
terminated.
|
(11)
|
Includes
(i) 3,997 Common Shares held in the Plan, (ii) 15,700
performance restricted Common Shares granted under the 2006 Stock
Incentive Plan, as to which Mr. Civils has sole voting power, but no
dispositive power until such Common Shares vest, and (iii) 33,333
Common Shares which Mr. Civils had the right to acquire within
60 days of January 1, 2010, through the exercise of stock
options granted to him under the 2006 Stock Incentive Plan.
|
(12)
|
Includes
(i) 252,000 Common Shares which Mr. Ellis had the right to
acquire within 60 days of January 1, 2010, through the exercise
of stock options granted to him under the 2000 Stock Incentive Plan,
(ii) 12,000 restricted Common Shares which Mr. Ellis was granted
under the 2006 Stock Incentive Plan, as to which Mr. Ellis has sole
voting power, but no dispositive power until such Common Shares vest, and
(iii) 117,600 performance restricted Common Shares granted under the
2006 Stock Incentive Plan, as to which Mr. Ellis has sole voting
power, but no dispositive power until such Common Shares
vest.
|
(13)
|
Includes
(i) 45,833 Common Shares which Mr. Kossin had the right to
acquire within 60 days of January 1, 2010, through the exercise
of stock options granted to him under the 2000 and 2006 Stock Incentive
Plans, and (ii) 21,100 performance restricted Common Shares granted
under the 2006 Stock Incentive Plan, as to which Mr. Kossin has sole
voting power, but no dispositive power until such Common Shares
vest.
|
(14)
|
On
October 20, 2008, Mr. Rhein retired from Agilysys. Includes
(i) 500,000 Common Shares that Mr. Rhein has the right to
acquire within 60 days of January 1, 2010, through the exercise
of stock options granted to him under the 2000 Stock Incentive Plan, and
(ii) 97,175 Common Shares that Mr. Rhein has pledged as security
pursuant to a brokerage margin account.
|
(15)
|
On
March 15, 2009, Mr. Sayer’s employment was terminated. All of
Mr. Sayer’s Common Shares are directly held by him.
|
(16)
|
Includes
(i) 20,000 Common Shares which Ms. Stehle had the right to
acquire within 60 days of January 1, 2010, through the exercise
of stock options granted to her under the 2000 and 2006 Stock Incentive
Plans, and (ii) 21,100 performance restricted Common Shares granted
under the 2006 Stock Incentive Plan, as to which Ms. Stehle has sole
voting power, but no dispositive power until such Common Shares
vest.
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(17)
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Includes
(i) 35,499 Common Shares which Mr. Stout had the right to
acquire within 60 days of January 1, 2010, through the exercise
of stock options granted to him under the 2000 and 2006 Stock Incentive
Plan, and (ii) 13,200 performance restricted Common Shares granted
under the 2006 Stock Incentive Plan, as to which Mr. Stout has sole
voting power, but no dispositive power until such Common Shares
vest.
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(18)
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The
number of Common Shares shown as beneficially owned by the Directors and
Executive Officers as a group includes (i) 1,110,831 Common Shares
which such persons have the right to acquire within 60 days of
January 1, 2010, through the exercise of stock options granted to
them under the 2000 Stock Incentive Plan, the 1995 Stock Option Plan for
outside Directors, the 1999 Stock Option Plan for outside Directors and
the 2000 Stock Option Plan for outside Directors, (ii) 239,000
performance restricted Common Shares granted under the 2006 Stock
Incentive Plan, as to which such persons have sole voting power, but no
dispositive power until such Common Shares vest, (iii) 124,557
restricted Common Shares granted under the 2006 Stock Incentive Plan, plus
any reinvested restricted Common Shares, as to which such persons have
sole voting power, but no dispositive power until such Common Shares vest,
(iv) 3,997 Common Shares held by Mr. Civils in the Plan, and
(v) 3,228,670 Common Shared directly held by such persons, which
includes 2,646,161 Common Shares beneficially owned by MAK Capital
Fund LP, in which Mr. Cueva may be deemed to share beneficial
ownership. See footnote (4) for information regarding
Mr. Cueva’s disclaimer of beneficial ownership of the MAK shares
listed in the table.
