Page 7 of 9 – SEC Filing
As of the close of business on the date hereof, Mr. Yanofksy may
be deemed to beneficially own 5,000 Shares, representing less than 0.1% of the Shares outstanding.
By virtue of the Nominee Agreement (as defined in Item 6 below) and Cooperation Agreement (as defined in Item
6 below), JANA, Mr. Murphy and Mr. Yanofsky may be deemed to have formed a “group” within the meaning of Section 13(d)(3)
of the Exchange Act and may be deemed to beneficially own an aggregate of 8,135,480
Shares, representing approximately 8.91% of the outstanding Shares. Each of Mr. Murphy and Mr. Yanofsky expressly disclaims beneficial
ownership of the Shares beneficially owned by JANA and each other. JANA expressly disclaims beneficial ownership of the Shares
beneficially owned by each of Mr. Murphy and Mr. Yanofsky.
(b) JANA has sole voting and dispositive power over 7,980,480
Shares, which power is exercised by the Principal. Mr. Murphy has sole voting and dispositive power over the 150,000 Shares beneficially
owned by him. Mr. Yanofksy has sole voting and dispositive power over the 5,000 Shares beneficially owned by him.
(c) Information concerning transactions
in the Shares effected by the Reporting Persons during the past sixty days is set forth in Exhibit A hereto and is incorporated
herein by reference. All of the transactions in Shares listed hereto were effected in the open market through various brokerage
entities.
(d) No person (other than the Reporting
Persons) is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale
of, the Shares.
(e) Not applicable.
| Item 6. | CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. |
Mr. Yanofsky has entered into
a nominee agreement (the “Nominee Agreement“) with JANA substantially in the form attached as Exhibit
B to this Schedule 13D whereby he agreed to become a member of a slate of nominees (the “Slate“) and
stand for election as a director of the Issuer in connection with a proxy solicitation (the “Proxy
Solicitation“) which may be conducted by JANA in respect of the 2018 or 2019 annual meeting of stockholders of the
Issuer (such applicable meeting, the “Annual Meeting“). Pursuant to the Nominee Agreement, JANA has agreed
to pay the costs of soliciting proxies in connection with each Annual Meeting, and to defend and indemnify Mr. Yanofsky
against, and with respect to, any losses that may be incurred by him in the event he becomes a party to litigation based on
his nomination as a candidate for election to the Issuer’s board and the solicitation of proxies in support of his election.
Mr. Yanofsky received compensation under the Nominee Agreement in the amount of $90,000, and an additional $100,000 in the
event of his appointment or election. Mr. Yanofsky agreed to hold Shares with a market-value equal to $190,000 (adjusted for
taxes) as of the date of his election or appointment, subject to certain exceptions, until the later of when he is no longer a
director of the Issuer and three years. A copy of the form of the Nominee Agreement is attached as Exhibit B and is
incorporated by reference herein.
JANA also entered into a cooperation agreement with Mr. Murphy (the “Cooperation Agreement“)
substantially in the form attached as Exhibit C to this Schedule 13D whereby Mr. Murphy has agreed to comply with certain
confidentiality obligations and trading restrictions. A copy of the form of the Cooperation Agreement is attached as Exhibit
C and is incorporated by reference herein.
Except as otherwise set forth herein
and the joint filing agreement attached hereto as Exhibit D, the Reporting Persons have no contracts, arrangements, understandings
or relationships with any person with respect to the securities of the Issuer.
