SEC Company Response from NEWS COMMUNICATIONS INC (CIK 0000794487) — Sep 15, 2005
NEWS COMMUNICATIONS INC (CIK 0000794487)
Date: Sept. 15, 2005 · CIK: 0000794487 · Accession: 0000950117-05-003698
AI Filing Summary & Sentiment
File numbers found in text: 000-18299
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KattenMuchinRosenman LLP
575 Madison Avenue
New York, NY 10022-2585
212.940.8800 tel
212.940.8776 fax
PAUL J. POLLOCK
paul.pollock@kattenlaw.com
212.940.8555 direct
212.894.5511 fax
September 15, 2005
Via Edgar Transmission
Mr. Daniel F. Duchovny, Esq.
Attorney-Advisor
Securities and Exchange Commission
100 F Street, NE
Washington, D.C. 20549
Re: News Communications, Inc.
Preliminary Schedule 14C filed July 13, 2005
File No. 000-18299
Schedule 13E-3 filed July 13, 2005
File No. 005-41485
Dear Mr. Duchovny:
Set forth below is the response on behalf of News Communications, Inc. (the
"Company") to the comments of the staff (the "Staff") of the Securities and
Exchange Commission (the "Commission") contained in the letter, dated August 12,
2005 (the "Comment Letter"), concerning the Preliminary Schedule 14C and
Schedule 13E-3 filed on July 13, 2005. For your convenience and to facilitate
your review, we have set forth herein each comment of the Staff contained in the
Comment Letter followed by our response. In this Comment Response Letter unless
the context otherwise requires, the words "we", "us" and "our" refer to the
Company. Also attached are the revised filings on Schedule 13E-3 and Schedule
14C . Each page is marked to show the changes from the documents filed on July
13, 2005.
Schedule 13E-3
Item 3. Identity and Background of the Filing Person
1. Please ensure that the information disclosed in this section regarding
your officers and directors is included in the information delivered to
security holders.
Alternatively, address why you do not believe that such information is
required to be delivered.
We have revised the disclosure in the Preliminary Information Statement
to include the information requested by Item 3.
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NEW YORK CHARLOTTE CHICAGO IRVING LOS ANGELES PALO ALTO WASHINGTON, DC WWW.KATTENLAW.COM
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A law partnership including professional corporations
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KattenMuchinRosenman LLP
September 15, 2005
Page 2
Item 13. Financial Information
2. Please revise to clarify that you are incorporating by reference the
financial information required by Item 1010(a) of Regulation M-A. We
note the disclosure under "Documents Incorporate by Reference" on page
24 of the information statement. The information currently reference
appears to be provided pursuant to Item 1010(c) and Instruction 1 to
Item 13 of Schedule 13E-3. Please revise accordingly. Further, tell us
why you believe the pro forma information requirement of Item 1010(b)
of Regulation M-A is not applicable.
We have revised the disclosure to clarify that we are incorporating by
reference the financial information required by Item 1010(a).
We do not believe that pro forma financial information should be
presented because the changes resulting from the reverse stock split
will be immaterial. The financial condition and operations of the
Company will not be impacted by the transaction. The net impact of the
reverse stock split will be to decrease the number of outstanding
shares by approximately .1% (based on the ratio of outstanding to
authorized shares both pre and post split), which will not result in a
material change to the line items for earning (loss) per common share
and weighted number of common shares outstanding other than the
proportionate change resulting from the reverse stock split.
Preliminary Information Statement
Summary, page 1
3. Expand the discussion of the fairness of the transaction to address the
fairness from a procedural view as well. We note that the fairness
determination required by Item 1014 of Regulation M-A contemplates that
the determination address both substantive and procedural fairness.
We have revised the disclosure as requested.
Financial Information, page 3
4. Please provide the ratio of earnings to fixed charges required by Item
1010(c)(4) of Regulation M-A.
We have added the required disclosure.
Special Factors
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KattenMuchinRosenman LLP
September 15, 2005
Page 3
5. The information required by Items 7, 8 and 9 of Schedule 13E-3 must
appear in a "Special Factors" section at the beginning of the
information statement, immediately following the Summary section. See
Rule 13e-3(e)(1)(ii). Please revise the information statement to
include this information in a "Special Factors" section in the
beginning of the document.
We have revised the disclosure as requested.
Background, page 9
6. Expand the first paragraph of this section to more specifically
describe the company's initial decision to explore going private. The
board meeting on January 12, 2005 appears to have been the first time
the board considered this course of action. Expand to briefly summarize
the discussion held and the reason this was discussed at that meeting.
We have revised the disclosure as requested.
7. Please expand your disclosure of the events that took place between
January 12 and May 4, 2005. Please include additional detail regarding
the meetings that took place between your management and board of
directors and any meetings with advisors. We note that the company
issued notes and shares during this time. Did this action have any
impact on the company's consideration of the going private transaction?
We have revised the disclosure as requested. The sale of the securities
occurred in our normal course of business and was undertaken to raise
funds for working capital purposes. These sales did not impact on the
Company's consideration of the proposed reverse stock split and going
private transaction.
8. We note that at a May 4, 2005 meeting with your legal counsel, that
counsel presented the "mechanics of the transaction." Please disclose
when you determined that a reverse stock split was the type of
transaction you would effect to reduce the number of security holders.
We have revised the disclosure as requested.
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KattenMuchinRosenman LLP
September 15, 2005
Page 4
9. At that same meeting, it appears that you appointed Mr. Mendelsohn as a
special independent committee. If this is the case, please describe his
duties, the extent of his authority to explore alternative transactions
and whether he had the authority to hire his own advisors.
