OLIN Corp 8-K, filed Mar 2, 2020
OLIN Corp (OLN)
8-K
2020-03-02
For: 2020-02-29
View Original
Added on
April 04, 2026
About this 8-K
OLIN Corp filed this 8-K on March 2, 2020, reporting on events of February 29, 2020.
Items reported
- Item 1.01: Entered into a material agreement
- Item 5.02: Director or officer change, or executive pay
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of theSecurities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): February 29, 2020
(Exact Name of Registrant as Specified in its Charter)
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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(Address of Principal Executive Offices)
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(Zip Code)
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(314 ) 480-1400
Registrant’s Telephone Number, Including Area Code
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions
(see General Instruction A.2 below):
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
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| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
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| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
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| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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Title of Each Class
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Trading Symbol(s)
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Name of Each Exchange on Which Registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (CFR 230.405) or Rule 12b-2
of the Securities Exchange Act of 1934 (CFR 240.12b-2).
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 |
On February 29, 2020, Olin Corporation (“Olin”) entered into a Cooperation Agreement (the “Agreement”) with Sachem Head Capital Management LP pursuant to which the board of directors of Olin (the “Board”)
elected Scott D. Ferguson as a Class II director and W. Barnes Hauptfuhrer (together with Mr. Ferguson, the “Sachem Head Designees”) as a Class I director to the Board, with
such election effective on February 29, 2020. Subject to certain conditions in the Agreement, the Sachem Head Designees will be included as part of Olin’s slate of nominees for election to the Board at the 2020 annual meeting of shareholders of Olin
(the “2020 Annual Meeting”).
Pursuant to the Agreement, Olin also agreed to propose, at the 2020 Annual Meeting, an amendment to Olin’s Amended and Restated Articles of Incorporation (the “Declassification Amendment”) to declassify the Board and provide for the annual election of all directors starting at the 2021 annual meeting of shareholders of Olin.
Under the terms of the Agreement, Mr. Hauptfuhrer will serve as a member of the Directors and Corporate Governance Committee of the Board, Mr. Ferguson will serve as a
member of the Compensation Committee of the Board and both will serve on a newly formed Operating Improvement Committee (the “Committee”), which will analyze and make
recommendations to the Board regarding operational improvements and support and inform the Board’s review of Olin’s strategy. Mr. Scott Sutton and Mr. John M. B. O’Connor, both independent directors of the Board, will also serve on the Committee,
with Mr. Sutton acting as chair. The Agreement also includes customary voting and standstill provisions.
The Sachem Head Designees will receive the standard director compensations that Olin provides to its non-employee directors as described in Olin’s Proxy Statement on
Schedule 14A filed with the Securities and Exchange Commission on March 1, 2019. As of the date hereof, there are no transactions between the Sachem Head Designees and Olin that would be reportable under Item 404(a) of Regulation S-K.
The foregoing summary of the Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Agreement that is attached as
Exhibit 10.1 hereto and is incorporated by reference into this Item 1.01.
On March 2, 2020, Olin issued a press release announcing the Agreement. The press release is attached as Exhibit 99.1 hereto and is incorporated by reference into this Item
1.01.
| Item 5.02. |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers
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The description of the matters included under Item 1.01 is incorporated by reference into this Item 5.02.
| Item 5.03. |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
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In connection with the Agreement, the Board approved amendments to Article II, Section 1 of Olin’s Bylaws to increase the size of the Board to allow for the election of the
Sachem Head Designees, effective February 29, 2020. A copy of the amended Bylaws is filed as Exhibit 3.1 hereto and is incorporated by reference into this Item 5.03.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
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Exhibit No.
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Description
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, Registrant has duly authorized this Report to be signed on its behalf by the undersigned duly
authorized.
| OLIN CORPORATION | ||||
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Date: March 2, 2020
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By:
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/s/ Eric A. Blanchard | ||
| Name: | Eric A. Blanchard | |||
| Title: | Vice President, General Counsel and Secretary | |||
Exhibit 3.1
BYLAWS
OF
OLIN CORPORATION
As Amended
Effective
February 29, 2020
BYLAWS
of
OLIN CORPORATION
ARTICLE I.
MEETINGS OF SHAREHOLDERS.
SECTION 1. Place of Meetings. All meetings of the shareholders of Olin Corporation (hereinafter called the “Corporation”) shall be held at such place, either within or without the
Commonwealth of Virginia, as may from time to time be fixed by the Board of Directors of the Corporation (hereinafter called the “Board”).
SECTION 2. Annual Meetings. The annual meeting of the shareholders of the Corporation for the election of directors and for the transaction of such other business as may properly come
before the meeting shall be held on the last Thursday in April in each year (or, if that day shall be a legal holiday, then on the next succeeding business day), or on such other day and/or in such other month as may be fixed by the Board, at such
hour as may be specified in the notice thereof.
SECTION 3. Special Meetings. A special meeting of the shareholders for any purpose or purposes, unless otherwise provided by law or in the Articles of Incorporation of the Corporation
as from time to time amended (hereinafter called the “Articles”), may be held at any time upon the call of the Board, the Chairman of the Board, the President or the holders of a majority of the shares of the issued and outstanding stock of the
Corporation entitled to vote at the meeting.
SECTION 4. Notice of Meetings. Except as otherwise provided by law or the Articles, not less than ten nor more than sixty days’ notice in writing of the place, day, hour and purpose
or purposes of each meeting of the shareholders, whether annual or special, shall be given to each shareholder of record of the Corporation entitled to vote at such meeting, in any manner permitted by Section 13.1-610 of the Virginia Stock
Corporation Act (the “VSCA”, including electronic transmission as defined in the VSCA). Notice of any meeting of shareholders shall not be required to be given to any shareholder who shall attend the meeting in person or by proxy, unless attendance
is for the express purpose of objecting to the transaction of any business because the meeting was not lawfully called or convened, or who shall waive notice thereof in writing signed by the shareholder before, at or after such meeting. Notice of
any adjourned meeting need not be given, except when expressly required by law.
SECTION 5. Quorum. Shares representing a majority of the votes entitled to be cast on a matter by all classes or series which are entitled to vote thereon, represented in person or by proxy
at any meeting of the shareholders, shall constitute a quorum for the transaction of business thereat with respect to such matter, unless otherwise provided by the VSCA or the Articles. In the absence of a quorum at any such meeting or any
adjournment or adjournments thereof, the chairman of such meeting or shares representing a majority of the votes cast on the matter of adjournment, either in person or by proxy, may adjourn such meeting from time to time until a quorum is
obtained. At any such adjourned meeting at which a quorum has been obtained, any business may be transacted which might have been transacted at the meeting as originally called.
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SECTION 6. Voting. Unless otherwise provided by the VSCA or the Articles, at each meeting of the shareholders each shareholder entitled to vote at such meeting shall be entitled to
one vote for each share of stock standing in his or her name on the books of the Corporation upon any date fixed as hereinafter provided, and may vote either in person or by proxy. Unless demanded by a shareholder present in person or represented
by proxy at any meeting of the shareholders and entitled to vote thereon or so directed by the chairman of the meeting, the vote on any matter need not be by ballot.
A shareholder or a shareholder’s duly authorized attorney-in-fact may execute a writing authorizing another person or persons to act for such
shareholder as proxy. Execution may be accomplished by the shareholder or such shareholder’s duly authorized attorney-in-fact or authorized officer, director, employee or agent signing such writing or causing such shareholder’s signature to be
affixed to such writing by any reasonable means including, but not limited to, by facsimile signature.
The President, any Vice President or the Secretary of the Corporation may approve procedures to enable a shareholder or a shareholder’s duly
authorized attorney-in-fact to authorize another person or persons to act for such shareholder as proxy by transmitting or authorizing an internet transmission, telephone transmission or other means of electronic transmission (as defined in the VSCA)
to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such
transmission must either set forth or be submitted with information from which the judges or inspectors of election can determine that the transmission was authorized by the shareholder or the shareholder’s duly authorized attorney-in-fact. If it is
determined that such transmissions are valid, the judges or inspectors of election shall specify the information upon which they relied. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission created
pursuant to this Section 6 may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or transmission.
SECTION 7. Inspectors. One or more inspectors of election for any meeting of shareholders may be appointed by the chairman of such meeting, for the purpose of receiving and taking
charge of proxies and ballots and deciding all questions as to the qualification of voters, the validity of proxies and ballots and the number of votes properly cast and performing such other functions of that position as are provided in, and in
accordance with the procedures set forth in, the VSCA.
SECTION 8. Conduct of Meeting. The chairman of the meeting at each meeting of shareholders shall have all the powers and authority vested in presiding officers by law or practice,
without restriction, as well as the authority to conduct an orderly meeting and to impose reasonable limits on the amount of time taken up in remarks by any one shareholder.
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SECTION 9. Business Proposed by a Shareholder. To be properly brought before a meeting of shareholders, business must be (i) specified in the notice of meeting (or any supplement thereto) given by
or at the direction of the Board of Directors, (ii) otherwise properly brought before the meeting by or at the direction of the Board of Directors or (iii) in the case of an annual meeting of shareholders or a special meeting called at the request
of shareholders in accordance with these Bylaws, properly brought before the meeting by a shareholder. In addition to any other applicable requirements, for business to be properly brought before a meeting by a shareholder, the shareholder must
have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a shareholder’s notice must be given, either by personal delivery or by United States registered or certified mail, postage prepaid, to the Secretary of
the Corporation in the case of an annual meeting, not later than 90 days before the anniversary of the immediately preceding annual meeting and in the case of a special meeting called at the request of shareholders, in accordance with the
procedures set forth in Section 10 of Article I of these Bylaws. A shareholder’s notice to the Secretary shall set forth as to each matter the shareholder proposes to bring before the meeting (i) a brief description of the business desired to be
brought before the meeting, including the complete text of any resolutions to be presented at the meeting with respect to such business, and the reasons for conducting such business at the meeting, (ii) the name and address of record of the
shareholder proposing such business, (iii) the class and number of shares of the Corporation that are beneficially owned by the shareholder and any other person on whose behalf the proposal is made, and (iv) any material interest of the shareholder
and any other person on whose behalf the proposal is made, in such business. In the event that a shareholder attempts to bring business before a meeting without complying with the foregoing procedure, the chairman of the meeting may declare to the
meeting that the business was not properly brought before the meeting and, if he or she shall so declare, such business shall not be transacted.
SECTION 10. Special Meeting at Request of Shareholders.
(a) Any one or more holders of record of a majority of the outstanding shares of Common Stock requesting the Corporation to call a special
meeting of shareholders pursuant to Section 2 of Article Eighth of the Articles (collectively, the “Initiating Shareholder”) shall give written notice of such request to the Secretary of the Corporation at its principal executive offices (the
“Notice”). The Notice shall be sent in the manner and contain all the information that would be required in a notice to the Secretary given pursuant to Section 9 of this Article I.
(b) If the Initiating Shareholder owns of record a majority of the outstanding Common Stock and complies with the other requirements of Sections
9 and 10(a) of this Article I, as determined by the Secretary of the Corporation, the Corporation shall be required to call the special meeting of shareholders requested by the Initiating Shareholder.
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(c) The record date for determining the shareholders of record entitled to vote at a special meeting called pursuant to this Section 10 shall
be fixed by the Board of Directors which record date will be within 60 days of the date the Secretary of the Corporation determines the Corporation is required to call such special meeting. Notice of the meeting shall be given by the Corporation in
any manner permitted by Section 13.1-610 of the VSCA, including electronic transmission (as defined in the VSCA) to shareholders of record on such record date within 10 days after the record date (or such longer period as may be necessary for the
Corporation to file its proxy materials with, and receive and respond to the comments of, the Securities and Exchange Commission), and the meeting will be held within 50 days after the date of mailing of the notice, as determined by the Board of
Directors.
