Company Name: Oshkosh Truck Corp.
Public Availability Date: November 29, 2007
Document Sections:
INQUIRY LETTER
INQUIRY LETTER
APPENDIX
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
October 5, 2007
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F. Street N.E.
Washington, D.C. 20549
Re: Omission of Shareholder Proposal Submitted to Oshkosh Truck Corporation
Pursuant to Rule 14a-8(i)(10)
Ladies and Gentlemen:
In accordance with Rule 14a-8(j) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), we are writing on behalf of our client, Oshkosh
Truck Corporation (the "Company"), to request your concurrence that the Company
may exclude from the proxy materials for its 2008 Annual Meeting of Shareholders
(the "2008 Proxy Materials") the shareholder proposal and the related statement
of support (the "Proposal") that Mr. John Chevedden (the "Proponent") submitted
to the Company in August 2007. We are attaching copies of the Proposal and
related correspondence to this letter as Exhibit A.
For the reasons discussed below, we believe the Company may properly exclude the
Proposal from the 2008 Proxy Materials pursuant to Rule 14a-8(i)(10) under the
Exchange Act on the basis that the Company has already substantially implemented
the Proposal. We hereby request confirmation that the Office of Chief Counsel,
Division of Corporation Finance (the "Staff") will not recommend enforcement
action if the Company excludes the Proposal from the 2008 Proxy Materials.
Background
In August 2007, the Company received the Proposal from the Proponent. The
Proposal relates to the preferred share purchase rights (the "Rights") that the
Company issued pursuant to the Rights Agreement, dated as of February 1, 1999,
between the Company and Computershare Investor Services, LLC (as successor to
Firstar Bank, N.A.), as Rights Agent, as amended November 1, 2002 (the "Rights
Agreement"). Rights of this nature are often referred to as a "poison pill" or a
"rights plan." The Proposal states that "[s]hareholders request that our Board
take the steps to redeem our poison pill or subject it to a shareholder vote."
Under the plain language of the Proposal, it is clear that the Proposal relates
only to the existing Rights Agreement.
The Rights Agreement will expire by its terms on February 1, 2009 unless the
Rights Agreement is amended to extend its term. Prior to the date the 2008 Proxy
Materials are made available to the Company's shareholders, the Board of
Directors of the Company (the "Board") intends to adopt a resolution to the
effect that it will not extend the term of the Rights Agreement beyond its
stated expiration date. As a result of that Board action, the Rights Agreement
will expire on February 1, 2009. If the Board fails to adopt such a resolution,
then the Company will include the Proposal in the 2008 Proxy Materials.
Explanation of Basis for Exclusion
Rules Allow Exclusion of a Proposal That Has Been Substantially Implemented.
Rule 14a-8(i)(10) under the Exchange Act permits the exclusion of a proposal
from a company's proxy materials if "the company has already substantially
implemented the proposal." In interpreting Rule 14a-8(i)(10) and its
predecessor, Rule 14a-8(c)(10), the Staff has established that a proposal need
not be implemented in full or precisely as set forth by the proponent to be
considered substantially implemented. See Exchange Act Release No. 34-20091
(Aug. 16, 1983). A proposal may be properly excluded in those instances in which
the company's actions satisfactorily address the proposal's underlying concerns.
See, e.g., Masco Corporation (Mar. 29, 1999) (permitting exclusion of a proposal
because the Company had "substantially implemented" the proposal by adopting a
similar proposal that retained the underlying meaning and objective of the
initial proposal). In effect, the "substantial implementation" standard for the
exclusion of shareholder proposals and the "mootness" standard for exclusion
that preceded it enable a company to "avoid the possibility of [its]
shareholders having to consider matters that have been favorably acted upon by
management ..." Exchange Act Release No. 34-12598 (Jul. 7, 1976).
Board Action with Stated Expiration Implements the Proposal. The operative
language of the Proposal is that "our Board take the steps to redeem our poison
pill or subject it to a shareholder vote." As explained more fully below, a
logical reading of the Proposal is that it requests that the Rights Agreement be
subjected to a shareholder vote at the Company's next annual meeting (i.e., the
Company's 2009 Annual Meeting of Shareholders) after the annual meeting at which
shareholders vote on the Proposal (i.e., the Company's 2008 Annual Meeting of
Shareholders) unless the Company has redeemed the Rights before that meeting.
The Board will have taken action prior to the date the 2008 Proxy Materials are
made available to the Company's shareholders to the effect that the Board will
not extend the term of the Rights Agreement beyond its stated expiration date;
as a result, the Rights Agreement will expire in accordance with its terms prior
to the 2009 Annual Meeting of Shareholders. As explained in more detail below,
given the expiration date of the Rights Agreement, the Board's resolution not to
extend the term of the Rights Agreement substantially implements the Proposal.
