SEC Company Response from JAMESON INNS INC (CIK 0000914373) — Jun 3, 2005
JAMESON INNS INC (CIK 0000914373)
Date: June 3, 2005 · CIK: 0000914373 · Accession: 0001193125-05-120225
AI Filing Summary & Sentiment
File numbers found in text: 333-119016
Letter
Division of Corporation Finance Securities and Exchange Commission Re: Jameson Inns, Inc. Amendment No.2 to Form S-3 filed December 30, 2004 File No. 333-119016
Dear Karen and Jeff:
This letter is being submitted pursuant to your request in our recent telephone conversation. You indicated that you believe that in connection with each stay credit awarded to a participant under the Jameson Frequent Guest Loyalty Award Program (the “Program”), Jameson would be required to issue the securities and deliver a new copy of the prospectus within three days following the completed stay. You indicated that the monthly aggregation of credits and issuance of shares only once a month would not be in compliance with the applicable rules.
I suggested that this program was very similar to the direct stock purchase programs that many companies implement in which they aggregate purchase requests and issue the shares only periodically. I promised to provide you with examples of those programs. That is the purpose of this letter. I am also going to address your asserted requirement for the delivery of a prospectus with each issuance of stock.
March 9, 2005
Page 2
We looked at a large number of direct stock purchase programs. These typically are part of a dividend reinvestment plan and allow the participants to make voluntary stock purchases for cash from the company or the plan administrator. In virtually every such program, the purchase requests and payments are aggregated and the shares issued periodically, not on the date of receipt of the request or payment from the participant. Many of these provide for purchases only once a week and a large number of others provide for purchases only once a month. Samples of the relevant terms of these programs in which the shares are purchased only monthly are provided below:
•
Under the Alcoa Inc. Dividend Reinvestment and Stock Purchase Plan, “cash payments will be invested on the 25th day of each month (or the next business day thereafter)”.
•
Under the Dividend Reinvestment Plan for American Power Conversion Corporation, optional cash investments will be made “Once per month: Typically on the 15th day of each month. If the 15th day of the month is not a stock market trading day (“trading day”), the investment date will be the next trading day.”
•
Under the Boston Properties, Inc. Dividend Investment and Stock Purchase Plan, “the investment date for optional cash investments, initial investments and automatic monthly investments of $10,000 or less will be the last trading day of the month. If the Plan administrator purchases the shares directly from us, purchases will be made on the investment date. If the Plan administrator acquires shares from parties other than us either in open market or through privately negotiated transactions, such purchases will begin on the investment date and will be completed no later than ten business days following such date except where completion at a later date is necessary or advisable under any applicable federal or state securities laws or regulations.”
•
Under the Burlington Northern Santa Fe Corporation Automatic Dividend Reinvestment Plan, “voluntary cash purchases will be invested beginning on the 1st day of each month in which no dividend is payable and concurrent with dividends in the months in which dividends are paid.”
•
Under the Mercantile Bank Corporation Dividend Reinvestment Plan, “the investment date for optional cash payments will be the 10th of each month. If the investment date is not a trading day on The NASDAQ Stock Market, then the investment date will be the next trading day. Purchases on the open market will begin on the investment date and will be completed no later than … 35 days with respect to optional cash payments except where completion at a later date is necessary or advisable under federal securities laws.”
Some examples of such plans administered by Jameson’s plan administrator that provide for voluntary cash purchases only once a month are Dollar General, Glenborough Realty Trust, Inc. and LNB Bancorp Inc. In each case, the purchases are treated as being made on the one day of
March 9, 2005
Page 3
the month on which the shares are actually purchased by or issued to the plan and confirmations are then sent out in respect of that date.
We believe that if the monthly aggregation of voluntary investments of cash (each of which is a clear and distinct investment decision, not an automatic investment of a dividend) is permissible, then certainly the monthly aggregation of stay credits which result in once-a-month issuances of Jameson stock should be acceptable. The time for issuing confirmations should begin on the date those purchases are made and not on the date that the stay is completed or paid for.
You also have suggested that a prospectus must accompany each confirmation. Our research has indicated that prospectuses are delivered in connection with voluntary purchases under direct stock purchase plans only if there has been an amendment or supplement to the prospectus that has not previously been delivered to the participant. In all other instances, no prospectus is delivered if the participant has previously received a prospectus. I am not sure the basis for your asserted position that a prospectus must be delivered with each confirmation for each participant. The statute, Section 5(b)(2) of the Securities Act of 1933, as amended, provides that it is unlawful for the interstate delivery of a security to occur unless it is accompanied or preceded by a prospectus.
