-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Q9Qm5I2l7141RfGyt0eC1OYo6I9K0wHNKe5p/1cJf434fSRXd+GRY5gN1j4llbHc 40HOfWdzCWHqfkw5OSN+FQ== 0000909518-06-000458.txt : 20060501 0000909518-06-000458.hdr.sgml : 20060501 20060501140544 ACCESSION NUMBER: 0000909518-06-000458 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20060501 DATE AS OF CHANGE: 20060501 GROUP MEMBERS: BLUE HARBOUR GP, LLC GROUP MEMBERS: BLUE HARBOUR GROUP, LP GROUP MEMBERS: BLUE HARBOUR HOLDINGS, LLC GROUP MEMBERS: CLIFTON S. ROBBINS GROUP MEMBERS: LEON G. COOPERMAN SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AGERE SYSTEMS INC CENTRAL INDEX KEY: 0001129446 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 223746606 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-77953 FILM NUMBER: 06794028 BUSINESS ADDRESS: STREET 1: 555 UNION BLVD CITY: ALLENTOWN STATE: PA ZIP: 18109 BUSINESS PHONE: 6107124323 MAIL ADDRESS: STREET 1: 1110 AMERICAN PARKWAY NE STREET 2: ROOM 12K 301 CITY: ALLENTOWN STATE: PA ZIP: 18109 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Blue Harbour Strategic Value Partners Master Fund, LP CENTRAL INDEX KEY: 0001325259 IRS NUMBER: 980450159 STATE OF INCORPORATION: E9 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: C/O RK CONSULTING (CAYMAN) LTD. STREET 2: PO BOX 17486T, 27 HOSPITAL ROAD CITY: GEORGETOWN, GRAND CAYMAN STATE: E9 ZIP: 00000 BUSINESS PHONE: 345-949-5884 MAIL ADDRESS: STREET 1: C/O RK CONSULTING (CAYMAN) LTD. STREET 2: PO BOX 17486T, 27 HOSPITAL ROAD CITY: GEORGETOWN, GRAND CAYMAN STATE: E9 ZIP: 00000 SC 13D 1 mv5-1_13d.txt ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. __) Agere Systems Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $0.01 par value - -------------------------------------------------------------------------------- (Title of class of securities) 00845V308 - -------------------------------------------------------------------------------- (CUSIP number) CLIFTON S. ROBBINS BLUE HARBOUR GROUP, LP 240 GREENWICH AVENUE, 3RD FLOOR GREENWICH, CONNECTICUT 06830 (203) 422-6540 AND LEON G. COOPERMAN 88 PINE STREET WALL STREET PLAZA - 31ST FLOOR NEW YORK, NY 10005 (212) 495-5210 - -------------------------------------------------------------------------------- (Name, address and telephone number of person authorized to receive notices and communications) April 21, 2006 - -------------------------------------------------------------------------------- (Date of event which requires filing of this statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. ================================================================================
- ---------------------------------------------------------------- ------------------------------------------------------ CUSIP No. 755267101 13D Page 2 - ---------------------------------------------------------------- ------------------------------------------------------ - ----------------------- ------------------------------------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON: Blue Harbour Strategic Value Partners Master Fund, LP 98-0450159 IRS IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): - ----------------------- ------------------------------------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ] (b) [X] - ----------------------- ------------------------------------------------------------------------------------------------------------ 3 SEC USE ONLY - ----------------------- ------------------------------------------------------------------------------------------------------------ 4 SOURCE OF FUNDS: WC - ----------------------- ------------------------------------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ] - ----------------------- ------------------------------------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION: Cayman Islands, British West Indies - ----------------------- ------------------------------------------------------------------------------------------------------------ 7 NUMBER OF SHARES SOLE VOTING POWER: 0 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH -------------- --------------------------------------------------------------------------------------------- 8 SHARED VOTING POWER: 4,889,000 -------------- --------------------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER: 0 -------------- --------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER: 4,889,000 - ----------------------- ------------------------------------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 4,889,000 - ----------------------- ------------------------------------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES: - ----------------------- ------------------------------------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 2.7% - ----------------------- ------------------------------------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON: PN - ----------------------- ------------------------------------------------------------------------------------------------------------ 2 - ---------------------------------------------------------------- ------------------------------------------------------ CUSIP No. 755267101 13D Page 3 - ---------------------------------------------------------------- ------------------------------------------------------ - ----------------------- ------------------------------------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON: Blue Harbour GP, LLC IRS IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): 20-1590782 - ----------------------- ------------------------------------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ] (b) [X] - ----------------------- ------------------------------------------------------------------------------------------------------------ 3 SEC USE ONLY - ----------------------- ------------------------------------------------------------------------------------------------------------ 4 SOURCE OF FUNDS N/A - ----------------------- ------------------------------------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e): [ ] - ----------------------- ------------------------------------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - ----------------------- ------------------------------------------------------------------------------------------------------------ 7 NUMBER OF SHARES SOLE VOTING POWER: 0 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH -------------- --------------------------------------------------------------------------------------------- 8 SHARED VOTING POWER: 4,889,000 -------------- --------------------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER: 0 -------------- --------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER: 4,889,000 - ----------------------- ------------------------------------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 4,889,000 - ----------------------- ------------------------------------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES: - ----------------------- ------------------------------------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 2.7% - ----------------------- ------------------------------------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON: OO - ----------------------- ------------------------------------------------------------------------------------------------------------ 3 - ---------------------------------------------------------------- ------------------------------------------------------ CUSIP No. 755267101 13D Page 4 - ---------------------------------------------------------------- ------------------------------------------------------ - ----------------------- ------------------------------------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON: Blue Harbour Group, LP IRS IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): 56-2457376 - ----------------------- ------------------------------------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ] (b) [X] - ----------------------- ------------------------------------------------------------------------------------------------------------ 3 SEC USE ONLY - ----------------------- ------------------------------------------------------------------------------------------------------------ 4 SOURCE OF FUNDS N/A - ----------------------- ------------------------------------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ] - ----------------------- ------------------------------------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - ----------------------- ------------------------------------------------------------------------------------------------------------ 7 NUMBER OF SHARES SOLE VOTING POWER: 0 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH -------------- --------------------------------------------------------------------------------------------- 8 SHARED VOTING POWER: 4,889,000 -------------- --------------------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER: 0 -------------- --------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER: 4,889,000 - ----------------------- ------------------------------------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 4,889,000 - ----------------------- ------------------------------------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES: - ----------------------- ------------------------------------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 2.7% - ----------------------- ------------------------------------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON: PN - ----------------------- ------------------------------------------------------------------------------------------------------------ 4 - ---------------------------------------------------------------- ------------------------------------------------------ CUSIP No. 755267101 13D Page 5 - ---------------------------------------------------------------- ------------------------------------------------------ - ----------------------- ------------------------------------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON: Blue Harbour Holdings, LLC IRS IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): 20-1590711 - ----------------------- ------------------------------------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ] (b) [X] - ----------------------- ------------------------------------------------------------------------------------------------------------ 3 SEC USE ONLY - ----------------------- ------------------------------------------------------------------------------------------------------------ 4 SOURCE OF FUNDS N/A - ----------------------- ------------------------------------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e): [ ] - ----------------------- ------------------------------------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - ----------------------- ------------------------------------------------------------------------------------------------------------ 7 NUMBER OF SHARES SOLE VOTING POWER: 0 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH -------------- --------------------------------------------------------------------------------------------- 8 SHARED VOTING POWER: 4,889,000 -------------- --------------------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER: 0 -------------- --------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER: 4,889,000 - ----------------------- ------------------------------------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 4,889,000 - ----------------------- ------------------------------------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES: - ----------------------- ------------------------------------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 2.7% - ----------------------- ------------------------------------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON: OO - ----------------------- ------------------------------------------------------------------------------------------------------------ 5 - ---------------------------------------------------------------- ------------------------------------------------------ CUSIP No. 755267101 13D Page 6 - ---------------------------------------------------------------- ------------------------------------------------------ - ----------------------- ------------------------------------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON: Clifton S. Robbins IRS IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): - ----------------------- ------------------------------------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ] (b) [X] - ----------------------- ------------------------------------------------------------------------------------------------------------ 3 SEC USE ONLY - ----------------------- ------------------------------------------------------------------------------------------------------------ 4 SOURCE OF FUNDS N/A - ----------------------- ------------------------------------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e): [ ] - ----------------------- ------------------------------------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION: United States of America - ----------------------- ------------------------------------------------------------------------------------------------------------ 7 NUMBER OF SHARES SOLE VOTING POWER: 0 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH -------------- --------------------------------------------------------------------------------------------- 8 SHARED VOTING POWER: 4,889,000 -------------- --------------------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER: 0 -------------- --------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER: 4,889,000 - ----------------------- ------------------------------------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 4,889,000 - ----------------------- ------------------------------------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES: - ----------------------- ------------------------------------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 2.7% - ----------------------- ------------------------------------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON: IN - ----------------------- ------------------------------------------------------------------------------------------------------------ 6 - ---------------------------------------------------------------- ------------------------------------------------------ CUSIP No. 755267101 13D Page 7 - ---------------------------------------------------------------- ------------------------------------------------------ - ----------------------- ------------------------------------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON: Leon G. Cooperman IRS IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY): - ----------------------- ------------------------------------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ] (b) [X] - ----------------------- ------------------------------------------------------------------------------------------------------------ 3 SEC USE ONLY - ----------------------- ------------------------------------------------------------------------------------------------------------ 4 SOURCE OF FUNDS WC - ----------------------- ------------------------------------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e): [ ] - ----------------------- ------------------------------------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION: United States of America - ----------------------- ------------------------------------------------------------------------------------------------------------ 7 NUMBER OF SHARES SOLE VOTING POWER: 2,929,400 BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH -------------- --------------------------------------------------------------------------------------------- 8 SHARED VOTING POWER: 1,935,400 -------------- --------------------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER: 2,929,400 -------------- --------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER: 1,935,400 - ----------------------- ------------------------------------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 4,864,800 - ----------------------- ------------------------------------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES: - ----------------------- ------------------------------------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 2.7% - ----------------------- ------------------------------------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON: IN - ----------------------- ------------------------------------------------------------------------------------------------------------
7 ITEM 1. SECURITY AND ISSUER The title and class of equity security to which this Statement on Schedule 13D relates is the common stock, par value $0.01 per share (the "Common Stock"), of Agere Systems Inc., a Delaware corporation (the "Company"). The address of the Company's principal executive offices is 1110 American Parkway, N.E., Allentown, Pennsylvania 18109. ITEM 2. IDENTITY AND BACKGROUND. This Statement is filed by the Blue Harbour Reporting Persons and Mr. Cooperman (each as defined below and collectively, the "Reporting Persons"). On May 1 , 2006, certain of the Reporting Persons sent a joint letter to Richard L. Clemmer, the Company's Chief Executive Officer, regarding the Company's current and long-term prospects (the "May 1 Letter"). See Item 4 below. The Blue Harbour Reporting Persons and Mr. Cooperman do not have any agreements or understandings between them relating to the acquisition, disposition, holding or voting of the Common Stock held by them and each expressly disclaims beneficial ownership for all purposes of the Common Stock held by the others. The Blue Harbour Reporting Persons and Mr. Cooperman have, on occasion, coordinated their market purchases of the Common Stock and call options to purchase Common Stock in the past, and may decide to coordinate purchases and sales in the future. The Reporting Persons have filed this statement solely because they may be deemed to be a "group" for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Act"), as a result of their agreement to submit the May 1 Letter to the Company's Chief Executive Officer. However, the Blue Harbour Reporting Persons and Mr. Cooperman each disclaim membership in a "group" with the other Reporting Person. (1) The Blue Harbour Reporting Persons. (a) - (c) and (f) The Blue Harbour Reporting Persons are Blue Harbour Strategic Value Partners Master Fund, LP, a Cayman Islands exempted limited partnership (the "Fund"), Blue Harbour GP, LLC, a Delaware limited liability company ("Fund GP"), Blue Harbour Group, LP, a Delaware limited partnership ("Manager"), Blue Harbour Holdings, LLC, a Delaware limited liability company ("Manager GP"), and Clifton S. Robbins ("Mr. Robbins"), a citizen of the United States of America. The address of the principal office of each of the Fund, Manager, Manager GP and Fund GP is 240 Greenwich Avenue, 3rd Floor, Greenwich, Connecticut 06830, and Mr. Robbins' business address is c/o Manager at the foregoing address. Mr. Robbins is the Chief Executive Officer of Manager. The Fund is principally involved in the business of investing in securities. Fund GP is principally involved in the business of serving as the general partner of the Fund. Manager is principally involved in the business of providing investment advisory and investment management services to the Fund and its affiliates and, among other things, exercises all voting and other powers and privileges attributable to any securities held for the Fund's account. Manager GP is principally involved in the business of serving as the general partner of Manager. (d) - (e) During the last five years, none of the Blue Harbour Reporting Persons nor, to the best of their knowledge, any of their officers and directors, has (i) been convicted in a criminal proceeding (excluding traffic 8 violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws (2) Leon G. Cooperman. (a) - (c) and (f) Leon G. Cooperman ("Mr. Cooperman") is a citizen of the United States of America. Mr. Cooperman is the Managing Member of Omega Associates, L.L.C., a Delaware limited liability company ("Associates"). Associates is a private investment firm formed to invest in and act as general partner of investment partnerships or similar investment vehicles. Associates is the general partner of limited partnerships organized under the laws of Delaware known as Omega Capital Partners, L.P. ("Capital LP"), Omega Capital Investors, L.P.