CPB / Campbell Soup Co. / Third Point LLC - SC 13D (Activist Investment)

SecurityCPB / Campbell Soup Co.
Form TypeSC 13D
File Date2018-08-09

Document List

CPB / Campbell Soup Co. / Third Point LLC - SC 13D (Activist Investment)
CPB / Campbell Soup Co. / Third Point LLC - EX-99.1
CPB / Campbell Soup Co. / Third Point LLC - EX-99.2
SC 13D

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No.     )*

 

 

Campbell Soup Company

(Name of Issuer)

Capital Stock, par value $.0375

(Title of Class of Securities)

134429109

(CUSIP Number)

Joshua L. Targoff

Third Point LLC

390 Park Avenue, 19th Floor

New York, NY 10022

(212) 715-3880

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

August 7, 2018

(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 which is the subject of this Schedule 13D, and is filing this schedule because of Sections 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 Section 240.13d-7 for other parties to whom copies are to be sent.

 

 

 

*

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. 134429109  

 

  1   

NAME OF REPORTING PERSONS

 

Third Point LLC

  2   

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a)  ☐        (b)  ☐

 

  3   

SEC USE ONLY

 

  4   

SOURCE OF FUNDS

 

AF

  5   

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 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

 

17,000,000

     9    

SOLE DISPOSITIVE POWER

 

0

   10    

SHARED DISPOSITIVE POWER

 

17,000,000

11   

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

17,000,000

12   

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES

 

13   

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

5.65%

14   

TYPE OF REPORTING PERSON

 

OO


CUSIP No. 134429109  

 

  1   

NAME OF REPORTING PERSONS

 

Daniel S. Loeb

  2   

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a)  ☐        (b)  ☐

 

  3   

SEC USE ONLY

 

  4   

SOURCE OF FUNDS

 

AF

  5   

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

 

  6   

CITIZENSHIP OR PLACE OF ORGANIZATION

 

United States

NUMBER OF  

SHARES  

BENEFICIALLY  

OWNED BY  

EACH  

REPORTING  

PERSON  

WITH  

 

     7    

SOLE VOTING POWER

 

0

     8    

SHARED VOTING POWER

 

17,000,000

     9    

SOLE DISPOSITIVE POWER

 

0

   10    

SHARED DISPOSITIVE POWER

 

17,000,000

11   

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

17,000,000

12   

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES

 

13   

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

5.65%

14   

TYPE OF REPORTING PERSON

 

IN


Item 1. Security and Issuer

This Schedule 13D relates to the capital stock, par value $.0375 (the “Capital Stock”), of Campbell Soup Company, a New Jersey corporation (the “Issuer”). The address of the Issuer’s principal executive offices is 1 Campbell Place, Camden, New Jersey 08103.

Item 2. Identity and Background

(a) This Schedule 13D is being filed by Third Point LLC, a Delaware limited liability company (the “Management Company”), and Daniel S. Loeb (“Mr. Loeb” and, together with the Management Company, the “Reporting Persons”).

(b) The principal business address of the Reporting Persons is 390 Park Avenue, 19th Floor, New York, New York 10022.

(c) The principal business of the Management Company is to serve as investment manager or adviser to a variety of hedge funds and managed accounts (such funds and accounts, collectively, the “Funds”), and to control the investing and trading in securities of the Funds. The principal occupation of Mr. Loeb is serving as Chief Executive Officer of the Management Company.

(d) (e) During the last five years, none of the Reporting Persons (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) has been a 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) Mr. Loeb is a citizen of the United States of America.

Item 3. Source and Amount of Funds or Other Consideration

The Funds expended an aggregate of approximately $686,442,376.90 of their own investment capital to acquire the 17,000,000 shares of Capital Stock held by them.

