Postal Code 20549-0405
September 7, 2004
via facsimile 213-243-2539 and U.S. mail
O. Victor Edelbrock
Chief Executive Officer and President
Edelbrock Corporation
Executive Vice President, Chief Operating Officer
2700 California Street
Torrance, California 90503
Re: Edelbrock Corporation
Schedule 13E-3 Preliminary Proxy on Schedule 14A
Filed August 10, 2004 Filed August 10, 2004
File No. 5-53153 File No. 0-24802
Schedule 13D Forms 8-K
Filed July 19, 2004 Filed June 28, May 4, April 12,
File no. 5-53153 February 3, 2004 and November 3,
2003
File No. 0-24802
Forms 10-Q for the period ended Definitive Proxy on Schedule
14A
September 25, 2003, Filed October 17, 2003
December 25, 2003, File No. 0-24802
And March 25, 2004,
File no. 0-24802
Form 10-K for the period ended
June 30, 2003
Filed September 26, 2003
File no. 0-24802
Dear Mr. Edelbrock:
We have reviewed your filings and have the following comments.
Where indicated, we think you should revise your documents in
response to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your disclosure.
After reviewing this information, we may or may not raise additional
comments.
Please understand that the purpose of our review process is to assist
you in your compliance with the applicable disclosure requirements
and to enhance the overall disclosure in your filing. We look
forward to working with you in these respects. We welcome any
questions you may have about our comments or on any other aspect of
our review. Feel free to call us at the telephone numbers listed at
the end of this letter.
Schedule13E-3
General
1. Financial information has been incorporated by reference in
response to Item 13 of Schedule 13E-3. Notwithstanding the
Historical Financial Data included at page 13, please confirm that
complete summarized financial information has been included as
required by Instruction 1 to Item 13 of Schedule 13E-3. Refer to
telephone interpretation H.7 in the July 2001 supplement to our
"Manual of Publicly Available Telephone Interpretations" that is
available on the Commission`s website at http://www.sec.gov for
guidance on complying with a nearly identical instruction in the
context of a tender offer, and provide any missing financial
information.
2. Each and every report, opinion, consultation, proposal or
presentation, whether written or oral, received by the company or
affiliates from any third party materially related to this
transaction constitutes a separate Item 1015 report that must be
summarized in detail in the disclosure document. Please file as an
exhibit to the Schedule 13E-3 any materials presented to Mr.
Edelbrock, the special committee and board in connection with the
presentations and oral reports provided by Banc of America Securities
LLC, as required by Item 1016(c) of Regulation M-A. In particular,
see our comments regarding the November 18, 2003 and February 12,
2004 oral reports by Banc of America Securities. Also, please refer
to our comment regarding the Edelbrock real estate appraisal.
3. Discuss the federal tax consequences of the Rule 13e-3 transaction
on each filing party. See Item 1013(d) of Regulation M-A.
Preliminary Proxy Materials
General
4. The filing parties must expressly direct their fairness
determinations to the "unaffiliated shareholders" rather than
generally referring to "Edelbrock stockholders". Refer to pages 33
and 34. See Item 1014 of Regulation M-A.
Letter to Shareholders
5. Indicate that shareholders wishing to exercise their appraisal
rights must not vote in favor of the merger.
6. Please delete your reference to any board decision being
"unanimous," given the absence of O. Victor Edelbrock from all
relevant meetings and votes. Specifically, your use of the term
"unanimous" may be confusing to the average investor given the
circumstances surrounding the board`s consideration of this
transaction. Please make similar revisions throughout the remainder
of your proxy materials.
7. Here, and elsewhere in the filing, indicate the total dollar value
of the offer.
Questions and answers about the merger, page 8
Summary Term Sheet, page 1
8. The summary term sheet should "briefly" describe the material
terms of the transaction. Currently, your term sheet continues for
seven (7) pages. Further revise your information to provide a clear
presentation of information that is material to investors. Refer to
Part II.F.2.a of SEC Release No. 33-7760 (October 22, 1999) for a
discussion of the items that should be discussed in the summary term
sheet.
