UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
The Brink's Company
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(Name of Issuer)
Common Stock, par value $1.00 per share
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(Title of Class of Securities)
109696104
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(CUSIP Number)
Thomas R. Hudson Jr.
Pirate Capital LLC
200 Connecticut Avenue, 4th Floor
Norwalk, CT 06854
(203) 854-1100
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 21, 2006
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(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 that 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 [_].
NOTE: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 7 Pages)
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* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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CUSIP NO. 109696104 SCHEDULE 13D PAGE 2 OF 7 PAGES
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
PIRATE CAPITAL LLC
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
-0-
-----------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 4,118,330
OWNED BY -----------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH -0-
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,118,330
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
4,118,330
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
[_]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.5%
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14 TYPE OF REPORTING PERSON*
IA
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* SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP NO. 109696104 SCHEDULE 13D PAGE 3 OF 7 PAGES
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
THOMAS R. HUDSON JR.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) [_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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7 SOLE VOTING POWER
-0-
-----------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 4,118,330
OWNED BY -----------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON WITH -0-
-----------------------------------------------------
10 SHARED DISPOSITIVE POWER
4,118,330
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
4,118,330
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
[_]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.5%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
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* SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP NO. 109696104 SCHEDULE 13D PAGE 4 OF 7 PAGES
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The Schedule 13D filed on January 17, 2006 by Pirate Capital LLC, a Delaware
limited liability company ("Pirate Capital"), and Thomas R. Hudson Jr.
(together, the "Reporting Persons"), relating to the shares of common stock,
$1.00 par value ("Shares"), of The Brink's Company (the "Issuer"), as amended by
Amendment No. 1 on August 9, 2006, is hereby amended by this Amendment No. 2 to
the Schedule 13D.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 is hereby amended and restated as follows:
Funds for the purchase of the Shares reported herein were derived from available
capital of the Holders (as defined below). A total of approximately $175,855,680
was paid to acquire such Shares.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 of the Schedule 13D is hereby amended by the addition of the following:
On November 21, 2006, Pirate Capital sent a letter to the board of directors of
the Issuer (the "Letter"), among other things, encouraging the board to (i) take
immediate steps to unlock long-term shareholder value by retaining an investment
bank to explore the sale of the Company and initiate a large Dutch tender offer
for the Shares, and (ii) immediately appoint Thomas R. Hudson Jr. to the board.
A copy of the Letter is attached hereto as Exhibit C and incorporated herein by
reference. On November 21, 2006, Jolly Roger Fund LP (the "Fund") notified the
Issuer of its intent to make the following proposal at the Issuer's 2007 annual
meeting of shareholders:
RESOLVED, that the shareholders of The Brink's Company recommend that the Board
of Directors immediately engage a nationally recognized investment banking firm
to explore all strategic alternatives (outside of the ordinary course of
business) to increase shareholder value, including, but not limited to, the sale
of the Company or a "Dutch" tender offer for the Company's common stock.
A copy of such notice is attached hereto as Exhibit D and incorporated herein by
reference. The Reporting Persons intend to solicit proxies on behalf of the
Fund's proposal. On November 21, 2006, the Fund also demanded the opportunity to
examine and copy certain books, records and documents of the Issuer pursuant to
Virginia law. A copy of such demand is attached hereto as Exhibit E and
incorporated herein by reference.
ITEM 5. INTEREST IN SECURITIES OF THE COMPANY.
Paragraphs (a), (b) and (c) of Item 5 of the Schedule 13D are hereby amended and
restated as follows:
(a) The Reporting Persons beneficially own 4,118,330 Shares, constituting
approximately 8.5% of the Shares outstanding.
The aggregate percentage of Shares beneficially owned by the Reporting
Persons is based upon 48,505,239 Shares outstanding as reported in the Issuer's
Quarterly Report on Form 10-Q for the quarter ended September 30, 2006.
(b) By virtue of its position as general partner of Jolly Roger Fund LP,
Pirate Capital has the power to vote or direct the voting, and to dispose or
direct the disposition of, all of the 412,382 Shares held by Jolly Roger Fund
LP. By virtue of agreements with Jolly Roger Offshore Fund LTD and Jolly Roger
Activist Portfolio Company LTD (together with Jolly Roger Fund LP, the
"Holders"), Pirate Capital LLC has the power to vote or direct the voting, and
to dispose or direct the disposition, of all of the 3,705,948 Shares held by
Jolly Roger Offshore Fund LTD and Jolly Roger Activist Portfolio Company LTD. By
virtue of his position as sole Managing Member of Pirate Capital, Thomas R.
