Daktronics Inc 8-K, filed Mar 3, 2025
Daktronics Inc (DAKT)
About this 8-K
Daktronics Inc filed this 8-K on March 3, 2025.
Items reported
- Item 1.01: Entered into a material agreement
- Item 3.03: Change to shareholders' rights
- Item 5.02: Director or officer change, or executive pay
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into a Material Definitive Agreement. |
Cooperation Agreement
On March 3, 2025 (the “Effective Date”), Daktronics, Inc. (the “Company”), entered into a Cooperation Agreement (the “Cooperation Agreement”) with Alta Fox Capital Management, LLC, Alta Fox Opportunities Fund, LP, Alta Fox GenPar, LP, Alta Fox Equity, LLC and P. Connor Haley (collectively with their affiliates and associates, “Alta Fox”).
Pursuant to the Cooperation Agreement, the Company has agreed to: (i) increase the size of the Board by one seat; (ii) appoint Peter Feigin (the “New Director”) to the Company’s board of directors (the “Board”) with a term expiring at the Company’s 2027 annual meeting of shareholders (the “2027 Annual Meeting”); and (iii) appoint the New Director to the Transformation Committee of the Board (the “Transformation Committee”).
Pursuant to the Cooperation Agreement, Alta Fox has agreed to cease its solicitation in connection with the Company’s 2025 special meeting of shareholders (the “Special Meeting”) to vote on the reincorporation of the Company from South Dakota to Delaware (the “Reincorporation”). Alta Fox has also agreed, from the Effective Date until the first day following the conclusion of the 2027 Annual Meeting (the “Standstill Period”), to vote all shares of the Company’s common stock, no par value (“Common Stock”), that it beneficially owns (i) in favor of the Reincorporation at the Special Meeting; and (ii) in accordance with the Board’s recommendations on proposals, except that Alta Fox (x) may vote in accordance with Institutional Shareholder Services Inc. and Glass, Lewis & Co. LLC if they both recommend differently from the Board (other than on proposals with respect to the election, removal, or replacement of directors or the Reincorporation) and (y) may vote in its discretion on Extraordinary Transactions (as defined in the Cooperation Agreement).
According to the Cooperation Agreement, Alta Fox will dismiss with prejudice all claims against the Company and its directors and/or officers, including the lawsuit Alta Fox has filed in the U.S. District Court for the District of South Dakota. Alta Fox and the Company have agreed to release each other from any claims except for those arising out of the Cooperation Agreement. The Cooperation Agreement also contains certain non-disparagement provisions.
During the Standstill Period, Alta Fox has also agreed to certain customary standstill provisions prohibiting it from, among other things: (i) acquiring, in the aggregate, beneficial ownership of more than 5,973,599 shares of Common Stock, subject to limited exceptions; (ii) soliciting proxies; (iii) advising or knowingly encouraging any person with respect to the voting or disposition of any securities of the Company; and (iv) taking actions to change or influence the Board, management, or the direction of certain Company matters.
In connection with the Cooperation Agreement, the Company has also agreed to, among other things: (i) amend the Company’s Amended and Restated Bylaws (the “Bylaws”) to require a Lead Independent Director of the Board (“Lead Independent Director”) be selected by the Independent Directors (as defined in the Cooperation Agreement) if the Chairperson of the Board is not an Independent Director; (ii) engage an independent compensation consultant by March 31, 2025; (iii) hold an investor day prior to December 31, 2025; and (iv) not re-nominate at least one of the Company’s incumbent directors at the Company’s 2025 annual meeting of shareholders.
Additionally, pursuant to the Cooperation Agreement, the Company agreed to amend that certain Rights Agreement, dated as of November 16, 2018, by and between the Company and Equiniti Trust Company, LLC (the “Rights Agent”), as amended on November 19, 2021 and November 19, 2024 (as amended, the “Rights Agreement”), such that the Final Expiration Date (as defined in the Rights Agreement) will occur as promptly as practicable following the Effective Date.
As of the Effective Date, Alta Fox owned approximately 5,973,599 shares of Common Stock and, in addition to the Cooperation Agreement, is, directly or indirectly through its affiliates, a party to the Convertible Note and the other Notes Related Agreements (as defined in the Cooperation Agreement) entered into with the Company on May 11, 2023.
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The foregoing description of the material terms of the Cooperation Agreement in this Current Report on Form 8-K (this “Report”) does not purport to be complete and is qualified in its entirety by reference to the full text of the Cooperation Agreement, a copy of which is filed as Exhibit 10.1 to this Report and is incorporated herein by reference.
Third Amendment to Rights Agreement
On March 3, 2025, the Company and the Rights Agent entered into the Third Amendment to Rights Agreement (the “Third Amendment”). The Third Amendment amends the Rights Agreement by accelerating the Final Expiration Date of the Company’s Series A Junior Participating Preferred Stock purchase rights (the “Rights”) from the Close of Business (as defined in the Rights Agreement) on November 19, 2025 to the Close of Business on March 3, 2025. As a result of the Third Amendment, effective as of the Close of Business on March 3, 2025, all of the Rights, which were previously distributed to holders of Common Stock pursuant to the Rights Agreement, have expired and cease to be outstanding.
The foregoing description of the material terms of the Third Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Third Amendment, a copy of which is filed as Exhibit 4.4 to this Report and is incorporated herein by reference.
| Item 3.03 | Material Modification to Rights of Security Holders. |
The information regarding the Third Amendment set forth in Item 1.01 of this Report is incorporated into this Item 3.03 by reference.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On March 3, 2025, the Board appointed Peter Feigin to serve as a member of the Board, effective March 5, 2025, with a term expiring at the 2027 Annual Meeting. Mr. Feigin will receive the same compensation for his service as a director as the compensation received by other non-management directors on the Board, which compensation arrangements are described under the caption “Director Compensation” in the Company’s definitive proxy statement on Schedule 14A filed with the SEC on August 5, 2024, as adjusted by the Board from time to time.
Concurrently with his appointment to the Board, Mr. Feigin was also appointed to the Transformation Committee.
The Board also increased the size of the Board from eight to nine directors, and Mr. Feigin filled the newly created vacancy resulting from the increase in the size of the Board.
There are no family relationships between Mr. Feigin and any previous or current officers or directors of the Company, and Mr. Feigin has no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K promulgated under the Securities Act of 1933, as amended (the “Securities Act”). Except for the Cooperation Agreement described in Item 1.01 above, there is no arrangement or understanding between Mr. Feigin and any other persons or entities pursuant to which Mr. Feigin was appointed as a director of the Company.
The information set forth in Item 1.01 of this Report is incorporated into this Item 5.02 by reference.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Pursuant to the Cooperation Agreement, effective March 3, 2025, the Board approved and adopted the Second Amended and Restated Bylaws of the Company (the “Amended Bylaws”). The Amended Bylaws codify the Company’s existing practice, as contemplated by the Company’s Board of Directors Corporate Governance Guidelines, by amending the Bylaws to require the directors to select a Lead Independent Director in the event that the Chairperson of the Board is not an Independent Director.
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The information regarding the Amended Bylaws set forth in Item 1.01 of this Report is incorporated into this Item 5.03 by reference.
The foregoing description of the Amended Bylaws does not purport to be complete and is qualified in its entirety by reference to the full text of the Amended Bylaws, a copy of which is filed as Exhibit 3.1 to this Report and incorporated into this Item 5.03 by reference.
| Item 7.01. | Regulation FD Disclosure. |
On March 3, 2025, the Company issued a press release announcing its entry into the Cooperation Agreement and the appointment of Mr. Feigin to the Board. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
The information furnished in this Item 7.01, including Exhibit 99.1 hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall such information be deemed incorporated by reference into any registration statement or any other document filed under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filing, except as shall be expressly set forth by specific reference in such filing.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| DAKTRONICS, INC. | ||
| By: | /s/ Sheila M. Anderson | |
| Sheila M. Anderson, Chief Financial Officer | ||
| (Principal Financial Officer and Principal Accounting Officer) | ||
Date: March 3, 2025
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Exhibit 3.1
SECOND AMENDED AND RESTATED BYLAWS
OF
DAKTRONICS, INC.
A SOUTH DAKOTA BUSINESS CORPORATION
INCORPORATED UNDER SOUTH DAKOTA LAW
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1.1 Place of Meeting. All meetings of the shareholders of the Corporation shall be held at the principal executive office of the Corporation in the State of South Dakota or at such other place within or without the state as may be fixed from time to time by the Board of Directors.
Section 1.2 Annual Meetings. An annual meeting of the Corporation’s shareholders shall be held on such date, time, and place as the Board of Directors shall by resolution establish. At the annual meeting, the shareholders shall elect qualified successors for directors whose terms are expiring and shall transact such other business as may properly come before them.
Section 1.3 Special Meetings.
(a) Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Articles of Incorporation, may be called by the Chairman, the Chief Executive Officer, the Chief Financial Officer, or Secretary, or by any two or more directors, or by written demand in accordance with this Section 1.3, including the purpose or purposes for the meeting, by a shareholder or shareholders holding ten percent (10%) or more (the “Requisite Percentage”) of the voting power of all shares entitled to vote at the meeting (“Qualifying Shareholder Demand”). Multiple shareholder demands delivered to the Secretary will be considered collectively to determine whether a Qualifying Shareholder Demand has been made only if each such demand (i) identifies substantially the same purpose or purposes of the special meeting of the shareholders and substantially the same matters proposed to be acted on at the special meeting of the shareholders, as determined in good faith by the Board of Directors, and (ii) has been dated and delivered to the Secretary within sixty (60) days of the earliest dated shareholder demand received by the Secretary in connection with the calling of the same special meeting; provided, that the shareholder submitting the initial demand that such special meeting be called (the “Initial Demanding Shareholder”) shall also deliver a notice at that time that sets forth all of the information required in Article I, Section 1.11 of these Bylaws, as if Article I, Section 1.11 applies to a special meeting and any nomination of directors or other business to be brought before a special meeting.
(b) If a special meeting is demanded by any person or persons other than the Chairman, the Chief Executive Officer, the Chief Financial Officer, or Secretary, or by any two or more directors, each demand shall be in writing and shall be delivered by registered mail, postage prepaid, to the Secretary. Upon receipt of a final demand that satisfies the Requisite Percentage, the Board of Directors shall set, via a resolution, the date, time and place, if any, of such special meeting, and give notice of such meeting within thirty (30) days of the date the final demand comprising a Qualifying Shareholder Demand was delivered to the Secretary. The record date for such special meeting shall be determined in accordance with Section 1.9 of these Bylaws, unless
otherwise set by applicable law, and the Secretary shall cause notice to be given to the shareholders entitled to vote in accordance with the provisions of Article I, Section 1.4 of these Bylaws. Nothing contained in this Section 1.3 shall be construed as limiting, fixing, or affecting the time when a meeting of shareholders called by action of the Chairman, the Chief Executive Officer, the Chief Financial Officer, or Secretary, or by any two or more directors may be held. A shareholder may revoke a Qualifying Shareholder Demand at any time prior to the delivery, consistent with this Section 1.3, of the final demand comprising the Qualifying Shareholder Demand.
(c) At any special meeting of the shareholders, only such nominations or business shall be conducted or considered as shall have been properly brought before the meeting pursuant to the requirements set forth in this Section 1.3. The Secretary shall not accept, and shall consider ineffective, a demand by a shareholder to call a special meeting that does not comply with this Section 1.3. In the event the Chairman, the Chief Executive Officer, the Chief Financial Officer, or Secretary, or any two or more directors calls a special meeting of shareholders for the purpose of electing one or more directors to the Board of Directors, any shareholder may nominate a person or persons (as the case may be) for election to such position(s) as specified by the Corporation, if the shareholder’s notice required by Article I, Section 1.11 (which shall also be required by this Section 1.3 as if Article I, Section 1.11 applies to a special meeting and any nomination of directors brought before a special meeting) shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the date on which (i) the Corporation’s notice of the special meeting is delivered to shareholders or (ii) a disclosure (a “Public Announcement”) in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission (the “SEC”) pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder (the “Exchange Act”) is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting, whichever first occurs. In no event shall the Public Announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a shareholder’s notice as described above.
(d) Notwithstanding anything in these Bylaws to the contrary, the Secretary shall not be required to call a special meeting pursuant to this Section 1.3 except in accordance with this Section 1.3. If the Board of Directors shall determine that any demand for a special meeting was not properly made in accordance with this Section 1.3, then the Board of Directors shall not be required to call and hold the special meeting; provided, that the Board of Directors shall have thirty (30) days from the receipt of any subsequent demand(s) meeting the Requisite Percentage to determine whether a Qualified Shareholder Demand has been made in compliance with this Section 1.3 and give notice of such special meeting. In addition to the requirements of this Section 1.3, each demanding shareholder shall comply with all requirements of applicable law, including all requirements of the Exchange Act, with respect to any demand to call a special meeting. Unless otherwise required by law, if the Initial Demanding Shareholder (or a qualified representative of the Initial Demanding Shareholder) does not appear at the special meeting of shareholders to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. To be considered a “qualified representative” of the Initial Demanding Shareholder, a person must be a duly authorized officer, manager or partner
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of the Initial Demanding Shareholder or must be authorized by a writing executed by the Initial Demanding Shareholder or an electronic transmission delivered by the Initial Demanding Shareholder to act for the Initial Demanding Shareholder as proxy at the meeting of shareholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of shareholders.