Participants in the Program will all receive a prospectus when they enroll. Each time there is an amendment of or supplement to the prospectus, it will be delivered to each participant. Thus, when participants receive their confirmations of the monthly issuance of shares to their accounts, prospectuses are not required to be delivered with those confirmations if prospectuses have been previously delivered (in those cases, the prospectuses preceded the delivery of the securities). If you feel as though I am not interpreting the statute and other delivery requirements properly, could you please provide the authority for your position.
If you have further questions or would like further information, please do not hesitate to call me directly. I will call shortly to discuss this letter and its contents with the hope of being able to move forward with this registration as soon as possible.
Yours very truly,
/s/ Lynn
Lynnwood R. Moore, Jr.
cc:
Jameson Inns, Inc.
Lehman & Eilen
Brinson Patrick Securities Corporation
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CORRESP
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filename1.htm
Correspondence
CONNER & WINTERS
TULSA
ATTORNEYS & COUNSELORS AT LAW
William G. von Glahn
Vicki Bronson*
Henry G. Will
Joseph J. McCain, Jr.
Lynnwood R. Moore, Jr.
Robert A. Curry
Steven W. McGrath
D. Richard Funk
Randolph L. Jones, Jr.
J. Ronald Petrikin
Larry B. Lipe
James E. Green, Jr.
Martin R. Wing
John W. Ingraham
Andrew R. Turner
Gentra Abbey Sorem
R. Kevin Redwine
Tony W. Haynie
Bruce W. Freeman
David R. Cordell
John N. Hove
C. Raymond Patton, Jr.
Paul E. Braden
Robert J. Melgaard
P. Scott Hathaway
Lawrence A. Hall
Timothy T. Trump
Mark E. Dreyer
Nancy E. Vaughn
Gregory D. Renberg
Mark D. Berman
Katherine G. Coyle
Beverly K. Smith
Melodie Freeman-Burney
R. Richard Love, III
Robert D. James
Stephen R. Ward
Jeffrey R. Schoborg
Anne B. Sublett
J. Ryan Sacra
Jason S. Taylor
Katy Day Inhofe
Stephan A. Wangsgard
Julia Forrester-Sellers
Melinda L. Kirk
P. Bradley Bendure
Kathryn J. Kindell
Amy M. Santee
Cara M. Hair
Alissa A. Hurley
Heather Holt Bilderback
Debra R. Stockton
Shelley L. Carter
Jed W. Isbell
Conner & Winters, LLP
3700 First Place Tower
15 East Fifth
Street
Tulsa, Oklahoma 74103-4344
918-586-5711
Fax 918-586-8982
www.cwlaw.com
Writer’s Direct Number
918-586-5691
Writer’s Fax Number
918-586-8691
Writer’s E-mail Address
lmoore@cwlaw.com
Bob F. McCoy
John E. Barry
James R. Ryan
Russell H. Harbaugh, Jr.
David O. Cordell
OKLAHOMA CITY
Irwin H.
Steinhorn
John W. Funk
Jared D. Giddens
Kiran A. Phansalkar
Mitchell D. Blackburn
Mark H. Bennett
Bryan J. Wells
Laura McCasland Holbrook
John E. Gatliff II
J. Dillon Curran
William M. Lewis
L. Belynn Whatley
Peter B. Bradford
Shelia L. Darling
NORTHWEST ARKANSAS
John R. Elrod*
Greg S. Scharlau
Terri Dill Chadick
Todd P. Lewis*
P. Joshua Wisley
Charles E. Scharlau*
WASHINGTON, D.C.
G. Daniel Miller*
Henry Rose*
Erica L. Summers*
HOUSTON, TEXAS
Pamela H. Stabler*
JACKSON,
WYOMING
Randolph L. Jones, Jr.
SANTA FE, NEW MEXICO
Douglas M. Rather
Benjamin C. Conner
1879-1963
John M. Winters, Jr.
1901-1989
*Not Admitted in Oklahoma
March 9, 2005
Via Fax
Karen J. Garnett, Assistant Director
Jeff Shady
Division of Corporation Finance
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re:
Jameson Inns, Inc.
Amendment No.2 to Form S-3 filed
December 30, 2004
File No. 333-119016
Dear Karen and Jeff:
This letter is being submitted pursuant to your request in our recent
telephone conversation. You indicated that you believe that in connection with each stay credit awarded to a participant under the Jameson Frequent Guest Loyalty Award Program (the “Program”), Jameson would be required to issue the
securities and deliver a new copy of the prospectus within three days following the completed stay. You indicated that the monthly aggregation of credits and issuance of shares only once a month would not be in compliance with the applicable rules.
