SEC Company Response from TOTAL LOGISTICS INC (CIK 0001052102) — Jan 25, 2005
TOTAL LOGISTICS INC (CIK 0001052102)
Date: Jan. 25, 2005 · CIK: 0001052102 · Accession: 0000897069-05-000206
AI Filing Summary & Sentiment
Referenced dates: January 19, 2005
Letter
CLIENT/MATTER NUMBER 076981-0106 Ms. Abby Adams Special Counsel U.S. Securities and Exchange Commission Division of Corporate Finance Office of Mergers and Acquisitions Washington, DC 20549 Re: Total Logistics, Inc. Schedule 14D-9C filed January 5, 2005, Schedule 14D-9 filed January 7,
Dear Ms. Adams:
On behalf of our client, Total Logistics, Inc., a Wisconsin corporation (the “Company”), set forth in this letter are the Company’s responses to comments of the Staff (the “Staff”) of the Securities and Exchange Commission (the “Commission”) set forth in the Staff’s letter, dated January 19, 2005, with respect to the above-referenced filings. The numbered items set forth below repeat (in bold italics) the comments of the Staff reflected in the Comment Letter, and following such comments are the Company’s responses (in regular type).
Enclosed please find three copies of Amendment No. 1 to the Schedule 14D-9 (the “Amendment”), which was filed today via EDGAR with the Commission. In addition, please find the written statement of the Company requested by the Staff in the Comment Letter.
Schedule 14D-9C, filed January 5, 2005 (Press Release)
1. We note your references to forward-looking statements in the press release filed as an exhibit to this document. Note that the safe harbor protections for forward-looking statements contained in the federal securities laws do not apply to statements made in connection with a tender offer. See Section 21E(b)(2)(C) of the Securities Exchange Act of 1934 and Regulation M-A telephone interpretation M.2 available at www.sec.gov in the July 2001 Supplement to the Division of Corporation Finance’s Manual of Publicly Available Telephone Interpretations. Please do not refer to the safe harbor provisions in any communications relating to this tender offer.
The Company notes the Staff’s comment and will not refer to the safe harbor provisions in any future communications relating to the tender offer.
BRUSSELS
CHICAGO
DETROIT
JACKSONVILLE
LOS ANGELES
MADISON
MILWAUKEE
NEW YORK
ORLANDO
SACRAMENTO
SAN DIEGO
SAN DIEGO/DEL MAR
SAN FRANCISCO
SILICON VALLEY
TALLAHASSEE
TAMPA
TOKYO
WASHINGTON, D.C.
WEST PALM BEACH
Ms. Abby Adams January 25, 2005 Page 2
Schedule 14D-9
Item 3. Past Contacts, Transactions, Negotiations and Agreements, page 1
2. Providing the information required by Rule 14f-1 as an annex to the Schedule 14D-9 does not satisfy your filing requirementunder that Rule. Please file the information statement as a separate document in EDGAR.
The Company has filed the information statement required by Rule 14f-1 as Exhibit (e)(3) to the Amendment.
Item 4. The Solicitation or Recommendation, page 3 Reasons for the Determination, page 5
3. Please provide us a copy of any board books or presentations provided to the board by the financial advisor.
Under separate cover, the Company has provided to the Staff on a supplemental basis a copy of the board book provided by the Company’s financial advisor to the Company’s board of directors on January 4, 2005.
4. What consideration has been given to describing the analyses and conclusions of the financial advisor in more detail,particularly in light of recent case law? We note that the opinion is a material factor considered by the board in its determinationand it may be helpful for investors to consider the analysis in more detail.
The Company has revised Subsection (d) of Item 4 – “Opinion of the Company’s Financial Advisor” of the Schedule 14D-9 in response to the Staff’s comment.
