|
1
|
NAME OF REPORTING PERSONS
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
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
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
1,995,557
|
|
|
8
|
SHARED VOTING POWER
- 0 -
|
||
|
9
|
SOLE DISPOSITIVE POWER
1,995,557
|
||
|
10
|
SHARED DISPOSITIVE POWER
- 0 -
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,995,557
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.8%
|
||
|
14
|
TYPE OF REPORTING PERSON
CO
|
||
|
1
|
NAME OF REPORTING PERSONS
STARBOARD VALUE AND OPPORTUNITY S LLC
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
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
DELAWARE
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
443,353
|
|
|
8
|
SHARED VOTING POWER
- 0 -
|
||
|
9
|
SOLE DISPOSITIVE POWER
443,353
|
||
|
10
|
SHARED DISPOSITIVE POWER
- 0 -
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
443,353
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 1%
|
||
|
14
|
TYPE OF REPORTING PERSON
OO
|
||
|
1
|
NAME OF REPORTING PERSONS
STARBOARD VALUE LP
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
3
|
SEC USE ONLY
|
||
|
4
|
SOURCE OF FUNDS
OO
|
||
|
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
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
3,125,800
|
|
|
8
|
SHARED VOTING POWER
- 0 -
|
||
|
9
|
SOLE DISPOSITIVE POWER
3,125,800
|
||
|
10
|
SHARED DISPOSITIVE POWER
- 0 -
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,125,800
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.0%
|
||
|
14
|
TYPE OF REPORTING PERSON
PN
|
||
|
1
|
NAME OF REPORTING PERSONS
STARBOARD VALUE GP LLC
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
3
|
SEC USE ONLY
|
||
|
4
|
SOURCE OF FUNDS
OO
|
||
|
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
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
3,125,800
|
|
|
8
|
SHARED VOTING POWER
- 0 -
|
||
|
9
|
SOLE DISPOSITIVE POWER
3,125,800
|
||
|
10
|
SHARED DISPOSITIVE POWER
- 0 -
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,125,800
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.0%
|
||
|
14
|
TYPE OF REPORTING PERSON
OO
|
||
|
1
|
NAME OF REPORTING PERSONS
STARBOARD PRINCIPAL CO LP
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
3
|
SEC USE ONLY
|
||
|
4
|
SOURCE OF FUNDS
OO
|
||
|
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
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
3,125,800
|
|
|
8
|
SHARED VOTING POWER
- 0 -
|
||
|
9
|
SOLE DISPOSITIVE POWER
3,125,800
|
||
|
10
|
SHARED DISPOSITIVE POWER
- 0 -
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,125,800
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.0%
|
||
|
14
|
TYPE OF REPORTING PERSON
PN
|
||
|
1
|
NAME OF REPORTING PERSONS
STARBOARD PRINCIPAL CO GP LLC
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
3
|
SEC USE ONLY
|
||
|
4
|
SOURCE OF FUNDS
OO
|
||
|
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
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
3,125,800
|
|
|
8
|
SHARED VOTING POWER
- 0 -
|
||
|
9
|
SOLE DISPOSITIVE POWER
3,125,800
|
||
|
10
|
SHARED DISPOSITIVE POWER
- 0 -
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,125,800
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.0%
|
||
|
14
|
TYPE OF REPORTING PERSON
OO
|
||
|
1
|
NAME OF REPORTING PERSONS
JEFFREY C. SMITH
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
3
|
SEC USE ONLY
|
||
|
4
|
SOURCE OF FUNDS
OO
|
||
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
USA
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
- 0 -
|
|
|
8
|
SHARED VOTING POWER
3,125,800
|
||
|
9
|
SOLE DISPOSITIVE POWER
- 0 -
|
||
|
10
|
SHARED DISPOSITIVE POWER
3,125,800
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,125,800
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.0%
|
||
|
14
|
TYPE OF REPORTING PERSON
IN
|
||
|
1
|
NAME OF REPORTING PERSONS
MARK R. MITCHELL
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
3
|
SEC USE ONLY
|
||
|
4
|
SOURCE OF FUNDS
OO
|
||
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
USA
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
- 0 -
|
|
|
8
|
SHARED VOTING POWER
3,125,800
|
||
|
9
|
SOLE DISPOSITIVE POWER
- 0 -
|
||
|
10
|
SHARED DISPOSITIVE POWER
3,125,800
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,125,800
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.0%
|
||
|
14
|
TYPE OF REPORTING PERSON
IN
|
||
|
1
|
NAME OF REPORTING PERSONS
PETER A. FELD
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
3
|
SEC USE ONLY
|
||
|
4
|
SOURCE OF FUNDS
OO
|
||
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
USA
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
- 0 -
|
|
|
8
|
SHARED VOTING POWER
3,125,800
|
||
|
9
|
SOLE DISPOSITIVE POWER
- 0 -
|
||
|
10
|
SHARED DISPOSITIVE POWER
3,125,800
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,125,800
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.0%
|
||
|
14
|
TYPE OF REPORTING PERSON
IN
|
||
|
1
