The following constitutes Amendment No. 1 to the Schedule 13D filed by the undersigned (“Amendment No. 1”). This Amendment No. 1 amends the Schedule 13D as specifically set forth herein.
ITEM 4. | Purpose of Transaction. |
Item 4 is hereby amended to add the following:
On October 20, 2024, the Reporting Persons entered into a cooperation agreement (the “Cooperation Agreement”) with the Issuer pursuant to which the parties agreed to collaborate regarding, among other things, board refreshment, including that (i) the Issuer will take all necessary steps to nominate Dan Fletcher for election to the Issuer’s Board of Directors (the “Board”) at the Issuer’s 2024 annual meeting of stockholders (the “2024 Annual Meeting”), as one of the Issuer’s two nominees for Class III directors, and (ii) immediately following the conclusion of the 2024 Annual Meeting, the Board will take all necessary steps to appoint to the Board one mutually agreed candidate selected from a previously mutually agreed pool of 2 potential candidates (the “Mutual Candidates”) or pursuant to the terms of the Cooperation Agreement, a mutually agreed alternate candidate, which candidate shall be an “Independent Director” pursuant to the Nasdaq Stock Market LLC’s listing standards (or the applicable requirement of such other national securities exchange designated as the primary market on which the Issuer’s Common Stock is listed for trading).
Pursuant to the Cooperation Agreement, the Reporting Persons are subject to certain customary standstill restrictions (including, but not limited to, acquiring any securities, assets or indebtedness of the Issuer, nominating, seeking or encouraging any person to submit nominees in furtherance of a contested solicitation for the election or removal of directors, submitting or seeking any stockholder proposal for consideration before any stockholder meeting, or soliciting any proxy, consent or other authority to vote from stockholders), effective as of the date of the Cooperation Agreement and terminating on the earliest of (i) December 31, 2025, (ii) upon a consummation of an Extraordinary Transaction (as defined in the Cooperation Agreement) and (iii) the Reporting Persons electing to terminate the Cooperation Agreement in the event of certain events of nonperformance as set forth in the Cooperation Agreement (such period, the “Cooperation Period”).
The Reporting Persons also agreed to vote all of their shares of the Issuer’s Common Stock at each stockholder meeting during the Cooperation Period (i) in favor of the nominees for director recommended by the Board and (ii) in accordance with the Board’s recommendation with respect to all other proposals presented at such stockholder meeting; provided, however, that the Reporting Persons shall be permitted to vote in their sole discretion on any proposal of the Issuer relating to an Extraordinary Transaction or any shareholder rights plan or similar plan, including the Issuer’s Tax Benefits Preservation Plan, dated January 22, 2024 (the “Tax Benefits Preservation Plan”), so long as the Issuer has been first given a reasonable opportunity to provide the Reporting Persons with information describing the reasons for any Board recommendation prior to any such vote by the Reporting Persons.
The Reporting Persons and the Issuer also made certain customary representations and agreed to not disparage or sue the other party, subject to certain exceptions.
The foregoing description of the Cooperation Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Cooperation Agreement, which is attached as Exhibit 99.1 hereto and is incorporated herein by reference.
ITEM 5. | Interest in Securities of the Issuer. |
Paragraph (a) of Item 5 is hereby amended and restated as follows:
(a) Each of the Reporting Persons’ current ownership in the Issuer and the Issuer’s Common Stock is set forth on the cover pages to this Schedule 13D and is incorporated by reference herein. The ownership percentages reported in this Schedule 13D are based on 89,019,738 shares of the Issuer’s Common Stock issued and outstanding on August 2, 2024, as reported in the Issuer’s Form 10-Q for the quarterly period ended June 30, 2024, filed on August 7, 2024.
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