0000899140-19-000310.txt : 20190313 0000899140-19-000310.hdr.sgml : 20190313 20190313172009 ACCESSION NUMBER: 0000899140-19-000310 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20190313 DATE AS OF CHANGE: 20190313 GROUP MEMBERS: ANDREW M. BURSKY GROUP MEMBERS: ATLAS CAPITAL GP II LP GROUP MEMBERS: ATLAS CAPITAL RESOURCES GP II LLC GROUP MEMBERS: LAPETUS CAPITAL II LLC GROUP MEMBERS: TIMOTHY J. FAZIO SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Horizon Global Corp CENTRAL INDEX KEY: 0001637655 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLE PARTS & ACCESSORIES [3714] IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-88963 FILM NUMBER: 19679008 BUSINESS ADDRESS: STREET 1: 2600 WEST BIG BEAVER ROAD STREET 2: SUITE 555 CITY: TROY STATE: MI ZIP: 48084 BUSINESS PHONE: 2485938820 MAIL ADDRESS: STREET 1: 2600 WEST BIG BEAVER ROAD STREET 2: SUITE 555 CITY: TROY STATE: MI ZIP: 48084 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Atlas Capital Resources II LP CENTRAL INDEX KEY: 0001593630 IRS NUMBER: 320423483 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ONE SOUND SHORE DRIVE, #203 CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 2036229138 MAIL ADDRESS: STREET 1: ONE SOUND SHORE DRIVE, #203 CITY: GREENWICH STATE: CT ZIP: 06830 SC 13D/A 1 a28556218a.htm SCHEDULE 13D/A, #4

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934*

(Amendment No. 4)*

Horizon Global Corporation

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

44052W104

(CUSIP Number of Class of Securities)

Michael O’Donnell, Esq.

Atlas FRM LLC

100 Northfield Street

Greenwich, Connecticut 06830

Telephone: (203) 622-9138

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

Copies to:

Steven A. Seidman, Esq.

Mark A. Cognetti, Esq.

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, NY 10019-6099

(212) 728-8000

March 11, 2019

(Date of Event which Requires Filing of this Schedule)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: ☐

NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent.

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 44052W104

Page 2 of 9 Pages

1	NAME OF REPORTING PERSON Atlas Capital Resources II LP
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☒
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH			7	SOLE VOTING POWER 0
			8	SHARED VOTING POWER 2,741,776⁽¹⁾
			9	SOLE DISPOSITIVE POWER 0
			10	SHARED DISPOSITIVE POWER 2,741,776⁽¹⁾

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 2,741,776⁽¹⁾
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.92%⁽²⁾
14		TYPE OF REPORTING PERSON PN

(1) The reporting person expressly disclaims beneficial ownership with respect to any shares of Common Stock (as defined below) of the Issuer other than the common stock of the Issuer owned of record by such reporting person.

(2) All percentages of Common Stock (as defined below) outstanding contained herein are based on 25,112,239 shares of Common Stock outstanding as of November 3, 2018, according to the Form 10-Q filed by the Issuer with the SEC on November 8, 2018.

CUSIP No. 44052W104

Page 3 of 9 Pages

1	NAME OF REPORTING PERSON Lapetus Capital II LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☒
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH			7	SOLE VOTING POWER 0
			8	SHARED VOTING POWER 2,741,776⁽¹⁾
			9	SOLE DISPOSITIVE POWER 0
			10	SHARED DISPOSITIVE POWER 2,741,776⁽¹⁾

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 2,741,776⁽¹⁾
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.92%⁽²⁾
14		TYPE OF REPORTING PERSON OO

CUSIP No. 44052W104

Page 4 of 9 Pages

1	NAME OF REPORTING PERSON Atlas Capital GP II LP
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☒
3	SEC USE ONLY
4	SOURCE OF FUNDS N/A
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH			7	SOLE VOTING POWER 0
			8	SHARED VOTING POWER 2,741,776⁽¹⁾
			9	SOLE DISPOSITIVE POWER 0
			10	SHARED DISPOSITIVE POWER 2,741,776⁽¹⁾

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 2,741,776⁽¹⁾
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.92%⁽²⁾
14		TYPE OF REPORTING PERSON PN

CUSIP No. 44052W104

Page 5 of 9 Pages

1	NAME OF REPORTING PERSON Atlas Capital Resources GP II LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☒
3	SEC USE ONLY
4	SOURCE OF FUNDS N/A
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH			7	SOLE VOTING POWER 0
			8	SHARED VOTING POWER 2,741,776⁽¹⁾
			9	SOLE DISPOSITIVE POWER 0
			10	SHARED DISPOSITIVE POWER 2,741,776⁽¹⁾

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 2,741,776⁽¹⁾
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.92%⁽²⁾
14		TYPE OF REPORTING PERSON OO

CUSIP No. 44052W104

Page 6 of 9 Pages

1	NAME OF REPORTING PERSON Andrew M. Bursky
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☒
3	SEC USE ONLY
4	SOURCE OF FUNDS N/A
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH			7	SOLE VOTING POWER 0
			8	SHARED VOTING POWER 2,741,776⁽¹⁾
			9	SOLE DISPOSITIVE POWER 0
			10	SHARED DISPOSITIVE POWER 2,741,776⁽¹⁾

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 2,741,776⁽¹⁾
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.92%⁽²⁾
14		TYPE OF REPORTING PERSON IN

CUSIP No. 44052W104

Page 7 of 9 Pages

1	NAME OF REPORTING PERSON Timothy J. Fazio
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☒
3	SEC USE ONLY
4	SOURCE OF FUNDS N/A
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ☐
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH			7	SOLE VOTING POWER 0
			8	SHARED VOTING POWER 2,741,776⁽¹⁾
			9	SOLE DISPOSITIVE POWER 0
			10	SHARED DISPOSITIVE POWER 2,741,776⁽¹⁾

11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 2,741,776⁽¹⁾
12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ☐
13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.92%⁽²⁾
14		TYPE OF REPORTING PERSON IN

This Amendment No. 4 (“Amendment No. 4”) amends the Schedule 13D filed on November 30, 2018 (the “Original Schedule 13D”), as amended by Amendment No. 1 to the Schedule 13D filed on December 26, 2018 (“Amendment No. 1”), Amendment No. 2 to the Schedule 13D filed on January 2, 2019 (“Amendment No. 2”) and Amendment No. 3 to the Schedule 13D filed on January 22, 2019 (“Amendment No. 3” and the Original Schedule 13D, as amended, the “Schedule 13D”), and relates to common shares, par value $0.01 per share (“Common Stock”), of Horizon Global Corporation (the “Issuer”). The Schedule 13D remains in full force and effect, except as specifically amended by this Amendment No. 4. Capitalized terms used but not otherwise defined shall have the respective meanings ascribed to such terms in the Schedule 13D.