|
NAME OF REPORTING PERSONS
TUDOR BROWN
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
3
|
SEC USE ONLY
|
||
|
4
|
SOURCE OF FUNDS
OO
|
||
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
UK
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
- 0 -
|
|
|
8
|
SHARED VOTING POWER
- 0 -
|
||
|
9
|
SOLE DISPOSITIVE POWER
- 0 -
|
||
|
10
|
SHARED DISPOSITIVE POWER
- 0 -
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 0 -
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
|
||
|
14
|
TYPE OF REPORTING PERSON
IN
|
||
|
1
|
NAME OF REPORTING PERSONS
GEORGE CWYNAR
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
3
|
SEC USE ONLY
|
||
|
4
|
SOURCE OF FUNDS
OO
|
||
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
CN
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
- 0 -
|
|
|
8
|
SHARED VOTING POWER
- 0 -
|
||
|
9
|
SOLE DISPOSITIVE POWER
- 0 -
|
||
|
10
|
SHARED DISPOSITIVE POWER
- 0 -
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 0 -
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
|
||
|
14
|
TYPE OF REPORTING PERSON
IN
|
||
|
1
|
NAME OF REPORTING PERSONS
THOMAS LACEY
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
3
|
SEC USE ONLY
|
||
|
4
|
SOURCE OF FUNDS
OO
|
||
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
USA
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
- 0 -
|
|
|
8
|
SHARED VOTING POWER
- 0 -
|
||
|
9
|
SOLE DISPOSITIVE POWER
- 0 -
|
||
|
10
|
SHARED DISPOSITIVE POWER
- 0 -
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 0 -
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
|
||
|
14
|
TYPE OF REPORTING PERSON
IN
|
||
|
1
|
NAME OF REPORTING PERSONS
GEORGE RIEDEL
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
3
|
SEC USE ONLY
|
||
|
4
|
SOURCE OF FUNDS
OO
|
||
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
USA
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
- 0 -
|
|
|
8
|
SHARED VOTING POWER
- 0 -
|
||
|
9
|
SOLE DISPOSITIVE POWER
- 0 -
|
||
|
10
|
SHARED DISPOSITIVE POWER
- 0 -
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 0 -
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
|
||
|
14
|
TYPE OF REPORTING PERSON
IN
|
||
|
1
|
NAME OF REPORTING PERSONS
DONALD STOUT
|
||
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) o
(b) o
|
|
|
3
|
SEC USE ONLY
|
||
|
4
|
SOURCE OF FUNDS
OO
|
||
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
|
¨
|
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
USA
|
||
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
- 0 -
|
|
|
8
|
SHARED VOTING POWER
- 0 -
|
||
|
9
|
SOLE DISPOSITIVE POWER
- 0 -
|
||
|
10
|
SHARED DISPOSITIVE POWER
- 0 -
|
||
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 0 -
|
||
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o
|
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
|
||
|
14
|
TYPE OF REPORTING PERSON
IN
|
||
The following constitutes Amendment No. 1 to the Schedule 13D filed by the undersigned (the “Schedule 13D”). This Amendment No. 1 amends the Schedule 13D as specifically set forth herein.
Item 2. Identity and Background.
Item 2 is amended and restated as follows:
(a) This statement is filed by:
| (i) | Starboard Value and Opportunity Master Fund Ltd, a Cayman Islands exempted company (“Starboard V&O Fund”), with respect to the Shares directly and beneficially owned by it; |
| (ii) | Starboard Value and Opportunity S LLC, a Delaware limited liability company (“Starboard LLC”), with respect to the Shares directly and beneficially owned by it; |
| (iii) | Starboard Value LP (“Starboard Value LP”), as the investment manager of Starboard V&O Fund and of a certain managed account (the “Starboard Value LP Account”) and the manager of Starboard LLC; |
| (iv) | Starboard Value GP LLC (“Starboard Value GP”), as the general partner of Starboard Value LP; |
| (v) | Starboard Principal Co LP (“Principal Co”), as a member of Starboard Value GP; |
| (vi) | Starboard Principal Co GP LLC (“Principal GP”), as the general partner of Principal Co; |
| (vii) | Jeffrey C. Smith, as a member of Principal GP, as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP, and as a nominee for the Board of Directors of the Issuer (the “Board”); |
| (viii) | Mark R. Mitchell, as a member of Principal GP and as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP; |
| (ix) | Peter A. Feld, as a member of Principal GP, as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP, and as a nominee for the Board; |
| (x) Tudor Brown, who is a nominee for the Board; |
| (xi) George Cwynar, who is a nominee for the Board; |
| (xii) Thomas Lacey, who is a nominee for the Board; |
| (xiii) George Riedel, who is a nominee for the Board; and |
| (xiv) Donald Stout, who is a nominee for the Board. |
Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.” Each of the Reporting Persons is party to that certain Joint Filing and Solicitation Agreement, as further described in Item 6. Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.
