SEC Comment Letter for NITCHES INC (NICH) (CIK 0000772263) (NICH) — Dec 4, 2006
NITCHES INC (NICH) (CIK 0000772263)
Date: Dec. 4, 2006 · CIK: 0000772263 · Accession: 0000000000-06-059291
AI Filing Summary & Sentiment
Reasoning
Letter
Mail Stop 3561 December 4, 2006 Steven P. Wyandt Chief Executive Officer Nitches, Inc. 10280 Camino Santa Fe San Diego, CA 92121 Form 10-Q for Fiscal Quarter Ended May 31, 2006 Filed July 21, 2006 File No. 0-13851
Re: Nitches, Inc. Preliminary Proxy Statement on Schedule 14A Filed November 7, 2006 File No. 0-13851
Dear Mr. Wyandt:
We have limited our review of your filing to those issues we have addressed in our comments. Where indicated, we think you should revise your document in response to these comments. If you disagree, we w ill consider your explanation as to why our comment is inapplicable or a revision is unneces sary. Please be as detailed as necessary in your explanation. In some of our comme nts, we may ask you to provide us with information so we may better understand your disclosure. After reviewing this information, we may raise additional comments.
Please understand that the purpose of our re view process is to assist you in your compliance with the applicable disclosure requirements and to enhance the overall disclosure in your filing. We look forward to working with you in these respects. We welcome any questions you may have about our comments or any other aspect of our review. Feel free to call us at the telephone numbers listed at the end of this letter.
Preliminary Proxy Statement on Schedule 14A 1. We note that you are soliciting the sharehol ders’ consent to and ratification of the issuance of 600,000 shares of your common st ock for the acquisition of the Home Décor business assets of Taresha, LLC. Since the 600,000 common shares were issued to acquire assets of a going busin ess, it appears that Item 14 of Schedule 14A is applicable. Please revise your document accordingly, or explain to us why
Steven P. Wyandt Nitches, Inc. December 4, 2006 Page 2 you believe disclosure is not required. We may have further comment upon review of your response. 2. Please expand your disclosure to discuss how the acquisition, including the shares of common stock already issued as consid eration, will be treated should you fail to obtain shareholder consent to a nd ratification of the acquisition.
Form 10-Q for Fiscal Quarter Ended May 31, 2006
Controls and Procedures, page 14 3. We note your disclosure that your chie f executive and chief financial officer concluded that your disclosure controls and procedures “[a]re effective in ensuring that information required to be disclosed by the Company in the reports that it files or submits with the Securities and Exchange Commission is accumulated and communicated to manage ment…as appropriate to allow timely decisions regarding requir ed disclosure.” We also note that the following sentence continues to state that your chief executive and chief financial officer “[c]oncluded that the information required to be disclosed in these filings is recorded, processed, summarized, and reporte d within the time periods specified in the rules and forms of the Commission.” It appears that the effectiveness conclusion does not specifically extend to the second part of the definition of disclosure controls and procedures, as disclosed in the second sentence. Accordingly, please revise to disclose, if true, that your disclosure controls and procedures are effective to ensure that information required to be disclosed by the issuer in the reports that it files or submits under the Act is recorded, processed, summarized and reported, within the time pe riods specified in the Commission’s rules and forms. See Exchange Act Rule 13a-15(e). 4. Your disclosure does not appear to a ddress Item 308(c) of Regulation S-K. Accordingly, please confirm, if true, that there were no changes in your internal control over financial reporti ng that occurred during the la st fiscal quarter that has materially affected or is reasonably like ly to materially affect, your internal control over financial reporting. 5. We note that in the three most recent quart erly reports, as well as in the most recent annual report, your chief executive and chief financial officer concluded that your disclosure controls and procedur es were effective. Please tell us the basis for your chief executive and ch ief financial officer’s effectiveness conclusion for each of those periods, given that it was necessary for you to file a Form 12b-25 for each of those reports.