Hudson Jr. is deemed to have shared voting power and shared dispositive power
with respect to all Shares as to which Pirate Capital has voting power or
dispositive power. Accordingly, Pirate Capital and Thomas R. Hudson Jr. are
deemed to have shared voting and shared dispositive power with respect to an
aggregate of 4,118,330 Shares.
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CUSIP NO. 109696104 SCHEDULE 13D PAGE 5 OF 7 PAGES
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(c) The following transactions in the Shares were effected by the
Reporting Persons during the past 60 days. All of the Shares were purchased or
sold in open market transactions.
Jolly Roger Fund LP
Trade Date Shares Purchased (Sold) Price per Share ($)
---------- ---------------- -------------------
9/27/2006 (7,300) 55.73
Jolly Roger Activist Portfolio Company LTD
Trade Date Shares Purchased (Sold) Price per Share ($)
---------- ---------------- -------------------
10/31/2006 7,600 52.45
11/01/2006 54,300 52.96
11/02/2006 17,400 52.61
11/03/2006 700 52.25
11/06/2006 23,836 52.60
11/08/2006 50,000 53.31
11/09/2006 10,000 53.45
Item 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 of the Schedule 13D is hereby amended by the addition of the following:
Exhibit A - Joint Acquisition Statement, dated February 17, 2006 (previously
filed)
Exhibit B - Letter to the board of directors, dated August 8, 2006 (previously
filed)
Exhibit C - Letter to the board of directors, dated November 21, 2006
Exhibit D - Shareholder notification letter, dated November 21, 2006
Exhibit E - Demand letter, dated November 21, 2006
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CUSIP NO. 109696104 SCHEDULE 13D PAGE 6 OF 7 PAGES
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SIGNATURES
After reasonable inquiry and to the best of their knowledge and belief, each of
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: November 21, 2006
PIRATE CAPITAL LLC
By: /s/ Thomas R. Hudson Jr.
------------------------
Name: Thomas R. Hudson Jr.
Title: Managing Manager
/s/ Thomas R. Hudson Jr.
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Thomas R. Hudson Jr.
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CUSIP NO. 109696104 SCHEDULE 13D PAGE 7 OF 7 PAGES
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EXHIBIT INDEX
Exhibit A - Joint Acquisition Statement, dated February 17, 2006 (previously
filed)
Exhibit B - Letter to the board of directors, dated August 8, 2006 (previously
filed)
Exhibit C - Letter to the board of directors, dated November 21, 2006
Exhibit D - Shareholder notification letter, dated November 21, 2006
Exhibit E - Demand letter, dated November 21, 2006
EXHIBIT C
November 21, 2006
VIA FACSIMILE (804.289.5760) & OVERNIGHT COURIER
Board of Directors
C/o Mr. Michael T. Dan
Chairman, President and Chief Executive Officer
The Brink's Company
1801 Bayberry Court
Richmond, Virginia 23226-8100
Dear Members of the Board:
Pirate Capital LLC, as the investment advisor to Jolly Roger Fund LP, Jolly
Roger Offshore Fund LTD and Jolly Roger Activist Portfolio Company LTD, is the
beneficial owner of approximately 4.1 million shares of the common stock of The
Brink's Company ("BCO" or the "Company"). As a long-term investor and as one of
the largest shareholders, we have urged BCO to maximize shareholder value by
retaining an investment bank to explore the sale of the Company. This request
has not been met and instead, based on management's posturing on the most recent
investor call, BCO appears to be pursuing an acquisition. We are concerned that
shareholder propositions are falling upon deaf ears.
