exv10w1






Exhibit 10.1




AGREEMENT




     THIS AGREEMENT (“Agreement”), dated as of September 14, 2010, is made by and between
Aviat Networks, Inc., a Delaware corporation (the “Company”), and the entities and natural
persons listed on Schedule A hereto and their affiliates (collectively, the “Ramius
Group”) (each of the Company and the Ramius Group, a “Party” to this Agreement, and
collectively, the “Parties”).



     WHEREAS, the Ramius Group may be deemed to beneficially own shares of common stock of the
Company (the “Common Stock”) totaling, in the aggregate, 4,528,806 shares, or
approximately 7.6% of the Common Stock issued and outstanding on the date hereof;



     WHEREAS, the Ramius Group has proposed that the Company nominate one of two individuals (the
“Ramius Candidates”) recommended by the Ramius Group for election as a director at the
Company’s 2010 annual meeting of stockholders (the
“Annual Meeting”) and the Company is
willing to make such nomination, subject to the terms set forth herein.



     NOW, THEREFORE, in consideration of the premises and the representations, warranties, and
agreements contained herein, and other good and valuable consideration, the Parties mutually agree
as follows:



     1. Representations
and Warranties of the Ramius Group. The Ramius Group represents and
warrants to the Company that (a) this Agreement has been duly authorized, executed and delivered by
the Ramius Group, and is a valid and binding obligation of the Ramius Group, enforceable against
the Ramius Group in accordance with its terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar
laws generally affecting the rights of creditors and subject to general equity principles; (b) the
execution of this Agreement, the consummation of any of the transactions contemplated hereby, and
the fulfillment of the terms hereof, in each case in accordance with the terms hereof, will not
conflict with, or result in a breach or violation of the organizational documents of the Ramius
Group as currently in effect; and (c) the Ramius Group have not paid and will not pay any
compensation or other form of consideration to either of the Ramius Candidates in connection with
the subject matter of this Agreement.



     2. Representations and Warranties of the Company. The Company hereby represents and
warrants to the Ramius Group that (a) this Agreement has been duly authorized, executed and
delivered by the Company, and is a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar
laws generally affecting the rights of creditors and subject to general equity principles; and (b)
the execution of this Agreement, the consummation of any of the transactions contemplated hereby,
and the fulfillment of the terms hereof, in each case in accordance with the terms hereof, will not
conflict with, result in a breach or violation of, constitute a default (or an event which with
notice or lapse of time or both could become a default) under or pursuant to, result in the loss of
a material benefit or give any right of termination, amendment, acceleration or cancellation under,
or result in the imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any law, any order of any court or other agency of
government, the Company’s Amended and Restated Certificate of Incorporation (the
“Certificate of



 









 




Incorporation”), the Company’s Amended and Restated Bylaws (the “Bylaws”), or the
terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which the Company is a party or
bound or to which its property or assets is subject.




     3. Nomination of Ramius Nominee.



          (a) The Company will include one candidate previously recommended to the Company by the Ramius
Group in writing, as determined by the Governance and Nominating Committee and the Board of
Directors (the “Board”) of the Company in their sole discretion, as a nominee as part of
management’s slate for election as a director of the Company at the Annual Meeting (the “Ramius
Nominee”). The Company will recommend, support and solicit proxies for the election of the
Ramius Nominee in the same manner as for the Company’s other nominees for election at the Annual
Meeting. The size of the Board of Directors giving effect to the election of directors at the
Annual Meeting will not exceed eight (8).




          (b) The Company agrees that if the Ramius Nominee resigns or is otherwise unable to serve as a
director or is removed for cause as a director, the Ramius Group shall be entitled to designate an
individual to replace the Ramius Nominee who (i) qualifies as “independent” under the Nasdaq
corporate governance standards, (ii) is not an Affiliate of any member of the Ramius Group, (iii)
has relevant business and financial experience, and (iv) is reasonably acceptable to the Governance
and Nominating Committee of the Company. In the event the Governance and Nominating Committee
does not accept a replacement director(s) recommended by the Ramius Group, the Ramius Group will
have the right to recommend additional replacement director(s) for consideration by the
Governance and Nominating Committee. Upon the acceptance of a replacement director nominee by
the Nominating and Corporate Governance Committee, the Board will appoint such replacement director
to the Board no later than five (5) business days after the Nominating and Corporate Governance
Committee’s recommendation of such replacement director (any such replacement director appointed in
accordance with the provisions of this Section 3(b) shall be referred to as the “Ramius
Nominee” for the purposes of this Agreement).




