You can access the original SEC filing by clicking here.
Ownership Summary Table
| Name | Sole Voting Power | Shared Voting Power | Sole Dispositive Power | Shared Dispositive Power | Aggregate Amount Owned Power | Percent of Class |
|---|---|---|---|---|---|---|
| STARBOARD VALUE | 5,490,000 | 5,490,000 | 5,490,000 | 5,490,000 | 5,490,000 | 8.8% |
| STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD | 4,233,717 | 5,490,000 | 4,233,717 | 5,490,000 | 4,233,717 | 6.8% |
| STARBOARD VALUE AND OPPORTUNITY S | 499,512 | 5,490,000 | 499,512 | 5,490,000 | 499,512 | Less than 1% |
| STARBOARD VALUE AND OPPORTUNITY C | 277,452 | 277,452 | 277,452 | Less than 1% | ||
| STARBOARD VALUE R | 277,452 | 277,452 | 277,452 | Less than 1% | ||
| STARBOARD VALUE R GP | 277,452 | 277,452 | 277,452 | Less than 1% | ||
| STARBOARD VALUE GP | 5,490,000 | 5,490,000 | 5,490,000 | 8.8% | ||
| STARBOARD PRINCIPAL CO | 5,490,000 | 5,490,000 | 5,490,000 | 8.8% | ||
| STARBOARD PRINCIPAL CO GP | 5,490,000 | 5,490,000 | 5,490,000 | 8.8% | ||
| JEFFREY C. SMITH | 1,626 | 1,626 | 5,490,000 | 8.8% | ||
| MARK R. MITCHELL | 5,490,000 | 8.8% | ||||
| PETER A. FELD | 5,490,000 | 8.8% | ||||
| GAVIN T. MOLINELLI | 1,626 | Less than 1% |
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Page 1 of 25 – SEC Filing
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)
(Amendment No. 6)1
Depomed, Inc.
(Name of Issuer)
Common Stock, no par value
(Title of Class of Securities)
249908104
(CUSIP Number)
JEFFREY C. SMITH
STARBOARD VALUE LP
777 Third Avenue, 18th Floor
New York, New York 10017
(212) 845-7977
STEVE WOLOSKY, ESQ.
OLSHAN FROME WOLOSKY LLP
1325 Avenue of the Americas
New York, New York 10019
(212) 451-2300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 28, 2017
(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 §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-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 § 240.13d-7 for other parties to whom copies are to be sent.
_______________
1 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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Page 2 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON STARBOARD VALUE LP | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 5,490,000 | |
| 8 | SHARED VOTING POWER – 0 – | ||
| 9 | SOLE DISPOSITIVE POWER 5,490,000 | ||
| 10 | SHARED DISPOSITIVE POWER – 0 – | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,490,000* | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.8% | ||
| 14 | TYPE OF REPORTING PERSON PN | ||
* Includes 194,730 Shares underlying certain forward purchase contracts exercisable within 60 days hereof.
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Page 3 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS WC | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION CAYMAN ISLANDS | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 4,233,717 | |
| 8 | SHARED VOTING POWER – 0 – | ||
| 9 | SOLE DISPOSITIVE POWER 4,233,717 | ||
| 10 | SHARED DISPOSITIVE POWER – 0 – | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,233,717* | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.8% | ||
| 14 | TYPE OF REPORTING PERSON CO | ||
* Includes 194,730 Shares underlying certain forward purchase contracts exercisable within 60 days hereof.