Section 1.4 Notice of Meetings. There shall be delivered to each shareholder, shown by the books of the Corporation to be a holder of record of voting shares, at his/her/its address as shown on the books of the Corporation, a notice setting out the date, time and place of each annual meeting and each special meeting of shareholders, except as otherwise permitted by applicable law or statute. Unless otherwise required by applicable law or statute, this notice shall be delivered no fewer than ten (10) days nor more than sixty (60) days before the meeting. Notice shall be delivered either personally or by mail, by or at the direction of the persons calling the meeting. If the notice is mailed, such notice shall be effective when deposited in the United States mail, postage prepaid, addressed to the shareholder at his/her/its address as it appears on the stock transfer books of the Corporation. If the notice is electronically transmitted in a manner authorized by the shareholder, such notice shall be effective when transmitted. Every notice of any special shareholders’ meeting called pursuant to this Section shall state the purpose or purposes for which the meeting has been called, and the business transacted at all special meetings shall be confined to the purpose stated in the notice. In addition, the notice of a meeting at which a plan or agreement of merger, consolidation or exchange or a disposition that would leave the Corporation without a significant continuing business activity as defined in the South Dakota Codified Laws is to be voted upon shall state that a purpose of the meeting is to consider the proposed plan or agreement of merger, consolidation or exchange, and a copy or a summary description of the plan or agreement of merger, consolidation or exchange shall be included in or enclosed with the notice.
Section 1.5 Waiver of Notice. Whenever any notice is required to be given to any shareholder of the Corporation under applicable law, the Corporation’s Articles of Incorporation, or these Bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. In addition, attendance of a shareholder at a meeting waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transaction of business at the meeting, and waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented.
Section 1.6 Quorum; Adjourned Meetings. A majority of the shares entitled to vote on a matter constitutes a quorum for action on that matter. Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. If a quorum is not present at a meeting, the shareholders present at the meeting, by majority vote, may adjourn the meeting to such day as they shall agree upon, and a notice of such adjournment shall be mailed to each shareholder entitled to vote at least five (5) days before such adjourned meeting. At adjourned meetings at which a quorum is present, any business may be transacted which may have been transacted at the meeting as originally noticed.
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Section 1.7 Voting. At each meeting of the Corporation’s shareholders, every shareholder having the right to vote shall be entitled to vote either in person or by proxy executed in writing or by electronic transmission by the shareholder or by the shareholder’s duly authorized attorney-in-fact, with such proxies delivered to an officer of the Corporation before or at the time of the meeting. No proxy shall be valid after eleven (11) months unless the proxy expressly provides for a longer period. Unless the Corporation’s Articles of Incorporation, these Bylaws, or applicable law or statute provide otherwise, each shareholder shall have one vote for each share having voting power registered in such shareholder’s name on the books of the Corporation. Jointly owned shares may be voted by any joint owner unless the Corporation receives written notice from any one of them denying the authority of that person to vote those shares. Upon the demand of any shareholder, the vote upon any question before the meeting shall be by ballot. All matters coming before the shareholders for a vote shall be decided by a majority vote of the voting power of the shares present and entitled to vote and represented at the meeting at the time of the vote except if otherwise required by applicable law or statute, the Articles of Incorporation, or these Bylaws. A solicitation for proxies shall specifically state the matters for which proxies are sought, and no proxy may be voted on any matter not specified in the solicitation. If the vote is made by electronic transmission, the transmission shall either set forth or be submitted with information from which it can be determined that the transmission was authorized by the shareholder or proxy holder.
Section 1.8 Cumulative Voting. At each election for directors of the Corporation, every shareholder entitled to vote at such election shall have the right to vote, in person or by proxy, the number of shares owned by him/her/it for as many persons as there are directors to be elected and for whose election such shareholder has a right to vote, or to cumulate the shareholder’s votes by giving one candidate as many votes as the number of such directors multiplied by the number of such shareholder’s shares shall equal, or by distributing such votes on the same principle among any number of candidates, pursuant to the procedure set forth in South Dakota Codified Laws.
Section 1.9 Record Date. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for the determination of the shareholders entitled to notice of, and to vote at, any meeting of shareholders or any adjournment of such a meeting, or entitled to receive payment of any dividend or distribution, or in order to make a determination of shareholders for any other proper purpose, notwithstanding any transfer of shares on the books of the Corporation after any record date so fixed, such date to be determined by the Board of Directors, and, in the case of a shareholder meeting, not more than seventy (70) days, before the date on which the particular action requiring such determination of shareholders is to be taken. If the Board of Directors does not fix a record date for determination of the shareholders entitled to notice of, and to vote at, any meeting of shareholders, or for any other purpose, the record date shall be the date in which notice of the meeting is mailed or the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be.
Section 1.10 Organization of Meetings; Voting List. Unless a Chairman of the Board has been elected, at all meetings of the shareholders, the Chief Executive Officer shall act as Chairman; in his/her absence, any person appointed by the Chief Executive Officer shall act as Chairman; and the Secretary, or in his/her absence any person appointed by the Chairman, shall act as Secretary. After fixing a record date for a meeting, the officer or agent having charge of the stock transfer books for shares of the Corporation shall make a complete list of the shareholders
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entitled to vote at any meeting of the shareholders or any adjournment thereof, arranged in alphabetical order, with the address of and number of shares held by each. Such list shall be available for inspection by any shareholder, beginning two business days after notice of the meeting is given for which the list was prepared and continuing through the meeting, at the Corporation’s principal office or at a place identified in the meeting notice. The original stock transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer books or to vote at any meeting of shareholders.
Section 1.11 Notice of Shareholder Business and Nominations.
(a) Except as expressly provided in Article I, Section 1.11, nominations of persons for election to the Board of Directors and the proposal of business to be considered by the shareholders may be made at an annual meeting of shareholders only (i) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (ii) by or at the direction of the Board of Directors (or any committee thereof) or (iii) by a shareholder of the Corporation who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 1.11. For the avoidance of doubt, except as expressly provided in this Article I, Section 1.11, clause (iii) above shall be the exclusive means for a shareholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 of the Exchange Act, and included in the Corporation’s notice of meeting) before an annual meeting of shareholders.
(b) For nominations or other business to be properly brought before an annual meeting by a shareholder pursuant to Section 1.11(a) of this Article I, the shareholder must have given timely notice thereof in writing to the Secretary of the Corporation and such business must be a proper subject for shareholder action under the South Dakota Codified Laws. To be considered timely, a shareholder’s notice must be delivered by registered mail, postage prepaid, to, and received by, the Secretary at the principal business office of the Corporation not less than ninety (90) days nor more than one hundred and twenty (120) days before the first anniversary of the preceding year’s annual meeting of shareholders; provided, that a shareholder’s notice in connection with the Corporation’s 2023 annual meeting of shareholders (the “2023 Annual Meeting”), which must comply with the informational requirements of this Section 1.11, must be delivered by the deadline stated in the Corporation’s 2022 definitive proxy statement filed on August 8, 2022, with the SEC; provided, further, that in the event that the date of the annual meeting, including the 2023 Annual Meeting, is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the shareholder to be considered timely must be received by the Corporation not more than one hundred and twenty (120) days before the annual meeting and not less than the later of (i) ninety (90) days before such annual meeting or (ii) ten (10) days following the date on which Public Announcement of the date of such meeting is first made by the Corporation. In no event shall the Public Announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a shareholder’s notice as described above. Nothing in this Section 1.11 shall be deemed to affect any rights of a shareholder to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(c) Such proposing shareholder’s notice shall set forth:
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(i) as to each person whom the proposing shareholder proposes to nominate for election or re-election as a director:
(A) all information relating to such person that is required to be disclosed pursuant to and in accordance with Regulation 14A under the Exchange Act (including such person’s written consent to being named in the proxy statement as a nominee and to serving a full term as a director if elected);
(B) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among the proposing shareholder and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith;
(C) a fully completed written questionnaire with respect to the background, qualifications, character and fitness to serve of each proposed nominee and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire each proposed nominee or the proposing shareholder shall request in writing by registered mail from the Secretary of the Corporation at least ten (10) days prior to the submission of the proposing shareholder’s notice); and
(D) any other information relating to the proposed nomination that is required to be disclosed under applicable law;
(ii) as to any other business that the proposing shareholder proposes to bring before the meeting:
(A) a brief description of the business desired to be brought before the meeting;
(B) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment);
(C) the reasons for conducting such business at the meeting; and
(D) any other information relating to the proposal that is required to be disclosed under applicable law;
(iii) as to the proposing shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made:
(A) the name and address of such proposing shareholder, as they appear on the Corporation’s books, and of such beneficial owner;
(B) the class or series and number of shares of stock of the Corporation that are owned, directly or indirectly, beneficially and of record by the proposing shareholder and any beneficial owner;
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(C) any personal or other substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) in such proposed nomination or business of the proposing shareholder and the beneficial owner, if any, on whose behalf the nomination or proposal is made and a description of all agreements, arrangements and understandings between the proposing shareholder and any other person or persons (including their names) in connection with the proposal of such nomination or business by the proposing shareholder; and
(D) a representation as to whether the proposing shareholder or the beneficial owner, if any, intends, or is part of a group that intends, to solicit proxies in support of proposed nominees other than the Corporation’s nominees from holders of shares representing at least 67% of the voting power of shares in accordance with Rule 14a-19 promulgated under the Exchange Act, and if so, set forth the names of the participants of the solicitation.
(d) If the proposing shareholder fails to comply with the requirements of Rule 14a-19, including the provision to the Corporation of notices required thereunder in a timely manner, then (i) such proposing shareholder must promptly notify the Corporation of such non-compliance and (ii) the Corporation shall disregard any proxies or votes solicited for the proposed nominee(s). Only such persons who are nominated in accordance with the procedures set forth in these Bylaws and applicable law shall be eligible to be nominees and serve as directors. Upon request by the Corporation, such proposing shareholder shall deliver to the Corporation, no later than five (5) business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act.
(e) The proposing shareholder providing notice of a proposed nomination for election to the Board of Directors or business proposal shall update and supplement such notice to the extent necessary so that the information provided or required to be provided in such notice shall be true, complete, and correct as of the record date for determining shareholders entitled to notice of the meeting and as of the date that is fifteen (15) days prior to the meeting or any adjournment or postponement thereof. All information provided in the proposing shareholder’s notice must be true, complete, and correct as of the date of its initial submission to the Corporation, and any supplements to such proposing shareholder’s notice shall be true, complete, and correct as of the dates provided in the preceding sentence, and any such update or supplement shall be made only to the extent that information has changed since the proposing shareholder’s prior submission of his or her notice. Any such update or supplement shall be delivered in writing by registered mail to the Secretary at the principal executive offices of the Corporation not later than five (5) days after the record date for determining shareholders entitled to notice of the meeting (in the case of any update or supplement required to be made as of the record date for determining shareholders entitled to notice of the meeting), not later than ten (10) days prior to the date for the meeting (or, if not practicable, on the first practicable date prior to) or any adjournment or postponement thereof (in the case of any update or supplement required to be made as of fifteen (15) days prior to the meeting or any adjournment or postponement thereof).
(f) In addition to the information required pursuant to the foregoing provisions of this Section 1.11, the proposing shareholder and any proposed nominee shall also provide to the Corporation such other information as the Corporation may reasonably request. Such information shall be considered timely if provided to the Corporation promptly upon request by the Corporation, but, in any event, within five (5) business days after such request.
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(g) Except as otherwise provided by law, these Bylaws or the Articles of Incorporation, the Board of Directors shall have the power and duty to determine whether a nomination or other proposal of business to be brought before the meeting was made, as the case may be, in accordance with the procedures set forth in Section 1.11. If any proposed nomination or other proposal of business is not in compliance with Section 1.11, the Articles of Incorporation or applicable law, then the Board of Directors shall declare that such defective nomination or proposal of business shall be disregarded. Unless otherwise required by law, if the proposing shareholder (or a qualified representative of the shareholder) does not appear at the annual meeting of shareholders to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. To be considered a “qualified representative” of the proposing shareholder, a person must be a duly authorized officer, manager or partner of the proposing shareholder or must be authorized by a writing executed by the proposing shareholder or an electronic transmission delivered by the proposing shareholder to act for the proposing shareholder as proxy at the meeting of shareholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of shareholders.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 General Powers. The business and affairs of the Corporation shall be managed by or under its Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by applicable law or statute, by the Corporation’s Articles of Incorporation, or by these Bylaws required to be exercised or done by the shareholders.
Section 2.2 Number. Qualification and Term of Office. The number of directors which shall constitute the whole Board of Directors shall consist of seven (7) or more members subject to increase by resolution of the shareholders or the Board of Directors and subject to decrease only by resolution of the shareholders. Each director shall hold office in staggered terms as set forth in the Articles of Incorporation until the expiration of the director’s then current term of office and until such director’s successor shall have been elected and shall qualify, or until the earlier death, resignation, removal, or disqualification of such director. The number of directors shall be the number last fixed by the shareholders, the Board of Directors, or the Articles of Incorporation. Directors need not be shareholders. The Board of Directors shall, by resolution, adopt procedures for the nomination of directors.