The Participants, page 1
9. Name the affiliates to which you refer in your description of
Edelbrock Holdings. Revise to place together the bullet points for
each filing person, identify all of these persons and entities and
state each person`s and entity`s position regarding the fairness of
the transaction to unaffiliated shareholders.
Purpose of the Merger, page 3
10. The summarized information in this section relates to why the
special committee and the board deemed the merger consideration fair,
not the purpose of the merger.
Merger Financing, page 4
Federal Income Tax Consequences, page 7
11. Please delete the portion of the statement, advising shareholders
to consult their own tax advisor regarding the federal tax
consequences of the merger. It is not appropriate to summarize the
material tax consequences and then urge shareholders to consult their
own tax advisors. You may, however, urge shareholders to consult
their own tax advisors with respect to their individual
circumstances. Please revise throughout, as appropriate.
Information concerning the Special Meeting, page 16
12. Please note that the ability to adjourn a meeting to solicit
additional proxies is not a matter incidental to the conduct of the
meeting, as defined by Rule 14a-4. Use of discretionary voting
authority to postpone or adjourn the meeting to solicit additional
proxies is a substantive proposal for which you must specifically
solicit proxy authority. If you wish this authority, please provide
another voting box on the proxy card so shareholders may decide
whether to grant a proxy to vote in favor of postponement or
adjournment for the solicitation of additional votes. Provide
disclosure in the proxy statement describing the specific
circumstances under which you would use such authority.
Special Factors, page 20
Background of the Merger, page 20
13. Expand disclosure to summarize the oral reports that Banc of
America Securities LLC provided to Mr. Edelbrock and members of
Edelbrock management on November 18, 2003 and February 12, 2004. It
appears that the discussions between Edelbrock and the financial
advisor reported on the strategic goals, objectives, process and
timing, and role and responsibilities of the parties to be involved.
File any written reports such as drafts, talking papers, spread
sheets, summaries, outlines and any board books prepared in
connection with the November 18, 2003 and February 12, 2004
discussions and presentations by Banc of America Securities.
14. Please explain the significance of the Concord Energy Consultants
letter on page 24.
15. Further disclose the substance of discussions between Kerlin
Capital and Banc of America Securities regarding the "financial
metrics and other considerations that may affect the price at which
it would be fair to cause a sale by the unaffiliated shareholders of
Edelbrock common stock." Expand to summarize the valuation
methodologies that were considered by the financial advisors on June
7, 2004.
16. In connection with Kerlin Capital`s rejection of the $15.50
offer, please further explain the "encouraging advice given by
Edelbrock`s management during its usual quarter end investor
conference calls on February 3, 2004 and May 4, 2004." Also, expand
disclosure to explain the reference to the "possible unrecognized
value of Edelbrock`s real estate, perhaps not adequately reflected in
Edelbrock`s stock price."
17. We note that based on the special committee`s telephonic meeting
on June 15, 2004, the special committee determined that it would
attempt to obtain certain changes to the merger agreement, including
that the transaction be approved by a majority of the holders of
Edelbrock`s common stock, other than Mr. Edelbrock and his
affiliates. We then note that on June 21, 2004, Mr. Edelbrock
revised his offer to $16.75, provided that the merger agreement
required only the vote of approval by a majority of all outstanding
shares of Edelbrock`s common stock. Given that Mr. Edelbrock,
together with his family trusts for which he serves as trustee, owns
shares of Edelbrock common stock, constituting 51.2% of the total
number and there therefore has the power to cause the merger
agreement to be adopted and approved by Edelbrock`s stockholders,
describe and explain the special committee`s consideration to this
fact.
18. We note that the unrecognized value of Edelbrock`s real estate
was a factor that Kerlin Capital considered in deciding to reject the
$15.50 offer on June 10, 2004. We also note that Kerlin Capital
appears to have based its later recommendation, at least in part, on
the real estate appraisals that were provided throughout
negotiations. You should revise disclosure to describe the special
committee`s consideration of this information to the extent that it
impacted the special committee`s decision to recommend the $16.75
offer. Disclose the results of the real estate appraisals.