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Page 4 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON STARBOARD VALUE AND OPPORTUNITY S LLC | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS WC | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 499,512 | |
| 8 | SHARED VOTING POWER – 0 – | ||
| 9 | SOLE DISPOSITIVE POWER 499,512 | ||
| 10 | SHARED DISPOSITIVE POWER – 0 – | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 499,512 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 1% | ||
| 14 | TYPE OF REPORTING PERSON OO | ||
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Page 5 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON STARBOARD VALUE AND OPPORTUNITY C LP | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS WC | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 277,452 | |
| 8 | SHARED VOTING POWER – 0 – | ||
| 9 | SOLE DISPOSITIVE POWER 277,452 | ||
| 10 | SHARED DISPOSITIVE POWER – 0 – | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 277,452 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 1% | ||
| 14 | TYPE OF REPORTING PERSON PN | ||
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Page 6 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON STARBOARD VALUE R LP | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 277,452 | |
| 8 | SHARED VOTING POWER – 0 – | ||
| 9 | SOLE DISPOSITIVE POWER 277,452 | ||
| 10 | SHARED DISPOSITIVE POWER – 0 – | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 277,452 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 1% | ||
| 14 | TYPE OF REPORTING PERSON PN | ||
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Page 7 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON STARBOARD VALUE R GP LLC | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 277,452 | |
| 8 | SHARED VOTING POWER – 0 – | ||
| 9 | SOLE DISPOSITIVE POWER 277,452 | ||
| 10 | SHARED DISPOSITIVE POWER – 0 – | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 277,452 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 1% | ||
| 14 | TYPE OF REPORTING PERSON OO | ||
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Page 8 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON STARBOARD VALUE GP LLC | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 5,490,000 | |
| 8 | SHARED VOTING POWER – 0 – | ||
| 9 | SOLE DISPOSITIVE POWER 5,490,000 | ||
| 10 | SHARED DISPOSITIVE POWER – 0 – | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,490,000* | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.8% | ||
| 14 | TYPE OF REPORTING PERSON OO | ||
* Includes 194,730 Shares underlying certain forward purchase contracts exercisable within 60 days hereof.
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Page 9 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON STARBOARD PRINCIPAL CO LP | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 5,490,000 | |
| 8 | SHARED VOTING POWER – 0 – | ||
| 9 | SOLE DISPOSITIVE POWER 5,490,000 | ||
| 10 | SHARED DISPOSITIVE POWER – 0 – | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,490,000* | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.8% | ||
| 14 | TYPE OF REPORTING PERSON PN | ||
* Includes 194,730 Shares underlying certain forward purchase contracts exercisable within 60 days hereof.
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Page 10 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON STARBOARD PRINCIPAL CO GP LLC | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 5,490,000 | |
| 8 | SHARED VOTING POWER – 0 – | ||
| 9 | SOLE DISPOSITIVE POWER 5,490,000 | ||
| 10 | SHARED DISPOSITIVE POWER – 0 – | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,490,000* | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.8% | ||
| 14 | TYPE OF REPORTING PERSON OO | ||
* Includes 194,730 Shares underlying certain forward purchase contracts exercisable within 60 days hereof.
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Page 11 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON JEFFREY C. SMITH | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION USA | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER – 0 – | |
| 8 | SHARED VOTING POWER 5,490,000 | ||
| 9 | SOLE DISPOSITIVE POWER – 0 – | ||
| 10 | SHARED DISPOSITIVE POWER 5,490,000 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,490,000* | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.8% | ||
| 14 | TYPE OF REPORTING PERSON IN | ||
* Includes 194,730 Shares underlying certain forward purchase contracts exercisable within 60 days hereof.
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Page 12 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON MARK R. MITCHELL | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION USA | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER – 0 – | |
| 8 | SHARED VOTING POWER 5,490,000 | ||
| 9 | SOLE DISPOSITIVE POWER – 0 – | ||
| 10 | SHARED DISPOSITIVE POWER 5,490,000 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,490,000* | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.8% | ||
| 14 | TYPE OF REPORTING PERSON IN | ||
* Includes 194,730 Shares underlying certain forward purchase contracts exercisable within 60 days hereof.
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Page 13 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON PETER A. FELD | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION USA | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER – 0 – | |
| 8 | SHARED VOTING POWER 5,490,000 | ||
| 9 | SOLE DISPOSITIVE POWER – 0 – | ||
| 10 | SHARED DISPOSITIVE POWER 5,490,000 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,490,000* | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.8% | ||
| 14 | TYPE OF REPORTING PERSON IN | ||
* Includes 194,730 Shares underlying certain forward purchase contracts exercisable within 60 days hereof.
