AGREEMENT
Exhibit 99.1
AGREEMENT
THIS
AGREEMENT (“Agreement”), dated as
of March 6, 2009, is made by and between Actel Corporation, a California
corporation (“Actel” or the “Company”), and the
entities and natural persons listed on Schedule A hereto and their affiliates
(collectively, the “Ramius Group”) (each
of the Company and the Ramius Group, a “Party” to this
Agreement, and collectively, the “Parties”).
WHEREAS,
the Ramius Group may be deemed to beneficially own shares of common stock of
Actel (the “Common
Stock”) totaling, in the aggregate, 2,264,272 shares, or approximately
8.8% of the Common Stock issued and outstanding on the date hereof;
and
WHEREAS,
Actel and the Ramius Group have agreed that it is in their mutual interests to
enter into this Agreement.
NOW,
THEREFORE, in consideration of the premises and the representations, warranties,
and agreements contained herein, and other good and valuable consideration, the
Parties mutually agree as follows:
1. Representations
and Warranties of the Ramius Group. The Ramius Group represents and
warrants to Actel that (a) this Agreement has been duly authorized,
executed and delivered by the Ramius Group, and is a valid and binding
obligation of the Ramius Group, enforceable against the Ramius Group in
accordance with its terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws generally affecting the rights of creditors and
subject to general equity principles; (b) the execution of this Agreement,
the consummation of any of the transactions contemplated hereby, and the
fulfillment of the terms hereof, in each case in accordance with the terms
hereof, will not conflict with, or result in a breach or violation of the
organizational documents of the Ramius Group as currently in effect; and
(c) as of the date of this Agreement, the Ramius Group may be deemed to
beneficially own in the aggregate 2,264,272 shares of Common Stock.
2. Representations
and Warranties of Actel. Actel hereby represents and warrants to the
Ramius Group that (a) this Agreement has been duly authorized, executed and
delivered by Actel, and is a valid and binding obligation of Actel, enforceable
against Actel in accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws generally affecting the rights of
creditors and subject to general equity principles; (b) the execution of
this Agreement, the consummation of any of the transactions contemplated hereby,
and the fulfillment of the terms hereof, in each case in accordance with the
terms hereof, will not (1) conflict with, result in a breach or violation of,
constitute a default (or an event which with notice or lapse of time or both
could become a default) under or pursuant to, result in the loss of a material
benefit or give any right of termination, amendment, acceleration or
cancellation under, or result in the imposition of any lien, charge or
encumbrance upon any property or assets of Actel or any of its subsidiaries
pursuant to any law, any order of any court or other agency of government,
Actel’s Restated Articles of Incorporation (as amended January 3, 2003) (the
“Restated
Articles”), Actel’s Amended and Restated Bylaws (the “Bylaws”), or the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which Actel is a party or bound or to which its property or assets
is subject or (2) trigger any “change of control” provisions in any agreement to
which Actel is a party; and (c) no consent, approval, authorization, license or
clearance of, or filing or registration with, or notification to, any court,
legislative, executive or regulatory authority or agency is required in order to
permit Actel to perform its obligations under this Agreement, except for such as
have been obtained.
3. Directorships.
(a) Prior
to the time that Actel mails its definitive proxy statement for its 2009 annual
shareholder meeting (the “2009 Annual
Meeting”), but in any event no later than Xxxxx 00, 0000, Xxxxx’s board
of directors (the “Board”) and all
applicable committees of the Board shall take all necessary actions to (i)
increase the size of the Board from six (6) to nine (9) members and (ii) appoint
Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx and Xxxxxxx X. Xxxxx (the “New Appointees”) to
fill the vacancies on the Board created by increasing its size to nine (9)
members.