Accordingly, there is nothing to be gained by presenting the Proposal to
shareholders at the 2008 Annual Meeting of Shareholders. In light of the Board's
action that will already have been taken, there is essentially no further action
necessary to satisfy the Proposal.
The Staff Has Allowed Exclusion of Rights Plan Proposals on this Basis. In a
number of no-action letters, the Staff has concurred that a shareholder proposal
to redeem an already-existing rights plan can be excluded on the grounds that
actions by a company's board of directors to cause the plan to terminate at a
later date constitute substantial implementation of the proposal. In AvalonBay
Communities, Inc. (Mar. 7, 2002), for example, the Staff allowed exclusion of a
proposal to redeem a poison pill unless the pill was approved by shareholders
where the board of directors adopted an amendment to the poison pill to
accelerate the expiration date of the pill to a date prior to the date of the
annual meeting at which the proposal would be considered. See also Praxair, Inc.
(Dec. 24, 2003; reaffirmed Feb. 13, 2004) (permitting exclusion of a proposal to
redeem a rights agreement on grounds of "substantial implementation" after the
board resolved to amend the rights agreement to require its termination at a
future date); Lear Corporation (Jan. 10, 2005) (proposal calling for the
redemption of any poison pill deemed to have been substantially implemented
after the board adopted an amendment to its rights plan to accelerate the
expiration date of the plan); and TJX Companies (Mar. 12, 1994) (proposal to
redeem shareholder rights plan properly excluded as "moot" because the board had
already adopted a resolution to redeem the rights at a specified future date).
More recently, in Morgan Stanley (Feb. 14, 2005), the Staff granted Rule
14a-8(i)(10) relief for a proposal to "redeem any active poison pill, unless
such poison pill is approved by the affirmative vote of holders of a majority of
shares present," where the rights agreement would expire by its terms 37 days
after the annual meeting and the company's board of directors resolved that the
poison pill would not be renewed following its expiration. Similarly, in
Schering-Plough Corporation (Feb. 28, 2008), the Staff agreed that a shareholder
proposal identical to the Proposal was properly excluded where the rights
agreement would expire by its terms 53 days after the annual meeting and the
company's board of directors resolved that the poison pill would not be renewed
following its expiration. In both cases, the rights agreement expired after the
date of the annual meeting at which the proposal would have been considered but
before the next annual meeting at which any shareholder vote on the poison pill
would occur.
The Company's Circumstances are Analogous. In the Company's instance, the Rights
Agreement will expire on February 1, 2009, after the annual meeting at which the
Proposal would be considered (i.e., the 2008 Annual Meeting of Shareholders) but
prior to the Company's next annual meeting (i.e., the 2009 Annual Meeting of
Shareholders). Further, similar to the boards of directors in Morgan Stanley and
Schering-Plough, the Board will adopt a resolution, prior to the date the 2008
Proxy Materials are made available to the Company's shareholders, to the effect
that it will not extend the term of the Rights Agreement beyond its stated
expiration date. Because the Rights Agreement will expire on February 1, 2009,
prior to the 2009 Annual Meeting of Shareholders, and its term will not be
extended, the Proposal has been substantially implemented. In accordance with
Company practice to hold its Annual Meeting of Shareholders on the first Tuesday
of February, the 2009 Annual Meeting of Shareholders will be scheduled for
February 3, 2009.
The Timing of Expiration Supports Exclusion. The expiration of the Rights
Agreement in accordance with its terms satisfies the objective of the Proposal
that the Rights Agreement be submitted to a shareholder vote unless the Rights
are earlier redeemed by the Company. The Proposal does not include any timing
requirement for the redemption of the Rights or the submission of the Rights
Agreement to a shareholder vote, which is something that many rights plan
proposals address. For example, the proposal in Morgan Stanley requested the
company's board of directors to redeem the poison pill or submit it to a
shareholder vote "as soon as practicable." In light of the Proposal's silence on
the subject of timing, a logical reading of the Proposal is that it contemplates
subjecting the Rights Agreement to a shareholder vote at the Company's 2009
Annual Meeting of Shareholders unless the Company has redeemed the Rights prior
to the time of that meeting. The expiration of the Rights Agreement in
accordance with its terms satisfies the Proposal as follows:
If the Company included the Proposal in the 2008 Proxy Materials, the
shareholders would act on the Proposal at the 2008 Annual Meeting of
Shareholders on February 5, 2008.
Shareholder approval of the Proposal would have the effect of a request by
shareholders through their vote on February 5, 2008 that the Board subject the
Rights Agreement to a shareholder vote. There is no reason to suggest that the
Proposal contemplates a special meeting of shareholders.
