SEC Comment Letter for PIONEER RAILCORP (CIK 0000796374) — May 18, 2005
PIONEER RAILCORP (CIK 0000796374)
Date: May 18, 2005 · CIK: 0000796374 · Accession: 0000000000-05-024469
AI Filing Summary & Sentiment
Letter
J. Michael Carr Chief Executive Officer and President Pioneer Railcorp 1318 South Johanson Road Peoria, Illinois 61607 Preliminary Schedule 14A filed April 29, 2005, as amended File no. 1-12072 Form 10-KSB for the fiscal year ended December 31, 2004, as amended April 28, 2005 File No. 1-12072 Filed March 21, 2005
Re: Pioneer Railcorp Schedule 13E-3 filed April 29, 2005, as amended File no. 5-47260
Dear Mr. Carr:
We have reviewed your amended filings and have the following comments. Where indicated, we think you should revise your documents in response to these comments. If you disagree, we will consider your explanation as to why our comment is inapplicable or a revision is unnecessary. Please be as detailed as necessary in your explanation. In some of our comments, we may ask you to provide us with supplemental information so we may better understand your disclosure. After reviewing this information, we may or may not raise additional comments.
Please understand that the purpose of our review 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 on any other aspect of our review. Feel free to call us at the telephone numbers listed at the end of this letter.
Preliminary Proxy
Special Factors, page 12 1. We note your response to our prior comment 2. Because it appears that the board may have relied on the Donnelly Penman materials delivered to the board in its consideration of the RSM Group Proposal to ultimately decide whether or not the going private transaction was fair in light of the subsequent RSM offer, we believe these materials should be filed as exhibits. We also note that Pioneer Merger Corporation and Mr. Brenkman relied on the conclusions the board made after discussions with Donnelly Penman regarding the RSM offer for their fairness determinations. Please file the materials or provide them to us supplementally. Refer to Item 9 of Schedule 13E-3 and Items 1015 and 1016 of Regulation M-A. Please also expand your disclosure regarding these materials in accordance with the requirements of Item 1015 of Regulation M-A.
Developments subsequent to the announcement of the Proposed Going Private Transaction, page 18 2. Please refer to the last paragraph on page 19. You state that the board unanimously voted to reject the RSM Group transaction on the basis of an inconsistency with the long-term goal of enhancing shareholder value, among other things. Please revise to clarify that you are referring to shareholders that hold more than 2,000 shares at the time of the proposed merger or advise.
Position of Pioneer Merger Corporation as to the Fairness, page 32 3. Expand your disclosure to explain why each filing person believed the proposed transaction was procedurally fair in light of the RSM offer. 4. We note added disclosure regarding Pioneer Merger Corporation`s fairness determination in light of the RSM offer. Please revise to expand what is meant by the statement in the first factor that because Mr. Brenkman has no interest in selling his shares and would not vote in favor of the merger the RSM offer, the RSM offer is "in many respects, hypothetical." Similarly revise the added disclosure regarding Mr. Brenkman`s position, found on page 34. 5. It does not appear that any of the factors you have cited support a determination that the transaction is fair to unaffiliated shareholders who are being cashed out. For instance, in the second subpart you refer to the future potential to receive control premiums. Shareholders who are cashed out will not benefit from any potential future premiums. Please revise to indicate why you believe the transaction is fair to unaffiliated shareholder being cashed out.
Pro Forma Effect of the Merger, page 42 6. The weighted average shares outstanding of 4,026,001 presented in the selected pro forma financial data table do not agree with the weighted average shares of 4,017,739 disclosed on the face of your pro forma consolidated income statements for the year ended December 31, 2004. Please revise your filing to correct this discrepancy.
Closing Comments
Please file an amended Schedule 13E-3 and Schedule 14A in response to these comments. Mark the amendments so that the revisions, including those made not in response to staff comment, are clear and distinguishable from the text of earlier submissions. See Rule 310 of Regulation S-T. In addition, please furnish a cover letter that keys your responses to our comments and provide any supplemental information we requested. This comment letter should be filed on EDGAR as correspondence. If you believe complying with a comment is not appropriate, tell us why in your letter. You should be aware that we might have additional comments based on your responses.
We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filings reviewed by the staff to be certain that they have provided all information investors require. Since the company and its management are in possession of all facts relating to a company`s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made.
Please direct any questions regarding the accounting comments to Jean Yu, Staff Accountant, at (202) 551-3305, or in her absence, to Linda Cvrkel, Branch Chief - Accountant, at (202) 551-3813. For questions on other comments, please contact Johanna Vega Losert, Attorney-Adviser, at (202) 551-3210, or Susan Block, Attorney- Adviser at (202) 551-3210. You may also reach me at (202) 551-3345.