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Page 14 of 25 – SEC Filing
| 1 | NAME OF REPORTING PERSON GAVIN T. MOLINELLI | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION USA | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 1,626 | |
| 8 | SHARED VOTING POWER – 0 – | ||
| 9 | SOLE DISPOSITIVE POWER 1,626 | ||
| 10 | SHARED DISPOSITIVE POWER – 0 – | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,626* | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 1% | ||
| 14 | TYPE OF REPORTING PERSON IN | ||
* Represents Shares underlying stock options exercisable within 60 days hereof.
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Page 15 of 25 – SEC Filing
The following constitutes Amendment No. 6 to the Schedule 13D filed by the undersigned (“Amendment No. 6”). This Amendment No. 6 amends the Schedule 13D as specifically set forth herein.
| Item 2. | Identity and Background. |
| | Item 2 is hereby amended and restated to read as follows: |
(a) This statement is filed by:
| | (i) | Starboard Value and Opportunity Master Fund Ltd, a Cayman Islands exempted company (“Starboard V&O Fund”), with respect to the Shares directly and beneficially owned by it; |
| | (ii) | Starboard Value and Opportunity S LLC, a Delaware limited liability company (“Starboard S LLC”), with respect to the Shares directly and beneficially owned by it; |
| | (iii) | Starboard Value and Opportunity C LP, a Delaware limited partnership (“Starboard C LP”), with respect to the Shares directly and beneficially owned by it; |
| | (iv) | Starboard Value R LP (“Starboard R LP”), as the general partner of Starboard C LP; |
| | (v) | Starboard Value R GP LLC (“Starboard R GP”), as the general partner of Starboard R LP; |
| | (vi) | Starboard Value LP (“Starboard Value LP”), as the investment manager of Starboard V&O Fund, Starboard C LP and of a certain managed account (the “Starboard Value LP Account”) and the manager of Starboard S LLC; |
| | (vii) | Starboard Value GP LLC (“Starboard Value GP”), as the general partner of Starboard Value LP; |
| | (viii) | Starboard Principal Co LP (“Principal Co”), as a member of Starboard Value GP; |
| | (ix) | Starboard Principal Co GP LLC (“Principal GP”), as the general partner of Principal Co; |
| | (x) | Jeffrey C. Smith, as a member of Principal GP and as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP; |
| | (xi) | Mark R. Mitchell, as a member of Principal GP and as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP; |
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Page 16 of 25 – SEC Filing
| | (xii) | Peter A. Feld, as a member of Principal GP and as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP; and |
| | (xiii) | Gavin T. Molinelli, who was appointed to the Board of Directors of the Issuer (the “Board”) pursuant to the Agreement (as defined below). |
Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.” Each of the Reporting Persons is party to that certain Joint Filing Agreement, as further described in Item 6. Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.
(b) The address of the principal office of each of Starboard S LLC, Starboard C LP, Starboard R LP, Starboard R GP, Starboard Value LP, Starboard Value GP, Principal Co, Principal GP, and Messrs. Smith, Mitchell, Feld, and Molinelli is 777 Third Avenue, 18th Floor, New York, New York 10017. The address of the principal office of Starboard V&O Fund is 89 Nexus Way, Camana Bay, PO Box 31106, Grand Cayman KY1-1205, Cayman Islands. The officers and directors of Starboard V&O Fund and their principal occupations and business addresses are set forth on Schedule A and are incorporated by reference in this Item 2.
(c) The principal business of Starboard V&O Fund is serving as a private investment fund. Starboard V&O Fund has been formed for the purpose of making equity investments and, on occasion, taking an active role in the management of portfolio companies in order to enhance shareholder value. Starboard S LLC and Starboard C LP have been formed for the purpose of investing in securities and engaging in all related activities and transactions. Starboard Value LP provides investment advisory and management services and acts as the investment manager of Starboard V&O Fund, Starboard C LP and the Starboard Value LP Account and the manager of Starboard S LLC. The principal business of Starboard Value GP is providing a full range of investment advisory, pension advisory and management services and serving as the general partner of Starboard Value LP. The principal business of Principal Co is providing investment advisory and management services. Principal Co is a member of Starboard Value GP. Principal GP serves as the general partner of Principal Co. Starboard R LP serves as the general partner of Starboard C LP. Starboard R GP serves as the general partner of Starboard R LP. Messrs. Smith, Mitchell and Feld serve as members of Principal GP and the members of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP. Mr. Molinelli is a Partner at Starboard Value LP.