(d) The business to be conducted at a special meeting called pursuant to this Section 10 shall be limited to the business set forth in the
Notice and such other business or proposals as the Board of Directors shall determine and shall be set forth in the notice of meeting. The Board of Directors or the Chairman of the Board may determine other rules and procedures for the conduct of the
meeting.
ARTICLE II.
BOARD OF DIRECTORS.
SECTION 1. Number, Classification, Term, Election. The property, business and affairs of the Corporation shall be managed under the direction of the Board as from time to time
constituted. The Board shall consist of fourteen directors, but the number of directors may be increased to any number, not more than eighteen directors, or decreased to any number, not less than three directors, by amendment of these Bylaws. No
director need be a shareholder. The Board shall be divided into three classes, Class I, Class II and Class III, as nearly equal in number as possible, with the members of each class to serve for the respective terms of office provided in the
Articles, and until their respective successors shall have been duly elected or until death or resignation or until removal in the manner hereinafter provided. In case the number of directors shall be increased, the additional directors to fill the
vacancies caused by such increase shall be elected in accordance with the provisions of Section 4 of Article VI of these Bylaws. Any increase or decrease in the number of directors shall be so apportioned among the classes by the Board as to make
all classes as nearly equal in number as possible.
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Except as provided in the following paragraph, each director shall be elected by a vote of the majority of the votes cast with respect to that
director-nominee’s election at a meeting for the election of directors at which a quorum is present. For purposes of this Section 1, a majority of the votes cast means that the number of shares voted “for” a director must exceed the number of shares
voted “against” that director.
The foregoing paragraph shall not apply to any election of directors if there are more nominees for election than the number of directors to be
elected, one or more of whom are properly proposed by shareholders. A nominee for director in an election to which this paragraph applies shall be elected by a plurality of the votes cast in such election.
Subject to the rights of holders of any Preferred Stock outstanding, nominations for the election of directors may be made by the Board or a
committee appointed by the Board or by any shareholder entitled to vote in the election of directors generally. However, any shareholder entitled to vote in the election of directors generally may nominate one or more persons for election as
directors at a meeting only if it is an annual meeting and written notice of such shareholder’s intent to make such nomination or nominations has been given, either by personal delivery or by United States registered or certified mail, postage
prepaid, to the Secretary not later than 90 days before the anniversary of the immediately preceding annual meeting. Each such notice shall set forth: (a) the name and address of the shareholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the shareholder is a holder of record of shares of the Corporation entitled to vote at such meeting (stating the class and number thereof) and intends to appear in person or by proxy at the meeting
to nominate the person or persons specified in the notice; (c) a description of all arrangements or understandings between the shareholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder; and (d) such other information regarding each nominee proposed by such shareholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated or intended to be nominated by the Board of Directors, and shall include a consent signed by each such nominee to serve as a director of the Corporation if so elected. The chairman of
the meeting may refuse to acknowledge the nomination by a shareholder of any person that is not made in compliance with the foregoing procedure.
SECTION 2. Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such amount per annum or such fees for
attendance at Board and Committee meetings, or both, in cash or other property, including securities of the Corporation, as the Board shall from time to time determine, together with reimbursements for the reasonable expenses incurred by him or her
in connection with the performance of his or her duties. Nothing contained herein shall preclude any director from serving the Corporation, or any subsidiary or affiliated corporation, in any other capacity and receiving appropriate compensation
therefor. If the Board adopts a resolution to that effect, any director may elect to defer all or any part of the annual and other fees hereinabove referred to for such period and on such terms and conditions as shall be permitted by such
resolution.
SECTION 3. Place of Meetings. The Board may hold its meetings at such place or places within or without the Commonwealth of Virginia as it may from time to time by resolution
determine or as shall be specified or fixed in the respective notices or waivers of notice thereof.
SECTION 4. Organization Meeting. After each annual election of directors, as soon as conveniently may be, the newly constituted Board shall meet for the purposes of organization. At
such organization meeting, the newly constituted Board shall elect officers of the Corporation and transact such other business as shall come before the meeting. Notice of organization meetings of the Board need not be given. Any organization meeting
may be held at any other time or place which shall be specified in a notice given as hereinafter provided for special meetings of the Board, or in a waiver of notice thereof signed by all the directors.
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SECTION 5. Regular Meetings. Regular meetings of the Board may be held at such time and place as may from time to time be specified in a resolution adopted by the Board then in
effect; and, unless otherwise required by such resolution, or by law, notice of any such regular meeting need not be given.
SECTION 6. Special Meetings. Special meetings of the Board shall be held whenever called by the Chairman of the Board or the Chief Executive Officer, or at the request of any three
directors, by the Secretary. Notice of a special meeting shall be mailed to each director, addressed to him or her at his or her residence or usual place of business, not later than the second day before the day on which such meeting is to be held,
or may be given to him or her by electronic transmission (as defined in the VSCA), which shall be deemed given as set forth in Section 13.1-686.c of the VSCA. Neither the business to be transacted at, nor the purpose of, any regular or special
meeting of the Board need be specified in the notice of such meeting, unless required by the Articles or by the VSCA.
SECTION 7. Quorum. At each meeting of the Board the presence of a majority of the number of directors fixed by these Bylaws shall be necessary to constitute a quorum. The act of a
majority of the directors present at a meeting at which a quorum shall be present shall be the act of the Board, except as may be otherwise required by the Articles or these Bylaws. Any meeting of the Board may be adjourned by a majority vote of
the directors present at such meeting or by the Chairman of the Board.
SECTION 8. Waivers of Notice of Meetings. Anything in these Bylaws or in any resolution adopted by the Board to the contrary notwithstanding, notice of any meeting of the Board need
not be given to any director if such notice shall be waived in writing signed by such director before, at or after the meeting, or if such director shall be present at the meeting. Any meeting of the Board shall be a legal meeting without any
notice having been given or regardless of the giving of any notice or the adoption of any resolution in reference thereto, if every member of the Board shall be present thereat. Except as otherwise provided by law or these Bylaws, waivers of notice
of any meeting of the Board need not contain any statement of the purpose of the meeting.
SECTION 9. Telephone Meetings. Members of the Board or any committee may participate in a meeting of the Board or such committee by means of a conference telephone or other means of
communications whereby all directors participating may simultaneously hear each other during the meeting, and participation by such means shall constitute presence in person at such meeting.
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SECTION 10. Actions Without Meetings. Any action that may be taken at a meeting of the Board or of a committee may be taken without a meeting if a consent in writing, setting forth the
action, shall be signed, either before or after such action, by all of the directors or all of the members of the committee, as the case may be. Such consent shall have the same force and effect as a unanimous vote.
SECTION 11. Chairman of the Board. A Chairman of the Board shall be elected by the Board and shall preside at all meetings of the Board and of the shareholders and, in the absence of the
Chairman of the Executive Committee, at all meetings of the Executive Committee. He or she shall perform such other duties and exercise such other powers as may from time to time be prescribed by the Board or, if he or she shall not be the Chief
Executive Officer, by the Chief Executive Officer.
ARTICLE III.1
INDEMNIFICATION AND LIMIT ON LIABILITY.
(a) Every person who is or was a director, officer or employee of the Corporation, or who, at the request of the Corporation, serves or has
served in any such capacity with another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise shall be indemnified by the Corporation against any and all liability and reasonable expense that may be incurred by
him or her in connection with or resulting from any claim, action or proceeding (whether brought in the right of the Corporation or any such other corporation, entity, plan or otherwise), civil or criminal, in which he or she may become involved, as
a party or otherwise, by reason of his or her being or having been a director, officer or employee of the Corporation, or such other corporation, entity or plan while serving at the request of the Corporation, whether or not he or she continues to be
such at the time such liability or expense shall have been incurred, unless such person engaged in willful misconduct or a knowing violation of the criminal law.
As used in this Article III: (i) the terms “liability” and “expense” shall include, but shall not be limited to, counsel fees and disbursements
and amounts of judgments, fines or penalties against, and amounts paid in settlement by, a director, officer or employee; (ii) the terms “director,” “officer” and “employee,” unless the context otherwise requires, include the estate or personal
representative of any such person; (iii) a person is considered to be serving an employee benefit plan as a director, officer or employee of the plan at the Corporation’s request if his or her duties to the Corporation also impose duties on, or
otherwise involve services by, him or her to the plan or, in connection with the plan, to participants in or beneficiaries of the plan; (iv) the term “occurrence” means any act or failure to act, actual or alleged, giving rise to a claim, action or
proceeding; and (v) service as a trustee or as a member of a management or similar committee of a partnership or joint venture shall be considered service as a director, officer or employee of the trust, partnership or joint venture.
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1 Compiler’s Note: This Article was adopted by the shareholders at the Annual Meeting of Shareholders, April 28, 1994.
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The termination of any claim, action or proceeding, civil or criminal, by judgment, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that a director, officer or employee did not meet the standards of conduct set forth in this paragraph (a). The burden of proof
shall be on the Corporation to establish, by a preponderance of the evidence, that the relevant standards of conduct set forth in this paragraph (a) have not been met.
(b) Any indemnification under paragraph (a) of this Article shall be made unless (i) the Board, acting by a majority vote of those directors who
were directors at the time of the occurrence giving rise to the claim, action or proceeding involved and who are not at the time parties to such claim, action or proceeding (provided there are at least five such directors), finds that the director,
officer or employee has not met the relevant standards of conduct set forth in such paragraph (a), or (ii) if there are not at least five such directors, the Corporation’s principal Virginia legal counsel, as last designated by the Board as such
prior to the time of the occurrence giving rise to the claim, action or proceeding involved, or in the event for any reason such Virginia counsel is unwilling to so serve, then Virginia legal counsel mutually acceptable to the Corporation and the
person seeking indemnification, deliver to the Corporation their written advice that, in their opinion, such standards have not been met.
(c) Expenses incurred with respect to any claim, action or proceeding of the character described in paragraph (a) shall, except as otherwise set
forth in this paragraph (c), be advanced by the Corporation prior to the final disposition thereof upon receipt of an undertaking by or on behalf of the recipient to repay such amount if it is ultimately determined that he or she is not entitled to
indemnification under this Article III. No security shall be required for such undertaking and such undertaking shall be accepted without reference to the recipient’s financial ability to make repayment. Notwithstanding the foregoing, the Corporation
may refrain from, or suspend, payment of expenses in advance if at any time before delivery of the final finding described in paragraph (b), the Board or Virginia legal counsel, as the case may be, acting in accordance with the procedures set forth
in paragraph (b), find by a preponderance of the evidence then available that the officer, director or employee has not met the relevant standards of conduct set forth in paragraph (a).
(d) No amendment or repeal of this Article III shall adversely affect or deny to any director, officer or employee the rights of indemnification
provided in this Article III with respect to any liability or expense arising out of a claim, action or proceeding based in whole or substantial part on an occurrence the inception of which takes place before or while this Article III, as adopted by
the shareholders of the Corporation at the 1986 Annual Meeting of the Corporation, is in effect. The provisions of this paragraph (d) shall apply to any such claim, action or proceeding whenever commenced, including any such claim, action or
proceeding commenced after any amendment or repeal to this Article III.
(e) The rights of indemnification provided in this Article III shall be in addition to any rights to which any such director, officer or employee may otherwise be
entitled by contraction or as a matter of law.