Section 2.3 Board Meetings. Meetings of the Board of Directors may be held from time to time at such time and place within or without the State of South Dakota as may be designated in the notice of such meeting.
Section 2.4 Calling Meetings; Notice. Meetings of the Board of Directors may be called by the Chairman, the Lead Independent Director (as defined below), if any, or Chief Executive Officer by giving at least two (2) days notice, or by any two directors by giving at least five (5) days’ notice, of the date, time and place thereof to each director by mail, telephone, telegram, in person, or by telefax or other electronic transmission. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be
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specified in the notice or waiver of notice of such meeting. Members of the Board of Directors or any committee of the Board of Directors may participate, and vote in a meeting of the Board or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time, and participation by such means shall constitute presence at a meeting.
Section 2.5 Waiver of Notice. If any notice is required to be given to any director of the Corporation under applicable law or statute or under the provisions of the Corporation’s Articles of Incorporation or these Bylaws, a waiver thereof in writing or by electronic transmission signed and transmitted by the person or persons entitled to such notice, whether before or after the time stated therein, is equivalent to the giving of such notice. A director’s attendance at or participation in a meeting waives any required notice to the director of the meeting unless the director at the beginning of the meeting, or promptly upon arrival, objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
Section 2.6 Quorum. A majority of the Corporation’s directors serving as such immediately prior to a meeting of the Board of Directors shall constitute a quorum for the transaction of business at such meeting. In the absence of a quorum, the majority of the directors present may adjourn a meeting from time to time until a quorum is present. If a quorum is present when a duly called or held meeting is convened, the directors present may continue to transact business until adjournment, even though the withdrawal of a number of directors originally present leaves less than a proportion or number otherwise required for a quorum. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
Section 2.7 Directors’ Assent. A director who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: the director objects at the beginning of the meeting, or promptly upon arrival, to holding it or transacting business at the meeting; the director’s dissent or abstention from the action taken is entered in the minutes of the meeting; or the director delivers written notice of dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken.
Section 2.8 Vacancies; Newly Created Directorships. If a vacancy occurs on the Board of Directors resulting from the death, resignation, removal or disqualification of a director or a vacancy resulting from an increase in the number of directors as permitted by Section 2.2, the vacancy that was created may be filled for either the balance of an unexpired term or for a shorter period of time to allow the shareholders to hold an election of a successor. A vacancy may be filled by an affirmative vote of the shareholders or by a majority vote of the directors then in office even if the number of directors remaining in office is less than what would be required for a quorum. A replacement director elected for the balance of an unexpired term shall hold office for the remaining term of the director that he or she replaced and until such director’s successor has been elected and qualified. If such a replacement director was elected for a period of time less than the remaining term of the director that he or she replaced, that director shall only hold office until a director has been elected to fill that position in accordance with this Section 2.8. A vacancy that
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will occur at a specific later date, by reason of a resignation effective at a later date, may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs. In the event of any increase or decrease in the authorized number of directors, each director then serving shall continue serving as a director until the expiration of his or her current term or his or her prior death, retirement, removal or resignation.
Section 2.9 Removal. Any or all of the directors may be removed from office at any time, with or without cause, by the affirmative vote of a majority of the shareholders entitled to vote at a special meeting called for that purpose. A director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against removal. At any meeting wherein the shareholders elect to remove a director, the shareholders may also elect his/her successor.
Section 2.10 Committees. Subject to applicable law or statute, a resolution approved by the affirmative vote of a majority of the Board of Directors may establish committees having the authority of the Board in the management of the business of the Corporation to the extent provided in the resolution or any committee charter adopted by resolution of the Board subject to the limitations of South Dakota Codified Laws. To the extent specified by the board of directors or in the Corporation’s Articles of Incorporation or these Bylaws, each committee may exercise the powers of the Board of Directors. However, a committee may not authorize or approve distributions, except according to a formula or method or within limits prescribed by the board of directors; approve or propose to shareholders action that must be approved by shareholders; fill vacancies on the board of directors or on any of its committees; or adopt, amend, or repeal bylaws. A committee shall consist of two or more directors appointed by affirmative vote of a majority of the directors present. Committees are subject to the direction of, and vacancies in the membership thereof shall be filled by, the Board of Directors. A majority of the members of the committee present at a meeting is a quorum for the transaction of business, unless a larger or smaller proportion or number is provided in a resolution or committee charter approved by the affirmative vote of a majority of the directors present.
Section 2.11 Written Action. An action required or permitted to be taken at a meeting of the Board of Directors or at a meeting of a committee of the Board may be taken without a meeting if a consent in writing or by electronic transmission, setting forth the action so to be taken, shall be signed and transmitted before such action by all of the directors or all of the members of the committee, as the case may be. Such consent has the same effect as a unanimous vote. The written action is effective when signed by all the directors, unless a different effective time is provided in the written action.
Section 2.12 Resignations. Any director of the Corporation may resign at any time by giving written notice to the Chairman, Chief Executive Officer or the Secretary of the Corporation. Such resignation shall take effect at the date of the receipt of such notice, or at any later time specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
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Section 2.13 Compensation of Directors. By resolution of the Board of Directors, each director may be paid his/her expenses, if any, of attendance at each meeting of the Board of Directors, and may be paid compensation for serving as a director. The payment of such expenses and compensation shall not preclude a director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees of the Board may be paid, pursuant to resolution by the Board of Directors, compensation for serving on Board committees.
Section 2.14 Lead Independent Director. If the Chairman is not an independent director, one of the independent directors of the Board of Directors shall be elected, by a majority of the independent directors of the Board of Directors, to the role of Lead Independent Director (the “Lead Independent Director”). The Lead Independent Director shall have such duties and responsibilities as determined by the independent directors.
ARTICLE III
OFFICERS
Section 3.1 Election or Appointment. The officers of the Corporation shall be elected or appointed by the Board of Directors and shall consist of a Chief Executive Officer and Chief Financial Officer, however designated. The Board of Directors may also elect or appoint any other officers, assistant officers or agents that the Board of Directors deems necessary or advisable for the operation and management of the Corporation. Officers shall be natural persons. Any number of offices may be held by the same person. If a document must be signed by persons holding different offices or functions and a person holds or exercises more than one of these offices or functions, that person may sign the document in more than one capacity, but only if the document indicates each capacity in which the person signs.
Section 3.2 Powers and Term of Office. The officers of the Corporation elected or appointed by the Board of Directors shall have the powers, rights, duties, responsibilities, and terms in office provided for in these Bylaws or a resolution of the Board of Directors, or as directed by an officer authorized by the Board of Directors to prescribe the duties of other officers, not inconsistent with these Bylaws or such resolution. Any and all officers who are also directors of the Corporation shall continue to hold office until the election and qualification of their successors as officers, notwithstanding an earlier termination of their directorship.
Section 3.3 Removal and Vacancies. The election or appointment of an officer or agent of the Corporation shall not of itself create contract rights. Any officer or agent may be removed from his/her office by the Board of Directors whenever in its judgment the best interests of the Corporation will be served thereby. Such removal, however, shall be without prejudice to the contract rights, if any, of the person so removed. If there be a vacancy among the officers of the Corporation by reason of death, resignation, removal, disqualification, or otherwise, such vacancy may be filled for the unexpired term by the Board of Directors.
Section 3.4 Chairman of the Board. The Chairman of the Board, if one is elected, shall preside at all meetings of the shareholders and directors and shall have such other duties as may be prescribed, from time to time, by the Board of Directors.
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Section 3.5 Chief Executive Officer. The Chief Executive Officer of the Corporation shall have general active management of the business of the Corporation. In the absence of the Chairman of the Board, or if no Chairman of the Board is elected, the Chief Executive Officer shall preside at all meetings of the shareholders and directors. He/She shall see that all orders and resolutions of the Board of Directors are carried into effect; shall execute and deliver, in the name of the Corporation, any deeds, mortgages, bonds, contracts or other instruments pertaining to the business of the Corporation unless the authority to execute and deliver is required by law to be exercised by another person or is expressly delegated by the Articles or Bylaws or by the Board of Directors to some other officer or agent of the Corporation; shall maintain records of and, whenever necessary, certify all proceedings of the Board of Directors and the shareholders; and shall perform all duties usually incident to the office of the Chief Executive Officer. The Chief Executive Officer shall have such other duties as may, from time to time, be prescribed by the Board of Directors.
Section 3.6 President. Unless otherwise specified by the Board of Directors, the President shall be the Chief Executive Officer of the Corporation. If an officer other than the President is designated as Chief Executive Officer, the President shall perform such duties as may from time to time be assigned to the President by the Board of Directors or the Chief Executive Officer.
Section 3.7 Vice President. Each Vice President, if one or more are elected, shall have such powers and shall perform such duties as may be specified in the Bylaws or prescribed by the Board of Directors or by the Chief Executive Officer or President.
Section 3.8 Secretary. The Secretary, if one is elected, shall be secretary of and shall attend all meetings of the shareholders and Board of Directors; shall record all proceedings of such meetings in the minute book of the Corporation; shall give proper notice of meetings of shareholders and directors; and shall perform such other duties as may be prescribed from time to time by the Board of Directors or by the Chief Executive Officer.
Section 3.9 Assistant Secretary. The Assistant Secretary, if any, or, if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors, shall, in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
Section 3.10 Chief Financial Officer. The Chief Financial Officer of the Corporation shall keep accurate financial records for the Corporation; shall deposit all moneys, drafts and checks in the name of, and to the credit of, the Corporation in such banks and depositories as the Board of Directors shall designate from time to time; shall have power to endorse for deposit all notes, checks and drafts received by the Corporation and make proper vouchers therefor; shall disburse the funds of the Corporation, as ordered by the Board of Directors, making proper vouchers therefor; shall render to the Chief Executive Officer and the directors, whenever requested, an account of all of his/her transactions as Chief Financial Officer and of the financial condition of the Corporation; and shall perform such other duties as may be prescribed from time to time by the Board of Directors or by the Chief Executive Officer.
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Section 3.11 Treasurer. Unless otherwise specified by the Board of Directors, the Chief Financial Officers shall be the Treasurer of the Corporation. If an officer other than the Chief Financial Officer is designated Treasurer, the Treasurer shall perform such duties as may from time to time be assigned to the Treasurer by the Board or the Chief Executive Officer.
Section 3.12 Assistant Treasurer. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors, shall, in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such powers as the Board of Directors may from time to time prescribe.
Section 3.13 Compensation. The Chairman, Chief Executive Officer, and the Chief Financial Officer shall receive such compensation for their services as may be determined, from time to time, by resolution of the Board of Directors. Compensation for other employee officers may be set by the Chief Executive Officer under guidelines and direction set by the Board of Directors, and shall be subject to periodic review by the Board.
ARTICLE IV
CERTIFICATES OF STOCK
Section 4.1 Certificates of Stock. Subject to the discretion of the Board of Directors to otherwise provide by resolution, every holder of stock in the Corporation shall be entitled to have a certificate of stock in the name of the Corporation. The Certificate must be signed by two officers of the corporation certifying the number of shares owned by the holder of stock in the Corporation. One of the officers shall be the President, Chief Executive Officer, or the Chief Financial Officer. The other officer shall be either the Secretary or the Assistant Secretary. The certificates of stock shall be numbered in the order of their issue. The Corporation shall keep a record of the name of the party owning the shares represented by all certificates, the number, date and class of shares represented by each certificate, and, in the case of cancellation, the date of cancellation.
Section 4.2 Issuance of Shares. The Board of Directors is authorized to cause to be issued for such consideration as may be permitted by applicable law or statute shares of the Corporation up to the full amount authorized by the Articles of Incorporation, and any and all treasury shares, in such amounts as may be determined by the Board of Directors and as may be permitted by applicable law or statute. No shares shall be issued except under a written agreement as authorized by the Board of Directors. Treasury stock shall be held by the Corporation subject to the delivery of such treasury stock by the Board of Directors. Until delivered, treasury stock shall not be participating or voting stock.
Section 4.3 Facsimile Signatures. Where a certificate is signed (a) by a transfer agent or an assistant transfer agent, or (b) by a transfer clerk acting on behalf of the Corporation and a registrar, the signature of any such authorized officer of the Corporation may be facsimile. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on any such certificate or certificates, shall cease to be such officer or officers of the Corporation before such certificate or certificates have been delivered by the Corporation, such certificate or certificates may nevertheless be used by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the Corporation.
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Section 4.4 Lost, Stolen or Destroyed Certificates. Except as otherwise provided by applicable law or statute, any shareholder claiming a certificate for shares to be lost, stolen or destroyed shall make an affidavit of that fact in such form as the Board of Directors shall require and shall, if the Board of Directors so requires, give the Corporation a bond of indemnity in form, in an amount, and with one or more sureties satisfactory to the Board of Directors, to indemnify the Corporation against any claim which may be made against it on account of the reissue of such certificate, whereupon a new certificate may be issued in the same tenor and for the same number of shares as the one alleged to have been lost, stolen or destroyed.