(d) No Reporting Person, nor any person listed on Schedule A, annexed hereto, has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) No Reporting Person, nor any person listed on Schedule A, annexed hereto, has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) Messrs. Smith, Mitchell, Feld and Molinelli are citizens of the United States of America. The citizenship of the persons listed on Schedule A is set forth therein.
| Item 3. | Source and Amount of Funds or Other Consideration. |
| | Item 3 is hereby amended and restated to read as follows: |
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Page 17 of 25 – SEC Filing
The Shares purchased by each of Starboard V&O Fund, Starboard S LLC and Starboard C LP and held in the Starboard Value LP Account were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule B, which is incorporated by reference herein. The aggregate purchase price of the 4,038,987 Shares beneficially owned by Starboard V&O Fund is approximately $59,544,804, excluding brokerage commissions. The aggregate purchase price of the entered into over-the-counter forward purchase contracts providing for the purchase of 194,730 Shares by Starboard V&O Fund is approximately $3,504,653, excluding commissions. The aggregate purchase price of the 499,512 Shares beneficially owned by Starboard S LLC is approximately $7,475,429, excluding brokerage commissions. The aggregate purchase price of the 277,452 Shares beneficially owned by Starboard C LP is approximately $4,112,557, excluding brokerage commissions. The aggregate purchase price of the 479,319 Shares held in the Starboard Value LP Account is approximately $7,168,166, excluding brokerage commissions. The 1,626 Shares beneficially owned by Mr. Molinelli represent shares underlying stock options exercisable within sixty days hereof that were granted to Mr. Molinelli by the Issuer in his capacity as a director of the Issuer.
| Item 4. | Purpose of Transaction. |
| | Item 4 is hereby amended to add the following: |
On March 28, 2017, Starboard Value LP and certain of its affiliates (collectively, “Starboard”) entered into a Cooperation and Support Agreement with the Issuer (the “Agreement”) to implement certain changes to the leadership and governance of the Issuer, which include the following: (i) the appointment of three (3) new directors, including Arthur Higgins, the newly appointed President and CEO of the Issuer, Gavin Molinelli, a Partner of Starboard Value LP, and William McKee, former Executive Vice President and Chief Financial Officer of Barr Pharmaceuticals, LLC; and (ii) the appointment of James Fogarty as the new Chairman of the Board. The following description of the Agreement is qualified in its entirety by reference to the Agreement, which is attached as Exhibit 99.1 hereto and is incorporated herein by reference.
Pursuant to the terms of the Agreement, (i) the Board was reconstituted to consist of the following nine (9) directors: Karen Dawes, James Fogarty, Arthur Higgins, Louis Lavigne, William McKee, Gavin Molinelli, Robert Savage, Peter Staple and James Tyree (the “Directors”), with Mr. Fogarty appointed as Chairman of the Board; (ii) the Issuer’s slate of nominees for election as directors at the Issuer’s 2017 Annual Meeting of Shareholders (the “2017 Annual Meeting”) shall consist of the Directors (the “2017 Slate”); (iii) the standing committees of the Board shall be reconstituted as follows: (a) the Nominating and Corporate Governance Committee shall consist of Messrs. Molinelli (Chairman), Lavigne, McKee and Savage; (b) the Compensation Committee shall consist of Messrs. Savage (Chairman), McKee, Molinelli and Staple; and (c) the Audit Committee shall consist of Messrs. Lavigne (Chairman), Staple and Tyree and Ms. Dawes. The Agreement also provides that during the Period (as defined below), if Mr. Molinelli (or any replacement director) ceases to be a member of the Board for any reason, and at such time Starboard beneficially owns in the aggregate at least the lesser of (i) three percent (3.0%) of the Issuer’s then outstanding Shares and (ii) 1,862,986 Shares, then Starboard has the ability to recommend a substitute person, who meets certain independence and experience criteria.
