SEC Company Response from BRC Group Holdings, Inc. (RILY, RILYG, RILYL, RILYN, RILYP, RILYT, RILYZ) (CIK 0001464790) (RILY) — Jul 10, 2009
BRC Group Holdings, Inc. (RILY, RILYG, RILYL, RILYN, RILYP, RILYT, RILYZ) (CIK 0001464790)
Date: July 10, 2009 · CIK: 0001464790 · Accession: 0001193125-09-146927
AI Filing Summary & Sentiment
File numbers found in text: 001-33629, 333-159644
Referenced dates: July 1, 2009, June 16, 2009
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CORRESP 1 filename1.htm SEC Response Letter Ellenoff Grossman & Schole, LLP 150 East 42nd Street, 11th Floor New York, NY 10017 July 9, 2009 Via EDGAR Mr. H. Christopher Owings Assistant Director Securities and Exchange Commission 100 F Street, N.W. Washington, DC 20549 Re: Alternative Asset Management Acquisition Corp. Revised Preliminary Proxy Statement on Schedule 14A Filed June 23, 2009 File No. 001-33629 Great American Group, Inc. Amendment No. 1 to Registration Statement on Form S-4 Filed June 23, 2009 File No. 333-159644 Dear Mr. Owings: On behalf of Alternative Asset Management Acquisition Corp. (“AAMAC”) and Great American Group, Inc. (the “Company”) this letter is being filed with your office in response to the Staff’s comments in your letter dated July 1, 2009 (the “Comment Letter”) with respect to the amended Preliminary Proxy Statement on Schedule 14A filed by AAMAC, and the Amendment No. 1 to Registration Statement on Form S-4 (“Amendment No. 1”) filed by the Company, in each case, with the Securities and Exchange Commission (“SEC”) on June 23, 2009. For the Staff’s convenience, we have repeated the Staff’s comments in italics below followed by the Company’s response to aid in your review. In addition, a marked version of Amendment No. 2 to the Registration Statement on Form S-4 (“Amendment No. 2”), is enclosed herewith reflecting all changes from Amendment No. 1. Amendment No. 2 and AAMAC’s amended Preliminary Proxy Statement were transmitted for filing on the date hereof. Capitalized terms used but not defined herein shall have the meaning ascribed to them in Amendment No. 2. The Amendment No. 2 also reflects changes in the terms of the Acquisition, which can be summarized as follows: 1. The Cash Consideration has decreased from $120.0 million to $60.0 million; 2. The Closing Stock Consideration has decreased from 12,272,727 shares to 12,000,000 shares; 3. The Contingent Cash Consideration has decreased from $25.0 million to $10.0 million; 4. The Contingent Stock Consideration has decreased from 10,000,000 shares to 6,000,000 shares; 5. The number of founder shares to be forfeited by the AAMAC founders has increased from 2,850,000 to 6,350,000 shares; and 6. The exchange ratio for common stock of AAMAC for common stock of the Company has increased from one-for-one to one-for-1.23. Preliminary Proxy Statement on Schedule 14A General 1. We note that in response to comment one of our letter dated June 16, 2009, you indicate that the Acquisition may still be consummated if “AAMAC, the Company and Merger Sub on the one hand, and each of Great American and the Great American Members or their representative on the other hand” waive the condition to the Acquisition that the Warrant Redemption Proposal must first be approved. Please revise your disclosure throughout your document to clearly state that the approval or waiver of the Warrant Redemption Proposal by your warrantholders is a condition to the Acquisition and to state whether the parties intend to waive this condition in the event that the Warrant Redemption Proposal is not approved. We understand that you provide a parenthetical statement in the third paragraph of page 85 indicating that the Warrant Redemption Proposal condition can be waived, but it does not appear that your filing indicates whether the parties intend to implement such a waiver in the event that the proposal is not approved. The Company has revised Amendment No. 2 throughout to indicate that the Warrant Redemption will be effected and to state that it is a non-waivable condition to the consummation of the Acquisition. 2. In this regard, please also revise your disclosure throughout your filing to discuss the following in the event that the Warrant Redemption Proposal is not approved: • whether you plan or intend to file a registration statement to cover the common shares underlying the warrants; • in the event that you do not file a registration statement to cover the common shares underlying the warrants, the effect of section 6(b) of the Warrant Agreement, filed as Exhibit 4.4 to your registration statement filed on Form S-1 on July 27, 2007, on a warrantholder’s ability to exercise the warrants; and • the potential dilutive effects to your currently outstanding and issued shares of common stock in the event that the warrants are exercised. The Company respectfully advises the Staff that, in order for the Acquisition to be consummated, the warrantholders must approve the Warrant Redemption Proposal. As indicated above, a new condition of the Warrant Redemption Proposal is to delay the redemption to a date on or before the 90th day following the consummation of the Acquisition and to delay the exercisability of the warrants from immediately following the consummation of the Acquisition to the 91st day following the Acquisition. As such, the Company has revised Amendment No. 2 (page 135) to indicate that it intends to file a registration statement