Section 4.5 Transfers of Stock. Upon surrender to the Corporation or its transfer agent of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. No new certificate or certificates shall be issued in exchange for any existing certificates until the existing certificates have been canceled or unless the person satisfies the requirements of Section 4.4 of these Bylaws.
Section 4.6 Registered Shareholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote shares as such owner, and it shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by applicable law or statute.
Section 4.7 Transfer Agent and Registrar. The Board of Directors may appoint a transfer agent and/or registrar of transfers for its shares of stock and may require all stock certificates to bear the signature of such transfer agent and/or such registrar.
ARTICLE V
SECURITIES OF OTHER CORPORATIONS
Unless otherwise ordered by the Board of Directors, the Chief Executive Officer shall have full power and authority on behalf of the Corporation to vote and to purchase, sell, transfer or encumber any and all securities of any other corporation owned by the Corporation, and may execute and deliver such documents as may be necessary to vote such securities and to effectuate such purchase, sale, transfer or encumbrance. The Board of Directors may, from time to time, confer like powers upon any other person or persons.
ARTICLE VI
INDEMNIFICATION OF CERTAIN PERSONS
The Corporation shall indemnify its directors and officers to the fullest extent permitted by applicable law, including South Dakota Codified Laws, as provided for in the Articles of Incorporation; further, the Corporation may indemnify other such persons, for such expenses and liabilities, in such manner, under such circumstances, as the Board of Directors may determine from time to time.
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ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Dividends and Distributions. The Board of Directors may make dividends and distributions of the Corporation to its shareholders as permitted by the provisions of applicable law and statute and the Articles of Incorporation.
Section 7.2 Fiscal Year. The fiscal year of the Corporation shall be determined from time to time by resolution of the Board of Directors.
Section 7.3 Seal. The Corporation shall have no corporate seal.
Section 7.4 References. Any reference to the South Dakota Codified Laws shall include a reference to the South Dakota Business Corporation Act. Any reference to a specific section of the South Dakota Codified Laws or the South Dakota Constitution contained in these Bylaws shall include all subsequent amendments, restatements and recodifications of such section of the South Dakota Codified Laws or the South Dakota Constitution.
ARTICLE VIII
AMENDMENT
Section 8.1 Amendment to Bylaws. The Board of Directors, by the act of the majority of the directors present at a meeting at which a quorum is present, shall have the power to make, enact alter, amend or repeal the Corporation’s Bylaws or to adopt new Bylaws.
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IN WITNESS WHEREOF, I hereby certify that the foregoing Second Amended and Restated Bylaws were duly adopted as the Bylaws of the Corporation effective as of March 3, 2025.
| DAKTRONICS, INC. |
| /s/ Carla S. Gatzke |
| Carla Gatzke, Secretary |
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Exhibit 4.4
THIRD AMENDMENT
TO
RIGHTS AGREEMENT
This Third Amendment to Rights Agreement, dated as of March 3, 2025 (this “Third Amendment”), is by and between Daktronics, Inc., a South Dakota corporation (the “Company”), and Equiniti Trust Company, LLC (as successor-in-interest to Equiniti Trust Company) (the “Rights Agent”) (the Company and the Rights Agent sometimes are referred to individually as a “Party” and together as the “Parties”).
WITNESSETH:
WHEREAS, the Company and the Rights Agent executed and entered into that certain Rights Agreement, dated as of November 16, 2018 (the “Original Rights Agreement”), under which the Board authorized and declared a dividend distribution of one preferred share purchase Right for each share of Common Stock that was paid to holders of record of Common Stock issued and outstanding at the Close of Business on November 19, 2018 and also authorized the issuance of one Right for each share of Common Stock that became outstanding between the Record Date (whether originally issued or from the Company’s treasury) and the earlier of the Distribution Date, the Redemption Date, and the Final Expiration Date, each Right representing the right to purchase one one-thousandth (subject to adjustment) of one share of Preferred Stock, all upon the terms, and subject to the conditions, set forth in the Original Rights Agreement;
WHEREAS, the Company and the Rights Agent executed and entered into that certain First Amendment to Rights Agreement, dated as of November 19, 2021 (the “First Amendment”), which amended the Original Rights Agreement to: (i) extend the Final Expiration Date from November 19, 2021 to November 19, 2024; and (ii) change the initial Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right from $25.00 to $20.00;
WHEREAS, the Company and the Rights Agent executed and entered into that certain Second Amendment to Rights Agreement, dated as of November 19, 2024 (the “Second Amendment”), which amended the Original Rights Agreement, as amended by the First Amendment, to: (i) extend the Final Expiration Date from November 19, 2024 to November 19, 2025; (ii) change the initial Exercise Price for each one one-thousandth of a share of Preferred Stock pursuant to the exercise of a Right from $20.00 to $40.00; and (iii) change the Triggering Percentage to become an Acquiring Person from 20% to 15% (or 20% in the case of 13G Investors);
WHEREAS, Section 27 of the Original Rights Agreement provides that, except as otherwise provided in Section 27 of the Original Rights Agreement, the Company may, from time to time and in its sole and absolute discretion, and the Rights Agent shall, if the Company so directs, supplement or amend the Original Rights Agreement in any respect without the approval of any holders of the Rights, including, without limitation, to shorten or lengthen any time period under the Original Rights Agreement;
WHEREAS, the Company has determined that it is necessary or desirable, in the interests of the Company and the holders of the Rights, to amend the Original Rights Agreement, as amended by the First Amendment and the Second Amendment (collectively, the “Agreement”), as provided herein; and
WHEREAS, all acts and things necessary to make this Third Amendment a valid agreement according to its terms have been done and performed, and the execution and delivery of this Third Amendment by the Company and the Rights Agent have been in all respects authorized by the Company and the Rights Agent.
NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Rights Agent hereby agree as follows:
1. Amendments. (a) Section 7(a) of the Agreement is amended by removing the reference to “November 19, 2025” and replacing it with “March 3, 2025”; (b) the fourth paragraph of Exhibit B on page B-1 of the Original Rights Agreement is amended by removing the reference to “November 19, 2021” and replacing it with “March 3, 2025”; (c) the first sentence of the last paragraph of Exhibit B on page B-3 of the Original Rights Agreement is amended by adding to the end of such sentence the phrase “, as amended on November 19, 2021, November 20, 2024, and March 3, 2025”; (d) Exhibit C to the Original Rights Agreement is amended by removing the two references to “November 19, 2021” and replacing them with “March 3, 2025”; and (e) the first sentence of the second paragraph on page C-1 of Exhibit C to the Original Rights Agreement is hereby amended and restated in its entirety as follows: “[THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR A RELATED PERSON OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT DATED AS OF NOVEMBER 16, 2018, AS AMENDED ON NOVEMBER 19, 2021, NOVEMBER 20, 2024, AND MARCH 3, 2025, BY AND BETWEEN DAKTRONICS, INC. AND EQUINITI TRUST COMPANY, LLC (AS SUCCESSOR-IN-INTEREST TO EQUINITI TRUST COMPANY) (THE “RIGHTS AGREEMENT”)).”
2. Definitions. Capitalized terms used but not defined in this Third Amendment shall have the respective meanings given to them in the Agreement.
3. Effect of this Third Amendment. It is the intent of the Parties that this Third Amendment constitutes an amendment of the Agreement as contemplated by Section 27 thereof. This Third Amendment shall be deemed effective as of the date hereof. Except as expressly provided in this Third Amendment, the terms of the Agreement remain in full force and effect; provided, however, that the effect of this Third Amendment is to terminate the Agreement at the Close of Business on the Final Expiration Date in accordance with Section 7(a) of the Agreement. Unless the context clearly provides otherwise, any reference to this “Agreement” or the “Rights Agreement” shall be deemed to be a reference to the Original Rights Agreement, as amended by the First Amendment, the Second Amendment, and this Third Amendment.
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4. Benefits of this Third Amendment. Nothing in this Third Amendment shall be construed to give to any Person other than the Company, the Rights Agent, and the registered holders of the Rights Certificates (and, prior to the Distribution Date, the holders of the shares of Common Stock) any legal or equitable right, remedy, or claim under this Third Amendment; and this Third Amendment shall be for the sole and exclusive benefit of the Company, the Rights Agent, and the registered holders of the Rights Certificates (and, prior to the Distribution Date, the holders of the shares of Common Stock).
5. Severability. If any term, provision, covenant, or restriction of this Third Amendment is held by a court of competent jurisdiction or other authority to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions of this Third Amendment shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
6. Governing Law. This Third Amendment shall be deemed to be a contract made under the laws of the State of South Dakota (other than its conflicts of law provisions) and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State.
7. Counterparts. This Third Amendment may be executed in any number of counterparts, and each such counterpart shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to this Third Amendment transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
8. Descriptive Headings. Descriptive headings of the Sections of this Third Amendment are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof.
9. Further Assurances. The Parties hereto shall cooperate and take such action as may be reasonably requested by the other Party in order to carry out the provisions and purposes of this Third Amendment, the Agreement, and any transactions contemplated hereunder and thereunder.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have caused this Third Amendment to be duly executed as of the day and year first above written.
| Daktronics, Inc., as the Company | ||
| By: | /s/ Sheila M. Anderson | |
| Name: Sheila M. Anderson | ||
| Title: Chief Financial Officer | ||
| Equiniti Trust Company, LLC, | ||
| as Rights Agent | ||
| By: | /s/ Martin J. Knapp | |
| Name: Martin J. Knapp | ||
| Title: Senior Vice President | ||
[Signature Page to Third Amendment to Rights Agreement]
Exhibit 10.1
COOPERATION AGREEMENT
This Cooperation Agreement (this “Agreement”), effective as of March 3, 2025 (the “Effective Date”), is entered into by and between Daktronics, Inc., a South Dakota corporation (the ”Company”), on the one hand, and Alta Fox Capital Management, LLC (the “Investor”), Alta Fox Opportunities Fund, LP (“Alta Fox Opportunities”), Alta Fox GenPar, LP, Alta Fox Equity, LLC and P. Connor Haley (each of the Investor, Alta Fox Opportunities and the foregoing, an “Investor Party” and, collectively with their Affiliates and Associates, the “Investor Parties”), on the other hand. Unless otherwise defined herein, capitalized terms shall have the meanings given to them in Section 19 hereof.
WHEREAS, on December 12, 2022, the Investor submitted a non-binding term sheet to the Company to purchase senior secured convertible promissory notes from the Company;
WHEREAS, on January 26, 2023, the Investor Parties delivered a letter to the Strategy and Financing Review Committee of the Company’s Board of Directors (the “Board”) reiterating its desire to provide financing to the Company in exchange for the Company’s senior secured convertible promissory notes;
WHEREAS, on May 11, 2023, the Company entered into that certain Securities Purchase Agreement (the “Securities Purchase Agreement”) with Alta Fox Opportunities, pursuant to which the Company agreed to sell and issue to Alta Fox Opportunities a senior secured convertible note (together with any and all replacement senior secured convertible notes issued thereunder, the “Convertible Note”) in exchange for the payment by Alta Fox Opportunities to the Company of $25 million;
WHEREAS, on May 11, 2023, the Company also entered into a Note Guarantee Agreement, a Pledge and Security Agreement, a Copyright Security Agreement, a Patent Security Agreement and a Trademark Security Agreement (collectively, the “Guarantees and Securities”);
WHEREAS, on May 11, 2023, the Company also entered into the certain Registration Rights Agreement with Alta Fox Opportunities (the “Registration Rights Agreement” and collectively with the Securities Purchase Agreement, the Convertible Note and the Guarantees and Securities, the “Notes Related Agreements”);
WHEREAS, on September 26, 2024, the Investor Parties’ counsel initiated settlement discussions and sent a non-binding term sheet to the Company’s counsel that included a proposed buyout of the Convertible Note;
WHEREAS, on November 11, 2024, the Company delivered a notice of conversion to Alta Fox Opportunities, pursuant to which the Company provided notice of its intent to exercise its right to force the conversion of 1,109,350 shares of Common Stock (the “First Conversion Notice”);
WHEREAS, on November 21, 2024, Alta Fox Opportunities sent the Company a demand to inspect certain of the Company’s books and records pursuant to South Dakota Business Corporation Act §47-1A-1602 (the “November 2024 Demand”);
WHEREAS, on November 25, 2024, Alta Fox Opportunities delivered a note to the Company increasing the “Maximum Percentage” (as defined in the Convertible Note) to 14.99%;
WHEREAS, on December 11, 2024, the Company delivered a notice of conversion to Alta Fox Opportunities, pursuant to which the Company provided notice of its intent to exercise its right to force the conversion of 1,109,350 shares of Common Stock (the “Second Conversion Notice”);
WHEREAS, on December 12, 2024, Alta Fox Opportunities sent the Company a second demand to inspect certain of the Company’s books and records pursuant to South Dakota Business Corporation Act §47-1A-1602 (the “December 2024 Demand”);
WHEREAS, on January 10, 2025, the Company delivered a notice of conversion to Alta Fox Opportunities, pursuant to which the Company provided notice of its intent to exercise its right to force the conversion of 1,109,350 shares of Common Stock (the “Third Conversion Notice”);
WHEREAS, on January 27, 2025, the Company issued 2,218,700 shares of its Common Stock to Alta Fox Opportunities in full satisfaction of the First Conversion Notice and Second Conversion Notice, and on February 4, 2025, the Company issued 1,109,350 shares of Common Stock in full satisfaction of the Third Conversion Notice;
WHEREAS, on February 4, 2025, Alta Fox Opportunities filed a lawsuit (the “Alta Fox Litigation”) in the U.S. District Court for the District of South Dakota (the “South Dakota District Court”) and styled Alta Fox Opportunities Fund, LP v. Daktronics, Inc. et al., Case No. 4:25-cv-4017, relating to the 2025 Special Meeting of Shareholders (including, without limitation, any adjournments or postponements thereof and any meeting which may be called in lieu thereof, the “2025 Special Meeting”) and seeking, among other things, declaratory and injunctive relief preventing the Company from holding the 2025 Special Meeting to vote on the reincorporation of the Company from South Dakota to Delaware (the “Reincorporation”);
WHEREAS, on February 10, 2025, the Company delivered a notice of conversion to Alta Fox Opportunities, pursuant to which the Company provided notice of its intent to exercise its right to force the conversion of 680,563 shares of Common Stock (the “Final Conversion Notice”), which shares will be delivered on March 4, 2025 following satisfaction of the obligations under the Convertible Note by the parties thereto;
WHEREAS, on February 25, 2025, the South Dakota District Court issued a memorandum in the Alta Fox Litigation indicating its intention to deny Alta Fox Opportunities’ preliminary injunction motion with a written opinion and Order;
WHEREAS, as of the Effective Date, the Investor Parties beneficially own an aggregate of 5,973,599 shares of Common Stock; and
WHEREAS, the Company and the Investor Parties desire to enter into this Agreement regarding compositional change to the Board and certain other matters, as provided in this Agreement, and to resolve the existing disputes among them, including the November 2024 Demand, the December 2024 Demand and the Alta Fox Litigation.