Therefore, the Rights Agreement would be subjected to a shareholder vote at
the next scheduled vote of the Company's shareholders, which will occur at the
2009 Annual Meeting of Shareholders to be scheduled for February 3, 2009.
As noted above, as a result of the Board's action, the Rights Agreement will
have expired by its terms on February 1, 2009, prior to the 2009 Annual Meeting
of Shareholders.
The expiration of the Rights Agreement will clearly satisfy the objective of the
Proposal that the Rights Agreement be submitted to a shareholder vote unless the
Rights are earlier redeemed by the Company. Accordingly, given the language of
the Rights Agreement under which it expires on February 1, 2009, the Board's
resolution not to extend the term of the Rights Agreement substantially
implements the Proposal.
Moreover, even if one were to assume that the Proposal includes a timing
requirement similar to that in Morgan Stanley, the determination that the
Proposal has been substantially implemented should remain. In determining
whether a proposal has been substantially implemented, the Staff has
consistently placed greater emphasis on the material implementation of the
underlying objectives of the proposal than on differences between the company's
timing for implementing the proposal and the timing for such implementation
suggested by the proposal. See, e.g., Comarco, Inc. (Mar. 8, 2006); accord
Raytheon Company (Jan. 26, 2005) (policy stating that any future rights plan
adopted by the company's board without prior shareholder approval would expire
within one year of its adoption unless ratified by the shareholders
substantially implemented a proposal that would have required shareholder
approval within four months). See also Masco Corporation, supra. Here, the
underlying objective of the Proposal is the submission of the Rights Agreement
to a shareholder vote unless the Rights are redeemed beforehand. The Board's
resolution not to extend the term of the Rights Agreement substantially
satisfies this objective.
The Proposal Does Not Address Future Plans. Because the Proposal does not
address future rights agreements that the Company may enter into, the expiration
of the existing Rights Agreement substantially implements the Proposal. In each
of Morgan Stanley and Schering-Plough, the company's board of directors had also
resolved or adopted a policy that any future rights agreement would be submitted
to shareholders. In addition, a great number of shareholder proposals, including
a number of proposals that the Proponent recently submitted to other companies,
request not only the redemption of a current rights plan, but also the
submission of any future rights plan to a shareholder vote. Here, because the
Proposal refers only to "our poison pill" and is completely silent as to future
rights agreements, the focus is rightfully on the existing Rights Agreement.
This proposition is supported by Morgan Stanley where the Staff, in considering
a proposal that referred only to "any active poison pill," based its decision
that the proposal had been substantially implemented on the fact that the
"active" rights agreement would expire 37 days after the annual meeting and
would not be renewed. That Morgan Stanley had in effect a policy concerning a
future rights agreement did not affect the Staff's determination whether the
proposal had been substantially implemented.
Conclusion. The Proposal states that "[s]hareholders request that our Board take
the steps to redeem our poison pill or subject it to a shareholder vote." As the
sequence set forth above illustrates, the expiration of the Rights Agreement
prior to the 2009 Annual Meeting of Shareholders satisfies the terms of the
Proposal. Therefore, the expiration of the Rights Agreement at that time
substantially implements the Proposal.
Rule 14a-8(j)
In accordance with Rule 14a-8(j) under the Exchange Act, six additional copies
of this letter, including the annexed Proposal and related correspondence, are
enclosed herewith. Also in accordance with Rule 14a-8(j), a copy of this letter
and its exhibits are being mailed on this date to the Proponent informing him of
the Company's intention to exclude the Proposal from the 2008 Proxy Materials.
The Company will hold its 2008 Annual Meeting of Shareholders on February 5,
2008 and currently intends to mail the 2008 Proxy Materials to shareholders, and
file its definitive proxy materials with the Commission, on or about December
17, 2007. The date 80 days from the date of this letter is December 24, 2007.
Accordingly, we are submitting this letter fewer than 80 days before the Company
intends to file its definitive proxy materials with the Commission. If
necessary, the Company will postpone the date on which it intends to mail and
file the 2008 Proxy Materials so that that date is at least 80 days after the
date we submitted this letter. However, Rule 14a-8(j) provides that the Staff
may permit the Company to make its submission fewer than 80 days before the
Company files its definitive proxy materials if the Company demonstrates good
cause for missing the deadline. Because of the facts described below, the
Company respectfully requests a waiver of the 80-day requirement and submits
that, in light of these facts, the Company had "good cause" for its inability to
meet the 80-day requirement.