(b) Actel
agrees that the Board and all applicable committees of the Board will nominate
no more than eight (8) members for election to Actel’s Board at the 2009 Annual
Meeting. Actel further agrees that the Board and all applicable
committees of the Board will take all actions necessary and appropriate to amend
the Bylaws to reduce the size of the Board to eight (8) members effective at the
2009 Annual Meeting.
(c) Actel
agrees that the Board and all applicable committees of the Board will take all
actions necessary and appropriate to:
(1) nominate
the New Appointees, or any replacement director appointed pursuant to Section
3(d) or Section 3(e) below as applicable (the “Replacement
Appointees,” and together with the remaining New Appointees, the “Ramius Directors”),
for election to Actel’s Board at the 2009 Annual Meeting (other than in the case
of such person’s refusal to serve or if such person has committed an act that
would be grounds for removal from the Board for cause, in which case the Ramius
Group will have the right to designate and substitute another person or persons,
subject to prompt reasonable evaluation and determination by the Nominating
Committee of the Board (the “Nominating
Committee”) in good faith after exercising its fiduciary duties that such
candidate has business experience in such areas as would reasonably be expected
to enhance the Board, consistent with Actel’s guidelines relating to director
qualifications and Board composition), together with up to five (5) other
persons to be included in Actel’s slate of nominees for director, with terms
expiring at Actel’s 2010 annual shareholder meeting (the “2010 Annual
Meeting”);
(2) recommend,
and reflect such recommendation in Actel’s definitive proxy statement in
connection with the 2009 Annual Meeting, that the shareholders of Actel vote to
elect the Ramius Directors as directors of Actel at the 2009 Annual
Meeting;
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(3) use
its reasonable efforts to solicit and obtain proxies in favor of the election of
the Ramius Directors at the 2009 Annual Meeting, in the same manner as for the
other candidates nominated for election at the 2009 Annual Meeting;
and
(4) ensure
that, while any of the Ramius Directors remains in office, the Ramius Group will
have the right to designate at least one Ramius Director, subject to compliance
with applicable Securities and Exchange Commission (the “SEC”) and Nasdaq
corporate governance rules, to serve on each committee and sub-committee of the
Board (or any substitutes therefor) now in existence or created after the date
hereof.
(d) Following
the appointment of the New Appointees pursuant to Section 3(a) of this
Agreement, the Ramius Group agrees that it shall use reasonable efforts to
select a candidate to replace Xx. Xxxxxxxxx to serve on the Board, subject to
evaluation and approval by the Nominating Committee using the standards
described in Section 3(c)(1); provided, however, that such candidate (i) shall
not be an affiliate of the Ramius Group and (ii) shall have significant
experience in the semiconductor industry. The Nominating Committee
shall not unreasonably withhold approval of such person. In the event
the Nominating Committee does not approve the person selected by the Ramius
Group, the Ramius Group will have the right to select an additional candidate
for consideration by the Nominating Committee who meets the standards described
in the first sentence of this Section 3(d). Once the Nominating
Committee has approved a candidate selected by the Ramius Group, the Ramius
Group shall take all necessary action to cause Xx. Xxxxxxxxx to resign his
position as a director. Contemporaneously with such resignation, the
Board shall appoint the candidate selected by the Ramius Group and approved by
the Nominating Committee to fill the vacancy on the Board created by the
resignation of Xx. Xxxxxxxxx.
(e) Actel
agrees that, during the term of this Agreement, if a Ramius Director resigns or
is otherwise unable to serve as a director or is removed for cause as a director
(other than the resignation of Xx. Xxxxxxxxx pursuant to Section 3(d)), the
Ramius Group will have the right to designate and substitute a person or persons
for appointment to the Board as a replacement director, subject to evaluation
and determination by the Nominating Committee using the standards described in
Section 3(c)(1); provided, however, (i) the substitute person designated by
the Ramius Group shall have experience consistent with the director being
replaced and (ii) at no point following the appointment of the candidate
replacing Xx. Xxxxxxxxx pursuant to Section 3(d) shall the Ramius Directors
consist of more than one (1) affiliate of the Ramius Group. The Nominating
Committee will not unreasonably withhold acceptance of any replacement
director(s) recommended by the Ramius Group. In the event the Nominating
Committee does not accept a replacement director recommended by the Ramius
Group, the Ramius Group will have the right to recommend additional replacement
director(s) for consideration by the Nominating Committee. The Board will
appoint such replacement director to the Board no later than five (5) business
days after the Nominating Committee’s recommendation of such replacement
director.
