SEC Company Response from GCP Applied Technologies Inc. (CIK 0001644440) — Apr 9, 2020
GCP Applied Technologies Inc. (CIK 0001644440)
Date: April 9, 2020 · CIK: 0001644440 · Accession: 0001193125-20-102204
AI Filing Summary & Sentiment
File numbers found in text: 001-37533
Referenced dates: April 6, 2020
Letter
VIA EDGAR SUBMISSION AND COURIER Division of Corporation Finance Securities and Exchange Commission Re: GCP Applied Technologies Inc. Preliminary Proxy Statement on Schedule 14A Filed on April 3, 2020 File No. 001-37533
Dear Mr. Hindin:
This letter is in response to the comments contained in the Staff’s comment letter dated April 6, 2020 with respect to GCP Applied Technologies Inc.’s (“GCP”) Preliminary Proxy Statement on Schedule 14A, as filed with the Securities and Exchange Commission (the “Commission”) on April 3, 2020.
For the convenience of the Staff’s review, we have set forth the comments contained in the Staff’s comment letter, indicated in bold, followed by GCP’s responses immediately after each comment. In addition, we have filed an amended preliminary proxy statement on Schedule 14A.
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WACHTELL, LIPTON, ROSEN & KATZ
Mr. Perry J. Hindin
April 9, 2020
Page
Preliminary Proxy Statement
1. The preliminary proxy statement was filed using the EDGAR tag “PRE 14A” rather than the required tag “PREC14A,” which tag indicates that the materials relate to a contested election of directors. Please file the amended proxy statement with the PREC14A EDGAR tag and ensure that any subsequent proxy statement filings are properly designated.
In response to the Staff’s comment, we have re-filed the preliminary proxy statement using the EDGAR tag “PREC14A.”
2. We note your statements throughout the proxy materials that “[y]ou will NOT help elect the Board’s nominees if you sign and return white proxy cards sent by Starboard even if you vote to ‘withhold’ your vote with respect to Starboard’s nominees using the white proxy card.” Please qualify these statements to reflect the fact that Clay H. Kiefaber is included amongst both Starboard’s and your nominees.
In response to the Staff’s comment, we have revised these statements. See the Notice of 2020 Annual Meeting of Stockholders and pages 1 and 84.
3. Please confirm in response letter that in the event you select a substitute nominee prior to the Annual Meeting (as provided on page 18), you will file an amended proxy statement that (1) identifies the substitute nominee, (2) discloses whether the nominee has consented to being named in the revised proxy statement and to serve if elected and (3) includes disclosure required by Items 5(b) and 7 of Schedule 14A with respect to the nominee.
In response to the Staff’s comment, we confirm that in the event GCP selects a substitute nominee prior to the Annual Meeting, GCP will file an amended proxy statement that (1) identifies the substitute nominee, (2) discloses whether the nominee has consented to being named in the revised proxy statement and to serve if elected and (3) includes disclosure required by Items 5(b) and 7 of Schedule 14A with respect to the nominee.
4. We note the disclosure on page 25 indicating that the Board decided not to re-nominate Marran H. Ogilvie for election at the Annual Meeting. In this section (or in the appropriate alternative section of the proxy statement), please supplement your disclosure to clarify the basis on which the Board decided not to re-nominate Ms. Ogilvie.
In response to the Staff’s comment, we have revised the disclosure on page 25.
WACHTELL, LIPTON, ROSEN & KATZ
Mr. Perry J. Hindin
April 9, 2020
Page
5. We note the following disclosure on page 83: “If your broker, bank or other nominee forwards Starboard’s proxy materials to you, it may only be able to vote your shares with respect to the proposals at the Annual Meeting if you have instructed them on how to vote.” Please advise us of the legal basis upon which you have relied to conclude that persons other than brokers, such as banks and other nominees, may be ineligible to vote shares in the absence of instructions timely transmitted by beneficial owners. Alternatively, please revise to remove the implication that banks and other nominees are the equivalent of brokers and thus might not vote absent instructions from beneficial owners. See Item 21(b) of Schedule 14A.
In response to the Staff’s comment, we have revised the disclosure in the Notice of 2020 Annual Meeting of Stockholders and pages 82 and 83.
6. We note the following disclosure on page 86: “Abstentions and broker non-votes (as described above) will be counted in determining the quorum.” We further note, however, that the disclosure on page 20 indicates that “[b]roker non-votes will not be counted as present and are not entitled to vote on the election of directors.” Please revise to remove any inconsistency with respect to the effect of broker non-votes for purposes of determining whether a quorum is present at the Annual Meeting.
In response to the Staff’s comment, we have revised the disclosure on page 20.
7. Please revise the disclosure regarding the intended use of the discretionary authority available under Rule 14a-4(c)(1) so it conforms to the disclosure standard codified in that provision. At present, the disclosure suggests the right to use discretionary authority is absolute inasmuch as it can unconditionally be exercised “on such other matters as may properly come before the meeting . . . .”