The Board had its first opportunity to consider the Proposal at its scheduled
mid-September meeting. Since that meeting, the Company and the Proponent have
been engaged in ongoing, good faith written and oral communications with respect
to the conditions under which the Proponent might withdraw the Proposal.
Throughout these communications, the Company has attempted to satisfy the
requests of the Proponent without having to include the Proposal in the 2008
Proxy Materials. It now appears that the Company will be unable to satisfy the
Proponent in any manner other than by including the Proposal in the 2008 Proxy
Materials. Because the Company has delayed the submission of this letter in
hopes of reaching an agreement with the Proponent, the Company cannot timely
submit this letter to the Staff without postponing the date on which it intends
to mail and file the 2008 Proxy Materials. Additionally, because of the ongoing
communications between the Proponent and the Company, we respectfully submit
that the Proponent is already familiar with the Company's position as
articulated in this request and will have an adequate opportunity to respond to
it, consistent with the purpose of Rule 14a-8(j).
Conclusion
For the reasons set forth above, we believe that the Company may exclude the
Proposal from the 2008 Proxy Materials under Rule 14a-8(i)(10), and we hereby
request confirmation that the Staff will not recommend any enforcement action if
the Company so excludes the Proposal.
The Company anticipates that the 2008 Proxy Materials will be finalized for
printing in December 2008 to meet the Company's schedule for filing and mailing
definitive proxy materials. The Staff's prompt review of this matter would be
greatly appreciated. If the Staff disagrees with any of our conclusions, or is
not inclined to grant the advice or relief requested in this letter, then we
respectfully request an opportunity to discuss the matter with the Staff prior
to any written response to this letter. If you have any questions or if you
require any additional information concerning this letter and the matters we
discuss in this letter, please contact me at (414) 297-5678 or John K. Wilson at
(414) 297-5642.
Please acknowledge receipt of this filing by date-stamping the enclosed copy of
this letter and returning it in the envelope provided for that purpose.
Very truly yours,
/s/
Patrick G. Quick
cc: Bryan J. Blankfield
Pamela Patzke
Oshkosh Truck Corporation
John K. Wilson
Spencer T. Moats
Foley & Lardner LLP
[INQUIRY LETTER]
AUG 16 2007
Mr. Bryan J. Blankfield
Corporate Secretary
Oshkosh Truck Corporation
2307 Oregon St
Oshkosh WI 54902
Phone: 920 235-9151
Fax: 920 233-9314
FX: 920 - 233-9231<AUG. 16, 2007>
Rule 14a-8 Proposal
Dear Mr. Blankfield,
This Rule 14a-8 proposal is respectfully submitted in support of the long-term
performance of our company. This proposal is submitted for the next annual
shareholder meeting. Rule 14a-8 requirements are intended to be met including
the continuous ownership of the required stock value until after the date of the
respective shareholder meeting and presentation of the proposal at the annual
meeting. This submitted format, with the shareholder-supplied emphasis, is
intended to be used for definitive proxy publication.
In the interest of saving company expenses please communicate via email to
olmsted7p2@earthlink.net.
Your consideration and the consideration of the Board of Directors is
appreciated in support of the long-term performance of our company. Please
acknowledge receipt of this proposal by email.
Sincerely,
/s/
John Chevedden
August 1, 2007
cc: Robert G. Bohn
Chairman
[APPENDIX]
[Rule 14a-8 Proposal, August 1, 2007]
3Redeem Our Poison Pill
RESOLVED: Shareholders request that our Board take the steps to redeem our
poison pill or subject it to a shareholder vote. Currently our management is
protected by a poison pill that triggers at a low 15% threshold. A poison pill
has the potential to give our directors increased job security if our stock
price declines significantly due to our directors' poor performance.
"Poison pills ... prevent shareholders, and the overall market, from exercising
their right to discipline management by turning it out. They entrench the
current management, even when it's doing a poor job. They water down
shareholders' votes and deprive them of a meaningful voice in corporate
affairs."
"Take on the Street" by Arthur Levitt, SEC Chairman, 1993-2001
"[Poison pill] That's akin to the argument of a benevolent dictator, who says,
`Give up more of your freedom and I'll take care of you.'"
T.J. Dermot Dunphy, CEO of Sealed Air (NYSE) for 25 years
"That's the key negative of poison pills - instead of protecting investors, they
can also preserve the interests of management deadwood as well."
Morningstar.com, Aug. 15, 2003
This topic won a 52% yes-vote average at 12 major companies in 2006. The Council
of Institutional Investors www.cii.org formally recommends adoption of this
proposal topic.