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(f) In any proceeding brought by or in the right of the Corporation or brought by or on behalf of shareholders of the Corporation, no director
or officer of the Corporation shall be liable to the Corporation or its shareholders for monetary damages with respect to any transaction, occurrence or course of conduct, whether prior or subsequent to the effective date of this Article lll, except
for liability resulting from such person’s having engaged in willful misconduct or a knowing violation of the criminal law or any federal or state securities law.
(g) An amendment to this Article III shall be approved only by a majority of the votes entitled to be cast by each voting group entitled to vote
thereon.
ARTICLE IV.
COMMITTEES.
SECTION 1. Executive Committee. The Board may, by resolution or resolutions adopted by a majority of the number of directors fixed by these Bylaws, appoint two or more directors to
constitute an Executive Committee, each member of which shall serve as such during the pleasure of the Board, and may designate for such Committee a Chairman, who shall continue as such during the pleasure of the Board.
All completed action by the Executive Committee shall be reported to the Board at its meeting next succeeding such action or at its meeting held
in the month following the taking of such action, and shall be subject to revision or alteration by the Board; provided, that no acts or rights of third parties shall be affected by any such revision or alteration.
The Executive Committee shall fix its own rules of procedure and shall meet where and as provided by such rules or by resolution of the Board.
At all meetings of the Executive Committee, a majority of the full number of members of such Committee shall constitute a quorum, and in every case the affirmative vote of a majority of members present at any meeting of the Executive Committee at
which a quorum is present shall be necessary for the adoption of any resolution.
During the intervals between the meetings of the Board, the Executive Committee shall possess and may exercise all the power and authority of
the Board (including, without limitation, all the power and authority of the Board in the management, control and direction of the financial affairs of the Corporation) except with respect to those matters reserved to the Board by the VSCA, in such
manner as the Executive Committee shall deem best for the interests of the Corporation, in all cases in which specific directions shall not have been given by the Board.
SECTION 2. Other Committees. To the extent permitted by the VSCA, the Board may from time to time by resolution adopted by a majority of the number of directors fixed by these Bylaws create
such other committees of directors as the Board shall deem advisable and with such limited authority, functions and duties as the Board shall by resolution prescribe. The Board shall have the power to change the members of any such committee
at any time, to fill vacancies, and to discharge any such committee, either with or without cause, at any time.
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ARTICLE V.
OFFICERS.
SECTION 1. Number, Term, Election. The officers of the Corporation shall be a Chief Executive Officer, a President, one or more Vice Presidents, a Treasurer, a Controller and a
Secretary. The Board may appoint such other officers and such assistant officers and agents with such powers and duties as the Board may find necessary or convenient to carry on the business of the Corporation. Such officers and assistant officers
shall serve until their successors shall be chosen, or as otherwise provided in these Bylaws. Any two or more offices may be held by the same person.
SECTION 2. Chief Executive Officer. The Chief Executive Officer shall, subject to the control of the Board and any Executive Committee, have full authority and responsibility for
directing the conduct of the business, affairs and operations of the Corporation. In addition to acting as Chief Executive Officer of the Corporation, he or she shall perform such other duties and exercise such other powers as may from time to time
be prescribed by the Board and shall see that all orders and resolutions of the Board and any Executive Committee are carried into effect. In the event of the inability of the Chief Executive Officer to act, the Board will designate an officer of
the Corporation to perform the duties of that office.
SECTION 3. President. The President shall have such powers and perform such duties as may from time to time be prescribed by the Board or, if he or she shall not be the Chief
Executive Officer, by the Chief Executive Officer.
SECTION 4. Vice Presidents. Each Vice President shall have such powers and perform such duties as may from time to time be prescribed by the Board, the Chief Executive Officer or any
officer to whom the Chief Executive Officer may have delegated such authority.
SECTION 5. Treasurer. The Treasurer shall have the general care and custody of the funds and securities of the Corporation. He or she shall perform such other duties and exercise such
other powers as may from time to time be prescribed by the Board, the Chief Executive Officer or any officer to whom the Chief Executive Officer may have delegated such authority. If the Board shall so determine, he or she shall give a bond for the
faithful performance of his or her duties, in such sum as the Board may determine to be proper, the expense of which shall be borne by the Corporation. To such extent as the Board shall deem proper, the duties of the Treasurer may be performed by
one or more assistants, to be appointed by the Board.
SECTION 6. Controller. The Controller shall be the principal accounting officer of the Corporation. He or she shall keep full and accurate accounts of all assets, liabilities,
receipts and disbursements and other transactions of the Corporation and cause regular audits of the books and records of the Corporation to be made. He or she shall also perform such other duties and exercise such other powers as may from time to
time be prescribed by the Board, the Chief Executive Officer or any officer to whom the Chief Executive Officer may have delegated such authority. If the Board shall so determine, he or she shall give a bond for the faithful performance of his or her
duties, in such sum as the Board may determine to be proper, the expense of which shall be borne by the Corporation. To such extent as the Board shall deem proper, the duties of the Controller may be performed by one or more assistants, to be
appointed by the Board.
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SECTION 7. Secretary. The Secretary shall keep the minutes of meetings of shareholders, of the Board, and, when requested, of Committees of the Board; and he or she shall attend to
the giving and serving of notices of all meetings thereof. He or she shall keep or cause to be kept such stock and other books, showing the names of the shareholders of the Corporation, and all other particulars regarding them, as may be required
by law. He or she shall also perform such other duties and exercise such other powers as may from time to time be prescribed by the Board, the Chief Executive Officer or any officer to whom the Chief Executive Officer may have delegated such
authority. To such extent as the Board shall deem proper, the duties of the Secretary may be performed by one or more assistants, to be appointed by the Board.
ARTICLE VI.
REMOVALS, RESIGNATIONS AND VACANCIES.
SECTION 1. Removal of Directors. Any director may be removed at any time but only with cause, by the affirmative vote of the holders of record of a majority of the shares of the
Corporation entitled to vote on the election of directors, taken at a special meeting of the shareholders, the purpose, or one of the purposes, of which (as stated in the meeting notice) is removal of the director.
SECTION 2. Removal of Officers. Any officer, assistant officer or agent of the Corporation may be removed at any time, either with or without cause, by the Board in its absolute
discretion. Any such removal shall be without prejudice to the recovery of damages for breach of the contract rights, if any, of the officer, assistant officer or agent removed. Election or appointment of an officer, assistant officer or agent
shall not of itself create contract rights.
SECTION 3. Resignation. Any director, officer or assistant officer of the Corporation may resign as such at any time by giving his or her written resignation to the Board, the Chief
Executive Officer or the Secretary of the Corporation. Such resignation shall take effect at the time or upon the occurrence of a future event specified therein or, if no time or such event is specified therein, at the time of delivery thereof,
and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
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SECTION 4. Vacancies. Any vacancy in the Board caused by death, resignation, disqualification, removal, an increase in the number of directors, or any other cause, may be filled (a)
by the holders of shares of the Corporation entitled to vote on the election of directors, but only at an annual meeting of shareholders, or (b) by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board
at any regular or special meeting thereof. Each director so elected by the Board shall hold office until the next annual election of directors, and each director so elected by the shareholders shall hold office for a term expiring at the annual
meeting of shareholders at which the term of the class to which he or she has been elected expires, and, in each case, until his or her successor shall be elected, or until his or her death, or until he or she shall resign, or until he or she shall
have been removed in the manner hereinabove provided. Any vacancy in the office of any officer or assistant officer caused by death, resignation, removal or any other cause, may be filled by the Board for the unexpired portion of the term.
ARTICLE VII.
CONTRACTS, LOANS, CHECKS, DRAFTS, DEPOSITS, ETC.
SECTION 1. Execution of Contracts. Except as otherwise provided by law or by these Bylaws, the Board (i) may authorize any officer, employee or agent of the Corporation to execute and
deliver any contract, agreement or other instrument in writing in the name and on behalf of the Corporation, and (ii) may authorize any officer, employee or agent of the Corporation so authorized by the Board to delegate such authority by written
instrument to other officers, employees or agents of the Corporation. Any such authorization by the Board may be general or specific and shall be subject to such limitations and restrictions as may be imposed by the Board. Any such delegation of
authority by an officer, employee or agent may be general or specific, may authorize re‑delegation, and shall be subject to such limitations and restrictions as may be imposed in the written instrument of
delegation by the person making such delegation.
SECTION 2. Loans. No loans shall be contracted on behalf of the Corporation and no negotiable paper shall be issued in its name unless authorized by the Board. When authorized by the
Board, any officer, employee or agent of the Corporation may effect loans and advances at any time for the Corporation from any bank, trust company or other institution, or from any firm, corporation or individual, and for such loans and advances
may make, execute and deliver promissory notes, bonds or other certificates or evidences of indebtedness of the Corporation and when so authorized may pledge, hypothecate or transfer any securities or other property of the Corporation as security
for any such loans or advances. Such authority may be general or confined to specific instances.
SECTION 3. Checks, Drafts, etc. All checks, drafts and other orders for the payment of money out of the funds of the Corporation and all notes or other evidences of indebtedness of
the Corporation shall be signed on behalf of the Corporation in such manner as shall from time to time be determined by the Board.
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SECTION 4. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other
depositories as the Board may select or as may be selected by the Treasurer or any other officer, employee or agent of the Corporation to whom such power may from time to time be delegated by the Board.
SECTION 5. Voting of Securities. Unless otherwise provided by the Board, the Chief Executive Officer may from time to time appoint an attorney or attorneys, or agent or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes which the Corporation may be entitled to cast as the holder of stock or other securities in any other corporation, any of whose stock or other securities may be held by
the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing, in the name of the Corporation as such holder, to any action by such other corporation, and may instruct the person or
persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal, or otherwise, all such written proxies or other
instruments as such officer may deem necessary or proper in the premises.
ARTICLE VIII.
CAPITAL STOCK.
SECTION 1. Certificates. Shares of the stock of the Corporation may be certificated or uncertificated, as provided under the VSCA. Each shareholder, upon written request to the
transfer agent of the Corporation, shall be entitled to a certificate for the stock of the Corporation in such form as may from time to time be approved by the Board, signed by the Chairman of the Board, the President or a Vice President and the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer or any other officer authorized by these Bylaws or a resolution of the Board. Any such certificate may, but need not, bear the seal of the Corporation or a facsimile
thereof. If any such certificate is countersigned by a transfer agent or registered by a registrar other than the Corporation or an employee of the Corporation, the signatures of any of the officers above specified upon such certificate may be
facsimiles. In case any such officer who shall have signed or whose facsimile signature shall have been placed upon such certificate shall have ceased to be such before such certificate is issued, it may be issued by the Corporation with the same
effect as if such officer had not ceased to be such at the date of its issue.
Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a
written notice setting forth: the name of the Corporation; that the Corporation is organized under the law of the Commonwealth of Virginia; the name of the shareholder; the number and class of shares (and the designation of the series, if any); and
any restrictions on the transfer or registration of transfer of such shares of stock imposed by the Articles, these Bylaws, any agreement among shareholders or any agreement between shareholders and the Corporation. Such notice shall either (i)
contain a summary of the designations, rights, preferences, and limitations applicable to each class or series within a class that the Corporation is authorized to issue and the variations in rights, preferences, and limitations determined for each
series (and the authority of the Board of Directors to determine variations for future series) or (ii) a statement that the Corporation will furnish the shareholder this information on request in writing and without charge.
