Regulatory Filings • Apr 19, 2017
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Marc G. Alcser 949.725.4136 [email protected] Stradling Yocca Carlson & Rauth, P.C. 660 Newport Center Drive, Suite 1600 Newport Beach, CA 92660-6422 sycr.com CALIFORNIA NEWPORT BEACH SACRAMENTO SAN DIEGO SAN FRANCISCO SANTA BARBARA SANTA MONICA COLORADO DENVER NEVADA RENO WASHINGTON SEATTLE
April 19, 2017
SUBMITTED VIA EDGAR
Securities and Exchange Commission
Division of Corporation Finance
100 F Street, N.E.
Washington, D.C. 20549
Attention: Laura Nicholson
Tonya K. Aldave
| Re: |
|---|
| Preliminary |
| Proxy Statement on Schedule 14A |
| Filed |
| February 13, 2017 |
| File |
| No. 000-02396 |
| Responses |
| to Staff comments made by letter dated April 7, 2017 |
Dear Ms. Nicholson:
Set forth below on behalf of our client, Bridgford Foods Corporation, a California corporation (the “ Company ”), are the Company’s responses to comments made by the staff (the “ Staff ”) of the Securities and Exchange Commission (the “ Commission ”) by letter dated April 7, 2017 (the “ Comment Letter ”), in connection with the Company’s Preliminary Proxy Statement on Schedule 14A (File No. 000-02396), which the Company filed on February 13, 2017 (the “ Proxy Statement ”). Concurrent with the submission of this response letter, the Company is filing a marked copy of the revised Proposal 1 on Annex A .
The Company’s responses are preceded by a reproduction in italics of the corresponding Staff comments as set forth in the Comment Letter. References to “prior comment” are to comments made by the Staff by letter dated March 9, 2017 in connection with the Company’s Proxy Statement. The Company has filed this response letter including Annex A on EDGAR under the form label CORRESP.
Proposal 1. Approval of Amended and Restated Bylaws, page 8
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Securities and Exchange Commission
Division of Corporation Finance
Attn: Laura Nicholson
April 19, 2017
Page 2
| ● | adding
that attendance at a shareholder meeting shall constitute a waiver unless the person objects to such waiver at the beginning
of the shareholder meeting; |
| --- | --- |
| ● | changing
how a vacancy is created, as well as changing how a director may be removed; |
| ● | limiting
the Board of Directors’ ability to fill a vacancy created by the removal of a director; |
| ● | increasing
the notice requirements that must be provided to the Board of Directors prior to a meeting; |
| ● | adding
that attendance at a Board of Directors meeting will constitute a waiver unless the director protests that such presence is
not to act as a waiver; and |
| ● | adding
bylaws that expand the Board of Directors’ ability to act without a meeting, receive fees and compensation, and appoint
committees. |
For example, please clarify what rights a shareholder would waive by attending a shareholder meeting, and describe the changes to director removal procedures.
Company Response :
In response to the Staff’s comment, the Company has revised the above-referenced disclosures in Proposal 1 as shown on Annex A attached hereto.
Company Response :
In response to the Staff’s comment, the Company has added disclosure in Proposal 1, as shown on Annex A attached hereto, to state the purpose of the Company seeking the approval by the shareholders of all proposed changes to the existing bylaws. The penultimate paragraph of Proposal 1 states that “we believe that shareholder support of the Amended and Restated Bylaws is important and is a matter of good corporate governance practice.” The Company has no additional reasons for seeking the approval by the shareholders of all proposed changes to the existing bylaws.
Also, in response to the Staff’s comment, the Company has added disclosure in Proposal 1, as shown on Annex A attached hereto, to state what action the Company will take in the event of a negative vote. The penultimate paragraph of Proposal 1 states that “[i]n the event of a negative vote on such approval, the Board of Directors will consider the wishes of the shareholders and propose revised bylaws at the next annual meeting.”
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Securities and Exchange Commission
Division of Corporation Finance
Attn: Laura Nicholson
April 19, 2017
Page 3
We hope the foregoing answers are responsive to your comments. Should the Staff have additional questions or comments regarding any of the foregoing, please do not hesitate to contact the undersigned via telephone at (949) 725-4136 or via email at [email protected] .
| Sincerely, |
|---|
| STRADLING |
| YOCCA CARLSON & RAUTH, P.C. |
| /s/ |
| Stradling Yocca Carlson & Rauth, P.C. |
| cc: |
|---|
| Cindy |
| Matthews-Morales, Corporate Controller |
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Securities and Exchange Commission
Division of Corporation Finance
Attn: Laura Nicholson
April 19, 2017
Page 4
ANNEX A
MARKED REVISED DRAFT PROPOSAL 1 TO PROXY STATEMENT
PROPOSAL 1
APPROVAL OF AMENDED AND RESTATED BYLAWS
The Board of Directors has approved, subject to shareholder approval at the Annual Meeting, the Amended and Restated Bylaws as set forth in Exhibit A hereto (the “Amended and Restated Bylaws”). If the Amended and Restated Bylaws are approved by the shareholders at the Annual Meeting, they will be effective upon such approval.