I suggested that this program was very similar to the direct
stock purchase programs that many companies implement in which they aggregate purchase requests and issue the shares only periodically. I promised to provide you with examples of those programs. That is the purpose of this letter. I am also going to
address your asserted requirement for the delivery of a prospectus with each issuance of stock.
March 9, 2005
Page 2
We looked at a large number of direct stock purchase programs.
These typically are part of a dividend reinvestment plan and allow the participants to make voluntary stock purchases for cash from the company or the plan administrator. In virtually every such program, the purchase requests and payments are
aggregated and the shares issued periodically, not on the date of receipt of the request or payment from the participant. Many of these provide for purchases only once a week and a large number of others provide for purchases only once a month.
Samples of the relevant terms of these programs in which the shares are purchased only monthly are provided below:
•
Under the Alcoa Inc. Dividend Reinvestment and Stock Purchase Plan, “cash payments will be invested on the 25th day of each month (or the next business day thereafter)”.
•
Under the Dividend Reinvestment Plan for American Power Conversion Corporation, optional cash investments will be made “Once per month: Typically on the 15th day of each month. If the 15th day of the month is not a stock market trading day (“trading day”), the investment date will be the next trading day.”
•
Under the Boston Properties, Inc. Dividend Investment and Stock Purchase Plan, “the investment date for optional cash investments, initial investments and automatic monthly
investments of $10,000 or less will be the last trading day of the month. If the Plan administrator purchases the shares directly from us, purchases will be made on the investment date. If the Plan administrator acquires shares from parties other
than us either in open market or through privately negotiated transactions, such purchases will begin on the investment date and will be completed no later than ten business days following such date except where completion at a later date is
necessary or advisable under any applicable federal or state securities laws or regulations.”
•
Under the Burlington Northern Santa Fe Corporation Automatic Dividend Reinvestment Plan, “voluntary cash purchases will be invested beginning on the 1st day of each month in which no dividend is payable and concurrent with dividends in the months in which dividends are
paid.”
•
Under the Mercantile Bank Corporation Dividend Reinvestment Plan, “the investment date for optional cash payments will be the 10th of each month. If the investment date is not a trading day on The NASDAQ Stock Market, then the investment date will be the next trading day. Purchases on the
open market will begin on the investment date and will be completed no later than … 35 days with respect to optional cash payments except where completion at a later date is necessary or advisable under federal securities laws.”
Some examples of such plans administered by Jameson’s plan
administrator that provide for voluntary cash purchases only once a month are Dollar General, Glenborough Realty Trust, Inc. and LNB Bancorp Inc. In each case, the purchases are treated as being made on the one day of
March 9, 2005
Page 3
the month on which the shares are actually purchased by or issued to the plan and
confirmations are then sent out in respect of that date.
We
believe that if the monthly aggregation of voluntary investments of cash (each of which is a clear and distinct investment decision, not an automatic investment of a dividend) is permissible, then certainly the monthly aggregation of stay credits
which result in once-a-month issuances of Jameson stock should be acceptable. The time for issuing confirmations should begin on the date those purchases are made and not on the date that the stay is completed or paid for.
You also have suggested that a prospectus must accompany each confirmation.
Our research has indicated that prospectuses are delivered in connection with voluntary purchases under direct stock purchase plans only if there has been an amendment or supplement to the prospectus that has not previously been delivered to the
participant. In all other instances, no prospectus is delivered if the participant has previously received a prospectus. I am not sure the basis for your asserted position that a prospectus must be delivered with each confirmation for each
participant. The statute, Section 5(b)(2) of the Securities Act of 1933, as amended, provides that it is unlawful for the interstate delivery of a security to occur unless it is accompanied or preceded by a prospectus.
Participants in the Program will all receive a prospectus when they enroll.
Each time there is an amendment of or supplement to the prospectus, it will be delivered to each participant. Thus, when participants receive their confirmations of the monthly issuance of shares to their accounts, prospectuses are not required to
be delivered with those confirmations if prospectuses have been previously delivered (in those cases, the prospectuses preceded the delivery of the securities). If you feel as though I am not interpreting the statute and other delivery
requirements properly, could you please provide the authority for your position.
If you have further questions or would like further information, please do not hesitate to call me directly. I will call shortly to discuss this letter and its contents with the hope of being able to move forward with
this registration as soon as possible.
Yours very truly,
/s/ Lynn
Lynnwood R. Moore, Jr.
cc:
Jameson Inns, Inc.
Lehman & Eilen
Brinson Patrick Securities Corporation