     4. Standstill
Restrictions.



          (a) Each member of the Ramius Group agrees that, from the date of this Agreement until the
date that is the earlier of (x) ten (10) business days prior to the deadline for the submission of
stockholder nominations for the 2011 annual meeting of stockholders (the “2011 Annual
Meeting”) and (y) one year from the date of this Agreement (the “Standstill Period”),
neither it nor any of its Affiliates or Associates under its control or direction will, and it
will cause each of its Affiliates and Associates under its control not to, directly or indirectly,
in any manner:




               (i) engage in any solicitation of proxies or consents or become a “participant” in a
“solicitation” (as such terms are defined in Regulation 14A under the Securities Exchange Act of
1934, as amended or the rules or regulations thereunder (the “Exchange Act”)) of proxies
or consents (including, without limitation, any solicitation or nomination pursuant to Rule 14a-11 under the Exchange Act), in each case, with respect to securities of the Company;



               (ii) purchase or cause to be purchased or otherwise acquire or agree to acquire beneficial
ownership (as determined under Rule 13d-3 promulgated under the Exchange



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Act) of any Common Stock or other securities issued by the Company, if in any such case,
immediately after the taking of such action, the Ramius Group would, in the aggregate, collectively
beneficially own more than 14.99% of the then outstanding shares of Common Stock;




               (iii) form, join or in any way participate in any “group” (within the meaning of Section
13(d)(3) of the Exchange Act) with respect to the Common Stock (other than a “group” that includes
any Affiliates or Associates of any member of the Ramius Group or all or some lesser number of the
persons identified as part of the Ramius Group, but does not include any other members who are not
an Affiliate or Associate of any member of the Ramius Group or otherwise currently identified as
Ramius Group members as of the date hereof);



               (iv) deposit any Common Stock in any voting trust or subject any Common Stock to any
arrangement or agreement with respect to the voting of any Common Stock, other than any such voting
trust, arrangement or agreement solely among the Ramius Group;



               (v) control or seek to control the Board, other than through non public communications with
the officers and directors of the Company;



               (vi) seek or encourage any person (other than any member of the Ramius Group) to submit
nominations in furtherance of a “contested solicitation” for the election or removal of directors
with respect to the Company or any solicitation or nomination pursuant to Rule 14a-11 under the
Exchange Act;



               (vii) (1) make any proposal for consideration by stockholders at any
meeting of stockholders or action by consent in lieu thereof or (2) make any public proposal with
respect to a merger, acquisition, disposition or other business combination involving the Company
or any of its subsidiaries; provided, however, that nothing herein will limit the ability of (x)
any member of the Ramius Group, or its respective Affiliates and Associates, except as otherwise
provided in Section 5, to vote its shares of Common Stock on any matter submitted to a vote of the
stockholders of the Company or (y) the Ramius Group to announce its opposition to any Board
approved proposals related to a merger, acquisition, disposition of all or substantially all of the
assets of the Company or other business combination involving the Company;



               (viii) seek, alone or in concert with others, representation on the Board or the removal of
any member of the Board, except as specifically contemplated in Section 3; or



               (ix) make any request to amend, waive or terminate any provision of
this Agreement, other than through non public communications with the officers and directors of the
Company that do not trigger any disclosure obligation on the part of any member of the Ramius
Group.



          (b) Notwithstanding anything contained herein to the contrary, except as expressly
provided in Section 5, each member of the Ramius Group shall be entitled to:




               (i) vote their shares on any proposal duly brought before the Annual Meeting, or otherwise
vote on any matter as each member of the Ramius Group determines in its sole discretion; and



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               (ii) disclose, publicly or otherwise, how it intends to vote or act with respect to any
securities of the Company, any stockholder proposal or other matter to be voted on by the
stockholders of the Company (other than the election of directors) and the reasons therefor;



          (c) As used in this Agreement, the terms “Affiliate” and “Associate” shall have the respective
meanings set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act.




