Item 4.
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Purpose of Transaction
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Item 4 is hereby amended and supplemented as follows:
On January 10, 2013, the Issuer and Relational Investors LLC (Relational) and certain affiliates of Relational entered in to a mutual cooperation agreement (the Cooperation Agreement) giving Relational an option to appoint one director to serve on the Issuers Board of Directors (the Board) and on its Compensation Committee.
The Cooperation Agreement provides Relational with an option to appoint Relationals Principal and Co-Founder, Ralph Whitworth, or Kirt Karros, a Principal and Managing Director. This option may be exercised at Relationals election from August 1, 2013 through thirty days prior to the expiration of the notice period specified in the Issuers advance notice bylaw related to nominations of directors at the 2014 Annual Meeting of Stockholders. Should either Mr. Whitworth or Mr. Karros (the Nominee) join the Issuers Board, the Issuer agrees to re-nominate Relationals appointee at the Issuers 2014 Annual Meeting of Stockholders for a customary one-year term.
The Cooperation Agreement also contains customary standstill provisions, including, among others, that provides that for its duration Relational or its affiliates will not: (a) submit any nominations for election to the Board or stockholder proposals; (b) make, participate in or encourage a solicitation of proxies; (c) initiate, propose or otherwise solicit any stockholder proposals; (d) seek election or appointment to, or representation on, or nominate or propose the nomination of any candidate to, the Board (other than as described above), or seek the removal of any member of the Board; (e) act alone or in concert with others to control or seek to control the management or Board of the Issuer; (f) participate in, or take any action pursuant to, any stockholder access proposal; (g) own or seek to own more than 12% of the outstanding Voting Securities of Issuer; (h) make any public statement or public disclosure regarding any intent, purpose, plan or proposal relating to the Board, Issuer, its management, affairs or policies or any of Issuers securities or assets that is inconsistent with the Cooperation Agreement provisions; or (j) seek, propose, participate in, support or facilitate any merger, consolidation, business combination, tender or exchange offer, sale or purchase of assets or other extraordinary transaction involving Issuer.
The Cooperation Agreement will terminate on July 1, 2014; however, in the event the Nominee is appointed to the Board as described above, the termination date shall be the later of (a) thirty (30) days prior to the expiration of the notice period specified in the Issuers advance notice bylaw related to nominations of directors at the 2015 annual meeting of stockholders of the Issuer, or (b) the date on which the Nominee is no longer serving on the Board. Notwithstanding the foregoing, if the Nominee is a director and the Board determines not to nominate the Nominee for reelection to the Board at the 2015 Annual Meeting or at any subsequent annual meeting, the Issuer shall give the Nominee and Relational notice of such determination not less than thirty (30) days prior to the last day of the notice period specified in the Issuers advance notice bylaw related to nominations of directors at such meeting. The Nominee covenants and agrees to offer to tender his resignation from the Board within five (5) business days of (a) Relational and its affiliates ceasing to own at least 9,000,000 Shares or (b) a breach of the Cooperation Agreement by Relational or its affiliates.
A copy of the Cooperation Agreement is included as an Exhibit hereto and is incorporated herein by reference.
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Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: January 11, 2013
RELATIONAL INVESTORS MID-CAP FUND I, L.P.
RELATIONAL INVESTORS MID-CAP FUND II, L.P.
By:
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RELATIONAL INVESTORS, LLC
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as general partner to each,
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By:
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/s/ Ralph V. Whitworth
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Ralph V. Whitworth, Principal
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RELATIONAL INVESTORS, LLC
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By:
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/s/ Ralph V. Whitworth
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Ralph V. Whitworth, Principal
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/s/ Ralph V. Whitworth
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Ralph V. Whitworth
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/s/ David H. Batchelder
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David H. Batchelder
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