Item 4.

Purpose of the Transaction

Item 4 of this Schedule 13D is hereby amended to include the following:

On March 11, 2019, Lapetus Capital II LLC (“Lapetus”) delivered a nomination notice (the “Nomination Notice”) to the Issuer which is attached as Exhibit 99.2 to this Schedule 13D, nominating two highly qualified individuals, Frederick A. Henderson and Jeffrey E. Kirt (collectively, the “Nominees”), for election to the Board at the Issuer’s 2019 annual meeting of stockholders (the “Annual Meeting”).

The Reporting Persons believe that the Nominees have the qualifications, experience and skill sets that will make them valuable additions to the Board.

The Reporting Persons have engaged, and may continue to engage, in discussions with the Issuer regarding Board representation and the composition of the Issuer’s Board, generally.

The Nomination Notice also includes a notice to the Issuer that the Reporting Persons intend to submit, for a stockholder vote at the Annual Meeting, a resolution that would repeal any provision of the Bylaws of the Issuer in effect at the time of the Annual Meeting that was not included in the Bylaws of the Issuer in effect as of March 11, 2019 and as publicly filed with the Securities and Exchange Commission (the “SEC”) prior to March 11, 2019.

Item 6.

Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer

Item 6 of this Schedule 13D is hereby amended to include the following:

On March 11, 2019, Atlas FRM LLC, an affiliate of the Reporting Persons (“Atlas”), entered into Nomination Agreements with Frederick A. Henderson and Jeffrey E. Kirt (the “Nomination Agreements”). Pursuant to such agreements, Atlas has agreed to indemnify Mr. Henderson and Mr. Kirt for certain potential claims in connection with their standing as candidates for election to the Board. Atlas has also agreed to reimburse Mr. Henderson and Mr. Kirt for reasonable and documented out-of-pocket travel and related expenses, subject to a certain cap, incurred by Mr. Henderson and Mr. Kirt in connection with their service as a Nominee. The foregoing description of the Nomination Agreements is not complete and is qualified in its entirety by reference to the Nomination Agreements attached as Exhibit 99.3 and Exhibit 99.4 to this Schedule 13D, which are incorporated herein by reference.

Except as disclosed in this Schedule 13D, there are no contracts, arrangements, understandings or relationships with respect to securities of the Issuer.

Item 7. Material to be Filed as Exhibits

Item 7 of this Schedule 13D is hereby amended to add the following exhibits:

99.2	Nomination Notice, dated as of March 11, 2019

99.3	Nomination Agreement, dated as of March 11, 2019, between Atlas and Frederick A. Henderson

99.4	Nomination Agreement, dated as of March 11, 2019, between Atlas and Jeffrey E. Kirt

[Signatures on following page]

SIGNATURES

After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

Dated: March 13, 2019	Lapetus Capital II LLC

	By:	/s/ Timothy J. Fazio
	Name:	Timothy J. Fazio
	Title:	Vice President

Dated: March 13, 2019	Atlas Capital Resources II LP

		By: Atlas Capital GP II LP, its general partner

		By: Atlas Capital Resources GP II LLC, its general partner

	By:	/s/ Timothy J. Fazio
	Name:	Timothy J. Fazio
	Title:	Managing Partner

Dated: March 13, 2019	Atlas Capital GP II LP
		By: Atlas Capital Resources GP II LLC, its general partner

	By:	/s/ Timothy J. Fazio
	Name:	Timothy J. Fazio
	Title:	Managing Partner

Dated: March 13, 2019	Atlas Capital Resources GP II LLC

	By:	/s/ Timothy J. Fazio
	Name:	Timothy J. Fazio
	Title:	Managing Partner

Dated: March 13, 2019		/s/ Andrew M. Bursky
		Andrew M. Bursky

Dated: March 13, 2019		/s/ Timothy J. Fazio
		Timothy J. Fazio

EX-99.2 2 a28556218b.htm NOMINATION NOTICE, DATED AS OF MARCH 11, 2019

EXHIBIT 99.2

Nomination Notice, dated as of March 11, 2019

Lapetus Capital LLC

100 Northfield Street

Greenwich, Connecticut 06830

March 11, 2019

VIA PERSONAL DELIVERY AND EMAIL

Horizon Global Corporation

2600 W. Big Beaver Road, Suite 555
Troy, Michigan 48084

Attention: Jay Goldbaum, General Counsel and Corporate Secretary

Re:	Notice of Nominations of Persons for Election to the Board of Directors of Horizon Global Corporation

Dear Mr. Goldbaum:

Pursuant to and in accordance with the requirements of Section 5(A)(2) of Article II of the Amended and Restated Bylaws, filed with the Securities and Exchange Commission on February 20, 2019 (the “Bylaws”) of Horizon Global Corporation, a Delaware corporation (the “Company”), Lapetus Capital II LLC (the “Stockholder”) hereby gives notice (“Notice”), with respect to the 2019 annual meeting of stockholders of the Company, or a special meeting of stockholders of the Company at which directors are to be elected, or any other meeting of stockholders held in lieu thereof, and at any and all adjournments, postponements, reschedulings or continuations thereof (collectively, the “Stockholder Meeting”), of (i) its nomination of Frederick A. Henderson and Jeffrey E. Kirt (the “Nominees”) to stand for election as directors of the Company (the “Nominations”) and (ii) the proposal set forth on Exhibit E (the “Proposal”).

We are providing this Notice, in accordance with Section 5 of Article II of the Bylaws, not later than the close of business on March 11, 2019.

