UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)
(Amendment No. 5)1
YuMe, Inc.
(Name of Issuer)
Common Stock, $.001 par value per share
(Title of Class of Securities)
98872B104
(CUSIP Number)
ERIC SINGER
VIEX CAPITAL ADVISORS, LLC
825 Third Avenue, 33rd Floor
New York, New York 10022
STEVE WOLOSKY, ESQ.
OLSHAN FROME WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
(Name, Address and Telephone Number of PersonAuthorized to Receive Notices and Communications)
March 4, 2016
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
_______________
1 The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP NO. 98872B104
| 1 | NAME OF REPORTING PERSON VIEX Opportunities Fund, LP – Series One* | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS WC | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER - 0 - | |
| 8 | SHARED VOTING POWER 2,591,733 | ||
| 9 | SOLE DISPOSITIVE POWER - 0 - | ||
| 10 | SHARED DISPOSITIVE POWER 2,591,733 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,591,733 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.5% | ||
| 14 | TYPE OF REPORTING PERSON PN | ||
___________
* On June 17, 2015, VIEX Opportunities Fund, LP became a series limited liability company and the Shares previously reported to be owned by it are now deemed to be owned by “VIEX Opportunities Fund, LP – Series One.”
2
CUSIP NO. 98872B104
| 1 | NAME OF REPORTING PERSON VIEX Opportunities Fund, LP – Series Two* | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS WC | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER - 0 - | |
| 8 | SHARED VOTING POWER 561,269 | ||
| 9 | SOLE DISPOSITIVE POWER - 0 - | ||
| 10 | SHARED DISPOSITIVE POWER 561,269 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 561,269 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.6% | ||
| 14 | TYPE OF REPORTING PERSON PN | ||
___________
* This Series Two is part of a series of VIEX Opportunities Fund, LP, a series limited partnership.
3
CUSIP NO. 98872B104
| 1 | NAME OF REPORTING PERSON VIEX Special Opportunities Fund II, LP | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS WC | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER - 0 - | |
| 8 | SHARED VOTING POWER 2,226,829 | ||
| 9 | SOLE DISPOSITIVE POWER - 0 - | ||
| 10 | SHARED DISPOSITIVE POWER 2,226,829 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,226,829 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.5% | ||
| 14 | TYPE OF REPORTING PERSON PN | ||
4
CUSIP NO. 98872B104
| 1 | NAME OF REPORTING PERSON VIEX GP, LLC | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS AF | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER - 0 - | |
| 8 | SHARED VOTING POWER 3,153,002 | ||
| 9 | SOLE DISPOSITIVE POWER - 0 - | ||
| 10 | SHARED DISPOSITIVE POWER 3,153,002 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,153,002 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.2% | ||
| 14 | TYPE OF REPORTING PERSON OO | ||
5
CUSIP NO. 98872B104
| 1 | NAME OF REPORTING PERSON VIEX Special Opportunities GP II, LLC | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS AF | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER - 0 - | |
| 8 | SHARED VOTING POWER 2,226,829 | ||
| 9 | SOLE DISPOSITIVE POWER - 0 - | ||
| 10 | SHARED DISPOSITIVE POWER 2,226,829 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,226,829 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.5% | ||
| 14 | TYPE OF REPORTING PERSON OO | ||
6
CUSIP NO. 98872B104
| 1 | NAME OF REPORTING PERSON VIEX Capital Advisors, LLC | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS AF | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER - 0 - | |
| 8 | SHARED VOTING POWER 5,379,831 | ||
| 9 | SOLE DISPOSITIVE POWER - 0 - | ||
| 10 | SHARED DISPOSITIVE POWER 5,379,831 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,379,831 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.6% | ||
| 14 | TYPE OF REPORTING PERSON IA | ||
7
CUSIP NO. 98872B104
| 1 | NAME OF REPORTING PERSON Eric Singer | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS AF | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION USA | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER - 0 - | |
| 8 | SHARED VOTING POWER 5,379,831 | ||
| 9 | SOLE DISPOSITIVE POWER - 0 - | ||
| 10 | SHARED DISPOSITIVE POWER 5,379,831 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,379,831 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.6% | ||
| 14 | TYPE OF REPORTING PERSON IN | ||
8
CUSIP NO. 98872B104
| 1 | NAME OF REPORTING PERSON Elias N. Nader | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION USA | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER - 0 - | |
| 8 | SHARED VOTING POWER - 0 - | ||
| 9 | SOLE DISPOSITIVE POWER - 0 - | ||
| 10 | SHARED DISPOSITIVE POWER - 0 - | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON - 0 - | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% | ||
| 14 | TYPE OF REPORTING PERSON IN | ||
9
CUSIP NO. 98872B104
The following constitutes Amendment No. 5 to the Schedule 13D filed by the undersigned (the “Amendment No. 5”). This Amendment No. 5 amends the Schedule 13D as specifically set forth herein.