In response to the Staff’s comment, we have revised the form of proxy to provide that discretionary authority will only be used “to the extent permitted by Rule 14(a)-4(c) under the Securities Exchange Act of 1934, as amended.”
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If you have any questions regarding the foregoing, please contact the undersigned at (212) 403-1122.
Very truly yours,
/s/ Viktor Sapezhnikov
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CORRESP 1 filename1.htm CORRESP WACHTELL, LIPTON, ROSEN & KATZ MARTIN LIPTON HERBERT M. WACHTELL THEODORE N. MIRVIS EDWARD D. HERLIHY DANIEL A. NEFF ANDREW R. BROWNSTEIN MARC WOLINSKY STEVEN A. ROSENBLUM JOHN F. SAVARESE SCOTT K. CHARLES JODI J. SCHWARTZ ADAM O. EMMERICH RALPH M. LEVENE RICHARD G. MASON DAVID M. SILK ROBIN PANOVKA DAVID A. KATZ ILENE KNABLE GOTTS JEFFREY M. WINTNER TREVOR S. NORWITZ BEN M. GERMANA ANDREW J. NUSSBAUM RACHELLE SILVERBERG STEVEN A. COHEN DEBORAH L. PAUL DAVID C. KARP RICHARD K. KIM JOSHUA R. CAMMAKER MARK GORDON JOSEPH D. LARSON JEANNEMARIE O’BRIEN WAYNE M. CARLIN STEPHEN R. DiPRIMA NICHOLAS G. DEMMO IGOR KIRMAN JONATHAN M. MOSES T. EIKO STANGE JOHN F. LYNCH WILLIAM SAVITT ERIC M. ROSOF GREGORY E. OSTLING DAVID B. ANDERS ANDREA K. WAHLQUIST ADAM J. SHAPIRO NELSON O. FITTS JOSHUA M. HOLMES 51 WEST 52ND STREET NEW YORK, N.Y. 10019-6150 TELEPHONE: (212) 403 -1000 FACSIMILE: (212) 403 -2000 __________ DAVID E. SHAPIRO DAMIAN G. DIDDEN IAN BOCZKO MATTHEW M. GUEST DAVID E. KAHAN DAVID K. LAM BENJAMIN M. ROTH JOSHUA A. FELTMAN ELAINE P. GOLIN EMIL A. KLEINHAUS KARESSA L. CAIN RONALD C. CHEN GORDON S. MOODIE DONGJU SONG BRADLEY R. WILSON GRAHAM W. MELI GREGORY E. PESSIN CARRIE M. REILLY MARK F. VEBLEN VICTOR GOLDFELD EDWARD J. LEE BRANDON C. PRICE KEVIN S. SCHWARTZ MICHAEL S. BENN SABASTIAN V. NILES ALISON ZIESKE PREISS TIJANA J. DVORNIC JENNA E. LEVINE RYAN A. McLEOD ANITHA REDDY JOHN L. ROBINSON JOHN R. SOBOLEWSKI STEVEN WINTER EMILY D. JOHNSON JACOB A. KLING RAAJ S. NARAYAN VIKTOR SAPEZHNIKOV MICHAEL J. SCHOBEL ELINA TETELBAUM ERICA E. BONNETT LAUREN M. KOFKE ZACHARY S. PODOLSKY RACHEL B. REISBERG MARK A. STAGLIANO GEORGE A. KATZ (1965-1989) JAMES H. FOGELSON (1967-1991) LEONARD M. ROSEN (1965-2014) __________ OF COUNSEL MARTIN J.E. ARMS MICHAEL H. BYOWITZ KENNETH B. FORREST SELWYN B. GOLDBERG PETER C. HEIN MEYER G. KOPLOW LAWRENCE S. MAKOW DOUGLAS K. MAYER PHILIP MINDLIN DAVID S. NEILL HAROLD S. NOVIKOFF LAWRENCE B. PEDOWITZ ERIC S. ROBINSON PATRICIA A. ROBINSON* ERIC M. ROTH PAUL K. ROWE DAVID A. SCHWARTZ MICHAEL J. SEGAL ELLIOTT V. STEIN WARREN R. STERN PAUL VIZCARRONDO, JR. PATRICIA A. VLAHAKIS AMY R. WOLF * ADMITTED IN THE DISTRICT OF COLUMBIA __________ COUNSEL DAVID M. ADLERSTEIN SUMITA AHUJA AMANDA K. ALLEXON LOUIS J. BARASH OLIVER J. BOARD FRANCO CASTELLI ANDREW J.H. CHEUNG PAMELA EHRENKRANZ KATHRYN GETTLES-ATWA ADAM M. GOGOLAK NANCY B. GREENBAUM MARK A. KOENIG J. AUSTIN LYONS ALICIA C. McCARTHY PAULA N. RAMOS NEIL M. SNYDER S. CHRISTOPHER SZCZERBAN JEFFREY A. WATIKER Direct Dial: (212) 403-1122 Direct Fax: (212) 403-2122 E-Mail: VSapezhnikov@wlrk.com April 9, 2020 VIA EDGAR SUBMISSION AND COURIER Mr. Perry J. Hindin Division of Corporation Finance Securities and Exchange Commission 100 F Street, N.E. Washington, D.C. 20549-3561 Re: GCP Applied Technologies Inc. Preliminary Proxy Statement on Schedule 14A Filed on April 3, 2020 File No. 001-37533 Dear Mr. Hindin: This letter is in response to the comments contained in the Staff’s comment letter dated April 6, 2020 with respect to GCP Applied Technologies Inc.’s (“GCP”) Preliminary Proxy Statement on Schedule 14A, as filed with the Securities and Exchange Commission (the “Commission”) on April 3, 2020. For the convenience of the Staff’s review, we have set forth the comments contained in the Staff’s comment letter, indicated in bold, followed by GCP’s responses immediately after each comment. In addition, we have filed an amended preliminary proxy statement on Schedule 14A. **** WACHTELL, LIPTON, ROSEN & KATZ Mr. Perry J. Hindin April 9, 2020 Page 2 Preliminary Proxy Statement 1. The preliminary proxy statement was filed using the EDGAR tag “PRE 14A” rather than the required tag “PREC14A,” which tag indicates that the materials relate to a contested election of directors. Please file the amended proxy statement with the PREC14A EDGAR