All information required to be included in this Notice pursuant to the Bylaws has been provided by the Stockholder, including on behalf of the Beneficial Owners (as defined in Exhibit A), and the Nominees. Information included in any subsection below shall also be deemed to be information provided in response to items requested in any other subsection of this Notice. In addition, reference is made to the Schedule 13D initially filed by Atlas Capital Resources II LP, a Delaware limited partnership, and certain of its affiliates on November 30, 2018, as amended or may be amended from time to time, as filed and to be filed with the Securities and Exchange Commission (the “Commission”). The information contained therein is deemed incorporated by reference herein and, accordingly, all information contained in this Notice is deemed to be supplemented thereby. The inclusion or incorporation by reference of information in this Notice shall not be deemed to constitute an admission that any such information is required by Section 5(A)(2) of Article II, or any other sections of the Bylaws. Where information sought by Schedule 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), would be answered in the negative and no response would be required to be included in a proxy statement, this Notice may omit such negative response.

Horizon Global Corporation

March 11, 2019

Page 2

The Exhibits and Annexes hereto, and all attachments thereto are hereby incorporated into and made a part of this Notice. Accordingly, all matters disclosed in any part of this Notice, including the Exhibits and Annexes hereto and all attachments thereto should be deemed disclosed for all purposes of this Notice. All upper-case terms appearing in the Annexes and all attachments thereto that are not defined in such Annexes and attachments shall have the meanings given in the body of this Notice or the Annexes and all attachments thereto, as applicable.

Information Regarding the Stockholder

The Stockholder is the holder of record of, and is entitled to vote at the Stockholder Meeting, 1,000 shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”) and is the direct beneficial owner of 2,741,776 shares of Common Stock (including the 1,000 shares of Common Stock of which the Stockholder is the holder of record) representing approximately 10.92% of the Company’s outstanding shares of Common Stock (the “Shares”). The Beneficial Owners, by virtue of their respective relationships to the Stockholder, may be deemed to “beneficially own” (within the meaning of Rule 13d-3 under the Exchange Act) the Shares, as further described in Exhibit A. The percentages contained herein are based upon 25,112,239 shares of Common Stock outstanding as of November 3, 2018, as reported in the Company’s Annual Report on Form 10-Q filed with the Commission on November 8, 2018. As evidence of the 1,000 shares of Common Stock owned of record by the Stockholder, please see attached Exhibit B, which is a copy of the Direct Registration Advice Statement issued to the Stockholder by the Company’s transfer agent.

Exhibit A attached hereto includes (i) the name and address of the Stockholder, as it appears on the Company’s books, and of each of the Beneficial Owners; and (ii) the class and number of shares of the Company which are owned beneficially and of record by the Stockholder and the Beneficial Owners.

There exists no agreement, arrangement or understanding with respect to the Nominations or Proposal between or among the Stockholder and any Beneficial Owner, any of their respective affiliates or associates, or any others acting in concert with any Beneficial Owner or any of their respective affiliates or associates.

None of the Stockholder or any Beneficial Owner, has or has entered into any proxy, relationship, agreement, arrangement and/or understanding (including any derivative or short positions, convertible security, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares, in each case whether settled in shares or cash) the effect or intent of which is to mitigate loss to, manage risk or benefit from share price changes (including any performance-related fees) for, or increase or decrease the voting power of, the Stockholder and/or such Beneficial Owner, with respect to shares of stock of the Company.

There exists no agreement, arrangement or understanding between or among the Stockholder or any Beneficial Owner and any other person relating to acquiring, holding, voting or disposing of any shares of the stock of the Company.

The Stockholder proposes to nominate the Nominees for election as directors of the Company at the Stockholder Meeting and make the Proposal.

The Stockholder hereby represents that it is a holder of record of stock of the Company entitled to vote at the Stockholder Meeting and it intends to appear in person or by proxy at the Stockholder Meeting to propose to nominate the Nominees for election as directors of the Company and make the Proposal. The Stockholder intends to remain the record owner of 1,000 shares of Common Stock as of the record date for the Stockholder Meeting and as of the date of the Stockholder Meeting.

Horizon Global Corporation

March 11, 2019

Page 3

The Stockholder hereby further represents that it intends to (A) deliver a proxy statement and form of proxy to holders of at least the percentage of the Company’s outstanding capital stock required to elect the Nominees and approve or adopt the Proposal and/or (B) otherwise to solicit proxies from the Company’s stockholders in support of the Nominations and Proposal.

Information Regarding the Nominees

The name, age, business and residential address of the Nominees is as follows:

Name	Age	Business Address	Residential Address
Frederick A. Henderson	60	[Redacted]	[Redacted]
Jeffrey E. Kirt	46	[Redacted]	[Redacted]

There are no material proceedings to which either Nominee is a party adverse to the Company or any of its subsidiaries or has a material interest adverse to the Company or any of its subsidiaries.

Absence of Any Family Relationships

Neither of the Nominees has any family relationship with any director or executive officer of the Company.

Biographical Information

Frederick A. Henderson, 60, previously served as Chairman and CEO of Suncoke Energy, Inc., the largest U.S. independent producer of metallurgical coke for the steel industry, from December 2010 until his retirement in December 2017. From January 2013 through December 2017, he was also Chairman and CEO of Suncoke Energy Partners GP LLC, the general partner of Suncoke Energy Partners, L.P., a publicly traded master limited partnership. He previously served as a Senior Vice President of Sunoco, Inc. from September 2010 until the completion of Suncoke Energy, Inc.’s initial public offering and separation from Sunoco in July, 2011. Prior to Suncoke/Sunoco, Mr. Henderson served as President and CEO of General Motors (“GM”) from March 2009 until December 2009. He held a number of other senior management positions during his more than 25 years with GM, including President and Chief Operating Officer from March 2008 until March 2009, Vice Chairman and Chief Financial Officer from January 2006 until February 2008, Chairman of GM Europe, President of GM Asia Pacific and President of GM Latin America, Africa and the Middle East, and served as a consultant for GM from February 2010 to September 2010 before joining Sunoco. Mr. Henderson also served as a consultant for AlixPartners LLC, a business consulting firm, from March 2010 until August 2010.