(b) The address of the principal office of each of Starboard LLC, Starboard Value LP, Starboard Value GP, Principal Co, Principal GP, and Messrs. Smith, Mitchell and Feld is 830 Third Avenue, 3rd Floor, New York, New York 10022. The address of the principal office of Starboard V&O Fund is 89 Nexus Way, Camana Bay, PO Box 31106, Grand Cayman KY1-1205, Cayman Islands. The officers and directors of Starboard V&O Fund and their principal occupations and business addresses are set forth on Schedule A to the Schedule 13D and are incorporated by reference in this Item 2. Mr. Brown’s principal business address is Hillstead, Hinton Way, Great Shelford, Cambridge CB22 5AN, United Kingdom. Mr. Cwynar’s principal business address is 293 Kingsmere Road, Chelsea, Quebec, Canada J9B 1G8. Mr. Lacey’s principal business address is c/o G2 Technology, Inc., 1900 McCarthy Boulevard, Suite 412, Milpitas, CA 95035. Mr. Reidel’s principal business address is 1 Meadowbrook Road, Weston, MA 02493. Mr. Stout’s principal business address is 1300 North Seventeenth Street, Suite 1800 Arlington, Virginia 22209.
(c) The principal business of Starboard V&O Fund is serving as a private investment fund. Starboard V&O Fund has been formed for the purpose of making equity investments and, on occasion, taking an active role in the management of portfolio companies in order to enhance shareholder value. Starboard LLC has been formed for the purpose of investing in securities and engaging in all related activities and transactions. Starboard Value LP provides investment advisory and management services and acts as the investment manager of Starboard V&O Fund and the Starboard Value LP Account and the manager of Starboard LLC. The principal business of Starboard Value GP is providing a full range of investment advisory, pension advisory and management services and serving as the general partner of Starboard Value LP. The principal business of Principal Co is providing investment advisory and management services. Principal Co is a member of Starboard Value GP. Principal GP serves as the general partner of Principal Co. Messrs. Smith, Mitchell and Feld serve as members of Principal GP and the members of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP. Mr. Brown is currently engaged in assisting inward and outward investment in the United Kingdom, and assisting companies operating in the Far East. Mr. Cwynar’s principal occupation is serving as a consultant offering strategic and operational guidance, mentoring and executive coaching to small and mid-sized companies. Mr. Lacey is the Chairman and Chief Executive Officer of Components Direct, a provider of cloud-based product lifestyle solutions. Mr. Reidel currently serves as Chairman of the Board of Montreal-based Accedian Networks and as a director of PeerApp. Mr. Stout is a senior partner at the law firm of Antonelli, Terry, Stout & Kraus, LLP.
(d) No Reporting Person, nor any person listed on Schedule A to the Schedule 13D has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) No Reporting Person, nor any person listed on Schedule A to the Schedule 13D, has, during the last five years, been 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.
(f) Messrs. Smith, Mitchell, Feld, Lacey, Riedel and Stout are citizens of the United States of America. The citizenship of the persons listed on Schedule A to the Schedule 13D is set forth therein. Mr. Brown is a citizen of the United Kingdom. Mr. Cwynar is a citizen of Canada.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is hereby amended and restated as follows:
The Shares purchased by each of Starboard V&O Fund and Starboard LLC and held in the Starboard Value LP Account were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule B, which is incorporated by reference herein. The aggregate purchase price of the 1,995,557 Shares beneficially owned by Starboard V&O Fund is approximately $29,151,181, excluding brokerage commissions. The aggregate purchase price of the 443,353 Shares beneficially owned by Starboard LLC is approximately $6,476,903, excluding brokerage commissions. The aggregate purchase price of the 686,890 Shares held in the Starboard Value LP Account is approximately $10,034,279, excluding brokerage commissions.
Item 4. Purpose of Transaction.
Item 4 is hereby amended to add the following:
The Reporting Persons have serious concerns with the Issuer’s recent history of undertaking stockholder-unfriendly manipulation of the nomination deadline in connection the Issuer’s annual meetings of stockholders. Last year, on December 21, 2011, shortly after Starboard began accumulating a position in the Issuer, the Issuer intentionally triggered an accelerated and immediate ten-day nomination deadline of December 31, 2011 under the Issuer’s advance notice bylaw provisions, by virtue of having advanced the date of the annual meeting by approximately two months to March 30, 2012 compared to the Issuer’s historical practice of holding its annual meeting in May. The Reporting Persons note that the Issuer’s 2011 Proxy Statement had previously disclosed a nomination window of January 25, 2012 through February 24, 2012 for the 2012 annual meeting of stockholders (the “2012 Annual Meeting”). The Reporting Persons cannot think of any practical or necessary reason for the Issuer to have announced its 2012 Annual Meeting date on December 21, 2012, other than to make it as difficult as possible during the height of the Winter holiday season for any stockholder to preserve its rights to nominate a slate of director candidates at the 2012 Annual Meeting. The Reporting Persons view this manipulation of the Issuer’s advance notice bylaw provisions by the Board as an attempt to disenfranchise stockholders at the 2012 Annual Meeting and entrench the Board. In order to preserve its right to submit nominations, on December 29, 2011, Starboard Value delivered to the Issuer a notice of its nomination of individuals for election to the Board at the 2012 Annual Meeting, which it later withdrew.
The Issuer’s 2012 Proxy Statement discloses a nomination window of November 30, 2012 through December 30, 2012 for the 2013 annual meeting of stockholders (the “2013 Annual Meeting”). On December 19, 2012, the Issuer filed a Form 8-K disclosing that the Board has amended the Issuer’s Amended and Restated Bylaws to provide that for the 2013 Annual Meeting any nomination notice by a stockholder delivered to, or mailed and received at, the principal executive offices of the Issuer on or prior to February 15, 2013 will be deemed timely notwithstanding the date of the 2013 Annual Meeting. The Issuer did not disclose in the Form 8-K the date that the 2013 Annual Meeting will be held.