The Board of Directors believes that the Amended and Restated Bylaws improve the corporate governance of the Company by providing bylaws more appropriate for a publicly reporting company and will assist the Company in attracting and retaining officers and directors who will contribute to the Company’s ability to provide shareholders with increased value. The Company’s existing bylaws were adopted on December 31, 1952 (as amended to date, the “Existing Bylaws”). The Existing Bylaws allow the Board of Directors to unilaterally adopt amendments to the bylaws without shareholder approval except that the Board of Directors may not make, alter or repeal any bylaws changing the authorized number of directors. One of the amendments reflected in the Amended and Restated Bylaws relates to the changing the authorized number of directors. Although the Board has the authority to effect the other proposed changes to the Existing Bylaws described below without shareholder approval, the Company is seeking the approval by the Company’s shareholders of all of the proposed changes to the Existing Bylaws as a matter of good corporate governance practice .
Below is a brief summary of the ways in which the Amended and Restated Bylaws would modify Existing Bylaws. This summary is qualified in its entirety by reference to the full text of the Amended and Restated Bylaws, which you are urged to review carefully and is attached as Exhibit A hereto.
The amendments contained within the Amendment and Restated Bylaws that relate to changing the authorized number of directors, as well some other rights affecting shareholders are summarized as follows:
| Location
of Change in Amended and Restated Bylaw | Summary
of Provision | Rationale
Supporting Change |
| --- | --- | --- |
| Section
4 of Article II | Provides
that all notices of meetings of shareholders shall be sent or otherwise given not less than ten (10) nor more than sixty (60)
days before the date of such meeting. In addition, provides that all notices shall specify the place, date and
hour of the meeting and (i) in the case of a special meeting, the general nature of the business to be transacted, or (ii)
in the case of the annual meeting, those matters which the Board of Directors intends to present for action by the shareholders. If
the meeting is to be held in whole or in party by electronic transmission, the notice shall state the means of electronic
communication. | The
Existing Bylaws as currently drafted do not comply with California Corporations Code relating to shareholder notice. The
Existing Bylaws provide that notice may be given no less than seven (7) days before such meeting. The proposed
change ensures that the Company complies with state and federal notice requirements. |
| Section
9 of Article II | Provides
that attendance by a shareholder at a meeting will constitute a waiver of notice of that particular meeting, except when the
shareholder objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is not a waiver of any right to object to the consideration of
matters not included in the notice of the meeting if that objection is expressly made at the meeting. | The
proposed change is designed to mirror the statutory language found in the California Corporations Code. The proposed
change and the California Corporations Code would still require the notice of a meeting to include the matters to be voted
on in order for attendance at a meeting to be a valid waiver. This creates an additional incentive for the Company
to insure that all notices accurately reflect the items to be voted on at a meeting. |
| Section
14 of Article II | Provides
that the chairman of the Board of Directors, or such other officer of the Company designated
by a majority of the Board of Directors, will call meetings of the shareholders to order
and will act as presiding officer thereof. Provides
that at an annual meeting of the shareholders, only such business will be conducted or considered as is properly brought
before the meeting. To be properly brought before an annual meeting, business must be (i) specified in the notice of meeting
given by or at the discretion of the Board of Directors, (ii) otherwise properly brought before the meeting by the presiding
officer or by or at the direction of a majority of the Board of Directors, or (iii) otherwise properly requested to be
brought before the meeting by a shareholder of the Company who (x) is a shareholder of record at the time of giving of
the notice of such annual meeting or at the direction of the Board of Directors, (y) is entitled to vote at such meeting,
and (z) has given timely written notice to the secretary in accordance with Article II, Section 15 of the Amended and
Restated Bylaws. Provides
that director nominations may be made at an annual meeting of shareholders only (i) by or at the direction of the Board
of Directors or (ii) by any shareholder of record at the time of giving of the notice or at the direction of the Board
of Directors, who is entitled to vote for the election of directors at such meeting and who has given timely written notice
to the secretary in accordance with Article II, Section 15 of the Amended and Restated Bylaws. Provides
that at a special meeting of shareholders, only such business may be conducted or considered as is properly brought before
the meeting. To be properly brought before a special meeting, business must be (i) specified in the notice of the meeting
given by or at the direction of the chairman of the Board of Directors, the president, the vice present or the secretary
or (ii) otherwise properly brought before the meeting by the presiding officer or by or at the direction of a majority
of the Board of Directors. Lastly,