(f) Each
of the Ramius Directors, upon election to the Board, will be governed by the
same protections and obligations regarding confidentiality, conflicts of
interests, fiduciary duties, trading and disclosure policies and other
governance guidelines, and shall have the same rights and benefits, including
(but not limited to) with respect to insurance, indemnification, compensation
and fees, as are generally applicable to any non-employee directors of
Actel.
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(g) Actel
agrees that it shall hold the 2009 Annual Meeting on June 5, 2009.
(h) Except
as provided in Section 3(a) above, Actel agrees that prior to the 2010 Annual
Meeting, the Board and all applicable committees of the Board shall not (i)
increase the size of the Board to more than eight (8) directors or (ii) or take
any other action to materially limit or restrict the rights of or time allotted
to its shareholders to nominate persons for election to the Board (including but
not limited to by amending the Restated Articles or Bylaws).
4. Standstill
Restrictions.
(a) Subject
to applicable law, including Section 13(d) and (g) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
except as permitted pursuant to the terms of this Agreement, during the term of
this Agreement, the Ramius Group shall not, and shall cause their Affiliates and
Associates (as defined below) under its control or direction not to, in any
manner, directly or indirectly:
(i) solicit
(as such term is used in the proxy rules of the Securities and Exchange
Commission (the “SEC”)) proxies or
consents to vote any securities of Actel, or make, or in any way participate in,
any “solicitation” of any “proxy” within the meaning of Rule 14a-1
promulgated by the SEC under the Exchange Act to vote any shares of Common Stock
with respect to any matter, or become a “participant” in any “contested
solicitation” for the election of directors with respect to Actel (as such terms
are defined or used in the Exchange Act and the rules promulgated thereunder),
other than solicitations or acting as a participant in support of all of Actel’s
nominees and proposals;
(ii) purchase
or cause to be purchased or otherwise acquire or agree to acquire beneficial
ownership (as determined under Rule 13d-3 promulgated under the Exchange
Act) of any Common Stock or other securities issued by Actel, if in any such
case, immediately after the taking of such action, the Ramius Group would, in
the aggregate, collectively beneficially own more than the greater of (i) 14.9%
of the then outstanding shares of Common Stock, or (ii) such percentage of the
then outstanding shares of Common Stock as is 0.1% less than the amount causing
the Ramius Group to become an “Acquiring Person” under the Company’s Preferred
Stock Rights Agreement, dated October 17, 2003, as the same may be
amended;
(iii) form,
join or in any way participate in any “group” (within the meaning of Section
13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a
group comprised solely of the Ramius Group);
(iv) deposit
any Common Stock in any voting trust or subject any Common Stock to any
arrangement or agreement with respect to the voting of any Common Stock, other
than any such voting trust, arrangement or agreement solely among the Ramius
Group;
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(v) otherwise
act, alone or in concert with others to (1) make any public statement critical
of Actel, its directors or management, other than as contemplated by Section
4(a)(vi)(3) below or (2) control or seek to control the Board, other than
through non public communications with the officers and directors of
Actel;
(vi) other
than as provided in this Agreement, make any public announcement with respect
to, or offer to effect, seek or propose (with or without conditions) a merger,
acquisition, disposition or other business combination involving Actel, other
than through non public communications with the officers and directors of Actel;
provided, however, that nothing
herein will limit the ability of (1) any member of the Ramius Group, or its
respective Affiliates and Associates, except as otherwise provided in
Section 5, to vote its shares of Common Stock on any matter submitted to a
vote of the stockholders of the Company, (2)the Ramius Directors to
exercise their rights as members of the Board while serving as members of the
Board or (3) the Ramius Group to announce its opposition to any Board approved
proposals related to a merger, acquisition, disposition of all or substantially
all of the assets of Actel or other business combination involving Actel and not
supported by Xx. Xxxxx;
(vii) seek,
alone or in concert with others, (1) to call a meeting of shareholders, or
(2) representation on the Board, except as specifically contemplated in Section
3(a), Section 3(c), Section 3(d) and Section 4(b), or (3) the removal of any
member of the Board; or
(viii) publicly
disclose any request to amend, waive or terminate any provision of this
Agreement.
