Unassociated Document
Kane Kessler, P. C.
1350 Avenue of the
Americas
New York, New York
10019-4896
March 6, 2009
Via Edgar
and Facsimile
100 F Street, NE
Washington, DC 20549-3628
|
Attn:
|
Song P. Brandon,
Esq.
Attorney-Advisor
Office of Mergers and
Acquisitions
|
|
Re:
|
Federal Signal
Corporation
DFAN14A filed by Warren B. Kanders on January 26,
2009 and
DFAN14A filed by Warren B. Kanders
on February 3, 2009
File No.
1-06003
|
Gentlemen:
Reference is made to (a) the Staff’s
letter from Song P. Brandon, Esq. to Warren B. Kanders dated February
3, 2009 regarding a DFAN14A filing made by Mr. Kanders on January 26,
2009 in connection with Federal Signal Corporation (the “Company”) (“Staff’s
February 3, 2009 Letter”), and (b) the Staff’s letter from Song P. Brandon, Esq.
to Warren B. Kanders dated February 19, 2009 regarding a
DFAN14A filing made by Mr. Kanders on February 3, 2009 in connection with the
Company (“Staff’s February 19, 2009 Letter”) .
A. The
following sets forth our responses to the two comments made in Staff’s February
3, 2009 Letter:
Comment 1.
Rule 14a-12(a)(1)(i) requires a party
engaging in a solicitation before filing a proxy statement that meets the
requirements of Rule 14a-3(a) to identify the participants in the solicitation
(as defined in Instruction 3 to Item 4 of Schedule 14A) and include a
description of each participant’s interest in the solicitation, whether through
share ownership or otherwise. Alternatively, the party may include a
prominent legend in the soliciting materials advising where shareholder may
access this participant information. The participant information must
be available to shareholders when the written soliciting material is used;
therefore, the legend may not refer to information that will appear in some
future filing, such as the proxy statement to be filed by the soliciting
party. While you have identified the participants in the solicitation
under “Certain Information Concerning Participants,” it is not clear that you
have described each individual’s interest in the solicitation. Simply
disclosing the number of shares each participant holds may not satisfy the
obligation to describe any indirect interests or interest arising outside of
such share ownership. In this regard, we note from an exhibit to a
Schedule 13D amendment you filed on September 24, 2008 that you were rejected
for a position as CEO of Federal Signal. Please revise to disclose
the history of your efforts to obtain a position with the Company, and any other
interests associated with this solicitation, including those of any other
participants.
We believe that the current
disclosure with respect to the interests in the Company of the participants
in the solicitation, i.e., the individuals which Mr. Kanders
intends to nominate as directors, is appropriate as originally drafted.
Other than their respective interests
as shareholders of the
Company, Messrs. Kanders, Gerbsman and Sokolow do not have any other direct or indirect interests in the
Company at this
time.
As to the requested
disclosure of the history
of Mr. Kanders’ efforts to
obtain the CEO position with the Company, Mr. Kanders was advised by the Company
on June 26, 2008 that he was no longer a candidate for the CEO position, and on September 15, 2008, the
Company’s Board announced the appointment of its new CEO. Given this chronology,
Mr. Kanders did not have an interest in the Company’s CEO position at the time
of the DFAN14A filing of Mr. Kanders on January 26, 2009, nor is he currently
pursuing such interest. Nevertheless, in order to address the Staff’s
concerns, we
propose to revise the “Certain Information Concerning
Participants” paragraph in
future Rule 14a-12 filings
to add the following
supplemental disclosure
language: “In April 2008, Mr. Kanders wrote to the
Board of the Company submitting his candidacy for the Company's then
vacant Chief Executive Officer (“CEO”) position. Between May and June 2008, Mr. Kanders
met with the members of
Company's Search Committee and other representatives in furtherance
of his candidacy for the Company’s CEO position. By letter dated June 26,
2008, the Company notified Mr. Kanders that he was no longer a candidate for the CEO
position, and on September
15, 2008, the Board announced the appointment of its new
CEO.”
Comment 2.