| Item 2. | Identity and Background. |
Item 2 is hereby amended and restated to read as follows:
| (a) | This statement is filed by: |
| (i) | VIEX Opportunities Fund, LP – Series One (“Series One”), a series of VIEX Opportunities Fund, LP (“VIEX Opportunities”), a Delaware series limited partnership, with respect to the Shares directly and beneficially owned by it; |
| (ii) | VIEX Opportunities Fund, LP – Series Two (“Series Two”), a series of VIEX Opportunities, with respect to the Shares directly and beneficially owned by it; |
| (iii) | VIEX Special Opportunities II, LP (“VSO II”), a Delaware limited partnership, with respect to the Shares directly and beneficially owned by it; |
| (iv) | VIEX GP, LLC (“VIEX GP”), a Delaware limited liability company, as the general partner of Series One and Series Two; |
| (v) | VIEX Special Opportunities GP II, LLC (“VSO GP II”), a Delaware limited liability company, as the general partner of VSO II; |
| (vi) | VIEX Capital Advisors, LLC (“VIEX Capital”), a Delaware limited liability company, as the investment manager of each of Series One, Series Two, and VSO II; |
| (vii) | Eric Singer, as managing member of each of VIEX GP, VSO GP II, and VIEX Capital and as a nominee for the Board of Directors of the Issuer (the “Board”); and |
| (viii) | Elias N. Nader, as a nominee for the Board. |
Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.” Each of the Reporting Persons is party to that certain Joint Filing and Solicitation Agreement as further described in Item 6. Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.
(b) The address of the principal office of each of Series One, Series Two, VSO II, VIEX GP, VSO GP II, VIEX Capital and Mr. Singer is 825 Third Avenue, 33rd Floor, New York, New York 10022. The address of the principal office of Mr. Nader is c/o Sigma Designs, Inc., 47467 Fremont Boulevard, Fremont, California 94538.
(c) The principal business of Series One, Series Two and VSO II is investing in securities. The principal business of VIEX GP is acting as the general partner of Series One and Series Two. The principal business of VSO GP II is acting as the general partner of VSO II. The principal business of VIEX Capital is serving as the investment manager to Series One, Series Two, and VSO II. The principal occupation of Mr. Singer is serving as the managing member of each of VIEX GP, VSO GP II and VIEX Capital. The principal occupation of Mr. Nader is serving as the chief financial officer and secretary of Sigma Designs, Inc., a provider of intelligent media platforms for use in the home entertainment and control markets.
10
CUSIP NO. 98872B104
(d) No Reporting Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) No Reporting Person has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) Each of Series One, Series Two, VSO II, VIEX GP, VSO GP II and VIEX Capital is organized under the laws of the State of Delaware. Each of Messrs. Singer and Nader is a citizen of the United States of America.
| Item 3. | Source and Amount of Funds or Other Consideration. |
Item 3 is hereby amended and restated to read as follows:
The Shares purchased by Series One were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule A, which is incorporated by reference herein. The aggregate purchase price of the 2,591,733 Shares beneficially owned by Series One is approximately $7,219,780, excluding brokerage commissions.
The Shares purchased by Series Two were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule A, which is incorporated by reference herein. The aggregate purchase price of the 561,269 Shares beneficially owned by Series Two is approximately $1,490,047, excluding brokerage commissions.