relating to the shares of common stock underlying the warrants following the Acquisition. The Charter Amendment Proposal (Page 72), page 19 3. We note your response to comment five of our letter dated June 16, 2009. Please revise your disclosure throughout your filing to clearly explain that approval of the Charter Amendment Proposal enables the Acquisition to consummate in a manner pursuant to which the AAMAC shareholders will not control the governing body of the target entity, Great American Group, LLC, or the governing body of its parent, Great American Group, Inc. Your revisions should remove any indication that the Acquisition substantively meets the definition of business combination under your Certificate of Incorporation, as currently drafted, and any indication that control by your affiliate is the equivalent of control by the AAMAC shareholders. The Company has revised Amendment No. 2 (the letter to the stockholders and the warrantholders, the notice to stockholders and pages 2, 4, 7, 17 and 81) to clarify the disclosure. Comparative Share Information, page 39 4. We note your response to comment eight of our letter dated June 16, 2009. Please clarify whether the pro forma earnings per share data for December 31, 2008 is positive or negative, as we note the pro forma statement of operations, page 108, indicates a loss. Further, please explain why the December 31, 2008 pro forma diluted earnings per share do not match the amounts represented on the pro forma statement of operations, page 108. The Company acknowledges the Staff’s comment and has revised the Comparative Share Information on page 46 of Amendment No. 2 to indicate, where appropriate, the basic and diluted earnings per share data as positive or negative and changed the presentation of earnings per share for the year ended December 31, 2008 from “Basic earnings per share” and “Diluted earnings per share” to “Basic earnings (loss) per share” and “Diluted earnings (loss) per share,” respectively. The December 31, 2008 pro forma diluted earnings per share did not match the amounts set forth in the pro forma statements of operations due to rounding errors and typographical errors (i.e. the brackets were inadvertently excluded). These errors have been corrected and the amount of the pro forma basic earnings (loss) per share and the pro forma diluted earnings (loss) per share now agree to those that are reflected in the pro forma statement of operations on page 130 of Amendment No. 2. The Acquisition Proposal, page 74 Background of the Acquisition, page 75 5. We note your response to comment 14 of our letter dated June 16, 2009 and your revisions in the first paragraph on page 76 stating that you are prohibited from disclosing any information not already publicly disclosed regarding the Termination Agreement with Halycon Asset Management, LLC. Nonetheless, please disclose the material circumstances surrounding the termination, including the reasons for the termination, or disclose that you have already disclosed all the material circumstances surrounding the termination and that further discussion of the circumstances regarding the termination of the Halycon agreement and related facts is not material. The Company has revised Amendment No. 2 (page 90) to include the requested disclosure. 6. We note your response to comment 15 of our letter dated June 16, 2009. Please disclose the “inherent conflict of interest” to which you refer and discuss the reasons that you increased the fees payable by Great American Group, LLC to B. Riley & Co. by an amount equal to the finder’s fee previously payable to John Ahn under his Finder’s Agreement. The Company has revised Amendment No. 2 (page 92) to include the requested disclosure. 7. We note your response to comment 18 of our letter dated June 16, 2009. In the last sentence of the second paragraph on page 76, you state that none of the potential acquisition targets you considered were comparable to Great American Group, LLC. Please disclose your reasons for this conclusion. The Company has revised Amendment No. 2 (page 90) to include the requested disclosure. The Purchase Agreement, page 82 8. We reissue comment 24 of our letter dated June 16, 2009, in part. In the fourth paragraph on page 82, you state that you do not believe that the confidential disclosure schedules contain information that the securities laws require to be publicly disclosed other than that which you have already disclosed. Please revise this disclosure to specifically state, if accurate, that you have determined that the information contained in the confidential disclosure schedules and not otherwise disclosed in your filing is not material to an investment decision. In this regard, please identify for us the specific locations where you have disclosed all the material information contained in the confidential disclosure schedules that is necessary for an investment decision. Alternatively, please disclose the material information contained in the confidential schedules in your filing. The Company acknowledges the Staff’s comment and respectfully advises the Staff that the parties have determined that none of the information in the disclosure schedules to the Purchase Agreement is material to an investment decision. Amendment No. 2 (page 106) has been revised to include disclosure to this effect. 