(b) Notwithstanding
anything contained herein to the contrary, any member of the Ramius Group, and
any Affiliate or Associate of any such member, shall be entitled
to:
(i) subject
to Section 5, vote their shares in favor of the election of the Ramius Directors
at the 2009 Annual Meeting and on any other proposal duly brought before the
2009 Annual Meeting, or otherwise vote as the Ramius Group determines in their
sole discretion;
(ii) disclose,
publicly or otherwise, how it intends to vote or act with respect to any
securities of the Company, any stockholder proposal or other matter to be voted
on by the stockholders of the Company (other than the election of directors) and
the reasons therefor;
(iii) propose
a slate of nominees for election as directors and/or one or more proposal(s) for
consideration or approval by shareholders at the 2010 Annual Meeting in order to
comply with the advance notice provisions or other requirements of the Restated
Articles or the Bylaws; and
(iv) In
the event a special meeting is called by a shareholder of Actel with respect to
the removal of directors, the Ramius Group may (A) cumulate the vote of the
shares of Common Stock held by the Ramius Group and vote in favor of the Ramius
Directors and (B) solicit proxies to vote against the removal of the Ramius
Directors; provided, however, that if Actel solicits proxies to vote against the
removal of all directors, the Ramius Group may only solicit proxies to vote
against the removal of all directors and not just the Ramius
Directors.
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(c) As
used in this Agreement, the terms “Affiliate” and “Associate” shall have the
respective meanings set forth in Rule 12b-2 promulgated by the SEC under the
Exchange Act.
5. Actions by
the Ramius Group.
(a) At
the 2009 Annual Meeting, the Ramius Group shall vote, and cause their respective
officers, directors, employees and agents to vote, all of the shares of Common
Stock beneficially owned by him or them for (i) each of Actel’s nominees for
election to the Board, (ii) the ratification of the appointment of Actel’s
independent auditors and (iii) an amendment to Actel’s Employee Stock Purchase
Plan to increase the number of authorized shares reserved for issuance
thereunder to up to 2,500,000 shares of Common Stock subject to the favorable
recommendation of the RiskMetrics Group or such lower number of shares that the
RiskMetrics Group endorses.
(b) Upon
execution of this Agreement by the Parties, the Ramius Group shall not submit
any proposals or nominations for election to the Board at the 2009 Annual
Meeting;
6. Termination. This Agreement shall
terminate and the obligations of the Parties under this Agreement shall cease on
the earlier of the following (the “Termination
Date”):
(a) at
the option of Actel, upon the earliest of a material breach by the Ramius Group
of any obligation hereunder which has not been cured within 14 days after
the Ramius Group receives notice of such breach from Actel
(b) at
the option of the Ramius Group, upon a material breach by Actel of any
obligation hereunder which has not been cured within 14 days after Actel
receives notice of such breach from the Ramius Group;
(c) seven
days prior to the date that an Actel shareholder may first submit a nomination
for the election of directors at the 2010 Annual Meeting pursuant to the bylaws
of the Company as then in effect;
(d) on
the day that the Board publicly announces its nominees for election as directors
at the 2010 Annual Meeting; or
(e) at
any time, upon the written consent of all of the Parties.
7. Public
Announcement. Actel and the Ramius Group shall promptly disclose the
existence of this Agreement after its execution pursuant to a joint press
release that is mutually acceptable to the parties, including a description of
the material terms of this Agreement. Subject to applicable law, none of the
Parties shall disclose the existence of this Agreement until the joint press
release is issued. The Parties agree that, while this Agreement
remains in effect, each Party shall refrain from any disparagement, defamation,
libel, or slander with respect to any other Party or its affiliates or from
publicly criticizing such other Party or its affiliates.
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8. Nonpublic
Information.