In May 2013, Mr. Henderson joined the Board of Directors of Marriott International, where he currently serves as an independent director, member of the Nominating and Governance Committee, and Chairman of the Audit Committee of the Board. In October 2016, he joined the Board of Directors of Adient plc, where he currently serves as non-executive Chairman of the Board. Mr. Henderson is a Trustee of the Alfred P. Sloan Foundation and previously served on the Board of Directors of Compuware Corporation from 2011 to 2014. Mr. Henderson is also a Principal at the Hawksbill Group, a business advisory/ consulting firm. Mr. Henderson was awarded a BBA degree with High Distinction (May 1980) from the University of Michigan and an MBA with High Distinction (June 1984) from the Harvard Business School, where he was elected a George F. Baker Scholar.

Horizon Global Corporation

March 11, 2019

Page 4

During Mr. Henderson’s tenure as President and Chief Executive Officer of GM, GM filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code. The Stockholder does not believe that this proceeding is material to the evaluation of Mr. Henderson’s ability to serve as a director.

Mr. Henderson has not held any position or office with the Company and, to his knowledge, none of the positions he has held or is currently holding are or were with a corporation or organization that is a parent, subsidiary, or affiliate of the Company.

In concluding that Mr. Henderson should serve as a director of the Company, the Stockholder considered his extensive global senior management experience in the automotive and other manufacturing industries. In addition, he is an experienced senior-level executive, with general operations, manufacturing and marketing experience, as well as senior-level strategic planning, business development, financial expertise, managerial, management development and compensation and health, environmental and safety experience. Mr. Henderson has the organizational and leadership skills that would be useful to the Company. For these reasons, the Stockholder believes Frederick A. Henderson should serve as a director of the Company.

Jeffrey E. Kirt, 46, is the Founder, Chief Executive Officer and Managing Partner of Fifth Lake Management, LLC, an investment manager focused on direct investments in private equity and special situations, and certain affiliates. Prior to founding Fifth Lake Management, LLC in July 2017, Mr. Kirt was a Partner at Pamplona Capital Management, L.P. from October 2014 to July 2017, and a Partner at Oak Hill Advisors, L.P. from July 2002 to September 2014, where he focused on making private equity and special situations investments in the industrial, aerospace, defense, business services and financial services sectors in the United States and Europe. From January 2010 until October 2014, Mr. Kirt served as a director of Capital Bank Financial Corp., a Federal Reserve and OCC regulated banking institution. Mr. Kirt also previously served as a director of Cooper Standard Holdings, Inc., a global supplier of systems and components for the automotive industry, from May 2010 until October 2014, and Avolon Aerospace, Ltd. from December 2010 to October 2014. Mr. Kirt received his Bachelor of Arts in Economics with Distinction from Yale University.

Mr. Kirt has not held any position or office with the Company and, to his knowledge, none of the positions he has held or is currently holding are or were with a corporation or organization that is a parent, subsidiary, or affiliate of the Company.

In concluding that Mr. Kirt should serve as a director of the Company, the Stockholder considered his significant prior experience in the automotive industry and past experience in sourcing, evaluating and managing investments, primarily in turnaround situations with influence on the governance of entities, as well as his prior experience serving as a director to corporations that would provide a valuable perspective to the Company. Mr. Kirt has the organizational and leadership skills that would be useful to the Company. For these reasons, the Stockholder believes Jeffrey E. Kirt should serve as a director of the Company.

Certain Agreements

Each Nominee is party to an agreement substantially in the form attached hereto as Annex III, pursuant to which Atlas FRM LLC, an affiliate of the Stockholder has agreed (i) to indemnify such Nominee with respect to certain costs incurred by such Nominee in connection with the proxy contest relating to the Stockholder Meeting and (ii) to pay certain fees to such Nominee in certain circumstances (the “Nomination Agreement”). The Stockholder and each of the Nominees have agreed in the respective Nomination Agreement that none of the provisions of the respective Nomination Agreement may derogate from, or in any manner limit, the exercise of either Nominee of his fiduciary duties in the event that he is elected as a director at the Stockholder Meeting.

Horizon Global Corporation

March 11, 2019

Page 5

Each Nominee, the Stockholder and each Beneficial Owner have an interest in the election of directors at the Stockholder Meeting: (i) directly and/or indirectly through the beneficial ownership (if any) of shares of Common Stock, as described on Exhibit A, and any applicable attachments and exhibits hereto; and/or (ii) pursuant to the Nomination Agreement.

There are no direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, or any other material relationships, between or among the Stockholder and the Beneficial Owners on whose behalf the Nominations are made, and their respective affiliates and associates and others acting in concert therewith, on the one hand, and each Nominee, and his respective affiliates and associates or others acting in concert therewith, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 of Regulation S-K if the Stockholder, Beneficial Owner or affiliate, associate or person acting in concert were the “registrant” for purposes of such rule, and such Nominee were a director or executive officer of such registrant.

While there are no agreements, arrangements or understandings, there is a possibility that the Stockholder may reimburse some expenses related to Mr. Kirt’s dealings with the Company as Mr. Kirt has been constructive in connection with the Stockholder’s and its affiliates’ ongoing discussions with the Company. During the past three years, certain of the Beneficial Owners have co-invested in entities in with Mr. Kirt.

Written Questionnaire and Written Representation and Agreement

Annex I hereto sets forth the consent of Mr. Henderson to being named in the proxy statement as a Nominee and to serving, if elected, as a member of the Board, and also sets forth the Proposed Nominee Questionnaire required pursuant to Section 5(A)(2)(a)(iii) of the Bylaws. The Proposed Nominee Questionnaire for Mr. Henderson was previously provided to the Company’s outside counsel, Dorsey & Whitney LLP on February 12, 2019.

Annex II hereto sets forth the consent of Mr. Kirt to being named in the proxy statement as a Nominee and to serving, if elected, as a member of the Board, and also sets forth the Proposed Nominee Questionnaire required pursuant to Section 5(A)(2)(a)(iii) of the Bylaws. The Proposed Nominee Questionnaire for Mr. Kirt was previously provided to the Company’s outside counsel, Dorsey & Whitney LLP on February 12, 2019.

Each of the Proposed Nominee Questionnaires are deemed supplemented by the description of the Nomination Agreements included above (and any other relevant information in this Notice).