the determination whether any business sought to be brought before any annual or special meeting or whether any director
nomination was properly made will be made by the presiding officer of such meeting. | These
changes are appropriate to ensure that business conducted at an annual meeting or special meeting is proper. In
addition, it provides the shareholders with greater certainty regarding how to bring an item before a shareholder meeting. |
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| Section
15 of Article II | Provides
that a timely shareholder notice must be addressed to the secretary and delivered or
mailed to and received at the principal executive offices of the Company less than sixty
(60) nor more than ninety (90) calendar days prior to the anniversary date of the date
on which the Company first mailed its proxy materials for its immediately preceding annual
meeting of shareholders. However, in the event the annual meeting is called for a date
that is not within thirty (30) calendar days of the anniversary date of the date on which
the immediately preceding annual meeting of shareholders was called, to be timely, notice
by the shareholder must be so received not later than the close of business on the tenth
(10 th ) calendar day following the day on which public announcement of the
date of the annual meeting is first made. Provides
what information must be included in a shareholder’s notice to a secretary as to each matter the shareholder proposes
to bring before an annual meeting or special meeting. Provides
what information must be included in a shareholders’ notice to a secretary as to each shareholder director nominee. Nothing
in Sections 14 or 15 of Article 2 of the Amended and Restated Bylaws will affect any rights of shareholders set forth
in Rule 14a-8 of the Exchange Act. | These
changes will provide the Company and the shareholders with greater certainty regarding the timeframes and information in which
to submit notices. The changes will work harmoniously with the advance notice requirement of the Exchange Act rules. |
| --- | --- | --- |
| Section
2 of Article III | Amends
the authorized number of directors to be not less than eight (8) nor more than ten (10), until amended by the vote or written
consent of the holders of a majority of the outstanding shares entitled to vote. The exact number of directors
shall be nine (9) until changed by the Board of Directors or the shareholders. | These
changes will help the Company to add additional directors if desired to, among other things, provide greater flexibility to
comply with Nasdaq listing requirements. |
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| Sections
4 and 5 of Article III | Provides
that a vacancy on the Board of Directors will exist in the event of the death, resignation,
or removal of any director, or if the Board of Directors by resolution declares vacant
the office of a director who has been declared of unsound mind by court order or convicted
of a felony, or if the authorized number of directors is increased, or if the shareholders
fail, at any meeting of shareholders at which any director or directors are elected,
to elect the number of directors to be voted for at that meeting. A
vacancy may be filled by the Board of Directors, or if the number of directors then in office is less than a quorum by
(i) the unanimous written consent of the directors then in office, (ii) the affirmative vote of a majority of the directors
then in office at a meeting held pursuant to notice or waivers of notice complying with Section 307 of the California
Corporations Code, or (iii) a sole remaining director. Vacancies created by the removal of a director will be filled only
by approval of the shareholders, or by the unanimous written consent of all shares entitled to vote The
shareholders may elect a director or directors at any time to fill any vacancy or vacancies not filled by the directors,
but any such election by written consent, other than to fill a vacancy created by removal, will require the consent of
a majority of the outstanding shares entitled to vote. A director may not be elected by written consent to fill a vacancy
created by removal except by unanimous consent of all shares entitled to vote for the election of directors. Any
director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares
then entitled to vote at an election of directors. No reduction of the authorized number of directors will have the effect
of removing any director prior to the expiration of such director’s term of office. | These
proposed changes create more certainty on the mechanics of removing a director and filling
a vacancy. The Existing Bylaws only provide that a vacancy will exist in the event of
death, resignation or removal. The propose changes broaden the scope of how a vacancy
is created. The
California Corporations Code sections referenced in the Existing Bylaws were repealed in 1977. The Existing Bylaws required
the director to have been finally convicted of a felony. The proposed change which mirrors the current statutory
language of the California Corporations Code provides the Board of Directors with more discretion to remove a director
while the felony charges are pending. The
Existing Bylaws did not permit removal by written consent whereas the proposed changes permit removal by written consent. In
addition, the ability to remove a director without cause is designed to increase the shareholders ability to govern the
actions of the directors in creating long-term growth. In the event the shareholders remove a director, these changes
provide the shareholder with the exclusive right to fill the vacancy created by the removal. |
| --- | --- | --- |
| Section
9 of Article III | Provides
