Page 11 of 15 – SEC Filing favor of, amendments to the Issuer’s
charter and bylaws to eliminate any Supermajority Voting Provision in the charter and bylaws.
If the Declassified Board Proposal receives
a majority of the votes cast at the 2015 Annual Meeting with respect to such proposal, then, at the 2016 Annual Meeting, the Board
will present to the stockholders of the Issuer, and will recommend that the stockholders of the Issuer vote in favor of, an amendment
to the Issuer’s charter to eliminate the classification of the Board and provide for the annual election of all directors.
If such proposal receives the requisite number of votes to effect such action at the 2016 Annual Meeting, then the directors elected
at the 2016 Annual Meeting will serve a one-year term expiring at the Issuer’s 2017 Annual Meeting of Stockholders (the “2017
Annual Meeting”) and the directors elected or appointed prior to the 2016 Annual Meeting will finish their respective terms.
Under the terms of the Settlement Agreement,
the Issuer also agreed to establish a three-person Value Creation Committee of the Board (the “Value Creation Committee”)
following the 2015 Annual Meeting to review the Issuer’s business, operations, capital allocations and strategy and to make
recommendations to the Board on these issues. The Value Creation Committee will dissolve automatically at the end of the Standstill
Period (defined below) unless extended by the Board.
Stadium is subject to certain standstill restrictions
during the period from the date of the Settlement Agreement until the earlier of (i) 10 days prior to the deadline for submission
of stockholder nominees for the 2016 Annual Meeting; or (ii) 100 days prior to the first anniversary of the 2015 Annual Meeting
(such period, the “Standstill Period”). During the Standstill Period, Stadium is subject to customary standstill and
voting obligations, including, among other things, that Stadium and its affiliates and associates will not acquire beneficial ownership
of 14% or more of the outstanding Stock or participate in a proxy solicitation. Additionally, Stadium agreed not to use or proceed
with the proxy statement it filed in connection with the 2015 Annual Meeting, and to vote all of its shares in favor of the election
of Messrs. DeMarco, Donatiello and Jessick, the Issuer’s “say-on-pay” proposal, the ratification of the Issuer’s
auditors, the Majority Voting Proposal, the Supermajority Voting Proposal and the Declassified Board Proposal. The Issuer also
agreed to reimburse Stadium for its reasonable and documented fees and expenses (including but not limited to legal expenses) in
an amount not to exceed $195,000.
The foregoing summary of the Settlement Agreement
is not complete and is qualified in its entirety by reference to, and should be read in conjunction with, the complete text of
the Settlement Agreement, which was attached as Exhibit G to the Filers’ prior Schedule 13D and is incorporated therein by
reference.
On May 1, 2015, the Issuer issued a press release
announcing the Settlement Agreement and related matters. A copy of the letter was attached as Exhibit H to the Filers’ prior
Schedule 13D and incorporated therein by reference.
On March 4, 2016, (i) the Issuer, (ii) Stadium,
(iii) Mr. DeMarco and (iv) Mr. Donatiello entered into an Amendment to Settlement Agreement (the “Amendment”), which
extended and modified portions of the Settlement Agreement.
Under the terms of the Amendment, the parties
agreed to extend the Standstill Period until the earlier of (i) 10 days prior to the deadline for submission of stockholder nominees
for the 2017 Annual Meeting or (ii) 100 days prior to the first anniversary of the 2016 Annual Meeting.
Stadium also agreed to vote all of its shares
at the 2016 Annual Meeting in favor of (i) the re-election to the Board of any individual who is a director of the Issuer as of
the date of the Amendment, subject, in each case, to the nomination of such director by the Board; (ii) a proposal by the Board
to amend the Issuer’s charter to eliminate the classification of the Board on a phased-in basis and provide for the annual
election of directors beginning in 2016; (iii) a proposal by the Board to amend the Issuer’s charter and bylaws to eliminate
any provisions that require the affirmative vote of at least 80% of all of the Issuer’s then-outstanding shares of common
stock; (iv) the “say-on-pay” vote regarding the compensation paid to the Issuer’s named executive officers; and
(v) the ratification of the appointment of Deloitte & Touche LLP to serve as the Issuer’s independent auditors for fiscal
year 2016.
Under the terms of the Amendment, the parties
also agreed to increase the size of the Value Creation Committee from three members to four, and to add Steven G. Miller as the
fourth member of the Value Creation Committee.