Despite BCO's two premier security businesses, the Company has yet to be awarded
a deserving multiple. While we applaud the Board's successful strategic
initiatives, we believe that BCO remains an undervalued and underleveraged
company. We have urged BCO to engage an investment bank to explore the sale of
the Company, and we further call on the Company to immediately pursue a
substantial second Dutch tender offer for its stock. If the Board agrees that
BCO shares are undervalued then it is an opportune time to initiate a Dutch
tender. If the shares continue to trade at an unwarranted discount, we believe
substantial value will be realized through competitive bidding and the sale
process. We are confident that our proposals will unlock significant shareholder
value as evidenced by the success of the sale of BAX Global and the first Dutch
tender offer. Unfortunately, we have seen no progress towards the fulfillment of
these shareholder initiatives.
As one of the largest shareholders, we believe it is in the best interest of all
investors to have a significant shareholder presence on the Board in order to
ensure that shareholder objectives are properly deliberated. Accordingly, Pirate
Capital hereby requests that I be appointed to the Board immediately. We note
that the current Board and executive officers as a group beneficially owns only
approximately 2.1% of the BCO shares. Pirate Capital beneficially owns
approximately 8.5% of the BCO shares, or over four times as much as the combined
amount owned by the Board and executive officers. We believe that a Board seat
designated to Pirate Capital will substantially enhance the quality of the Board
by providing considerable shareholder interest at the Board level.
If the Company neglects to grant me a Board seat, I intend to run for election
at the upcoming annual meeting. Pirate Capital also intends to submit a formal
shareholder proposal, requesting that BCO retain an investment bank to explore
strategic alternatives, including the sale of the Company and a large Dutch
tender offer for the Company's stock. We have had meaningful conversations with
investment bankers and are highly confident that a number of financial and
strategic buyers would be interested in acquiring the Company at a considerable
premium to the current stock price. We look forward to working with the Board to
unlock significant shareholder value.
Sincerely,
/s/ Thomas R. Hudson Jr.
Thomas R. Hudson Jr.
Manager
EXHIBIT D
JOLLY ROGER FUND LP
200 Connecticut Avenue
4th Floor
Norwalk, CT 06854
November 21, 2006
VIA FACSIMILE (804.289.5760) & OVERNIGHT COURIER
The Brink's Company
1801 Bayberry Court
Richmond, Virginia 23226-8100
Attn: Corporate Secretary
RE: Shareholder Notice of Intent to Move Certain Business at the 2007 Annual
Meeting
Ladies and Gentlemen:
In accordance with Article IV, Section 12 of the Bylaws (the "Bylaws") of
The Brink's Company (the "Company") and the proxy statement of the Company
released to shareholders on or about March 24, 2006, Jolly Roger Fund LP, a
Delaware limited partnership (the "Fund"), hereby submits this written notice
(this "Notice") to the Company of its desire to have the shareholder proposal
(the "Proposal") together with the supporting statement (the "Supporting
Statement") attached hereto in Annex A included in the Company's proxy statement
in connection with its 2007 annual meeting of shareholders (including any
adjournments or postponements thereof or any special meeting that may be called
in lieu thereof) (the "Annual Meeting"). In accordance with Rule 14a-8 of the
Securities Exchange Act of 1934, as amended, the undersigned representative of
the Fund hereby represents that (i) the Fund is record holder of at least $2,000
in market value of the Company's shares of Common Stock (as defined below) and
has held such shares for the one-year period prior to the date hereof, and (ii)
the Fund intends to hold such shares through the date of the Annual Meeting.
The name and address of the Fund as it appears in the Company's stock
transfer books is Jolly Roger Fund LP, 200 Connecticut Avenue, 4th Floor,
Norwalk, Connecticut 06854. The Fund is the record and beneficial owner of 100
shares of common stock, $1 par value per share ("Common Stock"), of the Company
and the beneficial owner of an additional 412,282 shares of Common Stock (such
412,382 shares representing approximately .85% of the outstanding shares of
Common Stock). Pirate Capital LLC ("Pirate Capital"), whose principal business
is providing investment management services, is the general partner of the Fund.
The undersigned, Thomas R. Hudson Jr., is the Manager of Pirate Capital. Pirate
Capital is also the investment adviser to Jolly Roger Offshore Fund LTD and
Jolly Roger Activist Portfolio Company LTD, each an investment fund
(collectively with the Fund, the "Funds"), which are the beneficial owners,
respectively, of 3,542,112 shares of Common Stock (approximately 7.30% of the
outstanding shares), and 163,836 shares of Common Stock (approximately .34% of
the outstanding shares). Mr. Hudson is also a director of Jolly Roger Offshore
Fund LTD and Jolly Roger Activist Portfolio Company LTD. Pirate Capital and Mr.
