December 3, 2004
Beth A. Durrett
Secretary
Bestway, Inc.
7800 N. Stemmons Freeway, Suite 320
Dallas, TX 75247
Re: Bestway, Inc.
Schedule 14A filed November 5, 2004
File No. 0-08568
Schedule 13E-3 filed November 5, 2004
File No. 5-19828
Annual Report on Form 10-K
For the year ended July 31, 2004
Filed October 25, 2004
Dear Ms. Durrett:
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 explanations.
In some of our comments, we may ask you to provide us with supplemental
information so that 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 filings.
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.
SCHEDULE 14A FILED November 5, 2004
General
1. We note that the proxy statement you filed on November 19 is in
definitive format, despite the fact that the staff has not
finished its review of the proxy statement. Supplementally, confirm
that, if you already have sent the proxy statement, you will resend it
after the staff has indicated to you that it has no further comments
and that you will not take any of the actions proposed here until you
resend the proxy statement.
2. To the extent that comments on one filing impact others, please
make corresponding changes in all appropriate places.
1. Identify all the beneficial owners of O`Donnell & Masur.
Further, what consideration was given to whether O`Donnell & Masur and
Mr. O`Donnell are affiliates engaged in the transaction and should be
filing persons on a Schedule 13E-3?
2. We note that O`Donnell and Masur, L.P. is a venture capital
firm that owns more than 50% of the outstanding shares of the company
and is a significant creditor of the company. We assume that Mr.
O`Donnell, the firm`s general partner, represents the firm`s
interest on the board. Please disclose this fact, if true, and disclose
any additional board members who represent the interests of the board.
With a view toward disclosure, identify all persons with ownership
interest in O`Donnell & Masur, L.P. Revise the summary term
sheet, beneficial ownership table and the remainder of the document to
reflect the firm`s shares in Mr. O`Donnell`s beneficial ownership
or tell us why this treatment is not appropriate. We note the
disclosure in note 2 to the beneficial ownership table. Tell us
whether there are any relationships between parties that
beneficially own O`Donnell and Masur and members of the company`s
management or board. Provide further information regarding
Mr. O`Donnell`s role, if any, in the background of this transaction,
including any input regarding the form or timing of transaction. In
addition, on page 22, you provide the beneficial ownership of O`Donnell
and Masur including exercisable options; however, the disclosure in the
beneficial ownership table does not indicate that the firm owns
any options. Please clarify. Furthermore, we note from page 32 that
the company has been indebted to O`Donnell & Masur since 1997 in the
amount of $3 million plus accrued interest. Tell us the repayment
terms of this note. Provide us your analysis regarding whether
the firm, Mr. O`Donnell and the remaining affiliates are engaged in
this transaction. Also revise the summary term sheet to highlight the
conflicts of interest discussed here.
5. Please revise the cover page of the document that will be sent
to security holders to include the legend required by Rule 13e-
3(e)(1)(iii).
6. The proxy statement should begin with a Summary Term Sheet,
followed by a table of contents. The Summary Term Sheet should
set forth the principal terms of the transaction, not summarize the
entire document. It should be no longer than a page and a half.
Please revise. For further guidance, see Item 1001 of Regulation
M-A, and review Section II.F.2.b. of SEC Release No. 33-7760. In
addition, revise the structure of your proxy statement so that the
"Special Factors" section is at the beginning of the proxy
statement, immediately following the Summary Term Sheet and table of
contents. Refer to Rule 13e-3(e)(1)(ii).
7. In your letter to shareholders and elsewhere in the proxy
statement where you state your belief that the stock split is
"fair to and in the best interest of all of [your] unaffiliated
stockholders," please revise to indicate whether the filing
persons on the Schedule 13E-3 reasonably believe that the proposed
transaction is substantively and procedurally fair to the
unaffiliated holders of Bestway Inc. stock. See Item 1014(a) of
Regulation M-A.
8. Throughout the document where you discuss the interests of
continuing investors in the merger, please quantify whether
continuing investors will receive any options immediately
following consummation of the stock split, or state a reasonable
estimate of this number or the range in which it may fall.