In light of last year’s attempt by the Board to disenfranchise shareholders in connection with the 2012 Annual Meeting, the Reporting Persons have serious concerns as to whether the Board’s decision to extend the nomination period until February 15, 2013 without disclosing a date for the 2013 Annual Meeting was made in good-faith and with the best interests of its stockholders in mind. Specifically, the Reporting Persons are concerned that nothing prevents the Board from again scheduling an annual meeting in March, as it did last year, despite the extended nomination deadline, which could create a severe disadvantage for any stockholder seeking to elect an opposition slate at the 2013 Annual Meeting. Therefore, in order to protect its interests and preserve all of its rights in connection with the 2013 Annual Meeting, Starboard V&O Fund delivered a letter to the Issuer on December 21, 2012 nominating Tudor Brown, George Cwynar, Peter A. Feld, Tom Lacey, George Riedel, Jeffrey C. Smith and Don Stout for election to the Board at the 2013 Annual Meeting. The Reporting Persons have not yet determined the total number of directors it will seek to elect at the 2013 Annual Meeting. The Reporting Persons believe significant change to the composition of the Board is warranted given the qualifications of their nominees, the long-term underperformance of the Issuer, and the serious corporate governance deficiencies at the Issuer. Depending on certain factors, including the number of directors up for election at the 2013 Annual Meeting and the Issuer’s financial and operational performance, the Reporting Persons reserve the right to either withdraw certain or all of its nominees or to nominate additional nominees for election to the Board at the 2013 Annual Meeting.
Item 5. Interest in Securities of the Issuer.
Items 5(a) - 5(c) are hereby amended and restated to read as follows:
The aggregate percentage of Shares reported owned by each person named herein is based upon 52,238,052 Shares outstanding, as of October 18, 2012, which is the total number of Shares outstanding as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 7, 2012.
| A. | Starboard V&O Fund |
| (a) | As of the close of business on December 20, 2012, Starboard V&O Fund beneficially owned 1,995,557 Shares. |
Percentage: Approximately 3.8%
| (b) | 1. Sole power to vote or direct vote: 1,995,557 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 1,995,557 4. Shared power to dispose or direct the disposition: 0 |
| (c) | The transactions in the Shares by Starboard V&O Fund since the filing of the Schedule 13D are forth in Schedule A and are incorporated herein by reference. |
| B. | Starboard LLC |
| (a) | As of the close of business on December 20, 2012, Starboard LLC beneficially owned 443,353 Shares. |
Percentage: Less than 1%
| (b) | 1. Sole power to vote or direct vote: 443,353 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 443,353 4. Shared power to dispose or direct the disposition: 0 |
| (c) | The transactions in the Shares by Starboard LLC since the filing of the Schedule 13D are forth in Schedule A and are incorporated herein by reference. |
| C. | Starboard Value LP |
| (a) | As of the close of business on December 20, 2012, 686,890 Shares were held in the Starboard Value LP Account. Starboard Value LP, as the investment manager of Starboard V&O Fund and the Manager of Starboard LLC, may be deemed the beneficial owner of the (i) 1,995,557 Shares owned by Starboard V&O Fund, (ii) 443,353 Shares owned by Starboard LLC and (iii) 686,890 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 6.0%
| (b) | 1. Sole power to vote or direct vote: 3,125,800 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 3,125,800 4. Shared power to dispose or direct the disposition: 0 |
| (c) | The transactions in the Shares by Starboard Value LP through the Starboard Value LP Account and on behalf of each of Starboard V&O Fund and Starboard LLC since the filing of the Schedule 13D are forth in Schedule A and are incorporated herein by reference. |
| D. | Starboard Value GP |
| (a) | Starboard Value GP, as the general partner of Starboard Value LP, may be deemed the beneficial owner of the (i) 1,995,557 Shares owned by Starboard V&O Fund, (ii) 443,353 Shares owned by Starboard LLC and (iii) 686,890 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 6.0%
| (b) | 1. Sole power to vote or direct vote: 3,125,800 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 3,125,800 4. Shared power to dispose or direct the disposition: 0 |
| (c) | Starboard Value GP has not entered into any transactions in the Shares during the past sixty days. The transactions in the Shares on behalf of each of Starboard V&O Fund, Starboard LLC and through the Starboard Value LP Account since the filing of the Schedule 13D are forth in Schedule A and are incorporated herein by reference. |
| E. | Principal Co |
| (a) | Principal Co, as a member of Starboard Value GP, may be deemed the beneficial owner of the (i) 1,995,557 Shares owned by Starboard V&O Fund, (ii) 443,353 Shares owned by Starboard LLC and (iii) 686,890 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 6.0%
| (b) | 1. Sole power to vote or direct vote: 3,125,800 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 3,125,800 4. Shared power to dispose or direct the disposition: 0 |
| (c) | Principal Co has not entered into any transactions in the Shares during the past sixty days. The transactions in the Shares on behalf of each of Starboard V&O Fund, Starboard LLC and through the Starboard Value LP Account since the filing of the Schedule 13D are forth in Schedule A and are incorporated herein by reference. |