Sincerely,
Michael Pressman
Special Counsel
Office of Mergers and
Acquisitions
Show Raw Text
<DOCUMENT>
<TYPE>LETTER
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Postal Code 20549-0305
May 18, 2005
via facsimile and U.S. mail
J. Michael Carr
Chief Executive Officer and President
Pioneer Railcorp
1318 South Johanson Road
Peoria, Illinois 61607
Re: Pioneer Railcorp
Schedule 13E-3 filed April 29, 2005, as amended
File no. 5-47260
Preliminary Schedule 14A filed April 29, 2005, as amended
File no. 1-12072
Form 10-KSB for the fiscal year ended December 31, 2004, as
amended
April 28, 2005
File No. 1-12072
Filed March 21, 2005
Dear Mr. Carr:
We have reviewed your amended filings and have the following
comments. Where indicated, we think you should revise your
documents
in response to these comments. If you disagree, we will consider
your explanation as to why our comment is inapplicable or a
revision
is unnecessary. Please be as detailed as necessary in your
explanation. In some of our comments, we may ask you to provide
us
with supplemental information so we may better understand your
disclosure. After reviewing this information, we may or may not
raise additional comments.
Please understand that the purpose of our review 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 on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
Preliminary Proxy
Special Factors, page 12
1. We note your response to our prior comment 2. Because it
appears
that the board may have relied on the Donnelly Penman materials
delivered to the board in its consideration of the RSM Group
Proposal
to ultimately decide whether or not the going private transaction
was
fair in light of the subsequent RSM offer, we believe these
materials
should be filed as exhibits. We also note that Pioneer Merger
Corporation and Mr. Brenkman relied on the conclusions the board
made
after discussions with Donnelly Penman regarding the RSM offer for
their fairness determinations. Please file the materials or
provide
them to us supplementally. Refer to Item 9 of Schedule 13E-3 and
Items 1015 and 1016 of Regulation M-A. Please also expand your
disclosure regarding these materials in accordance with the
requirements of Item 1015 of Regulation M-A.
Developments subsequent to the announcement of the Proposed Going
Private Transaction, page 18
2. Please refer to the last paragraph on page 19. You state that
the
board unanimously voted to reject the RSM Group transaction on the
basis of an inconsistency with the long-term goal of enhancing
shareholder value, among other things. Please revise to clarify
that
you are referring to shareholders that hold more than 2,000 shares
at
the time of the proposed merger or advise.
Position of Pioneer Merger Corporation as to the Fairness, page 32
3. Expand your disclosure to explain why each filing person
believed
the proposed transaction was procedurally fair in light of the RSM
offer.
4. We note added disclosure regarding Pioneer Merger Corporation`s
fairness determination in light of the RSM offer. Please revise
to
expand what is meant by the statement in the first factor that
because Mr. Brenkman has no interest in selling his shares and
would
not vote in favor of the merger the RSM offer, the RSM offer is
"in
many respects, hypothetical." Similarly revise the added
disclosure
regarding Mr. Brenkman`s position, found on page 34.
5. It does not appear that any of the factors you have cited
support
a determination that the transaction is fair to unaffiliated
shareholders who are being cashed out. For instance, in the
second
subpart you refer to the future potential to receive control
premiums. Shareholders who are cashed out will not benefit from
any
potential future premiums. Please revise to indicate why you
believe
the transaction is fair to unaffiliated shareholder being cashed
out.
Pro Forma Effect of the Merger, page 42
6. The weighted average shares outstanding of 4,026,001 presented
in
the selected pro forma financial data table do not agree with the
weighted average shares of 4,017,739 disclosed on the face of your
pro forma consolidated income statements for the year ended
December
31, 2004. Please revise your filing to correct this discrepancy.
Closing Comments
Please file an amended Schedule 13E-3 and Schedule 14A in
response to these comments. Mark the amendments so that the
revisions, including those made not in response to staff comment,
are
clear and distinguishable from the text of earlier submissions.
See
Rule 310 of Regulation S-T. In addition, please furnish a cover
letter that keys your responses to our comments and provide any
supplemental information we requested. This comment letter should
be
filed on EDGAR as correspondence. If you believe complying with a
comment is not appropriate, tell us why in your letter. You
should
be aware that we might have additional comments based on your
responses.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require.
Since the company and its management are in possession of all
facts
relating to a company`s disclosure, they are responsible for the
accuracy and adequacy of the disclosures they have made.
Please direct any questions regarding the accounting comments
to
Jean Yu, Staff Accountant, at (202) 551-3305, or in her absence,
to
Linda Cvrkel, Branch Chief - Accountant, at (202) 551-3813. For
questions on other comments, please contact Johanna Vega Losert,
Attorney-Adviser, at (202) 551-3210, or Susan Block, Attorney-
Adviser
at (202) 551-3210. You may also reach me at (202) 551-3345.
Sincerely,
Michael Pressman
Special Counsel
Office of Mergers and
Acquisitions
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Pioneer Railcorp
May 18, 2005
Page 3
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0405
DIVISION OF
CORPORATION FINANCE
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