19. On page 28, you refer to the Edelbrock board receiving and
reviewing certain financial data regarding projected results of
operations and cash flow at the time of and following the merger as
prepared by Edelbrock`s management and that this data showed an
expectation of financial health for Edelbrock. To the extent the
fairness advisor referred to these projections and used them to
formulate its opinion, you must disclose the projections and explain
how the expectation of financial health for Edelbrock impacted the
fairness advisor`s decision.
Purpose of the Merger, page 28
20. Note that you have not addressed the other filing persons and
entities` reasons for soliciting the transaction at this time.
Although you state on page 47 that Mr. Edelbrock and his affiliates
determined to undertake the transaction at this time because Mr.
Edelbrock and his affiliates believed that a long-term strategy for
increasing the value of Edelbrock would be more readily achievable if
Edelbrock were a privately held company, you should further expand
disclosure to explain why Mr. Edelbrock chose the present time as
opposed to other times in Edelbrock`s operating history. See Item
7(c) of Schedule 13E-3. Please note that conclusory statements such
as "to allow its stockholders to realize the value of their
investment in Edelbrock in cash at a price that represents a premium
to the market price of Edelbrock common stock before the public
announcement of the merger" does not comply with the disclosure
requirements of Item 1013(a) of Regulation M-A.
21. Quantify the amount of savings Edelbrock Corporation is expected
to receive if the going private transaction is successful.
Recommendations of the Special Committee and Board of Directors;
Reasons for Recommending the Approval, page 30
22. Qualify the board`s procedural fairness determination by
indicating the transaction does not require a vote of unaffiliated
shareholders and will proceed even if a majority of the unaffiliated
shareholders oppose the transaction. See Question & Answer 21 in
Exchange Act Release No. 17719.
23. The factors set forth in Instruction (2) to Item 1014 of
Regulation M-A are generally relevant to the fairness of the
consideration offered in a going private transaction. If any of the
listed factors were not considered, or were considered but not deemed
relevant to the context of this transaction, this in itself may be
material to the shareholder`s understanding of the transaction. See
Question and Answer 20 and 21 in SEC Release no. 17719 (April 13,
1981). Please revise to address all of the listed factors, or to
explain why they are not relevant in the context of this transaction.
24. Disclose whether or not the full board considered any firm offers
received in the past two years in reaching its fairness
determination. See Instruction 2(viii) to Item 1014 of Regulation M-
A and General Instruction E to Schedule 13E-3.
Position of O. Victor Edelbrock...as to the Fairness of the Merger...
25. We note that the filing persons identified in this section have
not adopted the analyses of the financial advisor. Revise to
specifically address how these parties believed historical stock
prices, going concern value, and net book value influenced their
substantive fairness determination. See Question and Answer 20 and
21 in SEC Release no. 17719 (April 13, 1981).
Opinion of Financial Advisor to the Special Committee, page 40
26. On page 41, we note your disclosure that the summary of Kerlin
Capital`s analyses described in this section is "not a complete
description of the analyses underlying Kerlin Capital`s opinion."
Please clarify that this section summarizes all of the material
analyses performed by Kerlin Capital.
27. Describe the limitations set by the special committee regarding
the financial advisor`s attempt to solicit and qualify third party
interest in a negotiated acquisition of Edelbrock.
Comparable Companies Analysis, page 43
28. Expand the disclosure to explain Kerlin Capital`s bases for
viewing the inner quartiles range as a more useful data point than
the absolute high and low data points.
29. Explain Kerlin Capital`s fairness determination given that the
inner quartiles ranges for all three periods indicated that the
premium in the Edelbrock transaction was slightly below the one-day
median premium; five-day median premium; and thirty-day median
premium paid in Kerlin Capital`s review of going private
transactions.
Discounted Cash Flow Analysis, page 44
30. Explain Kerlin`s fairness determination based on the discounted
cash flow analysis yielding an implied equity valuation range for
Edelbrock of approximately $12.58 to $22.33.
Hypothetical Strategic Acquisition Analyses, page 46
31. Disclose which companies comprise the 65 sample transactions.
Also, please define the "general industrials category for the period
from January 15, 2001 through April 2004."
32. Disclose the hypothetical range of purchase prices that would
most likely be paid for Edelbrock in a strategic acquisition. Also,
please disclose the "group of possible strategic buyers" that Kerlin
Capital believed might have an interest in acquiring Edelbrock.