The Reporting Persons and Funds may effect purchases of shares of Capital Stock through margin accounts maintained for them with brokers, which extend margin credit as and when required to open or carry positions in their margin accounts, subject to applicable federal margin regulations, stock exchange rules and such firms’ credit policies. Positions in shares of Capital Stock may be held in margin accounts and may be pledged as collateral security for the repayment of debit balances in such accounts. Such margin accounts may from time to time have debit balances. In addition, since other securities may be held in such margin accounts, it may not be possible to determine the amounts, if any, of margin used to purchase shares of Capital Stock.

Item 4. Purpose of Transaction

The Reporting Persons acquired most of their Capital Stock following the Issuer’s disastrous fiscal 3q18 earnings report and the unexpected departure of the Issuer’s Chief Executive Officer Denise Morrison. The Reporting Persons believe that the subsequently announced strategic review, if conducted properly, will create significant value for the Issuer’s shareholders.

The Reporting Persons’ analysis shows that years of abysmal oversight by the Issuer’s Board of Directors permitted management missteps, dismal operating performance, and a series of ill-advised acquisitions to take an irreversible toll on the Issuer. Today, the stock trades at roughly the same price it did in 1996 and the Issuer carries a debt load of more than 5x its EBITDA, which provides limited room to maneuver in the face of deteriorating operational and financial results. This predicament is exacerbated by a lack of leadership at the Issuer following the abrupt exit of its Chief Executive Officer without a successor in place or even a search process underway. One of the most essential duties of any Board of Directors is to avoid this kind of a situation by making CEO succession planning paramount; the current CEO vacuum reminds the Reporting Persons of Ben Franklin’s resonant insight that “if you fail to plan, you are planning to fail.”

The Reporting Persons understand from our conversations with the Issuer’s Interim Chief Executive Officer, Keith R. McLoughlin, and the Issuer’s public statements that all options, including a sale, are being evaluated in the ongoing strategic review. The Reporting Persons are encouraged by recent press reports suggesting that a sale process is already underway. Given the significant obstacles facing the Issuer, the Reporting Persons believe that the only justifiable outcome of the strategic review is for the Issuer to be sold to a strategic buyer.

The Reporting Persons are aware that members of Issuer’s founder’s family hold a significant percentage of the voting stock in the Issuer but remind the Board that directors bear fiduciary responsibility to all shareholders. These shareholders include the founder’s many descendants, who are beneficiaries of trusts controlled by certain members of this Board and who have been ill-served by the poor oversight of the Issuer’s business. One such descendant shareholder who strongly shares our views is George Strawbridge and we have agreed to act together to pursue change at the Issuer. The Management Company and Mr. Strawbridge may be deemed to be a group (the “Group”) for the purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Act”). The Letter Agreement (as defined below) is described in Item 6 of this Schedule 13D and the attached Exhibit 1. Mr. Strawbridge will file a separate Schedule 13D pursuant to Rule 13d-1(k)(2) under the Act containing his required information. The Reporting Persons assume no responsibility for the information contained in such Schedule 13D filed by Mr. Strawbridge. The Reporting Persons expressly disclaim beneficial ownership of any securities acquired by other members of the Group.

The Reporting Persons may also take other steps to increase shareholder value as well as pursue other plans or proposals that relate to, or would result in, any of the matters set forth in subparagraphs (a)-(j) of Item 4 of Schedule 13D, excluding (i) acquiring a control stake in the Issuer’s shares of Capital Stock, (ii) engaging in an extraordinary transaction, such as a merger, with the Issuer, or acquiring a material amount of the Issuer’s assets, or grouping with any other party or parties to do either, or (iii) seeking to exert negative control over the important corporate actions of the Issuer, or grouping with any other party or parties to do so, although the Reporting Persons may seek to influence such actions through customary means including presenting its views for consideration to the Issuer, shareholders and other interested parties, privately or publicly, and, if necessary, through the exercise of its shareholder rights including the right to propose new directors for the Issuer’s Board of Directors.