("Investors LP"), and Omega Equity Investors, L.P. ("Equity LP"). These entities are private investment firms engaged in the purchase and sale of securities for investment for their own accounts. Mr. Cooperman is also the President and majority stockholder of Omega Advisors, Inc. ("Advisors"), a Delaware corporation engaged in providing investment management services, and Mr. Cooperman is deemed to control said entity. Advisors serves as the investment manager to Omega Overseas Partners, Ltd. ("Overseas"), a Cayman Island exempted company, with a business address at British American Tower, Third Floor, Jennrett Street, Georgetown, Grand Cayman Island, British West Indies. Mr. Cooperman has investment discretion over portfolio investments of Overseas and is deemed to control such investments. Advisors also serves as a discretionary investment advisor to a limited number of institutional clients (the "Managed Accounts"). As to the shares of Common Stock owned by the Managed Accounts, there would be shared power to dispose or to direct the disposition of such shares because the owners of the Managed Accounts may be deemed beneficial owners of such shares pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended, as a result of their right to terminate the discretionary account within a period of 60 days. Mr. Cooperman is the ultimate controlling person of Associates, Capital LP, Investors LP, Equity LP, and Advisors. The address of the principal office of each of Mr. Cooperman, Associates, Capital LP, Investors LP, Equity LP, Overseas and Advisors is 88 Pine Street, Wall Street Plaza - 31st Floor, New York, NY 10005. (d) - (e) During the last five years, none of Mr. Cooperman or the foregoing entities controlled by him, nor to the best of their knowledge, any of their officers and directors, has (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. 9 ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. (1) The Blue Harbour Reporting Persons. The 4,889,000 shares of Common Stock reported herein by the Blue Harbour Reporting Persons were acquired in open market transactions. The shares of Common Stock reported herein by the Blue Harbour Reporting Persons were acquired with the Fund's working capital, which may at any given time include funds borrowed on margin in the ordinary course and on customary terms and conditions. The amount of funds expended by the Fund for such purchases will be $55,582,771, including the cost of the purchase of shares of Common Stock upon the exercise of options held by the Blue Harbour Reporting Persons (see the attached Schedule I), commissions and other execution related costs. (2) Leon G. Cooperman. The 4,864,800 shares of Common Stock reported herein by Mr. Cooperman were acquired in open market transactions. All such purchases of Common Stock were funded by working capital, which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business. The amount of funds expended for such purchases will be $54,252,680, including the cost of the purchase of shares of Common Stock upon the exercise of options held by Leon G. Cooperman (see the attached Schedule II), commissions and other execution related costs. ITEM 4. PURPOSE OF TRANSACTION. On May 1, 2006, Mr. Cooperman and Manager sent the May 1 Letter to the Company's Chief Executive Officer, a copy of which is attached hereto as Exhibit 1 and incorporated herein by reference in its entirety. In the May 1 Letter, Mr. Cooperman and Manager outlined their shared view of the Company's current and long-term prospects. Depending upon changes in facts and circumstances, however, the views of the Blue Harbour Reporting Persons and Mr. Cooperman may diverge as to the matters discussed in the May 1 Letter, and the Blue Harbour Reporting Persons and Mr. Cooperman, respectively, are under no obligation to each other in respect of the matters discussed in the May 1 Letter. Each of the Reporting Persons have acquired the Company's Common Stock for investment purposes, and such purchases have been made in the Reporting Persons' ordinary course of business. In pursuing such investment purposes, the Reporting Persons may further purchase, hold, vote, trade, dispose or otherwise deal in the securities of the Company at times, and in such manner, as they deem advisable to benefit from changes in market prices of such securities, changes in the Company's operations, business strategy or prospects, or from a sale or merger of the Company. To evaluate such alternatives, the Reporting Persons will routinely monitor the Company's operations, prospects, business development, management, competitive and strategic matters, capital structure, and prevailing market conditions, as well as alternative investment opportunities, liquidity requirements of the Reporting Persons and other investment considerations. 10 Consistent with their investment research processes, the Reporting Persons may engage in communications regarding such matters with management or Directors of the Company, other current or prospective shareholders, industry analysts, existing or potential strategic partners or competitors, investment and financing professionals, sources of credit and other investors. Such factors and discussions may materially affect, and result in, the Reporting Persons' modifying their ownership of securities of the Company, exchanging information with the Company pursuant to appropriate confidentiality or similar agreements, proposing changes in the Company's operations, governance or capitalization, or in proposing one or more of the other actions described in subsections (a) through (j) of Item 4 of Schedule 13D. The Reporting Persons reserve the right to formulate other plans and/or make other proposals, and take such actions with respect to their investment in the Company, including any or all of the actions set forth in paragraphs (a) through (j) of Item 4 of Schedule 13D, or acquire additional securities of the Company or dispose of all the securities of the Company beneficially owned by them, in public market or privately negotiated transactions. The Reporting Persons may at any time reconsider and change their plans or proposals relating to the foregoing. The Reporting Persons do not have any arrangements, understandings or agreements with or obligations to each other with respect to the foregoing, and may act together or independently in the future. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. The Reporting Persons may be deemed to beneficially own collectively an aggregate of 9,753,800 shares of Common Stock, representing approximately 5.5% of the shares of Common Stock presently outstanding, such percentage being based on the number of shares of Common Stock outstanding as of January 31, 2006 (the "Issued and Outstanding Shares") as set forth in the Company's Report on Form 10-Q for the period ended December 31, 2005. The Blue Harbour Reporting Persons and Mr. Cooperman each expressly disclaims beneficial ownership for all purposes of the Common Stock held by the other Reporting Person. (1) The Blue Harbour Reporting Persons. (a) The responses of the Blue Harbour Reporting Persons to Rows (11) through (13) of the cover pages of this Schedule 13D are incorporated herein by reference. As of the close of business on the date hereof, the Fund beneficially owns an aggregate of 4,889,000 shares of Common Stock, representing approximately 2.7% of the shares of Common Stock based upon the Issued and Outstanding Shares. The Fund is the direct owner of the shares of Common Stock reported by the Blue Harbour Reporting Persons on this Statement on Schedule 13D. For purposes of disclosing the number of shares beneficially owned by each of the Blue Harbour Reporting Persons, Fund GP, as general partner of the Fund, Manager, as the investment manager of the Fund, Manager GP as the general partner of Manager, and Mr. Robbins, as controlling owner of Fund GP and Manager GP (in addition to serving as Chief Executive Officer of Manager) may be deemed to own beneficially (as that term is defined in Rule 13d-3 under the Securities Exchange Act of 1934) all shares of the Common Stock that are owned beneficially and directly by the Fund. Fund GP, Manager, Manager GP and Mr. Robbins disclaims beneficial ownership of such shares for all other purposes. 11 (b) The responses of the Blue Harbour Reporting Persons to (i) Rows (7) through (10) of the cover pages of this statement on Schedule 13D and (ii) Item 5(a) hereof are incorporated herein by reference. (c) Except as set forth above or in the attached Schedule I (with respect to the Blue Harbour Reporting Persons), no Blue Harbour Reporting Person has effected any transaction in shares of Common Stock during the 60 days preceding the date hereof. (d) No other person is known by the Blue Harbour Reporting Persons to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock reported in this Statement on Schedule 13D, except (i) (in the case of Common Stock reported by the Blue Harbour Reporting Persons) the dividends from, or proceeds from the sale of shares of Common Stock in the Fund for which Manager acts as an investment advisor, which may be distributed to the applicable limited partner entitled thereto in accordance with their respective limited partnership interests in the Fund, and (ii) the Blue Harbour Reporting Persons do not have the right to receive dividends from shares of Common Stock for which they hold options, and the holder of such Common Stock has the right to receive such dividends until the options are exercised. Other than as described in Item 5 hereof, no investment partnership or limited partner thereof has an interest in shares of Common Stock reported in this Schedule 13D representing more than five percent of the Common Stock outstanding. (2) Leon G. Cooperman. (a) As of the close of business on the date hereof, Mr. Cooperman may be deemed the beneficial owner of 4,864,800 shares of Common Stock representing approximately 2.7% of the shares of Common Stock based upon the Issued and Outstanding Shares. This consists of 1,446,300 shares of Common Stock owned by Capital LP; 454,800 shares of Common Stock owned by Equity LP; 115,900 shares of Common Stock owned by Investors LP; 912,400 shares of Common Stock owned by Overseas; and 1,935,400 shares of Common Stock owned by the Managed Accounts. (b) The responses of Mr. Cooperman to (i) Rows (7) through (10) of the cover pages of this statement on Schedule 13D and (ii) Item 5(a) hereof are incorporated herein by reference. (c) Except as set forth above or in the attached Schedule II (with respect to the Mr. Cooperman and the foregoing entities controlled by him), none of Mr. Cooperman or the foregoing entities controlled by him has effected any transaction in shares of Common Stock during the 60 days preceding the date hereof. (d) No other person is known by Mr. Cooperman or the foregoing entities controlled by him to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock reported in this Statement on Schedule 13D, except (i) the dividends from Common Stock or proceeds from the sale of shares of Common Stock reported by the Managed Accounts may be distributed to the applicable investors therein, and (ii) Mr. Cooperman and the foregoing entities controlled by him do not have the right to receive dividends from shares of Common Stock for which they hold options, and the holder of such Common Stock has the right to receive 12 such dividends until the options are exercised. Other than as described in Item 5 hereof, no investment partnership or limited partner thereof has an interest in shares of Common Stock reported in this Schedule 13D representing more than five percent of the Common Stock outstanding. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Pursuant to Rule 13d-1(k) promulgated under the Act, the Reporting Persons have entered into an agreement with respect to the joint filing of this statement, and any amendment or amendments thereto, a copy of which is attached hereto as Exhibit 2 and incorporated herein by reference in its entirety. Fund, Fund GP, Manager, Manager GP, Mr. Robbins and Mr. Cooperman are parties to a letter agreement with respect to the coordination of information required for filing this statement and any amendment or amendments thereto, and the sharing of expenses incurred in respect thereof, a copy of which is attached hereto as Exhibit 3 and incorporated herein by reference in its entirety. Other than as described in this statement, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 or between such persons and any other person with respect to any securities of the Company. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. EXHIBIT 1 Letter, dated May 1, 2006, from Leon G. Cooperman and Manager to the Company. EXHIBIT 2 Agreement as to Joint Filing of Schedule 13D, dated May 1, 2006, by and among the Fund, Fund GP, Manager, Manager GP, Clifton S. Robbins and Leon G. Cooperman. EXHIBIT 3 Letter Agreement, dated May 1, 2006, by and among the Fund, Fund GP, Manager, Manager GP, Clifton S. Robbins, Associates, Capital LP, Investors LP, Equity LP, Advisors, Overseas and Leon G. Cooperman. 13 SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: May 1, 2006 BLUE HARBOUR STRATEGIC VALUE PARTNERS MASTER FUND, LP By: Blue Harbour GP, LLC, its general partner By: /s/ Clifton S. Robbins ------------------------------------------ Name: Clifton S. Robbins Title: Managing Member BLUE HARBOUR GP, LLC By: /s/ Clifton S. Robbins ---------------------------------------------- Name: Clifton S. Robbins Title: Managing Member BLUE HARBOUR GROUP, LP By: Blue Harbour Holdings, LLC, its general partner By: /s/ Clifton S. Robbins ------------------------------------------ Name: Clifton S. Robbins Title: Managing Member BLUE HARBOUR HOLDINGS, LLC By: /s/ Clifton S. Robbins ---------------------------------------------- Name: Clifton S. Robbins Title: Managing Member /s/ Clifton S. Robbins ----------------------------------------------------- Name: Clifton S. Robbins 14 LEON G. COOPERMAN, individually, as Managing Member of Omega Associates, L.L.C. on behalf of Omega Capital Partners, L.P., Omega Capital Investors, L.P., Omega Equity Investors, L.P., and as President of Omega Advisors, Inc. By: /s/ Alan M. Stark ----------------------------------------------- Name: Alan M. Stark Title: Attorney-in-Fact Power of Attorney on File 15 Schedule I Transactions in Shares of Common Stock by Blue Harbour Reporting Persons
