Page 7 of 10 – SEC Filing
If the Scopia Appointee is appointed to the Board prior to the mailing of the Issuers definitive proxy
statement for the Issuers 2018 Annual Meeting of Stockholders (the 2018 Annual Meeting), then the Scopia Appointee shall stand for election at the 2018 Annual Meeting together with the Issuers other nominees. The Issuer
agreed pursuant to the Agreement that the Board will nominate, recommend, support and solicit proxies for the election to the Board at the 2018 Annual Meeting for terms expiring at the Issuers 2019 Annual Meeting of Stockholders (the
2019 Annual Meeting) for each Agreed Appointee, Continuing Director, Scopia Appointee (including a Scopia Replacement Director, if applicable) and one director designated by another investor pursuant to the terms of an agreement that the
Issuer will be independently entering into with the other investor. The Issuer agreed to hold the 2018 Annual Meeting no later than June 30, 2018. In addition, during the Standstill Period (as defined below) the Issuer
agreed (i) not to seek shareholder approval or take any other action to increase the size of the Board to more than 13 directors unless Scopia consents in writing to such increase and (ii) that any new committee or subcommittee of the
Board would include a Scopia Appointee (or Scopia Replacement Director, if applicable), subject to criteria described in the Agreement.
Pursuant to the
Agreement, Scopia agreed to the following: (i) not to directly or indirectly nominate or recommend for nomination any person for election at the 2018 Annual Meeting; (ii) not to submit any proposal for consideration at, or bring any other
business before, the 2018 Annual Meeting, (iii) not to initiate, encourage or participate in any vote no, withhold or similar campaign with respect to the 2018 Annual Meeting; (iv) to appear in person or by proxy at
the 2018 Annual Meeting and vote all shares of Class A Common Stock beneficially owned by Scopia at the 2018 Annual Meeting (A) in favor of each of the Issuers director nominees (to the extent nominated in compliance with the
Agreement), (B) in favor of the ratification of the appointment of PricewaterhouseCoopers LLP as the Issuers independent registered public accounting firm for the fiscal year ending December 31, 2018, and (C) in accordance with the
Boards recommendation with respect to the Issuers say-on-pay proposal; provided, however, that in the event Institutional Shareholder Services
Inc. (ISS) or Glass Lewis & Co., LLC (Glass Lewis) recommends otherwise with respect to the Issuers say-on-pay
proposal, Scopia shall be permitted to vote in accordance with the ISS or Glass Lewis recommendation.
Pursuant to the Agreement, Scopia agreed, from the
date of the Agreement until the earliest of (x) the date that is 30 calendar days prior to the deadline for the submission of stockholder nominations for the 2019 Annual Meeting pursuant to the Issuers Amended & Restated Bylaws,
(y) the date that is 100 days prior to the first anniversary of the 2018 Annual Meeting, and (z) following the appointment of the initial Scopia Appointee, such time as no Scopia Appointee (or Scopia Replacement Director) is serving on the
Board and Scopia has irrevocably notified the Company in writing that it will not seek to fill such vacancy (the Standstill Period), to not: (i) engage in any solicitation of proxies or consents or become a participant in a
solicitation of proxies or consents with respect to securities of the Issuer; (ii) form or join any Section 13(d) group with respect to the securities of the Issuer other than with Scopia affiliates; (iii) deposit any shares of
Class A Common Stock in any voting trust or subject any shares of Class A Common Stock to any arrangement or agreement with respect to the voting of any shares of Class Common Stock, other than any such voting trust, arrangement or
agreement solely among the members of Scopia and otherwise in accordance with the Agreement; (iv) seek or submit, or encourage any person or entity to seek or submit, nomination(s) in furtherance of a contested solicitation for the appointment,
election or removal of directors with respect to the Issuer or seek, knowingly encourage or take any other action with respect to the appointment, election or removal of any directors, in each case in opposition to the recommendation of the Board;
(v) make any proposal for consideration by stockholders at any annual or special meeting of stockholders of the Issuer or through any referendum of stockholders; (vi) make any offer or proposal regarding any extraordinary corporate
transaction or publicly encourage or publicly comment on any extraordinary corporate transaction involving the Issuer; (vii) call or request the calling of any special meeting of stockholders; and (viii) seek representation on the Board
except pursuant to the Agreement.
The foregoing description of the Agreement does not purport to be complete and is qualified in its entirety by
reference to the full text of the Agreement, which is filed as Exhibit 99.1 hereto and is incorporated herein by reference.
On March 22, 2018, the
Issuer issued a press release mutually agreed to by it with Scopia to announce that they have entered into the Agreement.
The Reporting Persons intend to
review their investment in the Issuer on a continuing basis and may from time to time and at any time in the future depending on various factors, including, without limitation, the Issuers financial position and strategic direction, actions
taken by the Board, price levels of the Issuers securities, other investment opportunities available to the Reporting Persons, conditions in the securities market and general economic and