The Reporting Persons intend to review their investment in the Issuer’s shares of Capital Stock on a continuing basis. Depending on various factors including, without limitation, the Issuer’s financial position and investment strategy, the price levels of the shares, conditions in the securities markets and general economic and industry conditions, the Reporting Persons may in the future take such actions with respect to their investment in the Issuer as they deem appropriate including, without limitation, purchasing additional shares of Capital Stock (but without acquiring a control stake in the Issuer’s shares of Capital Stock) or selling some or all of their shares of Capital Stock. The response under Item 6 below is incorporated herein by reference.

The Reporting Persons insist that the Issuer’s Board conduct a rigorous strategic review that results in the best outcome for investors. The Issuer’s Board must weigh the value of the Issuer to a strategic buyer today versus the present value of alternate “go it alone” scenarios, adjusted for execution risk. The Group will continue to advocate strongly for shareholders during the strategic review and may seek Board representation if we conclude that the Issuer’s Board failed to discharge its fiduciary duty.


Item 5. Interest in Securities of the Issuer

(a) (b) As of 9:30 a.m., New York City time, on the date of this Schedule 13D, the Reporting Persons beneficially own an aggregate of 17,000,000 shares of Capital Stock held by the Funds (the “Shares”). The Shares represent 5.65% of the Issuer’s Capital Stock outstanding. Percentages of the Capital Stock outstanding reported in this Schedule 13D are calculated based upon the 300,645,629 shares of Capital Stock outstanding as of May 31, 2018, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended April 29, 2018, filed by the Issuer with the Securities and Exchange Commission on June 5, 2018. Each of the Reporting Persons shares voting and dispositive power over the shares of Capital Stock held directly by the Funds.

As a result of entering into the Letter Agreement (as defined below), the Reporting Persons and George Strawbridge, Jr. (“Mr. Strawbridge”) may be deemed to have formed a “group” pursuant to Rule 13d-5(b)(1) promulgated under the Securities Exchange Act of 1934. The security interests reported in this Schedule 13D do not include security interests owned by Mr. Strawbridge. Mr. Strawbridge will file a separate Schedule 13D reporting beneficial ownership of 8,323,669 shares of Capital Stock (the “Strawbridge Shares”). The Reporting Persons assume no responsibility for the information contained in such Schedule 13D or any amendment thereto. Mr. Strawbridge and the Reporting Persons may be deemed to beneficially own in the aggregate 25,323,669 shares of Capital Stock, which represents approximately 8.42% of the outstanding shares of Capital Stock.

As a result of the Letter Agreement, the Reporting Persons and Mr. Strawbridge may be deemed to share voting power with respect to the 25,323,669 shares of Capital Stock beneficially owned in the aggregate by the Reporting Persons and Mr. Strawbridge. The Reporting Persons disclaim beneficial ownership with respect to the Strawbridge Shares.

(c) Set forth on Schedule A hereto are all transactions in the securities of the Issuer effected during the past sixty days by the Reporting Persons, inclusive of any transactions effected through 9:30 a.m., New York City time, on August 9, 2018.

(d) Other than the Funds that directly hold the securities of the Issuer, and except as set forth in this Item 5, no other person 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.

The responses to Item 3, Item 4 and Item 5 and the information set forth in Schedule A of this Schedule 13D are incorporated herein by reference.

Letter Agreement

On August 9, 2018, the Management Company entered into an agreement (the “Letter Agreement”) with Mr. Strawbridge to coordinate certain efforts with respect to their investment in the Issuer. The Letter Agreement provides that the Management Company will take the lead on all activities related to the parties’ pursuit of representation on the Board of Directors of the Issuer including: (i) the selection of individuals to serve as