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(19)
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As
reported on a Schedule 13D/A dated November 23, 2009. MAK
Capital One LLC serves as the investment manager of MAK Capital
Fund LP and other funds and accounts. MAK Capital One LLC has shared
voting and dispositive power with respect to 4,418,447 Common Shares. MAK
GP LLC is the general partner of MAK Capital Fund LP. Michael A.
Kaufman, managing member and controlling person of MAK GP LLC and MAK
Capital One LLC, has shared voting and dispositive power with respect to
4,418,447 Common Shares. MAK Capital Fund LP has shared voting and
dispositive power with respect to 2,645,161 Common Shares. Paloma
International L.P., through its subsidiary Sunrise Partners Limited
Partnership, has shared voting and dispositive power with respect to
1,772,286 of Common Shares. Trust Asset Management LLP is the general
partner of Paloma International L.P. S. Donald Sussman is the controlling
person of Paloma International L.P. and Trust Asset Management LLP
and has shared voting and dispositive power with respect to 1,772,286 of
Common Shares. R. Andrew Cueva is a Managing Director of MAK Capital One
LLC. The principal business address of MAK Capital One LLC, MAK GP LLC and
Messrs. Kaufman and Cueva is 590 Madison Avenue, 9
th Floor, New York, New York 10022. The principal
address of MAK Capital Fund LP is c/o Dundee Leeds Management
Services Ltd., 129 Front Street, Hamilton, HM 12, Bermuda. The
principal business address of Paloma International L.P. and Sunrise
Partners Limited Partnership is Two America Lane, Greenwich, Connecticut
06836-2571. The principal business address for Mr. Sussman and
Trust Asset Management is 6100 Red Hook Quarters, Suites C1-C6, St.
Thomas, US Virgin Islands 00802-1348.
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(20)
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As
reported on a Schedule 13D/A dated November 18, 2009, as
follows: (i) Ramius Value and Opportunity Master Fund, Ltd had sole
voting and dispositive power with respect to 989,812 Common Shares;
(ii) Ramius Enterprise Master Fund Ltd had sole voting and
dispositive power with respect to 249,687 Common Shares; (iii) RCG
PB, Ltd. had sole voting and dispositive power with respect to 1,028,314
Common Shares; (iv) Ramius Advisors, LLC had sole voting and
dispositive power with respect to 1,278,001 Common Shares; (v) RCG
Starboard Advisors, LLC had sole voting and dispositive power with respect
to 989,812 Common Shares; (vi) each of Ramius LLC, Cowen Group, Inc.,
RCG Holdings LLC, and C4S & Co., L.L.C. had sole voting and
dispositive power with respect to 2,267,813 Common Shares; and
(vii) each of Peter A. Cohen, Morgan B. Stark, Jeffrey M. Solomon and
Thomas W. Strauss had shared voting and dispositive power with respect to
2,267,813 Common Shares. The address of the principal office of each of
RCG Starboard Advisors, LLC, Parche, LLC, Ramius, LLC, C4S & Co.,
L.L.C., Cowen Group, Inc., RCG Holdings LLC, and Messrs. Cohen,
Stark, Strauss and Solomon is 599 Lexington Avenue, 20th Floor, New
York, New York 10022. The address of the principal office of each of
Ramius Value and Opportunity Master Fund Ltd, Ramius Enterprise
Master Fund Ltd and RCG PB, Ltd. is c/o Citco Fund Services
(Cayman Islands) Limited, Corporate Center, West Bay Road, Grand Cayman,
Cayman Islands, British West Indies. The principal business address of
Mr. Mutch is c/o MV Advisors, LLC, 420 Stevens Avenue,
Suite 270, Solana Beach, CA 92075. The principal business address of
Mr. Zierick is c/o Aspyra, Inc., 26115-A Mureau Road, Calabasas,
CA 91320.
