October 6, 2004
Via Facsimile (216) 241-0816 and U.S. Mail
Edward W. Moore, Esq.
Calfee, Halter & Griswold LLP
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, OH 44114-2688
RE: Hickok Incorporated
Draft Supplement to Offer to Purchase filed on
September 28, 2004
Schedule 13E-3/A filed on September 30, 2004
File No. 5-16179
Dear Mr. Moore:
We have the following comments on the above-referenced
filings.
Draft Supplement
Termination of Registration, page 3
1. We note your revisions in response to prior comment 5.
Disclose in more detail what the $19,000 of "Misc. Other" represents.
Background of the Board`s Determination to Pursue this Offer,
page 4
2. Revise to describe the substance of the discussions that took
place at the February 17, 2004 committee meeting in accordance
with prior comment 3.
3. Each presentation, discussion, or report held with or presented
by an outside party that is materially related to the Rule 13e-3
transaction, whether oral or written, is a separate report that
requires a reasonably detailed description meeting the
requirements of Item 1015 of Regulation M-A. This requirement
applies to both preliminary and final reports. Revise to summarize
the discussions that took place between representatives of the company
and Loveman-Curtiss as referenced in the third paragraph on page 5
and any presentations made by Loveman-Curtiss at the June 9, 2004
board meeting, and file any written materials, such as the drafts of
the appraisal and fairness opinion submitted to the board for the
June 9, 2004 meeting, as exhibits to the Schedule 13E-3 pursuant to
Item 9 of Schedule 13E-3 and Item 1016(c) of Regulation M-A. To the
extent that the information contained in the preliminary drafts is
substantially similar to the disclosure already provided in the
summaries of the advisor`s final appraisal and opinion, then
provide a statement to this effect and summarize any differences in
the information presented.
4. Clarify what you mean by the statement that the board selected
an offering price of $10.00 per share because it was a price "that
was expected to achieve the Company`s objectives." With a view toward
disclosure, revise to explain why a $10.00 per share offering
price better achieves the company`s objectives as opposed to any other
amount.
Timing of this Offer, page 5
5. Specify the various "methods" of reducing expenses other than
going private that the board considered and explain why those
methods were rejected in favor of the current transaction. Refer to
prior comment 7.
Alternatives to this Offer, page 6
6. Revise to disclose the reasons for Koonce`s opposition to a
going private transaction, if known, and explain how its opposition
impacted the board`s consideration of the transaction.
Fairness of this Offer, page 6
7. Given your disclosure that the board "considered" Loveman-
Curtiss` income approach to fulfill its obligation under Item 1014
of Regulation M-A to evaluate the consideration in relation to going
concern value, then the board must specifically adopt the
advisor`s analyses as its own. See prior comment 10.
8. We note your response to prior comment 13 that Loveman-Curtiss
did not make a specific statement in either the appraisal or the
fairness opinion regarding fairness to shareholders who retain their
equity investment. However, the disclosure in your original offer
document that the advisor "prepared a fairness opinion as to the
offer`s fairness to both those shareholders selling their common shares
to the Company pursuant to this offer and the remaining shareholders"
suggests otherwise. Please revise to reconcile this seemingly
inconsistent information. To the extent the advisor did not
address fairness to shareholders who retain their investment, please
provide an explicit statement to that effect.
9. We reissue prior comment 14 and request that you reproduce in
full all referenced financial forecasts, including the projections
developed by Loveman-Curtiss and the forecasts appearing in the
company`s 2004 strategic plan.
Conditions of the Offer
10. We believe that a tender offer may be conditioned on a variety
of events and circumstances, provided that they are not within the
direct or indirect control of the offeror, and are drafted with
sufficient specificity to allow for objective verification that
the conditions have been satisfied. In this regard, revise the first
paragraph on page 11 and the first full paragraph on page 12 to
exclude actions or omissions to act by the company as a reason for
the assertion of a condition.
11. The first paragraph of this section contains language
suggesting that once a condition is triggered, the company may decide
in its reasonable judgment whether it is advisable to proceed with the
offer. Please note that when a condition is triggered and an
offeror decides to proceed with the offer anyway, we believe that this
constitutes a waiver of the triggered condition(s). The company
may not rely on this language to tacitly waive a condition of the
offer by failing to expressly assert it. Please confirm your
understanding on a supplemental basis. In addition, revise the
disclosure contained in the last paragraph of this section to clarify
that the completion of the offer and payment for shares despite the
occurrence of one of the listed events constitutes a waiver of the
condition, and that at least five business days must remain in the
offer after the waiver.
12. Condition (1)(b) refers to an impairment of the benefits the
company expects to receive from this offer. Since security
holders should have a reasonable idea whether or not an offer
condition is triggered, or at least should understand how this
determination will be made, please revise to specify or generally
describe those benefits.
13. The disclosure in condition (9) states that your offer may be
amended or terminated if "any change or event occurs, is
discovered, or is threatened to the business, condition (financial
or otherwise), income, operations, or prospects" that is or "may be"
material to the company. This condition appears to include both
positive and negative effects on the business, and may be so broad
as to render the offer illusory. Revise your disclosure to clarify
those changes or events that would allow amendment or termination of
the offer.
Schedule 13E-3/A
14. We note your reference to forward-looking statements "within
the meaning of the Private Securities Litigation Reform Act of 1995"
in your press release dated September 30, 2004. The safe harbor
protections for forward-looking statements contained in the
federal securities laws do not apply to statements made in connection
with a going private transaction. See Section 21E(b)(1)(E) of the
Securities Exchange Act of 1934. Please refrain from referring to
the safe harbor provisions in any other future written
communications relating to this transaction.
Closing Information
As appropriate, please revise the Supplement to the Offer to
Purchase in response to these comments. You may wish to provide
us with marked copies of the amendment to expedite our review. You
should include a letter responding to each comment, noting the
location of the change in the revised material. If you believe a
comment raised in this letter is inappropriate or feel that no
change is required, indicate your position and the basis for that
position in your response letter. In the absence of such response,
we assume you will comply with staff comments. We may have additional
comments based upon our receipt of the revised materials and your
response to our comments.
Direct any questions to me at (202) 942-1797. You may also
contact me via facsimile at (202) 942-9638. Please send all
correspondence to us at the following ZIP code: 20549-0303.
Sincerely,
Michele M. Anderson
Special Counsel
Office of Mergers and
Acquisitions