| F. | Principal GP |
| (a) | Principal GP, as the general partner of Principal Co, may be deemed the beneficial owner of the (i) 1,995,557 Shares owned by Starboard V&O Fund, (ii) 443,353 Shares owned by Starboard LLC and (iii) 686,890 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 6.0%
| (b) | 1. Sole power to vote or direct vote: 3,125,800 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 3,125,800 4. Shared power to dispose or direct the disposition: 0 |
| (c) | Principal GP has not entered into any transactions in the Shares during the past sixty days. The transactions in the Shares on behalf of each of Starboard V&O Fund, Starboard LLC and through the Starboard Value LP Account since the filing of the Schedule 13D are forth in Schedule A and are incorporated herein by reference. |
| G. | Messrs. Smith, Mitchell and Feld |
| (a) | Each of Messrs. Smith, Mitchell and Feld, as a member of Principal GP and as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP, may be deemed the beneficial owner of the (i) 1,995,557 Shares owned by Starboard V&O Fund, (ii) 443,353 Shares owned by Starboard LLC and (iii) 686,890 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 6.0%
| (b) | 1. Sole power to vote or direct vote: 0 2. Shared power to vote or direct vote: 3,125,800 3. Sole power to dispose or direct the disposition: 0 4. Shared power to dispose or direct the disposition: 3,125,800 |
| (c) | None of Messrs. Smith, Mitchell or Feld has entered into any transactions in the Shares since the filing of the Schedule 13D. The transactions in the Shares on behalf of each of Starboard V&O Fund, Starboard LLC and through the Starboard Value LP Account since the filing of the Schedule 13D are forth in Schedule A and are incorporated herein by reference. |
None of Messrs. Brown, Cwynar, Lacey, Reidel and Stout own Shares or have entered into any transactions in the Shares.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
Item 6 is amended to add the following:
On December 21, 2012, the Reporting Persons entered into a Joint Filing and Solicitation Agreement in which, among other things, (a) the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer, (b) the Reporting Persons agreed to solicit proxies or written consents for the election of the Nominees at the 2013 Annual Meeting (the “Solicitation”), and (c) Starboard V&O Fund and Starboard LLC agreed to bear all expenses incurred in connection with the Solicitation, including approved expenses incurred by any of the parties in connection with the Solicitation, subject to certain limitations. The Joint Filing and Solicitation Agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Pursuant to letter agreements, Starboard V&O Fund has agreed to indemnify each of Messrs. Brown, Cwynar, Lacey, Reidel and Stout against any and all claims of any nature arising from the Solicitation and any related transactions. A form of the indemnification letter agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
Starboard V&O Fund has agreed to compensate Messrs. Brown, Cwynar, Lacey, Reidel and Stout for being named as and serving as nominees for election as directors of the Issuer pursuant to letter agreements (the “Compensation Letter Agreements”). Under the Compensation Letter Agreements, Starboard V&O Fund has agreed to pay each of Messrs. Brown, Cwynar, Lacey, Reidel and Stout (i) $10,000 in cash upon submission of the Nomination Letter to the Issuer and (ii) $10,000 in cash upon the filing of a definitive proxy statement with the SEC by Starboard relating to a solicitation of proxies in favor of Messrs. Brown, Cwynar, Lacey, Reidel and Stout’s election as directors of the Issuer at the 2013 Annual Meeting.
Pursuant to the Compensation Letter Agreements, each of Messrs. Brown, Cwynar, Lacey, Reidel and Stout agreed to use the after-tax proceeds from such compensation to acquire securities of the Issuer (the “Nominee Shares”) at such time that Messrs. Brown, Cwynar, Lacey, Reidel and Stout shall determine. If elected or appointed to serve as a director of the Board, each of Messrs. Brown, Cwynar, Lacey, Reidel and Stout agreed not to sell, transfer or otherwise dispose of any Nominee Shares within two years of their election or appointment as a director; provided, however, in the event that the Issuer enters into a business combination with a third party, each of Messrs. Brown, Cwynar, Lacey, Reidel and Stout may sell, transfer or exchange the Nominee Shares in accordance with the terms of such business combination. A form of the Compensation Letter Agreements is attached hereto as Exhibit 99.3 and is incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
| 99.1 | Joint Filing and Solicitation Agreement by and among Starboard Value and Opportunity Master Fund Ltd, Starboard Value and Opportunity S LLC, Starboard Value LP, Starboard Value GP LLC, Starboard Principal Co LP, Starboard Principal Co GP LLC, Jeffrey C. Smith, Mark R. Mitchell, Peter A. Feld, Tudor Brown, George Cwynar, Thomas Lacey, George Riedel and Donald Stout, dated December 21, 2012. |
| 99.2 | Form of Indemnification Letter Agreement. |
| 99.3 | Form of Compensation Letter Agreement. |
| 99.4 | Form of Power of Attorney. |
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: December 21, 2012
|
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD By: Starboard Value LP, its investment manager
Starboard Value and Opportunity S LLC By: Starboard Value LP, its manager
STARBOARD VALUE LP By: Starboard Value GP LLC, its general partner |
STARBOARD VALUE GP LLC By: Starboard Principal Co LP, its member
STARBOARD PRINCIPAL CO LP By: Starboard Principal Co GP LLC, its general partner
STARBOARD PRINCIPAL CO GP LLC |
