Page 19 of 27 – SEC Filing
Pursuant to the terms
of the Agreement, as promptly as practicable after the 2018 annual meeting of stockholders of the Issuer (the “2018 Annual
Meeting”), the Issuer will appoint to the Board each of Michael Kelly and Bryan Wiener (each, a “Starboard Designee”)
and an additional director to be mutually agreed by the Issuer and Starboard (the “Additional Independent Director”,
and together with the Starboard Designees, each a “New Appointee”). The Issuer further agreed that each Starboard Designee
will be an observer to the Board from the date of the Agreement through his appointment to the Board.
In addition, the
Issuer agreed, among other things: (i) to appoint Mr. Kelly to the Audit Committee and the Compensation Committee of the
Board, and Mr. Wiener to the Compensation Committee and the Nominating and Corporate Governance Committee of the Board; (ii)
prior to the expiration of the Standstill Period (as defined below), not to increase the size of the Board except as
necessary for the appointment of the New Appointees to the Board; and (iii) to hold the 2018 Annual Meeting no later than May
31, 2018, subject to any delay necessitated by compliance with applicable law or regulatory or judicial order or requirement.
The Agreement also
provides that if any Starboard Designee (or any replacement thereof) is unable or unwilling to serve, resigns or is removed as
a director prior to the expiration of the Standstill Period and at such time Starboard’s combined economic and beneficial
ownership (as determined under Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended) of Shares as of such
time is at least the lesser of (x) 3.0% of the Issuer’s then outstanding Shares and (y) 2,155,900 Shares, then Starboard
will have the ability to recommend a substitute person for appointment to the Board, subject to such person meeting certain criteria.
Additionally, if the Additional Independent Director (or any replacement thereof) is unable or unwilling to serve, resigns or is
removed as a director prior to the expiration of the Standstill Period and at such time Starboard meets the ownership threshold
specified above, then the Issuer and Starboard will mutually agree on a substitute person for appointment to the Board.
The Agreement further
provides that Starboard: (i) will withdraw its nominations for the 2018 Annual Meeting and not nominate or recommend any person
for election at the 2018 Annual Meeting; (ii) will not submit any proposal for consideration at, or bring any other business before,
the 2018 Annual Meeting; (iii) will not initiate, encourage or participate in any “vote no,” “withhold”
or similar campaign with respect to the 2018 Annual Meeting; and (iv) will appear in person or by proxy at the 2018 Annual Meeting
and vote all Shares beneficially owned by it (x) in favor of the Issuer’s nominees and (y) in favor of the ratification of
the appointment of Ernst & Young LLP as the Issuer’s independent registered public accounting firm for the fiscal year
ending December 31, 2018.
Starboard also
agreed to certain customary standstill provisions, effective as of the date of the Agreement until the earlier of (x) the
date that is 30 calendar days prior to the deadline for the submission of stockholder nominations for the 2019 annual meeting
of stockholders of the Issuer pursuant to the Issuer’s Bylaws or (y) the date that is 120 days prior to the
first anniversary of the 2018 Annual Meeting (the “Standstill 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) depositing Shares in any voting trust or subjecting any Shares to any
arrangement or agreement; (iv) seeking or encouraging others to submit nominations for election or removal of directors;
(v) making stockholder proposals or offers with respect to mergers, acquisitions and other business combinations; or (vi)
seeking Board representation other than as provided in the Agreement.
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