Pursuant to Section 5(A)(2)(a)(iii) of Article II of the Bylaws, each of the Nominees has represented and agreed in the attached agreements (each a “Company Nominee Agreement” and collectively, the “Company Nominee Agreements”) that such Nominee (A) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to show such Nominee, if elected as a director of the Company, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Company or (2) any Voting Commitment that could limit or interfere with such Nominee’s ability to comply, if elected as a director of the Company, with such Nominee’s fiduciary duties under applicable law, (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, and in such Nominee’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the Company, and will comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Company. Such Company Nominee Agreements are attached hereto as Annex IV.

Horizon Global Corporation

March 11, 2019

Page 6

Absence of Involvement in Certain Legal Proceedings

Except as disclosed in this Notice, during the past ten years:

No petition under the Federal bankruptcy laws or any state insolvency law has been filed by or against, and no receiver, fiscal agent or similar officer has been appointed by a court for the business or property of, any Nominee, or any partnership in which any Nominee was a general partner at or within two years before the time of such filing, or any corporation or business association of which the Nominee was an executive officer at or within two years before the time of such filing;

No Nominee has been convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses);

No Nominee has been the subject of any administrative or court order, judgment, decree or consent agreement, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining such person from, or otherwise limiting, the following activities:

(i)

acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the U.S. Commodity Futures Trading Commission (the “CFTC”), or an associated person of any of the foregoing, or as an investment advisor, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity;

(ii)

engaging in any type of business practice or activity; or

(iii)

engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws;

No Nominee has been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than 60 days the right of such person to engage in any activity described in paragraph (c)(i) above, or to be associated with persons engaged in any such activity;

No Nominee has been found by a court of competent jurisdiction in a civil action or by the Commission to have violated any Federal or State securities law, where the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended or vacated;

Horizon Global Corporation

March 11, 2019

Page 7

No Nominee has been found by a court of competent jurisdiction in a civil action or by the CFTC to have violated any Federal commodities law, where the judgment in such civil action or finding by the CFTC has not been subsequently reversed, suspended or vacated;

No Nominee has been the subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of:

(i)

any Federal or State securities or commodities law or regulation;

(ii)

any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or

(iii)

any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; and

No Nominee has been the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of:

(i)

any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act);

(ii)

any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act); or

(iii)

any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member.

Section 16(a) Beneficial Ownership Reporting Compliance

Neither of the Nominees has failed to file reports on a timely basis related to the Company that are required by Section 16(a) of the Exchange Act.

Independence

The shares of Common Stock of the Company are traded on The New York Stock Exchange (“NYSE”). The Stockholder believes that each Nominee presently is, and if elected as a director of the Company, each of the Nominees would be, an “independent director” within the meaning of (i) applicable NYSE listing standards applicable to board composition, including Rule 303.A and (ii) Section 301 of the Sarbanes-Oxley Act of 2002.

Information Regarding the Participants and the Participant Associates

The Stockholder, the Nominees and the Beneficial Owners are collectively referred to in this Notice as the “Participants.”

Horizon Global Corporation

March 11, 2019

Page 8

Exhibit C includes (i) the name and business address of each of the Participants, (ii) the present principal occupation or employment of each of the Participants and the name, principal business and address of any corporation or other organization in which such employment is carried on, (iii) the amount of each class of securities of the Company which are owned beneficially, directly or indirectly, by each of the Participants, (iv) the amount of each class of securities of the Company which are owned of record, but not beneficially, by each of the Participants or any of their respective associates (the associates, as defined in Rule 14a-1 under the Exchange Act, are hereinafter collectively referred to as the “Participant Associates”). Except for the Stockholder, none of the Participants or the Participant Associates is the record owner of any securities of the Company. None of the Participants or the Participant Associates own any shares of the Common Stock of the Company other than the Shares.

No Participant or, to the best knowledge of the Participants, Participant Associate has, during the past ten years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

Exhibit D sets forth, with respect to all securities of the Company purchased or sold by any Participant within the past two years, the date on which such securities of the Company were purchased or sold and the amount purchased or sold on such date. Each Participant used its own investment capital to purchase all such securities listed therein as purchased by such Participant and no part of the purchase price or market value of the securities listed on Exhibit D is represented by funds borrowed or otherwise obtained for the purpose of acquiring or holding such securities. None of the funds used to purchase the securities listed on Exhibit D were borrowed or obtained otherwise pursuant to a margin account or bank loan in the regular course of business of a bank, broker or dealer.

None of the Participants are, or have been within the past year, a party to any contract, arrangement or understanding with any person with respect to any securities of the Company, including, but not limited to, joint ventures, loan or option arrangements, puts or calls, guarantees against loss or guarantees of profits, division of losses or profits, or the giving or withholding of proxies.

To the best knowledge of the Participants, none of the Participant Associates beneficially own, directly or indirectly, any shares of Common Stock or other securities of the Company. None of the Participants beneficially own, directly or indirectly, any securities of any parent or subsidiary of the Company.

No Participant or, to the best knowledge of the Participants, Participant Associate or member of any of the foregoing’s immediate family is either a party to any transaction or series of transactions, whether indebtedness transactions or otherwise, since the beginning of the Company’s last fiscal year or has knowledge of any currently proposed transaction or series of proposed transactions (i) to which the Company was or is to be a party, (ii) in which the amount involved exceeds $120,000, and (iii) in which any Participant, Participant Associate or any member of his or her immediate family has, or will have, a direct or indirect material interest.

No Participant or, to the best knowledge of the Participants, Participant Associate has entered into any agreement or has any arrangement or understanding with any person respecting any future employment with the Company or any of its affiliates or respecting any future transactions to which the Company or any of its affiliates will or may be a party.

No Participant or, to the best knowledge of the Participants, Participant Associate has any substantial interest, direct or indirect, by security holdings or otherwise, in any matter known by the Participants or the Participant Associates be to acted upon at the Stockholder Meeting other than (i) by reason of their ownership of the Shares, (ii) the interest of each Nominee in being elected to serve as a director of the Company, and (iii) as otherwise set forth in this Notice.

Horizon Global Corporation

March 11, 2019

Page 9

There are no material proceedings to which any Participant or, to the best knowledge of the Participants, any Participant Associate is a party adverse to the Company or any of its subsidiaries, or in which any of the Participants or Participant Associates have a material interest adverse to the Company or any of its subsidiaries.

