SecProbe.io

CORRESP
1
filename1.htm

  505 Montgomery
  Street, Suite 2000

  San Francisco,
  California 94111-2562

  Tel: (415) 391-0600
  Fax: (415) 395-8095

  www.lw.com

  FIRM / AFFILIATE
  OFFICES

  Boston

  New York

  Brussels

  Northern Virginia

  Chicago

  Orange County

  Frankfurt

  Paris

  August 26,
  2005

  Hamburg

  San Diego

  Hong Kong

  San Francisco

  London

  Shanghai

  Los Angeles

  Silicon Valley

  Milan

  Singapore

  Moscow

  Tokyo

  VIA
  EDGAR AND VIA HAND DELIVERY

  New Jersey

  Washington, D.C.

  File No. 037946-0008

Donald C. Hunt, Esq.

Attorney-Advisor

Office of Electronics and
Machinery

Division of Corporation
Finance

Securities and Exchange
Commission

100 F Street, N.E.

Washington, DC  20549-6010

  Re:

  New
  Athletics, Inc.

  Registration
  Statement on Form S-4 Filed June 24, 2005

  File No. 333-126098
  (the “Registration Statement”)

  Response
  to the Staff’s Comment 15 to the Registration Statement and

  Request for Exemptive Relief Pursuant to Rule 13e-4(h)(9) Under the

  Securities Exchange Act of 1934, as amended (the “Exchange
  Act”)

Dear Mr. Hunt:

On
behalf of New Athletics, Inc. (“New Athletics”
or “Newco”) and in response to the
letter from Russell Mancuso, Branch Chief, dated July 22, 2005 (the “Comment Letter”) and addressed to Mr. Jerauld
J. Cutini, Chief Executive Officer of Newco, we are writing to respond to the
Staff’s comment 15 contained in the Comment Letter, which reads as follows:

15.                               Tell us whether the solicitation
of the consent of your option holders is subject to the proxy and tender offer
rules.  If not, provide us a detailed legal
analysis of why the rules are not applicable.  Please also tell us whether upon commencement
of the offer, New Athletics will be an affiliate of Trikon for purposes of Rule 13e-4
and provide us with your analysis regarding that determination.

We are
also requesting the Division of Corporation Finance, pursuant to Rule 13e-4(h)(9),
to exempt Trikon’s consent solicitation, either unconditionally or on specified
terms and conditions, from Rule 13e-4. (1)

(1)          Exchange
Act Rule 13e-4(h)(9) provides that Rule 13e-4 shall not apply to
“[a]ny other transaction or transactions, if the Commission, upon written
request or upon its own motion, exempts such transaction or transactions,
either unconditionally, or on specified terms and conditions, as not constituting
a fraudulent, deceptive or manipulative act or practice comprehended within the
purpose of this rule.”

Background

As is
typical in transactions similar to the merger transaction (the “Merger”) contemplated by the merger
agreement by and among New Athletics, Trikon and Aviza (the “Merger Agreement”), Section 2.4.1
of the Merger Agreement provides that at the effective time of the Merger, each
unexercised and unexpired option to purchase shares of Trikon common stock will
be assumed by Newco and will thereafter become exercisable for a number of
shares of Newco common stock and at an exercise price, each as appropriately adjusted
to reflect the Trikon exchange ratio.

Acquiring
companies almost never register the stock options they issue in these types of
transactions because the agreements governing the acquired company’s stock
options almost always expressly provide that the acquiring company may assume
the acquired company’s stock options in the manner set forth above without the
prior consent of the holders thereof.
Because the holders of the acquired company’s stock options are not
being asked to make an investment decision in such a scenario, there is no “sale”
of the acquiring company’s stock options and there is therefore no need for the
acquiring company to register its stock options under the Securities Act of
1933, as amended (the “Securities Act”)
in connection with the transaction.

