Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting, page 2
| 2. | We noticed that the proxy statement and other soliciting material will be available at a dedicated website. Given the ambiguous use of the term “furnish” in the cover letter regarding the distribution of the proxy statement, please advise us whether or not the participants are relying upon Rule 14a-16 to distribute the proxy statement electronically as the primary means of fulfilling their obligations under Rule 14a-3(a) and Rule 14a- 4(f). If so, please summarize for us how compliance with Rule 14a-16 has been effectuated and/or explicitly indicate that a definitive proxy statement will be mailed via U.S. mail. |
Series One acknowledges the Staff’s comment and has revised the Proxy Statement to explicitly state that the Proxy Statement will be mailed to stockholders. Please see the first page of the cover letter and page 2 of the Proxy Statement.
Proposal No. 1, page 9
| 3. | We noticed the disclosure that the participants are reserving the right to vote for unidentified substitute nominees. Please confirm for us that should the participants lawfully identify or nominate substitute or additional nominees before the meeting, the participants will file an amended proxy statement that: (1) identifies the substitute and/or additional nominees; (2) discloses whether such nominees have consented to being named in the revised proxy statement and to serve if elected; and (3) includes the disclosure required by Items 5(b) and 7 of Schedule 14A with respect to such nominees. |
Series One acknowledges the Staff’s comment, and hereby confirms that should it lawfully identify or nominate substitute or additional nominees before the Annual Meeting, Series One will file an amended Proxy Statement that: (1) identifies the substitute nominees and/or additional nominees; (2) discloses whether such nominees have consented to being named in the revised Proxy Statement and to serve if elected; and (3) includes the disclosure required by Items 5(b) and 7 of Schedule 14A with respect to such nominees.
Proposal No. 3, page 16
| 4. | Notwithstanding the disclosure that the proposal to declassify the Board is non-binding, please advise us what consideration was given to providing the information requested by Instructions 1 and 2 to Item 19 of Schedule 14A codified at Rule 14a-101. Alternatively, please supplement the existing disclosures given the impact the affirmative vote of the holders of a majority of shares present (in person and by proxy) may have on a future decision by the Board to adopt the proposed resolution. |
Series One acknowledges the Staff’s comment and has revised the Proxy Statement accordingly. See pages 16 and 17 of the Proxy Statement.
Additional Participant Information, page 19
| 5. | Membership in a group as regulated under Section 13(d)(3), alone and without more, does not result in each group member becoming the beneficial owner of the shares owned in the aggregate by the other group members under Section 13(d). While the regulatory outcome expressed in the first paragraph, first sentence, on page 20 accurately describes how the group’s beneficial ownership would be attributed to its members under Section 16, the statement that the group determination is being made “for purposes of Section 13(d)(3)” suggests the regulatory outcome was ascribed to beneficial ownership under Section 13(d). Please revise to clarify. See Q&A 105.06 in our Compliance and Disclosure Interpretations publicly available at our website and accessible via this link: http://www.sec.gov/divisions/corpfin/guidance/reg13d-interp.htm |
Series One acknowledges the Staff’s comment and has revised the Proxy Statement accordingly. Please see page 20 of the Proxy Statement.
Incorporation by Reference, page 21
| 6. | We understand the reasons why the proxy statement does not include a time for the annual meeting. Advise us whether the participants intend to wait for the YUME to provide this and any other required information before the mailing of their proxy statement. If the participants expect to mail their proxy materials prior to the receipt of this information, please advise us how the participants intend to update their disclosure or disseminate any supplemental proxy materials. We believe the participants may not rely upon Rule 14a-5(c) before YUME distributes the information to security holders. |
Series One acknowledges the Staff’s comment. The participants intend to wait for the Company to disclose the information left blank in the Proxy Statement prior to mailing. In the event it becomes necessary to mail the Proxy Statement before the Company discloses this information, the participants intend to mail the Proxy Statement and file additional definitive materials with the SEC disclosing this information promptly after the information has been made public by the Company. The participants would also consider a means reasonably designed to disseminate this information by press release or a supplemental mailing to the Company’s stockholders.
Form of Proxy
| 7. | We note the disclosure that the “Proxy will be voted as directed...” Advise us, with a view toward revised disclosure, of any conditions that could arise which would result in the proxy not being so voted. Refer to Rule 14a-4(e). |
Series One is not aware of any conditions that could arise which would result in the proxy not being voted as directed. Accordingly, no specified conditions have been disclosed in the Proxy Statement.
* * * * *
In connection with responding to the Staff’s comments, a certificate signed by each of the participants containing the three acknowledgments requested by the Staff is attached hereto.
The Staff is invited to contact the undersigned with any comments or questions it may have. We would appreciate your prompt advice as to whether the Staff has any further comments.
| Sincerely, |
| |
| /s/ Elizabeth Gonzalez-Sussman |
| |
| Elizabeth Gonzalez-Sussman |
| CC: | Steve Wolosky, Olshan Frome Wolosky LLP |
| | Eric Singer, Viex Capital Advisors, LLC |
ACKNOWLEDGMENT
In connection with responding to the comments of the Staff of the Securities and Exchange Commission (“SEC”) relating to the preliminary proxy statement on Schedule 14A (the “Proxy Statement”) filed by the undersigned on March 30, 2016, each of the undersigned acknowledges the following:
| | · | Each of the undersigned is responsible for the adequacy and accuracy of the disclosure pertaining to him/it in the Proxy Statement. |
| | · | The Staff’s comments or changes to disclosure in response to Staff comments in the Proxy Statement do not foreclose the SEC from taking any action with respect to the Proxy Statement. |
| | · | The undersigned may not assert Staff comments as a defense in any proceeding initiated by the SEC or any person under the federal securities laws of the United States. |
| | VIEX Opportunities Fund, LP – Series One |
| | |
| | By: | VIEX GP, LLC General Partner |
| | |
| | By: | /s/ Eric Singer |
| | | Name: | Eric Singer |
| | | Title: | Managing Member |
| | VIEX Opportunities Fund, LP – Series Two |
| | |
| | By: | VIEX GP, LLC General Partner |
| | |
| | By: | /s/ Eric Singer |
| | | Name: | Eric Singer |
| | | Title: | Managing Member |
| | VIEX GP, LLC |
| | |
| | By: | /s/ Eric Singer |
| | | Name: | Eric Singer |
| | | Title: | Managing Member |
| | VIEX Special Opportunities Fund II, LP |
| | | |
| | By: | VIEX Special Opportunities GP II, LLC General Partner |
| | |
| | By: | /s/ Eric Singer |
| | | Name: | Eric Singer |
| | | Title: | Managing Member |
| | VIEX Special Opportunities GP II, LLC |
| | | |
| | By: | /s/ Eric Singer |
| | | Name: | Eric Singer |
| | | Title: | Managing Member |
| | VIEX Capital Advisors, LLC |
| | |
| | By: | /s/ Eric Singer |
| | | Name: | Eric Singer |
| | | Title: | Managing Member |
| | /s/ Eric Singer |
| | Eric Singer, individually and as attorney-in-fact for Elias N. Nader |