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SECTION 2. Transfers. Uncertificated shares of stock of the Corporation shall be transferable upon proper instructions from the holder of such shares, and certificated shares of the
Corporation shall be transferable on the stock books of the Corporation by the holder in person or by his or her attorney thereunto authorized by power of attorney duly executed and filed with the Secretary or the transfer agent. Except as
hereinafter provided in the case of loss, destruction or mutilation of certificates, no transfer of certificated stock shall be entered until the previous certificate, if any, given for the same shall have been surrendered and canceled. Except as
otherwise provided by law, no transfer of shares shall be valid as against the Corporation, its shareholders or creditors, for any purpose, until it shall have been entered in the stock records of the Corporation by an entry showing from and to
whom transferred. The Board may also make such additional rules and regulations as it may deem expedient concerning the issue and transfer of certificates representing shares of the capital stock of the Corporation.
SECTION 3. Status as Shareholders. Except as may otherwise be required by the VSCA, by the Articles or by
these Bylaws, the Corporation shall be entitled to treat (i) each record holder of certificated shares, as shown on its books, and (ii) each registered owner of uncertificated shares, as the owner of such stock for all purposes, including the
payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such stock, until (i) any certificated shares have been transferred on the books of the Corporation in accordance with the
requirements of these Bylaws, or (ii) proper notice of such event as to any uncertificated shares has been given to the Corporation by the registered owner thereof. It shall be the duty of (i) each record holder of certificated shares and (ii) each
registered owner of uncertificated shares, in either case, to notify the Corporation of his or her post office address and any changes thereto.
SECTION 4. Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the Board may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than
seventy days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this
section, such determination shall apply to any adjournment thereof unless the Board fixes a new record date, which it shall do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting.
SECTION 5. Lost, Destroyed or Mutilated Certificates. In case of loss, destruction or mutilation of any certificate of stock upon proof of such loss, destruction or mutilation and
upon the giving of a bond of indemnity to the Corporation in such form and in such sum as the Board may direct; (or without requiring any bond when, in the judgment of the Board, it is proper so to do), the Corporation may issue a new certificate or
may issue uncertificated shares in place of the certificate previously issued by the Corporation.
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SECTION 6. Control Share Acquisitions. Article 14.1 of Chapter 9 of Title 13.1 of the Code of Virginia shall not apply to acquisitions of shares of the Corporation.
ARTICLE IX.
INSPECTION OF RECORDS.
The Board from time to time shall determine whether, to what extent, at what times and places, and under what conditions and regulations the
accounts and books and papers of the Corporation, or any of them, shall be open for the inspection of the shareholders, and no shareholder shall have any right to inspect any account or book or paper of the Corporation except as expressly conferred
by statute or by these Bylaws or authorized by the Board.
ARTICLE X.
AUDITOR.
The Board shall annually appoint an independent accountant who shall carefully examine the books of the Corporation. One such examination shall
be made immediately after the close of the fiscal year and be ready for presentation at the annual meeting of shareholders of the Corporation, and such other examinations shall be made as the Board may direct.
ARTICLE XI.
SEAL.
The seal of the Corporation shall be circular in form and shall bear the name of the Corporation and the year “1892.”
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ARTICLE XII.
FISCAL YEAR.
The fiscal year of the Corporation shall end on the 31st day of December in each year.
ARTICLE XIII.
AMENDMENTS.
The Bylaws of the Corporation may be altered, amended or repealed and new Bylaws may be adopted by the Board (except to the extent limited by
Section 1 of Article II and Article III(g)), or by the holders of the outstanding shares of the Corporation entitled to vote generally at any annual or special meeting of the shareholders when notice thereof shall have been given in the notice of the
meeting of shareholders.
ARTICLE XIV.
HEADINGS; USAGE.
The headings of Sections in these Bylaws are provided for convenience only and shall not affect their construction or interpretation. All
references to “Section” or “Sections” refer to the corresponding Sections or Sections of these Bylaws. All references to specific sections of the VSCA shall be deemed to refer to any successor provision of such statute or any successor statute, as
appropriate. All references in these Bylaws to gender or number shall be construed to mean such gender or number as is appropriate in the particular circumstances.
EMERGENCY BYLAWS.
SECTION 1. Definitions. As used in these Emergency Bylaws,
(a) the term “period of emergency” shall mean any period during which a quorum of the Board cannot readily be assembled because of some
catastrophic event.
(b) the term “incapacitated” shall mean that the individual to whom such term is applied shall not have been determined to be dead but shall be
missing or unable to discharge the responsibilities of his or her office; and
(c) the term “senior officer” shall mean the President, any corporate Vice President, the Treasurer, the Controller and the Secretary, and any
other person who may have been so designated by the Board before the emergency.
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SECTION 2. Applicability. These Emergency Bylaws, as from time to time amended, shall be operative only during any period of emergency. To the extent not inconsistent with these
Emergency Bylaws, all provisions of the regular Bylaws of the Corporation shall remain in effect during any period of emergency.
No officer, director or employee shall be liable for actions taken in good faith in accordance with these Emergency Bylaws.
SECTION 3. Board of Directors.
(a) A meeting of the Board may be called by any director or senior officer of the Corporation. Notice of any meeting of the Board need be given
only to such of the directors as it may be feasible to reach at the time and by such means as may be feasible at the time, including publication or radio, and at a time less than twenty‑four hours before the
meeting if deemed necessary by the person giving notice.
(b) At any meeting of the Board, three directors in attendance shall constitute a quorum. Any act of a majority of the directors present at a
meeting at which a quorum shall be present shall be the act of the Board. If less than three directors should be present at a meeting of the Board, any senior officer of the Corporation in attendance at such meeting shall serve as a director for such
meeting, selected in order of rank and within the same rank in order of seniority.
(c) In addition to the Board’s powers under the regular Bylaws of the Corporation to fill vacancies on the Board, the Board may elect any
individual as a director to replace any director who may be incapacitated and to serve until the latter ceases to be incapacitated or until the termination of the period of emergency, whichever first occurs. In considering officers of the Corporation
for election to the Board, the rank and seniority of individual officers shall not be pertinent.
(d) The Board, during as well as before any such emergency, may change the principal office or designate several alternative offices or
authorize the officers to do so.
SECTION 4. Appointment of Officers. In addition to the Board’s powers under the regular Bylaws of the Corporation with respect to the election of officers, the Board may elect any
individual as an officer to replace any officer who may be incapacitated and to serve until the latter ceases to be incapacitated.
SECTION 5. Amendments. These Emergency Bylaws shall be subject to repeal or change by further action of the Board of Directors or by action of the shareholders, except that no such
repeal or change shall modify the provisions of the second paragraph of Section 2 with regard to action or inaction prior to the time of such repeal or change. Any such amendment of these Emergency Bylaws may make any further or different provision
that may be practical and necessary for the circumstances of the emergency.
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Exhibit 10.1
COOPERATION AGREEMENT
February 29, 2020
Sachem Head Capital Management LP
250 West 55th St.
Floor 34
New York, New York 10019
Ladies and Gentlemen:
Olin Corporation (the “Company”), on the one hand, and Sachem Head Capital Management LP, on
behalf of the entities listed on Schedule A (Sachem Head Capital Management LP, together with such entities, “Sachem
Head”), on the other hand, have agreed to the terms contained in this Cooperation Agreement (this “Agreement”). This Agreement will take effect as of the date
hereof (the “Effective Date”). For purposes of this Agreement, we refer to each of the Company and Sachem Head as a “Party” and, collectively, as the “Parties.”
1. Company Board and Related Matters.
(a) Board Actions. As of the date of this Agreement, the Board of Directors of the Company (the “Board”) has taken the following actions:
(i) the Board has duly appointed Scott D. Ferguson (the “Sachem Head Director”) and William Barnes Hauptfuhrer (the Sachem Head Director, together with Mr. Hauptfuhrer, and collectively with any Successor Directors (as defined below), the “Newly
Appointed Directors”) to serve as directors of the Company (with the Sachem Head Director being appointed as a Class II director and Mr. Hauptfuhrer being
appointed as a Class I director), each of whom shall be subject to reelection at the Company’s next annual meeting of shareholders (including any adjournments or postponements thereof, the “2020 Annual Meeting”) in accordance with applicable law, effective as of the date and time this Agreement is fully executed and delivered;
(ii) the Board has resolved to nominate each
Newly Appointed Director for election to the Board at the 2020 Annual Meeting with a term expiring at, in the case of the Sachem Head Director, the Company’s 2023 annual meeting of shareholders (including any adjournments or postponements thereof),
and, in the case of Mr. Hauptfuhrer, the Company’s 2022 annual meeting of shareholders (including any adjournments or postponements thereof), in each case subject to Section 2;
and
(iii) the Board has determined that each Newly
Appointed Director is “independent” under the rules and regulations of the New York Stock Exchange (the “NYSE”), and the Company agrees to take such position with the NYSE
and other applicable regulatory authorities with respect to each Newly Appointed Director as long as such Newly Appointed Director continues to meet such requirements.
(b) Board Size. Prior to the 2020 Annual Meeting, the size of the Board will not be more than fourteen (14) directors. During the period between the 2020 Annual Meeting and the Company’s 2021 annual meeting of
shareholders (including any adjournments or postponements thereof, the “2021 Annual Meeting”), the size of the Board will be not more than thirteen (13) directors.
(c) 2020 Annual Meeting Nominees. The Company agrees that the slate of nominees recommended by the Board in the Company’s proxy statement and on its proxy card relating to the 2020 Annual Meeting shall include each
Newly Appointed Director, Beverley A. Babcock, Gray G. Benoist, John E. Fischer and Heidi S. Alderman, and no other nominees. The Company shall list each Newly Appointed Director in the proxy statement and proxy card prepared, filed and delivered
in connection with such meeting and recommend that the Company’s shareholders vote in favor of the election of each Newly Appointed Director and otherwise support each Newly Appointed Director in a manner no less rigorous and favorable than the
manner in which the Company supports any other nominees. Notwithstanding anything to the contrary in this Agreement, the Company shall not be obligated to comply with any of the requirements in this Section 1(c) if (i) Sachem Head, together with
its Affiliates, fails to have aggregate economic exposure to at least 3% of the shares of Common Stock outstanding at such time (provided, that for purposes of such calculation, the total outstanding shares of Common Stock as of the date of such
determination shall be deemed to be the lesser of (1) the aggregate number of shares of Common Stock outstanding as of the date hereof or (2) the aggregate number of shares of Common Stock outstanding as of the date of such determination (in each
case, as equitably adjusted for any combinations, splits, recapitalizations or similar actions)) or (ii) there has been a judicial determination that Sachem Head has materially breached any of the terms of this Agreement and fails to cure any such
breach within fifteen (15) business days of receipt of written notice from the Company of such determination (each of clauses (i) and (ii), a “Triggering Event”). Prior
to the Expiration Date, Sachem Head agrees to promptly notify the Company in writing in the event that, at any time, it, together with its Affiliates, do not satisfy the threshold set forth in subclause (i) of this Section 1(c).
(d) Future Annual Meetings. The Company shall, no later than the Expiration Date, inform Sachem Head whether it intends to nominate any Newly Appointed Director for election as a director at the 2021 Annual Meeting;
provided that, if the Company informs Sachem Head that it intends to nominate a Newly Appointed Director for election as a director at the 2021 Annual Meeting, the Company shall list each Newly Appointed Director in the proxy statement and proxy
card prepared, filed and delivered in connection with such meeting and recommend that the Company’s shareholders vote in favor of the election of each Newly Appointed Director and otherwise support each Newly Appointed Director in a manner no less
rigorous and favorable than the manner in which the Company supports any other nominees. Notwithstanding anything to the contrary in this Agreement, the Company shall have no obligation to nominate any Newly Appointed Director for election at any
annual or special meeting of shareholders of the Company or otherwise, other than at the 2020 Annual Meeting, and in such case, only on the terms and subject to the conditions of this Agreement.