John Chevedden, Redondo Beach, Calif., who sponsored a number of proposals on
this topic, said the advantage for adopting this proposal should be evaluated in
the context of our company's overall corporate governance. For instance in 2007
the following governance status was reported for our company (and certain
concerns are noted):
The Corporate Library (TCL) http://www.thecorporatelibrary.com/ an independent
research firm rated our company:
"Moderate" in Overall Governance Risk Assessment.
"Moderate Concern" regarding our Board of Directors.
We had no Independent Chairman nor even a Lead Director.
No Cumulative voting right.
No shareholder right to act by written consent.
Directors Fites and Cornog were designated "Accelerated Vesting" directors due
to their service on a board that accelerated stock option vesting just prior to
implementation of FAS 123R.
Director Mosling was potentially conflicteddue to non-director business with
our company.
Plus Directors Mosling and Andersen had 31-years tenure which could impact
their independence.
We had no Compensation or Nomination Board Committee.
We had not yet graduated to a majority vote election standard.
We had supermajority vote barriers as high as 80%.
The above deficiencies shows there is room for improvement and serves as an
opportunity for other shareholders, who own at least $2000 of stock, to submit
proposals similar to this regarding some of the above topics. These deficiencies
also reinforce the reason to take one step forward now and vote yes:
Redeem Our Poison Pill Yes on 3
Notes:
John Chevedden, 2215 Nelson Ave., No. 205, Redondo Beach, Calif. sponsors this
proposal.
The above format is requested for publication without re-editing or
re-formatting.
The company is requested to assign a proposal number (represented by "3" above)
based on the chronological order in which proposals are submitted. The requested
designation of "3" or higher number allows for ratification of auditors to be
item 2.
This proposal is believed to conform with Staff Legal Bulletin No. 14B (CF),
September 15, 2004 including:
Accordingly, going forward, we believe that it would not be appropriate for
companies to exclude supporting statement language and/or an entire proposal in
reliance on rule 14a-8(i)(3) in the following circumstances:
the company objects to factual assertions because they are not supported;
the company objects to factual assertions that, while not materially false or
misleading, may be disputed or countered;
the company objects to factual assertions because those assertions may be
interpreted by shareholders in a manner that is unfavorable to the company, its
directors, or its officers; and/or
the company objects to statements because they represent the opinion of the
shareholder proponent or a referenced source, but the statements are not
identified specifically as such.
See also: Sun Microsystems, Inc. (July 21, 2005).
Please note that the title of the proposal is part of the argument in favor of
the proposal. In the interest of clarity and to avoid confusion the title of
this and each other ballot item is requested to be consistent throughout all the
proxy materials.
Please advise if there is any typographical question.
Stock will be held until after the annual meeting and the proposal will be
presented at the annual meeting.
Please acknowledge this proposal by email within 14-days and advise the most
convenient fax number and email address to forward a broker letter, if needed,
to the Corporate Secretary's office.
[INQUIRY LETTER]
October 5, 2007
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
Oshkosh Truck Corporation (OSK)
Shareholder Position on Company No-Action Request
Rule 14a-8 Proposal: Poison Pill
John Chevedden
Ladies and Gentlemen:
This is an initial response to the company no action request which is dated
October 5, 2007 starting at page 2.
This is the Resolved statement:
"3 - Redeem Our Poison Pill
"RESOLVED: Shareholders request that our Board take the steps to redeem our
poison pill or subject it to a shareholder vote. Currently our management is
protected by a poison pill that triggers at a low 15% threshold. A poison pill
has the potential to give our directors increased job security if our stock
price declines significantly due to our directors' poor performance."
Thus the rule 14a-8 proposal requests the company to "redeem our poison pill or
subject it to a shareholder vote." If one temporarily accepts the company
argument that there is no point to subject the poison pill to a shareholder
vote, then there is still nothing to prevent the company from redeeming the
poison pill from up to 11-months ahead of schedule. Therefore if this proposal
receives a strong shareholder vote at the February 2008 annual meeting, it could
be adopted almost immediately by the board in response to the shareholder vote.
The company presented no argument that there is nothing to be gained for the
board to adopt a shareholder proposal by redeeming the pill promptly after it
receives a strong shareholder vote, for instance in February or March 2008 as
opposed to waiting until 2009.
Additionally the company claims credit for communication with the proponent.
Unfortunately this communication included the statement or threat that one
reason to withdraw this proposal is that the company would strictly enforce the
rules regarding a qualified representative making the required annual meeting
presentation, should this proposal be published in the proxy.
For the above reasons it is respectfully requested that concurrence not be
granted to the company on the purported basis of substantial implementation. It
is also respectfully requested that the shareholder have the last opportunity to
submit material in support of including this proposal - since the company had
the first opportunity.