directors of the Issuer; provided, that, (x) if requested by Mr. Strawbridge, the Management Company will include the three potential designees previously suggested by Mr. Strawbridge, subject to the completion of due diligence, including background checks and entry, if appropriate, into customary nomination agreements, and (y) the Management Company will designate the remaining designees subject to the reasonable review of, including a review of background checks by Mr. Strawbridge; provided, that the Management Company will consider additional designee suggestions from Mr. Strawbridge; (ii) the making, revising or withdrawing of any proposals to the Issuer regarding the conduct of its business, corporate governance matters (other than the designation of nominees for election to the Board of Directors of the Issuer), corporate transactions or otherwise; (iii) the conduct or settlement of any proxy contest, consent solicitation or similar actions involving the Issuer (other than the designation of nominees for election to the Board of Directors of the Issuer); (iv) the manner, form, content and timing of any communications with the Issuer as well as any public disclosures, public statements or other public communications, in each case relating to the Issuer, the Letter Agreement or the activities contemplated by the Letter Agreement (except to the extent such disclosure, Mr. Strawbridge is required by a regulatory filing, but subject to the Letter Agreement); and (v) the conduct of any litigation or investigation related to the Issuer or the activities contemplated by the Letter Agreement so long as, in each case, Mr. Strawbridge is not a party thereto; provided, however, that Management Company will not enter into any settlement or other agreement with the Issuer or its Board involving the governance of the Issuer (including board composition) or the pursuit of a corporate transaction involving the Issuer without the consent of Mr. Strawbridge, unless the settlement or agreement includes the addition to the Issuer’s Board of directors designated by each party that are reasonably acceptable to both parties to the Letter Agreement.

If the Management Company decides to nominate directors for election at the Issuer’s 2018 Annual Meeting of Shareholders, the parties agreed to vote all Capital Stock with respect to which it has sole voting power in favor of the persons nominated by one or more affiliates of the Management Company to the Board of Directors of the Issuer at the Issuer’s 2018 Annual Meeting of Shareholders in accordance with the Letter Agreement (the “Actions”), and in favor of any procedural actions or matters related to giving effect to the Actions or required to effect the approval of the Actions (but in no event in contravention of any of the Actions). For purposes of this provision in the Letter Agreement, Mr. Strawbridge shall be deemed to have sole voting power of the Capital Stock held by the Revocable Trust of George Strawbridge, Jr. dated January 21, 1991, as amended and restated on December 12, 2016 and as may be further amended from time to time. The Letter Agreement will terminate at the completion of the Issuer’s 2018 Annual Meeting, unless earlier terminated by mutual agreement of the parties. A copy of the Letter Agreement is attached as Exhibit 1 and incorporated herein by reference.

Joint Filing Agreement

On August 9, 2018, the Reporting Persons entered into a Joint Filing Agreement pursuant to which they agreed to the joint filing on behalf of each of them of this Schedule 13D (and any amendments thereto) with respect to the securities of the Issuer. Such Joint Filing Agreement is attached hereto as Exhibit 2.

Derivative Transactions

The Funds may, from time to time, enter into and dispose of cash-settled equity swap, stock-settled equity swap, option or other derivative transactions with one or more counterparties that are based upon the value of shares of Capital Stock, which transactions may be significant in amount. The profit, loss and/or return on such contracts may be wholly or partially dependent on the market value of the shares of Capital Stock.

Item 7. Material to be Filed as Exhibits

 

Exhibit
Number
  

Description of Exhibits

1    Agreement, dated as of August 9, 2018, by and between Third Point LLC and George Strawbridge, Jr.
2    Joint Filing Agreement, dated as of August 9, 2018.
3    Power of Attorney, granted by Daniel S. Loeb in favor of William Song, and Joshua L. Targoff, dated July 26, 2016, that was previously filed with the SEC on July 26, 2016, as Exhibit 99.1 to the Form 3 filed by Third Point LLC and Daniel S. Loeb with respect to Kadmon Holdings, LLC and is incorporated herein by reference.


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.

 

    THIRD POINT LLC
Date: August 9, 2018      
    By:  

/s/ William Song

      Name:   William Song
      Title:     Attorney-in-Fact
    DANIEL S. LOEB
Date: August 9, 2018      
    By:  

/s/ William Song

      Name:   William Song
      Title:     Attorney-in-Fact


SCHEDULE A

This Schedule A sets forth information with respect to each purchase and sale of Shares which was effectuated by a Reporting Person during the past sixty days, inclusive of any transactions effected through 9:30 a.m., New York City time, on August 9, 2018. Unless otherwise indicated, all transactions were effectuated in the open market through a broker.