This
scenario holds true for all of Trikon’s stock options except for those granted
pursuant to one sub-plan under one of its employee stock option plans.  The terms of the Trikon (United Kingdom
Companies) share option scheme, a sub-plan under Trikon’s 1991 Stock Option
Plan used solely to grant Trikon stock options to Trikon employees who are
residents of the United Kingdom (the “Trikon U.K. Option Scheme”),
expressly require that each holder (each, a “Holder”
and collectively, the “Holders”) of
an option to purchase shares of Trikon common stock granted thereunder (each, a
“Trikon U.K. Option Scheme Option”
and collectively, the “Trikon U.K. Option Scheme
Options”) affirmatively consent to a third party’s assumption of
the Trikon U.K. Option Scheme Options in a transaction such as the Merger.  As disclosed in the Registration Statement, this
is the only reason that Trikon is soliciting the consents of the Holders to Newco’s
assumption of their Trikon U.K. Option Scheme Options.  Trikon is not seeking to purchase, cancel or
retire the Trikon U.K. Option Scheme Options or otherwise diminish the rights
of the Holders by virtue of its consent solicitation.  Rather, Trikon is soliciting the consents of
the Holders solely because the terms of the Trikon U.K. Option Scheme require
Trikon to do so in order for the Holders to be treated in the Merger in the
same manner as Trikon’s employees who are residents of the United States.  If Trikon does not solicit the consents of
the Holders, unlike all of the other options to purchase shares of Trikon
common stock or Aviza common stock, the Holders’ Trikon U.K. Scheme Options will
not be converted into options to purchase shares of Newco common stock in the
Merger.  Instead, the Holders’ Trikon
U.K. Option Scheme Options will remain options to purchase shares of Trikon
common stock after the Merger.  Because
Trikon will be a subsidiary of Newco and there will be no public market for
shares of Trikon common stock after the Merger, these options will essentially
be without value because the Holders will not be able to realize any liquidity
for any shares of Trikon common stock acquired upon exercise of these
options.  Trikon’s consent solicitation
will thus inure to the benefit of those Holders who consent to Newco’s
assumption of their Trikon

2

U.K. Option Scheme
Options, because those Holders will receive options to purchase shares of Newco
common stock in the Merger, which shares will be publicly traded on Nasdaq.

Regulations
14A, 14C, 14D and 14E

In
response to the first portion of the Staff’s comment as to whether Trikon’s solicitation
of the consents of the Holders is subject to the proxy and tender offer rules,
because the Trikon U.K. Option Scheme Options held by the Holders are
securities, Newco concurs that Trikon’s consent solicitation is a tender offer subject
to Regulation 14E under the Exchange Act.
However, because the Trikon U.K. Option Scheme Options are not a class
of an equity security that is registered pursuant to Section 12 of the
Exchange Act, Newco respectfully submits that Trikon’s consent solicitation is
not subject to Regulations 14A, 14C or 14D under the Exchange Act.

Rule 13e-4

In
response to the second portion of the Staff’s comment as to whether, upon
commencement of the offer, New Athletics will be an affiliate of Trikon for
purposes of Rule 13e-4 under the Exchange Act, Newco respectfully submits
that whether or not New Athletics will be an affiliate of Trikon upon
commencement of the offer for purposes of Rule 13e-4, Trikon’s consent
solicitation is also subject to Rule 13e-4 because (i) Trikon is an “issuer”
as such term is defined in Rule 13e-4(a)(1) and (ii) Trikon’s
consent solicitation is an “issuer tender offer” as such term is defined in Rule 13e-4(a)(2).  Newco respectfully submits, however, that  requiring Trikon to comply with the additional
filing, disclosure and dissemination requirements of Rule 13e-4 under
these particular facts and circumstances would not be in furtherance of the stated
purpose of Rule 13e-4—”to ensure that issuer tender offers are conducted
in a manner free of . . . deceptive, manipulative and fraudulent acts and
practices.”(2)  Newco’s view is based on the following facts:

•                  Trikon is not soliciting the consent
of any U.S. person.

•                  Each Holder will be provided with a
copy of the proxy statement/prospectus contained in the Registration Statement.  Newco respectfully submits that the proxy
statement/prospectus contained in the Registration Statement complies with the
requirements of Form S-4 and that each item that would have been required
to be disclosed in or filed as an exhibit to a Schedule TO is disclosed in
the proxy statement/prospectus that will be delivered to each Holder or filed
as an exhibit to the Registration Statement.
We have attached as Exhibit A to this letter a table
cross-referencing where each item that would have been required to be disclosed
in or filed as an exhibit to a Schedule TO is disclosed in the proxy
statement/prospectus that will be delivered to each Holder or filed as an
exhibit to the Registration Statement.

(2)          Securities Exchange Act
Release No. 34-16112 (August 19, 1979).

3

•                  Trikon will conduct its consent
solicitation in accordance with Regulation 14E under the Exchange Act,
providing the Holders with the additional protections afforded thereby.

•                  Trikon’s consent solicitation does
not constitute “a fraudulent, deceptive or manipulative act or practice
comprehended within the purpose” of Rule 13e-4. (3)

•                  Newco respectfully submits that the
exemption of Trikon’s consent solicitation from Rule 13e-4 will not create
a precedent that will stimulate requests for additional requests for exemptive
relief because the requirement for an acquired company to obtain the consent of
its option holders to the assumption of their stock options by the acquiring
company in a transaction similar to the Merger is extraordinarily unusual.  As discussed above, almost every employee
stock option plan expressly provides that the acquiring company may assume the
acquired company’s stock options in a transaction similar to the Merger without
the prior consent of the holders thereof.
It is only because of the extreme peculiarity of the Trikon U.K. Option
Scheme that Newco is requesting exemptive relief from Rule 13e-4.