5. Revise to disclose all material factors considered by the board in reaching its fairness determination. In addition, please expand the factors to explain how they support the decision to approve the transaction. Vague statements of topics, such as “the current and historical financial condition, results of operations, business and prospects of the Company” in factor (ii), are not sufficient. Instead, briefly explain what the board analyzed in relation to the company’s financial condition, its prospects, etc., and how this information contributed to the board’s decision to recommend the offer. Please note the following additional examples:
• revise factor (i) to specify the terms and conditions that the board considered and what it concluded about those provisionsof the offer;
• expand factor (iv) to describe all of the strategic alternatives and business opportunities considered and the reasons fortheir rejection, including the specific risks and prospects associated with each of them; and
• revise factor (vii) to disclose the specific historical trading prices considered.
Ms. Abby Adams January 25, 2005 Page 3
The Company has revised Subsection (c) of Item 4 “The Solicitation or Recommendation—Reasons for the Determination” of the Schedule 14D-9 in response to the Staff’s comment.
6. We note that you provided the financial advisor with projections. Did you provide these projections to Supervalu? What consideration have you given to disclosing the projections?
The Company did not provide the projections to SUPERVALU. The projections were provided solely to the Company’s financial advisor on a strictly confidential basis. The projections included non-public, competitively sensitive information and were based on management’s good faith estimates and assumptions with respect to various factors that may affect the results of the Company’s operations over a number of years. The Company respectfully submits that, due to their nature and sensitivity, disclosing such projections could be misleading to shareholders and the public without providing any meaningful benefit.
7. Revise to clarify that the financial advisor has consented to the use of its opinion in connection with the Schedule 14D-9.
The Company has revised Subsection (d) of Item 4 – “Opinion of the Company’s Financial Advisor” of the Schedule 14D-9 in response to the Staff’s comment.
* * *
If the Staff has any questions with respect to the foregoing, it should contact the undersigned at (414) 297-5553.
Very truly yours,
/s/ Paul J. Jones
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FOLEY & LARDNER LLP
ATTORNEYS AT LAW
777 EAST WISCONSIN AVENUE
MILWAUKEE, WISCONSIN 53202-5306
414.271.2400 TEL
414.297.4900 FAX
www.foley.com
January 25, 2005
WRITER'S DIRECT LINE
414.297.5553
pjones@foley.com Email
VIA FACSIMILE
CLIENT/MATTER NUMBER
076981-0106
Ms. Abby Adams
Special
Counsel
U.S. Securities and Exchange Commission
Division of Corporate Finance
Office of
Mergers and Acquisitions
Washington, DC 20549
Re:
Total
Logistics, Inc. Schedule 14D-9C filed January 5, 2005,
Schedule 14D-9 filed January 7,
2005
Dear Ms. Adams:
On
behalf of our client, Total Logistics, Inc., a Wisconsin corporation (the
“Company”), set forth in this letter are the Company’s responses to
comments of the Staff (the “Staff”) of the Securities and Exchange Commission
(the “Commission”) set forth in the Staff’s letter, dated January 19, 2005,
with respect to the above-referenced filings. The numbered items set forth below repeat
(in bold italics) the comments of the Staff reflected in the Comment Letter, and following
such comments are the Company’s responses (in regular type).
Enclosed
please find three copies of Amendment No. 1 to the Schedule 14D-9 (the
“Amendment”), which was filed today via EDGAR with the Commission. In addition,
please find the written statement of the Company requested by the Staff in the Comment
Letter.
Schedule 14D-9C, filed
January 5, 2005 (Press Release)
1. We
note your references to forward-looking statements in the press release filed
as an exhibit to this document. Note that the safe harbor protections for
forward-looking statements contained in the federal securities laws do not
apply to statements made in connection with a tender offer. See Section
21E(b)(2)(C) of the Securities Exchange Act of 1934 and Regulation M-A
telephone interpretation M.2 available at www.sec.gov in the July 2001
Supplement to the Division of Corporation Finance’s Manual of Publicly
Available Telephone Interpretations. Please do not refer to the safe harbor
provisions in any communications relating to this tender offer.
The
Company notes the Staff’s comment and will not refer to the safe harbor provisions in
any future communications relating to the tender offer.