Hudson, as the Manager of Pirate Capital, may be deemed to be the beneficial
owners of the 4,118,330 shares of Common Stock (approximately 8.49% of the
outstanding shares) that are collectively owned by the Funds. A representative
of the Fund intends to appear in person or by proxy at the Annual Meeting to
make the Proposal. The undersigned represents that the Fund intends to deliver a
proxy statement or form of proxy to the holders of at least the percentage of
the Company's outstanding capital stock required to approve or adopt the
Proposal or otherwise to solicit proxies from shareholders in support of the
Proposal.
The Proposal and the Supporting Statement relate to the Fund's desire to
have the Board of Directors of the Company hire an adviser to consider strategic
alternatives that will enhance shareholder value. The Supporting Statement
describes the Fund's reasons for making the Proposal at the Annual Meeting. The
Fund has no interest in the Proposal to be brought before the Annual Meeting
other than the interest which it shares in common with all other owners of
Common Stock, namely, an interest in seeing the Company achieve financial
prosperity and its participation through its shares of Common Stock in the
creation of shareholder value.
Please direct any questions regarding the information contained in this
Notice to Robert G. Marks, Esq., McGuireWoods LLP, 1750 Tysons Boulevard, Suite
1800, McLean, Virginia 22102-4215, (703) 712-5061, and Theodore Altman, Esq.,
DLA Piper US LLP, 1251 Avenue of the Americas, New York, New York 10020-1104,
(212) 335-4560.
Very truly yours,
JOLLY ROGER FUND LP
By: Pirate Capital LLC, its General Partner
By: /s/ Thomas R. Hudson Jr.
Name: Thomas R. Hudson Jr.
Title: Manager
Cc: Theodore Altman, Esq.
Robert G. Marks, Esq.
Annex A
-------
Proposal and Supporting Statement
---------------------------------
Proposal regarding Increasing Shareholder Value
RESOLVED, that the shareholders of The Brink's Company recommend that the Board
of Directors immediately engage a nationally recognized investment banking firm
to explore all strategic alternatives (outside of the ordinary course of
business) to increase shareholder value, including, but not limited to, the sale
of the Company or a "Dutch" tender offer for the Company's common stock.
Supporting Statement
Pirate Capital LLC, as the investment advisor to Jolly Roger Fund LP, Jolly
Roger Offshore Fund LTD and Jolly Roger Activist Portfolio Company LTD, is one
of the largest beneficial owners (according to its public filings) of The
Brink's Company ("BCO" or the "Company") and has been a long-term investor in
BCO. We provide this supporting statement to encourage our fellow shareholders
to vote FOR the proposal regarding increasing shareholder value and to thereby
recommend that the Board and management of BCO take immediate steps to unlock
long-term shareholder value by retaining a nationally recognized investment
banking firm to explore extraordinary strategic alternatives such as a sale of
the company or a Dutch tender offer for BCO's shares.
We believe that the market price of BCO shares fails to reflect (i) the value
embedded in its two premier security businesses, (ii) its identifiable and
valuable brand name and (iii) the stable cash flows generated by the Company.
Based on our experience and evaluation of peer companies, we believe that BCO's
share price has yet to be awarded a multiple that reflects BCO's value as a
globally known, pure play security company with an attractive balance sheet and
strong growth prospects.
We believe that retaining an investment bank to focus on broader strategic
alternatives will reveal a number of significant value enhancing opportunities
for the Company. We continue to be impressed by the current robust market for
mergers and acquisitions and the appetite of private equity firms. We believe
that a sale process for BCO could draw substantial interest from well
capitalized strategic parties or financial buyers who are willing to pay a
meaningful premium for a high quality business with strong cash flows. We
believe this is a good time for a transaction because the healthy debt markets
continue to support strong mergers and acquisitions activity.
PLEASE VOTE "FOR" THE PROPOSAL REGARDING INCREASING SHAREHOLDER VALUE.