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NOW, THEREFORE, in consideration of the promises, representations and mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Party hereby agrees as follows:
1. Board Composition and Other Company Matters.
(a) New Director.
(i) As soon as reasonably practicable following the Effective Date, the Board, and all applicable committees of the Board, shall take all necessary actions to: (A) increase the size of the Board from eight (8) to nine (9) directors, and (B) appoint Peter Feigin (the “New Director”), who shall fill the newly created vacancy resulting from the increase in the size of the Board, to serve as a director with a term expiring at the Company’s 2027 Annual Meeting of Shareholders (including, without limitation, any adjournments or postponements thereof and any meeting which may be called in lieu thereof, the “2027 Annual Meeting”).
(ii) Prior to the appointment of the New Director to the Board, the Board shall determine whether the New Director (A) is an Independent Director and (B) meets the standards for eligibility and qualification and other requirements set forth in the Company’s Board of Directors Corporate Governance Guidelines (the “Corporate Governance Guidelines”). In connection with the foregoing, and as a condition to the appointment of the New Director to the Board, the New Director shall (C) provide (x) such information required to be or customarily disclosed by directors or director candidates in proxy statements or other filings under applicable law or stock exchange regulations, (y) such information reasonably requested by the Board in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations and (z) a fully completed and executed copy of the Company’s director candidate questionnaire (substantially in the form completed by the Company’s incumbent non-management directors) and (D) participate in customary procedures for new director candidates, including, without limitation, an interview with the Nominating and Corporate Governance Committee of the Board (the “Nominating Committee”) and an appropriate background check, comparable to those undergone by other non-management directors of the Company.
(b) Board Committees. Immediately following the appointment of the New Director to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint the New Director to the Transformation Committee of the Board. Without limiting the foregoing, the New Director shall be equally eligible for membership to any other committees of the Board as any other Independent Director of the Board with similar relevant expertise and qualifications.
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(c) Replacement Rights. If the New Director is unable or unwilling to serve as a director, is not appointed pursuant to Section 1(a)(i) hereof, resigns as a director, or otherwise ceases to be a director, in each case due to death or disability prior to the Termination Date (as defined below), and at such time the Investor Parties’ beneficial ownership, in the aggregate, equals or exceeds three percent (3.0%) of the then-outstanding Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments, the “Minimum Ownership Threshold”), then the Investor Parties shall have the right to select a candidate to replace the New Director (such person, a “Replacement New Director”); provided, however, that prior to and as a condition precedent to the appointment of the Replacement New Director, the Replacement New Director shall (i) satisfy the NASDAQ Independence Standards of the NASDAQ Stock Market LLC (or applicable requirement of such other national securities exchange designated as the primary market on which the Common Stock is listed for trading), (ii) provide such information and participate in such customary procedures required for the New Director under Section 1(a)(ii) hereof, (iii) have a substantially similar skill set as the New Director, (iv) satisfy the eligibility, qualification and other requirements set forth in the Corporate Governance Guidelines and (v) have been deemed otherwise reasonably acceptable by the Nominating Committee and approved of by the Board (with each such approval and acceptance not to be unreasonably withheld). Effective upon the Replacement New Director’s appointment to the Board, such Replacement New Director will be considered the New Director for all purposes of this Agreement.
(d) Board Refreshment. The Company agrees that the Board will abstain from nominating, or otherwise recommending that the shareholders of the Company vote to re-elect at least one of the incumbent directors serving on the Board as of the Effective Date whose term expires at the Company’s 2025 Annual Meeting of Shareholders (including, without limitation, any adjournments or postponements thereof and any meeting which may be called in lieu thereof).
(e) Board Policies and Procedures. Each Party acknowledges that the New Director, upon his appointment to the Board and for so long as he is a member of the Board, shall be governed by all of the same policies, processes, procedures, codes, rules, standards and guidelines applicable to members of the Board, including, without limitation, the Company’s Code of Conduct, Corporate Governance Guidelines, Stock Trading Policy and any other policies on stock ownership, public disclosures, legal compliance and confidentiality (collectively, the “Company Policies”) and all applicable rules and regulations of the NASDAQ Stock Market LLC (including, without limitation, its independence standards), and will be required to strictly adhere to the Company’s policies on confidentiality imposed on all members of the Board. The Company agrees that, upon his appointment to the Board and for so long as he is a member of the Board, the New Director shall receive (i) the same benefits of director and officer insurance as all other non-management directors on the Board, (ii) the same compensation for his service as a director as the compensation received by other non-management directors on the Board and (iii) such other benefits on the same basis as all other non-management directors on the Board.
(f) Lead Independent Director. As soon as practicable following the Effective Date, the Board, and all applicable committees of the Board, shall take all actions necessary to amend the Bylaws to require the Independent Directors of the Board to select from among themselves a Lead Independent Director in the event that the Chairperson of the Board is not an Independent Director of the Board. The Lead Independent Director shall have such duties and responsibilities as determined by a majority of the Independent Directors of the Board.
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2. Corporate Governance and Related Matters.
(a) Compensation Matters. The Board, in consultation with the Compensation Committee of the Board (the “Compensation Committee”), shall take all necessary actions to engage an independent compensation consultant (the “Compensation Consultant”) no later than March 31, 2025, to conduct a review of the Company’s compensation program. The Compensation Committee shall work with the Compensation Consultant on such review and use its reasonable best efforts to recommend to the Board modifications to the Company’s executive compensation program to incorporate performance-based equity awards with medium- or long-term performance targets no later than September 30, 2025 for the Board’s approval and implementation (such approval and implementation not to be unreasonably withheld and subject to the Board’s determination that approval of such modifications is consistent with the Board’s fiduciary duties).
(b) Rights Agreement. As soon as practicable following the Effective Date, the Company shall take all necessary actions to amend, and shall direct Equiniti Trust Company, LLC (the “Rights Agent”) to approve, with such obligation of the Rights Agent to approve being qualified by the terms described in that certain Rights Agreement, dated as of November 16, 2018, as amended on November 19, 2021 and November 19, 2024, by and between the Company and the Rights Agent (the “Rights Agreement”), an amendment to the Rights Agreement, such that the “Final Expiration Date” (as defined in the Rights Agreement) shall be accelerated to occur as promptly as practicable following the Effective Date, and that such amendment be made effective in accordance with the terms of the Rights Agreement.
(c) Cooperation. The Company agrees to provide the Investor Parties a reasonable opportunity to communicate their views to the Company regarding its ongoing search for a new Chief Financial Officer so long as such communications by the Investor Parties are not intended to, or would not reasonably be expected to, require any public disclosure of such communications by any Party.
(d) Investor Day. The Company agrees that prior to December 31, 2025, the Company shall hold an investor day (the “Investor Day”) at an appropriate date and time as shall be determined by the Board, at which the Company shall provide capital allocation guidance and mid- to long-term targets with respect to one or more financial or accounting metrics. No more than three (3) weeks nor less than one (1) week prior to the Investor Day, the Company shall provide the Investor Parties an opportunity to enter into a customary information sharing agreement to enable the Company to share confidential information with the Investor Parties in connection with the Company’s anticipated communications at the Investor Day.
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3. Withdrawal of Campaign and Related Matters. Effective upon the execution and delivery of this Agreement, the Investor Parties hereby:
(a) irrevocably withdraw any pending demand or request for a copy of the Company’s list of shareholders or its other books and records pursuant to Rule 14a-7 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”) or under any statutory or regulatory provisions of South Dakota providing for shareholder access to books and records (including, without limitation, lists of shareholders) of the Company, including, without limitation, the November 2024 Demand and the December 2024 Demand (with this Agreement deemed to evidence such withdrawal);
(b) agree to take all necessary actions to immediately cease any and all solicitation and other activities in connection with the 2025 Special Meeting (it being understood and agreed that the Investor Parties are required to vote their shares of Common Stock beneficially owned as of the record date with respect to the 2025 Special Meeting, subject to the provisions of this Agreement); and
(c) agree to take all necessary actions to immediately disable and not permit to be re-enabled the website “www.FixDaktronics.com” and any other websites the Investor Parties directly or indirectly maintain with respect to their solicitation efforts and/or campaigns with respect to the Company and/or the 2025 Special Meeting.
4. Voting Commitment. From the Effective Date until the Termination Date (the “Standstill Period”), each of the Investor Parties agrees that it will appear in person or by proxy at each annual or special meeting of shareholders of the Company (including, without limitation, any adjournments or postponements thereof and any meetings which may be called in lieu thereof), whether such meeting is held at a physical location or virtually by means of remote communications or a hybrid combination thereof, and will vote (or execute a consent with respect to) all Voting Securities beneficially owned by it in accordance with the Board’s recommendations with respect to (a) the election, removal or replacement of any director, (b) the ratification of the appointment of the Company’s independent registered public accounting firm, (c) the Company’s “say-on-pay” proposal, (d) the Reincorporation and (e) any other proposal to be submitted to the shareholders of the Company by either the Company or any shareholder of the Company; provided, however, that if Institutional Shareholder Services Inc. (“ISS”) and Glass, Lewis & Co. LLC (“Glass Lewis”) (including, without limitation, any successor thereto) issue a voting recommendation that differs from the Board’s recommendation with respect to any proposal submitted to shareholders (other than as related to the election, removal or replacement of any director, or the Reincorporation), the Investor Parties shall be permitted to vote in accordance with ISS’s and Glass Lewis’s recommendation; provided, further, that the Investor Parties shall be permitted to vote in their sole discretion on any proposal of the Company in respect of any Extraordinary Transaction.
5. Non-Disparagement.
(a) During the Standstill Period, none of the Investor Parties shall make, nor cause to be made, and shall cause each of its or his Representatives not to make or cause to be made, any public statement with respect to this Agreement, or take any action that is intended to or would reasonably be expected to require any public disclosure by an Investor Party, in each case regarding this Agreement, the subject matter contained herein, or any Party or any Party’s Representatives, except as provided in Section 5(c) or Section 13(c) hereto.
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(b) During the Standstill Period, the Company agrees that neither it nor any of its Affiliates shall make any public statement that constitutes an ad hominem attack on, or otherwise disparages, defames or damages the reputation or good name of the Investor Parties or is otherwise critical, negative towards or derogatory of the Investor Parties or any of the Investor Parties’ known Representatives.
(c) Notwithstanding the foregoing, nothing in this Section 5 or elsewhere in this Agreement shall prohibit any Party from making any truthful statement or disclosure as may be required under the federal securities laws or other applicable laws (including, without limitation, to comply with the terms of any valid subpoena, order or other legal process from any governmental or regulatory authority with competent jurisdiction over the relevant Party hereto), by deposition, interrogatory, request for documents, civil investigative demand or stock exchange regulations.
