-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SYYSBpGTS5kKX4C6NqOP+YRKWDWvBXzV9/+UJoW4oggk3hfRDcKiBEIwH2Z7FuRC E55XCGs8aB+Zu5KvypsiRg== 0000902664-09-003474.txt : 20090902 0000902664-09-003474.hdr.sgml : 20090902 20090902082914 ACCESSION NUMBER: 0000902664-09-003474 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20090902 DATE AS OF CHANGE: 20090902 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CLINTON GROUP INC CENTRAL INDEX KEY: 0001134119 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 32 OLD SLIP 5TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10005 BUSINESS PHONE: 2128250400 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SELECT COMFORT CORP CENTRAL INDEX KEY: 0000827187 STANDARD INDUSTRIAL CLASSIFICATION: HOUSEHOLD FURNITURE [2510] IRS NUMBER: 411597886 STATE OF INCORPORATION: MN FISCAL YEAR END: 1229 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-55269 FILM NUMBER: 091049810 BUSINESS ADDRESS: STREET 1: 9800 59TH AVENUE NORTH CITY: MINNEAPOLIS STATE: MN ZIP: 55442 BUSINESS PHONE: 7635517000 MAIL ADDRESS: STREET 1: 9800 59TH AVENUE NORTH CITY: MINNEAPOLIS STATE: MN ZIP: 55442 SC 13D/A 1 p09-1744sc13da.txt SELECT COMFORT CORPORATION SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------- SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) Under the Securities Exchange Act of 1934 (Amendment No. 7)* Select Comfort Corporation - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, Par Value $0.01 Per Share - -------------------------------------------------------------------------------- (Title of Class of Securities) 81616X103 - -------------------------------------------------------------------------------- (CUSIP Number) Marc Weingarten, Esq. David Rosewater, Esq. Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 (212) 756-2000 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) August 31, 2009 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. (Continued on following pages) (Page 1 of 7 Pages) - -------------------------- * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - ------------------------------ --------------------- CUSIP NO. 81616X103 SCHEDULE 13D/A PAGE 2 OF 7 PAGES - ------------------------------ --------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) CLINTON GROUP, INC. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ---------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 3,129,308 OWNED BY ---------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH -0- ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 3,129,308 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 3,129,308 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.9% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IA; CO - -------------------------------------------------------------------------------- * SEE INSTRUCTIONS - ------------------------------ --------------------- CUSIP NO. 81616X103 SCHEDULE 13D/A PAGE 3 OF 7 PAGES - ------------------------------ --------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) CLINTON MAGNOLIA MASTER FUND, LTD. - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION CAYMAN ISLANDS - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ---------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 3,129,308 OWNED BY ---------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH -0- ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 3,129,308 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 3,129,308 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.9% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- * SEE INSTRUCTIONS - ------------------------------ --------------------- CUSIP NO. 81616X103 SCHEDULE 13D/A PAGE 4 OF 7 PAGES - ------------------------------ --------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) GEORGE HALL - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION UNITED STATES - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 ---------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 3,129,308 OWNED BY ---------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 3,129,308 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 3,129,308 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.9% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - -------------------------------------------------------------------------------- * SEE INSTRUCTIONS - ------------------------------ --------------------- CUSIP NO. 81616X103 SCHEDULE 13D/A PAGE 5 OF 7 PAGES - ------------------------------ --------------------- ITEM 1. SECURITY AND ISSUER. This Amendment No. 7 is filed with respect to the shares of the common stock, par value $0.01 per share (the "Shares"), of Select Comfort Corporation, a Minnesota corporation (the "Issuer"), beneficially owned by the Reporting Persons (as previously defined) as of September 1, 2009 and amends and supplements the Schedule 13D originally filed with the Securities and Exchange Commission (the "SEC") on March 10, 2008, as previously amended (the "Original Schedule 13D" and together with this Amendment, the "Schedule 13D"). Except as set forth herein, the Schedule 13D is unmodified. ITEM 4. PURPOSE OF TRANSACTION. Item 4 is hereby amended and supplemented as follows: On August 31, 2009, Clinton Group, Inc. ("Clinton") delivered to the