          (d) In the event that the Company is in material breach of its obligations under this
Agreement, including, without limitation, a failure to comply in any respect with the provisions of
Section 3 of this Agreement, and such breach is not cured within 30 days after written notice
thereof is provided to the Company by the Ramius Group, then in addition to any other remedies that
the members of the Ramius Group may have, the provisions of this Section 4 shall also terminate.




          (e) In the event that the Ramius Group is in material breach of its obligations under this
Agreement, and such breach is not cured within 30 days after written notice thereof is provided to
the Ramius Group by the Company, then in addition to any other remedies that the Company may have,
the provisions of Section 3 shall also terminate.




     5. Actions by the Ramius Group. At the Annual Meeting, the Ramius Group shall vote, and cause
their respective officers, directors, employees and agents to vote, all of the shares of Common
Stock beneficially owned by them for (i) each of the Company’s nominees for election to the Board
and (ii) the ratification of the appointment of the Company’s independent auditors. The Ramius
Group shall not submit any nominations or proposals for consideration by the stockholders of the
Company at the Annual Meeting.



     6. Public Announcement. The Company and the Ramius Group shall promptly disclose the existence
of this Agreement after its execution pursuant to a joint press release that is mutually acceptable
to the parties, including a description of the material terms of this Agreement. Subject to
applicable law, none of the Parties shall disclose the existence of this Agreement until the joint
press release is issued.



     7. Remedies.



          (d) Each of the Parties acknowledges and agrees that a breach or threatened breach by any
Party may give rise to irreparable injury inadequately compensable in damages, and accordingly each
Party shall be entitled to seek injunctive relief to prevent a breach of the provisions hereof and
to enforce specifically the terms and provisions hereof in any state or federal court having
jurisdiction, in addition to any other remedy to which such aggrieved Party may be entitled to at
law or in equity.




          (e) In the event a Party institutes any legal action to enforce such Party’s rights under, or
recover damages for breach of this Agreement, the prevailing party or parties in such action shall
be entitled to recover from the other party or parties all costs and expenses, including but not
limited to reasonable attorneys’ fees, court costs, witness fees, disbursements and any other
expenses of litigation or negotiation incurred by such prevailing party or parties.




     8. Expenses. The Company shall reimburse the Ramius Group for its reasonable, documented
out-of-pocket fees and expenses incurred (including legal expenses) in connection



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with the Schedule 13D, matters related to the Annual Meeting and the negotiation and execution of
this Agreement, provided that such reimbursement shall not exceed $5,000 in the aggregate.




     9. Notices. Any notice or other communication required or permitted to be given under this
Agreement will be sufficient if it is in writing, sent to the applicable address set forth below
(or as otherwise specified by a Party by notice to the other Parties in accordance with this
Section 9) and delivered personally or sent by recognized overnight courier, postage prepaid, and
will be deemed given (a) when so delivered personally, or (b) if sent by recognized overnight
courier, one day after the date of sending.


If to the Company:



Aviat Networks, Inc.

5200 Great America Parkway

Santa Clara, California 95054

Attention: Meena L. Elliott

Telephone: (408) 567-7000

Facsimile: (408) 567-7001



with a copy to:



Wilson Sonsini Goodrich & Rosati PC

1301 Avenue of the Americas

New York, New York 10019

Attention: Warren de Wied

Telephone: (212) 999-5800

Facsimile: (212) 999-5899



If to the Ramius Group:



Ramius Value and Opportunity Master Fund Ltd

c/o Ramius Value and Opportunity Advisors LLC

599 Lexington Avenue, 20th Floor

New York, New York 10022

Attention: Jeffrey C. Smith

                 Owen S. Littman

Telephone: (212) 845-7900

Facsimile: (212) 845-7995



with a copy to:



Olshan Grundman Frome Rosenzweig & Wolosky LLP

Park Avenue Tower

65 East 55th Street

New York, New York 10022

Attention: Steve Wolosky

                 Andrew Freedman

Telephone: (212) 451-2300

Facsimile: (212) 451-2222




     10. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions of the Parties in connection with the subject matter
hereof.



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     11. Counterparts; Facsimile. This Agreement may be executed in any number of counterparts and
by the Parties in separate counterparts, and signature pages may be delivered by facsimile, each of
which when so executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.



     12. Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.



     13. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, without regard to choice of law principles that
would compel the application of the laws of any other jurisdiction.