Information Regarding the Solicitation

The Participants will solicit proxies in favor of the Nominations and the Proposal. Proxies may be solicited by mail, advertisement, telephone, facsimile, the Internet, email, public forums and personal solicitation. No additional compensation will be paid to the Participants for the solicitation of proxies. Banks, brokerage houses and other custodians, nominees and fiduciaries will be requested to forward the Participants’ solicitation material to their customers for whom they hold shares of Common Stock and the Stockholder will reimburse them for their reasonable out-of-pocket expenses.

The Stockholder expects to retain a soliciting agent to assist in the solicitation of proxies and for related services in connection with the Stockholder Meeting. The Stockholder has not yet identified a soliciting agent and has not yet had any conversations with any prospective soliciting agent as to the terms on which any such prospective soliciting agent might be engaged or as to the number of persons it would employ in the solicitation of proxies for the Stockholder Meeting.

Additionally, regular employees of the Stockholder and the Beneficial Owners, including officers of the Stockholder and the Beneficial Owners, may be employed in the solicitation of proxies in favor of the Nominations and Proposal in order to communicate with stockholders of the Company in connection with the solicitation and the Stockholder Meeting; none of any such individuals will be paid for such actions in connection with the foregoing beyond their regular compensation.

While the terms of the engagement of the soliciting agent, the anticipated costs involved in the solicitation and the number of other agents to be employed will be finalized only when the soliciting agent is selected and engaged, the Stockholder currently estimates that the total costs and expenditures (including fees for attorneys, accountants, public relations or financial advisors, solicitors, advertising, printing, transportation, litigation and other costs incidental to the solicitation) for, in furtherance of or in connection with the solicitation of security holders will be approximately $1,000,000, of which $100,000 has been incurred to date.

The entire expense of the solicitation, including preparing, assembling, printing and mailing the proxy statement and related materials and the cost of soliciting proxies, together with other related expenses, will be borne, directly or indirectly, by the Stockholder and the Beneficial Owners. The Stockholder does not intend to seek reimbursement of such expenses from the Company.

General

The Stockholder reserves the right to nominate additional nominees for any reason, including if the Company, by the appropriate corporate action, has increased or increases the number of directors to be elected at the Stockholder Meeting or the composition of the board of directors of the Company has changed prior to the Stockholder Meeting. Shares represented by proxies given to the Stockholder will be voted for any substitute or additional nominees. The Stockholder reserves the right to nominate substitute nominees if the Company makes or announces any changes to its Bylaws or takes or announces any other action that has, or if consummated would have, the effect of disqualifying any of the Nominees. Additionally, if any Nominee (or substitute nominee) is unable or unwilling to stand for election for any reason at the Stockholder Meeting, the Stockholder intends to nominate a person in the place of such Nominee (or substitute therefor). The Stockholder’s reservation of the foregoing rights, and any of the foregoing actions that may be taken by the Stockholder, are without prejudice to, and will not limit, the Stockholder’s and the other Participants’ rights to challenge any such actions on the part of the Company.

Horizon Global Corporation

March 11, 2019

Page 10

The Stockholder, in furnishing this Notice, does not concede the validity or enforceability of any of the provisions of the Bylaws or any other matter, including any provisions in the Bylaws that purport to impose advance notice requirements or otherwise limit the right of any stockholder to present business for consideration at any meeting of the stockholders and expressly reserves the right to challenge the validity, application and interpretation of any such provision or any other matter. In the absence of such prompt notice, the Stockholder will assume that the Company agrees that this Notice complies in all respects with the requirements of the Amended and Restated Certificate of Incorporation of the Company and the Bylaws. The Stockholder reserves the right to withdraw or modify this Notice at any time.

Unless expressly indicated otherwise herein, information is set forth herein as of the close of business on March 11, 2019. Neither the delivery of this Notice nor any delivery by the Stockholder, any Beneficial Owner, or either Nominee of additional information to the Company from and after the date hereof shall be deemed to constitute an admission by the Stockholder, any Beneficial Owner, either Nominee or any of their respective affiliates (if any) that such delivery is required or that each and every item or any item of information is required or as to the legality or enforceability of any notice requirement or any other matter, or a waiver by the Stockholder, any Beneficial Owner, either Nominee or any of their respective affiliates (if any) of their right to contest or challenge, in any way, the validity or enforceability of any notice requirement or any other matter (including actions taken by the Board in anticipation of, or following receipt of, this Notice). Furthermore, this Notice assumes that the Board will nominate a total of two (2) director nominees for election to the Board at the Stockholder Meeting. If, however, the Board increases the number of directors to be nominated and elected at a Stockholder Meeting beyond two (2) directors, the Stockholder reserves the right to add additional director nominees in respect of each such additional directorship. In the event any statement or other information in this Notice is not correct, or to the extent any applicable information has been omitted from this Notice, the Stockholder, Beneficial Owners and Nominees reserve the right to correct and/or supplement any such statement or other information set forth in this Notice.

Horizon Global Corporation

March 11, 2019

Page 11

As you are aware, we are providing this Notice via personal delivery and email. Although we have endeavored to fully satisfy all requirements for this Notice set forth in the Bylaws, please contact Steven A. Seidman (at (212) 728-8763 or sseidman@willkie.com), Mark A. Cognetti (at (212) 728-8968 or mcognetti@willkie.com) or Laura H. Acker (at (212) 728-8122 or lacker@willkie.com) of Willkie Farr & Gallagher LLP immediately should the Company require any additional information or if the Company contends this Notice is incomplete or is otherwise deficient in any respect.

	Sincerely,

	LAPETUS CAPITAL II LLC


	By:/s/ Timothy J. Fazio
	Name: Timothy J. Fazio
	Title:Vice President

cc: Michael O’Donnell, General Counsel, Atlas FRM LLC

cc: Steven A. Seidman, Willkie Farr & Gallagher LLP

cc: Mark A. Cognetti, Willkie Farr & Gallagher LLP

cc: Laura H. Acker, Willkie Farr & Gallagher LLP

Exhibit A

Stockholder Information

[Submitted separately to the Company]

Exhibit B

Direct Registration Transaction Advice

[Submitted separately to the Company]

Exhibit C

Participant Information

[Submitted separately to the Company]

Exhibit D

Transactions in Securities of Horizon Global Corporation

[Submitted separately to the Company]

Exhibit E

Proposal

(See attached)

EXHIBIT E

PROPOSAL

The Stockholder intends to submit, for a stockholder vote at the Stockholder Meeting, the following proposal described below. Other than as disclosed in this Notice, the Stockholder does not have any material interest in the Proposal.