| By: |
/s/ Jeffrey C. Smith | |
| Name: | Jeffrey C. Smith | |
| Title: | Authorized Signatory | |
|
/s/ Jeffrey C. Smith |
| JEFFREY C. SMITH |
| Individually and as attorney-in-fact for Mark R. Mitchell, Peter A. Feld, Tudor Brown, George Cwynar, Thomas Lacey, George Riedel and Donald Stout |
SCHEDULE A
Transactions in the Shares Since the Filing of Schedule 13D
|
Shares of Common Stock Purchased |
Price Per Share($) |
Date of Purchase |
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD
| 1,331 | 15.0786 | 12/13/2012 |
| 49,527 | 16.2595 | 12/19/2012 |
| 28,899 | 16.3879 | 12/20/2012 |
Starboard Value and Opportunity S LLC
| 294 | 15.0786 |
12/13/2012 |
| 10,936 | 16.2595 | 12/19/2012 |
| 6,381 | 16.3879 | 12/20/2012 |
STARBOARD VALUE LP
(Through the Starboard Value LP Account)
|
475 |
15.0786 | 12/13/2012 |
| 17,655 | 16.2595 | 12/19/2012 |
| 10,302 | 16.3879 | 12/20/2012 |
JOINT FILING AND SOLICITATION AGREEMENT
WHEREAS, certain of the undersigned are stockholders, direct or beneficial, of Tessera Technologies, Inc., a Delaware corporation (the “Company”);
WHEREAS, Starboard Value and Opportunity Master Fund Ltd, a Cayman Islands exempted company (“Starboard V&O Fund”), Starboard Value and Opportunity S LLC, a Delaware limited liability company (“Starboard LLC”), Starboard Value LP, a Delaware limited partnership, Starboard Value GP LLC, a Delaware limited liability company, Starboard Principal Co LP, a Delaware limited partnership, Starboard Principal Co GP LLC, a Delaware limited liability company, Jeffrey C. Smith, Mark R. Mitchell, Peter A. Feld, Tudor Brown, George Cwynar, Thomas Lacey, George Riedel and Donald Stout wish to form a group for the purpose of seeking representation on the Board of Directors of the Company (the “Board”) at the 2013 annual meeting of stockholders of the Company (including any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof, the “2013 Annual Meeting”) and for the purpose of taking all other action necessary to achieve the foregoing.
NOW, IT IS AGREED, this 21st day of December 2012 by the parties hereto:
1. In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), each of the undersigned (collectively, the “Group”) agrees to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Company. Each member of the Group shall be responsible for the accuracy and completeness of his/its own disclosure therein, and is not responsible for the accuracy and completeness of the information concerning the other members, unless such member knows or has reason to know that such information is inaccurate. Starboard or its representative shall provide each member of the Group with copies of all Schedule 13D filings and other public filings to be filed on behalf of such member at least 24 hours prior to the filing or submission thereof.
2. So long as this agreement is in effect, each of the undersigned shall provide written notice to Olshan Frome Wolosky LLP (“Olshan”) of (i) any of their purchases or sales of securities of the Company; or (ii) any securities of the Company over which they acquire or dispose of beneficial ownership. Notice shall be given no later than 24 hours after each such transaction.
3. Each of the undersigned agrees to form the Group for the purpose of (i) soliciting proxies or written consents for the election of the persons nominated by the Group to the Board at the 2013 Annual Meeting, (ii) taking such other actions as the parties deem advisable, and (iii) taking all other action necessary or advisable to achieve the foregoing.
4. Starboard V&O Fund and Starboard LLC shall have the right to pre-approve all expenses incurred in connection with the Group’s activities and agree to pay directly all such pre-approved expenses on a pro rata basis between Starboard V&O Fund and Starboard LLC based on the number of Shares in the aggregate beneficially owned by each of Starboard V&O Fund and Starboard LLC on the date hereof.
5. Each of the undersigned agrees that any SEC filing, press release or stockholder communication proposed to be made or issued by the Group or any member of the Group in connection with the Group’s activities set forth in Section 3 shall be first approved by Starboard, or its representatives, which approval shall not be unreasonably withheld.
6. The relationship of the parties hereto shall be limited to carrying on the business of the Group in accordance with the terms of this Agreement. Such relationship shall be construed and deemed to be for the sole and limited purpose of carrying on such business as described herein. Nothing herein shall be construed to authorize any party to act as an agent for any other party, or to create a joint venture or partnership, or to constitute an indemnification. Nothing herein shall restrict any party’s right to purchase or sell securities of the Company, as he/it deems appropriate, in his/its sole discretion, provided that all such sales are made in compliance with all applicable securities laws.
7. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same instrument, which may be sufficiently evidenced by one counterpart.
8. In the event of any dispute arising out of the provisions of this Agreement or their investment in the Company, the parties hereto consent and submit to the exclusive jurisdiction of the Federal and State Courts in the State of New York.
9. Any party hereto may terminate his/its obligations under this Agreement on 24 hours’ written notice to all other parties, with a copy by fax to Steve Wolosky at Olshan, Fax No. (212) 451-2222.
10. Each party acknowledges that Olshan shall act as counsel for both the Group and Starboard and its affiliates relating to their investment in the Company.
