Oshkosh Corporation Incoming Letter Dated September 20, 2016
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November 4, 2016 Marc S. Gerber Skadden, Arps, Slate, Meagher & Flom LLP [email protected] Re: Oshkosh Corporation Incoming letter dated September 20, 2016 Dear Mr. Gerber: This is in response to your letter dated September 20, 2016 concerning the shareholder proposal submitted to Oshkosh by John Chevedden. Copies of all of the correspondence on which this response is based will be made available on our website at http://www.sec.gov/divisions/corpfin/cf-noaction/14a-8.shtml. For your reference, a brief discussion of the Division’s informal procedures regarding shareholder proposals is also available at the same website address. Sincerely, Matt S. McNair Senior Special Counsel Enclosure cc: John Chevedden ***FISMA & OMB Memorandum M-07-16*** November 4, 2016 Response of the Office of Chief Counsel Division of Corporation Finance Re: Oshkosh Corporation Incoming letter dated September 20, 2016 The proposal asks the board to amend certain provisions of the company’s proxy access bylaw in the manner specified in the proposal. There appears to be some basis for your view that Oshkosh may exclude the proposal under rule 14a-8(i)(10). Based on the information you have presented, it appears that Oshkosh’s policies, practices and procedures compare favorably with the guidelines of the proposal and that Oshkosh has, therefore, substantially implemented the proposal. Accordingly, we will not recommend enforcement action to the Commission if Oshkosh omits the proposal from its proxy materials in reliance on rule 14a-8(i)(10). Sincerely, Evan S. Jacobson Special Counsel DIVISION OF CORPORATION FINANCE INFORMAL PROCEDURES REGARDING SHAREHOLDER PROPOSALS The Division of Corporation Finance believes that its responsibility with respect to matters arising under Rule 14a-8 [17 CFR 240.14a-8], as with other matters under the proxy rules, is to aid those who must comply with the rule by offering informal advice and suggestions and to determine, initially, whether or not it may be appropriate in a particular matter to recommend enforcement action to the Commission. In connection with a shareholder proposal under Rule 14a-8, the Division’s staff considers the information furnished to it by the company in support of its intention to exclude the proposal from the company’s proxy materials, as well as any information furnished by the proponent or the proponent’s representative. Although Rule 14a-8(k) does not require any communications from shareholders to the Commission’s staff, the staff will always consider information concerning alleged violations of the statutes and rules administered by the Commission, including arguments as to whether or not activities proposed to be taken would violate the statute or rule involved. The receipt by the staff of such information, however, should not be construed as changing the staff’s informal procedures and proxy review into a formal or adversarial procedure. It is important to note that the staff’s no-action responses to Rule 14a-8(j) submissions reflect only informal views. The determinations reached in these no-action letters do not and cannot adjudicate the merits of a company’s position with respect to the proposal. Only a court such as a U.S. District Court can decide whether a company is obligated to include shareholder proposals in its proxy materials. Accordingly, a discretionary determination not to recommend or take Commission enforcement action does not preclude a proponent, or any shareholder of a company, from pursuing any rights he or she may have against the company in court, should the company’s management omit the proposal from the company’s proxy materials. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 NEW YORK AVENUE, N.W. FIRM/AFFILIATE OFFICES WASHINGTON, D.C. 20005-2111 ----------- ________ BOSTON CHICAGO TEL: (202) 371-7000 HOUSTON FAX: (202) 393-5760 LOS ANGELES NEW YORK www.skadden.com PALO ALTO DIRECT DIAL WILMINGTON 202-371-7233 ----------- BEIJING DIRECT FAX BRUSSELS 202-661-8280 FRANKFURT EMAIL ADDRESS HONG KONG [email protected] LONDON MOSCOW MUNICH PARIS SÃO PAULO BY EMAIL ([email protected]) SEOUL SHANGHAI SINGAPORE TOKYO TORONTO September 20, 2016 U.S. Securities and Exchange Commission Division of Corporation Finance Office of Chief Counsel 100 F Street, N.E. Washington, D.C. 20549 RE: Oshkosh Corporation – 2017 Annual Meeting Omission of Shareholder Proposal of John Chevedden Ladies and Gentlemen: Pursuant to Rule 14a-8(j) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), we are writing on behalf of our client, Oshkosh Corporation, a Wisconsin corporation (the “Company”), to request that the Staff of the Division of Corporation Finance (the “Staff”) of the U.S. Securities and Exchange Commission (the “Commission”) concur with the Company’s view that, for the reasons stated below, it may exclude the shareholder proposal and supporting statement (the “Proposal”) submitted by John Chevedden (the “Proponent”) from the proxy materials