Sincerely,
John Chevedden
cc:
Pamela Patzke<ppatzke@oshtruck.com>
Oshkosh Truck Corporation (OSK)
Associate General Counsel - Corporate & Securities
2307 Oregon Street
P.O. Box 2566
Oshkosh, WI 54903-2566
Phone - 920-233-9301
Fax - 920-233-9231
[INQUIRY LETTER]
October 12, 2007
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
Oshkosh Truck Corporation (OSK)
# 2 Shareholder Position on Company No-Action Request
Rule 14a-8 Proposal: Poison Pill
John Chevedden
Ladies and Gentlemen:
This is an additional response to the company no action request which is dated
October 5, 2007 starting at page 2.
The company argues that it can implement a proposal by doing almost nothing. The
company only claims that on some unspecified date that it will make a resolution
not to extend its poison pill past a long-established date, which will
presumably be more than one-year in the future. This is contrary to precedents
the company cited where other companies took a variety of actions such as moving
forward poison pill expiration dates and actions that limited the use of poison
pills. The company does not address why it has not moved forward the expiration
date of its poison pill just like its purported precedents did. The company
essentially claims that a poison pill expiring 37-days or 53-days after an
annual meeting at other companies is as effective as a poison pill expiring
360-days after the company's next annual meeting.
Redeeming the pill clearly has priority over a shareholder vote on it, based on
the preference indicated by the ordering of the text.
The company "logical reading of the Proposal" omits the fact that the first
priority of the proposal is to "redeem" the pill. Then as a secondary option the
company is asked to subject the pill to a shareholder vote. Furthermore the
company does not even claim its "logical reading of the Proposal" is likely to
be the most accurate "logical reading of the Proposal." The company does not
address its "logical reading" argument to the that fact that the 4-word title of
the proposal at both the beginning and the conclusion of the proposal is "Redeem
Our Poison Pill."
The company does not answer why, if its does not want to do the emphasized first
part of the proposal (redeem the pill), that it should then be given special
consideration and a special interpretation so that it does not have to do the
second part of the proposala shareholder vote.
The text of the proposal refers to "our poison pill." It does not specify a
poison pill expiring on a particular date. If the company adopts a new poison
pill, it does not claim that such a new poison pill would be something other
than "our poison pill."
Additionally the company will not even make a commitment that it will not adopt
a new poison pill during the two-days preceding its February 3, 2009 annual
meeting. The company does not claim that if it adopts a new poison pill that
such a pill would not be "our poison pill" and thereby potentially subject to
the text of this rule 14a-8 proposal.
For the above reasons it is respectfully requested that concurrence not be
granted to the company on the purported basis of substantial implementation. It
is also respectfully requested that the shareholder have the last opportunity to
submit material in support of including this proposal - since the company had
the first opportunity.
Sincerely,
John Chevedden
cc:
Pamela Patzke<ppatzke@oshtruck.com>
Oshkosh Truck Corporation (OSK)
Associate General Counsel - Corporate & Securities
2307 Oregon Street
P.O. Box 2566
Oshkosh, WI 54903-2566
Phone - 920-233-9301
Fax - 920-233-9231
[INQUIRY LETTER]
October 26, 2007
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F. Street N.E.
Washington, D.C. 20549
Re: Rule 14a-8(i)(10) No-Action Request Submitted October 5, 2007
Ladies and Gentlemen:
Please refer to our letter dated October 5, 2007 (the "Original Request") that
we submitted on behalf of our client Oshkosh Truck Corporation (the "Company")
regarding the shareholder proposal and the related statement of support (the
"Proposal") that Mr. John Chevedden (the "Proponent") submitted to the Company
in August 2007. This letter responds in general terms to the Proponent's
objections to the Original Request as set forth in the Proponent's objection
letters to the Staff dated October 5, 2007 and October 12, 2007. Capitalized
terms used but not defined in this letter shall have the respective meanings
ascribed to them in the Original Request. We respectfully request that you
consider the following:
1. The Proponent May Not Rewrite the Proposal. In his responses, the Proponent
argues that, to substantially implement the Proposal, the Company must both
redeem the Rights and do so prior to the February 1, 2009 expiration date of the
Rights Agreement. The Proponent's argument (a) is inconsistent with the plain
language of the Proposal, which presents an alternative: "[s]hareholders request
that our Board take the steps to redeem our poison pill or subject it to a
shareholder vote" (emphasis added), and (b) seeks to add a time requirement that
is not in the Proposal. If the Proponent only wanted the Rights redeemed and
further wanted this done prior to February 1, 2009, then the Proponent should
have stated this in the Proposal as he has done in other instances as to
timing.1 He should not now be allowed to rewrite the Proposal to eliminate one
of the two equal alternatives in the Proposal or to impose timing requirements
not originally included.