(e) Company Policies. Except as set forth in Section 3, Sachem Head acknowledges that the policies, procedures, processes, codes, rules,
standards and guidelines applicable to other directors of the Company, including the Amended and Restated Principles of Corporate Governance and Code of Conduct (as may be amended from time to time, collectively, the “Company Policies”), will be applicable to each Newly Appointed Director as well during such directors’ term of service. The Company represents and warrants that all Company Policies currently in
effect are publicly available on the Company’s website or have been provided to Sachem Head or its counsel.
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(f) Non-Interference. The Company will not alter its Amended and Restated Articles of Incorporation (the “Articles of Incorporation”) or
Bylaws or alter or adopt any Company Policies which would in any manner interfere with the ability of any Newly Appointed Director to remain on the Board or participate in Board matters, including that which would result in a shortening of any
Newly Appointed Director’s tenure on the Board. The Board will not utilize committees of the Board (including the “executive” or similar committee) for the purpose of discriminating against a Newly Appointed Director.
(g) Review of Proxy Materials. The Company agrees that Sachem Head will have the opportunity to review the Company’s proxy statement and proxy card and any additional solicitation materials relating to the 2020
Annual Meeting in advance of filing or first use and that the Company will consider in good faith any comments provided by Sachem Head.
(h) Operating Improvements Committee. Effective as of the date hereof, the Company has formed an Operating Improvements Committee of the Board (the “Operations
Committee”). As of the date of this Agreement, the Company has taken all action necessary to ensure that (i) the Operations Committee shall be comprised of four (4) members, consisting of two (2) independent directors selected by the
Board and each Newly Appointed Director, who shall become members of the Operations Committee upon joining the Board and (ii) Scott Sutton shall be appointed as the Chair of the Operations Committee. The Company has provided a copy of the Charter
of the Operations Committee to Sachem Head or its counsel, and the Company shall not, until the earlier of the 2021 Annual Meeting and the occurrence of a Triggering Event, (i) remove any Newly Appointed Director from the Operations Committee
(unless he ceases to be an independent director), (ii) amend the Charter of the Operations Committee or (iii) disband the Operations Committee, in each case, without the prior written consent of Sachem Head.
(i) Committees. As of the Effective Date, the Board has duly appointed Mr. Hauptfuhrer to serve on the Directors and Corporate Governance Committee of the Board (the “Governance Committee”). Mr. Hauptfuhrer or any Successor Director that replaces Mr. Hauptfuhrer on the Board shall continue to serve on the Governance Committee for so long as he or she is serving as a member of the
Board as an independent director and otherwise continues to satisfy the eligibility requirements of such committee that are in place as of the execution of this Agreement, unless otherwise agreed by Sachem Head in writing. As of the Effective
Date, the Board has duly appointed the Sachem Head Director to serve on the Compensation Committee of the Board (the “Compensation Committee” and, together with the
Governance Committee, the “Committees”). The Sachem Head Director or any Successor Director that replaces the Sachem Head Director on the Board shall continue to serve on
the Compensation Committee for so long as he or she is serving as a member of the Board as an independent director and otherwise continues to satisfy the eligibility requirements of such committee that are in place as of the execution of this
Agreement, unless otherwise agreed by Sachem Head in writing. Each Newly Appointed Director will have access to all Board committee materials and shall be entitled to notice of, and to attend and participate in, any and all Board committee
meetings. The Company shall not form any new committee of the Board unless each Newly Appointed Director is a member of such committee or each Newly Appointed Director approves the formation of such committee.
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(j) Resignation. Upon the occurrence of a Triggering Event, Sachem Head will cause the Sachem Head Director to promptly resign from the Board and any committee of the Board on which he sits.
(k) Successor Directors.
(i) If any Newly Appointed Director ceases to
serve as a member of the Board, Sachem Head shall (unless (i) a Triggering Event shall have occurred or (ii) such Newly Appointed Director ceases to serve as a member of the Board as a result of such Newly Appointed Director’s resignation and such
Newly Appointed Director furnishes the Company with any written correspondence or other materials in connection therewith or otherwise effects such resignation in a manner such that the Company would be required to file a Form 8-K relating to a
disagreement concerning such resignation) be entitled to select another individual to be appointed to the Board (a “Successor Director”); provided that if Mr. Hauptfuhrer or any Successor Director that replaces Mr. Hauptfuhrer on the Board ceases to serve on the Board, Sachem Head may not select any director, officer,
partner or employee of Sachem Head as such Successor Director. Sachem Head shall provide written notice of such Successor Director to the Company, which notice shall set forth the name of the person who Sachem Head has chosen to replace the Newly
Appointed Director. Following receipt of such notice, the Company shall take all necessary actions to promptly, and in any event within two (2) days, appoint such Successor Director to the Board and the applicable Committee. All references to “Sachem Head Director” or “Newly Appointed Director,” for purposes of this Agreement, shall be
deemed references to the Successor Director that replaced the applicable Sachem Head Director or Newly Appointed Director in the event that a Successor Director is appointed.
(ii) Notwithstanding the foregoing, the Board
shall not be required to appoint any person as a Successor Director if the Board determines that the Successor Director is not reasonably acceptable (which determination shall be made in good faith and within five (5) business days of the date on
which Sachem Head identifies the proposed Successor Director to the Company). If a Successor Director proposed by Sachem Head is rejected for the foregoing reason, Sachem Head shall be entitled to continue proposing successive replacements to the
Board and any such replacement shall be promptly appointed to the Board (subject to the Board’s right to reject such Successor Director pursuant to this subparagraph (ii)). The onboarding of the Successor Director will be through a reasonable and
customary process no more onerous, burdensome or time consuming than the process for onboarding any other director to the Board, and there will be no procedure, policy or other obstacle implemented with the intent or effect of prejudicing a
Successor Director’s ability to timely join the Board. The Company shall exercise reasonable best efforts, in cooperation with Sachem Head, to ensure that the Successor Director is found independent by the relevant regulatory entities so long as
the Successor Director satisfies such independence requirements.
(l) Shareholder Meetings.
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(i) Withdrawal of Nominees Sachem Head, on behalf of itself and its Affiliates (as defined in Rule 12b-2 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), hereby irrevocably withdraws the shareholder proposal and
nomination of candidates to be presented at the 2020 Annual Meeting previously submitted to the Company by Sachem Head LP.
(ii) Meetings. Until the Expiration Date, Sachem Head shall, or shall cause its Affiliates, Associates (each as defined in Rule 12b-2 promulgated by the SEC under the Exchange Act) or representatives to,
appear in person or by proxy at the 2020 Annual Meeting and vote all shares of common stock of the Company, par value $1 per share (“Common Stock”), over which Sachem
Head, its Affiliates or Associates has voting power in accordance with the Board’s recommendations with respect to (A) the removal or election of directors, (B) any advisory vote on executive compensation, (C) any proposal to amend the Articles of
Incorporation to provide for the declassification of the Board in accordance with Section 2, (D) the ratification of the appointment of KPMG LLP as the Company’s
independent registered public accounting firm for the year ending December 31, 2020 and (E) the shareholder proposal to be presented at the 2020 Annual Meeting, a copy of which shareholder proposal has been provided to Sachem Head.
(iii) Interim Special Meetings. From the Effective Date and continuing until the Expiration Date, the Company shall not call or hold any interim special meeting of shareholders for the purposes of
electing, removing and/or replacing directors, except as may be required pursuant to Section 10 of Article I of the Company’s Bylaws.
2. Declassification of the Board.
(a) At the 2020 Annual Meeting, the Company
shall (i) propose an amendment to the Articles of Incorporation to declassify the Board and provide for the annual election of directors, in a manner such that the term of each member of the Board (including the Newly Appointed Directors) shall
expire at the 2021 Annual Meeting and any director elected or appointed to the Board at or after the 2021 Annual Meeting shall be elected on an annual basis (the “Declassification
Proposal”), (ii) recommend that the Company’s shareholders vote in favor of such amendment and (iii) cause all shares of Common Stock represented by proxies granted to it (or any of its officers, directors or representatives) to be
voted in favor of such amendment. Following approval of the Declassification Proposal by the Company’s shareholders, the Company shall take all action necessary to effectuate the declassification of the Board in accordance therewith, including
filing an Articles of Amendment to the Articles of Incorporation with the Virginia State Corporation Commission.
(b) Within 10 days after the Effective Date,
the Company shall cause each director of the Company (other than the Newly Appointed Directors and directors whose term does not extend beyond the 2021 Annual Meeting) to, and Sachem Head shall cause each Newly Appointed Director to, deliver an
irrevocable resignation letter to the Company in the form agreed by the Parties prior to execution of this Agreement.
3. Company Policies.
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(a) Company Information. None of the confidentiality provisions contained in the Company Policies or any other provision contained in any other document, agreement or policy of the Company or its subsidiaries shall
be deemed to restrict the Sachem Head Director from sharing any “confidential information” provided by the Company or any of its subsidiaries to the Sachem Head Director in connection with his or her service as a director (such information and any
notes, analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof containing or based upon such information, in whole or in part, “Company
Information”) with any of Sachem Head’s employees or legal advisors who need to know such Company Information for the purpose of assisting Sachem Head in connection with its investment in the Company, and the Sachem Head Director is
expressly permitted to share Company Information with such employees and legal advisors in accordance with this Section 3; provided, that, such employees and legal advisors shall maintain the confidentiality of Company Information to the same
extent as required of the Sachem Head Director as a director of the Company; provided, further, that if such employees and legal advisors fail to so maintain the confidentiality of Company Information, Sachem Head shall be responsible for any such
non-compliance. The provisions of this Section 3(a) shall survive until the date that is six months following the date on which the Sachem Head Director ceases to serve as a member of the Board.
(b) Policies Applicable to Sachem Head. The restrictions contained in the Company Policies applicable to the Sachem Head Director (in his capacity as such), including any restrictions on pledging or making purchases
on margin of, or entering into derivative or hedging arrangements (including options) with respect to, securities of the Company, or otherwise trading the Company’s securities during open window periods shall not be deemed to apply to Sachem Head
(or any of their affiliated funds). It is understood and agreed that Sachem Head (or any of their affiliated funds) shall be free to trade in the Company’s securities during open trading window periods without the prior approval of the Company, and
shall only be prohibited from trading during blackout periods established by the Company and generally applicable to all of the Company’s directors and senior insiders.