BRUSSELS
CHICAGO
DETROIT
JACKSONVILLE
LOS ANGELES
MADISON
MILWAUKEE
NEW YORK
ORLANDO
SACRAMENTO
SAN DIEGO
SAN DIEGO/DEL MAR
SAN FRANCISCO
SILICON VALLEY
TALLAHASSEE
TAMPA
TOKYO
WASHINGTON, D.C.
WEST PALM BEACH
Ms. Abby Adams
January
25, 2005
Page 2
Schedule 14D-9
Item
3. Past Contacts, Transactions, Negotiations and Agreements, page 1
2.
Providing the information required by Rule 14f-1 as an annex to the Schedule 14D-9 does
not satisfy your filing requirementunder that Rule. Please file the information statement
as a separate document in EDGAR.
The
Company has filed the information statement required by Rule 14f-1 as Exhibit (e)(3) to
the Amendment.
Item
4. The Solicitation or Recommendation, page 3
Reasons for the Determination, page 5
3.
Please provide us a copy of any board books or presentations provided to the board by the
financial advisor.
Under
separate cover, the Company has provided to the Staff on a supplemental basis a copy of
the board book provided by the Company’s financial advisor to the Company’s
board of directors on January 4, 2005.
4.
What consideration has been given to describing the analyses and conclusions of the
financial advisor in more detail,particularly in light of recent case law? We note that
the opinion is a material factor considered by the board in its determinationand it may
be helpful for investors to consider the analysis in more detail.
The
Company has revised Subsection (d) of Item 4 – “Opinion of the Company’s
Financial Advisor” of the Schedule 14D-9 in response to the Staff’s comment.
5. Revise
to disclose all material factors considered by the board in reaching its
fairness determination. In addition, please expand the factors to explain how
they support the decision to approve the transaction. Vague statements of
topics, such as “the current and historical financial condition, results
of operations, business and prospects of the Company” in factor (ii), are
not sufficient. Instead, briefly explain what the board analyzed in relation to
the company’s financial condition, its prospects, etc., and how this
information contributed to the board’s decision to recommend the offer.
Please note the following additional examples:
•
revise
factor (i) to specify the terms and conditions that the board considered and what it
concluded about those provisionsof the offer;
•
expand
factor (iv) to describe all of the strategic alternatives and business opportunities
considered and the reasons fortheir rejection, including the specific risks and prospects
associated with each of them; and
•
revise
factor (vii) to disclose the specific historical trading prices considered.
Ms. Abby Adams
January
25, 2005
Page 3
The
Company has revised Subsection (c) of Item 4 “The Solicitation or
Recommendation—Reasons for the Determination” of the Schedule 14D-9 in response
to the Staff’s comment.
6. We
note that you provided the financial advisor with projections. Did you provide
these projections to Supervalu? What consideration have you given to disclosing
the projections?
The
Company did not provide the projections to SUPERVALU. The projections were provided solely
to the Company’s financial advisor on a strictly confidential basis. The projections
included non-public, competitively sensitive information and were based on
management’s good faith estimates and assumptions with respect to various factors
that may affect the results of the Company’s operations over a number of years. The
Company respectfully submits that, due to their nature and sensitivity, disclosing such
projections could be misleading to shareholders and the public without providing any
meaningful benefit.
7.
Revise to clarify that the financial advisor has consented to the use of its opinion in
connection with the Schedule 14D-9.
The
Company has revised Subsection (d) of Item 4 – “Opinion of the Company’s
Financial Advisor” of the Schedule 14D-9 in response to the Staff’s comment.
* * *
If
the Staff has any questions with respect to the foregoing, it should contact the
undersigned at (414) 297-5553.
Very truly yours,
/s/ Paul J. Jones
Paul J. Jones
Enclosures
cc:
William
T. Donovan
John Buono
Total Logistics, Inc.
Benjamin F. Garmer, III
Mark T. Plichta
Foley
&Lardner LLP