 

Date of Transaction    Number of Shares Purchased (Sold)    Price per Share ($)
6/11/2018    750,000    34.93
6/11/2018    50,000    34.83
6/11/2018    100,000    34.84
6/12/2018    350,000    34.94
6/12/2018    500,000    34.93
6/12/2018    450,000    34.75
6/13/2018    400,000    35.37
6/13/2018    275,000    35.41
6/13/2018    75,000    35.26
6/13/2018    175,000    35.24
6/14/2018    350,000    36.24
6/15/2018    400,000    36.68
6/18/2018    150,000    36.74
6/19/2018    125,000    36.91
6/19/2018    100,000    36.95
6/20/2018    275,000    36.77
6/20/2018    125,000    36.86
6/21/2018    6,600    37.25
6/21/2018    33,400    37.23
6/22/2018    235,000    38.29
6/25/2018    275,000    41.71
6/26/2018    150,000    41.56
6/26/2018    50,000    41.60
6/29/2018    125,000    40.46
6/29/2018    25,000    40.40
7/2/2018    250,000    40.42
7/31/2018    100,000    41.16
7/31/2018    140,000    41.17
8/1/2018    400,000    41.47
8/1/2018    560,000    41.47
8/2/2018    500,000    41.60
8/2/2018    500,000    41.60
8/2/2018    500,000    41.60
8/2/2018    500,000    41.60
8/3/2018    500,000    43.10
8/3/2018    500,000    43.11
8/3/2018    500,000    43.11
8/3/2018    1,000,000    43.11
8/3/2018    500,000    43.11
8/3/2018    1,000,000    43.00
8/6/2018    300,000    42.66
8/6/2018    1,365,000    42.98
8/7/2018    200,000    41.81
8/7/2018    1,200,000    41.96
8/8/2018    200,000    41.99


8/8/2018    235,000    42.00
8/8/2018    250,000    41.99
8/8/2018    250,000    41.99


INDEX TO EXHIBITS

 

Exhibit
Number
  

Description of Exhibits

1    Agreement, dated as of August 9, 2018, by and between Third Point LLC and George Strawbridge, Jr.
2    Joint Filing Agreement, dated as of August 9, 2018.
3    Power of Attorney, granted by Daniel S. Loeb in favor of William Song, and Joshua L. Targoff, dated July 26, 2016, that was previously filed with the SEC on July 26, 2016, as Exhibit 99.1 to the Form 3 filed by Third Point LLC and Daniel S. Loeb with respect to Kadmon Holdings, LLC and is incorporated herein by reference.
EX-99.1

EXHIBIT 1

AGREEMENT

THIS AGREEMENT, dated as of August 9, 2018, is by and between Third Point LLC (“Management Company”) and George Strawbridge, Jr. (“S”).

WHEREAS, the parties both believe that the value of the shares of capital stock (“Capital Stock”), $0.0375 par value, of Campbell Soup Company (the “Company”), could be substantially increased if the Company were prepared to entertain changes, likely under the guidance of a reconstituted Board of Directors; and

WHEREAS, the parties will seek to engage in private and public discussions with members of the Company’s board and management, and consider the designation of individuals to serve as directors of the Company.

NOW, THEREFORE, in consideration of the covenants and agreements set forth in this agreement, and for other good and valuable consideration the receipt and sufficiency of which are acknowledged, and intending to be legally bound, the parties agree as follows:

 

  1.