Issuer a letter (the "August 2009 Letter") in response to the Issuer's Form 8-K filed with the Securities and Exchange Commission on August 28, 2009, in which the Issuer disclosed that the proposal to approve the transaction with Sterling (as described in Amendment No. 6 to the Schedule 13D) was rejected, as it received only 49.94% of the affirmative votes of the Issuer's voting shareholders and a majority of such votes were required for passage. The August 2009 Letter expressed Clinton's concern that the vote may not have been tallied correctly for various reasons, including but not limited to the fact that a number of votes may have been changed, including near the time that the polls were closed, and that other votes may have been disqualified and not included in the final tally. For these and other reasons, Clinton believes there is a distinct possibility that errors were made that determined the outcome of the vote. Furthermore, Clinton expressed its concern that in light of the rejection of the Sterling transaction, the Issuer is at high risk that its debt agreement lenders, who have granted the Issuer a limited forbearance period, will seek to exercise remedies under the relevant documents, possibly requiring the Issuer to file for bankruptcy. In light of the possibility of errors in the tallying of the votes, as well as the potentially severe repercussions of the Sterling transaction failing to pass, Clinton requested that the Issuer commence a recount and audit of the vote by an independent third party and that Clinton's representatives be permitted to observe and participate in the recount process. In connection with the August 2009 Letter, Clinton Magnolia Master Fund, Ltd., as beneficial owner of the Issuer's shares, made a demand (the "Demand") to access the Issuer's records related to the shareholder vote. A copy of each of the August 2009 Letter and the Demand is attached hereto as Exhibit E and each is incorporated herein by reference in its entirety. Subsequent to the sending of the August 2009 Letter and the Demand, the Issuer issued a press release stating that it would have Broadridge Financial Solutions, Inc. conduct a recount. The Reporting Persons believe that while more information is needed regarding the details of how the recount is to be conducted, this is a helpful recognition by the Issuer's board and management that the Issuer is at a critical juncture and that an accurate count of the shareholder vote is a critical, appropriate interest of all stakeholders. ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER. Paragraphs (a) through (c) of Item 5 are hereby amended and restated in the entirety as follows: (a) As of the close of business on September 1, 2009, the Reporting Persons may be deemed the beneficial owners of an aggregate of 3,129,308 Shares, constituting approximately 6.9% of the Shares outstanding. The aggregate percentage of Shares beneficially owned by the Reporting Persons is based upon 45,595,806 Shares outstanding, which is the total number of Shares outstanding as of July 20, 2009 as reported in the Issuer's Definitive Proxy Statement filed with the Securities and Exchange Commission on July 28, 2009. (b) By virtue of an investment management agreement with CMAG, Clinton has the power to vote or direct the voting, and to dispose or direct the - ------------------------------ --------------------- CUSIP NO. 81616X103 SCHEDULE 13D/A PAGE 6 OF 7 PAGES - ------------------------------ --------------------- disposition, of all of the 3,129,308 Shares held by CMAG. By virtue of his direct and indirect control of Clinton, George Hall is deemed to have shared voting power and shared dispositive power with respect to all Shares as to which Clinton has voting power or dispositive power. Accordingly, Clinton and George Hall are deemed to have shared voting and shared dispositive power with respect to an aggregate of 3,129,308 Shares. (c) Information concerning transactions in the Shares effected by the Reporting Persons since the filing of Amendment No. 6 to the Schedule 13D on August 17, 2009 is set forth in Schedule A hereto and is incorporated herein by reference. Unless otherwise indicated, all of such transactions were effected in the open market. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Item 7 is hereby amended and supplemented as follows: Exhibit E - Letter to the Issuer and Demand to Inspect Books and Records, dated August 31, 2009, respectively. - --------------------------- ------------------- CUSIP NO. 81616X103 SCHEDULE 13D/A PAGE 7 OF 7 PAGES - --------------------------- ------------------- SIGNATURES After reasonable inquiry and to the best of his or its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: September 2, 2009 CLINTON GROUP, INC. By: /s/ Francis Ruchalski --------------------------- Name: Francis Ruchalski Title: Chief Financial Officer CLINTON MAGNOLIA MASTER FUND, LTD. By: Clinton Group, Inc. its investment manager By: /s/ Francis Ruchalski --------------------------- Name: Francis Ruchalski Title: Chief Financial Officer /s/ George Hall ------------------------------ George Hall SCHEDULE A TRANSACTIONS IN THE SHARES BY THE REPORTING PERSONS SINCE THE FILING OF AMENDMENT NO. 6 TO THE SCHEDULE 13D Equity Activity for Clinton Magnolia Master Fund, Ltd.
