OLSHAN
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
PARK AVENUE TOWER
65 EAST 55TH STREET
NEW YORK, NEW YORK 10022
TELEPHONE: 212.451.2300
December 22, 2005 FACSIMILE: 212.451.2222
WWW.OLSHANLAW.COM
DIRECT DIAL: 212-451-2333
EMAIL: SWOLOSKY@OLSHANLAW.COM
BY FEDERAL EXPRESS
U.S. Securities and Exchange Commission
100 F. Street, N.E.
Washington, D.C. 20549-3628
Attention: Celeste M. Murphy
Re: Whitehall Jewellers, Inc.
Schedule TO-T filed by JWL Acquisition Corp. and
Newcastle Partners, L.P. on December 5, 2005
File No. 005-46037
------------------------------------------------
Ladies and Gentlemen:
On behalf of Newcastle Partners, L.P., a Texas limited partnership
("NEWCASTLE"), and JWR Acquisition Corp., a Delaware corporation ("JWR" and
together with Newcastle, the "COMPANY"), transmitted herewith for filing is
Amendment No. 2 to Schedule TO-T ("AMENDMENT NO. 2"). We acknowledge receipt of
the letter of comment dated December 16, 2005 from the Securities and Exchange
Commission (the "COMMISSION LETTER") with regard to the above referenced matter.
We have reviewed the letter with the Company and the following are its responses
to the Commission Letter. The responses are numbered to coincide with the
numbering of the comments in the Commission Letter.
SUMMARY TERM SHEET, PAGE 1
1. Please remove your qualification of the information in the summary. This
limitation appears to limit reliance by investors on the summary. We view
this limitation as inappropriate since the summary is being provided to
shareholders in a public disclosure document under the federal securities
laws and must describe the most material terms of the proposed transaction.
The summary term sheet must provide security holders with sufficient
information to understand the essential features and significance of the
proposed transaction. Please see Item 1 of Schedule TO and Item 1000 of
Regulation M-A. You may urge security holders to read the entirety of the
disclosure documents.
The Company has made the requested revision by deleting the last sentence
of the first paragraph of the Summary Term Sheet and replacing it with the
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
December 22, 2005
Page 2
following language: "This summary term sheet is not meant to be a
substitute for the information contained in the remainder of this Offer to
Purchase and the related Letter of Transmittal, and the information
contained in this summary term sheet is qualified in its entirety by the
more detailed descriptions and explanations contained in this Offer to
Purchase and the related Letter of Transmittal. We urge you to carefully
read this entire Offer to Purchase and the related Letter of Transmittal."
WHEN AND HOW WILL I BE PAID FOR MY TENDERED SHARES? PAGE 3
2. Please remove the qualification of prompt payment on "the later of the date
of expiration of the offer and the satisfaction or waiver of the conditions
to the offer set forth in "The Offer--Section 14" that are dependent upon
the receipt of government approvals." You may not condition prompt payment.
Please see Rule 14e-1(c). Please make corresponding changes throughout your
disclosure, including, but not limited to the disclosure on page 8.
The Company has made the requested revision by deleting all qualification
to prompt payment and explicitly stating that payment will be made promptly
after the termination or withdrawal of the tender offer.
IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES? PAGE 3
3. Please tell us how you can make the assertion that all shares exchanged in
a merger transaction will be for an amount in cash per share equal to the
price per share paid in the offer and that the only difference between
tendering and not tendering shares in the offer is that tendering security
holders will be paid earlier. You should reconcile this with the disclosure
on page 22 in which you reserve the right to propose consideration in a
merger consisting of securities or a combination of cash and securities.
You further state that you reserve the right to propose consideration in
such a transaction have a value more or less than the amount referred to
above.
The Company has made the requested revision by deleting the contradictory
reservations.
THE OFFER, PAGE 6
4. We note your statement that if the "Rights" detach and separate
certificates evidencing the Rights are issued, tendering stockholders will
be required to deliver Rights certificates with the common stock. Please
revise your disclosure to explain how this would happen, for example, by
board action, and state how you would give notice of the change and
instruction regarding any additional procedural requirements you plan to
adopt. Please make corresponding changes throughout your disclosure,
including, but not limited to the disclosure on page 14.