(a) In
connection with discussions between the Ramius Group and their representatives
and Actel and its representatives, or otherwise during the term of this
Agreement, the Ramius Group or their representatives have obtained information
about Actel or its securities that is confidential. Each member of the Ramius
Group agrees, as set forth below, to treat confidentially any such information
(whether oral or written, provided that all written information shall have been
identified as confidential) furnished to or otherwise obtained by the Ramius
Group or their representatives from Actel or on their behalf together with those
portions of analyses, summaries, notes or other documents prepared by the Ramius
Group or any of their representatives which contain or otherwise reflect such
information (herein collectively referred to as the “Confidential
Information”). The Ramius Group agrees that, except with Actel’s prior
written consent, neither the Ramius Group nor their representatives will
disclose any Confidential Information to any other person or use any of the
Confidential Information for any purpose other than on Actel’s behalf. For
purposes of this Agreement, the phrase “Confidential Information” shall not
include information which (i) becomes lawfully available to the public
other than as a result of a disclosure by the Ramius Group or their
representatives, (ii) was lawfully available to the Ramius Group on a
nonconfidential basis prior to its disclosure to the Ramius Group or their
representatives by Actel or on its behalf or (iii) lawfully becomes
available to the Ramius Group on a nonconfidential basis from a source other
than Actel or Actel’s representatives or agents, provided that to the knowledge
of the Ramius Group, such source is not bound by a confidentiality agreement
with Actel. Actel has no obligation to furnish Confidential Information to the
Ramius Group or their representatives by virtue of this Agreement. In
the event that any member of the Ramius Group is requested pursuant to, or
required by, law, regulation, legal process or regulatory or civil authority to
disclose any portion of the Confidential Information, the Ramius Group shall
give prompt notice to Actel, to the extent such notice is legally
permissible. The Ramius Group shall use all commercially reasonable
efforts to limit the scope of such required disclosure, and the Ramius Group
shall be permitted to disclose, without any liability to Actel, only that
portion of the Confidential Information which the Ramius Group’ counsel advises
that the Ramius Group are legally required to disclose.
(b) In
connection with this Agreement and the ongoing relationship of the Ramius Group
(and their affiliates) with Actel, there may be instances in which material
nonpublic information concerning Actel will be divulged to them by Actel or its
representatives or agents. The Ramius Group expressly acknowledge, on behalf of
themselves and their representatives and agents, that federal and state
securities laws prohibit any person who misappropriates material nonpublic
information about a company from purchasing or selling securities of such
company, or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities, until such information has become
public.
9. Releases.
(a) The
Ramius Group hereby agrees for the benefit of Actel, and each controlling
person, officer, director, shareholder, agent, affiliate, employee, partner,
attorney, heir, assign, executor, administrator, predecessor and successor, past
and present, of Actel (Actel and each such person being an “Actel Released
Person”) as follows:
(i) The Ramius
Group, for themselves and for their members, officers, directors, assigns,
agents and successors, past and present, hereby agrees and confirms that,
effective from and after the date of this Agreement, they hereby acknowledge
full and complete satisfaction of, and covenant not to xxx, and forever fully
release and discharge each Actel Released Person of, and hold each Actel
Released Person harmless from, any and all rights, claims, warranties, demands,
debts, obligations, liabilities, costs, attorneys’ fees, expenses, suits, losses
and causes of action of any nature whatsoever, whether known or unknown,
suspected or unsuspected (collectively, “Claims”) that the
Ramius Group may have against the Actel Released Persons, in each case with
respect to events occurring prior to the date of the execution of this
Agreement.
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(ii) The
Ramius Group understands and agree that the Claims released by the Ramius Group
above include not only those Claims presently known but also include all unknown
or unanticipated claims, rights, demands, actions, obligations, liabilities, and
causes of action of every kind and character that would otherwise come within
the scope of the Claims as described above. The Ramius Group understands that
they may hereafter discover facts different from or in addition to what they now
believe to be true, which if known, could have materially affected this release
of Claims, but they nevertheless waive any claims or rights based on different
or additional facts.