- ------------------------------- ------------------------ --------------------- ------------------------ ----------------------- NUMBER OF SHARES OF REPORTING PERSON DATE TRANSACTION COMMON STOCK PRICE PER SHARE - ------------------------------- ------------------------ --------------------- ------------------------ ----------------------- Fund 04/24/06 Purchase* 539,000 $8.665 - ------------------------------- ------------------------ --------------------- ------------------------ -----------------------
* Purchase of call option to acquire shares of Common Stock. The call option expires on June 5, 2006 and has a strike price of $5.00 per share. Schedule II Transactions in Shares of Common Stock by Leon G. Cooperman
- ------------------------------- ------------------------ --------------------- ------------------------ ----------------------- NUMBER OF SHARES OF REPORTING PERSON DATE TRANSACTION COMMON STOCK PRICE PER SHARE - ------------------------------- ------------------------ --------------------- ------------------------ ----------------------- Managed Accounts 03/24/06 Sale 24,100 $14.25 - ------------------------------- ------------------------ --------------------- ------------------------ ----------------------- Managed Accounts 04/20/06 Sale 15,300 $13.87 - ------------------------------- ------------------------ --------------------- ------------------------ ----------------------- Managed Accounts 04/20/06 Purchase 15,300 $13.87 - ------------------------------- ------------------------ --------------------- ------------------------ ----------------------- Capital LP 04/24/06 Purchase* 175,100 $8.665 - ------------------------------- ------------------------ --------------------- ------------------------ ----------------------- Equity LP 04/24/06 Purchase* 34,800 $8.665 - ------------------------------- ------------------------ --------------------- ------------------------ ----------------------- Investors LP 04/24/06 Purchase* 14,200 $8.665 - ------------------------------- ------------------------ --------------------- ------------------------ ----------------------- Overseas 04/24/06 Purchase* 109,300 $8.665 - ------------------------------- ------------------------ --------------------- ------------------------ ----------------------- Managed Accounts 04/24/06 Purchase* 205,500 $8.665 - ------------------------------- ------------------------ --------------------- ------------------------ -----------------------
* Purchase of call option to acquire shares of Common Stock. The call option expires on June 5, 2006 and has a strike price of $5.00 per share. EX-99 2 mv5-1_ex1.txt 1 Exhibit 1 BLUE HARBOUR GROUP, L.P. OMEGA ADVISORS, INC. 240 Greenwich Ave 88 Pine Street - 31st Floor Greenwich, CT 06830 New York, NY 10005 May 1, 2006 Mr. Richard L. Clemmer President and Chief Executive Officer Agere Systems Inc. 1110 American Parkway NE Allentown, PA 18109 Dear Rick: As you know from the several meetings and discussions that Blue Harbour Group, L.P. ("Blue Harbour") and Leon G. Cooperman on behalf of the Omega Funds ("Omega") have jointly had over the past six months with you and other members of Agere Systems Inc.'s ("Agere" or the "Company") senior management team, we agree with you that Agere's shares are substantially undervalued, we see excellent opportunities to meaningfully grow Agere's value over time, and we are pleased to support recent and ongoing initiatives undertaken by the Board and management to create and realize value for Agere's shareholders. Blue Harbour and Omega are substantial shareholders of Agere and collectively are the beneficial owners of securities representing 9,753,800 common shares, or approximately 5.5% of the shares outstanding, based upon the latest publicly available information. We are very encouraged by the enthusiasm with which the new team is tackling the current challenges and opportunities facing the Company. We applaud the actions you are taking to reduce operating costs to a level more commensurate with the current revenues of the Company as these are among the most important drivers to generating value for all of Agere's shareholders. Moreover, based on our conversations and your recent efforts, we believe that management is taking a much more proactive and analytical approach to evaluating the Company's very substantial research and development spending with an eye toward improving the returns on this significant and vital investment. Improving research and development productivity continues to be an important and valuable opportunity for Agere. We are pleased that the management and Board remain open to evaluating all of the Company's options with regard to its various business lines. In this respect, it is our belief that the Company should focus only on business lines in which it can be a true global leader and earn greater than average returns. Agere has numerous strategically important technologies and product lines, and it is possible that certain of these may be more valuable to others than they are to Agere. Proceeds from any potential sales could be used for strategic acquisitions which could serve to enhance the Company's competitive position in its chosen leadership areas, or alternatively to return capital to shareholders. The potential that others may value certain business lines more highly than Agere shareholders is a particularly important consideration in light of the Company's approximately $2.5 billion of net operating loss carryforwards, which effectively could shield Agere from taxes on any gains that might be realized in connection with a disposition. We understand and generally support your desire to only sell businesses that are performing reasonably well, but also believe it is crucial that the Board and management continually evaluate the alternatives and be prepared to act at the appropriate juncture. Given our strong view that Agere shares are trading at a very large discount to their intrinsic value, we are pleased that the Company has been aggressively repurchasing its shares. We support this effort to return value to shareholders, improve the overall capital structure, and generate further value for long-term shareholders such as Blue Harbour and Omega. We are encouraged by the various actions the Board and management are taking and support your continued focus on ways to enhance and realize value for shareholders over time. We look forward to continuing an active dialogue with the Board and management and to an open and mutually beneficial relationship. Yours truly, /s/ Leon G. Cooperman /s/ Clifton S. Robbins Leon G. Cooperman Clifton S. Robbins cc: Agere Board of Directors EX-99 3 mv5-1_ex2.txt 2 Exhibit 