4. Standstill Restrictions. From the Effective Date and continuing until the earlier of (i) December 31, 2020 and (ii) the date that is sixty (60) days prior to the last date pursuant to which shareholder nominations for
director elections are permitted pursuant to the Company’s bylaws with respect to the 2021 Annual Meeting (such earlier date, the “Expiration Date”), Sachem Head will not,
and will cause its controlling and controlled Affiliates not to, directly or indirectly:
(a) publicly solicit proxies or written
consents of shareholders with respect to, or from the holders of, any shares of Common Stock or any other securities of the Company entitled to vote in the election of directors, or securities convertible into, or exercisable or exchangeable for,
such shares or other securities, whether or not subject to the passage of time or other contingencies (collectively, “Voting Securities”), or publicly make, or in any way
publicly participate in (other than by voting its shares of Voting Securities in a way that does not violate this Agreement), any solicitation of any proxy, consent or other authority to vote any Voting Securities with respect to the election of
directors or any other matter, otherwise publicly conduct any nonbinding referendum with respect to the Company, or publicly seek to advise or encourage any person in, any proxy contest or any solicitation with respect to the Company not approved
and recommended by the Board, including relating to the removal or the election of directors, other than solicitations or actions as a participant in support of all of the Company’s nominees;
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(b) form, join or in any other way participate
in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any Voting Securities, or deposit any Voting Securities in a voting trust or subject any Voting Securities
to any voting agreement or other arrangement of similar effect, other than, in each case, solely with other members of Sachem Head;
(c) publicly seek to call, or request the call
of, a special meeting of the shareholders of the Company or publicly seek to make, or make, a shareholder proposal (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise) at any meeting of the shareholders of the Company;
(d) (i) except as expressly permitted by this
Agreement, seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board or (ii) seek, alone or in concert
with others, the removal of any member of the Board;
(e) institute any litigation against the
Company, its directors or its officers, each in their capacity as such, make any “books and records” demands against the Company or make application or demand to a court or other person for an inspection, investigation or examination of the Company
or its subsidiaries or Affiliates (whether pursuant to Article 18 of the Virginia Stock Corporation Act or otherwise); provided that nothing in this Section 4(e) shall
prevent Sachem Head from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against Sachem Head, (C) exercising statutory appraisal
rights, or (D) making any claim as a shareholder in connection with any class action proceeding brought by a named plaintiff other than Sachem Head, so long as such plaintiff has not been advised, assisted, encouraged or persuaded by Sachem Head
with respect to such class action proceeding;
(f) enter into or maintain any economic,
compensatory or pecuniary arrangements with any director or nominee for director of the Company, other than the Sachem Head Director;
(g) make any request or submit any proposal to
amend or waive any of the terms of this Agreement, in each case which would reasonably be expected to result in a public announcement or public disclosure of such request or proposal or give rise to a requirement to so publicly announce or disclose
such request or proposal;
(h) sell or agree to sell, directly or
indirectly, through swap or hedging transactions or otherwise, any shares of Common Stock or any derivatives relating to Common Stock to any third party that, to the knowledge of Sachem Head, either (i) has filed a Schedule 13D with respect to the
Company or (ii) has run (or publicly announced an intention to run) a proxy contest or consent solicitation with respect to another company in the past three years (but, in the case of this clause (ii), only if Sachem Head knows, after reasonable
inquiry, that the third party has, or will as a result of the transaction have, beneficial ownership of, or aggregate economic exposure to, more than 5% of the shares of Common Stock outstanding at such time); provided that nothing herein shall
restrict or limit Sachem Head’s ability to sell any shares of Common Stock or any derivatives relating to Common Stock in an open market transaction;
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(i) make any public proposal, announcement,
statement or request regarding: (A) controlling, changing or influencing the Board or management of the Company, including proposals to change the number or term of directors or to fill any vacancies on the Board, (B) any Extraordinary Transaction
or exploration thereof (it being understood that this clause 5(i)(B) shall not restrict Sachem Head from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other shareholders of
the Company, or from participating in any such transaction that has been approved by the Board) or (C) any other material change in the Company’s or any of its subsidiaries’ operations, business, corporate strategy, corporate structure, capital
structure or allocation, or share repurchase or dividend policies; provided, for the avoidance of doubt, that Sachem Head and its Affiliates shall be entitled to engage in private discussions with respect to such matters with limited partners or
shareholders of Sachem Head or its Affiliates;
(j) engage in any short sale or any purchase,
sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right (including any put or call option or “swap” transaction) with respect to any security (other than in connection with a broad-based market
basket or index) that relates to or derives any part of its value from any decline in the market price or value of any securities of the Company, and would result in Sachem Head (together with its affiliates) failing to have an aggregate net long
position (as defined in Rule 14e-4 under the Exchange Act) in the Company; or
(k) enter into any agreements or undertakings
with any person with respect to the foregoing.
The restrictions set forth in this Section 4 shall not apply to any
Newly Appointed Director, acting in his capacity as such, in private discussions with the Board or members of Company management. The Company shall notify Sachem Head in writing upon the occurrence of the Expiration Date.
As used herein “Extraordinary Transaction” means any merger, acquisition,
amalgamation, tender offer, exchange offer, recapitalization, restructuring, disposition, distribution, spin-off, asset sale, joint venture or other business combination involving the Company or any of its subsidiaries.
5. Press Release; Form 8-K; Publicity. The Parties agree that promptly following the execution and delivery of this Agreement by the Parties, (A) the Company will issue the press release attached to this Agreement as Exhibit A (the “Press Release”) and file a Current Report on Form 8-K in the form previously
agreed by the Parties and (B) Sachem Head will file a Schedule 13D in the form previously agreed by the Parties. Prior to the Expiration Date, the Company, on the one hand, and Sachem Head, on the other hand, shall each refrain from making, and
shall cause their respective Affiliates and Associates and its and their respective principals, directors, members, general partners, officers, employees, agents and representatives (collectively, “Representatives”) not to make, any public statement that constitutes an ad hominem attack on, or that otherwise disparages, impugns or is reasonably likely to damage the reputation of, (i) in the case of statements by
Sachem Head or any of its Representatives, the Company or any of its Affiliates or any of its or their respective officers, directors or employees or any person who has served in any of the foregoing capacities, or (ii) in the case of statements by
the Company or any of its Representatives, Sachem Head or any of its Affiliates or any of its or their respective partners (other than partners that are solely limited partners), members, officers, directors or employees or any person who has
served in the foregoing capacity. The foregoing sentence shall not restrict the ability of any Party to (1) comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction
over the Party from whom information is sought or (2) make private statements to directors of the Board, employees of the Company, Sachem Head or employees of Sachem Head in a manner in which public dissemination of such statements would not be
reasonably anticipated.
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6. Representations of the Company. The Company represents and warrants to Sachem Head that (a) the Company has the corporate power and authority to execute and deliver this Agreement and to bind it hereto, (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 (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally and to general principles of equity, regardless of whether considered in a proceeding in equity or at law) 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 the Company, 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 constitute such a breach, violation or 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, agreement, contract, commitment, understanding or arrangement to which the Company is a party or by which it is bound.
7. Representations of Sachem Head. Sachem Head represents and warrants to the Company that (a) Sachem Head has the power and authority to execute and deliver this Agreement and to bind itself and its affiliates to this
Agreement (and Sachem Head Capital Management LP has the power and authority to execute and deliver this Agreement and to bind itself and the entities listed on Schedule A
to this Agreement), (b) this Agreement has been duly authorized, executed and delivered by Sachem Head, constitutes a valid and binding obligation of Sachem Head, and is enforceable against Sachem Head in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally and to general principles of equity, regardless of whether considered in a proceeding in equity or at
law), (c) the execution of this Agreement by Sachem Head does not and will not violate or conflict with (i) any law, rule, regulation, order, judgment or decree applicable to Sachem Head, 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 constitute such a breach, violation or 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, agreement, contract, commitment, understanding or arrangement to which Sachem Head is a party or by which it is bound, (d) Sachem Head, together with its Affiliates, beneficially owns (as defined in
Rule 13d-3 promulgated by the SEC under the Exchange Act) in the aggregate 14,950,000 shares of Common Stock; (e) except as disclosed on Exhibit B, Sachem Head is not a
party to any swap or hedging transactions or other derivative agreements of any nature with respect to any Voting Securities; and (f) Scott Ferguson is a U.S. person and Scott Ferguson (or Scott Ferguson, together with only other U.S. persons)
controls Sachem Head.
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8. Term. Unless otherwise mutually agreed in writing by each Party and except as otherwise provided in this Agreement, each Party’s obligations under this Agreement will extend until the completion of the 2021 Annual Meeting;
provided that no expiration or termination of this Agreement will relieve any Party hereto from any liability for a breach of this Agreement prior to such expiration or termination. Notwithstanding the foregoing, Section 12 through Section 17 shall survive the termination of this Agreement.
9. Fiduciary Duties; Rights of Newly Appointed Directors.
(a) Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary, nothing contained herein shall require any director to violate his or her fiduciary duties.
(b) Newly Appointed Director Benefits. The Company agrees that the Newly Appointed Directors shall receive (i) the same benefits of director and officer insurance, and any indemnity and exculpation arrangements
available generally to the directors of the Board and (ii) such other benefits on the same basis as all other non-management directors on the Board, including, unless otherwise requested by such Newly Appointed Director, having the Company (or
legal counsel) prepare and file with the SEC, at the Company’s expense, any Form 3, Form 4 and Form 5 under Section 16 of the Exchange Act that are required to be filed by each director of the Company.
10. Expenses. No later than two (2) business days following the execution of this Agreement, the Company shall reimburse Sachem Head for all documented out-of-pocket costs, fees and expenses (including attorney’s fees and
other legal expenses and expenses related to the engagement of other advisors and consultants) incurred by Sachem Head, and as to which Sachem Head has provided the Company documentary evidence, prior to the Effective Date in connection with,
relating to or resulting from its efforts and actions, and any preparations therefor, prior to the execution and delivery of this Agreement, to consider means by which the Company could improve its performance and increase shareholder value,
including, without limitation, its communications with the Board and the Company’s management, its preparation and delivery of a nomination notice pursuant to the Company’s Bylaws and the negotiation and execution of this Agreement.
11. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be considered one and the same agreement and will become effective when counterparts have been signed by each of the Parties and
delivered to the other Party (including by means of electronic delivery or facsimile).
12. Specific Performance. Each Party acknowledges and agrees that irreparable injury to the other Party would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific
terms or were otherwise breached and that money damages may not be an adequate remedy for such a breach. It is accordingly agreed that each Party may be entitled to seek specific enforcement of, and injunctive relief to prevent any violation of,
the terms hereof. Each Party agrees to waive any bonding requirement under any applicable law in the case any other Party seeks to enforce the terms by way of equitable relief.
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13. APPLICABLE LAW AND JURISDICTION. THIS COOPERATION AGREEMENT WILL BE GOVERNED BY, AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CONFLICTS OF LAWS PRINCIPLES. EACH OF THE PARTIES
IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING TO ENFORCE THIS COOPERATION AGREEMENT WILL BE BROUGHT EXCLUSIVELY IN ANY STATE COURT THEREFROM WITHIN THE STATE OF NEW YORK (OR, ANY FEDERAL COURT WITHIN THE STATE OF NEW YORK). EACH OF THE
PARTIES IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING. EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY WAIVES ANY ARGUMENT THAT SUCH COURTS ARE AN
INCONVENIENT OR IMPROPER FORUM. EACH PARTY CONSENTS TO SERVICE OF PROCESS BY A REPUTABLE OVERNIGHT DELIVERY SERVICE, SIGNATURE REQUESTED, TO THE ADDRESS OF SUCH PARTY’S PRINCIPAL PLACE OF BUSINESS OR AS OTHERWISE PROVIDED BY APPLICABLE LAW.