that in the event that notice of a special meeting is mailed, it shall be deposited in the United States mail at least four
(4) days before the time of holding the meeting. In the event that the notice is (i) delivered personally by hand,
by courier or by telephone, (ii) sent by facsimile or (iii) sent by electronic mail, it shall be delivered at least forty-eight
(48) hours before the time of the holding of the meeting, or on such shorter notice as the person or persons calling such
meeting may deem necessary and appropriate in the circumstances. | These
changes will improve the corporate governance of the Company by providing the board more time to consider the issues that
will be brought before a meeting. In addition, the Existing Bylaws are over sixty (60) years old and do not contemplate
notice delivery by facsimile or electronic mail. |
| Section
11 of Article III | Provides
that notice of a meeting will be deemed given to any director who attends the meeting without protesting, before or at its
commencement, the lack of notice to that director. | These
changes are designed to ensure that the actions taken by the Board of Directors at a meeting are duly authorized. The
Existing Bylaws stated that a written waiver must be signed to waive notice; however, these changes provide the Company with
greater flexibility. |
| Sections
14 and 15 of Article III | Provides
that any action required or permitted to be taken by the Board of Directors at a meeting
may be taken without a meeting, if all members of the Board of Directors consent in writing
to the action. Provides
that directors and members of committees may receive compensation for their services and may be reimbursed for expenses. | These
changes are appropriate for a public company. The ability to act without a meeting is designed to amend the bylaws
to match the statutory provisions in the California Corporations Code. In addition, the Company currently provides
compensation to its directors and the changes provide the governance authorization to provide such compensation. |
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| Section 1 of
Article VI | Provides
that each “indemnitee” (as such term is defined in the Amended and Restated
Bylaws) involved in a “proceeding” (as such term is defined in the Amended
and Restated Bylaws), whether the basis of such proceeding is alleged action in an official
capacity as a director or officer or in any other capacity while serving as a director
or officer, shall be indemnified and held harmless by the Company to the fullest extent
authorized by the California Corporations Code, against all expense, liability and loss
(including attorneys’ fees, judgments, fines and amounts paid in settlement) actually
and reasonably incurred by such indemnitee in connection therewith. |
| --- | --- |
| Section 2 of Article VI | Provides
that the Company shall have the right to advance indemnification expenses. However,
if a director or officer receives an advancement of indemnification expenses and it is later
determined such person was not entitled to be indemnified, such person shall repay such expenses. |
| Section 3 of Article VI | Provides
that if the Company does not pay the indemnitee in full within forty-five (45) days after
a written claim has been received by the Company, the indemnitee may bring suit on the Company. If
the indemnitee is successful, the Company will be required to pay the legal expenses incurred
by the indemnitee to enforce its rights to indemnification. |
| Section 4 of Article VI | Provides
that the right of indemnification and the right to the advancement of expenses will not be
exclusive of any other right which any person may have or later acquire for certain breaches
of duties or acts, omissions or transactions while acting in the capacity of director or officer
of the Company. |
| Section 5 of Article VI | Provides
that the Company may purchase and maintain insurance, at its expense, to protect itself from
any loss it may receive as a result of its power to indemnify such persons. |
| Section 6 of Article VI | Provides
that the Company may at its discretion grant rights to indemnification and rights to advancement
of expenses to any employee or agent of the Company. |
| Section 7 of Article VI | Provides
that the Board of Directors is authorized to enter into a contract with any director, officer,
employee or agent of the Company, providing for indemnification rights equivalent to or, if
the Board of Directors determines, greater than those provided for in the Amended and Restated
Bylaws, unless prohibited by the California Corporations Code or any other applicable law. |
| Section 8 of Article VI | Provides that any amendment to the Amended and
Restated Bylaws will not adversely affect any right or protection of a director or officer of the Company existing at the
time of such amendment, repeal or modification. |
In addition to the amendments described above, the Amended and Restated Bylaws reflect numerous other amendments, including, but not limited to:
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| ● | updating
the name of the Company from Bridgford Packing Company to Bridgford Foods Corporation; |
| --- | --- |
| ● | adding
information about the principal executive offices and other business offices where the Company is qualified to do business; |
| ● | expanding
the scope of permissible meeting locations to include meeting locations outside the State of California, as well as remote
communication or electronic transmission authorized by the California Corporations Code; |
| ● | changing
the date of the annual meeting from February 8 th every year to a date as determined by the Board of Directors; |
| ● | updating