Steven P. Wyandt Nitches, Inc. December 4, 2006 Page 3 Exhibits 31.1 and 32.1 6. Please note that the exact wording of the certification provided in Item 601(b)(31) of Regulation S-K is required. For exam ple, paragraph 4(d) does not include the parenthetical language and the introductory language in paragraph 5 does not include the language “of internal control over financial reporting.” Please revise your 302 certification to use the exact wording of the ce rtification provided in Item 601(b)(31) of Regulation S-K. 7. We note that the 906 certification has not been dated. Please revise accordingly.
* * *
As appropriate, please amend your filing and respond to these comments within 10 business days or tell us when you will provid e us with a response. You may wish to provide us with marked copies of the amendm ent to expedite our review. Please furnish a cover letter with your amendment that keys your responses to our comments and provides any requested information. Detailed co ver letters greatly faci litate our review. Please understand that we may have addi tional comments after reviewing your amendment and responses to our comments.
We urge all persons who are responsi ble for the accuracy an d adequacy of the disclosure in the filing to be certain that the filing includes all in formation required under the Securities Exchange Act of 1934 and th at they have provided all information investors require for an informed invest ment decision. Since the company and its management are in possession of all facts re lating to a company’s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please provide, in writing, a statement from the company acknowledging that:
the company is responsible for the adequacy and accuracy of the disclosure in the filing;
staff comments or changes to disclosure in response to staff comments do not foreclose the Commission from taking any action with respect to the filing; and
the company may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States.
Steven P. Wyandt Nitches, Inc. December 4, 2006 Page 4 In addition, please be advise d that the Division of Enfo rcement has access to all information you provide to the staff of the Divi sion of Corporation Fi nance in our review of your filing or in response to our comments on your filing.
Please contact Kurt Murao, Attorney Advi sor, at (202) 551-3338, or me at (202) 551-3720 with any other questions.
Sincerely,
H. Christopher Owings
A s s i s t a n t D i r e c t o r
Show Raw Text
Mail Stop 3561
December 4, 2006
Steven P. Wyandt
Chief Executive Officer
Nitches, Inc.
10280 Camino Santa Fe
San Diego, CA 92121
Re: Nitches, Inc.
Preliminary Proxy Statement on Schedule 14A
Filed November 7, 2006
File No. 0-13851
Form 10-Q for Fiscal Quarter Ended May 31, 2006
Filed July 21, 2006
File No. 0-13851
Dear Mr. Wyandt:
We have limited our review of your filing to those issues we have addressed in
our comments. Where indicated, we think you should revise your document in response
to these comments. If you disagree, we w ill consider your explanation as to why our
comment is inapplicable or a revision is unneces sary. Please be as detailed as necessary
in your explanation. In some of our comme nts, we may ask you to provide us with
information so we may better understand your disclosure. After reviewing this
information, we may raise additional comments.
Please understand that the purpose of our re view process is to assist you in your
compliance with the applicable disclosure requirements and to enhance the overall
disclosure in your filing. We look forward to working with you in these respects. We
welcome any questions you may have about our comments or any other aspect of our review. Feel free to call us at the telephone numbers listed at the end of this letter.
Preliminary Proxy Statement on Schedule 14A
1. We note that you are soliciting the sharehol ders’ consent to and ratification of the
issuance of 600,000 shares of your common st ock for the acquisition of the Home
Décor business assets of Taresha, LLC. Since the 600,000 common shares were issued to acquire assets of a going busin ess, it appears that Item 14 of Schedule
14A is applicable. Please revise your document accordingly, or explain to us why
Steven P. Wyandt
Nitches, Inc.
December 4, 2006 Page 2
you believe disclosure is not required. We may have further comment upon
review of your response.
2. Please expand your disclosure to discuss how the acquisition, including the shares
of common stock already issued as consid eration, will be treated should you fail
to obtain shareholder consent to a nd ratification of the acquisition.