[386 words]
EXHIBIT E
JOLLY ROGER FUND LP
4th Floor
200 Connecticut Avenue
Norwalk, CT 06854
November 21, 2006
VIA FACSIMILE (804.289.5760) & OVERNIGHT COURIER
The Brink's Company
1801 Bayberry Court
Richmond, Virginia 23226-8100
Attn: Corporate Secretary
Re: DEMAND FOR RIGHT TO INSPECT BOOKS AND RECORDS PURSUANT TO SECTION
13.1-771 OF THE VIRGINIA STOCK CORPORATION ACT
Ladies and Gentleman:
Jolly Roger Fund LP, an investment fund (the "Fund"), is the record owner of 100
shares of common stock, $0.01 par value per share ("Common Stock"), of The
Brink's Company (the "Company") and the beneficial owner of an additional
412,282 shares of Common Stock. The Fund has held such 100 shares for more than
six months immediately preceding the date hereof. Pirate Capital LLC ("Pirate
Capital"), whose principal business is providing investment management services,
is the general partner of the Fund. Thomas R. Hudson Jr. is the Manager of
Pirate Capital. Pirate Capital is also the investment adviser to Jolly Roger
Offshore Fund LTD and Jolly Roger Activist Portfolio Company LTD, each an
investment fund (collectively with the Fund, the "Funds"), which are the
beneficial owners, respectively, of 3,542,112 and 163,836 shares of Common
Stock. Mr. Hudson is also a director of Jolly Roger Offshore Fund LTD and Jolly
Roger Activist Portfolio Company LTD. Pirate Capital and Mr. Hudson, as the
Manager of Pirate Capital, may be deemed to be the beneficial owners of the
4,118,330 shares of Common Stock (approximately 8.49% of outstanding shares)
that are collectively owned by the Funds. The name and address of the Fund as we
believe it to appear in the Company's stock transfer books is Jolly Roger Fund
LP, 200 Connecticut Avenue, 4th Floor, Norwalk, Connecticut 06854. This is also
the business address of Pirate Capital and of the Funds (c/o Pirate Capital).
Pursuant to subsections A and B of Section 13.1-771 of the Virginia Stock
Corporation Act (the "VSCA"), as the record and beneficial owner of the shares
of Common Stock stated above, the Fund hereby demands that it and its attorneys
and agents be given, during regular business hours, the opportunity to inspect
and copy the following books, records and documents of the Company:
(a) A complete record or list of the shareholders of the Company,
certified by the Company's transfer agent(s) and/or registrar(s), setting forth
the name and address of, and the number, series and class of shares of stock of
the Company held by, each shareholder as of the date hereof, and as of any
record date established or to be established for the 2007 Annual Meeting of
Shareholders of the Company, including any adjournments, postponements,
reschedulings or continuations thereof or any special meeting that may be called
in lieu thereof (the "Annual Meeting");
(b) Relating to the list of shareholders and all other information
referred to in paragraph (a), a magnetic computer tape or other electronic
medium containing such information, the computer processing data necessary for
the Fund to make use of such information on magnetic computer tape or other
electronic medium and a hard copy printout of such information in order of
descending balance for verification purposes;
(c) All daily transfer sheets showing changes in the names and addresses
of the Company's shareholders and the number, series or class of shares of stock
of the Company held by the Company's shareholders that are in or come into the
possession of the Company or its transfer agent(s), or that can reasonably be
obtained from brokers, dealers, banks, clearing agencies or voting trusts or
their nominees from the date of the shareholder list referred to in paragraph
(a);
(d) Any stop transfer lists or stop lists relating to any shares of stock
of the Company and any additions, deletions, changes or corrections made
thereto;
(e) All information in or that comes into the Company's or its transfer
agent(s)' or registrar(s)' possession or control or that can reasonably be
obtained from brokers, dealers, banks, clearing agencies, voting trusts or their
nominees relating to the names and addresses of and number, series and class of
shares of stock of the Company held by the participating brokers and banks named
in the individual nominee names of Cede & Co. or other similar depositories or
nominees, including respondent bank lists, and all omnibus proxies and related
respondent bank proxies and listings issued pursuant to Rule 14b-2 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(f) All information in or that comes into the Company's possession or that
can reasonably be obtained from brokers, dealers, banks, clearing agencies,
voting trusts or their nominees relating to the names of the non-objecting
beneficial owners of the stock of the Company pursuant to Rule 14b-1(c) or Rule
14b-2(c) under the Exchange Act, on magnetic computer tape or other electronic
