OLSHAN
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
PARK AVENUE TOWER
65 EAST 55TH STREET
NEW YORK, NEW YORK 10022
TELEPHONE: 212.451.2300
January 26, 2006 FACSIMILE: 212.451.2222
WWW.OLSHANLAW.COM
DIRECT DIAL: 212-451-2307
EMAIL: JSPINDLER@OLSHANLAW.COM
BY FACSIMILE & FEDERAL EXPRESS
- ------------------------------
U.S. Securities and Exchange Commission
Division of Corporation Finance
100 F. Street, N.E.
Washington, D.C. 20549-3628
Attention: Michael K. Pressman
Re: FOX & HOUND RESTAURANT GROUP
SCHEDULE TO-T FILED JANUARY 6, 2005, AS AMENDED
BY NEWCASTLE PARTNERS, L.P. ET AL.
FILE NO. 5-52069
---------------------------------------------------
Ladies and Gentlemen:
On behalf of Newcastle Partners, L.P., a Texas limited partnership
("NEWCASTLE"), Steel Partners II, L.P., a Delaware limited partnership, F&H
Acquisition Corp., a Delaware corporation, NPSP Acquisition Corp., a Delaware
corporation, (together, the "OFFERORS"), transmitted herewith for filing is
Amendment No. 2 to Schedule TO-T ("AMENDMENT NO. 2"). We acknowledge receipt of
the letter of comment dated January 23, 2006 from the Securities and Exchange
Commission (the "COMMISSION LETTER") with regard to the above referenced matter.
We have reviewed the letter with the Offerors and the following are their
responses to the Commission Letter. The responses are numbered to coincide with
the numbering of the comments in the Commission Letter.
OFFER TO PURCHASE
WILL THE OFFER BE FOLLOWED BY A MERGER IF ALL THE FOX & HOUND SHARES ARE NOT
TENDERED IN THE OFFER?
1. Please clarify under what circumstances a second-step merger will not take
place if you acquire a majority of the outstanding shares.
The Offerors have made the requested clarification by revising the language
in the second sentence of such paragraph.
NEW JERSEY OFFICE
2001 ROUTE 46 / SUITE 202
PARSIPPANY, NEW JERSEY 07054
TELEPHONE: 973.335.7400
FACSIMILE: 973.335.8018
U.S. Securities and Exchange Commission
January 26, 2006
Page 2
ACCEPTANCE FOR AND PAYMENT, PAGE 7
2. Clarify under what circumstances you could, consistent with applicable
securities laws, delay acceptance or payment for shares without extending
the offer. In that regard, you should discuss, at a minimum, the delay in
payment potentially associated with the "liquor condition" and the "Section
203 condition."
The Offerors have made the requested clarification by inserting language at
the end of the first paragraph of Section 2 indicating that the Purchaser
does not presently intend to seek to assert conditions after the expiration
date of the offer.
3. We note your statement that you may assign to one or more of your
affiliates to purchase shares tendered pursuant to the Offer. Please
confirm that if you transfer or assign purchase rights pursuant to the
offer to an affiliate, you will identify such affiliate as a bidder on an
amended Schedule TO and extend the offer so that at least 10 business days
remain from the time you amend until closing.
The Offerors hereby confirm that if the Purchaser transfers or assigns
purchase rights pursuant to the offer to an affiliate, it will identify
such affiliate as a bidder on an amended TO an extend the offer so that at
least 10 business days remain from the time it amends until closing.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS, PAGE 18
4. Rather than refer to "certain" tax consequences in your heading and the
disclosure that follows, please refer to "material" tax consequences. In
addition, please delete reference to your discussion being "for general
information only." Investors are entitled to rely upon your disclosure.
The Offerors have made the requested revisions by replacing the reference
to "Certain" with "Material" in the heading to Section 5, by deleting the
reference to the tax discussion being "for general information only" and by
inserting "material" to the second sentence of Section 5.
CONDITIONS OF THE OFFER, PAGE 18
5. Refer to subpart (ix) and the last paragraph of this section. We do not
object to the imposition of conditions in a tender offer, provided that
they are not within the direct or indirect control of the issuer and are
specific and capable of objective verification when satisfied. Please
revise your condition so that action or omission by Parent or the Purchaser
cannot trigger the condition.
The Offerors have made the requested revision by deleting the reference to
"(including any action or omission by Parent or the Purchaser)".
6. We note your statement that the failure to exercise a right will not be
deemed a waiver of that right. This language suggests that once a condition
is triggered, you will make a secondary determination as to whether to
U.S. Securities and Exchange Commission
January 26, 2006
Page 3
proceed with the tender offer. Please note that when a condition is
triggered and an offeror decides to proceed with the offer anyway, we
believe that this decision constitutes a waiver of the triggered condition.
As you are aware, the waiver of a material offer condition may require an
extension of the offer, as well as filing of an amendment and dissemination
of additional offer materials. Please confirm to us the issuer will not
rely on this language to tacitly waive a condition of the offer by failing
to expressly assert it. In that regard, please clarify whether the existing
competing offer has triggered any of the applicable conditions.
The Offerors confirm that they will not rely on this language to tacitly
wave a condition of the offer by failing to expressly assert it. The
Offerors have added language to clarify that the existing competing offer
has not triggered any of the applicable conditions.
7. We note your statement that "each such right may be asserted at any time or
from time to time." Please revise to clarify that you may not assert a
right after expiration of the offer.
The Offerors have made the requested revision by adding language to clarify
that any such rights may not be asserted after the expiration date of the
offer.
8. We note your statement that any determination you make will "be final and
binding on all parties." Please revise this sentence to more precisely
define its scope. It appears that your interpretation of the terms of the
tender offer may not necessarily be final and binding on all parties. For
example, while you may assert an offer condition when it is triggered, when
parties contest asserted conditions, the judgments of courts of competent
jurisdiction are generally considered final and binding in such matters.
The Offerors have made the requested revision by adding language indicating
that any such determination is subject to the tendering stockholder's right
to bring any dispute with respect thereto before a court of competent
jurisdiction.
LIQUOR APPROVALS, PAGE 23
9. Please significantly expand this section to discuss the required Liquor
approval. You should address in the number and types of approvals that must
be sought. In addition, you should discuss the steps that must be taken to
receive these approvals and the time frame necessary to receive such
approvals.
The Offerors have eliminated the condition relating to required Liquor
approval. Thus, no additional language has been added to this section.
Please direct any questions or comments concerning Amendment No. 2 or
this response to the undersigned at (212) 451-2307.
Very truly yours,
/s/ Jeffrey Spindler
Jeffrey Spindler
Enclosure
Fox & Hound Restaurant Inactive
Filed: 27 Jan 06, 12:00am