2 AGREEMENT AS TO JOINT FILING OF SCHEDULE 13D Dated May 1, 2006 The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement shall be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that it knows or has reason to believe that such information is inaccurate. This Agreement may be executed in counterparts and each of such counterparts taken together shall constitute one and the same instrument. BLUE HARBOUR STRATEGIC VALUE PARTNERS MASTER FUND, LP By: Blue Harbour GP, LLC, its general partner By: /s/ Clifton S. Robbins ------------------------------------------ Name: Clifton S. Robbins Title: Managing Member BLUE HARBOUR GP, LLC By: /s/ Clifton S. Robbins ---------------------------------------------- Name: Clifton S. Robbins Title: Managing Member BLUE HARBOUR GROUP, LP By: Blue Harbour Holdings, LLC, its general partner By: /s/ Clifton S. Robbins ------------------------------------------ Name: Clifton S. Robbins Title: Managing Member BLUE HARBOUR HOLDINGS, LLC By: /s/ Clifton S. Robbins ---------------------------------------------- Name: Clifton S. Robbins Title: Managing Member /s/ Clifton S. Robbins ----------------------------------------------------- Name: Clifton S. Robbins LEON G. COOPERMAN, individually, as Managing Member of Omega Associates, L.L.C. on behalf of Omega Capital Partners, L.P., Omega Capital Investors, L.P., Omega Equity Investors, L.P., and as President of Omega Advisors, Inc. /s/ Leon G. Cooperman ----------------------------------------------------- Name: Leon G. Cooperman EX-99 4 mv5-1_ex3.txt 3 Exhibit 3 BLUE HARBOUR GROUP, LP May 1, 2006 Ladies and Gentlemen: Blue Harbour Strategic Value Partners Master Fund, LP, a Cayman Islands exempted limited partnership (the "Fund"), Blue Harbour GP, LLC, a Delaware limited liability company ("Fund GP"), Blue Harbour Group, LP, a Delaware limited partnership ("Manager"), Blue Harbour Holdings, LLC, a Delaware limited liability company ("Manager GP"), Clifton S. Robbins ("Mr. Robbins" and, together with the Fund, Fund GP, Manager and Manager GP, each a "Blue Harbour Reporting Person" and collectively, the "Blue Harbour Reporting Persons"), Omega Associates, L.L.C., a Delaware limited liability company ("Associates"), Omega Capital Partners, L.P., a Delaware limited partnership ("Capital LP"), Omega Capital Investors, L.P., a Delaware limited partnership ("Investors LP"), Omega Equity Investors, L.P., a Delaware limited partnership ("Equity LP"), Omega Advisors, Inc., a Delaware corporation ("Advisors"), Omega Overseas Partners, Ltd., a Cayman Islands exempted company ("Overseas") and Leon G. Cooperman ("Mr. Cooperman" and, together with Associates, Capital LP, Investors LP, Equity LP, Advisors and Overseas, each an "Omega Person" and collectively, the "Omega Persons") (the Blue Harbour Reporting Persons and Mr. Cooperman are each referred to herein as a "Reporting Person" and collectively as the "Reporting Persons") are beneficial owners of shares of common stock, par value $0.01 per share (the "Company Common Stock") of Agere Systems Inc., a Delaware corporation (the "Company"). In connection with such ownership in the Company, Manager and Mr. Cooperman are submitting a joint letter to the Chief Executive Officer of the Company with respect to the Company's business (the "Joint Letter"). As a result of the submission of the Joint Letter and their respective ownership interests in the Company Common Stock, the Reporting Persons will jointly file a Schedule 13D with the U.S. Securities and Exchange Commission (the "Joint Schedule 13D") and enter into an agreement as to joint filing with respect thereto (the "Joint Filing Agreement"). In order to ensure that each of the Reporting Persons and its affiliates have available to them on a timely basis all information required to be included in a Schedule 13D (including amendments thereto) required to be filed by such Reporting Person and its affiliates, the parties hereto hereby agree as follows: 1. Each party hereto represents and warrants to each of the other parties hereto that (i) as of the date hereof it beneficially owns (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (the "Exchange Act")) the securities of the Company set forth on the attached Schedule I and (ii) the information supplied (or to be supplied) by or on behalf of each party hereto specifically for inclusion in the Joint Schedule 13D will, at the time the Joint Schedule 13D or any amendments thereto are filed with the U.S. Securities and Exchange Commission, be true and correct in all material respects, and disclosure included in the Joint Schedule 13D with respect to each party hereto will, at the time of such filing, comply in all material respects with the applicable requirements of Schedule 13D. 2. Each of the Reporting Persons will timely provide to the other Reporting Persons all information with respect to such Reporting Person and its affiliates (or, with respect to such Reporting Person and its affiliates, any of the persons enumerated in Instruction C to Schedule 13D) required to be included by the other Reporting Person in any Schedule 13D or amendment thereto required to be filed by them with respect to the Company Common Stock. Without limiting the generality of the foregoing, if on any day, a Reporting Person or any of its affiliates (or, with respect to such Reporting Person and its affiliates, any of the persons enumerated in Instruction C to Schedule 13D) effects any purchase or sale of shares of Company Common Stock, such Reporting Persons shall promptly (but in any event within one business day) notify the other Reporting Persons of (i) the identity of the entity that effected the transaction and the identity of such entities that have sole or shared power to vote and/or dispose of such shares and/or any entities entitled to or having the power to receive the proceeds from the sale of such shares, (ii) the date of the transaction, (iii) the number of shares purchased and/or sold, (iv) the price paid or received per share purchased or sold and (v) where and how the transaction was effected. 3. Each of the Reporting Persons shall promptly (but in any event within one business day) provide to the other Reporting Persons a copy of any written agreement, contract, arrangement, understanding, plan or proposal, entered into by it or any of its affiliates (or, with respect to such Reporting Person and its affiliates, any of the persons enumerated in Instruction C to Schedule 13D) that is required to be disclosed under Item 6 of Schedule 13D. 4. The Blue Harbour Reporting Persons and the Omega Persons agree and acknowledge that they are not acting as a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) and do not have any arrangements, understandings or agreements with or obligations to each other with respect to their shares of Company Common Stock except to the extent disclosed in the Joint Schedule 13D and that neither the Blue Harbour Reporting Persons, on the one hand, nor the Omega Persons, on the other hand, are responsible for any action taken or statement made by the other with respect to its interests in the Company unless such action or statement is taken or made jointly by the Blue Harbour Reporting Persons and the Omega Persons. 