May 24, 2019
Michael R. Neidell, Esq.
Olshan Frome Wolosky LLP
1325 Avenue of the Americas
New York, NY 10019
Re: J. Alexander's Holdings, Inc.
Preliminary Proxy Statement on Schedule 14A filed by Ancora
Advisors,
LLC
Filed May 14, 2019
File No. 1-37473
Schedule 13D, as amended, filed by Frederick DiSanto and
Ancora Advisors, LLC
Filed March 12, March 15 and April 4, 2019
File No. 5-89109
Dear Mr. Neidell:
We have reviewed the filing above and have the following comments. In
some of our
comments, we may ask you to provide us with information so we may better
understand the
disclosure.
Please respond to this letter by amending the filing or by providing the
requested
information. If you do not believe our comments apply to the participants'
facts and
circumstances or do not believe an amendment is appropriate, please tell us why
in your
response.
After reviewing any amendment to the filing and the information you
provide in response
to this comment, we may have additional comments. All defined terms used in
this letter have
the same meaning as in the preliminary proxy statement unless otherwise
indicated.
Preliminary Proxy Statement
1. Ancora states on page 1 that it is the Company's "largest shareholder."
Please reconcile
this statement with the beneficial ownership table included as Schedule
II to the proxy
statement which reflects that Ancora is the Company's third largest
shareholder behind
Newport Global Opportunities Fund I-A LP and BlackRock, Inc.
2. Disclosure throughout the proxy statement refers to Timothy T. Janszen
and Ronald B.
Maggard, Sr. by different names, e.g. "Timothy J. Janszen" and "Robert
B. Maggard, Sr."
Please revise to correct the references.
Michael R. Neidell, Esq.
Olshan Frome Wolosky LLP
May 24, 2019
Page 2
Reasons for the Solicitation, page 5
3. Refer to the chart on page 6 of the proxy statement regarding the
Company's TSR. We
note that similar charts appear in Ancora's letters to the Board, dated
and filed on
Schedule 13D/A on April 8, 2019 and April 17, 2019 and appear to also
set forth the
Company's TSR for the same periods compared to the same peer group.
However, there
appear to be discrepancies between the charts. For example, the table in
the proxy
statement shows the Company's one-year and three-year TSR to be (14.2)%
and (2.4)%,
respectively, compared to peer group TSR of 6.2% and 7.4% for the same
period. The
table presented in the letters to the Board shows the Company's one-year
and three-year
TSR to be 1.0% and (3.2)%, respectively, compared to peer group TSR of
6.5% and 7.8%
for the same periods. Please provide a reconciliation of the
inconsistent figures reflected
in letters to the Board and revise the proxy statement as necessary.
4. Refer to the table contained on page 7 of the proxy statement,
illustrating the Company's
return on invested capital since the spin-off. Ancora's calculation of
net operating profit
after taxes (NOPAT) assumes a constant normalized tax rate of 23.5% for
all periods
presented. Given recent changes in the corporate tax rate, please
supplement the
disclosure to explain why the chosen rate is appropriate.
5. The following statement appears to impugn the character, integrity and
personal
reputation of the Board without adequate factual foundation:
"Our proposal provides a premium value, certainty and liquidity
to shareholders
that have suffered persistent underperformance driven by a
management and
Board that operate J. Alexander's without regard for outside
shareholders and
have repeatedly engaged in highly conflicted transactions that
have destroyed
shareholder value." (emphasis added, page 1)
"Importantly, we have significant concerns that, due to their
interlocking
relationships with other directors and the Fidelity National
Financial complex,
Messrs. Janszen and Maggard lack the independence and
objectivity necessary to
maximize shareholder value." (page 5)
"A smaller number of shares available would require the Board
and management
to bring this issue to shareholders more frequently, ensuring
that shareholders
have the ability to weigh in on compensation, hold the Board
accountable for its
decisions on equity award grants, and guard against further
unjust enrichment of
the Board and management at the expense of shareholders."
(emphasis added, page
5)
Please do not use these or similar statements in the proxy statement
without providing a
proper factual foundation for the statements. In addition, as to matters
for which the
Participant does have a proper factual foundation, please avoid making
statements about
those matters that go beyond the scope of what is reasonably supported
by the factual
Michael R. Neidell, Esq.
Olshan Frome Wolosky LLP
May 24, 2019
Page 3
foundation. Please note that characterizing a statement as one's opinion
or belief does
not eliminate the need to provide a proper factual foundation for the
statement; there must
be a reasonable basis for each opinion or belief that the filing persons
express. Please
refer to Note (b) to Rule 14a-9. To the extent Ancora is unable to
provide adequate
support, please file appropriate corrective disclosure and refrain from
including such
statements in future soliciting materials.
Ancora cites to the 99 Restaurants transaction and the consulting
agreement with Black
Knight Advisory Services in support of its claim regarding the Company
engaging in
highly conflicted transactions. In responding to this comment, please
address the fact
that the potential conflicts inherent in the 99 Restaurants transaction
were (1) fully
disclosed in the Company's proxy statement to shareholders filed on
December 21, 2017;
(2) the Board voluntarily required, as a condition to the transaction,
the approval of the
Company's disinterested shareholders; and (3) the requisite
disinterested shareholder
approval was not obtained and the transaction was never consummated.