Pursuant to the terms of the Agreement, Starboard agreed, among other things, to appear in person or by proxy at the 2017 Annual Meeting and vote all Shares beneficially owned by it (a) in favor of the 2017 Slate, and (b) during the Period, in a manner consistent with the recommendation of the Board, provided, however, that if Mr. Molinelli has voted against any such matter (other than the 2017 Slate) in a vote of the Board, Starboard shall be permitted to vote against the Board’s recommendation with respect to such matter.
Pursuant to the terms of the Agreement, Starboard agreed to certain customary standstill provisions, effective as of the date of the Agreement until 12:01 a.m., Eastern time, on the date that is fifteen (15) business days prior to the deadline for the submission of shareholder nominations for the Issuer’s 2018 Annual Meeting of Shareholders (the “Period”). The standstill provisions generally prohibit Starboard from taking specified actions with respect to the Issuer and its securities, including, among others: (i) soliciting or participating in the solicitation of proxies; (ii) joining any “group” or becoming party to any voting arrangement or agreement; (iii) seeking or encouraging others to submit nominations for election or removal of directors; (iv) making shareholder proposals or offers with respect to mergers, acquisitions and other business combinations; or (v) seeking board representation other than as provided in the Agreement.
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Page 18 of 25 – SEC Filing
| Item 5. | Interest in Securities of the Issuer. |
| | Items 5(a) – (c) are hereby amended and restated to read as follows: |
The aggregate percentage of Shares reported owned by each person named herein is based upon 62,099,557 Shares outstanding, as of February 21, 2017, which is the total number of Shares outstanding as reported in the Issuer’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 24, 2017.
| A. | Starboard V&O Fund |
| | (a) | As of the close of business on March 29, 2017, Starboard V&O Fund beneficially owned 4,233,717 Shares, including 194,730 Shares underlying certain forward purchase contracts. |
Percentage: Approximately 6.8%
| | (b) | 1. Sole power to vote or direct vote: 4,233,717 |
| | 2. Shared power to vote or direct vote: 0 |
| | 3. Sole power to dispose or direct the disposition: 4,233,717 |
| | 4. Shared power to dispose or direct the disposition: 0 |
| | (c) | The transactions in the Shares by Starboard V&O Fund during the past sixty days are set forth in Schedule B and are incorporated herein by reference. |
| B. | Starboard S LLC |
| | (a) | As of the close of business on March 29, 2017, Starboard S LLC beneficially owned 499,512 Shares. |
Percentage: Less than 1%
| | (b) | 1. Sole power to vote or direct vote: 499,512 |
| | 2. Shared power to vote or direct vote: 0 |
| | 3. Sole power to dispose or direct the disposition: 499,512 |
| | 4. Shared power to dispose or direct the disposition: 0 |
| | (c) | The transactions in the Shares by Starboard S LLC during the past sixty days are set forth in Schedule B and are incorporated herein by reference. |
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Page 19 of 25 – SEC Filing
| C. | Starboard C LP |
| | (a) | As of the close of business on March 29, 2017, Starboard C LP beneficially owned 277,452 Shares. |
Percentage: Less than 1%
| | (b) | 1. Sole power to vote or direct vote: 277,452 |
| | 2. Shared power to vote or direct vote: 0 |
| | 3. Sole power to dispose or direct the disposition: 277,452 |
| | 4. Shared power to dispose or direct the disposition: 0 |
| | (c) | The transactions in the Shares by Starboard C LP during the past sixty days are set forth in Schedule B and are incorporated herein by reference. |
| D. | Starboard R LP |
| | (a) | Starboard R LP, as the general partner of Starboard C LP, may be deemed the beneficial owner of the 277,452 shares owned by Starboard C LP. |
Percentage: Less than 1%
| | (b) | 1. Sole power to vote or direct vote: 277,452 |
| | 2. Shared power to vote or direct vote: 0 |
| | 3. Sole power to dispose or direct the disposition: 277,452 |
