JOINT FILING AND SOLICITATION AGREEMENT
Exhibit
99.1
WHEREAS,
certain of the undersigned are shareholders, direct or beneficial, of Tollgrade
Communications, Inc., a Pennsylvania Corporation (the “Company”);
WHEREAS,
Ramius Value and Opportunity Master Fund Ltd, a Cayman Islands exempted company
(“Value and Opportunity Master Fund”), Parche, LLC, a Delaware limited liability
company (“Parche”), Ramius Enterprise Master Fund Ltd, a Cayman Islands exempted
company, Ramius Advisors, LLC, a Delaware limited liability company, RCG
Starboard Advisors, LLC, a Delaware limited liability company, Ramius LLC, a
Delaware limited liability company (“Ramius”), C4S & Co., L.L.C., a Delaware
limited liability company, Xxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxx,
Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxxx Xxxxxxxx and Xxxxxx X. Xxxxxxxxx,
III, wish to form a group for the purpose of seeking representation on the Board
of Directors of the Company at the 2009 annual meeting of shareholders of the
Company, or any other meeting of shareholders held in lieu thereof, and any
adjournments, postponements, reschedulings or continuations thereof (the “2009
Annual Meeting”) and for the purpose of taking all other action necessary to
achieve the foregoing.
NOW, IT
IS AGREED, this 10th
day of February 2009 by the parties hereto:
1. In
accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), each of the undersigned (collectively, the
“Group”) agrees to the joint filing on behalf of each of them of statements on
Schedule 13D, and any amendments thereto, with respect to the securities of the
Company. Each member of the Group shall be responsible for the
accuracy and completeness of his/its own disclosure therein, and is not
responsible for the accuracy and completeness of the information concerning the
other members, unless such member knows or has reason to know that such
information is inaccurate. Ramius or its representative shall provide
each member of the Group with copies of all Schedule 13D filings and other
public filings to be filed on behalf of such member at least 24 hours prior to
the filing or submission thereof.
2. So
long as this agreement is in effect, each of the undersigned shall provide
written notice to Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP (“Xxxxxx”)
of (i) any of their purchases or sales of securities of the Company; or (ii) any
securities of the Company over which they acquire or dispose of beneficial
ownership. Notice shall be given no later than 24 hours after each
such transaction.
3. Each
of the undersigned agrees to form the Group for the purpose of (i) soliciting
proxies or written consents for the election of the persons nominated by the
Group to the Board of Directors of the Company at the 2009 Annual Meeting, (ii)
taking such other actions as the parties deem advisable, and (iii) taking all
other action necessary or advisable to achieve the foregoing.
4. Value
and Opportunity Master Fund and Parche shall have the right to pre-approve all
expenses incurred in connection with the Group’s activities and agree to pay
directly all such pre-approved expenses on a pro rata basis between Value and
Opportunity Master Fund and Parche based on the number of Shares in the
aggregate beneficially owned by each of Value and Opportunity Master Fund and
Parche on the date hereof.
5. Each
of the undersigned agrees that any SEC filing, press release or shareholder
communication proposed to be made or issued by the Group or any member of the
Group in connection with the Group’s activities set forth in Section 4 shall be
first approved by Ramius, or its representatives, which approval shall not be
unreasonably withheld.
6. The
relationship of the parties hereto shall be limited to carrying on the business
of the Group in accordance with the terms of this Agreement. Such
relationship shall be construed and deemed to be for the sole and limited
purpose of carrying on such business as described herein. Nothing
herein shall be construed to authorize any party to act as an agent for any
other party, or to create a joint venture or partnership, or to constitute an
indemnification. Nothing herein shall restrict any party’s right to
purchase or sell securities of the Company, as he/it deems appropriate, in
his/its sole discretion, provided that all such sales are made in compliance
with all applicable securities laws.
7. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which, taken together, shall constitute but one and the same
instrument, which may be sufficiently evidenced by one counterpart.
8. In
the event of any dispute arising out of the provisions of this Agreement or
their investment in the Company, the parties hereto consent and submit to the
exclusive jurisdiction of the Federal and State Courts in the State of New
York.
9. Any
party hereto may terminate his/its obligations under this Agreement on 24 hours’
written notice to all other parties, with a copy by fax to Xxxxxx Xxxxxxx at
Xxxxxx, Fax No. (000) 000-0000.
10. Each
party acknowledges that Xxxxxx shall act as counsel for both the Group and
Ramius and its affiliates relating to their investment in the
Company.
11. Each
of the undersigned parties hereby agrees that this Agreement shall be filed as
an exhibit to a Schedule 13D pursuant to Rule 13d-1(k)(1)(iii) under the
Exchange Act.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the day and year first above written.
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RAMIUS
VALUE AND OPPORTUNITY MASTER FUND LTD
By:
RCG Starboard Advisors, LLC,
its investment manager PARCHE,
LLC
By:
RCG Starboard Advisors, LLC,
its managing member RCG
STARBOARD ADVISORS, LLC
By:
Ramius LLC,
its sole member |
RAMIUS
ENTERPRISE MASTER FUND LTD
By:
Ramius Advisors, LLC,
its investment advisor RAMIUS
ADVISORS, LLC
By:
Ramius LLC,
its sole member By:
C4S & Co., L.L.C.,
as managing member C4S
& CO., L.L.C.
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxx
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Title:
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Authorized
Signatory
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XXXXXXX
X. XXXXXXX
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/s/
Xxxxxxx X. Xxxxxxx
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Individually
and as attorney-in-fact for Xxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxxx X.
Xxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxxx Xxxxxxxx, and Xxxxxx X. Xxxxxxxxx,
III
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