Please also
address the fact that the consulting agreement with Black Knight
Advisory Services,
consummated as part of the spin-off from FNF, was executed prior to the
Company
operating as an independent publicly traded company.
6. Please provide support for the statement on page 8 that "[i]t is clear
to us that turning
down the Ancora Proposal in April after supporting the 99 Restaurants
deal in 2018,
which valued J. Alexander's at $11.00 per share, is a clear example of
the willingness of
this Board to allow their own self-interest to influence their judgement
[sic] at the
expense of shareholders." In responding to this comment, please address
the fact that (1)
the Board, in a letter dated April 8, 2019 (appearing in the Company's
press release dated
April 11, 2019) informed Ancora that the offer was rejected because it
undervalues the
Company and because Ancora's proposal lacked specific or verifiable
details regarding
its financing and (2) since the Board's response, Ancora has made no
attempt to reissue
or modify the terms of Ancora's proposal.
7. Ancora states on page 8 that "[i]n addition to the $4.56 million payment
upon
termination of the deal, BKAS reaped more than $7 million from
shareholders over the
life of the agreement, while public shareholders have been left with
losses on their
investment" (emphasis added). We note that page 30 of the Company's
proxy statement
filed with the Commission on May 10, 2019 shows total payments
(including the
termination fee) of $7.026 million to BKAS under the Consulting
Agreement. In
contrast, the Ancora statement states that the Company paid BKAS more
than $11.56
million under the Consulting Agreement. Please advise or revise.
Proposal No. 1 Election of Directors, page 10
8. Refer to the following statement on page 10 of the proxy statement:
"Although a
WITHHOLD vote will have no direct effect on the election of Messrs.
Janszen and
Maggard, Sr. at the Annual Meeting, we believe the failure of the Board
to take into
Michael R. Neidell, Esq.
Olshan Frome Wolosky LLP
May 24, 2019
Page 4
account any WITHHOLD votes that Messrs. Janszen and Maggard, Sr. may
receive at the
Annual Meeting would be an egregious violation of proper corporate
governance and in
direct opposition to a clear shareholder directive." Please clarify the
meaning of the
phrase "failure of the Board to take into account any WITHHOLD votes" and
why such
failure should be considered improper conduct.
Schedule 13D
9. Disclosure in the Schedule 13D filed on March 12, 2019 and the amendments
thereto
filed on March 15 and April 4 discloses in Item 2 of the schedule that
"[d]uring the last
five years the Reporting Person has not been convicted in a criminal
proceeding, nor been
a party to a civil proceeding of a judicial or administrative body of
competent
jurisdiction, as a result of which he was or is subject to a judgment,
decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, federal or
state securities laws or finding any violation with respect to such
laws." However, on
December 18, 2018, Ancora entered into a settlement agreement with the
Securities and
Exchange Commission with respect to Ancora's violation of Section 206(4)
of the
Investment Advisers Act of 1940 and Rule 206(4)-5 thereunder, resulting
from Ancora
making four separate political contributions totaling $46,908. Ancora was
censured,
ordered to cease and desist from committing or causing any future
violations of Section
206(4) and Rule 206(4)-5 thereunder and ordered to pay a penalty in the
amount of
$100,000. Please advise why Ancora's failure to disclose such information
in Item 2 of
the Schedule 13D filed on March 12 and the amendments thereto filed on
March 15 and
April 4 was consistent with its obligations under Regulation 13D-G.
10. Refer to the preceding comment. In the amendment to the Schedule 13D
filed on April 8,
Ancora disclosed the following under Item 2:
On December 18, 2018, Ancora Advisors LLC entered into a
settlement with the
SEC regarding the violation of Section 206(4) under the
Investment Advisers Act
of 1940 ("Advisers Act") and Rule 206(4)-5 thereunder, due to
the contributing of
more than the allowable $350 contribution to certain political
campaigns. Ancora
consented to the Order and paid a penalty in the amount of
$100,000.
Given the relative size of the $46,908 in political contributions noted
in the settlement
agreement compared to the reference to "more than the allowable $350
contribution to
certain political campaigns" disclosed in the Schedule 13D amendment,
please provide us
with your analysis as to why the omission of the actual dollar amounts
contributed to
political campaigns is compliant with the requirements of Regulation
13D-G and Item 2,
specifically Item 2(e)'s instruction to "identify and describe [the
relevant] proceeding."
Michael R. Neidell, Esq.
Olshan Frome Wolosky LLP
May 24, 2019
Page 5
* * *
We remind you that the filing persons are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of
action by the staff.
Please contact me at (202) 551-3444 with any questions.
Sincerely,
/s/ Perry J. Hindin
Perry J. Hindin
Special Counsel
Office of Mergers
and Acquisitions