SEC Comment Letter for Forward Industries, Inc. (FORD) (CIK 0000038264) (FWDI) — Dec 3, 2014
Forward Industries, Inc. (FORD) (CIK 0000038264)
Date: Dec. 3, 2014 · CIK: 0000038264 · Accession: 0000000000-14-061633
AI Filing Summary & Sentiment
Reasoning
Letter
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 DIVISION OF CORPORATION FINANCE December 2, 2014 Via E-Mail Michael J. Mies, Esq. Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue, Suite 1100 Palo Alto, CA 94301
Re: Forward Industries, Inc. Revised Preliminary Proxy Statement filed by Terence Bernard Wise et. al. Filed November 28 , 2014 File No. 001 -34780
Dear Mr. Mies:
We have reviewed your filing and have the following comments.
Background to the Solicitation, page 6 1. Please revise the May 28, 2014 entry (page 7) to include the entire text of the certificate of amendment to the bylaws as filed under cover of Form 8 -K on May 28, 2014.
Related Party Transactions , page 11 2. Refer to your disclosure that “over the past two years , a subset of the Board (from which Howard Morgan and [Mr. Wise] have been excluded) has overseen and approved a number of transactions that we disagreed with …” Disclose whether Mr. Wise and/or Mr. Morgan approved the creation of a committee of the board and whether Mr. Wise and/or Mr. Morgan voted against each related party transact ion described in this section. 3. We reissue prior comment 3 as it relates to the bullet point captioned “Issuance of New 6% Senior Convert ible Stock. ” Your response does not provide support for the statement that the “private placement was made without any input from or (prior notice to) ” Mr. Wise or Mr. Gordon , that the issuance “constitutes a material impairment to Forward ’s existing shareholders ” and that it was “intended only to dilute Forward ’s common shareholders ’ economic and voting power. ” 4. We note your response to prior comment 3 as it related to the bullet point captioned New dilutive issuance of convertible preferred stock. ” Disclose that the basis for your stated beliefs is the allegations made by Mr. McKenna in hi s lawsuit agai nst the company.
Michael J. Mies, Esq. Skadden, Arps, Slate, Meagher & Flom LLP Dece mber 2 , 2014 Page 2
5. We note your response to prior comment 5. Please tell us whether Mr. Wise or Mr. Morgan, as directors, have access to the lease agreement and related documentation besides the publicly filed documents .
Proposal No. 2, page 15 6. We reissue prior comment 7. Please disclose at the end of each proposal in the proxy statement how unmar ked proxy cards will be voted .++
Please direct any questions to me at (202) 551 -3619. Please send all correspondence to us at the following ZIP code: 20549 -3628.
Sincerely,
/s/ Daniel F. Duchovny
Daniel F. Duchovny
Special Counsel
Office of Mergers and Acquisitions
Show Raw Text
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
December 2, 2014
Via E-Mail
Michael J. Mies, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue, Suite 1100
Palo Alto, CA 94301
Re: Forward Industries, Inc.
Revised Preliminary Proxy Statement filed by Terence Bernard Wise et. al.
Filed November 28 , 2014
File No. 001 -34780
Dear Mr. Mies:
We have reviewed your filing and have the following comments.
Background to the Solicitation, page 6
1. Please revise the May 28, 2014 entry (page 7) to include the entire text of the certificate of
amendment to the bylaws as filed under cover of Form 8 -K on May 28, 2014.
Related Party Transactions , page 11
2. Refer to your disclosure that “over the past two years , a subset of the Board (from which
Howard Morgan and [Mr. Wise] have been excluded) has overseen and approved a
number of transactions that we disagreed with …” Disclose whether Mr. Wise and/or Mr.
Morgan approved the creation of a committee of the board and whether Mr. Wise and/or
Mr. Morgan voted against each related party transact ion described in this section.
3. We reissue prior comment 3 as it relates to the bullet point captioned “Issuance of New
6% Senior Convert ible Stock. ” Your response does not provide support for the statement
that the “private placement was made without any input from or (prior notice to) ” Mr.
Wise or Mr. Gordon , that the issuance “constitutes a material impairment to Forward ’s
existing shareholders ” and that it was “intended only to dilute Forward ’s common
shareholders ’ economic and voting power. ”
4. We note your response to prior comment 3 as it related to the bullet point captioned New
dilutive issuance of convertible preferred stock. ” Disclose that the basis for your stated
beliefs is the allegations made by Mr. McKenna in hi s lawsuit agai nst the company.
Michael J. Mies, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Dece mber 2 , 2014
Page 2
5. We note your response to prior comment 5. Please tell us whether Mr. Wise or Mr.
Morgan, as directors, have access to the lease agreement and related documentation
besides the publicly filed documents .
Proposal No. 2, page 15
6. We reissue prior comment 7. Please disclose at the end of each proposal in the proxy
statement how unmar ked proxy cards will be voted .++
Please direct any questions to me at (202) 551 -3619. Please send all correspondence to us
at the following ZIP code: 20549 -3628.
Sincerely,
/s/ Daniel F. Duchovny
Daniel F. Duchovny
Special Counsel
Office of Mergers and Acquisitions