14. Notice. All notices, consents, requests, instructions, approvals and other communications provided for in this Agreement and all legal process in regard hereto shall be in writing and shall be deemed validly given, made or
served, (a) if given by email, when such email is transmitted to the email address set forth below or (b) if given by any other means, when actually received during normal business hours at the address specified in this Section:
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If to the Company: | |
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Olin Corporation | |
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190 Carondelet Plaza, Suite 1530 | |
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Clayton, MO 63105 | |
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Attention: Eric A. Blanchard, Vice President, General Counsel and Secretary | |
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Email: EABlanchard@olin.com | |
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With a copy to (which shall not constitute notice): | |
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Cravath, Swaine & Moore LLP | |
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Worldwide Plaza | |
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825 Eighth Avenue | |
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New York, NY 10019 | |
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Attention: | Robert I. Townsend, III |
| George F. Schoen | ||
| Andrew C. Elken | ||
| Email: | RTownsend@cravath.com | |
| GSchoen@cravath.com | ||
| AElken@cravath.com | ||
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If to Sachem Head: | |
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Sachem Head LP | |
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c/o Sachem Head Capital Management LP | |
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250 West 55th St. | |
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Floor 34 | |
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New York, New York 10019 | |
| Attention: | Michael D. Adamski, General Counsel | |
| Email: | Michael@sachemhead.com | |
| With a copy to (which shall not constitute notice): | ||
| Cadwalader, Wickersham & Taft LLP | ||
| 200 Liberty St. | ||
| New York, New York 10281 | ||
| Attention: | Richard Brand | |
| Joshua Apfelroth | ||
| Email: | richard.brand@cwt.com | |
| joshua.apfelroth@cwt.com | ||
15. Entire Agreement; Amendment.
This Agreement, including exhibits and schedules attached to this Agreement, contains the entire understanding of the Parties with respect to the subject matter hereof. This Agreement may be amended only by an agreement in writing executed by the
Parties, and no waiver of compliance with any provision or condition of this Agreement and no consent provided for in this Agreement shall be effective unless evidenced by a written instrument executed by the Party against whom such waiver or
consent is to be effective. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any right, power or privilege hereunder.
16. Severability. If at any time subsequent to the date of this Agreement, any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no
force and effect, but the illegality or unenforceability of such provision shall have no effect upon the legality or enforceability of any other provision of this Agreement.
17. No Third Party Beneficiaries; Assignment. This Agreement is solely for the benefit of the Parties and is not binding upon or enforceable by any other persons. No Party may assign its rights or delegate its obligations under
this Agreement, whether by operation of law or otherwise, and any assignment in contravention hereof shall be null and void. Nothing in this Agreement, whether express or implied, is intended to or shall confer any rights, benefits or remedies
under or by reason of this Agreement on any persons other than the Parties, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any Party.
[Signature Page Follows]
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If the terms of this Agreement are in accordance with your understanding, please sign below and this Agreement will constitute a binding agreement
among us.
| OLIN CORPORATION | ||||
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By:
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/s/ John E. Fischer | ||
| Name: | John E. Fischer | |||
| Title: | Chairman, President & CEO | |||
[Signature Page to Agreement]
Acknowledged and agreed to as of the date first written above:
SACHEM HEAD CAPITAL MANAGEMENT LP
By: Uncas GP LLC, its general partner
| By: |
/s/ Scott Ferguson
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| Name: Scott Ferguson | |
| Title: Managing Partner |
[Signature Page to Agreement]
Schedule A
List of Sachem Head Entities
Sachem Head Capital Management LP
Uncas GP LLC
Sachem Head GP LLC
Sachem Head Master LP
Sachem Head LP
SH Old Quarry Master Ltd.
EXHIBIT A
Press Release
Olin Corporation Appoints Scott Ferguson and W. Barnes Hauptfuhrer to Board of Directors
Sachem Head Commits to Support Company’s Directors at 2020 Annual Meeting of Shareholders
CLAYTON, Mo., March 2, 2020 – Olin Corporation (NYSE: OLN) (“Olin” or the “Company”) today announced the appointment of Scott Ferguson and W. Barnes Hauptfuhrer to its
Board of Directors (the “Board”), effective immediately. With these appointments, the Olin Board will be comprised of 14 directors, 13 of whom are independent, and six of whom will stand for re-election at the Company’s upcoming 2020 Annual
Meeting of Shareholders. In conjunction with these appointments, Olin has entered into an agreement with Sachem Head Capital Management LP (“Sachem Head”), which owns approximately 9.5% of the outstanding shares of the Company’s common stock.
“We are pleased to have Scott and Barnes join our Board as independent directors,” said John E. Fischer, Chairman, President and Chief Executive Officer of Olin. “As we continue to take actions to enhance our
capital structure, accelerate our cost discipline and efficiency efforts, and drive long-term value for all shareholders, we are confident that their expertise will be additive to the Board’s ongoing efforts.”
“We appreciate the constructive and open dialogue we have had with Olin’s Board and leadership team and look forward to continue working closely with them,” said Scott Ferguson, founder and managing partner of
Sachem Head.
Under the terms of the agreement, Mr. Hauptfuhrer will serve as a member of the Directors and Corporate Governance Committee of the Board, Mr. Ferguson will serve as a member of the Compensation Committee of the
Board and both will serve on a newly formed Operating Improvement Committee, which will analyze and make recommendations to the Board regarding operational improvements and support and inform the Board’s review of Olin’s strategy. Mr. Scott
Sutton and Mr. John M. B. O’Connor, both independent directors of the Board, will also serve on this committee, with Mr. Sutton acting as chair. Olin has also agreed to propose, at its 2020 annual meeting of shareholders, an amendment to its
Amended and Restated Articles of Incorporation to declassify the Board and provide for the annual election of all directors starting at the 2021 annual meeting of shareholders. Sachem Head has also agreed to customary voting and standstill
provisions. The complete agreement between Olin and Sachem Head will be filed on a Form 8-K with the U.S. Securities and Exchange Commission.
About Scott Ferguson
Scott is the founder and managing partner of Sachem Head Capital Management, a value-oriented investment management firm based in New York which he started in 2012. Prior to starting Sachem Head, he spent nine
years at Pershing Square Capital Management, which he joined pre-launch as the firm’s first investment professional. Prior to Pershing Square, Scott earned an M.B.A. from Harvard Business School in 2003 and was a vice president at American
Industrial Partners, an operations focused private equity firm, from 1999 to 2001. Scott was also a business analyst at McKinsey & Company from 1996 to 1999. Scott graduated from Stanford University with an A.B. in Public Policy in 1996.
He currently serves on the board of directors of the Henry Street Settlement and is also a member of the Robin Hood Leadership Council. He is a former director of Autodesk, a leading design & engineering software company.
About W. Barnes Hauptfuhrer
W. Barnes Hauptfuhrer most recently served as Chief Executive Officer of Chapter IV Investors, LLC, an investment firm he founded in February 2006. Prior to this, Mr. Hauptfuhrer served as Co-Head of the
Corporate & Investment Banking Division of Wachovia Corporation (formerly, First Union Corporation). Earlier in his career, he also served as Senior Executive Vice President of Wachovia and prior to the merger of Wachovia and First Union,
Mr. Hauptfuhrer served in roles of increasing responsibility at First Union, including Co-Head of the Corporate & Investment Banking Division, Co-Head of Investment Banking, and Managing Partner of First Union Capital Partners, a private
equity investment group within First Union, which he founded. Previously, Mr. Hauptfuhrer served as Managing Director and investment banker at Kidder Peabody. Mr. Hauptfuhrer currently serves as a director of National Gypsum Company. He
previously served as a director of Buckeye Pipeline LLC from September 2006 to March 2008, and of Wolverine Tube, Inc. from May 1998 to October 2005.
Mr. Hauptfuhrer earned a bachelor’s degree from Princeton University and a juris doctorate degree and master’s degree in business administration from the University of Virginia. He is a director of the
Foundation for the Carolinas.
FORWARD-LOOKING STATEMENTS
This communication includes forward-looking statements. These statements relate to analyses and other information that are based on management’s beliefs, certain assumptions made by management, forecasts of
future results, and current expectations, estimates and projections about the markets and economy in which we and our various segments operate. The statements contained in this communication that are not statements of historical fact may
include forward-looking statements that involve a number of risks and uncertainties.
We have used the words “anticipate,” “intend,” “may,” “expect,” “believe,” “should,” “plan,” “project,” “estimate,” “forecast,” “optimistic,” and variations of such words and similar expressions in this
communication to identify such forward-looking statements. These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions, which are difficult to predict and many of which are beyond our
control. Therefore, actual outcomes and results may differ materially from those matters expressed or implied in such forward-looking statements. We undertake no obligation to update publicly any forward-looking statements, whether as a
result of future events, new information or otherwise. The payment of cash dividends is subject to the discretion of our board of directors and will be determined in light of then-current conditions, including our earnings, our operations,
our financial conditions, our capital requirements and other factors deemed relevant by our board of directors. In the future, our board of directors may change our dividend policy, including the frequency or amount of any dividend, in light
of then-existing conditions.
The risks, uncertainties and assumptions involved in our forward-looking statements, many of which are discussed in more detail in our filings with the SEC, including without limitation the “Risk Factors”
section of our Annual Report on Form 10-K for the year ended December 31, 2019, include, but are not limited to, the following:
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sensitivity to economic, business and market conditions in the United States and overseas, including economic instability or a downturn in the sectors served by us, such as vinyls, urethanes, and
pulp and paper;
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the cyclical nature of our operating results, particularly declines in average selling prices in the chlor alkali industry and the supply/demand balance for our products, including the impact of
excess industry capacity or an imbalance in demand for our chlor alkali products;
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our reliance on a limited number of suppliers for specified feedstock and services and our reliance on third-party transportation;
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higher-than-expected raw material, energy, transportation, and/or logistics costs;
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failure to control costs or to achieve targeted cost reductions;
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new regulations or public policy changes regarding the transportation of hazardous chemicals and the security of chemical manufacturing facilities;
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the occurrence of unexpected manufacturing interruptions and outages, including those occurring as a result of labor disruptions and production hazards;
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weak industry conditions affecting our ability to comply with the financial maintenance covenants in our senior credit facility;
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the failure or an interruption of our information technology systems;
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complications resulting from our multiple enterprise resource planning systems and the conversion to a new system;
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a loss of a substantial customer for either chlorine or caustic soda could cause an imbalance in customer demand for these products;
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our substantial amount of indebtedness and significant debt service obligations;
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unexpected litigation outcomes;
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changes in, or failure to comply with, legislation or government regulations or policies;
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costs and other expenditures in excess of those projected for environmental investigation and remediation or other legal proceedings;
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failure to attract, retain and motivate key employees;
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the effects of any declines in global equity markets on asset values and any declines in interest rates used to value the liabilities in our pension plan;
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adverse changes in international markets, including economic, political or regulatory changes;
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our long range plan assumptions not being realized causing a non-cash impairment charge of long-lived assets;
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adverse conditions in the credit and capital markets, limiting or preventing our ability to borrow or raise capital; and
|
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various risks associated with our transition and subsequent operation of the Lake City U.S. Army Ammunition Plant.
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All of our forward-looking statements should be considered in light of these factors. In addition, other risks and uncertainties not presently known to us or that we consider immaterial could affect the
accuracy of our forward-looking statements.