     14. Severability. In the event one or more of the provisions of this Agreement should, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had never been contained
herein.



     15. Successors and Assigns. This Agreement shall not be assignable by any of the Parties. This
Agreement, however, shall be binding on successors of the Parties.



     16. Amendments. This Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement executed by all of the Parties.



     17. Releases.



     (a) The Ramius Group hereby agrees for the benefit of the Company, and each controlling
person, officer, director, stockholder, agent, Affiliate, employee, partner, attorney, heir,
assign, executor, administrator, predecessor and successor, past and present, of the Company (the
Company and each such person being a “Company Released Person”) as follows:



     (i) The Ramius Group, for themselves and for their members, officers, directors, assigns,
agents and successors, past and present, hereby agrees and confirms that, effective from and after
the date of this Agreement, they hereby acknowledge full and complete satisfaction of, and
covenant not to sue, and forever fully release and discharge each Company Released Person of, and
hold each Company Released Person harmless from, any and all rights, claims, warranties, demands,
debts, obligations, liabilities, costs, attorneys’ fees, expenses, suits, losses and causes of
action of any nature whatsoever, whether known or unknown, suspected or unsuspected (collectively,
“Claims”) that the Ramius Group may have against the Company Released Persons, in each
case with respect to events occurring prior to the date of the execution of this Agreement.



     (ii) The Ramius Group understands and agrees that the Claims released by the Ramius Group
above include not only those Claims presently known but also include all unknown or unanticipated
claims, rights, demands, actions, obligations, liabilities, and causes of action of every kind and
character that would otherwise come within the scope of the Claims as described above. The Ramius
Group understands that they may hereafter discover facts different from or in addition to what
they now believe to be true, which if known, could have materially affected this release of
Claims, but they nevertheless waive any claims or rights based on different or additional facts.



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          (b) The Ramius Group agrees that, during the term of the Agreement, (i) no member of the
Ramius Group shall, without the consent of the Company, instigate, solicit, assist, intervene in,
or otherwise voluntarily participate in any litigation or arbitration in which the Company or any
of its officers or directors are named as parties; provided that the foregoing shall not prevent
any member of the Ramius Group from responding to a validly issued legal process and (ii) the
Ramius Group agrees to give the Company at least five (5) business days notice of the receipt of
any legal process requesting information regarding the Company or any of its officers or directors,
to the extent that such notice is legally permissible.




          (c) The Company hereby agrees for the benefit of the Ramius Group, and each controlling
person, officer, director, stockholder, agent, Affiliate, employee, partner, attorney, heir,
assign, executor, administrator, predecessor and successor, past and present, thereof, as well as
each Ramius Director (the Ramius Group and each such person being a “Stockholder Released
Person”) as follows:




          (i) The Company, for itself and for its Affiliates, officers, directors, assigns, agents and
successors, past and present, hereby agrees and confirms that, effective from and after the date of
this Agreement, it hereby acknowledges full and complete satisfaction of, and covenants not to sue,
and forever fully releases and discharges each Stockholder Released Person of, and holds each
Stockholder Released Person harmless from, any and all Claims of any nature whatsoever, whether
known or unknown, suspected or unsuspected, that the Company may have against the Stockholder
Released Persons, in each case with respect to events occurring prior to the date of the execution
of this Agreement.




          (ii) The Company understands and agrees that the Claims released by the Company above include
not only those Claims presently known but also include all unknown or unanticipated claims,
rights, demands, actions, obligations, liabilities, and causes of action of every kind and
character that would otherwise come within the scope of the Claims as described above. The Company
understands that it may hereafter discover facts different from or in addition to what it now
believes to be true, which if known, could have materially affected this release of Claims, but it
nevertheless waives any claims or rights based on different or additional facts.




          (d) The Parties intend that the foregoing release be broad with respect to the matter
released, provided, however, this release of Claims shall not include claims to enforce the terms
of this Agreement; and provided further that nothing in the foregoing release shall be deemed or
construed, now or hereafter, as limiting in any manner any right of indemnification inuring to the
benefit of any director or former director of the Company arising under the Certificate of
Incorporation, the Bylaws or otherwise.