(b) The
Ramius Group agrees that so long as any Ramius Director is a member of the
Board, (i) no member of the Ramius Group shall, without the consent of
Actel, instigate, solicit, assist, intervene in, or otherwise voluntarily
participate in any litigation or arbitration in which Actel or any of its
officers or directors are named as parties; provided that the foregoing shall
not prevent any member of the Ramius Group from responding to a validly issued
legal process and (ii) the Ramius Group agrees to give Actel at least five
(5) business days notice of the receipt of any legal process requesting
information regarding Actel or any of its officers or directors, to the extent
that such notice is legally permissible.
(c) Actel
hereby agrees for the benefit of the Ramius Group, and each controlling person,
officer, director, stockholder, agent, affiliate, employee, partner, attorney,
heir, assign, executor, administrator, predecessor and successor, past and
present, thereof, as well as each Ramius Director (the Ramius Group and each
such person being a “Shareholder Released Person”) as
follows:
(i)
Actel, for itself and for its affiliates, officers, directors,
assigns, agents and successors, past and present, hereby agrees and confirms
that, effective from and after the date of this Agreement, it hereby
acknowledges full and complete satisfaction of, and covenants not to xxx, and
forever fully releases and discharges each Shareholder Released Person of, and
holds each Shareholder Released Person harmless from, any and all Claims of any
nature whatsoever, whether known or unknown, suspected or unsuspected, that
Actel may have against the Shareholder Released Persons, in each case with
respect to events occurring prior to the date of the execution of this
Agreement.
(ii) Actel
understand and agree that the Claims released by Actel above include not only
those Claims presently known but also include all unknown or unanticipated
claims, rights, demands, actions, obligations, liabilities, and causes of action
of every kind and character that would otherwise come within the scope of the
Claims as described above. Actel understands that it may hereafter discover
facts different from or in addition to what it now believes to be true, which if
known, could have materially affected this release of Claims, but it
nevertheless waives any claims or rights based on different or additional
facts.
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(d) The Parties do hereby
expressly waive and relinquish all rights and benefits afforded by California
Civil Code Section 1542, and do so understanding and acknowledging the
significance and consequences of such specific waiver of California Civil Code
Section 1542. The Parties acknowledge and understand that
they are being represented in this matter by counsel of their own choice, and
acknowledge that they are familiar with the provisions of California Civil Code
Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Thus,
notwithstanding these provisions of law, the Parties expressly acknowledge and
agree that this Section 10 is also intended to include in its effect,
without limitation, all such claims which they do not know or suspect to exist
at the time of the execution of this Agreement, and that this Agreement
contemplates the extinguishment of those claims.
(e) The
Parties intend that the foregoing release be broad with respect to the matter
released, provided, however, this release of Claims shall not include claims to
enforce the terms of this Agreement; and provided further that nothing in the
foregoing release shall be deemed or construed, now or hereafter, as limiting in
any manner any right of indemnification inuring to the benefit of any director
or former director of Actel arising under the Restated Articles, the Bylaws or
otherwise.
10. Remedies.
(a) Each
of the Parties acknowledges and agrees that a breach or threatened breach by any
Party may give rise to irreparable injury inadequately compensable in damages,
and accordingly each Party shall be entitled to injunctive relief to prevent a
breach of the provisions hereof and to enforce specifically the terms and
provisions hereof in any state or federal court having jurisdiction, in addition
to any other remedy to which such aggrieved Party may be entitled to at law or
in equity.
(b) In
the event a Party institutes any legal action to enforce such Party’s rights
under, or recover damages for breach of this Agreement, the prevailing party or
parties in such action shall be entitled to recover from the other party or
parties all costs and expenses, including but not limited to reasonable
attorneys’ fees, court costs, witness fees, disbursements and any other expenses
of litigation or negotiation incurred by such prevailing party or
parties.
11. Expenses.
Actel shall reimburse the Ramius Group for its reasonable, documented
out-of-pocket fees and expenses incurred (including legal expenses), not to
exceed $30,000, in connection with the filing of a Schedule 13D in
connection with this Agreement, and any matters related to the 2009 Annual
Meeting and the negotiation and execution of this Agreement.