11. Each of the undersigned parties hereby agrees that this Agreement shall be filed as an exhibit to a Schedule 13D pursuant to Rule 13d-1(k)(1)(iii) under the Exchange Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
|
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD By: Starboard Value LP, its investment manager
Starboard Value and Opportunity S LLC By: Starboard Value LP, its manager
STARBOARD VALUE LP By: Starboard Value GP LLC, its general partner |
STARBOARD VALUE GP LLC By: Starboard Principal Co LP, its member
STARBOARD PRINCIPAL CO LP By: Starboard Principal Co GP LLC, its general partner
STARBOARD PRINCIPAL CO GP LLC |
| By: | /s/ Jeffrey C. Smith | |
| Name: | Jeffrey C. Smith | |
| Title: | Authorized Signatory | |
| /s/ Jeffrey C. Smith |
| JEFFREY C. SMITH |
| Individually and as attorney-in-fact for Mark R. Mitchell, Peter A. Feld, Tudor Brown, George Cwynar, Thomas Lacey, George Riedel and Donald Stout |
|
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD c/o Starboard Value LP 830 Third Avenue, 3rd Floor New York, New York 10022 |
December ___, 2012
Re: Tessera Technologies, Inc.
Dear ______________:
Thank you for agreeing to serve as a nominee for election to the Board of Directors of Tessera Technologies, Inc. (the “Company”) in connection with the proxy solicitation that Starboard Value and Opportunity Master Fund Ltd and its affiliates (collectively, the “Starboard Group”) is considering undertaking to nominate and elect directors at the Company’s 2013 annual meeting of stockholders, or any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof (the “Starboard Group Solicitation”). Your outstanding qualifications, we believe, will prove a valuable asset to the Company and all of its stockholders. This letter (“Agreement”) will set forth the terms of our agreement.
The members of the Starboard Group agree to jointly and severally indemnify and hold you harmless against any and all claims of any nature, whenever brought, arising from the Starboard Group Solicitation and any related transactions, irrespective of the outcome; provided, however, that you will not be entitled to indemnification for claims arising from your gross negligence, willful misconduct, intentional and material violations of law, criminal actions or material breach of the terms of this agreement; provided further, that upon your becoming a director of the Company, this indemnification shall not apply to any claims made against you in your capacity as a director of the Company. This indemnification will include any and all losses, liabilities, damages, demands, claims, suits, actions, judgments, or causes of action, assessments, costs and expenses, including, without limitation, interest, penalties, reasonable attorneys’ fees, and any and all reasonable costs and expenses incurred in investigating, preparing or defending against any litigation, commenced or threatened, any civil, criminal, administrative or arbitration action, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation asserted against, resulting, imposed upon, or incurred or suffered by you, directly or indirectly, as a result of or arising from the Starboard Group Solicitation and any related transactions (each, a “Loss”).
In the event of a claim against you pursuant to the prior paragraph or the occurrence of a Loss, you shall give the Starboard Group prompt written notice of such claim or Loss (provided that failure to promptly notify the Starboard Group shall not relieve us from any liability which we may have on account of this Agreement, except to the extent we shall have been materially prejudiced by such failure). Upon receipt of such written notice, the Starboard Group will provide you with counsel to represent you. Such counsel shall be reasonably acceptable to you. In addition, you will be reimbursed promptly for all Losses suffered by you and as incurred as provided herein. The Starboard Group may not enter into any settlement of loss or claim without your consent unless such settlement includes a release of you from any and all liability in respect of such claim.
You hereby agree to keep confidential and not disclose to any party, without the consent of the Starboard Group, any confidential, proprietary or non-public information (collectively, “Information”) of the Starboard Group, its affiliates or members of its Schedule 13D group which you have heretofore obtained or may obtain in connection with your service as a nominee hereunder. Notwithstanding the foregoing, Information shall not include any information that is publicly disclosed by the Starboard Group, its affiliates or members of its Schedule 13D group or any information that you can demonstrate is now, or hereafter becomes, through no act or failure to act on your part, otherwise generally known to the public.
Notwithstanding the foregoing, if you are required by applicable law, rule, regulation or legal process to disclose any Information you may do so provided that you first promptly notify the Starboard Group so that the Starboard Group or any member thereof may seek a protective order or other appropriate remedy or, in the Starboard Group’s sole discretion, waive compliance with the terms of this Agreement. In the event that no such protective order or other remedy is obtained or the Starboard Group does not waive compliance with the terms of this Agreement, you may consult with counsel at the cost of the Starboard Group and you may furnish only that portion of the Information which you are advised by counsel is legally required to be so disclosed and you will request that the party(ies) receiving such Information maintain it as confidential.
All Information, all copies thereof, and any studies, notes, records, analysis, compilations or other documents prepared by you containing such Information, shall be and remain the property of the Starboard Group and, upon the request of a representative of the Starboard Group, all such information shall be returned or, at the Starboard Group’s option, destroyed by you, with such destruction confirmed by you to the Starboard Group in writing.
This letter agreement shall be governed by the laws of the State of New York, without regard to the principles of the conflicts of laws thereof.
* * *
If you agree to the foregoing terms, please sign below to indicate your acceptance.
