Page 5 of 8 – SEC Filing
The following constitutes Amendment No. 12 to the Schedule 13D filed
by the undersigned (“Amendment No. 12“). This Amendment No. 12 amends the Schedule 13D as specifically set forth
herein.
| Item 4. | PURPOSE OF TRANSACTION |
| Item 4 is hereby amended to add the following: |
| On December 19, 2017, the Reporting Persons and the Issuer entered into an agreement (the “Letter Agreement“) pursuant to which Dave Miller, a Senior Portfolio Manager at Elliott Management Corp., will be appointed to fill the vacancy resulting from the resignation of Patrice E. Merrin as a member of the Issuer’s Board (the “New Director“), in satisfaction of the Reporting Persons’ right to designate a replacement pursuant to paragraph 5 of the Settlement Agreement (previously filed as Exhibit 99.1 to Amendment No. 10). The New Director will be deemed an “Elliott Nominee” as defined in, and for purposes of, the Settlement Agreement. In addition, the Board and the Governance and Nominating Committee of the Board have agreed to nominate and recommend (and not change such recommendation in a manner adverse to the New Director unless required to do so by the Board’s fiduciary duty) that the Issuer’s shareholders vote in favor of the New Director or, subject to certain limitations, another designee of the Reporting Persons for re-election at the Issuer’s 2018 annual meeting of shareholders (the “2018 Annual Meeting“), and the Issuer has agreed to use its reasonable best efforts to cause the re-election of the New Director to the Board at the 2018 Annual Meeting and otherwise support the New Director for re-election at the 2018 Annual Meeting in a manner no less rigorous and favorable than the manner in which the Issuer supports its other nominees. Until such time as the Reporting Persons and their controlling and controlled affiliates’ aggregate beneficial ownership decreases to less than 5.0% of the Issuer’s outstanding Common Stock, if the Board or the Governance and Nominating Committee of the Board determine not to nominate and recommend the New Director for re-election at any subsequent annual meeting of the Issuer’s shareholders after the 2018 Annual Meeting, the Issuer has agreed to provide notice of such determination to the Reporting Persons no less than thirty (30) days prior to the deadline (pursuant to the certificate of incorporation of the Issuer, its bylaws, or otherwise) for shareholders to nominate a person for election as a director at such annual meeting of the Issuer’s shareholders. |
| The Reporting Persons have agreed that at all times while the New Director is serving as a member of the Board, the Reporting Persons shall be subject to certain restrictions including restrictions regarding engaging in certain transactions related to securities of the Issuer. |
| In conjunction with the Letter Agreement, the Issuer and the Reporting Persons have also entered into a confidentiality agreement regarding any non-public information that may be received by the Reporting Persons following the appointment of the New Director to the Board and a registration rights agreement obligating the Issuer to file a resale registration statement relating to the resale by the Reporting Persons of their shares of Common Stock (the “Registration Rights Agreement“). |
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