| | 4. Shared power to dispose or direct the disposition: 0 |
| | (c) | Starboard R LP has not entered into any transactions in the Shares during the past sixty days. The transactions in the Shares on behalf of Starboard C LP during the past sixty days are set forth in Schedule B and are incorporated herein by reference. |
| E. | Starboard R GP |
| | (a) | Starboard R GP, as the general partner of Starboard R LP, may be deemed the beneficial owner of the 277,452 shares owned by Starboard C LP. |
Percentage: Less than 1%
| | (b) | 1. Sole power to vote or direct vote: 277,452 |
| | 2. Shared power to vote or direct vote: 0 |
| | 3. Sole power to dispose or direct the disposition: 277,452 |
| | 4. Shared power to dispose or direct the disposition: 0 |
| | (c) | Starboard R GP has not entered into any transactions in the Shares during the past sixty days. The transactions in the Shares on behalf of Starboard C LP during the past sixty days are set forth in Schedule B and are incorporated herein by reference. |
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Page 20 of 25 – SEC Filing
| F. | Starboard Value LP |
| | (a) | As of the close of business on March 29, 2017, 479,319 Shares were held in the Starboard Value LP Account. Starboard Value LP, as the investment manager of Starboard V&O Fund, Starboard C LP and the Starboard Value LP Account and the manager of Starboard S LLC, may be deemed the beneficial owner of the (i) 4,233,717 Shares owned by Starboard V&O Fund, (ii) 499,512 Shares owned by Starboard S LLC, (iii) 277,452 Shares owned by Starboard C LP, and (iv) 479,319 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 8.8%
| | (b) | 1. Sole power to vote or direct vote: 5,490,000 |
| | 2. Shared power to vote or direct vote: 0 |
| | 3. Sole power to dispose or direct the disposition: 5,490,000 |
| | 4. Shared power to dispose or direct the disposition: 0 |
| | (c) | The transactions in the Shares by Starboard Value LP through the Starboard Value LP Account and on behalf of each of Starboard V&O Fund, Starboard S LLC and Starboard C LP during the past sixty days are set forth in Schedule B and are incorporated herein by reference. |
| G. | Starboard Value GP |
| | (a) | Starboard Value GP, as the general partner of Starboard Value LP, may be deemed the beneficial owner of the (i) 4,233,717 Shares owned by Starboard V&O Fund, (ii) 499,512 Shares owned by Starboard S LLC, (iii) 277,452 Shares owned by Starboard C LP, and (iv) 479,319 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 8.8%
| | (b) | 1. Sole power to vote or direct vote: 5,490,000 |
| | 2. Shared power to vote or direct vote: 0 |
| | 3. Sole power to dispose or direct the disposition: 5,490,000 |
| | 4. Shared power to dispose or direct the disposition: 0 |
| | (c) | Starboard Value GP has not entered into any transactions in the Shares during the past sixty days. The transactions in the Shares on behalf of each of Starboard V&O Fund, Starboard S LLC, Starboard C LP and through the Starboard Value LP Account during the past sixty days are set forth in Schedule B and are incorporated herein by reference. |
| H. | Principal Co |
| | (a) | Principal Co, as a member of Starboard Value GP, may be deemed the beneficial owner of the (i) 4,233,717 Shares owned by Starboard V&O Fund, (ii) 499,512 Shares owned by Starboard S LLC, (iii) 277,452 Shares owned by Starboard C LP, and (iv) 479,319 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 8.8%
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Page 21 of 25 – SEC Filing
| | (b) | 1. Sole power to vote or direct vote: 5,490,000 |
| | 2. Shared power to vote or direct vote: 0 |
| | 3. Sole power to dispose or direct the disposition: 5,490,000 |
| | 4. Shared power to dispose or direct the disposition: 0 |
| | (c) | Principal Co has not entered into any transactions in the Shares during the past sixty days. The transactions in the Shares on behalf of each of Starboard V&O Fund, Starboard S LLC, Starboard C LP and through the Starboard Value LP Account during the past sixty days are set forth in Schedule B and are incorporated herein by reference. |
| I. | Principal GP |