5. The Blue Harbour Reporting Persons, on the one hand, and the Omega Persons, on the other hand, shall promptly (but in any event within one business day) notify the other of any action taken or public statement made by such person with respect to its investment in the Company. 2 6. The terms of this letter agreement shall be binding upon each of the parties hereto; provided however, that this letter agreement may be terminated at any time by either the Blue Harbour Reporting Persons or the Omega Persons upon written notice to the other that they wish to cease filing Schedule 13D on a joint basis with respect to the Company Common Stock. Upon the termination of this letter agreement, the Joint Schedule 13D will be amended to reflect the termination of this letter agreement and the Joint Filing Agreement. Notwithstanding the foregoing, the termination of this letter agreement shall not relieve any party hereto from liability for any breach of this letter agreement occurring prior to such termination. 7. The Blue Harbour Reporting Persons (other than Clifton S. Robbins), jointly and severally, on the one hand, and the Omega Persons (other than Leon G. Cooperman), jointly and severally, on the other hand, (each an "Indemnifying Party") hereby agree to indemnify, defend and hold harmless the other and its respective directors, officers, employees, agents, advisors, consultants, representatives, affiliates, successors and assigns (each an "Indemnified Party") from and against any and all losses, liabilities, obligations, payments, claims, damages, charges, taxes, judgments, fines, penalties, amounts paid in settlement, costs and expenses (including interest which may be imposed in connection therewith, costs and expenses of investigation and fees, expenses and disbursements of counsel, consultants and other experts) sustained, incurred or suffered by or asserted against any Indemnified Party in respect of (i) any breach of the Indemnifying Party's representations and warranties contained in this letter agreement, (ii) the Indemnifying Party's failure to perform or otherwise fulfill any of its agreements, covenants, obligations or undertakings hereunder or (iii) any breach of the Indemnifying Party's certifications, representations or warranties contained in any written statement delivered by such Indemnifying Party pursuant to this letter agreement. Notwithstanding any other provision of this letter agreement, the terms of this Section 7 shall survive and be binding upon each party hereto until the second anniversary of the date this letter agreement is terminated pursuant to Section 6 hereof. 8. The Blue Harbour Reporting Persons, on the one hand, and the Omega Persons, on the other hand, shall bear and be responsible for one-half of the attorneys' and filing fees and other reasonable expenses related to the preparation and filing of the Joint Schedule 13D (including amendments thereto) and any related agreements which the parties hereto jointly file or execute (as the case may be) in connection with their ownership of the Company Common Stock. Obligations under this Section 8 will cease to accrue when the Blue Harbour Reporting Persons and Mr. Cooperman are not party to any Schedule 13D filed jointly regarding the Company Common Stock. 9. This letter agreement shall be governed by the laws of the State of New York, without regard for the conflicts of law principles thereof. 3 Please confirm your agreement with the foregoing by executing and returning a copy of this letter to us. Dated: May 1, 2006 BLUE HARBOUR GROUP, LP By: Blue Harbour Holdings, LLC, its general partner By: /s/ Clifton S. Robbins ----------------------------- Name: Clifton S. Robbins Title: Managing Member ACCEPTED AND AGREED: BLUE HARBOUR STRATEGIC VALUE PARTNERS MASTER FUND, LP By: Blue Harbour GP, LLC, its general partner By: /s/ Clifton S. Robbins --------------------------------------- Name: Clifton S. Robbins Title: Managing Member BLUE HARBOUR GP, LLC By: /s/ Clifton S. Robbins ------------------------------------------ Name: Clifton S. Robbins Title: Managing Member BLUE HARBOUR HOLDINGS, LLC By: /s/ Clifton S. Robbins ------------------------------------------ Name: Clifton S. Robbins Title: Managing Member /s/ Clifton S. Robbins - -------------------------------------------------- Name: Clifton S. Robbins 4 OMEGA ASSOCIATES, L.L.C. By: /s/ Leon G. Cooperman ------------------------------------------- Name: Leon G. Cooperman Title: Managing Member OMEGA CAPITAL PARTNERS, L.P. By: Omega Associates, L.L.C., its general partner By: /s/ Leon G. Cooperman --------------------------------------- Name: Leon G. Cooperman Title: Managing Member OMEGA CAPITAL INVESTORS, L.P. By: Omega Associates, L.L.C., its general partner By: /s/ Leon G. Cooperman --------------------------------------- Name: Leon G. Cooperman Title: Managing Member OMEGA EQUITY INVESTORS, L.P. By: Omega Associates, L.L.C., its general partner By: /s/ Leon G. Cooperman --------------------------------------- Name: Leon G. Cooperman Title: Managing Member OMEGA ADVISORS, INC. By: /s/ Leon G. Cooperman ------------------------------------------- Name: Leon G. Cooperman Title: President OMEGA OVERSEAS PARTNERS, LTD. By: Omega Advisors, Inc., in its capacity as investment advisor By: /s/ Leon G. Cooperman --------------------------------------- Name: Leon G. Cooperman Title: President /s/ Leon G. Cooperman - -------------------------------------------------- Name: Leon G. Cooperman 5 Schedule I
- ------------------------------------------------------------- -------------------------------------- Reporting Person Securities of Company Beneficially Owned by the Reporting Person - ------------------------------------------------------------- -------------------------------------- Blue Harbour Strategic Value Partners Master Fund, LP 4,889,000 - ------------------------------------------------------------- -------------------------------------- Blue Harbour GP, LLC 4,889,000 - ------------------------------------------------------------- -------------------------------------- Blue Harbour Group, LP 4,889,000 - ------------------------------------------------------------- -------------------------------------- Blue Harbour Holdings, LLC 4,889,000 - ------------------------------------------------------------- -------------------------------------- Clifton S. Robbins 4,889,000 - ------------------------------------------------------------- -------------------------------------- Leon G. Cooperman 4,864,800 - ------------------------------------------------------------- --------------------------------------
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