medium, such computer processing data as is necessary for the Fund to make use
of such information on magnetic computer tape or other electronic medium, and a
hard copy printout of such information in order of descending balance for
verification purposes. If such information is not in the Company's possession,
custody or control, such information should be requested from Automatic Data
Processing - Investor Communications Services;
(g) All lists on computer tapes or other electronic media and the relevant
processing data and printouts (as described in paragraph (b) above) containing
the name and address of and number, series and class of shares of stock of the
Company attributable to any participant in any employee stock ownership plan,
employee stock purchase plan or other employee compensation or benefit plan of
the Company in which the decision to vote shares of stock of the Company held by
such plan is made, directly or indirectly, individually or collectively, by the
participants in the plan and the method(s) by which the Fund or its agents may
communicate with each such participant, as well as the name, affiliation and
telephone number of the trustee or administrator of each such plan, and a
detailed explanation of the treatment not only of shares for which the trustee
or administrator receives instructions from participants, but also shares for
which either the trustee or administrator does not receive instructions or
shares that are outstanding in the plan but are unallocated to any participant;
(h) The Company's by-laws and all amendments then in effect; and
(i) All proposals and nominees for directors that the Company will include
in its proxy statement or otherwise plans to present to shareholders at the
Annual Meeting.
The Fund demands that all changes, modifications, additions or deletions to any
and all information referred to above be immediately furnished as such
modifications, additions or deletions become available to the Company or its
agents or representatives.
To the extent required by subsection C of Section 13.1-772 of the VSCA, the Fund
will bear the reasonable costs incurred by the Company including those of its
transfer agent(s) or registrar(s) in connection with the production,
reproduction and transmission of the information demanded.
The purpose of this demand is to enable the Fund and its affiliates to
communicate with the Company's shareholders on matters relating to their
interests as shareholders or beneficial owners with respect to a shareholder
proposal set forth in the Fund's notice to the Company of even date herewith
and, possibly, to facilitate and support a proxy solicitation of the Company's
shareholders to elect one or more members of the board of directors of the
Company, including the undersigned, which the Fund is contemplating but has not
decided upon.
In accordance with subsection A of Section 13.1-772 of the VSCA, the Fund hereby
designates and authorizes Robert G. Marks, Esq. of McGuireWoods LLP and any
other persons designated by him or by the Fund, acting singularly or in any
combination, to conduct the inspection and copying herein requested. It is
requested that the information identified above be made available to the
designated parties no later than December 1, 2006.
Please advise the Fund's counsel, Robert G. Marks of McGuireWoods LLP, at (703)
712-5061, and Theodore Altman of DLA Piper US LLP, at (212) 335-4560, as
promptly as practicable, when and where the items requested above will be made
available to the Fund. If the Company contends that this request is incomplete
or is otherwise deficient in any respect, please notify the Fund immediately in
writing, with copies to Robert G. Marks, Esq., McGuireWoods LLP, 1750 Tysons
Boulevard, Suite 1800, McLean, Virginia 22102-4215, facsimile (703) 712-5267,
and Theodore Altman, DLA Piper US LLP, 1251 Avenue of the Americas, New York,
New York 10020-1104, facsimile (212) 884-8560, setting forth the facts that the
Company contends support its position and specifying any additional information
believed to be required. In the absence of such prompt notice, the Fund will
assume that the Company agrees that this request complies in all respects with
the requirements of the VSCA and all other relevant laws. The Fund reserves the
right to withdraw or modify this request at any time.
Very truly yours,
JOLLY ROGER FUND LP
By: Pirate Capital LLC, its General Partner
By: /s/ Thomas R. Hudson Jr.
------------------------
Name: Thomas R. Hudson Jr.
Title: Manager
State of Connecticut )
)ss:
County of Fairfield )
This instrument was acknowledged before me on November 21, 2006 by Thomas R.
Hudson Jr. as Manager of Pirate Capital LLC, the General Partner
of Jolly Roger Fund LP.
Notary Public /s/ Stefanie Fletcher
---------------------
My commission expires: June 30, 2010
Cc: Theodore Altman, Esq.
Robert G. Marks, Esq.