The Shares purchased by VSO II were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule A, which is incorporated by reference herein. The aggregate purchase price of the 2,226,829 Shares beneficially owned by VSO II is approximately $6,043,641, excluding brokerage commissions.
| Item 4. | Purpose of Transaction. |
Item 4 is hereby amended to add the following:
On March 4, 2016, Series One delivered a letter (the “Letter”) to the Issuer nominating Elias N. Nader and Eric Singer (the “Nominees”) for election to the Board at the Issuer’s 2016 annual meeting of stockholders (the “Annual Meeting”). The Letter also included a stockholder proposal requesting that the Board take the necessary steps to declassify the Board so that all directors are elected on an annual basis. Series One submitted the Letter because it has serious concerns with the Company’s sub optimal performance, weak corporate governance and the Board’s lack of alignment of interests with stockholders. Series One believes the appointment of the Nominees as stockholder representatives to the Board, together with a de-staggering of the Board, will ensure greater accountability to stockholders and help to protect and maximize stockholder value. Representatives of Series One have engaged, and intend to continue to engage, in discussions with the Board regarding matters relating to the composition of the Board.
11
CUSIP NO. 98872B104
| Item 5. | Interest in Securities of the Issuer. |
Items 5(a)-(c) are hereby amended and restated to read as follows:
The aggregate percentage of Shares reported owned by each Reporting Person is based upon 34,429,402 Shares outstanding, which is the total number of Shares outstanding as of October 31, 2015 as reported in the Issuer’s Quarterly Report on Form 10-Q, filed with the Securities and Exchange Commission on November 6, 2015.
| A. | Series One |
| (a) | As of the close of business on March 3, 2016, Series One beneficially owned 2,591,733 Shares. |
Percentage: Approximately 7.5%
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. Shared power to vote or direct vote: 2,591,733 |
| 3. Sole power to dispose or direct the disposition: 0 |
| 4. Shared power to dispose or direct the disposition: 2,591,733 |
| (c) | Series One has not entered into any transactions in the Shares since the filing of Amendment No. 4. |
| B. | Series Two |
| (a) | As of the close of business on March 3, 2016, Series Two beneficially owned 561,269 Shares. |
Percentage: Approximately 1.6%
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. Shared power to vote or direct vote: 561,269 |
| 3. Sole power to dispose or direct the disposition: 0 |
| 4. Shared power to dispose or direct the disposition: 561,269 |
| (c) | Series Two has not entered into any transactions in the Shares since the filing of Amendment No. 4. |
| C. | VSO II |
| (a) | As of the close of business on March 3, 2016, VSO II beneficially owned 2,226,829 Shares. |
Percentage: Approximately 6.5%
12
CUSIP NO. 98872B104
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. Shared power to vote or direct vote: 2,226,829 |
| 3. Sole power to dispose or direct the disposition: 0 |
| 4. Shared power to dispose or direct the disposition: 2,226,829 |
| (c) | The transactions in the Shares by VSO II since the filing of Amendment No. 4 are set forth in Schedule A and are incorporated herein by reference. |
| D. | VIEX GP |
| (a) | VIEX GP, as the general partner of Series One and Series Two, may be deemed the beneficial owner of the (i) 2,591,733 shares owned by Series One and (ii) 561,269 shares owned by Series Two. |
Percentage: Approximately 9.2%
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. Shared power to vote or direct vote: 3,153,002 |
| 3. Sole power to dispose or direct the disposition: 0 |
| 4. Shared power to dispose or direct the disposition: 3,153,002 |
| (c) | VIEX GP has not entered into any transactions in the Shares since the filing of Amendment No. 4. |
| E. | VSO GP II |
| (a) | VSO GP II, as the general partner of VSO II, may be deemed the beneficial owner of the 2,226,829 shares owned by VSO II. |
Percentage: Approximately 6.5%
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. Shared power to vote or direct vote: 2,226,829 |
| 3. Sole power to dispose or direct the disposition: 0 |
| 4. Shared power to dispose or direct the disposition: 2,226,829 |
| (c) | VSO GP II has not entered into any transactions in the Shares since the filing of Amendment No. 4. The transactions in the Shares on behalf of VSO II since the filing of Amendment No. 4 are set forth in Schedule A and are incorporated herein by reference. |
| F. | VIEX Capital |
| (a) | VIEX Capital, as the investment manager of Series One, Series Two and VSO II, may be deemed the beneficial owner of the (i) 2,591,733 Shares owned by Series One, (ii) 561,269 Shares owned by Series Two and (iii) 2,226,829 owned by VSO II. |