Item 4 of Schedule 13D requires the
filer to disclose any intentions with respect to a number of extraordinary
corporate transactions. Pursuant to Item 4(d), the filer must
describe any plans or proposals which relate to any change in the board of
directors of the company for which share ownership is being
reported. However, we are unable to locate disclosure concerning your
intent to seek board representation in any of your Schedule 13D
filings. The most recent amendment, filed on September 24, 2008,
contains no such disclosure. Please file an amended Schedule 13D
promptly, or explain why you do not believe amended disclosure is
required.
For the reasons set forth below, we do
not believe that an amended Schedule 13D filing is required. Mr. Kanders
originally filed a Schedule 13D with the SEC with respect to his holdings of the
Company’s common stock on June 30, 2008, which filing was subsequently amended
by Amendment Number 1, filed July 11, 2008, Amendment Number 2, filed July 17,
2008 and Amendment Number 3, filed September 24, 2008. In Section 5
of Amendment Number 3, Mr. Kanders disclosed that he has ceased to be the
beneficial owner of more than five percent of the Company’s common stock on
September 19, 2008 (and thus was no longer subject to the Schedule 13D filing
requirements).
Item 4 of each of the Schedule 13D
filings accurately described the then current plans or proposals of Mr. Kanders
in connection with the matters referred to in paragraphs (a) through (j) of Item
4. There was no disclosure of any plans to seek board representation at that
time since at the times of the filing of the original Schedule 13D and each of
the amendments thereto, Mr. Kanders had no intention to seek board
representation. Mr. Kanders’ decision to seek representation on
the Company’s Board was made in early 2009, when Mr. Kanders determined that the
Board had failed to develop a new cohesive strategic vision for the Company and
after the Company’s new CEO had failed to reach out to Mr. Kanders to address
the Company’s strategic direction. This decision was reached
significantly after Mr. Kanders’ reporting obligations under Schedule 13D had
ceased. Therefore, we believe that amended Schedule 13D disclosure is neither
required nor appropriate.
B. The following
sets forth our responses to the two comments made in the Staff’s February 19,
2009 Letter:
|
1.
|
See comment 1 from our prior
letter dated February 3, 2009. That comment also applies to
this soliciting material. In that comment, we generally
referred to you Rule 14a-12(a)(1)(i), and we indicated that it was unclear
whether under the section entitled “Certain Information Concerning
Participants,” whether you had described each individual’s interest in the
solicitation. We also stated that merely disclosing the number
of shares each participant holds may not satisfy the obligation to
describe any indirect interests or interests arising outside of such share
ownership. We also noted from an exhibit to a Schedule 13D
amendment you filed on September 24, 2008 that you were rejected for a
position as CEO of Federal Signal. To that end, in future
filings, revise to disclose the history of your efforts to obtain a
position with the Company, and any other interests associated with this
solicitation, including those of any other
participants.
|
Please see response set forth above
regarding Comment 1 of the Staff’s February 3, 2009 Letter, which is equally
applicable here.
|
2.
|
In future filings, please
characterize each statement or assertion of opinion or belief as such, and
ensure that a reasonable basis for each opinion or belief
exists. Support for opinions or beliefs must be self-evident,
disclosed in the proxy statement or provided to the
staff. Further, you must refrain from making any insupportable
statements. We cite the following statement that requires
support and characterization as your
opinion:
|
“The current Board of Federal
Signals, some of whom have been members of the
Board for over ten years, has presided over continual missteps in strategy and
execution and failed to be accountable to the Company’s real owners, its
shareholders.”
In future filings, Mr. Kanders will
endeavor to characterize each statement or assertion of opinion or belief as
such, and ensure that a reasonable basis for each opinion or belief
exists.
C. In accordance with
the requirements of the Staff’s comments letters, Mr. Kanders hereby
acknowledges that:
|
·
|
Mr. Kanders is
responsible for the adequacy and accuracy of the disclosure in the
filings;
|
|
·
|
Staff comments or changes to
disclosure in response to staff comments do not foreclose the Securities
and Exchange Commission (“Commission”) from taking any action with respect
to the filings; and
|
|
·
|
Mr. Kanders may not assert staff
comments as a defense in any proceeding initiated by the Commission or any
person under the federal securities laws of the United States.
|
We trust that the above discussion
adequately responds to the questions raised. Thank you for your
attention to these matters.
| |
Very
truly yours,
/s/ Jeffrey S.
Tullman
Jeffrey S.
Tullman
|