to be distributed by the Company in connection with its 2017 annual meeting of shareholders (the “2017 proxy materials”). In accordance with Section C of Staff Legal Bulletin No. 14D (Nov. 7, 2008) (“SLB 14D”), we are emailing this letter and its attachments to the Staff at [email protected]. In accordance with Rule 14a-8(j), we are simultaneously sending a copy of this letter and its attachments to the Proponent as notice of the Company’s intent to omit the Proposal from the 2017 proxy materials. Office of Chief Counsel September 20, 2016 Page 2 Rule 14a-8(k) and Section E of SLB 14D provide that shareholder proponents are required to send companies a copy of any correspondence that the shareholder proponents elect to submit to the Commission or the Staff. Accordingly, we are taking this opportunity to remind the Proponent that if the Proponent submits correspondence to the Commission or the Staff with respect to the Proposal, a copy of that correspondence should concurrently be furnished to the Company. I. The Proposal The resolution of the Proposal is copied below: RESOLVED: Shareholders ask our Board of Directors to adopt, and present for shareholder approval, an enhancement package for the company bylaws allowing shareholder nominated candidates to be included in the company’s proxy materials, with essential elements for substantial implementation as follows: 1. The “Minimum Number” of shares of the Company’s common stock required to nominate shall be 3%, instead of 5%, as specified in current bylaws. 2. The number of shareholder-nominated candidates eligible to appear in proxy materials shall be one quarter of the directors then serving or two, whichever is greater. With twelve directors, current bylaws allow only up to two proxy access candidates. These amendments will allow for up to three, potentially enabling proxy access candidates to serve on each of the Company’s three committees without being over-extended. 3. No limitation shall be placed on the number of shareholders that can aggregate their shares to achieve the 3% “Required Shares,” outstanding shares of the Company entitled to vote in the election of directors. Under current provisions, even if the 20 largest public pension funds were able to aggregate their shares, they would not meet the 3% criteria at most companies examined by the Council of Institutional Investors. 4. No limitation shall be placed on the re-nomination of shareholder nominees based on the number or percentage of votes received in any election. Such limitations do not facilitate the shareholders’ traditional state law rights and add unnecessary complexity. Office of Chief Counsel September 20, 2016 Page 3 5. The bylaws shall not require that a nominator provide a statement of intent to continue to hold the required percentage of shares after the annual meeting. 6. Loaned securities shall be counted as belonging to a nominating shareholder if the shareholder represents it: (a) has the legal right to recall those securities for voting purposes, (b) will vote the securities at the shareholder meeting and (c) will hold those securities through the date of the annual meeting. Loaning securities to a third party with recall provisions greater than five days is not inconsistent with a long-term investment in a company. II. Basis for Exclusion We hereby respectfully request that the Staff concur in the Company’s view that it may exclude the Proposal from the 2017 proxy materials pursuant to Rule 14a-8(i)(10) because the Company has substantially implemented the Proposal. III. Background A. The Proposal The Company received the Proposal on August 8, 2016, accompanied by a cover letter from the Proponent. Copies of the Proposal and cover letter are attached hereto as Exhibit A. B. The Company’s Recent By-Law Amendment As described in greater detail below, on September 13, 2016, the Board of Directors (the “Board”) amended the Company’s By-Laws (as amended, the “Amended By-Laws”) to reduce the “Minimum Number” of shares of the Company’s common stock an “Eligible Holder” must “own” to make a proxy access nomination from 5% to 3% and to eliminate certain other provisions of the previous Office of Chief Counsel September 20, 2016 Page 4 proxy access by-law.1 The Amended By-Laws, which were effective immediately, are included as an exhibit to the Company’s Current Report on Form 8-K, filed with Commission on September 16, 2016, and that Form 8-K is attached hereto as Exhibit B. IV. The Proposal May be Excluded Under Rule 14a-8(i)(10) Because the Company Has Substantially Implemented the Proposal A. Rule 14a-8(i)(10) Rule 14a-8(i)(10) permits a company to exclude a shareholder proposal if the company has already substantially implemented the proposal. The Commission adopted the “substantially implemented” standard in 1983 after determining that the “previous formalistic application” of the rule defeated its purpose, which is to “avoid the possibility of shareholders having to consider matters which already have been favorably acted upon by the management.” See Exchange Act Release No.