9. We note your response to comment 26 of our letter dated June 16, 2009 and your revised disclosure in the fourth paragraph on page 82 and we reissue our comment. Again, please revise your disclosure to remove any potential implication that your description of the Purchase Agreement or the Purchase Agreement itself does not constitute public disclosure under the federal securities laws. In this regard, please address the following: • Please revise your statement that the representations, warranties and covenants in the Purchase Agreement “should not be relied upon.” • Please revise your statement that the assertions embodied in the Purchase Agreement’s representations, warranties and covenants were made “solely” for purposes of the contract among the respective parties. • Please revise your statement that, other than regarding the information that has already been disclosed, the representations, warranties and covenants “should not be relied on” as accurate or complete characterizations of the actual state of facts as of any specified date, since they are modified by the underlying disclosure schedules. The Company has revised Amendment No. 2 (page 106) to eliminate the disclosure. Unaudited Pro Forma Condensed Combined Financial Data, page 104 10. We believe the transaction is more appropriately considered a reverse acquisition in accordance with SFAS 141R. Please revise your disclosure accordingly. The Company acknowledges the Staff’s comment and advises the Staff that, as a result of Amendment No. 2 to the Purchase Agreement entered into on July 8, 2009, the terms of the Acquisition have substantially changed. Based on the revised terms, the parties have assessed the voting interests at closing assuming no holders of AAMAC’s Public Shares exercise conversion rights and also assuming holders of the maximum number of AAMAC’s Public Shares exercise conversion rights (i.e. 30% less one share). Upon consummation of the Acquisition, holders of AAMAC common stock (including AAMAC founders) are estimated to have a voting interest of 83.23% assuming no conversion and a voting interest of 77.86% assuming maximum conversion (i.e. 30% less one share). See voting interest calculation in response to comment 14. Under both of these scenarios, the parties have concluded that the Company should account for the Acquisition in accordance with SFAS 141R using the purchase method of accounting and the Company has included these pro forma financial statements in Amendment No. 2. Because the accounting for the Acquisition is predicated on the voting interests held by each of the shareholder groups of the Company at the time of the Acquisition and other considerations of control (as defined in SFAS 141R), as discussed in the parties’ conference call with the Staff on July 1, 2009, the Company has also presented in Amendment No. 2 alternative pro forma financial statements, which assume the reverse merger and recapitalization of Great American, as more fully discussed in the response to Comment 14. The Company will complete a detailed analysis of the ownership structure and voting interests based on the facts upon consummation of the Acquisition to determine the appropriate accounting for the transaction. The Company intends to consult with the Staff regarding the appropriate accounting for the Acquisition upon consummation of the transaction and prior to filing of its first quarterly report on Form 10-Q following the consummation of the Acquisition. 11. In light of the conference call with SEC staff on June 30, 2009 and your SFAS 141R analysis in response to comment 28 of our letter dated June 16, 2009, please provide us with a robust analysis of the mostly likely voting ownership scenario at the closing of the transaction. Your response should also address the following: • Board Compensation – We note Great American board members are not up for vote by the shareholders until the year 2011. Explain how a two year lock-up is considered substantive for control purposes. • Maximum conversion — Explain your basis in determining a maximum conversion scenario, where AAMAC stockholders holding 30% of the AAMAC public shares less one share exercise their conversion rights and that such shares are converted into their pro rata share of the funds in the trust account. • Please tell us your consideration of the likelihood of warrantholders approving the Warrant Redemption and redeeming their shares for $0.50 a share versus converting their warrants into shares of the company at closing with an exercise price of $7.50 a share when the stock is currently trading at approximately $9.80. As discussed below, the parties have concluded that based on the revised terms of the Acquisition, the Company should account for the Acquisition as an acquisition of Great American in accordance with SFAS 141R using the purchase method of accounting. As discussed with the Staff on July 1, 2009, the parties have included two sets of pro forma financial statements in Amendment No. 2. One set reflects a purchase transaction where Great American is acquired by AAMAC (see most likely voting interest at closing below), which the parties believe is the most likely scenario, the other reflects a reverse merger recapitalization of Great American. The parties’ analysis of the Acquisition at the closing is expected to result in the existing AAMAC stockholders (including the AAMAC founders) having voting interests between 77.86% (based on holders of the maximum number of shares exercising