who may call a special meeting of shareholders to include a majority of the Board of Directors, the president, the chairman
of the Board of Directors, or one or more holders of shares entitled to cast not less than 10% of the votes; |
| ● | adding
that following a request for a special shareholder meeting, the Company will provide notice to all shareholders entitled to
vote not less than thirty-five (35) nor more than sixty (60) days after the receipt of such request; |
| ● | stating
that notice needs to be provided if a meeting is adjourned and a new record date is fixed or the adjourned meeting is more
than forty-five (45) days after the date of the original meeting; |
| ● | providing
additional mechanics for voting at shareholder meetings; |
| ● | adding
that attendance at a shareholder meeting shall constitute a waiver unless the person objects to such waiver at the beginning
of the shareholder meeting; |
| ● | providing
the opportunity for a shareholder to revoke a consent until the Company obtains a requisite number of consents to approve
the action; |
| ● | adding
a bylaw to include the mechanics for setting a record date, which may not be more than sixty (60) nor less than ten (10) days
before the date of any such meeting; |
| ● | expanding
the bylaws on proxies to include that a proxy will not be valid once it is revoked, unless the proxy is irrevocable, or after
the expiration of eleven (11) months from the date the proxy is given; |
| ● | adding
bylaws relating to the appointment of an inspector of elections; |
| ● | stating
that each director, including a director elected to fill a vacancy, will hold office until the expiration of the term for
which elected and until a successor has been elected; |
| ● | removing
a provision relating to organizational meetings of the Board of Directors; |
| ● | changing
how a vacancy is created, as well as changing how a director may be removed; |
| ● | limiting
the Board of Directors’ ability to fill a vacancy created by the removal of a director; |
| ● | updating
where a Board of Directors meeting will take place, including a meeting by conference telephone, electronic video screen communication
or electronic communication by and to the Company; |
| ● | changing
the regular board meetings from a specific date to a time fixed by the Board of Directors; |
| ● | increasing
the notice requirements that must be provided to the Board of Directors prior to a meeting; |
| ● | adding
that attendance at a Board of Directors meeting will constitute a waiver unless the director protests that such presence is
not to act as a waiver; |
| ● | adding
that notice of an adjourned meeting is to be given if the adjourned meeting is more than twenty-four (24) hours away; |
| ● | adding
bylaws that expand the Board of Directors’ ability to act without a meeting, receive fees and compensation, and appoint
committees; |
| ● | removing
a provision relating to the corporate seal; |
| ● | changing
the titles of the officer to be chief executive officer, president, secretary and chief financial officer; |
| ● | updating
the description of the required officers of the Company; |
| ● | expanding
the requirements to inspect the share register to include shareholders holding at least five percent (5%) in the aggregate
of the voting shares of the Company or shareholders who hold at least one percent (1%) of the voting shares and have filed
a Schedule 14A with the SEC; |
| ● | removing
the provision requiring an annual report to shareholders and changing it to conform with the California Corporations Code
Section 1501 (noting that such provision is not to be contradictory with SEC reporting requirements); and |
| ● | adding
bylaws relating to an annual statement of general information and setting a record date for purposes other than notice and
voting. |
As discussed above, the amendments to our Existing Bylaws include the requirement to provide the Company with more advance notice for nominating directors and presenting business for consideration at the annual and special meeting of shareholders. Such amendments could have an anti-takeover effect as it makes it more difficult for the shareholders to take actions and to propose director nominees or present matters for approval of the shareholders, thereby deterring or rendering more difficult a merger, tender offer, proxy contest or an extraordinary corporate transaction opposed by the Company.
Proxies received in response to this solicitation will be voted “ FOR ” the approval of the Amended and Restated Bylaws unless otherwise specified in the proxy . The affirmative vote of a majority of the shares outstanding is required to approve the Amended and Restated Bylaws . Abstentions and broker non-votes will have the same effect as votes “AGAINST” the proposal. Brokers do not have discretion to vote uninstructed shares with respect to the proposal.
As mentioned in the second paragraph of this proposal, shareholder approval is not required for the Board of Directors to amend our Existing Bylaws except that the Board of Directors may not make, alter or repeal any bylaws changing the authorized number of directors. Notwithstanding the prior sentence, we believe that shareholder support of the Amended and Restated Bylaws is important and is a matter of good corporate governance practice. Approval of this proposal requires affirmative vote of a majority of the shares outstanding. In the event of a negative vote on such approval, the Board of Directors will consider the wishes of the shareholders and propose revised bylaws at the next annual meeting.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” THE APPROVAL OF THE AMENDED AND RESTATED BYLAWS.
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