9. At various places in the document, you state that the
transaction will result in $775,000 in cost savings. However, this
figure appears to include costs that you are not currently incurring.
Please revise the filing to clarify the historical cost savings
you will achieve as a result of the transaction.
10. Disclose the effect of the transaction on each affiliate`s
interest in the net book value and net income of Bestway Inc. in
both dollar amounts and percentages. See Instruction 3 to Item 1013
of Regulation M-A.
11. Please revise to include the information that the amended Item
9(e) of Schedule 14A requires.
Summary term sheet, page i
12. You cannot qualify by reference information in the proxy
statement; you can direct readers to more detailed information.
Please revise.
Questions and answers about the meeting and transaction,
Page iii
13. Supplementally, confirm, if true, that proxies will not be
solicited or voted via the Internet. In addition, be advised that
all written soliciting materials, including any scripts to be used
in soliciting proxies over the telephone or in person, must be filed
under the cover of Schedule 14A. Refer to Rule 14a-6(b) and (c).
Introduction, page 1
Voting securities and vote required, page 2
14. In this section, you refer to the ratification of your
independent public accountants. We do not see disclosure
elsewhere in the proxy related to this proposal. Clarify whether you
are seeking authority for the ratification of the independent public
accountants and, if so, please provide the required disclosure.
Proposal No. 1, page 3
Background of the reverse/forward stock split, page 4
15. 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. Did Stephens, Inc., Southwest
Securities or any other firm prepare any reports, presentations,
analyses, or opinions related to the transaction, other than what
you discuss here? Please revise to summarize all the presentations or
reports provided by the various investment banking firms you
reference during the course of the meetings you have described,
and file any written materials as exhibits pursuant to Item 9 of
Schedule 13E-3 and Item 1016(c) of Regulation M-A, or please advise us
why the reports are not material to the Rule 13e-3 transaction. Also,
to the extent material, please expand to discuss the items the special
committee asked outside counsel to research at the conclusion of
the October 14, 2004 meeting and how the special committee used the
information.
16. Please identify the person or persons who first raised the
issue of taking the company private and provide a more definite time
frame for this action. We note the reference to "the first part of
2002." Revise the background section to disclose the dates of all
board meetings and identify all who attended each.
17. Please clarify how the board decided to speak with Stephens,
Inc., as opposed to other financial advisors, in approximately
November 2002. Was Stephens engaged to provide financial
consulting services to the company at that time? Were they one of
the firms contacted in September 2004? If not, why not? Finally,
please clarify how and when the board narrowed possible going-private
transactions outlined by Stephens to the reverse stock split
proposal discussed in June 2004.
18. Please address why the board decided in February 2003 to stay
public at that time, and why it then determined to pursue a
transaction this year. Describe the participation of the members
of the board other than Messrs. Kraemer and Reed and Ms. Durrett in
the background of the transaction.
19. Please revise to discuss the negotiation of the principal
terms of the transaction, including the price. In this regard,
please discuss any other prices that were considered before
determining the final price.
20. Please describe the contacts that occurred between September 30
and October 14.
Special factors, page 7
Effects on stockholders with 100 or more shares of common stock,
Page 11
21. Please disclose whether and how you intend to communicate to
your stockholders about your financial condition and operating
results. Please also disclose the extent to which you will be
required to communicate with your shareholders.
Effects on the company, page 11
22. Please discuss in more detail the ramifications to Bestway
Inc. should shareholders not vote to approve the stock split.
23. We notice, from Note 5 to the financial statements in the Form
10-K for the fiscal year ended July 31, 2004, that you have net
operating loss carryforwards of approximately $4.9 million.
Please disclose, if true, that the company will be able to utilize
that net operating loss carryforward. See Instruction 2 to Item 1013
of Regulation M-A.
Fairness of the transaction, page 13
24. Please revise to clarify what consideration the board and
special committee gave to the fact that the financial advisor
provided its opinion with respect to the company and its unaffiliated
security holders, rather than solely with respect to the unaffiliated
security holders.