Additionally, clarify the reference to the purchase price paid on prior
transactions in the penultimate sentence of this third paragraph. Are
you referring to prior transactions that you engaged in or to
comparable third-party transactions in your industry?
At the May 4, 2005 meeting of the board of directors, the board
determined that a special committee was not warranted. The board
anticipated that the number of fractional shares resulting from the
reverse stock split, and the corresponding cost to us, would be
relatively minimal (in fact, it will be approximately $55,000, plus
expenses). Given the potential cost of financial advisory firms and
fairness opinions, the Board determined that it would be against
prudent business judgment and the stated goal of preserving limited
corporate resources to incur any significant cost associated with
retaining a financial adviser where such cost could not be justified by
the minimum value of the service. Based on these concerns, Mr.
Mendelsohn agreed to review the terms of a proposed transaction and
make recommendations to the board regarding an appropriate reverse
stock split ratio and a fair price to be paid to holders of fractional
interest. Accordingly, the board entrusted Mr. Mendelsohn to make
recommendations to the board.
We have revised the disclosure to clarify that references to purchase
price are limited to those transactions in which the Company sold
equity securities to purchasers.
Alternatives Considered, page 10
10. We note that Nevada law does not provide dissenters' rights in
connection with this transaction. Discuss whether this was a factor in
setting the structure of this going private transaction. That is, how
did the board consider the lack of appraisal rights in choosing the
method by which to take the company private? Would appraisal rights
have been available had you chosen a different means?
The board determined to approve and proceed with a reverse stock split
following an analysis of the cost and certainty of the transaction in
order to achieve a significant reduction in the number of stockholders
of record. The board did not consider the lack of appraisal rights in
choosing a reverse stock split as the type of transaction that could
best achieve our goals. Furthermore, none of the alternative
transactions considered would necessarily have provided for appraisal
rights.
Reasons for the Structure and Timing of the Transaction, page 11
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KattenMuchinRosenman LLP
September 15, 2005
Page 5
11. It appears that the factors cited in support for the timing of the
reverse stock split have been present for some time. Thus, please
discuss why you chose to engage in a going private transaction at this
time as opposed to any other time in the company's public company
history. Refer to Item 1013(c) of Regulation M-A.
We have revised the disclosure as requested.
Going Private Transaction; Effects, page 11
12. The disclosure here is incomplete because it fails to discuss the
effects, both positive and negative, of the reverse stock split on
security holders. Please revise to address.
We have revised the disclosure as requested.
13. We note your reference to possible trading of your shares in the pink
sheets. Please describe the nature of this service, and the eligibility
and disclosure requirements with respect to your shares.
We have revised the disclosure as requested.
14. Please explain whether you considered using an alternative ratio that
would have enabled some unaffiliated security holders to retain an
ownership interest in your company while still sufficiently reducing
the total number of security holders so that you may seek to terminate
your Exchange Act reporting obligations. See Item 1013(c) of Regulation
M-A.
We have revised the disclosure as requested.
15. Disclose any disadvantages of going private considered by the board. If
the board did not consider any disadvantages, please state so.
We have revised the disclosure as requested.
Fairness of the stock splits, Page 16
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KattenMuchinRosenman LLP
September 15, 2005
Page 6
16. Expand to clarify that the fairness determination addresses the
fairness of the transaction to unaffiliated security holders who will
be cashed out and unaffiliated security holders who will continue to
hold shares. We note the "Summary" appears to address the fairness to
both categories but it is unclear what consideration was given to the
separate categories in assessing fairness. Accordingly, clarify the
board's consideration of the factors with respect to each category of
unaffiliated security holder. Finally, it is unclear how certain of the
factors support the determination. Please expand to clarify.
We have revised the disclosure as requested.
17. We note your statement that your board considered "current market
price, historical market price and the purchase prices paid in prior
purchases" to support its conclusion as to the fairness of the merger.
Revise your document to ensure that you have provided a reasonably
detailed discussion of each material factor forming the basis for your
fairness determination in accordance with Item 1014(b) of Regulation
M-A. A listing of the factors considered, without a discussion of how
that factor relates to the determination that the transaction is fair
to the unaffiliated security holders (i.e., how each factor was
analyzed) is inadequate. See In the Matter of Meyers Parking Systems
Inc., Securities Exchange Act Rel. No. 26069 (September 12, 1988). For
example, we note that you simply mention the current market price,
historical market price and the purchase prices paid in prior purchases
without describing any analysis or results of an analysis. We also note
the lack of consideration of a net book value, a going concern value,
and a liquidation value. If true, indicate why any factor was not-
material to this transaction. If any of these factors were disregarded
or not considered despite being material, please discuss the reasons
why those factors were disregarded or not considered. If any of these
factors indicated a higher value than the $1.10 per share to be paid to
the unaffiliated shareholders, your discussion should address that
difference and include a statement as to the basis for the belief that
the transaction is fair despite the difference in value. See Questions
20 and 21 in Exchange Act Release No. 17719 (April 13, 1981) for
guidance in revising your disclosure. Quantify the factors to the
extent practicable.
We have revised the disclosure as requested.
18. We note that you are not seeking security holder approval of the
reverse stock split and that you did not appoint an unaffiliated
representative to act on behalf of unaffiliated security holders.
Please explain how your board determined the procedural fairness of the
reverse stock split despite the lack of these procedural protections.
We have revised the disclosure as requested.
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KattenMuchinRosenman LLP
September 15, 2005
Page 7
19. We note that the disclosure under the bullet points entitled
"Determination of Reverse Split Ratio," "Liquidity for Remaining
Unaffiliated Stockholders," and "Cashed Out Stockholders" describes
reasons for the transaction. Please expand your disclosure t