Trade Date Shares Purchased (Sold) Price Per Share ($) ----------- ------------------------ ------------------- 8/27/09 (15,000) 2.68 8/28/09 (137,400) 3.28 8/31/09 2,500 3.20 9/01/09 16,570 2.87
EX-99 2 p09-1744exhibit99a.txt CLINTON GROUP, INC. Clinton Group, Inc. 9 West 57th Street 26th Floor New York, NY 10019 August 31, 2009 Select Comfort Corporation 9800 59th Avenue North Plymouth, MN 55442 Attention: Mr. William R. McLaughlin Dear Mr. McLaughlin: As you know, the Clinton Group, Inc. and Clinton Magnolia Master Fund, Ltd. own 3,262,638 shares of Select Comfort Corporation (the "Company"). We have reviewed the Company's Form 8-K filed with the United States Securities and Exchange Commission on August 28, 2009, in which the Company disclosed that the proposal to approve the transaction with Sterling Partners SC received affirmative votes representing 49.94% of shares represented and entitled to vote in person or by proxy for the proposal and not the required majority to pass. While we note that the shareholder vote on this matter was exceedingly close, we also are concerned that the vote was not tallied correctly. For instance, we believe that a number of votes may have been changed, including near the time the polls were closed, and that other votes may have been disqualified or not included in the final count. We understand requests were made to adjourn the meeting so a careful tabulation and certification could be made. Given the close margin and the apparently hasty manner in which the votes were tabulated and certified, there is a distinct possibility that errors were made that were outcome determinative. The fact that the Sterling proposal may not have passed also means the Company is at a critical juncture. We understand the Company's forbearance agreement with its lenders may soon expire pursuant to its terms and the Company is in default of its indebtedness. We believe the Company will be challenged to raise the necessary capital needed to satisfy its lenders in a short period of time. The Company is therefore at high risk that the lenders will exercise remedies under the related documents, possibly requiring the Company to file bankruptcy. Given the narrow margin of the vote, the high likelihood that the final outcome could have been tabulated incorrectly, and the real possibility the Company's lenders may soon take steps to exercise remedies, we believe the Company's board and its officers, acting pursuant to prudent fiduciary standards, including those in Sections 302A.251 and 302A.361 of the Minnesota Business Corporation Act, are required to commence a recount and audit of the vote by an independent third party. Such recount and audit are standard practice in a contested shareholder vote. As shareholders of the Company, we hereby demand that such recount and audit be initiated and concluded as soon as possible, given the Company's financial difficulties. We also demand that our representatives be permitted to observe and participate in this recount process. Finally, as set forth in the attached Exhibit A, we hereby demand that we and our representatives be given immediate access to the books and records set forth therein. Given the Company is at a critical juncture, we believe shareholders do not have all of the required information necessary to assess the prospects of their investment in the Company. We also demand that the Company publicly disclose, as soon as possible, their strategy for raising capital and for dealing with existing bank covenant defaults. We look forward to your prompt response to this letter and moving forward along the lines we have outlined. As always, do not hesitate to contact me if you have any questions. Very truly yours, CLINTON GROUP, INC. By /s/ Vincent D'Arpino ----------------------- Name: Vincent D'Arpino Title: General Counsel CC: Board of Directors of Select Comfort Corporation 2 Clinton Magnolia Master Fund, Ltd. 9 West 57th Street 26th Floor New York, NY 10019 August 31, 2009 Select Comfort Corporation 9800 59th Avenue North Plymouth, MN 55442 Attention: Mark A. Kimball, Secretary Re: DEMAND FOR RIGHT TO INSPECT BOOKS AND RECORDS PURSUANT TO SUBDIVISION 4 OF SECTION 302A.461 OF THE MINNESOTA BUSINESS CORPORATION ACT (THE "MBCA") Ladies and Gentleman: Clinton Magnolia Master Fund, Ltd. ("Clinton") is the beneficial owner of 3,262,638 shares of common stock, $0.01 par value per share ("Common Stock"), of Select Comfort Corporation (the "Company"). Pursuant to subdivision 4 of Section 302A.461 of the Minnesota Business Corporation Act (the "MBCA"), as the beneficial owner of the shares of Common Stock stated above, Clinton hereby demands that it and its