IMPORTANT INFORMATION
In connection with the forthcoming solicitation of proxies from shareholders in respect of Olin’s 2020 Annual Meeting of Shareholders, Olin will file with the SEC a proxy statement on Schedule 14A (the “proxy
statement”), containing a form of white proxy card. Olin, its directors, its director nominees and certain of its executive officers and employees will be participants in the solicitation of proxies from shareholders in respect of the 2020
Annual Meeting of Shareholders. Information regarding the names of Olin’s directors, director nominees and certain of its executive officers and employees and their respective interests in the Company by security holdings or otherwise will be
set forth in the proxy statement. Details concerning the nominees of Olin’s Board of Directors for election at the 2020 Annual Meeting of Shareholders will be included in the proxy statement. BEFORE MAKING ANY VOTING DECISION, INVESTORS AND
SECURITY HOLDERS ARE URGED TO READ ALL RELEVANT DOCUMENTS, INCLUDING OLIN’S PROXY STATEMENT AND ANY AMENDMENTS THERETO AND ACCOMPANYING WHITE PROXY CARD, FILED WITH OR FURNISHED TO THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY CONTAIN, OR
WILL CONTAIN, IMPORTANT INFORMATION ABOUT OLIN. Shareholders may obtain free copies of the proxy statement and other relevant documents that Olin files with the SEC on Olin’s website at
https://www.olin.com/investors/financials-filings/annual-reports-proxy or from the SEC’s website at www.sec.gov.
COMPANY DESCRIPTION
Olin Corporation is a leading vertically-integrated global manufacturer and distributor of chemical products and a leading U.S. manufacturer of ammunition. The chemical products produced include chlorine and
caustic soda, vinyls, epoxies, chlorinated organics, bleach and hydrochloric acid. Winchester’s principal manufacturing facilities produce and distribute sporting ammunition, law enforcement ammunition, reloading components, small caliber
military ammunition and components, and industrial cartridges.
Visit www.olin.com for more information on Olin.
CONTACTS
InvestorRelations@Olin.com
314-719-1755
314-719-1755
2020-04
EXHIBIT B
Sachem Head Interests
SH Old Quarry Master Ltd. has entered into cash-settled total return swaps referencing 2,420,000 shares of Common
Stock in the aggregate as described in the Schedule 13D filed by Sachem Head Capital Management LP on February 24, 2020.
Exhibit 99.1
Olin Corporation Appoints Scott Ferguson and W. Barnes Hauptfuhrer to Board of Directors
Sachem Head Commits to Support Company’s Directors at 2020 Annual Meeting of Shareholders
CLAYTON, Mo., March 2, 2020 – Olin Corporation (NYSE: OLN) (“Olin” or the “Company”) today announced the appointment of Scott Ferguson and W. Barnes Hauptfuhrer to its Board
of Directors (the “Board”), effective immediately. With these appointments, the Olin Board will be comprised of 14 directors, 13 of whom are independent, and six of whom will stand for re-election at the Company’s upcoming 2020 Annual Meeting of
Shareholders. In conjunction with these appointments, Olin has entered into an agreement with Sachem Head Capital Management LP (“Sachem Head”), which owns approximately 9.5% of the outstanding shares of the Company’s common stock.
“We are pleased to have Scott and Barnes join our Board as independent directors,” said John E. Fischer, Chairman, President and Chief Executive Officer of Olin. “As we continue to take actions to enhance our
capital structure, accelerate our cost discipline and efficiency efforts, and drive long-term value for all shareholders, we are confident that their expertise will be additive to the Board’s ongoing efforts.”
“We appreciate the constructive and open dialogue we have had with Olin’s Board and leadership team and look forward to continue working closely with them,” said Scott Ferguson, founder and managing partner of
Sachem Head.
Under the terms of the agreement, Mr. Hauptfuhrer will serve as a member of the Directors and Corporate Governance Committee of the Board, Mr. Ferguson will serve as a member of the Compensation Committee of the
Board and both will serve on a newly formed Operating Improvement Committee, which will analyze and make recommendations to the Board regarding operational improvements and support and inform the Board’s review of Olin’s strategy. Mr. Scott
Sutton and Mr. John M. B. O’Connor, both independent directors of the Board, will also serve on this committee, with Mr. Sutton acting as chair. Olin has also agreed to propose, at its 2020 annual meeting of shareholders, an amendment to its
Amended and Restated Articles of Incorporation to declassify the Board and provide for the annual election of all directors starting at the 2021 annual meeting of shareholders. Sachem Head has also agreed to customary voting and standstill
provisions. The complete agreement between Olin and Sachem Head will be filed on a Form 8-K with the U.S. Securities and Exchange Commission.
About Scott Ferguson
Scott is the founder and managing partner of Sachem Head Capital Management, a value-oriented investment management firm based in New York which he started in 2012. Prior to starting Sachem Head, he spent nine years
at Pershing Square Capital Management, which he joined pre-launch as the firm’s first investment professional. Prior to Pershing Square, Scott earned an M.B.A. from Harvard Business School in 2003 and was a vice president at American Industrial
Partners, an operations focused private equity firm, from 1999 to 2001. Scott was also a business analyst at McKinsey & Company from 1996 to 1999. Scott graduated from Stanford University with an A.B. in Public Policy in 1996. He currently
serves on the board of directors of the Henry Street Settlement and is also a member of the Robin Hood Leadership Council. He is a former director of Autodesk, a leading design & engineering software company.
About W. Barnes Hauptfuhrer
W. Barnes Hauptfuhrer most recently served as Chief Executive Officer of Chapter IV Investors, LLC, an investment firm he founded in February 2006. Prior to this, Mr. Hauptfuhrer served as Co-Head of the Corporate
& Investment Banking Division of Wachovia Corporation (formerly, First Union Corporation). Earlier in his career, he also served as Senior Executive Vice President of Wachovia and prior to the merger of Wachovia and First Union, Mr.
Hauptfuhrer served in roles of increasing responsibility at First Union, including Co-Head of the Corporate & Investment Banking Division, Co-Head of Investment Banking, and Managing Partner of First Union Capital Partners, a private equity
investment group within First Union, which he founded. Previously, Mr. Hauptfuhrer served as Managing Director and investment banker at Kidder Peabody. Mr. Hauptfuhrer currently serves as a director of National Gypsum Company. He previously
served as a director of Buckeye Pipeline LLC from September 2006 to March 2008, and of Wolverine Tube, Inc. from May 1998 to October 2005.
Mr. Hauptfuhrer earned a bachelor’s degree from Princeton University and a juris doctorate degree and master’s degree in business administration from the University of Virginia. He is a director of the Foundation
for the Carolinas.
FORWARD-LOOKING STATEMENTS
This communication includes forward-looking statements. These statements relate to analyses and other information that are based on management’s beliefs, certain assumptions made by management, forecasts of future
results, and current expectations, estimates and projections about the markets and economy in which we and our various segments operate. The statements contained in this communication that are not statements of historical fact may include
forward-looking statements that involve a number of risks and uncertainties.
We have used the words “anticipate,” “intend,” “may,” “expect,” “believe,” “should,” “plan,” “project,” “estimate,” “forecast,” “optimistic,” and variations of such words and similar expressions in this
communication to identify such forward-looking statements. These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions, which are difficult to predict and many of which are beyond our
control. Therefore, actual outcomes and results may differ materially from those matters expressed or implied in such forward-looking statements. We undertake no obligation to update publicly any forward-looking statements, whether as a result
of future events, new information or otherwise. The payment of cash dividends is subject to the discretion of our board of directors and will be determined in light of then-current conditions, including our earnings, our operations, our
financial conditions, our capital requirements and other factors deemed relevant by our board of directors. In the future, our board of directors may change our dividend policy, including the frequency or amount of any dividend, in light of
then-existing conditions.
The risks, uncertainties and assumptions involved in our forward-looking statements, many of which are discussed in more detail in our filings with the SEC, including without limitation the “Risk Factors” section of
our Annual Report on Form 10-K for the year ended December 31, 2019, include, but are not limited to, the following:
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sensitivity to economic, business and market conditions in the United States and overseas, including economic instability or a downturn in the sectors served by us, such as vinyls, urethanes, and pulp
and paper;
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the cyclical nature of our operating results, particularly declines in average selling prices in the chlor alkali industry and the supply/demand balance for our products, including the impact of excess
industry capacity or an imbalance in demand for our chlor alkali products;
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our reliance on a limited number of suppliers for specified feedstock and services and our reliance on third-party transportation;
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higher-than-expected raw material, energy, transportation, and/or logistics costs;
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failure to control costs or to achieve targeted cost reductions;
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new regulations or public policy changes regarding the transportation of hazardous chemicals and the security of chemical manufacturing facilities;
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the occurrence of unexpected manufacturing interruptions and outages, including those occurring as a result of labor disruptions and production hazards;
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weak industry conditions affecting our ability to comply with the financial maintenance covenants in our senior credit facility;
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the failure or an interruption of our information technology systems;
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complications resulting from our multiple enterprise resource planning systems and the conversion to a new system;
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a loss of a substantial customer for either chlorine or caustic soda could cause an imbalance in customer demand for these products;
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our substantial amount of indebtedness and significant debt service obligations;
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unexpected litigation outcomes;
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changes in, or failure to comply with, legislation or government regulations or policies;
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costs and other expenditures in excess of those projected for environmental investigation and remediation or other legal proceedings;
|
| ● |
failure to attract, retain and motivate key employees;
|
| ● |
the effects of any declines in global equity markets on asset values and any declines in interest rates used to value the liabilities in our pension plan;
|
| ● |
adverse changes in international markets, including economic, political or regulatory changes;
|
| ● |
our long range plan assumptions not being realized causing a non-cash impairment charge of long-lived assets;
|
| ● |
adverse conditions in the credit and capital markets, limiting or preventing our ability to borrow or raise capital; and
|
| ● |
various risks associated with our transition and subsequent operation of the Lake City U.S. Army Ammunition Plant.
|
All of our forward-looking statements should be considered in light of these factors. In addition, other risks and uncertainties not presently known to us or that we consider immaterial could affect the accuracy of
our forward-looking statements.
IMPORTANT INFORMATION
In connection with the forthcoming solicitation of proxies from shareholders in respect of Olin’s 2020 Annual Meeting of Shareholders, Olin will file with the SEC a proxy statement on Schedule 14A (the “proxy
statement”), containing a form of white proxy card. Olin, its directors, its director nominees and certain of its executive officers and employees will be participants in the solicitation of proxies from shareholders in respect of the 2020 Annual
Meeting of Shareholders. Information regarding the names of Olin’s directors, director nominees and certain of its executive officers and employees and their respective interests in the Company by security holdings or otherwise will be set forth
in the proxy statement. Details concerning the nominees of Olin’s Board of Directors for election at the 2020 Annual Meeting of Shareholders will be included in the proxy statement. BEFORE MAKING ANY VOTING DECISION, INVESTORS AND SECURITY
HOLDERS ARE URGED TO READ ALL RELEVANT DOCUMENTS, INCLUDING OLIN’S PROXY STATEMENT AND ANY AMENDMENTS THERETO AND ACCOMPANYING WHITE PROXY CARD, FILED WITH OR FURNISHED TO THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY CONTAIN, OR WILL CONTAIN,
IMPORTANT INFORMATION ABOUT OLIN. Shareholders may obtain free copies of the proxy statement and other relevant documents that Olin files with the SEC on Olin’s website at https://www.olin.com/investors/financials-filings/annual-reports-proxy or
from the SEC’s website at www.sec.gov.
COMPANY DESCRIPTION
Olin Corporation is a leading vertically-integrated global manufacturer and distributor of chemical products and a leading U.S. manufacturer of ammunition. The chemical products produced include chlorine and caustic
soda, vinyls, epoxies, chlorinated organics, bleach and hydrochloric acid. Winchester’s principal manufacturing facilities produce and distribute sporting ammunition, law enforcement ammunition, reloading components, small caliber military
ammunition and components, and industrial cartridges.
Visit www.olin.com for more information on Olin.
CONTACTS
InvestorRelations@Olin.com
314-719-1755
314-719-1755
2020-04