Form 10-Q for Fiscal Quarter Ended May 31, 2006
Controls and Procedures, page 14
3. We note your disclosure that your chie f executive and chief financial officer
concluded that your disclosure controls and procedures “[a]re effective in
ensuring that information required to be disclosed by the Company in the reports that it files or submits with the Securities and Exchange Commission is accumulated and communicated to manage ment…as appropriate to allow timely
decisions regarding requir ed disclosure.” We also note that the following
sentence continues to state that your chief executive and chief financial officer
“[c]oncluded that the information required to be disclosed in these filings is
recorded, processed, summarized, and reporte d within the time periods specified
in the rules and forms of the Commission.” It appears that the effectiveness
conclusion does not specifically extend to the second part of the definition of
disclosure controls and procedures, as disclosed in the second sentence.
Accordingly, please revise to disclose, if true, that your disclosure controls and
procedures are effective to ensure that information required to be disclosed by the
issuer in the reports that it files or submits under the Act is recorded, processed,
summarized and reported, within the time pe riods specified in the Commission’s
rules and forms. See Exchange Act Rule 13a-15(e).
4. Your disclosure does not appear to a ddress Item 308(c) of Regulation S-K.
Accordingly, please confirm, if true, that there were no changes in your internal
control over financial reporti ng that occurred during the la st fiscal quarter that has
materially affected or is reasonably like ly to materially affect, your internal
control over financial reporting.
5. We note that in the three most recent quart erly reports, as well as in the most
recent annual report, your chief executive and chief financial officer concluded
that your disclosure controls and procedur es were effective. Please tell us the
basis for your chief executive and ch ief financial officer’s effectiveness
conclusion for each of those periods, given that it was necessary for you to file a
Form 12b-25 for each of those reports.
Steven P. Wyandt
Nitches, Inc.
December 4, 2006 Page 3
Exhibits 31.1 and 32.1
6. Please note that the exact wording of the certification provided in Item 601(b)(31)
of Regulation S-K is required. For exam ple, paragraph 4(d) does not include the
parenthetical language and the introductory language in paragraph 5 does not
include the language “of internal control over financial reporting.” Please revise
your 302 certification to use the exact wording of the ce rtification provided in
Item 601(b)(31) of Regulation S-K.
7. We note that the 906 certification has not been dated. Please revise accordingly.
* * *
As appropriate, please amend your filing and respond to these comments within
10 business days or tell us when you will provid e us with a response. You may wish to
provide us with marked copies of the amendm ent to expedite our review. Please furnish
a cover letter with your amendment that keys your responses to our comments and provides any requested information. Detailed co ver letters greatly faci litate our review.
Please understand that we may have addi tional comments after reviewing your
amendment and responses to our comments.
We urge all persons who are responsi ble for the accuracy an d adequacy of the
disclosure in the filing to be certain that the filing includes all in formation required under
the Securities Exchange Act of 1934 and th at they have provided all information
investors require for an informed invest ment decision. Since the company and its
management are in possession of all facts re lating to a company’s disclosure, they are
responsible for the accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please provide, in writing, a statement from the company acknowledging that:
the company is responsible for the adequacy and accuracy of the disclosure in the
filing;
staff comments or changes to disclosure in response to staff comments do not
foreclose the Commission from taking any action with respect to the filing; and
the company may not assert staff comments as a defense in any proceeding initiated
by the Commission or any person under the federal securities laws of the United States.
Steven P. Wyandt
Nitches, Inc.
December 4, 2006 Page 4
In addition, please be advise d that the Division of Enfo rcement has access to all
information you provide to the staff of the Divi sion of Corporation Fi nance in our review
of your filing or in response to our comments on your filing.
Please contact Kurt Murao, Attorney Advi sor, at (202) 551-3338, or me at (202)
551-3720 with any other questions.
Sincerely,
H. Christopher Owings
A s s i s t a n t D i r e c t o r
cc: James A. Mercer, Esq.
Duane Morris LLP
Fax: (619) 744-2201