Percentage: Approximately 15.6%
13
CUSIP NO. 98872B104
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. Shared power to vote or direct vote: 5,379,831 |
| 3. Sole power to dispose or direct the disposition: 0 |
| 4. Shared power to dispose or direct the disposition: 5,379,831 |
| (c) | VIEX Capital has not entered into any transactions in the Shares since the filing of Amendment No. 4. The transactions in the Shares on behalf of VSO II since the filing of Amendment No. 4 are set forth in Schedule A and are incorporated herein by reference. |
| G. | Eric Singer |
| (a) | Mr. Singer, as the managing member of VIEX GP and VIEX Capital, may be deemed the beneficial owner of the (i) 2,591,733 Shares owned by Series One, (ii) 561,269 Shares owned by Series Two and (iii) 2,226,829 owned by VSO II. |
Percentage: Approximately 15.6%
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. Shared power to vote or direct vote: 5,379,831 |
| 3. Sole power to dispose or direct the disposition: 0 |
| 4. Shared power to dispose or direct the disposition: 5,379,831 |
| (c) | Mr. Singer has not entered into any transactions in the Shares since the filing of Amendment No. 4. The transactions in the Shares on behalf of VSO II since the filing of Amendment No. 4 are set forth in Schedule A and are incorporated herein by reference. |
| H. | Elias N. Nader |
| (a) | As of the close of business on March 3, 2016, Mr. Nader did not own any Shares. |
Percentage: Approximately 0%
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 0 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | Mr. Nader has not entered into any transactions in the Shares since the filing of Amendment No. 4 |
The filing of this Schedule 13D shall not be construed as an admission that the Reporting Persons are, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, the beneficial owners of any of the Shares reported herein. Each Reporting Person disclaims beneficial ownership of such Shares except to the extent of his or its pecuniary interest therein.
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CUSIP NO. 98872B104
| Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
Item 6 is hereby amended to add the following:
On March 4, 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 and (b) the Reporting Persons agreed to solicit proxies or written consents for the election of the Nominees at the Annual Meeting. The Joint Filing and Solicitation Agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
On March 4, 2016, Series One entered into a letter agreement pursuant to which it and its affiliates agreed to indemnify Mr. Nader against claims 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.
| Item 7. | Material to be Filed as Exhibits. |
Item 7 is hereby amended to add the following:
| 99.1 | Joint Filing and Solicitation Agreement by and among VIEX Opportunities Fund, LP – Series One, VIEX Opportunities Fund, LP – Series Two, VIEX Special Opportunities II, LP, VIEX GP, LLC, VIEX Special Opportunities GP II, LLC, VIEX Capital Advisors, LLC, Eric Singer and Elias N. Nader dated March 4, 2016. |
| 99.2 | Form of Indemnification Letter Agreement. |
| 99.3 | Power of Attorney. |
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CUSIP NO. 98872B104
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: March 4, 2016
| VIEX Opportunities Fund, LP – Series One | |||
| By: | VIEX GP, LLC General Partner | ||
| By: | /s/ Eric Singer | ||
| Name: | Eric Singer | ||
| Title: | Managing Member | ||
| VIEX Opportunities Fund, LP – Series Two | |||
| By: | VIEX GP, LLC General Partner | ||
| By: | /s/ Eric Singer | ||
| Name: | Eric Singer | ||
| Title: | Managing Member | ||
| VIEX GP, LLC | |||
| By: | /s/ Eric Singer | ||
| Name: | Eric Singer | ||
| Title: | Managing Member | ||
| VIEX Special Opportunities Fund II, LP | |||
| By: | VIEX Special Opportunities GP II, LLC General Partner | ||
| By: | /s/ Eric Singer | ||
| Name: | Eric Singer | ||
| Title: | Managing Member | ||
| VIEX Special Opportunities GP II, LLC | |||
| By: | /s/ Eric Singer | ||
| Name: | Eric Singer | ||
| Title: | Managing Member | ||
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CUSIP NO. 98872B104
| VIEX Capital Advisors, LLC | |||
| By: | /s/ Eric Singer | ||
| Name: | Eric Singer | ||
| Title: | Managing Member | ||
| /s/ Eric Singer | |
| Eric Singer, individually and as attorney-in-fact for Elias N. Nader |
17
CUSIP NO. 98872B104
SCHEDULE A
Transactions in the Shares Since the Filing of Amendment No. 4
| Nature of the Transaction | Securities Purchased/(Sold) | Price Per Share($) | Date of Purchase / Sale |
VIEX SPECIAL OPPORTUNITIES FUND II, LP
| Purchase of Common Stock | 80,328 | 3.0097 | 02/22/2016 |