25. Please expand on the basis for the favorable procedural
fairness determination in the absence of the safeguards identified in
Item 1014(c) and (d) of Regulation M-A. Specifically refer to the
fact that the vote on the transaction is assured and that stockholders
are not entitled to appraisal rights. See Question and Answer 21 in
Exchange Act Release 17719 (April 13, 1981).
26. Revise to clarify that the filing persons have made a
procedural and substantive fairness determination with respect to
each group of unaffiliated security holders-those being cashed out
and those remaining security holders after the reverse and forward
splits. See Q&A No. 20 in Exchange Act Release No. 17719
(April 13, 1981).
4. Revise this discussion to address all of the factors listed in
Instruction 2 to Item 1014 of Regulation M-A. For example,
include a fairness analysis with regard to liquidation value pursuant
to Instruction 2(v) to Item 1014 of Regulation M-A. If the special
committee did not consider one or more of the factors, state that
and explain why the factor(s) were not deemed material or relevant.
See Question and Answer No. 20 of Exchange Act Release No. 34-17719.
In addition, if you did not calculate the company`s net book value,
liquidation value, and going concern value on a per share basis,
state that in the proxy statement.
28. To the extent that any filing person is relying on the
analysis of another party, including its financial advisor, to satisfy
its requirements under Item 1014, such filing person should
specifically adopt the analysis of the other party. Since the board
of directors and the special committee relied upon the fairness opinion
of Southwest Securities, they must expressly adopt its conclusion and
analyses or specifically address the factors identified in
Instruction 2 to Item 1014 of Regulation M-A. See Question and
Answer 20 in Exchange Act Release 17719 (April 13, 1981). Please
revise.
29. You indicate that the $13.00 per share price represents a
discount to the net book value, but it appears as a premium in the
table on page 15. Please advise.
Disadvantages of the reverse/forward stock split, page 16
30. Revise to discuss that the company will no longer be subject
to the provisions of the Sarbanes-Oxley Act or the liability
provisions of the Exchange Act and that officers of the company will
no longer be required to certify the accuracy of its financial
statements. See Instruction 2 to Item 1013 of Regulation M-A.
Opinion of financial advisor, page 17
5. Please file Southwest Securities` board book as an exhibit to
the Schedule 13E-3.
32. In your summary of the opinion by Southwest Securities, you
state that the information you provide is qualified in its entirety.
Because you are responsible for the accuracy of the information in
the filing, this type of qualification is inappropriate. Please
remove this qualification and the similar one that appears when
you first discuss this in the Summary Term Sheet.
33. Your statement on page ii that the board set the cash
consideration to be paid for fractional shares appears to conflict
with the disclosure here that the special committee determined the
price. Please revise to reconcile this inconsistent information.
Also revise to explain why the board and/or special committee
determined to use $13.00 as opposed to some other value within the
range provided by the advisor.
34. Please provide all of the information that Items 1015(b)(3)
through (b)(5) of Regulation M-A require.
35. Please confirm supplementally that the advisor has not
received any other compensation from Bestway Inc. or its affiliates
for two years.
Selected companies analysis, page 20
36. Please state the basis for the range of multiples the
financial advisor selected. Please revise.
37. Disclose how the selected companies compare to the Bestway in
terms of size.
38. Disclose the criteria used by the financial advisor to select
the comparable companies, comparable transactions and selected
reverse split going private transactions. Confirm, if true, that
no companies fitting these criteria were excluded from these
analyses.
Discounted cash flow analysis, page 21
39. Disclose the projections provided by management and the basis
for selecting the discount rates used in this analysis.
Additional information regarding the reverse/forward stock split,
page 22
Special interests of the affiliated persons, page 22
6. Please indicate the nature of management`s post-split
management positions and compensation agreements, and discuss any
other positions they will hold with Bestway Inc. or any of its
affiliates following the split.