6. No Litigation. During the Standstill Period, each Party covenants and agrees solely for and on behalf of itself that it shall not, and shall not permit any of its Representatives (solely in the context of their representation of such Party in connection with the subject matter of this Agreement) to, alone or in concert with others, knowingly encourage or pursue, or knowingly assist any other Person to threaten, initiate or pursue, any lawsuit, claim or proceeding (including, without limitation, with respect to the Investor Parties, commencing, encouraging or supporting any derivative or similar action in the name of the Company or any class action against the Company or any of its officers or directors) before any court or governmental, administrative or regulatory body (collectively, a “Legal Proceeding”) against (a) with respect to the Investor Parties, the Company or any of its Representatives (solely in the context of their representation of the Company in connection with the subject matter of this Agreement) and (b) with respect to the Company, the Investor or any of its Representatives (solely in the context of their representation of the Investor in connection with the subject matter of this Agreement); provided, however, that the foregoing shall not prevent (w) any Party or any of its Representatives from responding to oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or similar processes (a “Legal Requirement”) in connection with any Legal Proceeding if such Legal Proceeding has not been initiated by, or on behalf of, such Party or any of its Representatives (solely in the context of their representation of such Party in connection with the subject matter of this Agreement), (x) litigation by any Party to enforce the provisions of this Agreement, (y) counterclaims with respect to any proceeding initiated by a Party in breach of this Agreement and (z) the exercise of statutory appraisal rights; provided, further, that in the event that such Party or any of its Representatives receives such Legal Requirement, such Party shall, unless prohibited by applicable law, give prompt written notice of such Legal Requirement to the other Party. For the avoidance of doubt, the provisions of this Section 6 apply fully and without limitation to any Legal Proceeding with respect to or concerning the Notes Related Agreements.
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7. Releases.
(a) As of the Effective Date, the Company, for itself, and to the fullest extent possible, and on behalf of the Company’s subsidiaries, joint ventures and partnerships, successors, assigns, officers, directors, partners, members, managers, principals, predecessor or successor entities, agents, employees, shareholders, auditors, advisors, consultants, attorneys, insurers, heirs, executors, administrators and successors and assigns of any such Person, permanently, fully, and completely releases, acquits and discharges the Investor Parties, and their respective joint ventures and partnerships, Affiliates, successors, assigns, officers, directors, partners, members, managers, principals, predecessor or successor entities, agents, employees, shareholders, auditors, advisors, consultants, attorneys, insurers, heirs, executors, administrators and successors and assigns of any such Person (collectively, the “Investor Released Parties”), jointly or severally, of and from any and all claims, demands, damages, causes of action, debts, liabilities, controversies, judgments and suits of every kind and nature whatsoever, foreseen, unforeseen, known or unknown, that the Company has had, now has, or may have against any of the Investor Released Parties, collectively, jointly or severally, at any time prior to and including the Effective Date, including, without limitation, any and all claims arising out of or in any way whatsoever related to the Investor Parties’ involvement with the Company (such release by the Company, the “Company Release”).
(b) As of the Effective Date, the Investor Parties, and each of them, permanently, fully and completely release, acquit and discharge the Company, and the Company’s subsidiaries, Affiliates, Associates, joint ventures and partnerships, successors, assigns, officers, directors, partners, members, managers, principals, predecessor or successor entities, agents, employees, shareholders, auditors, advisors, consultants, attorneys, insurers, heirs, executors, administrators and successors and assigns of any such Person (in each case, and in their capacities as such) (collectively, the “Company Released Parties”), jointly or severally, of and from any and all claims, demands, damages, causes of action, debts, liabilities, controversies, judgments and suits of every kind and nature whatsoever, foreseen, unforeseen, known or unknown, that the Investor Parties or any of them, for themselves or itself, and on behalf of their joint ventures and partnerships, successors, assigns, officers, directors, partners, members, managers, principals, predecessor or successor entities, agents, employees, shareholders, auditors, advisors, consultants, attorneys, insurers, heirs, executors, administrators and successors and assigns of any such Person, have had, now have, or may have against any of the Company Released Parties, collectively, jointly or severally, at any time prior to and including the Effective Date, including, without limitation, any and all claims arising out of or in any way whatsoever related to (i) the facts, allegations and claims asserted in the Alta Fox Litigation, the November 2024 Demand and the December 2024 Demand, (ii) the Investor Parties’ involvement with the Company or (iii) any Notes Related Agreement (such release by the Investor Parties, the “Investor Release” and together with the Company Release, the “Releases”).
(c) Each Party hereby acknowledges that as of the time of the Effective Date, the Parties may have claims against one another that a Party does not know or suspect to exist in their or its favor, including, without limitation, claims that, had they been known, might have affected the decision to enter into this Agreement, or to provide the Releases set forth in this Section 7. In connection with such any such claims, each Party agrees that they intend to waive, relinquish and release any and all provisions, rights and benefits any state or territory of the United States or other jurisdiction that purports to limit the
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application of a release to unknown claims, or to facts unknown at the time the release was entered into. In connection with this waiver, each Party acknowledges that they, or any of them, may (including, without limitation, after the Effective Date) discover facts in addition to or different from those known or believed by them to be true with respect to the subject matter of the Releases set forth in this Section 7, but it is the intention of the Parties to complete, fully, finally and forever compromise, settle, release, discharge and extinguish any and all claims that they may have one against another, known or unknown, suspected or unsuspected, contingent or absolute, accrued or unaccrued, apparent or unapparent, that now exist or previously existed, without regard to the subsequent discovery of additional or different facts. Each Party acknowledges that the foregoing waiver is a key, bargained-for element to this Agreement and the Releases that are part of it. The Investor Parties agree and expressly waive and relinquish, to the fullest extent permitted by law, the provisions, rights and benefits of Section 1542 of the California Civil Code, as well as any other similar provision under federal or state law, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
(d) The Releases provided for in this Section 7 are intended to be broad, and this breadth is a bargained-for feature of this Agreement. Despite this, the Releases provided for in this Section 7 are not intended to, and do not, extend to any Party’s obligations under this Agreement or to any Party’s ongoing obligations after the Effective Date under the Convertible Note and Notes Related Agreements, including the issuance of shares pursuant to the Final Conversion Notice. For the avoidance of doubt, upon the delivery to Alta Fox Opportunities of the 680,563 shares of Common Stock pursuant to the Final Conversion Notice as provided in Section 11(g) hereto, the Investor Release set forth in Section 7(b) hereto shall apply with full force and effect to any claims arising under the Convertible Note and Notes Related Agreements.
8. Dismissal of Litigation. As a condition precedent to the Company’s obligations under this Agreement, and in any case no later than five (5) business days following the Effective Date, the Investor Parties shall take all actions necessary to dismiss with prejudice all claims asserted in any actions currently pending against the Company Released Parties, including, without limitation, the Alta Fox Litigation. The Company will reasonably cooperate with any filing necessary to effectuate the dismissal.
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9. Standstill.
(a) During the Standstill Period, each Investor Party agrees that it shall not, and shall cause its or his Affiliates and Associates not to, directly or indirectly:
(i) acquire, offer or seek to acquire, agree to acquire, or acquire rights or options to acquire (except by way of stock dividends or other distributions or offerings made available to holders of Voting Securities generally on a pro rata basis or pursuant to an Extraordinary Transaction), whether by purchase, tender or exchange offer, through the acquisition of control of another Person, by joining a group, through swap or hedging transactions or otherwise, any securities of the Company (other than through a broad-based market basket or index or pursuant to the conversion mechanics of the senior second lien secured convertible promissory notes of the Company, including the Convertible Note), any rights decoupled from the underlying securities of the Company, or any derivative securities, contracts or instruments in any way related to the price of shares of Common Stock, or any assets or liabilities of the Company, that would result in the Investor Parties beneficially owning, in the aggregate, more than 5,973,599 shares of Common Stock;
(ii) take any action in support of or make any proposal or request that constitutes or would result in any public announcement or proposal with respect to, or publicly offer or propose, (A) any form of business combination or acquisition or other transaction relating to a material amount of assets or securities of the Company or any of its subsidiaries, (B) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its subsidiaries or (C) any form of tender or exchange offer for shares of Common Stock or other Voting Securities, whether or not such transaction involves a Change of Control; it being understood that the foregoing shall not prohibit an Investor Party or its or his Affiliates or Associates from (x) acquiring Voting Securities to the extent permitted by the proviso in Section 9(a)(i), (y) selling or tendering its or his shares of Common Stock, and otherwise receiving consideration, pursuant to any such transaction or (z) voting on any such transaction in accordance with Section 4 hereof;
(iii) engage in, or knowingly assist in the engagement in (including, without limitation, engagement by use of or in coordination with a universal proxy card), any solicitation of proxies or written consents to vote any Voting Securities, or conduct, or assist in the conducting of, any type of binding or nonbinding referendum with respect to any Voting Securities, or assist or participate in any other way, directly or indirectly, in any solicitation of proxies (or written consents) with respect to, or from the holders of, any Voting Securities, or otherwise become a “participant” in a “solicitation,” as such terms are defined in Instruction 3 of Item 4 of Schedule 14A and Rule 14a-1 of Regulation 14A, respectively, under the Exchange Act, to vote any securities of the Company (including, without limitation, by initiating, encouraging or participating in any “withhold” or similar campaign), in each case, other than in a manner that is consistent with the Board’s recommendation on a matter;
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(iv) advise or knowingly encourage any Person with respect to the voting of (or execution of a written consent in respect of) or disposition of any securities of the Company, other than in a manner that is consistent with the Board’s recommendation on a matter after obtaining the prior written consent of the Board;
(v) other than in open market sale transactions where the identity of the purchaser is not known, sell, offer or agree to sell, directly or indirectly, through swap or hedging transactions or otherwise, any securities of the Company or any rights decoupled from the underlying securities held by an Investor Party to any Third Party with a known history of activism or known plans to engage in activism;
(vi) take any action in support of or make any proposal or request that constitutes or would result in: (A) advising, replacing or influencing any director or the management of the Company, including, without limitation, any plans or proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any material change in the capitalization, stock repurchase programs and practices or dividend policy of the Company, (C) any other material change in the Company’s management, business or corporate structure, (D) seeking to have the Company waive or make amendments or modifications to the Bylaws or the Charter, or other actions that could reasonably be expected to impede or facilitate the acquisition of control of the Company by any Person, (E) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (F) causing a class of securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act (in each case except as otherwise permitted by Section 1 or Section 4 hereof);
(vii) call or seek to call, or request the call of, alone or in concert with others, any meeting of shareholders, whether or not such a meeting is permitted by the Bylaws, including, without limitation, a “town hall meeting”;
(viii) deposit any shares of Common Stock or other Voting Securities in any voting trust or subject any shares of Common Stock or other Voting Securities to any arrangement or agreement with respect to the voting of any shares of Common Stock or Voting Securities (other than customary brokerage accounts, margin accounts, prime brokerage accounts and the like);
(ix) seek, or knowingly encourage or advise any Person, to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, or knowingly encourage or take any other action with respect to, the election or removal of any directors;
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(x) form, join or in any other way participate in any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Security;
(xi) demand a copy of the Company’s list of shareholders or its other books and records or make any request pursuant to Rule 14a-7 under the Exchange Act or under any statutory or regulatory provisions of applicable state law providing for shareholder access to books and records (including, without limitation, lists of shareholders) of the Company;
(xii) make any request or submit any proposal to amend or waive the terms of this Section 8 other than through non-public communications with the Company that would not be reasonably likely to trigger public disclosure obligations for any Party; or
(xiii) enter into any discussions, negotiations, agreements or understandings with any Person with respect to any action an Investor Party is prohibited from taking pursuant to this Section 8, or advise, assist, knowingly encourage or seek to persuade any Person to take any action or make any statement with respect to any such action, or otherwise take or cause any action or make any statement inconsistent with any of the foregoing.
(b) Notwithstanding anything to the contrary contained in Section 9(a) hereof or elsewhere in this Agreement, the Investor Parties shall not be prohibited or restricted from: (i) communicating privately with members of the Board or officers of the Company regarding any matter in a manner consistent with communications that may be reasonably made by all shareholders of the Company, so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications by any Party, (ii) taking any action necessary to comply with any law, rule or regulation or any action required by any governmental or regulatory authority or stock exchange that has, or may have, jurisdiction over the Investor Parties; provided, that a breach by such Investor Party of this Agreement is not the cause of the applicable requirement, (iii) publicly disclosing how the Investor Parties or any Investor Party intends to vote or act with respect to any securities of the Company in connection with any Extraordinary Transaction submitted for a vote of the Company’s shareholders, if, and only if, required under federal securities laws or other applicable laws in accordance with Section 5(c) hereto or (iv) communicating with shareholders of the Company and others in a manner that does not otherwise violate this Agreement.
(c) The provisions of Section 9(a) hereof shall also not prevent the Investor Parties from freely voting their shares of Common Stock (except as otherwise provided in Section 4 hereof).
(d) During the Standstill Period, the Investor Parties shall refrain from taking any actions which could reasonably be expected to have the effect of encouraging or assisting any Third Party to engage in actions which, if taken by the Investor Parties, would violate this Agreement.