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12. Notices. Any notice or other
communication required or permitted to be given under this Agreement will be
sufficient if it is in writing, sent to the applicable address set forth below
(or as otherwise specified by a Party by notice to the other Parties in
accordance with this Section 12) and delivered personally or sent by recognized
overnight courier, postage prepaid, and will be deemed given (a) when so
delivered personally, or (b) if sent by recognized overnight courier, one
day after the date of sending.
If to
Actel:
Actel
Corporation
0000
Xxxxxxxx Xx.
Xxxxxxxx
Xxxx, XX 00000
Attention:
Xxxx Xxxx, Chief Executive Officer
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
with a
copy (which shall not constitute notice to Actel) to:
Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx
Professional
Corporation
000 Xxxx
Xxxx Xxxx
Xxxx
Xxxx, Xxxxxxxxxx 00000
Attention:
Xxxxx X. Xxxxxx
Xxxxx
X. Xxxxxx, Xx.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
If to the
Ramius Group:
Ramius Value and Opportunity Master
Fund Ltd
c/o RCG Starboard Advisors,
LLC
000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxx
X. Xxxxx
Xxxx
X. Xxxxxxx
Telephone:
(000) 000-0000
Facsimile: (000)
000-0000
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with a
copy (which shall not constitute notice to the Ramius Group) to:
Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park
Avenue Tower
00 Xxxx
00xx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxx
Xxxxxxx
Xxxxxx
Xxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
13. Entire
Agreement. This
Agreement constitutes the entire agreement between the Parties pertaining to the
subject matter hereof and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions of the Parties in connection with
the subject matter hereof.
14. Counterparts;
Facsimile. This
Agreement may be executed in any number of counterparts and by the Parties in
separate counterparts, and signature pages may be delivered by facsimile, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
15. Headings. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
16. Governing
Law. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of California, without regard to choice of law principles that
would compel the application of the laws of any other jurisdiction.
17. Severability. In the event one or more of
the provisions of this Agreement should, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
18.
Successors and
Assigns. This
Agreement shall not be assignable by any of the Parties. This Agreement,
however, shall be binding on successors of the Parties.
19. Amendments. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by all of the Parties.
20. Further
Action. Each
Party agrees to execute such additional reasonable documents, and to do and
perform such reasonable acts and things necessary or proper to effectuate or
further evidence the terms and provisions of this Agreement.
[Signatures
are on the following page.]
-11-
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year
first above written.
|
ACTEL
CORPORATION
|
|
|
By:
|
/s/
Xxxxx X. Van De Hey
|
|
Name:
Xxxxx X. Van De Hey
|
|
|
Title:
Vice President and General
Counsel
|
|
THE RAMIUS GROUP:
|
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
RAMIUS
ENTERPRISE MASTER FUND LTD
By:
Ramius Advisors, LLC,
its
investment advisor
|
RCG
STARBOARD ADVISORS, LLC
By:
Ramius LLC,
its
sole member
RAMIUS
ADVISORS, LLC
By:
Ramius LLC,
its
sole member
By:
C4S & Co., L.L.C.,
as
managing member
C4S
& CO., L.L.C.
|
|
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxxx X. Xxxxxxx | |
|
Title:
|
Authorized
Signatory
|
|
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
XXXXXXX
X. XXXXXXX
|
|
Individually
and as attorney-in-fact for Xxxxx X.
Xxxxx,
Xxxxxx X. Xxxxx and Xxxxxx X.
Xxxxxxx
|
Schedule
A
The Ramius
Group
RAMIUS
VALUE AND OPPORTUNITY MASTER FUND LTD
PARCHE,
LLC
RAMIUS
ENTERPRISE MASTER FUND LTD
RCG PB,
LTD
RCG
STARBOARD ADVISORS, LLC
RAMIUS
ADVISORS, LLC
C4S &
CO., L.L.C.
XXXXXXX
X. XXXXXXX
XXXXX X.
XXXXX
XXXXXX X.
XXXXX
XXXXXX X.
XXXXXXX
XXXX X.
XXXXXX
XXXXX X.
XXXXXXXXX
XXXXXXX
X. XXXXX