Very truly yours, | |
| STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD | |
| By: Starboard Value LP, its investment manager | |
| By: | |
| Name: | |
| Title: | |
ACCEPTED AND AGREED:
________________________
|
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD c/o Starboard Value LP 830 Third Avenue, 3rd Floor New York, New York 10022 |
December ___, 2012
______________
______________
Dear _____________:
This letter sets forth our mutual agreement with respect to compensation to be paid to you for your agreement to be named and serve as a nominee of a group of investors (the “Starboard Group”), including Starboard Value and Opportunity Master Fund Ltd, an affiliate of Starboard Value LP, for election as a director of Tessera Technologies, Inc. (the “Company”) at the Company’s 2013 annual meeting of stockholders including or any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof, (the “Annual Meeting”).
In consideration of your agreement to be named and serve as nominee of the Starboard Group for election as a director of the Company at the Annual Meeting, the undersigned hereby agrees to pay you (i) $10,000 in cash upon the Starboard Group submitting a letter to the Company nominating you for election as a director of the Company (with such payment to be made as soon as reasonably practicable after you have been nominated) and (ii) $10,000 in cash upon the filing by the Starboard Group of a definitive proxy statement with the U.S. Securities and Exchange Commission (the “Proxy Statement”) relating to a solicitation of proxies in favor of your election as a director of the Company at the Annual Meeting. You hereby agree to use the after-tax proceeds from such compensation, or an equivalent amount of other funds, to acquire securities of the Company (the “Nominee Shares”) at such time that you shall determine, but in any event no later than 14 days after receipt of such compensation; provided, however, in the event you are unable to transact in the securities of the Company due to possession of material non-public information or any other limitation or restriction, you shall have 14 days from the first date that you can transact in the securities of the Company to acquire such securities. If elected or appointed to serve as a director of the Company’s Board, you agree not to sell, transfer or otherwise dispose of any Nominee Shares within two (2) years of your election or appointment as a director; provided, however, in the event that the Company enters into a business combination with a third party, you may sell, transfer or exchange the Nominee Shares in accordance with the terms of such business combination.
The validity, interpretation, construction and performance of this letter agreement shall be governed by the laws of the State of New York, without regard to its principles of conflict of laws, and by applicable laws of the United States. The parties hereto consent to the jurisdiction of the New York State and United States courts located in New York County, New York for the resolution of any disputes hereunder and agree that venue shall be proper in any such court notwithstanding any principle of forum non conveniens and that service of process on the parties hereto in any proceeding in any such court may be effected in the manner provided herein for the giving of notices. The parties hereto waive trial by jury in respect of any such proceeding.
This letter agreement shall bind and inure to the benefit of you and your heirs, successors and assigns.
This letter agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument.
| STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD | |
| By: Starboard Value LP, its investment manager | |
| By: | |
| Name: | |
| Title: | |
Accepted and Agreed to:
______________________
POWER OF ATTORNEY
Know all by these presents, that the undersigned hereby constitutes and appoints Jeffrey C. Smith and Peter A. Feld, or either of them, the undersigned’s true and lawful attorney-in-fact to take any and all action in connection with (i) the undersigned’s beneficial ownership of, or participation in a group with respect to, securities of Tessera Technologies, Inc. (the “Company”) directly or indirectly beneficially owned by Starboard Value LP or any of its affiliates (collectively, the “Starboard Group”) and (ii) any proxy solicitation of the Starboard Group to elect the Starboard Group’s slate of director nominees to the board of directors of the Company at the 2013 annual meeting of stockholders of the Company (the “Solicitation”). Such action shall include, but not be limited to:
1. executing for and on behalf of the undersigned any Schedule 13D, and amendments thereto, filed by the Starboard Group that are required to be filed under Section 13(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) and the rules thereunder in connection with the undersigned’s beneficial ownership of, or participation in a group with respect to, securities of the Company or the Solicitation;
2. executing for and on behalf of the undersigned all Forms 3, 4 and 5 required to be filed under Section 16(a) of the Securities Exchange Act of 1934 and the rules thereunder in connection with the undersigned’s beneficial ownership of, or participation in a group with respect to, securities of the Company or the Solicitation;
3. executing for and on behalf of the undersigned all Joint Filing and Solicitation Agreements or similar documents pursuant to which the undersigned shall agree to be a member of the Starboard Group;
4. performing any and all acts for and on behalf of the undersigned that may be necessary or desirable to complete and execute any such document, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and
5. taking any other action of any type whatsoever in connection with the Solicitation, including entering into any settlement agreement, that in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's discretion.
The undersigned hereby grants to such attorney-in-fact full power and authority to do and perform any and every act and thing whatsoever requisite, necessary, or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the undersigned might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that such attorney-in-fact, or such attorney-in-fact’s substitutes, shall lawfully do or cause to be done by virtue of this Power of Attorney and the rights and powers herein granted. The undersigned acknowledges that the foregoing attorneys-in-fact, in serving in such capacity at the request of the undersigned, is not assuming any of the undersigned's responsibilities to comply with Section 13(d), Section 16 or Section 14 of the Exchange Act.
This Power of Attorney shall remain in full force and effect until the undersigned is no longer a member of the Starboard Group unless earlier revoked by the undersigned in a signed writing delivered to the foregoing attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this ___ day of December 2012.
______________________________