| | (a) | Principal GP, as the general partner of Principal Co, may be deemed the beneficial owner of the (i) 4,233,717 Shares owned by Starboard V&O Fund, (ii) 499,512 Shares owned by Starboard S LLC, (iii) 277,452 Shares owned by Starboard C LP, and (iv) 479,319 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 8.8%
| | (b) | 1. Sole power to vote or direct vote: 5,490,000 |
| | 2. Shared power to vote or direct vote: 0 |
| | 3. Sole power to dispose or direct the disposition: 5,490,000 |
| | 4. Shared power to dispose or direct the disposition: 0 |
| | (c) | Principal GP has not entered into any transactions in the Shares during the past sixty days. The transactions in the Shares on behalf of each of Starboard V&O Fund, Starboard S LLC, Starboard C LP and through the Starboard Value LP Account during the past sixty days are set forth in Schedule B and are incorporated herein by reference |
| J. | Messrs. Smith, Mitchell and Feld |
| | (a) | Each of Messrs. Smith, Mitchell and Feld, as a member of Principal GP and as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP, may be deemed the beneficial owner of the (i) 4,233,717 Shares owned by Starboard V&O Fund, (ii) 499,512 Shares owned by Starboard S LLC, (iii) 277,452 Shares owned by Starboard C LP, and (iv) 479,319 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 8.8%
| | (b) | 1. Sole power to vote or direct vote: 0 |
| | 2. Shared power to vote or direct vote: 5,490,000 |
| | 3. Sole power to dispose or direct the disposition: 0 |
| | 4. Shared power to dispose or direct the disposition: 5,490,000 |
| | (c) | None of Messrs. Smith, Mitchell or Feld has entered into any transactions in the Shares during the past sixty days. The transactions in the Shares on behalf of each of Starboard V&O Fund, Starboard S LLC, Starboard C LP and through the Starboard Value LP Account during the past sixty days are set forth in Schedule B and are incorporated herein by reference. |
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Page 22 of 25 – SEC Filing
| K. | Mr. Molinelli |
| | (a) | As of the close of business on March 29, 2017, Mr. Molinelli beneficially owned 1,626 Shares underlying stock options exercisable within sixty days hereof. |
Percentage: Less than 1%
| | (b) | 1. Sole power to vote or direct vote: 1,626 |
| | 2. Shared power to vote or direct vote: 0 |
| | 3. Sole power to dispose or direct the disposition: 1,626 |
| | 4. Shared power to dispose or direct the disposition: 0 |
| | (c) | Mr. Molinelli has not entered into any transactions in the Shares during the past sixty days. |
Each Reporting Person, as a member of a “group” with the other Reporting Persons for the purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, may be deemed the beneficial owner of the Shares directly owned by the other Reporting Persons. Each Reporting Person disclaims beneficial ownership of such Shares except to the extent of his or its pecuniary interest therein.
| Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
| | Item 6 is hereby amended to add the following: |
On March 28, 2017, Starboard and the Issuer entered into the Agreement defined and described in Item 4 above and attached as Exhibit 99.1 hereto.
On March 30, 2017, the Reporting Persons entered into a Joint Filing Agreement in which the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required by applicable law. The Joint Filing Agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
Starboard V&O Fund entered into forward purchase contracts with Morgan Stanley as the counterparty on November 8, 2016, providing for the purchase of an aggregate of 194,730 Shares, having an aggregate purchase price of approximately $3,504,653 (the “Forward Contracts”). The Forward Contracts have a final valuation date of May 11, 2018, however, Starboard V&O Fund has the ability to elect early settlement after serving notice to Morgan Stanley of such intention at least two (2) scheduled trading days in advance of the desired early final valuation date. The Forward Contracts provide for physical settlement. Until the settlement date, the Forward Contracts do not give the Reporting Persons voting and dispositive control over the Shares to which such contracts relate.