Coordinated Activities. Management Company will take the lead on all activities related to the parties’ pursuit of representation on the Board of Directors of the Company (the “Board”) including: (i) the selection of individuals to serve as directors of the Company; provided, that, (x) if requested by S, Management Company will include the three potential designees previously suggested by S, subject to the completion of due diligence, including background checks and entry, if appropriate, into customary nomination agreements, and (y) Management Company will designate the remaining designees subject to the reasonable review of, including a review of background checks by, S; provided, that Management Company will consider additional designee suggestions from S; (ii) the making, revising or withdrawing of any proposals to the Company regarding the conduct of its business, corporate governance matters (other than the designation of nominees for election to the Board), corporate transactions or otherwise; (iii) the conduct or settlement of any proxy contest, consent solicitation or similar actions involving the Company (other than the designation of nominees for election to the Board); (iv) the manner, form, content and timing of any communications with the Company as well as any public disclosures, public statements or other public communications, in each case relating to the Company, this agreement or the activities contemplated by this agreement (except to the extent such disclosure by S is required by a regulatory filing, but subject to Section 4 below); and (v) the conduct of any litigation or investigation related to the Company or the activities contemplated by this agreement so long as, in each case, S is not a party thereto; provided, however, that Management Company will not enter into any settlement or other agreement with the Company or its Board involving the governance of the Company (including board composition) or the pursuit of a corporate transaction involving the Company without the consent of S, unless the settlement or agreement includes the addition to the Company Board of directors designated by each party that are reasonably acceptable to both parties hereto. Management Company covenants and agrees to consult with S with respect to the form, content and timing of any communications with the Company or the taking of any of the other actions set forth in the foregoing sentence. Neither Management Company nor S will enter into any agreement, arrangement or understanding with any other person in connection with the holding, voting or disposition of Capital Stock; provided that notwithstanding the foregoing Management Company may enter into any such agreement, arrangement or understanding with its affiliates. S covenants and agrees to cooperate with Management Company in connection with the activities contemplated by this Section 1.

 

  2.

Voting of Capital Stock. If the Management Company decides to nominate directors for election at the 2018 Meeting, each party shall:

 

  (a)

use reasonable best efforts so that it may vote all Capital Stock with respect to which it has sole voting power for the election as directors of nominees selected in accordance with this agreement at any meeting of Company shareholders or by action by written consent; and

 

  (b)

on the Meeting Date, (w) attend the 2018 Meeting in person or by proxy such that all Capital Stock with respect to which such party has sole voting power is represented at such meeting, (x) at the 2018 Meeting, vote such Capital Stock in person or by proxy in favor of the persons nominated by one or more affiliates of Management Company to the Board of Directors of the Company in accordance with this agreement (the “Actions”), and in favor of procedural actions or matters related to giving effect to the Actions or required to effect the approval of the Actions (but in no event in contravention of any of the Actions).

For purposes of this agreement, “Meeting Date” shall mean the date of the 2018 Meeting. “2018 Meeting” shall mean the next meeting of the shareholders of the Company called for the purpose of electing at least a majority of the directors and any special meeting of shareholders called for the purpose of electing directors before such meeting, and any adjournments or postponements thereof. For purposes of Section 2 of this agreement, S shall be deemed to have sole voting power of the Capital Stock held by the Revocable Trust of George Strawbridge, Jr. dated January 21, 1991, as amended and restated on December 12, 2016 and as may be further amended from time to time (the “Trust”).

 


  3.

Communications. This agreement shall not restrict S’s ability to have discussions with family members and fiduciaries acting for their benefit or their respective advisors, provided, that (i) if S determines to send any written material in connection with such discussions, S will send only publicly available documents (or links thereto) or will otherwise provide Management Company with an opportunity to comment on any such written materials before the same are sent, and (ii) S will keep Management Company reasonably informed of any oral discussions that are relevant to the process. Except (i) for communications in accordance with the foregoing sentence and (ii) as required by law, S will not and will request that his wife and children do not, make any statements (a) which could reasonably be expected to be made public, (b) to Company officers or directors or to persons acting on behalf of such persons, in each case regarding the Company or S’s investment in the Company, without the prior written consent of the Management Company, which will not be unreasonably withheld. Each party shall reasonably promptly inform the other following any inquiry, outreach or other communication, including any, e-mail correspondence and telephone calls, from, or on behalf of, the Company, including any of its officers, directors, legal advisors, financial advisors or other representatives, that are relevant to the process.

 

  4.