The Company has made the requested revisions by referring the reader in
Section 1 ("Terms of the Offer") to Section 8 ("Certain Information About
the Company") where the mechanics of how Rights can detach from the Common
Stock of Whitehall Jewellers, Inc. are discussed in detail. In addition,
U.S. Securities and Exchange Commission
December 22, 2005
Page 3
the Company now states in both Section 1 ("Terms of the Offer") and Section
8 ("Certain Information About the Company") that upon any detachment of
Rights from the Common Stock of Whitehall Jewellers, Inc., the Company
would issue a press release setting forth exactly what procedures
stockholders need to follow in order to tender their Rights along with
their Common Stock.
PREFERRED STOCK PURCHASE RIGHTS, PAGE 14
5. We note than unless your rights condition is satisfied, company security
holders will be required to tender one right for each share of common stock
tendered in order to affect a valid tender of shares in accordance. Your
further state that "[b]ecause of the nature of the dividend, liquidation
and voting rights of the Preferred Shares, the value of the one
one-hundredth interest in a Preferred Share purchasable upon exercise of
each Right should approximate the value of one share of Common Stock,
adjusted to give effect to any dilution event." Please describe the basis
for your valuation of the rights. Further, state whether you will be
providing any additional compensation if the rights detach and security
holders are required to deliver rights certificates with the common stock.
The Company has made the requested revision by deleting its prior arbitrary
valuation of the Rights and replacing such language with an affirmative
statement that the Company will not pay any additional consideration for
the tendering of a Right.
CONDITIONS TO THE OFFER, PAGE 23
6. We note your condition labeled (v)(a) where if you learn that any person or
"group" has acquired or proposed to acquire beneficial ownership of more
than 5% of any class or series of capital stock or the company... We note
that Prentice Capital Management, LP filed a Schedule 13D on December 14,
2005 that claims 65.5% of the company's shares. Tell us if you view that
Schedule 13D filings as a triggering event for your condition and if so,
whether you intend to waive the condition.
The Company does not view this cited Schedule 13D filing as a triggering
event because condition (v)(a) specifically states "...or we otherwise
learn that any person or "group" (as defined in Section 13(d)(3) of the
Exchange Act) has acquired or proposes to acquire beneficial ownership of
more than 5% of any class or series of capital stock of the Company
(including the Shares), through the acquisition of stock, the formation of
a group or otherwise, or is granted any option, right or warrant,
conditional or otherwise, to acquire beneficial ownership of more than 5%
of any class or series of capital stock of the Company (including the
Shares) other than acquisitions for bona fide arbitrage purposes only and
OTHER THAN AS DISCLOSED IN A SCHEDULE 13D OR 13G ON FILE WITH THE SEC ON
DECEMBER 2, 2005." As Prentice Capital Management, LP previously disclosed
its beneficial ownership of 65.25% of the common stock of Whitehall
Jewellers, Inc. in a Schedule 13D filed with the Securities and Exchange
Commission on October 13, 2005, the Company deems the December 14, 2005
Schedule 13D as falling within the italicized exception (as the Company was
aware of these holdings (or potential holdings) prior to commencing the
tender offer on December 5, 2005).
U.S. Securities and Exchange Commission
December 22, 2005
Page 4
To further clarify this position, the Company has included a parenthetical
at the end of the italicized exception specifically acknowledging that the
Schedule 13D filed by Prentice Capital Management, LP on October 13, 2005,
as subsequently amended, does not alone cause condition (v)(a) to fail to
be satisfied.
7. In our view, you may condition a tender offer on any number of conditions,
as long as they are described with reasonable specificity, capable of some
measure of objective verification, and outside of your control. You state,
in the last paragraph of this section that you may assert any of the
conditions "regardless of the circumstances (including any action or
omission by Parent or us) giving rise to any such conditions." Please
revise in accordance with our position.
The Company has made the requested revision by explicitly excluding its own
affirmative actions or omissions from those events that would allow the
Company to maintain that a "condition" has not been satisfied.
Please direct any questions or comments concerning Amendment No. 2 or
this response to the undersigned at (212) 451-2333.
Very truly yours,
/s/ Steven Wolosky
Steven Wolosky
Enclosure
Newcastle Partners L P
Filed: 22 Dec 05, 12:00am