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(e) The Investor Parties and the Company acknowledge that, other than as permitted by Section 2(c) and Section 2(d) or otherwise restricted by any other terms in this Agreement or applicable law, each Investor Party shall conduct itself or himself as, and be treated as, any other shareholder of the Company, with similar shareholder rights and access to management and the Board. Each Investor Party shall not have or claim any information rights beyond those afforded to all other shareholders (other than as provided by Section 2(d) as limited or otherwise restricted by the provisions of Section 9(a) hereof) and acknowledges the Company’s securities disclosure obligations, including, without limitation, the Company’s Regulation FD obligations. Notwithstanding anything to the contrary contained in Section 9(a) hereof or elsewhere in this Agreement, no term of this Agreement shall limit in any respect the actions of any director of the Company in his or her capacity as such, recognizing that such actions are subject to such director’s fiduciary duties to the Company and its shareholders and the Company Policies (it being understood and agreed that the Investor Parties shall not take any actions to indirectly violate any provision of Section 9(a) hereof).
10. Representations and Warranties of the Company. The Company represents and warrants to the Investor Parties that (a) the Company has the corporate power and authority to execute this Agreement and to bind it thereto, (b) this Agreement has been duly and validly authorized, executed and delivered by the Company, constitutes a valid and binding obligation and agreement of the Company, and is enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights and remedies of creditors and subject to general equity principles and (c) the execution, delivery and performance of this Agreement by the Company does not and will not violate or conflict with (i) any law, rule, regulation, order, judgment or decree applicable to it or (ii) result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both could become a default) under or pursuant to, or result in the loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document, or any material agreement, contract, commitment, understanding or arrangement to which the Company is a party or by which it is bound.
11. Representations and Warranties and Acknowledgement of the Investor Parties. Each Investor Party represents and warrants to the Company solely for and on behalf of itself or himself that (a) this Agreement has been duly and validly authorized, executed and delivered by such Investor Party, constitutes a valid and binding obligation and agreement of such Investor Party, and is enforceable against such Investor Party in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws generally affecting the rights and remedies of creditors and subject to general equity principles, (b) the Investor Parties beneficially own an aggregate of 5,973,599 shares of Common Stock, (c) the signatory for such Investor Party has the power and authority to execute this Agreement on behalf of itself or himself and the applicable Investor Party associated with that signatory’s name, and to bind such Investor Party to the terms hereof, (d) the execution, delivery and performance of this Agreement by such Investor Party does not and will not violate or conflict with (i) any law, rule, regulation, order, judgment or decree applicable to it or (ii) result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both could become a default) under or pursuant to, or result in the
13
loss of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document or any material agreement, contract, commitment, understanding or arrangement to which such Investor Party is a party or by which it or he is bound, (e) the New Director is not and will not be a stockholder designee or representative of any Investor Party, and each Investor Party shall not seek, and further acknowledges that it or he does not and will not have the right to receive, confidential information concerning the Company from the New Director, (f) each Investor Party is not, nor will any Investor Party become, party to any agreement, arrangement or understanding (whether written or oral) with the New Director with respect to his service as a director on the Board and (g) each Investor Party acknowledges that upon the delivery to Alta Fox Opportunities of the 680,563 shares of Common Stock converted pursuant to the Final Conversion Notice, the Convertible Note will be fully converted, and therefore any and all obligations arising under the Notes Related Agreements shall be deemed fully satisfied, accordingly, and subject to such delivery, the Investor Parties shall physically surrender the Convertible Note to the Company, take any and all action to release any securities or obligations pursuant to the Guarantees and Securities and terminate the Registration Rights Agreement.
12. No Other Discussions or Arrangements. Each Investor Party represents and warrants that, as of the Effective Date, except as publicly disclosed in their respective filings with the U.S. Securities and Exchange Commission (the “SEC”) or otherwise specifically disclosed to the Company in writing prior to the Effective Date, (a) none of the Investor Parties owns, of record or beneficially, any Voting Securities or any securities convertible into, or exchangeable or exercisable for, any Voting Securities, (b) none of the Investor Parties has entered into, directly or indirectly, any agreements or understandings with any Person (other than their own respective Representatives) with respect to any potential transaction involving the Company or the voting or disposition of any securities of the Company and (c) none of the Investor Parties is a member of or participant in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting Securities as of the Effective Date except as has been disclosed in that certain Schedule 13D originally filed by the Investor Parties with the SEC on December 2, 2024 (the “Investor Parties Schedule 13D”).
13. Public Statements; SEC Filings.
(a) Within one (1) Business Day following the date of this Agreement, the Company shall issue a press release announcing this Agreement, substantially in the form attached hereto as Exhibit A.
(b) The Company shall file with the SEC a Current Report on Form 8-K reporting its entry into this Agreement and appending this Agreement as an exhibit thereto (the “Form 8-K”). The Form 8-K shall be consistent with the terms of this Agreement. The Company shall provide the Investor Parties with a reasonable opportunity to review and comment on the Form 8-K prior to the filing of the Form 8-K with the SEC and consider in good faith any such comments of the Investor Parties.
(c) No later than two (2) Business Days following the Effective Date, the Investor Parties shall file with the SEC an amendment to the Investor Parties Schedule 13D, in compliance with Section 13 of the Exchange Act, to report their entry into this Agreement (such amendment, the “Schedule 13D Amendment”). The Schedule 13D
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Amendment shall be consistent with the terms of this Agreement. The Investor Parties shall provide the Company with a reasonable opportunity to review and comment on the Schedule 13D Amendment prior to the filing of the Schedule 13D Amendment with the SEC and consider in good faith any such comments of the Company.
14. Term; Termination. The term of this Agreement shall commence on the Effective Date and shall remain in effect until the date immediately following the conclusion of the 2027 Annual Meeting (such date, the “Termination Date”); provided, however, that (a) the Investor Parties may earlier terminate this Agreement if the Company commits a material breach of its obligations under this Agreement that (if capable of being cured) is not cured within fifteen (15) days after the Company’s receipt of written notice from the Investor Parties specifying the material breach, or, if impossible to cure within fifteen (15) days, that the Company has not taken any substantive action to cure within such fifteen (15) day period and (b) the Company may earlier terminate this Agreement if any Investor Party commits a material breach of this Agreement that (if capable of being cured) is not cured within fifteen (15) days after such Investor Party’s receipt of written notice from the Company specifying the material breach, or, if impossible to cure within fifteen (15) days, that such Investor Party has not taken any substantive action to cure within such fifteen (15) day period. Notwithstanding anything to the contrary contained herein, the provisions of Section 7 and Section 15 through Section 26 hereof shall survive the termination of this Agreement. The termination of this Agreement shall not relieve any Party from its responsibilities in respect of any breach of this Agreement prior to such termination.
15. Expenses. The Company shall pay to the Investor Parties an amount not to exceed in the aggregate $1,200,000 (a) in exchange for the Investor Release set forth in Section 7(b) hereof, (b) the dismissal with prejudice of the Alta Fox Litigation set forth in Section 8 hereof and (c) as reimbursement for the Investor Parties’ reasonable, well-documented, out-of-pocket fees and expenses (including legal expenses) incurred by the Investor Parties in connection with the negotiation and execution of this Agreement and the transactions contemplated hereby.
16. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those of the State of Delaware. Each Party agrees that it shall bring any suit, action, or other proceeding in respect of any claim arising out of or related to this Agreement (each, an “Action”) exclusively in (a) the Delaware Court of Chancery in and for New Castle County, (b) in the event (but only in the event) that the Delaware Court of Chancery in and for New Castle County does not have subject matter jurisdiction over such Action, the United States District Court for the District of Delaware or (c) in the event (but only in the event) that United States District Court for the District of Delaware does not have subject matter jurisdiction over such Action, any other Delaware state court (collectively, the “Chosen Courts”), and, solely in connection with an Action, irrevocably (i) submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any jurisdictional defenses (including, without limitation, personal jurisdiction and venue) to any such Action, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party and (iv) agrees that service of process upon such Party in any such Action shall be effective if notice is given in accordance with Section 20 hereof. Each Party agrees that a final judgment in any Action brought in the Chosen Courts shall be conclusive and binding upon each Party and may be enforced in any other courts, the jurisdiction of which each Party is or may be subject, by suit upon such judgment.
15
17. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 17.
18. Specific Performance. Each Party acknowledges and agrees that irreparable injury to the other Party or Parties may occur in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached and that such injury may not be adequately compensable by the remedies available at law (including, without limitation, the payment of money damages). It is accordingly agreed that each Party (the “Moving Party”) shall be entitled to seek specific enforcement, injunctive or other equitable relief as a remedy for any such breach or to prevent any violation or threatened violation of, the terms hereof, and the other Party will not take action, directly or indirectly, in opposition to the Moving Party seeking such relief on the grounds that any other remedy or relief is available at law or in equity. Each Party further agrees to waive any requirement for the security or posting of any bond in connection with any such relief. The remedies available pursuant to this Section 18 shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity.
19. Certain Definitions. As used in this Agreement:
(a) “Affiliate” shall mean any “Affiliate” as defined in Rule 12b-2 promulgated by the SEC under the Exchange Act, and, for the avoidance of doubt, including, without limitation, Persons who become Affiliates subsequent to the Effective Date; provided, however, that, for purposes of this Agreement, no Investor Party shall be deemed an Affiliate of the Company, and the Company shall not be deemed an Affiliate of any Investor Party;
(b) “Associate” shall mean any “Associate” as defined in Rule 12b-2 promulgated by the SEC under the Exchange Act, and, for the avoidance of doubt, including, without limitation, Persons who become Associates subsequent to the Effective Date;
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(c) “Business Day” shall mean any day other than a Saturday, Sunday or day on which the commercial banks in the State of New York are authorized or obligated to be closed by applicable law;
(d) “Bylaws” shall mean the Amended and Restated Bylaws of the Company, as amended and restated on January 29, 2023, and as may be amended, corrected, or further amended and restated from time to time;
(e) “Change of Control” shall be deemed to have taken place if (i) any Person is or becomes a beneficial owner, directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the equity interests and voting power of the Company’s then-outstanding equity securities or (ii) the Company enters into a stock-for-stock transaction whereby, immediately after the consummation of the transaction the Company’s shareholders retain, directly or indirectly, less than fifty percent (50%) of the equity interests and voting power of the surviving entity’s then-outstanding equity securities;
(f) “Charter” shall mean the Amended and Restated Articles of Incorporation with Articles of Amendment of the Company, as amended and restated on November 16, 2018, and as may be amended, corrected, or further amended and restated from time to time;
(g) “Common Stock” shall mean the shares of common stock, no par value, of the Company;
(h) “Extraordinary Transaction” shall mean any equity tender offer, equity exchange offer, merger, acquisition, joint venture, business combination, financing, recapitalization, reorganization, restructuring, disposition, distribution, or other transaction with a Third Party that, in each case, would result in a Change of Control of the Company, the liquidation, dissolution or other extraordinary transaction involving a majority of its equity securities or a majority of its assets (determined on a consolidated basis), or any transaction with a Third Party that is submitted for a vote of the Company’s shareholders (including, for the avoidance of doubt, any PIPE, convertible note, convertible preferred security or similar structure that on a fully diluted basis, would result in an increase of 10% or more of the shares then outstanding prior to the contemplated transaction);
(i) “Independent Director” shall have the meaning ascribed to it in the Listing Rule 5605(a)(2) of the NASDAQ Stock Market LLC or the applicable requirements of such other national securities exchange designated as the primary market on which the Common Stock is listed for trading;
(j) “Parties” shall mean the Company and the collective Investor Parties, and each of the Company and the collective Investor Parties, respectively, a “Party”;
(k) “Person” or “Persons” shall mean any individual, corporation (including, without limitation, not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization or other entity of any kind, structure or nature;
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(l) “Representative” shall mean a Person’s Affiliates and Associates and its and their respective directors, officers, employees, partners, members, managers, consultants, legal or other advisors, agents and other representatives; provided, that when used with respect to the Company, “Representative” shall not include any non-executive employees;
(m) “Third Party” shall mean any Person that is not (i) a Party to this Agreement, (ii) a member of the Board, (iii) an officer of the Company or (iv) an Affiliate or Associate of any Party; and
(n) “Voting Securities” shall mean the Common Stock and any other securities of the Company entitled to vote in the election of directors.
20. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested), (c) on the date sent by email (with confirmation of transmission) if sent during normal business hours, and on the next Business Day if sent after normal business hours or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses set forth in this Section 20 (or to such other address that may be designated by a Party from time to time in accordance with this Section 20).
If to the Company, to its address at:
Daktronics, Inc.
201 Daktronics Drive
Brookings, South Dakota 57006
| Attention: | Sheila M. Anderson |
| Email: | Sheila.Anderson@daktronics.com |
with a copy (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
1114 Avenue of the Americas, 32nd Floor
New York, New York 10036
| Attention: | Lawrence S. Elbaum |
| Francisco Morales Barrón |
| C. Patrick Gadson |
| Email: | lelbaum@velaw.com |
| fmorales@velaw.com |
| pgadson@velaw.com |
18
If to an Investor Party, to the address at:
Alta Fox Capital Management, LLC
640 Taylor Street, Suite 2522
Fort Worth, Texas 76102
| Attention: | P. Connor Haley |
| Email: | Connor@altafoxcapital.com |
with a copy (which shall not constitute notice) to:
Wilson Sonsini Goodrich & Rosati
1301 Avenue of the Americas, 40th Floor
New York, New York 10019
| Attention: | Sebastian Alsheimer |
| Email: | salsheimer@wsgr.com |
21. Entire Agreement; Amendment. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matters contained herein, and it supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matters. This Agreement may be amended, modified or supplemented only by an agreement in writing signed by each Party.
22. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
23. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
24. Assignment. No Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party; provided, that each Party may assign any of its rights and delegate any of its obligations hereunder to any Person that acquires substantially all of that Party’s assets, whether by stock sale, merger, asset sale or otherwise. Any purported assignment or delegation in violation of this Section 24 shall be null and void. No assignment or delegation shall relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
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25. Waivers. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
26. Interpretation. Each Party acknowledges that it has been represented by legal counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with the advice of said counsel. Each Party and its respective legal counsel cooperated and participated in the drafting and preparation of this Agreement and the documents referred to herein, and may not be construed against any Party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any Party that drafted or prepared it is of no application and is expressly waived by each Party, and any controversy over interpretations of this Agreement shall be decided without regard to events of drafting or preparation. The headings set forth in this Agreement are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision of this Agreement. In this Agreement, unless a clear contrary intention appears, (a) the word “including” (in its various forms) means “including, without limitation,” (b) the words “hereunder,” “hereof,” “hereto” and words of similar import are references in this Agreement as a whole and not to any particular provision of this Agreement, (c) the word “or” is not exclusive, (d) references to “Sections” in this Agreement are references to Sections of this Agreement unless otherwise indicated, and (e) whenever the context requires, the masculine gender shall include the feminine and neuter genders.
(Signature Page Follows)
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IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the Effective Date.
| THE COMPANY: | ||
| DAKTRONICS, INC. | ||
| By: | /s/ Reece A. Kurtenbach | |
| Name: | Reece A. Kurtenbach | |
| Title: | President and Chief Executive Officer
| |
(Signature Page to Cooperation Agreement)
| INVESTOR PARTIES: | ||
| ALTA FOX CAPITAL MANAGEMENT, LLC | ||
| By: | /s/ P. Connor Haley | |
| Name: | P. Connor Haley | |
| Title: | Manager | |
| ALTA FOX OPPORTUNITIES FUND, LP | ||
| By: | Alta Fox GenPar, LP, its General Partner | |
| By: | Alta Fox Equity, LLC, its General Partner | |
| By: | /s/ P. Connor Haley | |
| Name: | P. Connor Haley | |
| Title: | Manager | |
| ALTA FOX GENPAR, LP | ||
| By: | Alta Fox Equity, LLC, its General Partner | |
| By: | /s/ P. Connor Haley | |
| Name: | P. Connor Haley | |
| Title: | Manager | |
| ALTA FOX EQUITY, LLC | ||
| By: | /s/ P. Connor Haley | |
| Name: | P. Connor Haley | |
| Title: | Manager | |
| P. CONNOR HALEY | ||
(Signature Page to Cooperation Agreement)
Exhibit A
Press Release
Daktronics and Alta Fox Enter into Cooperation Agreement
Daktronics to Appoint Peter Feigin to the Board
Daktronics Confirms Its Commitment to An Investor Day in 2025
Alta Fox to Withdraw Litigation and Support Reincorporation to Delaware
BROOKINGS, S.D., March 3, 2025 – Daktronics, Inc. (“Daktronics,” the “Company,” “we,” or “us”) (NASDAQ-DAKT), the leading U.S.-based designer and manufacturer of best-in-class dynamic video communication displays and control systems for customers worldwide, today announced it has entered into a cooperation agreement (the “Cooperation Agreement”) with Alta Fox Capital Management, LLC (collectively with certain of its affiliates, “Alta Fox”), which is the Company’s largest shareholder.
Pursuant to the Cooperation Agreement, the Company will appoint Peter Feigin, an Alta Fox-recommended candidate, as a new independent member of its Board of Directors (the “Board”). Mr. Feigin will immediately join the Board’s Transformation Committee. He currently serves as the President of Milwaukee Bucks Inc. (the “Bucks”) and the Fiserv Forum sports arena, brings more than 25 years of sales and marketing experience, including as Chief Marketing and Revenue Officer of Deluxe Entertainment Services Group, an international entertainment company.
Daktronics has also confirmed that it will host an Investor Day in 2025 to provide shareholders with greater insight into the Company’s strategy, financial targets and outlook, and capital allocation framework. In addition, Daktronics will solicit input from Alta Fox on its search for a new Chief Financial Officer.
As part of the Cooperation Agreement, Alta Fox has agreed to withdraw all litigation against the Company with prejudice, support the Company’s reincorporation to Delaware, and adhere to customary standstill restrictions and voting commitments through the Company’s 2027 annual meeting of shareholders.
A-1
“The addition of Peter Feigin to the Board will bolster the Company’s efforts to drive long-term value,” said Reece Kurtenbach, Daktronics Chairman, President, and Chief Executive Officer. “We welcome him and look forward to working together.”
Connor Haley, Managing Partner of Alta Fox, added, “It is a win for all of Daktronics’ shareholders and stakeholders to have Peter, a well-known sports and entertainment industry leader, join the Company’s Board. Together with leadership’s governance enhancements and investor relations commitments, his appointment positions Daktronics for long-term success. We are pleased to move forward in a constructive manner and work with the Board and management to enhance value for shareholders.”
A copy of the Cooperation Agreement will be included as an exhibit to the Company’s Current Report on Form 8-K, which will be filed with the U.S. Securities and Exchange Commission (the “SEC”).
About Peter Feigin
Peter Feigin currently serves as the President of the Bucks, an American professional basketball team that won the NBA Championship in 2021, and Fiserv Forum, the Bucks’ arena. Prior to joining the Bucks, Mr. Feigin served as the Chief Marketing and Revenue Officer of Deluxe Entertainment Services Group, a major international entertainment company, from May 2013 to October 2014. Prior to that, Mr. Feigin was the President of Marquis Jet Partners Inc., a leading private aviation company from 2010 to 2011. From 1998 to 2004, Mr. Feigin worked for the New York Knicks in a variety of roles, culminating in a position as the Vice President of Marketing of Madison Square Garden Sports Corp. From 1993 to 1998, he held various sales and marketing positions, including Director of Marketing and Promotions, with Six Flags Theme Parks Inc., which was then a Time Warner company. Mr. Feigin received his B.A. from Franklin & Marshall College.
About Daktronics
Daktronics has strong leadership positions in, and is the world’s largest supplier of, large-screen video displays, electronic scoreboards, LED text and graphics displays, and related control systems. The Company excels in the control of display systems, including those that require integration of multiple complex displays showing real-time information, graphics, animation, and video. Daktronics designs, manufactures, markets and services display systems for customers around the world in four domestic business units: Live Events, Commercial, High School Park and Recreation, and Transportation, and one International business unit. For more information, visit the Company’s website at: www.daktronics.com.
A-2
Safe Harbor Statement
Cautionary Notice: In addition to statements of historical fact, this news release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and is intended to enjoy the protection of that Act. These forward-looking statements reflect the Company’s expectations or beliefs concerning future events. The Company cautions that these and similar statements involve risk and uncertainties which could cause actual results to differ materially from our expectations, including, but not limited to, changes in economic and market conditions, management of growth, timing and magnitude of future contracts and orders, fluctuations in margins, the introduction of new products and technology, the impact of adverse weather conditions, increased regulation, and other risks described in the Company’s filings with the SEC, including its Annual Report on Form 10-K for its 2024 fiscal year. Forward-looking statements are made in the context of information available as of the date stated. The Company undertakes no obligation to update or revise such statements to reflect new circumstances or unanticipated events as they occur.
For more information contact:
INVESTOR RELATIONS:
Sheila M. Anderson, Chief Financial Officer
Tel (605) 692-0200
Investor@daktronics.com
Alliance Advisors IR
Carolyn Capaccio / Jody Burfening
DAKTIRTeam@allianceadvisors.com
MEDIA:
Gagnier Communications
Riyaz Lalani / Lindsay Barber
Daktronics@gagnierfc.com
A-3
Exhibit 99.1
Daktronics and Alta Fox Enter into Cooperation Agreement
Daktronics to Appoint Peter Feigin to the Board
Daktronics Confirms Its Commitment to An Investor Day in 2025
Alta Fox to Withdraw Litigation and Support Reincorporation to Delaware
BROOKINGS, S.D., March 03, 2025 (GLOBE NEWSWIRE) – Daktronics, Inc. (“Daktronics,” the “Company,” “we,” or “us”) (NASDAQ-DAKT), the leading U.S.-based designer and manufacturer of best-in-class dynamic video communication displays and control systems for customers worldwide, today announced it has entered into a cooperation agreement (the “Cooperation Agreement”) with Alta Fox Capital Management, LLC (collectively with certain of its affiliates, “Alta Fox”), which is the Company’s largest shareholder.
Pursuant to the Cooperation Agreement, the Company will appoint Peter Feigin, an Alta Fox-recommended candidate, as a new independent member of its Board of Directors (the “Board”). Mr. Feigin will immediately join the Board’s Transformation Committee. He currently serves as the President of Milwaukee Bucks Inc. (the “Bucks”) and the Fiserv Forum sports arena, brings more than 25 years of sales and marketing experience, including as Chief Marketing and Revenue Officer of Deluxe Entertainment Services Group, an international entertainment company.
Daktronics has also confirmed that it will host an Investor Day in 2025 to provide shareholders with greater insight into the Company’s strategy, financial targets and outlook, and capital allocation framework. In addition, Daktronics will solicit input from Alta Fox on its search for a new Chief Financial Officer.
As part of the Cooperation Agreement, Alta Fox has agreed to withdraw all litigation against the Company with prejudice, support the Company’s reincorporation to Delaware, and adhere to customary standstill restrictions and voting commitments through the Company’s 2027 annual meeting of shareholders.
“The addition of Peter Feigin to the Board will bolster the Company’s efforts to drive long-term value,” said Reece Kurtenbach, Daktronics Chairman, President, and Chief Executive Officer. “We welcome him and look forward to working together.”
Connor Haley, Managing Partner of Alta Fox, added, “It is a win for all of Daktronics’ shareholders and stakeholders to have Peter, a well-known sports and entertainment industry leader, join the Company’s Board. Together with leadership’s governance enhancements and investor relations commitments, his appointment positions Daktronics for long-term success. We are pleased to move forward in a constructive manner and work with the Board and management to enhance value for shareholders.”
A copy of the Cooperation Agreement will be included as an exhibit to the Company’s Current Report on Form 8-K, which will be filed with the U.S. Securities and Exchange Commission (the “SEC”).
About Peter Feigin
Peter Feigin currently serves as the President of the Bucks, an American professional basketball team that won the NBA Championship in 2021, and Fiserv Forum, the Bucks’ arena. Prior to joining the Bucks, Mr. Feigin served as the Chief Marketing and Revenue Officer of Deluxe Entertainment Services Group, a major international entertainment company, from May 2013 to October 2014. Prior to that, Mr. Feigin was the President of Marquis Jet Partners Inc., a leading private aviation company from 2010 to 2011. From 1998 to 2004, Mr. Feigin worked for the New York Knicks in a variety of roles, culminating in a position as the Vice President of Marketing of Madison Square Garden Sports Corp. From 1993 to 1998, he held various sales and marketing positions, including Director of Marketing and Promotions, with Six Flags Theme Parks Inc., which was then a Time Warner company. Mr. Feigin received his B.A. from Franklin & Marshall College.
About Daktronics
Daktronics has strong leadership positions in, and is the world’s largest supplier of, large-screen video displays, electronic scoreboards, LED text and graphics displays, and related control systems. The Company excels in the control of display systems, including those that require integration of multiple complex displays showing real-time information, graphics, animation, and video. Daktronics designs, manufactures, markets and services display systems for customers around the world in four domestic business units: Live Events, Commercial, High School Park and Recreation, and Transportation, and one International business unit. For more information, visit the Company’s website at: www.daktronics.com.
Safe Harbor Statement
Cautionary Notice: In addition to statements of historical fact, this news release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and is intended to enjoy the protection of that Act. These forward-looking statements reflect the Company’s expectations or beliefs concerning future events. The Company cautions that these and similar statements involve risk and uncertainties which could cause actual results to differ materially from our expectations, including, but not limited to, changes in economic and market
conditions, management of growth, timing and magnitude of future contracts and orders, fluctuations in margins, the introduction of new products and technology, the impact of adverse weather conditions, increased regulation, and other risks described in the Company’s filings with the SEC, including its Annual Report on Form 10-K for its 2024 fiscal year. Forward-looking statements are made in the context of information available as of the date stated. The Company undertakes no obligation to update or revise such statements to reflect new circumstances or unanticipated events as they occur.
For more information contact:
INVESTOR RELATIONS:
Sheila M. Anderson, Chief Financial Officer
Tel (605) 692-0200
Investor@daktronics.com
Alliance Advisors IR
Carolyn Capaccio / Jody Burfening
DAKTIRTeam@allianceadvisors.com
MEDIA:
Gagnier Communications
Riyaz Lalani / Lindsay Barber
Daktronics@gagnierfc.com