33. Disclose whether Kerlin Capital provided any conclusions for its
valuation techniques to indicate how they support fairness. For
example, explain how Mr. Edelbrock`s refusal to sell his shares
impacted the financial advisor`s fairness determination since a
strategic sale of the company was not possible. In this regard,
explain what consideration, if any, the fairness advisor gave to the
finding that the likely per share equity value of Edelbrock`s common
stock if sold to a strategic buyer would likely be in the range of
$16.00 to $20.00 per share.
Alternatives to the Merger, page 47
34. Affirmatively state, if true, that neither Edelbrock nor any
filing person considered any alternatives other than the first step
tender offer followed by a second-step merger. See General
Instruction E to Schedule 13E-3.
Certain Risks in the Event of Bankruptcy, page 52
35. Since you have identified the "fraudulent conveyance" risk to
stockholders, provide a prominent discussion earlier in the forepart
of the proxy statement.
Accounting Comments
Preliminary Proxy Materials (As incorporated by reference into the
Schedule 13E-3 filing)
36. Reflect the following comments in an amendment to the proxy
statement.
Forward Looking Information; Certain Projections, pages 36 through 39
37. Revise to include a brief discussion of the principal differences
in assumptions that were used in preparing the March 10, 2004
projections that assume the Company becomes a privately-held company,
and the June 14, 2004 projections that assume the Company remains a
public company.
Merger Financing, pages 52 through 54
38. We note your source of financing at a total cost of approximately
$61 million will come from $53 million of debt financing of Edelbrock
Holdings, and $6.1 million from Edelbrock`s available cash. As
disclosed in Edelbrock`s Quarterly Report on Form 10-Q for the nine
months ended March 25, 2004, we note an available cash balance of
$5.9 million. Disclose that you plan to use all of Edelbrock`s cash
on hand, if true, and explain the expected source of any additional
funds required to complete the merger transaction.
Age of Financial Statements and Where Stockholders Can Find More
Information, page 75
39. Please continue to consider the financial statement updating
requirements as set forth in Rule 3-12 of Regulation S-X.
Accountants` Report
40. File an accountants` report, with the definitive proxy statement,
complying with Rule 12b-11 of the Exchange Act Rules. A copy of the
manually signed accountants` report should be retained for five
years. See Instruction 5 to Item 14 of Schedule 14A, and Rule 302 of
Regulation S-T.
Closing Comments
Please file an amended Schedule 13E-3 and Schedule 14A in
response to these comments. Mark the amendments so that the
revisions, including those made not in response to staff comment, are
clear and distinguishable from the text of earlier submissions. See
Rule 310 of Regulation S-T. In addition, please furnish a cover
letter that keys your responses to our comments and provide any
supplemental information we requested. This comment letter should be
filed on EDGAR as correspondence. If you believe complying with a
comment is not appropriate, tell us why in your letter. You should
be aware that we might have additional comments based on your
responses.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to be
certain that they have provided all information investors require.
Since the company and its management are in possession of all facts
relating to a company`s disclosure, they are responsible for the
accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please provide,
in writing, a statement from the company acknowledging that
* the company is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the company may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of Enforcement has
access to all information you provide to the staff of the Division of
Corporation Finance in our review of your filing or in response to
our comments on your filing.
Please direct any questions regarding the accounting comments to
Beverly Singleton, Staff Accountant, at (202) 942-1912, or in her
absence, to Linda Cvrkel, Review Accountant, at (202) 942-1936. For
questions on other comments, please contact Johanna Vega Losert,
Attorney-Advisor, at (202) 942-2931. You may also reach me at (202)
942-2920.
Sincerely,
Nicholas Panos
Special Counsel
Office of Mergers and Acquisitions
Cc: via facsimile
Sean McAvoy
Esme C. Smith
Jones Day
2882 Sand Hill Road, Suite 240
Menlo Park, California 94025
L. Cvrkel
B. Singleton
J. Losert
Edelbrock Corporation
September 7, 2004
Page 10
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0405
DIVISION OF
CORPORATION FINANCE