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(21)
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As
reported on a Schedule 13G/A dated February 9,
2009.
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(22)
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As
reported on a Schedule 13G dated February 5, 2009.
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(23)
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As
reported on a Schedule 13G/A dated February 17,
2009.
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[FORM OF
PROXY—FRONT—BLUE]
THIS
PROXY IS SOLICITED BY
MAK
Capital Fund LP, Paloma International L.P., Sunrise Partners Limited
Partnership, MAK Capital One LLC, MAK GP LLC,
Trust
Asset Management LLP, Michael A. Kaufman, S. Donald Sussman, and R. Andrew
Cueva
(collectively,
the “MAK Group”)
FOR
THE SPECIAL MEETING OF SHAREHOLDERS
UNDER
SECTION 1701.831 OF THE OHIO REVISED CODE
The
undersigned hereby appoints Michael A. Kaufman and R. Andrew Cueva, and
each of them, with full power of substitution and resubstitution, attorneys and
proxies of the undersigned to vote all of the outstanding shares of Agilysys
Inc. (“Agilysys”) that
the undersigned is entitled to vote, and with all the power that the undersigned
would possess, if personally present, as of the Record Date, as directed hereon
on the following matters, and, in their discretion, on any other matters that
may properly be presented at the special meeting of Agilysys to be held at 8:30
a.m., Ohio time, on February 18, 2010 (the “Special Meeting”), or at any
adjournment or postponement of the Special Meeting. MAK Group does not currently
know of any matters, other than those matters described in the Proxy Statement,
that will be presented for action at the Special Meeting.
If
no directions are given, this proxy will be voted “FOR” the Share Acquisition
proposal and “FOR” the adjournment of the Special Meeting.
WE
URGE YOU TO VOTE “FOR” THE SHARE ACQUISITION PROPOSAL AND “FOR” THE ADJOURNMENT
OF THE SPECIAL MEETING
1. MAK GROUP SHARE ACQUISITION
PROPOSAL. A resolution of the Agilysys shareholders authorizing the MAK
Group to collectively acquire beneficial ownership of more than 20% of the
outstanding shares of Agilysys but less than 33 1/3% of the outstanding shares
pursuant to the acquiring person statement of the MAK Group dated November 19,
2009.
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¨ FOR
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¨ AGAINST
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¨ ABSTAIN
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2. AUTHORITY TO VOTE FOR
ADJOURNMENT. Authorization to vote to adjourn the Special Meeting,
if deemed desirable by the MAK Group in its sole discretion, to allow additional
time for the solicitation of proxies to assure a quorum at the Special Meeting
and to assure a vote in favor of Proposal #1 if there are insufficient
affirmative shareholder votes at the time of the Special Meeting to approve
Proposal #1.
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¨ FOR
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¨ AGAINST
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¨ ABSTAIN
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The
proxies of the undersigned are authorized to vote, in their discretion, upon
such other matters as may properly come before the Special Meeting and any
adjournment or postponement thereof. MAK Group does not currently
know of any matters, other than those matters described in the Proxy Statement,
that will be presented for action at the Special Meeting.
All
previous proxies given by the undersigned to vote at the Special Meeting or at
any adjournment or postponement thereof are hereby revoked.
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Date: , 2010
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(Signature)
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(Signature,
if jointly held)
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(Title)
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NOTE:
Please sign your name exactly as it appears hereon. Joint owners should each
sign. When signing as attorney, executor, administrator, trustee or guardian,
please give your full title as such. If signing on behalf of a corporation,
please sign in full corporate name by the president or other authorized
officer(s). If signing on behalf of a partnership, please sign in full
partnership name by authorized person(s).
Please
be sure to read the certification included with this proxy card and to mark the
appropriate box indicating whether you are a holder of “interested
shares.”
