UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
August 7, 2020
Via Email
Paul D. Tutun, Esq.
Executive Vice President and General Counsel
Virtusa Corporation
132 Turnpike Road, Suite 300
Southborough, MA 01772
Re: Virtusa Corporation
Preliminary Proxy Statement filed on August 3, 2020
File No. 001-33625
Dear Mr. Tutun:
We have reviewed the above-captioned filing and have the following
comments. In some
of our comments, we may ask you to provide us with information so we may better
understand
your disclosure.
Please respond to this letter by amending your filing, by providing the
requested
information or by advising us when you will provide the requested response. If
you do not
believe our comments apply to your facts and circumstances or do not believe an
amendment is
appropriate, please tell us why in your response.
After reviewing any amendment to your filing and any information you
provide in
response to these comments, we may have additional comments.
Preliminary Proxy Statement
General
1. Please clarify, in the appropriate section of the proxy statement, that
although there are
three class I director seats eligible for election at the annual
meeting, you are only
nominating two individuals for election as class I directors.
2. See the preceding comment. Please disclose any intentions or plans you
have with
respect to any vacancy on the board of directors that may exist after
the annual meeting.
For example, please disclose whether the board of directors intends to
fill any such
vacancy or reduce the size of the board to eliminate such vacancy.
Paul D. Tutun, Esq.
c/o Virtusa Corporation
August 7, 2020
Page | 2
Background of the Solicitation, pages 6-11
3. According to the preliminary proxy statement filed by NMV on August 5,
2020, NMV
conducted a call with Mr. Pandit and Mr. Moriarty [on May 31, 2020]
regarding the
purpose of the [nine questions sent by the Board], whether the request
represented
constructive engagement by the Company that was likely to lead to
increased
stockholder representation on the Board, and whether other candidates
considered for
Board appointment are required to complete a similar questionnaire.
Please revise your
preliminary proxy statement to disclose this discussion, or advise.
4. We note the following statement on page 9: Mr. Fauser stated that
anything short of
adding either himself or Mr. Chintamaneni to the Board was a
non-starter for NMV.
Mr. Fauser then indicated that NMV would discuss internally and respond
to the Board's
proposal. We further note that according to the preliminary proxy
statement filed by
NMV on August 5, 2020, NMV proposed to compromise by modifying [its]
request
such that if the Board appointed either of Mr. Fauser or Mr.
Chintamaneni, and one
director not affiliated with New Mountain Vantage but who was mutually
acceptable to
[it] and the Company, [NMV] would not submit a nomination notice (or
would
withdraw it, if submitted). Please revise your disclosure to clarify
that this proposal
was made by NMV, or advise.
5. According to the preliminary proxy statement filed by NMV on August 5,
2020, NMV
delivered to the Company a demand letter for a copy of a list of the
Company s
stockholders pursuant to Section 220 of the Delaware General Corporation
Law and
subsequently entered into a confidentiality agreement with the
Company relating to
such demand letter. Please revise your preliminary proxy statement to
disclose this
demand letter and subsequent confidentiality agreement, or advise.
6. We note the following statement: William K. O Brien, who is
currently a Class I
director, was not nominated for reelection to the Board because he is
over the age of 72,
and pursuant to our corporate governance guidelines, unless otherwise
approved by the
Board, no director who is 72 years of age or older will be nominated for
re-election.
Please clarify, in the appropriate section of the proxy statement,
whether the Board
approved an exception from such mandatory retirement provision for Mr. O
Brien
during your 2017 annual meeting, at which time he was 72 years of age
and nominated
for re-election to the Board. If applicable, please disclose why the
Board approved an
exception at that annual meeting but determined not to approve such an
exception at this
annual meeting.
Security Ownership of Certain Beneficial Owners and Management, pages 82-86
7. We note that the table indicates that as of July 15, 2020, NMV
beneficially owned
8.14% of Virtusa s outstanding shares of common stock. According to
the Schedules
13D and 13D/A filed by NMV on July 6 and July 7, 2020, as well as the
disclosure on
Paul D. Tutun, Esq.
c/o Virtusa Corporation
August 7, 2020
Page | 3
page 10 of the preliminary proxy statement, NMV beneficially owned
8.98% of
Virtusa s outstanding shares of common stock at that time. Please
revise the table
accordingly, or advise.
8. We note that footnote (4) to the table indicates that Vikram S. Pandit
shares voting and
dispositive power with respect to the shares of common stock and Series
A Preferred
Stock that Orogen Viper LLC beneficially owns. Given such shared voting
and
dispositive power, please revise the table to reflect the fact that Mr.
Pandit is the
beneficial owner of the shares of common stock and Series A Preferred
Stock that
Orogen Viper LLC beneficially owns, in addition to the 8,650 shares of
common stock
that he beneficially owns that are currently reflected in the table. See
Rule 13d-3(a).
Appendix B pages 91-98
9. We note that in numerous instances throughout Appendix B, you state that
certain
persons may be deemed to be participants in your solicitation of
proxies. In each
instance, please remove the doubt expressed by your use of the phrase
may be deemed
from whether Virtusa, its directors, nominees and executive officers are
participants in
the solicitation. See Instruction 3 to Item 4 in Schedule 14A.
Form of Proxy
10. Please revise the disclosure regarding the intended use of the
discretionary authority
available under Rule 14a-4(c)(1) so that 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 any other
matters as may properly come before the annual meeting.
* * *
Paul D. Tutun, Esq.
c/o Virtusa Corporation
August 7, 2020
Page | 4
We remind you that the Company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Please direct any questions to me, at (202) 551-8729, or to Daniel
Duchovny, Special
Counsel, at (202) 551-3619.
Sincerely,
/s/ Valian A. Afshar
Valian A. Afshar
Special Counsel
Office of Mergers and
Acquisitions
cc: Joseph C. Theis, Esq.
Goodwin Procter LLP