11
favor of, amendments to the Issuer’s
charter and bylaws to eliminate any Supermajority Voting Provision in the charter and bylaws.
If the Declassified Board Proposal receives
a majority of the votes cast at the 2015 Annual Meeting with respect to such proposal, then, at the 2016 Annual Meeting, the Board
will present to the stockholders of the Issuer, and will recommend that the stockholders of the Issuer vote in favor of, an amendment
to the Issuer’s charter to eliminate the classification of the Board and provide for the annual election of all directors.
If such proposal receives the requisite number of votes to effect such action at the 2016 Annual Meeting, then the directors elected
at the 2016 Annual Meeting will serve a one-year term expiring at the Issuer’s 2017 Annual Meeting of Stockholders (the “2017
Annual Meeting”) and the directors elected or appointed prior to the 2016 Annual Meeting will finish their respective terms.
Under the terms of the Settlement Agreement,
the Issuer also agreed to establish a three-person Value Creation Committee of the Board (the “Value Creation Committee”)
following the 2015 Annual Meeting to review the Issuer’s business, operations, capital allocations and strategy and to make
recommendations to the Board on these issues. The Value Creation Committee will dissolve automatically at the end of the Standstill
Period (defined below) unless extended by the Board.
Stadium is subject to certain standstill restrictions
during the period from the date of the Settlement Agreement until the earlier of (i) 10 days prior to the deadline for submission
of stockholder nominees for the 2016 Annual Meeting; or (ii) 100 days prior to the first anniversary of the 2015 Annual Meeting
(such period, the “Standstill Period”). During the Standstill Period, Stadium is subject to customary standstill and
voting obligations, including, among other things, that Stadium and its affiliates and associates will not acquire beneficial ownership
of 14% or more of the outstanding Stock or participate in a proxy solicitation. Additionally, Stadium agreed not to use or proceed
with the proxy statement it filed in connection with the 2015 Annual Meeting, and to vote all of its shares in favor of the election
of Messrs. DeMarco, Donatiello and Jessick, the Issuer’s “say-on-pay” proposal, the ratification of the Issuer’s
auditors, the Majority Voting Proposal, the Supermajority Voting Proposal and the Declassified Board Proposal. The Issuer also
agreed to reimburse Stadium for its reasonable and documented fees and expenses (including but not limited to legal expenses) in
an amount not to exceed $195,000.
The foregoing summary of the Settlement Agreement
is not complete and is qualified in its entirety by reference to, and should be read in conjunction with, the complete text of
the Settlement Agreement, which was attached as Exhibit G to the Filers’ prior Schedule 13D and is incorporated therein by
reference.
On May 1, 2015, the Issuer issued a press release
announcing the Settlement Agreement and related matters. A copy of the letter was attached as Exhibit H to the Filers’ prior
Schedule 13D and incorporated therein by reference.
On March 4, 2016, (i) the Issuer, (ii) Stadium,
(iii) Mr. DeMarco and (iv) Mr. Donatiello entered into an Amendment to Settlement Agreement (the “Amendment”), which
extended and modified portions of the Settlement Agreement.
Under the terms of the Amendment, the parties
agreed to extend the Standstill Period until the earlier of (i) 10 days prior to the deadline for submission of stockholder nominees
for the 2017 Annual Meeting or (ii) 100 days prior to the first anniversary of the 2016 Annual Meeting.
Stadium also agreed to vote all of its shares
at the 2016 Annual Meeting in favor of (i) the re-election to the Board of any individual who is a director of the Issuer as of
the date of the Amendment, subject, in each case, to the nomination of such director by the Board; (ii) a proposal by the Board
to amend the Issuer’s charter to eliminate the classification of the Board on a phased-in basis and provide for the annual
election of directors beginning in 2016; (iii) a proposal by the Board to amend the Issuer’s charter and bylaws to eliminate
any provisions that require the affirmative vote of at least 80% of all of the Issuer’s then-outstanding shares of common
stock; (iv) the “say-on-pay” vote regarding the compensation paid to the Issuer’s named executive officers; and
(v) the ratification of the appointment of Deloitte & Touche LLP to serve as the Issuer’s independent auditors for fiscal
year 2016.
Under the terms of the Amendment, the parties
also agreed to increase the size of the Value Creation Committee from three members to four, and to add Steven G. Miller as the
fourth member of the Value Creation Committee.
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