tag and ensure that any subsequent proxy statement filings are properly designated. In response to the Staff’s comment, we have re-filed the preliminary proxy statement using the EDGAR tag “PREC14A.” 2. We note your statements throughout the proxy materials that “[y]ou will NOT help elect the Board’s nominees if you sign and return white proxy cards sent by Starboard even if you vote to ‘withhold’ your vote with respect to Starboard’s nominees using the white proxy card.” Please qualify these statements to reflect the fact that Clay H. Kiefaber is included amongst both Starboard’s and your nominees. In response to the Staff’s comment, we have revised these statements. See the Notice of 2020 Annual Meeting of Stockholders and pages 1 and 84. 3. Please confirm in response letter that in the event you select a substitute nominee prior to the Annual Meeting (as provided on page 18), you will file an amended proxy statement that (1) identifies the substitute nominee, (2) discloses whether the nominee has consented to being named in the revised proxy statement and to serve if elected and (3) includes disclosure required by Items 5(b) and 7 of Schedule 14A with respect to the nominee. In response to the Staff’s comment, we confirm that in the event GCP selects a substitute nominee prior to the Annual Meeting, GCP will file an amended proxy statement that (1) identifies the substitute nominee, (2) discloses whether the nominee has consented to being named in the revised proxy statement and to serve if elected and (3) includes disclosure required by Items 5(b) and 7 of Schedule 14A with respect to the nominee. 4. We note the disclosure on page 25 indicating that the Board decided not to re-nominate Marran H. Ogilvie for election at the Annual Meeting. In this section (or in the appropriate alternative section of the proxy statement), please supplement your disclosure to clarify the basis on which the Board decided not to re-nominate Ms. Ogilvie. In response to the Staff’s comment, we have revised the disclosure on page 25. WACHTELL, LIPTON, ROSEN & KATZ Mr. Perry J. Hindin April 9, 2020 Page 3 5. We note the following disclosure on page 83: “If your broker, bank or other nominee forwards Starboard’s proxy materials to you, it may only be able to vote your shares with respect to the proposals at the Annual Meeting if you have instructed them on how to vote.” Please advise us of the legal basis upon which you have relied to conclude that persons other than brokers, such as banks and other nominees, may be ineligible to vote shares in the absence of instructions timely transmitted by beneficial owners. Alternatively, please revise to remove the implication that banks and other nominees are the equivalent of brokers and thus might not vote absent instructions from beneficial owners. See Item 21(b) of Schedule 14A. In response to the Staff’s comment, we have revised the disclosure in the Notice of 2020 Annual Meeting of Stockholders and pages 82 and 83. 6. We note the following disclosure on page 86: “Abstentions and broker non-votes (as described above) will be counted in determining the quorum.” We further note, however, that the disclosure on page 20 indicates that “[b]roker non-votes will not be counted as present and are not entitled to vote on the election of directors.” Please revise to remove any inconsistency with respect to the effect of broker non-votes for purposes of determining whether a quorum is present at the Annual Meeting. In response to the Staff’s comment, we have revised the disclosure on page 20. 7. Please revise the disclosure regarding the intended use of the discretionary authority available under Rule 14a-4(c)(1) so it conforms to the disclosure standard codified in that provision. At present, the disclosure suggests the right to use discretionary authority is absolute inasmuch as it can unconditionally be exercised “on such other matters as may properly come before the meeting . . . .” In response to the Staff’s comment, we have revised the form of proxy to provide that discretionary authority will only be used “to the extent permitted by Rule 14(a)-4(c) under the Securities Exchange Act of 1934, as amended.” **** If you have any questions regarding the foregoing, please contact the undersigned at (212) 403-1122. Very truly yours, /s/ Viktor Sapezhnikov Viktor Sapezhnikov