| Item 7. | Material to be Filed as Exhibits. |
| | Item 7 is hereby amended to add the following exhibits: |
| | 99.1 | Cooperation and Support Agreement by and among Starboard Value and Opportunity Master Fund Ltd, Starboard Value and Opportunity S LLC, Starboard Value and Opportunity C LP, Starboard Value R LP, Starboard Value R GP LLC, Starboard Value LP, Starboard Value GP LLC, Starboard Principal Co LP, Starboard Principal Co GP LLC, Jeffrey C. Smith, Mark R. Mitchell, Peter A. Feld, and Depomed, Inc., dated March 28, 2017. |
| | 99.2 | Joint Filing Agreement by and among Starboard Value and Opportunity Master Fund Ltd, Starboard Value and Opportunity S LLC, Starboard Value and Opportunity C LP, Starboard Value R LP, Starboard Value R GP LLC, Starboard Value LP, Starboard Value GP LLC, Starboard Principal Co LP, Starboard Principal Co GP LLC, Jeffrey C. Smith, Mark R. Mitchell, Peter A. Feld and Gavin T. Molinelli, dated March 30, 2017. |
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Page 23 of 25 – SEC Filing
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: March 30, 2017
| STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD By: Starboard Value LP, its investment manager STARBOARD VALUE AND OPPORTUNITY S LLC By: Starboard Value LP, its manager STARBOARD VALUE AND OPPORTUNITY C LP By: Starboard Value R LP, its general partner STARBOARD VALUE R LP By: Starboard Value R GP LLC, its general partner STARBOARD VALUE LP By: Starboard Value GP LLC, its general partner | STARBOARD VALUE GP LLC By: Starboard Principal Co LP, its member STARBOARD PRINCIPAL CO LP By: Starboard Principal Co GP LLC, its general partner STARBOARD PRINCIPAL CO GP LLC STARBOARD VALUE R GP LLC |
| By: | /s/ Jeffrey C. Smith | |
| Name: | Jeffrey C. Smith | |
| Title: | Authorized Signatory | |
| /s/ Jeffrey C. Smith |
| JEFFREY C. SMITH |
| Individually and as attorney-in-fact for Mark R. Mitchell and Peter A. Feld |
| /s/ Gavin T. Molinelli |
| GAVIN T. MOLINELLI |
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Page 24 of 25 – SEC Filing
SCHEDULE A
Directors and Officers of Starboard Value and Opportunity Master Fund Ltd
| Name and Position | Principal Occupation | Principal Business Address | Citizenship |
| Patrick Agemian Director | Director of Global Funds Management, Ltd. | PO Box 10034, Harbour Place 2nd Floor 103 South Church Street Grand Cayman Cayman Islands, KY1-1001 | Canada |
| Mark R. Mitchell Director* | |||
| Don Seymour Director | Managing Director of dms Governance | dms Governance dms House, 20 Genesis Close P.O. Box 31910 Grand Cayman Cayman Islands, KY1-1208 | Cayman Islands |
* Mr. Mitchell is a Reporting Person and, as such, the information with respect to Mr. Mitchell called for by Item 2 of Schedule 13D is set forth therein.
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Page 25 of 25 – SEC Filing
SCHEDULE B
Transactions in the Shares During the Past Sixty Days
| Nature of the Transaction | Amount of Shares Purchased/(Sold) | Price ($) | Date of Purchase/Sale |
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD
| Purchase of Common Stock | 9,663 | 15.7835 | 02/21/2017 |
| Purchase of Common Stock | 9,662 | 15.7835 | 02/21/2017 |
STARBOARD VALUE AND OPPORTUNITY S LLC
| Purchase of Common Stock | 2,150 | 15.7835 | 02/21/2017 |
STARBOARD VALUE AND OPPORTUNITY C LP
| Purchase of Common Stock | 1,200 | 15.7835 | 02/21/2017 |
STARBOARD VALUE LP
(Through the Starboard Value LP Account)
| Purchase of Common Stock | 2,325 | 15.7835 | 02/21/2017 |
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