To, pursuant to Section 109 of the General Corporation Law of the State of Delaware (the “DGCL”) and the Bylaws of the Company, adopt a resolution that would repeal any provision of the Bylaws in effect at the time of the Stockholder Meeting that was not included in the Bylaws in effect as of March 11, 2019. The Stockholder is not aware of any provision of the Bylaws that has become effective, but it is possible that, following the date of this Notice and prior to the adoption of this resolution, such a provision could be disclosed and/or become effective.

The following is the text of the proposed resolution:

“RESOLVED, that any provision of the Amended and Restated Bylaws of Horizon Global Corporation as of the date of effectiveness of this resolution that was not included in the Bylaws effective as of March 11, 2019 and publicly filed with the Securities and Exchange Commission prior to March 11, 2019, be and hereby is repealed.”

The Stockholder is bringing the Proposal for consideration by the Company’s stockholders at the Stockholder Meeting because the Board has the ability to make amendments to the Bylaws without obtaining stockholder approval and such amendments may not be in the best interests of the stockholders. The Proposal would allow stockholders to undo at the Stockholder Meeting any such amendments made after the date of this Notice and prior to the Stockholder Meeting. An affirmative vote of a majority of the shares of common stock present or represented at the meeting and entitled to vote on the subject matter, at which a quorum is present or represented, is required for the adoption of the Proposal.

Annex I

Please See the Attached:

Consent of Frederick A. Henderson

[Submitted separately to the Company]

Horizon Global Corporation Questionnaire for Directors and Officers – Frederick A. Henderson

[Submitted separately to the Company]

Annex II

Please See the Attached:

Consent of Jeffrey E. Kirt

[Submitted separately to the Company]

Horizon Global Corporation Questionnaire for Directors and Officers – Jeffrey E. Kirt

[Submitted separately to the Company]

Annex III

Form of Nomination Agreement

[Submitted separately to the Company]

Annex IV

Company Nominee Agreements

[Submitted separately to the Company]

EX-99.3 3 a28556218c.htm NOMINATION AGREEMENT, DATED AS OF MARCH 11, 2019, BETWEEN ATLAS AND FREDERICK A. HENDERSON

EXHIBIT 99.3

Nomination Agreement, dated as of March 11, 2019, between Atlas and Frederick A. Henderson

Atlas FRM LLC
100 Northfield Street
Greenwich, Connecticut 06830

March 11, 2019

Frederick A. Henderson

[Redacted]

Re: Horizon Global Corporation

Dear Mr. Frederick A. Henderson:

Thank you for agreeing to serve as a nominee for election to the board of directors (the “Board”) of Horizon Global Corporation (the “Company”) in connection with a proxy solicitation our affiliate, Lapetus Capital II LLC, and/or one or more affiliates thereof (“Atlas”) is considering undertaking for the purpose of nominating and electing directors at the 2019 annual meeting of stockholders of the Company, or special meeting of stockholders of the Company at which directors are to be elected, or any other meeting of stockholders held in lieu thereof, and at any and all adjournments, postponements, reschedulings or continuations thereof (the “Solicitation”). This letter will set forth the terms of our agreement (the “Agreement”).

Indemnification. Atlas agrees to indemnify and hold you harmless from and against any and all Loss (as defined below) arising directly or indirectly from the Solicitation, irrespective of the outcome; provided, however, that you will not be entitled to indemnification for claims that are judicially determined to have resulted from your bad faith, willful misconduct, violations of law (unless you demonstrate that your action was taken in good faith and in a manner you reasonably believed to be in or not opposed to the best interests of the Solicitation), criminal actions or material breach of the terms of this Agreement (including inaccurate or incomplete disclosures); and provided further, that this indemnification agreement and all of Atlas’s obligations hereunder shall not apply to any of your actions, omissions or service as a director of the Company (the indemnity set forth in this sentence, the “Indemnity”). Your right to the Indemnity (as well as the advancement of expenses as provided herein) shall continue after the Solicitation concludes but only for events that occurred in connection with Solicitation. As used herein, “Loss” shall mean any and all losses, liabilities, damages, demands, causes of action, claims, suits, actions, judgments, assessments, costs and expenses, including, without limitation, interest, penalties, reasonable attorneys’ fees, and any and all reasonable costs and expenses incurred in investigating, preparing or defending against any litigation, commenced or threatened, any civil, criminal, administrative, investigative or arbitration action, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation.

In the event of the occurrence of a Loss covered by the Indemnity or a claim that could reasonably be expected to result in a Loss covered by the Indemnity if adversely determined, you shall give Atlas prompt written notice of such claim or Loss (provided that the failure to promptly notify Atlas shall not relieve Atlas from any liability which Atlas may have on account of this Agreement, except to the extent Atlas shall have been materially prejudiced by such failure). Atlas shall be entitled to assume the defense of any action, suit or proceeding on your behalf in its sole discretion. If Atlas declines to assume such defense, or if you shall have been advised by counsel that Atlas’s counsel has a conflict of interest in representing both Atlas and you or you shall have been advised by counsel that there may be legal defenses available to you that are different from or additional to those available to Atlas, you shall be permitted to select your own counsel in such matter; provided that the Indemnity shall only cover the cost of one counsel and one local counsel (each charging at customary rates) in relation to each action covered by the Indemnity. Atlas may not enter into a settlement of any action that is asserted against you without your consent unless such settlement (i) does not include any admission of liability or guilt by you, (ii) includes a release of you from any and all liability in respect of such claim, and (iii) does not impose any limitation on you.

Atlas will advance on your behalf any and all expenses (including, without limitation, reasonable and documented attorneys’ fees, costs, expenses and disbursements) actually and reasonably incurred by you in such action, upon receipt by Atlas of an undertaking by you or on your behalf to repay any portion of such amount to which it is ultimately determined that you were not entitled under this Agreement.