2. The Proposal Does Not Apply to Future Rights Plans. The Proponent argues that
a non-existent, future rights plan, which he supposes may be adopted subsequent
to the expiration of the Rights Agreement, comes within the meaning of "our
poison pill" as written in the Proposal. This too is inconsistent with the
ordinary meaning of the Proposal. The use of the word "our" in the Proposal
clearly contemplates only the Company's existing Rights Agreement. The Proponent
drafted the Proposal and elected to focus only on the Company's existing Rights
Agreement, contrary to what he has done in other cases.2 He cannot now "edit"
the Proposal to argue that it extends to non-existent, future rights agreements.
3. The Company's Action Fully Implements the Proposal. In stating that the
Company "argues that it can implement the proposal by doing almost nothing," the
Proponent both misunderstands and misstates the Company's position. At its
November 15, 2007 meeting, the Board intends to adopt a resolution to the effect
that it will not extend the term of the Rights Agreement beyond its stated
expiration date. The Board's action will be effective prior to the date the 2008
Proxy Materials are made available to the Company's shareholders. That this
action is occurring after the Company submitted the Original Request does not
affect the result. The Staff has accepted companies' representations as
sufficient grounds for granting no-action relief pursuant to Rule 14a-8(i)(10).3
If the Company were to include the Proposal in the 2008 Proxy Materials and
shareholders were to vote in favor of the Proposal (at the 2008 Annual Meeting
of Shareholders), a shareholder vote on the Rights Agreement would not occur
until the 2009 Annual Meeting of Shareholders. However, as a result of the
Board's action at its November 15, 2007 meeting, the Rights Agreement will no
longer exist at the time of the 2009 Annual Meeting of Shareholders, rendering a
shareholder vote on the Rights Agreement moot. Accordingly, the Board's
resolution not to extend the term of the Rights Agreement substantially
implements the Proposal.
4. Acceleration of the Expiration Date is Not Required. The Proponent argues
that "the [C]ompany does not address why it has not moved forward the expiration
date of its poison pill just like its purported precedents did." As with the
Proponent's other arguments, this both ignores the language of the Proposal,
which does not request an acceleration of the expiration date, and misreads the
Company's cited precedents. In both Morgan Stanley (February 14, 2005) and
Schering Plough Corporation (February 28, 2007), the Staff granted Rule
14a-8(i)(10) relief in the absence of any action by the company to accelerate
the expiration date of its rights plan.
Finally, while the Company reminded the Proponent that presenting the Proposal
at the 2008 Annual Meeting of Shareholders would require compliance with the
requirements of Rule 14a-8(h), the Company objects to the suggestion that this
constituted a "threat" to the Proponent in any way.
Thank you for your consideration of our request. The Company will provide
additional evidence in support or explanation of its position in this letter and
in the Original Request as the Staff may require. If you have any questions,
please do not hesitate to contact me at (414) 297-5678 or John K. Wilson at
(414) 297-5642.
Very truly yours,
/s/
Patrick G. Quick
cc: Bryan J. Blankfield
Pamela Patzke
Oshkosh Truck Corporation
John K. Wilson
Spencer T. Moats
Foley & Lardner LLP
-----FOOTNOTES-----
1 In contrast to the Proposal, the Proponent has included specific timing
requirements in proposals he has submitted to other companies. See, e.g., Sempra
Energy (January 25, 2006) ("Shareholders request our Board of Directors to
redeem any poison pill ... as soon as may be practicable."); The Home Depot,
Inc. (March 7, 2005) ("Shareholders request that our Board adopt a policy that
any future poison pill be redeemed or put to a shareholder vote within 4-months
after it is adopted by our Board."); Raytheon Company (January 26, 2005)
("Shareholders request that our Board adopt a policy that any future poison pill
be redeemed or put to a shareholder vote within 4-months after it is adopted by
the Board."); and Lear Corporation (January 10, 2005) ("The shareholders ...
request our Board of Directors to redeem any poison pill ... as soon as may be
practicable.").
2 In contrast to the Proposal, the Proponent has expressly extended his proposal
to future agreements in numerous proposals he has submitted to other companies.
See, e.g., The Home Depot, Inc., supra; Raytheon Company, supra; and
Weyerhaeuser Company (March 8, 2004) ("the shareholders ... request that the
Board of Directors seek shareholder approval at the earliest subsequent
shareholder election, for the adoption, maintenance or extension of any current
or future poison pill").
3 See Masco Corporation (March 29, 1999) and Erie Indemnity Company (March 15,
1999).