Request
for Exemptive Relief Pursuant to Rule 13e-4(h)(9)

Although
Newco concurs that Trikon’s consent solicitation is subject to Regulation 14E
under the Exchange Act and will be conducted by Trikon in accordance therewith,
Newco respectfully submits that Trikon’s consent solicitation is not subject to
Regulations 14A, 14C or 14D under the Exchange Act.  And although Trikon’s consent solicitation is
also subject to Rule 13e-4 under the Exchange Act, for all of the reasons
set forth above, Newco respectfully requests the Division of Corporation
Finance, pursuant to Rule 13e-4(h)(9), to exempt Trikon’s consent
solicitation, either unconditionally or on specified terms and conditions, from
Rule 13e-4 as not constituting a fraudulent, deceptive or manipulative act
or practice comprehended within the purpose of Rule 13e-4.

Please
contact John Huber at (202) 637-2242 or the undersigned at (415) 395-8277 at your
earliest convenience to discuss the contents of this letter.

  Very truly
  yours,

  /s/ Andrew S.
  Williamson

  Andrew S.
  Williamson

  of LATHAM &
  WATKINS LLP

  cc:

  Jerauld J.
  Cutini, Aviza Technology, Inc.

  John Macneil,
  Trikon Technologies, Inc.

  John J. Huber,
  Latham & Watkins LLP

  Christopher L.
  Kaufman, Latham & Watkins LLP

  Steven V.
  Bernard, Wilson Sonsini Goodrich & Rosati, Professional Corporation

(3)          See Exchange Act Rule 13e-4(h)(9).

4

EXHIBIT A

Table Cross-Referencing Items of Schedule TO
with the Registration Statement

  Item 1. Summary Term Sheet.

  Furnished on pages 196-198 of the prospectus as permitted by
  Item 1.

  Item 2. Subject Company Information.

  Information responsive to Item 1002(a) of Regulation M-A
  furnished on cover page of the prospectus and elsewhere throughout.
  Information responsive to Items 1002(b) and (c) of Regulation M-A
  furnished on page 196 of the prospectus. Information responsive to Item
  1002(d) of Regulation M-A furnished on pages 90 and 196 of the
  prospectus. Items 1002(e) and (f) of Regulation M-A are
  inapplicable.

  Item 3. Identity and Background of Filing
  Person.

  Information responsive to Item 1003(a) of Regulation M-A
  furnished on cover page of the prospectus and elsewhere throughout.

  Item 4. Terms of the Transaction.

  Information responsive to Items 1004(a) and (b) of Regulation
  M-A furnished on pages 196-198 of prospectus and Annex D thereto.

  Item 5. Past Contacts, Transactions,
  Negotiations and Agreements.

  Inapplicable.

  Item 6. Purposes of the Transaction and Plans or
  Proposals.

  Information responsive to Items 1006(a) and (b) of
  Regulation M-A furnished on pages 196-198 of the prospectus. Information
  responsive to Items 1006(c)(1), (c)(3), (c)(5) and (c)(9) of
  Regulation M-A furnished on pages 95-138 of the prospectus. Information
  responsive to Item 1006(c)(4) of Regulation M-A furnished on pages 144-148
  of the prospectus. Information responsive to Items 1006(c)(6) and (c)(7) of
  Regulation M-A furnished on page 126 of the prospectus. Information
  responsive to Item 1006(c)(10) of Regulation M-A furnished on pages 173-184
  of the prospectus.

  Item 7. Source and Amount of Funds or Other
  Consideration.

  Inapplicable.

  Item 8. Interest in Securities of the Subject
  Company.

  Inapplicable.

  Item 9. Persons/Assets, Retained, Employed,
  Compensated or Used.

  Inapplicable.

  Item 10. Financial Statements.

  Information responsive to Item 1010(a) of Regulation M-A
  furnished on pages F-1 through F-31 of the prospectus. Information
  responsive to Item 1010(b) of Regulation M-A furnished on pages 78-88
  of the prospectus.

  Item 11. Additional Information.

  Information responsive to Item 1011(a)(1) of Regulation M-A
  furnished on pages 157-162 of the prospectus.

  Item 12. Exhibits.

  Information responsive to Item 1016(a)(1) of Regulation M-A
  contained in Annex D to the prospectus. The prospectus itself is
  responsive to Item 1016(a)(4) of Regulation M-A. Information responsive
  to Item 1016(d) of Regulation M-A filed as Exhibit 10.2 to the
  Registration Statement. Items 1016(b), (g) and (h) of Regulation
  M-A are inapplicable.

  Item 13. Information Required by Schedule 13E-3.

  Inapplicable.

A-1