Page 24 of 35 – SEC Filing
| | (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 proceeds from the sale of, the Shares. |
| | (e) | Not applicable. |
| Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
On April 7, 2016, the Reporting Persons entered into a Joint Filing and Solicitation Agreement in which, among other things, (a) 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, (b) the Reporting Persons agreed to form a group for the purpose of (i) submitting the Record Date Request Notice, (ii) soliciting written requests from the holders of 10% or more of the outstanding Shares to call a special meeting of shareholders of the Issuer, and (iii) soliciting proxies at any such special meeting for the purpose of removing the current members of the Board and electing the Nominees, or any other person designated by Starboard V&O Fund, as directors of the Issuer to fill the vacancies (collectively, the “Solicitation”), and (c) Starboard V&O Fund, Starboard S LLC and Starboard C LP agreed to bear all expenses incurred in connection with the Solicitation, including approved expenses incurred by any of the parties in connection with the Solicitation, subject to certain limitations. The Joint Filing and Solicitation Agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Pursuant to a letter agreement, Starboard V&O Fund and its affiliates have agreed to indemnify Mr. Fogarty against any and all claims of any nature arising from the Solicitation and any related transactions. A form of the indemnification letter agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
Starboard V&O Fund has agreed to compensate Mr. Fogarty for being named as and serving as a Nominee for election as a director of the Issuer pursuant to a letter agreement (the “Compensation Letter Agreement”). Under the Compensation Letter Agreement, Starboard V&O Fund has agreed to pay Mr. Fogarty (i) $15,000 in cash upon submission of the Record Date Request Notice and (ii) $15,000 in cash upon the filing of a definitive proxy statement with the SEC by Starboard Value LP or its affiliates relating to the Solicitation. Pursuant to the Compensation Letter Agreement, Mr. Fogarty agreed to use the after-tax proceeds from such compensation to acquire securities of the Issuer (the “Nominee Shares”). If elected or appointed to serve as a director of the Board, Mr. Fogarty agreed not to sell, transfer or otherwise dispose of any Nominee Shares within two years of his election or appointment as a director; provided, however, in the event that the Issuer enters into a business combination with a third party, Mr. Fogarty may sell, transfer or exchange the Nominee Shares in accordance with the terms of such business combination. A form of the Compensation Letter Agreement is attached hereto as Exhibit 99.3 and is incorporated herein by reference.
Starboard V&O Fund has entered into certain cash-settled total return swap agreements with Société Générale (“SG”) as the counterparty (the “Swap Agreements”). The swaps with SG constitute economic exposure to 250,874 notional Shares, 463,152 notional Shares, 308,768 notional Shares and 385,964 notional Shares, respectively, with a reference price of $16.24, $14.32, $14.18 and $13.14, respectively, and an expiration date of September 19, 2017. The Swap Agreements provide Starboard V&O Fund with economic results that are comparable to the economic results of ownership but do not provide it with the power to vote or direct the voting or dispose of or direct the disposition of the Shares that are the subject of the Swap Agreements (such shares, the “Subject Shares”). Starboard V&O Fund has economic exposure to an aggregate of 1,408,758 notional Shares pursuant to the Swap Agreements (representing approximately 2.3% of the outstanding Shares). Taking into account the Subject Shares, Starboard V&O Fund has economic exposure to an aggregate of 4,598,071 Shares (representing approximately 7.5% of the outstanding Shares).
Starboard S LLC has entered into certain cash-settled total return swap agreements with SG as the counterparty. The swaps with SG constitute economic exposure to 29,672 notional Shares, 54,779 notional Shares, 36,520 notional Shares, and 45,620 notional Shares, respectively, with a reference price of $16.24, $14.32, $14.18 and $13.14, respectively, and an expiration date of September 19, 2017. The Swap Agreements provide Starboard S LLC with economic results that are comparable to the economic results of ownership but do not provide it with the power to vote or direct the voting or dispose of or direct the disposition of the Shares that are the subject of the Swap Agreements (such shares, the “Subject Shares”). Starboard S LLC has economic exposure to an aggregate of 166,591 notional Shares pursuant to the Swap Agreements (representing less than 1% of the outstanding Shares). Taking into account the Subject Shares, Starboard S LLC has economic exposure to an aggregate of 544,093 Shares (representing less than 1% of the outstanding Shares).
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