41. Please state whether the affiliates believe the transaction is
procedurally fair to unaffiliated shareholders and the basis for
that belief.
Compensation of directors, page 35
42. Please also disclose under this heading the fees paid to those
directors who served on the special committee.
General, page 41
43. Rule 14a-4(c)(3) contemplates the use of discretionary
authority only for matters unknown "a reasonable time before the
solicitation." Please revise this paragraph to clarify. Also revise
your proxy card accordingly.
44. Revise the disclosure to indicate that amendments to the
Schedule 13E-3 will be filed to incorporate by reference any Exchange
Act documents filed after the date of the proxy statement and before
The date of the annual meeting. See General Instruction F to Schedule
13E-3.
Proxy card
45. For proposal 1, please revise to state the consideration per
share.
SCHEDULE 13E-3
46. Revise Item 6 to provide the disclosure regarding your plans
as required by Item 1006(c)(1-8) of Regulation M-A. If a specific
item is inapplicable or the answer is in the negative, revise the
Schedule 13E-3 to so state.
7. As you are incorporating the financial statements required by
Regulation M-A Item 1010(a) by reference, include the summary
financial information required by Regulation M-A 1010(c)(1), (2),
& (3) in your proxy. See Instruction 1 to Schedule 13E-3, Item 13.
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.
FORM 10-K FOR THE YEAR ENDED DECEMBER 27, 2004
Statements of cash flows, page 26
8. It appears that the cash paid to acquire rental units should be
classified as an operating activity instead of as an investing
activity. Paragraph 15 of SFAS 95 characterizes investing
activities as acquisitions of assets "used in the production of goods
or services". This classification specifically excludes assets that
are sold to customers in the normal course of business. The filing`s
Business section clearly indicates that the rental units
(furniture, appliances, home electronics) are acquired specifically
to transfer to customers under rental-purchase contracts. The program
is described as "an alternative to...installment sales" with 12 to 30
month terms, and you state that all of the units are ultimately
sold to customers or abandoned. Paragraph 95 of SFAS 95 addresses
comparable transactions and requires that the cash paid and
received be classified as operating activities. We note that you are
currently classifying the cash receipts as operating activities
but not the cash payments. Please amend the Form 10-K to correct the
accounting. The disclosures outlined in paragraph 37 of APB 20
may also be applicable.
49. In a letter of supplemental information, please reconcile the
"Net book value of rental units retired" amounts with the rental-
merchandise-impairment amounts disclosed in Note 1. The "Cost of
merchandise sold" amounts do not fully explain the difference.
Please provide this reconciliation for the 4/30/04 and for the
7/31/04 financial statements.
50. We note that rental-unit impairment charges have approximated
10 percent of asset-carrying values in each of the last 3 years. It
appears that such impairments are primarily caused by theft,
damage, and/or obsolescence. Given the recurring nature of these
losses, it appears that an inventory-valuation allowance should be
recorded pursuant to SFAS 5. The theft, damage, or obsolescence of
your existing rental merchandise would appear probable, and a
reasonable estimate should be determinable in light of your extended
history in this industry. Please revise the financial statements,
or explain how you are complying with SFAS 5.
Signature page
51. The principal accounting officer has to sign in that capacity.
Please revise.
Closing comments
As appropriate, please amend your filings in response to these
comments. You may wish to provide us with marked copies of the
amendments to expedite our review. Please furnish a cover letter
with your amendments that keys your responses to our comments and
provides any requested supplemental information. Detailed cover
letters greatly facilitate our review. Please understand that we
may have additional comments after reviewing your amendment and
responses to our comments.
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
for an informed decision. 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 filing;
*staff comments or changes to disclosure in response to staff
comments 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 connection with our review of your filing
or in response to our comments on your filing.
You may contact Jenn Li at (202) 942-1956 or Al Pavot at (202)
942-1764 if you have questions regarding the financial statements.
Please contact Amanda Gordon at (202) 942-1945 or Chris Edwards at
(202) 942-2842 with any other questions.
Sincerely,
Pamela Long
Assistant Director