     18. Termination. This Agreement shall terminate and the obligations of the Parties under this
Agreement shall cease on the earliest of the following (the “Termination Date”):



          (a) at the option of the Company, provided it is not in material breach of this
Agreement at such time, upon a material breach by the Ramius Group of any obligation
hereunder which has not been cured within thirty (30) days after the Ramius Group receives
notice of such breach from the Company;




          (b) at the option of the Ramius Group, provided it is not in material breach of this Agreement
at such time, upon a material breach by the Company of any obligation hereunder




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which has not been cured within thirty (30) days after the Company receives notice of such
breach from the Ramius Group;




          (c) on the date that is the earlier of (i) ten (10) days prior to the deadline for the
nomination of directors for election or the submission of proposals to be considered at the 2011
Annual Meeting pursuant to the Bylaws as then in effect or (ii) one year from the date of this
Agreement; or




          (d) at any time, upon the written consent of all of the Parties.




     19. Further Action. Each Party agrees to execute such additional reasonable documents, and to
do and perform such reasonable acts and things necessary or proper to effectuate or further
evidence the terms and provisions of this Agreement.



[Signatures are on the following page.]





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     IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first
above written.



	 	 	 	 	 
	AVIAT NETWORKS, INC.
 	 	 
	By:  	/s/ Meena Elliott
 	 	 
	 	Name:  	Meena Elliott 	 	 
	 	Title:  	VP, General Counsel, Secretary 	 	 
	 




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	THE RAMIUS GROUP:	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RAMIUS VALUE AND OPPORTUNITY	 	 	 	RAMIUS VALUE AND OPPORTUNITY  
	MASTER FUND LTD	 	 	 	ADVISORS LLC
	By:

	 	Ramius Value and Opportunity Advisors LLC,
	 	 	 	By:
	 	Ramius LLC,	 	 	 	 	 	 
	 

	 	its investment manager
	 	 	 	 	 	its sole member	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RAMIUS NAVIGATION MASTER FUND LTD	 	 	 	RAMIUS ADVISORS, LLC
	By:

	 	Ramius Advisors, LLC,
	 	 	 	By:
	 	Ramius LLC	 	 	 	 	 	 
	 

	 	its investment advisor
	 	 	 	 	 	its sole member	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RAMIUS ENTERPRISE MASTER FUND LTD	 	 	 	RAMIUS LLC
	By:

	 	Ramius Advisors, LLC,
	 	 	 	By:
	 	Cowen Group, Inc.,	 	 	 	 	 	 
	 

	 	its investment advisor
	 	 	 	 	 	its sole member	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RAMIUS OPTIMUM INVESTMENTS LLC	 	 	 	COWEN GROUP,
INC.


	By:

	 	Ramius Advisors, LLC,	 	 	 	RCG HOLDINGS LLC
	 

	 	its managing member
	 	 	 	By:
	 	C4S & Co., L.L.C.,	 	 	 	 	 	 
	 

	 	
	 	 	 	 	 	its managing member	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	COWEN OVERSEAS INVESTMENT LP	 	 	 	C4S & CO., L.L.C.
	By:

	 	Ramius Advisors, LLC,
its general partner	 	 	 	 	 	 	 	 	 	 	 	 






	 	 	 	 	 
	 	By:  	/s/ Owen S. Littman
 	 
	 	 	Name:  	Owen S. Littman 	 
	 	 	Title: Authorized Signatory 	 



 









 





	 	 	 	 	 
	 	 	 
	/s/ Owen S. Littman
 	 	 
	OWEN S. LITTMAN 	 	 
	Individually and as attorney-in-fact for

Peter A. Cohen, Jeffrey M. Solomon,

Morgan B. Stark and Thomas W. Strauss 	 	 



 









 





Schedule A




The Ramius Group



RAMIUS VALUE AND OPPORTUNITY MASTER FUND LTD




RAMIUS NAVIGATION MASTER FUND LTD




RAMIUS ENTERPRISE MASTER FUND LTD




RAMIUS OPTIMUM INVESTMENTS LLC




COWEN OVERSEAS INVESTMENT LP




RAMIUS VALUE AND OPPORTUNITY ADVISORS, LLC




RAMIUS ADVISORS, LLC




RAMIUS LLC




COWEN GROUP, INC.




RCG HOLDINGS LLC




C4S & CO., L.L.C.




JEFFREY M. SOLOMON




PETER A. COHEN




MORGAN B. STARK




THOMAS W. STRAUSS