[INQUIRY LETTER]
October 29, 2007
Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
Oshkosh Truck Corporation (OSK)
# 3 Shareholder Position on Company No-Action Request
Rule 14a-8 Proposal: Poison Pill
John Chevedden
Ladies and Gentlemen:
This is an additional response to the company no action request which is dated
October 5, 2007 starting at page 2 of the company letter.
The company argues that it can implement a proposal by doing almost nothing. The
company claims that in November 2007 that it will merely reaffirm a date set
more than 8-years ago. This is additionally inconsequential because the company
does not claim that it had earlier indicated that it would extend its poison
pill past February 2009. Twenty-four days have past since the company October 5,
2007 no action request and the company has not even provided a draft of its
proposed reaffirmation of an 8 year-old date.
This is contrary to precedents the company cited where other companies took a
variety of actions such as moving forward poison pill expiration dates and other
actions that limited the use of poison pills. The company does not address why
it has not moved forward the expiration date of its poison pill to be consistent
with its purported precedents. The company essentially claims that a poison pill
expiring 37-days or 53-days after an annual meeting at other companies is as
effective as a poison pill expiring 360-days after the company's next annual
meeting. The company claims that if it takes 5 or 10-times as long for a
purportedly similar event, as cited in its own precedents, that it should get
the same credit as the companies that acted 5 to 10-times faster.
Redeeming the pill clearly has priority over a shareholder vote on it, based on
the preference indicated by the ordering of the text.
The company "logical reading of the Proposal" omits the fact that the first
priority of the proposal is to "redeem" the pill. Then as a secondary
accommodating option the company is asked to subject the pill to a shareholder
vote. Furthermore the company does not even claim its "logical reading of the
Proposal" is likely to be the most accurate "logical reading of the Proposal."
The company does not address its "logical reading" argument to the that fact
that the 4-word title of the proposal at both the beginning and the conclusion
of the proposal is "Redeem Our Poison Pill."
The company does not answer why, if its does not want to do the emphasized first
part of the proposal (redeem the pill), that it should then be given special
consideration and a special interpretation so that it does not have to do the
second part of the proposala shareholder vote.
The company argument, if successful, would have a chilling effect on
shareholders including a second accommodating option in rule 14a-8 proposals.
The company essentially claims that if it is asked to do A and is given the
accommodating option of B, which is less than A, it is therefore entitled to
come up with C, which is lees than B, and then collect full credit for A.
The text of the proposal refers to "our poison pill." It does not specify a
poison pill expiring on a particular date. If the company adopts a new poison
pill, it does not claim that such a new poison pill would be something other
than "our poison pill." The company does not state that during the during the
1-1/2 year span from the date of the submittal of this rule 14a-8 proposal
through February 2009 that it would impossible for the company to have more than
one active poison pill which would of necessity be "our" poison pill.
Additionally the company will not even make a commitment that it will not adopt
a new poison pill during the two-days preceding its February 3, 2009 annual
meeting. The company does not claim that if it adopts a new poison pill that
such a pill would be something other than "our poison pill" and thereby subject
to the text of the rule 14a-8 proposal.
The company claims that it was purely an innocent gesture, not intimidation, to
give notice 4-months before the annual meeting, that it would strictly enforce
the rules regarding a qualified representative making the required annual
meeting presentation. Plus the company made this its final pitch its effort to
have the rule 14a-8 proposal withdrawn.
For the above reasons it is respectfully requested that concurrence not be
granted to the company on the purported basis of substantial implementation. It
is also respectfully requested that the shareholder have the last opportunity to
submit material in support of including this proposalsince the company had the
first opportunity.
Sincerely,
John Chevedden
cc:
Pamela Patzke<ppatzke@oshtruck.com>
Oshkosh Truck Corporation (OSK)
Associate General Counsel - Corporate & Securities
2307 Oregon Street
P.O. Box 2566
Oshkosh, WI 54903-2566
Phone - 920-233-9301
Fax - 920-233-9231
[STAFF REPLY LETTER]
November 29, 2007
Response of the Office of Chief Counsel Division of Corporation Finance
Re: Oshkosh Truck Corporation Incoming letter dated October 5, 2007
The proposal requests that the board take steps to redeem the company's poison
pill or subject it to a shareholder vote.
We are unable to concur in your view that Oshkosh Truck may exclude the proposal
under rule 14a-8(i)(10). Accordingly, we do not believe that Oshkosh Truck may
omit the proposal from its proxy materials in reliance on rule 14a-8(i)(10).
We note that Oshkosh Truck did not file its statement of objections to including
the proposal in its proxy materials at least 80 days before the date on which it
will file definitive proxy materials as required by rule 14a-8(j)(1). Noting the
circumstances of the delay, we do not waive the 80-day requirement.
Sincerely,
/s/
Mary Beth Breslin
Special Counsel
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