[REVERSE]
CERTIFICATION
AS TO ELIGIBILITY TO VOTE
As
described in our proxy statement, the Control Share Acquisition Statute requires
that the control share acquisition be authorized by a vote of the majority of
shares of Agilysys entitled to vote in the election of directors, excluding any
“Interested Shares,” represented at the Special Meeting in person or by proxy.
Any terms used but not defined herein shall have the meaning assigned to them in
our proxy statement.
For
purposes of the Control Share Acquisition Statute, “Interested Shares” means the
Agilysys shares in respect of which any of the following persons may exercise or
direct the exercise of the voting power:
1.
MAK Capital Fund LP and Paloma International L.P. or any of their
affiliates;
2.
Any officer of Agilysys elected or appointed by the directors of
Agilysys;
3.
Any employee of Agilysys who is also a director of Agilysys;
4.
Any person that acquires shares of Agilysys for valuable consideration during
the period beginning on November 20, 2009 (the “Disclosure Date”) and ending
on January 15, 2010 (the “Record Date”) if (i) the
aggregate consideration paid or given by the person who acquired the shares, and
any other persons acting in concert with the person, for all those shares
exceeds $250,000, or (ii) the number of shares acquired by the person who
acquired such shares, and any other persons acting in concert with that person,
exceeds one-half of one percent of the outstanding shares of Agilysys entitled
to vote in the election of directors; or
5.
Any person that transfers such shares for valuable consideration after the
Record Date as to shares so transferred, if accompanied by the voting power in
the form of a blank proxy, an agreement to vote as instructed by the transferee,
or otherwise.
As
of the date upon which the undersigned executes this proxy card, the undersigned
hereby certifies that the shares being voted pursuant to this proxy card
are:
(Please
mark only one
box)
¨
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not
“Interested Shares” as defined in the Control Share Acquisition
Statute.
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OR
¨
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“Interested
Shares” as defined in the Control Share Acquisition
Statute.
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If you own “Interested Shares”
because you acquired more than $250,000 of Agilysys shares between the
Disclosure Date and the Record Date please indicate in the following
space the number of shares you acquired prior to the Disclosure Date, which you
continue to own as of the Record Date and therefore will be entitled to be
counted in connection with the Second Majority Approval at the Special
Meeting.
Number of shares acquired prior to
the Disclosure Date, which continue to be owned as of the Record Date:
.
If
you checked the “Interested Shares” box but did not indicate how many eligible
common shares you own that were purchased prior to the Disclosure Date, all of
your shares will be considered “Interested Shares” and therefore will not be
eligible to be counted in connection with the Second Majority Approval at the
Special Meeting.
If
(i) no box is checked indicating whether shares represented by this proxy
card are “Interested Shares,” or (ii) both of the above-boxes are checked,
the shares represented by this proxy will be deemed to be “Interested Shares”
and therefore ineligible to vote in connection with the Second Majority
Approval, as described in the Proxy Statement.
By
signing on the reverse side, you (a) instruct that the shares represented
by this proxy card be voted as marked on the front side; (b) certify
whether or not your shares are “Interested Shares” as defined in the Control
Share Acquisition Statute; and (c) undertake to notify Agilysys if at any
time after the Record Date you transfer shares entitled to vote in the election
of directors, for valuable consideration, accompanied by the voting power in the
form of a blank proxy, an agreement to vote as instructed by the transferee, or
otherwise.
SPECIAL
MEETING VOTING INSTRUCTIONS IN CONNECTION WITH
PROVISIONS
OF THE OHIO CONTROL SHARE ACQUISITION STATUTE
AGILYSYS,
INC.
Voting
Procedures—Beneficial Owners
To
All Banks, Brokers and Nominees:
Enclosed
is the Proxy Statement of MAK Capital Fund LP, Paloma International L.P.,
Sunrise Partners Limited Partnership, MAK Capital One LLC, MAK GP LLC, Trust
Asset Management LLP, Michael A. Kaufman, S. Donald Sussman, and R. Andrew Cueva
(the “MAK Group”) dated
January 22, 2010 (the “MAK
Capital Proxy Statement”) for the special meeting of shareholders of
Agilysys, Inc. (the “Company”) to be held on
February 18, 2010 (the “Special
Meeting”).