attorneys, representatives and agents be given, during regular business hours, the opportunity to examine and copy the books, records and documents of the Company set forth below. The purpose of this demand is to verify the results of the shareholders' meeting held on August 27, 2009, at which shareholders were asked to approve the transaction with Sterling Partners SC as set forth in its proxy statement dated July 28, 2009. Given the Company's position that the proposal with Sterling Partners SC was not approved as set forth in the Company's Form 8-K filed with the United States Securities and Exchange Commission on August 27, 2009, and the fact that the Company is in default on its indebtedness and faces significant consequences if the Sterling proposal was not approved, Clinton has a compelling interest in reviewing the documents set forth herein as soon as possible, and before the 10 day period set forth in Subd. 2 of Section 302A.461 of the MBCA. Clinton therefore demands that the documents set forth herein be made available as soon as possible. The books, records and documents of the Company to be produced for inspection are as follows: 1. A complete record or list of the shareholders of the Company, certified by the Company's transfer agent(s) and/or registrar(s), setting forth the name and address of, and the number, series and class of shares of stock of the Company held by, each shareholder as of the close of business on July 20, 2009 used for the Special Meeting of Shareholders on August 27, 2009 (the "Special Meeting"). 2. All ballots, proxies and other corporate records that reflect or relate to the votes cast in connection with the Special Meeting. 3. The certification of the shareholder vote at the Special Meeting by Broadridge Financial Solutions, Inc. ("Broadridge") and all corporate records related thereto. 4. All corporate records of the Company (including to the extent that they are corporate records of the Company, documentation created by Georgeson Inc.("Georgeson") and Broadridge) related to the tabulation of shareholder votes at the Special Meeting, including votes that were changed and votes that were disqualified. 5. All corporate records of the Company related to communications amongst officers, directors and employees of the Company regarding the tabulation of the vote at the Special Meeting and like corporate records regarding communications between the Company and third parties, including Broadridge and Georgeson. Clinton demands that all changes, modifications, additions or deletions to any and all information referred to above be immediately furnished as such modifications, additions or deletions become available to the Company or its agents or representatives. To the extent required by subdivision 5 of Section 302A.461 of the MBCA, Clinton will bear the reasonable costs incurred by the Company including those of its transfer agent(s) or registrar(s) in connection with making copies of the information demanded. Clinton hereby designates and authorizes Marc Weingarten and David Rosewater of Schulte Roth & Zabel LLP and any other persons designated by them or by Clinton, acting singly or in any combination, to conduct the inspection and copying herein requested. Please advise Clinton's counsel, David Rosewater, Esq. of Schulte Roth & Zabel LLP, at (212) 756-2208, as promptly as practicable, when and where the items requested above will be made available to Clinton. If the Company contends that this request is incomplete or is otherwise deficient in any respect, please notify Clinton immediately in writing, with a copy to David Rosewater, Esq., Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York 10022, facsimile (212) 593-5955, setting forth the facts that the Company contends support its position and specifying any additional information believed to be required. In the absence of such prompt notice, Clinton will assume that the Company agrees that this request complies in all respects with the requirements of the MBCA and all other relevant laws. Clinton reserves the right to withdraw or modify this request at any time. 2 Very truly yours, CLINTON MAGNOLIA MASTER FUND, LTD. By Clinton Group, Inc., its investment manager By /s/ Vincent D'Arpino ----------------------- Name: Vincent D'Arpino Title: General Counsel State of New York ) ) ss: County of New York ) This instrument was acknowledged before me on August 30, 2009 by Vincent D'Arpino, General Counsel of Clinton Group, Inc., as investment manager of Clinton Magnolia Master Fund Ltd. Notary Public /s/ Gillett J. Checkley ------------------------- Gillett J. Checkley 3
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