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1
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NAMES OF REPORTING PERSON
Individual Retirement Accounts for the benefit of Ronald L. Chez and Ronald L. Chez Individually
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
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(a) o
(b) o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (See Instructions)
PF
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
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o |
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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NUMBER OF
SHARES
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7
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SOLE VOTING POWER
2,845,931
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BENEFICIALLY
OWNED BY
EACH
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8
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SHARED VOTING POWER
0
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| REPORTING
PERSON
WITH
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9
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SOLE DISPOSITIVE POWER
0
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10
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SHARED DISPOSITIVE POWER
2,845,931
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,855,931
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| 12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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o
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| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.2%(1)
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| 14 |
TYPE OF REPORTING PERSON (See Instructions)
IN
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(a)
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The aggregate number of shares of the Stock owned beneficially by the Reporting Person is 2,845,931 (the "Shares") constituting approximately 9.2% of the outstanding shares of the Stock. The percentages in this Item 5(a) are based upon 30,841,165 shares of the Issuer’s common stock issued and outstanding as of April 9, 2012, as reported on the Issuer’s Proxy Statement dated April 20, 2012.
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(b)
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The Reporting Person has the sole power (and no shared power) to vote or dispose of or direct the disposition of Shares owned by such Reporting Person.
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(c)
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Since the filing of the prior amendment to this Schedule 13D on April 30, 2012 (the date of the event that necessitated the filing of the immediately prior amendment to the Schedule 13D), the Reporting Person purchased shares of Stock (through open market transactions) as follows:
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DATE
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QUANTITY
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PRICE PER SHARE
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4/30/2012
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26,000
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4.42
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5/1/2012
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4,300
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4.47
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(d)
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Not applicable.
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(e)
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Not applicable.
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/s/ Barry Fischer
Barry L. Fischer,
attorney-in-fact for Ronald L. Chez
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1.
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Stockholder Proposal.
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a.
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The Stockholder hereby agrees to amend and restate, and hereby submits, the Proposal in the form attached hereto as Exhibit A.
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b.
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The Company hereby agrees to prepare, file with the SEC and distribute to its stockholders, definitive additional soliciting materials relating to the 2012 Proxy Materials to reflect the Amended and Restated Proposal and the Board’s recommendation that the Company’s stockholders vote “FOR” the Amended and Restated Proposal in substantially the form attached hereto as Exhibit B (the “Additional Soliciting Materials”).
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c.
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In connection with the execution of the Agreement, the Stockholder hereby agrees to file an amendment to the Stockholder’s Schedule 13D in substantially the form attached hereto as Exhibit C.
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2.
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Annual Meeting.
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a.
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Subject to and conditioned upon the Company’s filing of the Additional Soliciting Materials with the SEC and the distribution thereof to its stockholders, the Stockholder hereby agrees to vote, or cause to be voted, by no later than May 17, 2012, all of the Shares in accordance with the recommendation of the Board with respect to each of the proposals to be acted upon at the 2012 Annual Meeting (and further agrees not to revoke, amend or otherwise alter such vote).
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b.
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The Company agrees to act in good faith to solicit proxies from its stockholders in favor of the Amended and Restated Proposal in an amount sufficient to approve the Amended and Restated Proposal.
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3.
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Company Bonus Program and Stock Ownership and Retention Policy.
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a.
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The Company hereby confirms to the Stockholder that (i) achievement of the Company’s previously disclosed cash bonus compensation objective for the fiscal year ending December 31, 2012 related to “the performance of the Company’s stock against the Russell 2000 Index” requires that the Company’s stock outperform the Russell 2000 Index in order for such compensation objective to be achieved and (ii) the Compensation Committee will assign meaningful weight to such compensation objective when determining executive officers’ cash bonus compensation for the fiscal year ending December 31, 2012.
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b.
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The Company hereby confirms to the Stockholder that Board will amend the Company’s Stock Ownership and Retention Policy (the “Policy”) to provide that if the annual cash retainer paid to non-employee members of the Board is reduced to zero or some de minimis amount, such reduction shall not decrease the previously effective minimum share ownership requirements under the Policy.
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c.
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The Company hereby confirms to the Stockholder that Board will amend the Policy to reduce the period for a director to comply with the Policy from five years to four years, subject to and conditioned upon the performance by the Stockholder of its obligations under Section 2 of this Agreement.
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4.
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Irrevocable Proxy. Subject to the last sentence of this Section, by execution of this Agreement, the Stockholder does hereby appoint the Company with full power of substitution and resubstitution, as the Stockholder's true and lawful attorney and irrevocable proxy, to the fullest extent of the Stockholder’s rights with respect to the Shares, to vote, each of such Shares solely in accordance with Section 2 of this Agreement. The Stockholder intends this proxy to be irrevocable and coupled with an interest hereunder until the conclusion of the 2012 Annual Meeting and hereby revokes any proxy previously granted by the Stockholder with respect to the Shares. Notwithstanding anything contained herein to the contrary, this irrevocable proxy shall automatically terminate upon the conclusion of the 2012 Annual Meeting. The Stockholder hereby revokes any proxies previously granted, and represents that none of such previously-granted proxies are irrevocable.
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5.
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Notices. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in regard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by facsimile, when such facsimile is transmitted to the facsimile number set forth below and the appropriate confirmation is received, (b) given by email, including .PDFs, upon confirmation by the receiving party, or (c) if given by any other means, when actually received during normal business hours at the address specified in this subsection:
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6.
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Publicity. Except for the press release attached hereto as Exhibit D, with respect to the Additional Soliciting Materials and the solicitation of votes or proxies in connection with the 2012 Annual Meeting, or the Stockholder’s Schedule 13D in substantially the form attached hereto as Exhibit C, neither the Company nor the Stockholder shall, or shall permit any of its affiliates or representatives to, issue or cause the publication of any press release or other public announcement with respect to, or otherwise make any public statement concerning, the transactions contemplated by this Agreement, including all discussions between the parties and their advisors related thereto, without the consent of the other party, except as may be required by applicable law or the applicable rules of any stock exchange or the Nasdaq Stock Market LLC.
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7.
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Specific Performance. The Company and the Stockholder acknowledge and agree that irreparable injury to the other party would occur in the event any of the provisions of the Agreement were not performed in accordance with their specific terms or were otherwise breached and that such injury would not be adequately compensable in damages. Therefore, without prejudice to the rights and remedies otherwise available to it, the parties agree that each party hereto (the “Moving Party”) shall be entitled to specific enforcement of, and injunctive relief to prevent any violation of, the terms hereof and the other parties hereto will not take action, directly or indirectly, in opposition to the Moving Party seeking such relief on the grounds that any other remedy or relief is available at law or in equity.
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8.
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Governing Law. The Agreement and its validity, interpretation and legal effect, shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without reference to conflicts of law principles thereof.
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9.
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Entire Agreement. The Agreement, including the preamble and recitals above, contains the entire understanding of the parties with respect to the subject matter hereof and may be amended only by an agreement in writing executed by the parties hereto.
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10.
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Construction. The parties acknowledge that each party and its counsel has reviewed this Agreement and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation or construction of this Agreement.
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11.
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Severability. If at any time subsequent to the date hereof, any provision of the 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 the Agreement.
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12.
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Counterparts. The Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same instrument.
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13.
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Further Assurances. The parties agree to execute and deliver immediately upon request such other documents or instruments as may be necessary to evidence the agreements hereunder.
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14.
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Successors and Assigns. This Agreement shall not be assignable by any of the parties to the Agreement but shall be binding on successors of the parties hereto.
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