Company
shareholders:
(i)
who were holders of record as of January 15, 2010 (the “Record Date”) of the Company’s
common stock, without par value, AND
(ii)
who certify as to the eligibility of such voting shares under the criteria
included with the proxy attached to the MAK Capital Proxy Statement, will be
entitled to have their shares counted in determining whether the acquisition of
common shares pursuant to the MAK Group acquiring person statement dated
November 19, 2009 (the “Share
Acquisition”), has been authorized by the Second Majority Approval (as
defined in the MAK Capital Proxy Statement) as required by Section 1701.831
of the Ohio Revised Code (the “Control Share Acquisition
Statute”). All holders of shares as of the Record Date will be entitled
to have their shares counted in determining whether the MAK Group Share
Acquisition has been authorized by the First Majority Approval (as defined in
the MAK Capital Proxy Statement) as required by the Control Share Acquisition
Statute.
To
enable the Company to tabulate the voting by beneficial owners of shares held in
your name, a special BLUE
proxy card (which includes a related certification of eligibility) has
been prepared for use in tabulating the number of shares that are eligible to be
counted in determining whether the MAK Group Share Acquisition has received the
Second Majority Approval. On this card, the beneficial owner must certify
whether or not such person’s shares are Interested Shares. If some but not all
of its shares owned are Interested Shares, the beneficial owner must certify the
number of shares that are not Interested Shares. If the beneficial owner does
not make a certification, or fails to specify the number of such owner’s shares
that are not Interested Shares, all of such beneficial owner’s shares shall be
deemed to be Interested Shares. Such beneficial owner must by the same signature
give instructions as to the voting of the shares it beneficially
owns.
In
the case of shareholders who both (i) beneficially own shares that are
Interested Shares because they were acquired during the period commencing on
November 20, 2009, the date of the first public disclosure of the MAK Group
acquiring person statement, and ending on the Record Date for the Special
Meeting (the “Restricted
Period”) for an aggregate consideration in excess of $250,000 and
(ii) own voting shares that are not “Interested Shares” because they were
acquired prior to the Restricted Period and otherwise do not meet the definition
of Interested Shares, such shares that are not Interested Shares will be counted
and voted in determining whether the Second Majority Approval has been obtained
only if an appropriate certification of eligibility with respect to such shares,
as described above, is provided.
Banks,
brokers or other nominees who holds shares for a beneficial owner, should look
through to the person who has the power “to exercise or direct the exercise of
the vote” with respect to shares at the Special Meeting in determining whether
any such shares acquired during the Restricted Period are Interested
Shares.
Under
Ohio law, all shares, including the first $250,000 worth of such shares,
acquired during the Restricted Period for an aggregate purchase price of more
than $250,000 will be considered Interested Shares. Furthermore, shares that are
considered Interested Shares because they were purchased during the Restricted
Period as part of an aggregate purchase of $250,000 or more of shares will
remain Interested Shares if owned by such purchaser as of the Record Date even
if the purchaser of such shares at some point during that period disposes of
some of such shares. For instance, if a person who buys $1,000,000 worth of
shares during the Restricted Period, then sells $800,000 worth of common shares
during that period, all of such person’s shares acquired during that period and
still owned as of the Record Date are Interested Shares.
The
Control Share Acquisition Statute requires that shares acquired by persons
acting in concert be aggregated for the purpose of calculating the $250,000
threshold for determination of Interested Share status. In the event that shares
are entitled to be voted by more than one person, or two or more persons share
voting power, all of such shares will be considered to be owned by each such
person for purposes of determining whether such shares are Interested
Shares.
If
you are a broker or bank, do not certify the eligibility of shares without
receiving the Certification from your client or customer. Only the beneficial
owner can certify the shares are Interested Shares as represented by the Proxy
Card.