The Indemnity and advance payment of expenses as provided by any provision of this Agreement shall not be deemed exclusive of any other rights to which you may be entitled under any provision of law, this or any other agreement, or otherwise. Atlas’s obligations hereunder shall not be affected by whether or not Atlas obtains or maintains any insurance policy covering any portion of the indemnification to be provided to you hereunder, or by the availability or unavailability of such insurance. Atlas expressly agrees that it is required to pay to you the amount of any Loss or expenses hereunder regardless of whether such amount is payable to you under any indemnity or insurance policy maintained by you or on your behalf.

Expenses. Atlas agrees to reimburse you, as promptly as reasonably practicable upon your request, for your reasonable and documented out-of-pocket travel and related expenses incurred by you in connection with your service as a nominee during the Solicitation. You shall not be entitled to reimbursement under this paragraph for any expenses in excess of $2,000 in the aggregate without Atlas’s prior written approval.

Confidentiality. You hereby agree to keep confidential and not to disclose to any party, without the prior written consent of Atlas, any confidential, proprietary or non-public information (collectively, “Information”) of Atlas or its affiliates which you have heretofore obtained or may obtain following the date hereof. The term “Information” shall not include any information that (i) is publicly disclosed by Atlas or its affiliates, (ii) you can demonstrate is now, or hereafter becomes, through no act or failure on your part, otherwise generally known to the public or (iii) is or becomes available to you on a non-confidential basis from a source other than Atlas or its affiliates, provided that such source is not bound by a legal, fiduciary or contractual obligation of confidentiality to Atlas or its affiliates.

Notwithstanding the foregoing, if you are required by applicable law, rule, regulation or legal process to disclose any Information, you may do so provided that, to the extent permissible by law or applicable regulation, you promptly notify Atlas so that Atlas may seek a protective order or other appropriate remedy at Atlas’s sole cost and expense and you furnish only that portion of Information which you are legally required to so disclose.

All Information, including copies thereof, and any studies, notes, records, analysis, compilations or other documents prepared by you containing such Information shall be and remain the property of Atlas and, upon the request of a representative of Atlas, all such information shall be returned or, at Atlas’s option, destroyed by you, with such destruction confirmed by you to Atlas in writing.

Privilege. Atlas and you are joint participants in the Solicitation, and each of us acknowledges and agrees that we share a common legal interest in connection with the Solicitation and any actual or threatened litigation, or governmental investigation, that may arise therefrom. Each of us further acknowledges and agrees that it is our mutual desire, intention and understanding that the sharing of any information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, the attorney work product doctrine or any other applicable privilege or immunity, including the common interest privilege. We further agree that information being provided by Atlas or its counsel is being provided solely for use in connection with the Solicitation and shall remain confidential in accordance with the foregoing provisions and shall be protected from disclosure to any third party by Atlas’s attorney-client privilege, the attorney work product doctrine and/or any other applicable privileges and immunities, including the common interest privilege.

Information. In connection with the Solicitation, we will be required to provide to the Company certain information about the Solicitation and about Atlas and you (and certain related persons). You agree to provide this information, as it relates to you and your related persons, to Atlas and its legal counsel as they may request from time to time, and to ensure that such information provided by you is accurate and complete. If any such information previously provided changes, becomes incomplete due to changes in circumstances, or otherwise is found to be inaccurate or incomplete, you agree to provide updated information to Atlas and its counsel so that such information is accurate and complete.

Fiduciary Duty. Atlas and you acknowledge and agree that, if you are elected to the Board of the Company, you will be subject to fiduciary duties as a director of the Company and further agree that no provision of this Agreement shall derogate from, or in any manner limit, your exercise of such fiduciary duties.

Nomination; Solicitation. Notwithstanding anything to contrary in this Agreement, you acknowledge and agree that Atlas may, in its sole discretion, elect not to nominate you for election to the Board or otherwise conduct the Solicitation.

Severability. If any provision of this Agreement shall be held to be or shall, in fact, be invalid, inoperative or unenforceable as applied to any particular case or in any particular jurisdiction, for any reason, such circumstances shall not have the effect of rendering the provision in question invalid, inoperative or unenforceable in any other distinguishable case or jurisdiction, or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatsoever. The invalidity, inoperability or unenforceability of any one or more phrases, sentences, clauses or sections contained in this Agreement shall not affect any other remaining part of this Agreement.

Amendments. No amendment, modification, termination or cancellation of this Agreement shall be effective unless in a writing signed by both parties hereto.

Governing Law. This Agreement shall be governed by the laws of the State of New York, without regard to the principles of the conflicts of law thereof.

[signature page follows]

* * *

If you agree to the foregoing terms, please sign below to signify your acceptance, and this Agreement will become a binding agreement between the undersigned and you.

	Very truly yours,

	Atlas FRM LLC d/b/a Atlas Holdings LLC

	By: /s/ Timothy J. Fazio
	Name: Timothy J. Fazio
	Title: Managing Partner

ACCEPTED AND AGREED:

/s/ Frederick A. Henderson

Frederick A. Henderson

EX-99.4 4 a28556218d.htm NOMINATION AGREEMENT, DATED AS OF MARCH 11, 2019, BETWEEN ATLAS AND JEFFREY E. KIRT

EXHIBIT 99.4

Nomination Agreement, dated as of March 11, 2019, between Atlas and Jeffrey E. Kirt

Atlas FRM LLC
100 Northfield Street
Greenwich, Connecticut 06830

March 11, 2019

Jeffrey E. Kirt

[Redacted]

Re: Horizon Global Corporation

Dear Mr. Jeffrey E. Kirt:

Amendments. No amendment, modification, termination or cancellation of this Agreement shall be effective unless in a writing signed by both parties hereto.

Governing Law. This Agreement shall be governed by the laws of the State of New York, without regard to the principles of the conflicts of law thereof.

[signature page follows]

* * *

If you agree to the foregoing terms, please sign below to signify your acceptance, and this Agreement will become a binding agreement between the undersigned and you.

	Very truly yours,

	Atlas FRM LLC d/b/a Atlas Holdings LLC

	By: /s/ Timothy J. Fazio
	Name: Timothy J. Fazio
	Title: Managing Partner

ACCEPTED AND AGREED:

/s/ Jeffrey E. Kirt

Jeffrey E. Kirt