Regulatory Reporting. The parties shall cooperate including providing the other party with not less than 24 hours prior notice (unless a shorter time is reasonably required by the circumstances) in connection with any regulatory filing that may be required to be made in connection with the matters contemplated by this agreement, including any filing made pursuant to Regulation 13D under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The parties will file their own Schedule 13D in the event any group formed hereunder is required to make such filing. Each of the parties agrees that it shall be responsible for the completeness and accuracy of the information concerning it contained in any filing pursuant to Section 13(d), Section 14(a) or Section 16 of the Exchange Act and hereby agrees to indemnify the other party, from and against any losses, damages, costs, expenses (including any reasonable and documented attorneys’ fees), fines, penalties, disbursements and amounts paid in settlement arising out of any failure with respect to the completeness or accuracy of such information.

 

  5.

Termination. This agreement will terminate at the completion of the 2018 Meeting (including any adjournment or postponement thereof), unless earlier terminated by mutual written agreement of the parties. Notwithstanding anything to the contrary contained herein, the last sentence of Section 4 and Sections 7, 8 and 9 shall survive any termination of this agreement.

 

  6.

Relationship of the Parties. Nothing in this agreement shall be construed as creating among the parties any joint venture, partnership, association or other entity for any purpose (including, without limitation, for U.S. income tax purposes) or any agency relationship, nor shall any party, except as expressly set forth in this agreement, (i) have the right, power or authority to create any obligation or duty, express or implied, on behalf of any other party or (ii) have any fiduciary or other duties to any other party. Each party agrees that it does not have any interest in the profits or losses of the other party in connection with its acquisition or disposition of any securities of the Company.

 

  7.

Expenses. Each party shall bear its own expenses.

 

  8.

Miscellaneous. This agreement (i) shall be governed by and construed in accordance with the laws of the State of New York, (ii) may not be assigned, amended, waived or modified except by a writing signed by each party, (iii) may be executed in counterparts, each of which shall be deemed an original but both of which together shall constitute one and the same instrument and (iv) represents the entire agreement between the parties with respect to the subject matter of this agreement. For purposes of this agreement “beneficially own” or “beneficial ownership” with respect to any securities shall mean having “beneficial ownership” of such securities as determined pursuant to Rule 13d-3 under the Exchange Act.

 

  9.

Confidentiality. Each party will treat all non-public information received from the other party as confidential and use reasonable precautions to safeguard the confidentiality of such information.

 

2


  10.

Privilege; Joint Defense. To the extent that any confidential information may include materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each party understands and agrees that the parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties that the sharing of such materials is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All confidential information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.

 

  11.

Specific Performance. Each party to this agreement acknowledges that money damages would not be a sufficient remedy for any breach of this agreement by it and consents to a court of competent jurisdiction entering an order finding that the non-breaching party has been irreparably harmed as a result of any such breach and to the granting of injunctive relief as a remedy for any such breach.

 

  12.

Each party hereby represents and warrants to the other party that, except as set forth on Schedule I, such party does not have beneficial ownership of any securities of the Company as of the date hereof.

[Signature Page Next]

 

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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed as of the day and year first written above.

 

THIRD POINT LLC
By:   /s/ Joshua L. Targoff
  Name: Joshua L. Targoff
  Title:   Chief Operating Officer and General Counsel
George Strawbridge, Jr.

/s/ George Strawbridge, Jr.


Schedule I

 

Person

  

Beneficial Ownership

Management Company

  

17,000,000 shares of Capital Stock

S

   8,323,669 shares of Capital Stock
EX-99.2

EXHIBIT 2

JOINT FILING AGREEMENT

PURSUANT TO RULE 13d-1(k)

The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D may be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him or it contained herein or therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that he or it knows or has reason to believe that such information is inaccurate.

 

    THIRD POINT LLC
Date: August 9, 2018      
    By:  

/s/ William Song

      Name:   William Song
      Title:     Attorney-in-Fact
    DANIEL S. LOEB
Date: August 9, 2018      
    By:  

/s/ William Song

      Name:   William Song
      Title:     Attorney-in-Fact