Mail Stop 0308
April 8, 2005
VIA U.S. MAIL AND FACSIMILE
Mr. Robert M. Ling
Executive Vice President, Secretary and
General Counsel
Unified Western Grocers, Inc.
5200 Sheila Street
Commerce, CA 90040
Re: Unified Western Grocers, Inc.
Registration Statement on Form S-2
File No. 333-123220
Filed March 9, 2005
Post-Effective Amendment 2 to Registration
Statement
on Form S-2
File No. 333-108159
Filed March 9, 2005
Form 10-K for the fiscal year ended October 2, 2004
File No. 0-10815
Filed December 17, 2005
Form 10-Q for the fiscal quarter ended January 1,
2005
File No. 0-10815
Filed February 11, 2005
Dear Mr. Ling:
We have reviewed your filings and have the following
comments.
Where indicated, we think you should revise your document 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.
* * * * * * * * * * *
Form S-3
General
1. We note that you have registered one class of debt securities,
the
subordinated patrons` deposit accounts. However, it appears that
the
rights of member-patrons and non-members differ under the terms of
the debt security. For example, non-members are not required to
execute a subordination agreement. Supplementally advise us how
you
determined that these are the same class of debt securities.
Prospectus Cover Page
2. We remind you that the prospectus cover page should reflect
plain
English and contain only the information required by Item 501 of
Regulation S-K or otherwise key to an investment decision.
Accordingly, please revise to eliminate all defined terms and
reduce
detail more appropriate to the summary. In addition, in the
prospectus summary, please also revise to eliminate all defined
terms.
Prospectus Summary, page 2
3. As currently drafted, this summary is difficult to understand.
Please revise to more clearly summarize your business operations,
financial condition, and securities offered. In particular, the
revisions should avoid technical and legalistic discussions in
favor
of a disclosure that is understandable to a reader who lacks
familiarity with you. As part of your revision, please eliminate
all
defined terms and embedded lists.
4.
We note that in your prospectus you refer to "Members" and
"member-
patrons." It appears from the context of your disclosures that
Members and member-patrons refer to the same entities. If so,
please
use one term to describe these entities throughout your
prospectus.
If not, please provide additional disclosure to define the
differences between these entities.
Forward-Looking Information, page 5
5. Please move this section to another part of the prospectus.
The
forepart of the prospectus should be limited to the cover page,
summary, and the risk factor sections.
Risk Factors, page 6
6. In general, descriptions of risks that describe circumstances
that
could apply equally to other businesses that are similarly
situated
are generic risks that should not be included in your risk factor
section. Please either eliminate these generic risks, or revise
them
to state specific material risks to you in this offering. For
example, we note that the following risk factors appear to contain
generic disclosures:
* We are vulnerable to changes in general economic ..., page 7
* Litigation could lead to unexpected..., page 8
* Our business is vulnerable to disruption by terrorist..., page
10
Please note these are examples only. Review your entire risk
factor
section and revise as necessary.
7. The market in which we operate...page 7. Currently, it appears
that you are including more than one risk factor under this
subheading. It appears there are several competitive risks for
you.
For example, there is the indirect risk to you of your customers
competing against supercenter stores and losing market share and
the
direct risk to you that your larger customers may by-pass you and
obtain products directly from manufactures. If material, they
should
be broken out into separate risk factors. Also, the risk
associated
with the union strike should be better defined in your disclosure
and, if material, should be broken out into its own risk factor.
8. Many of your risk factors are too vague to provide the reader
with
an understanding of the risk involved. Two examples of vague risk
factors are on page 6, "[t]he minimum required cash deposit
account
does not bear interest" and "[y]our investment in a deposit
account
will not be secured..." Please present your risk factors in more
concrete terms. Please review all of your risk factors and revise
to
describe the specific risk that may result from each of your risk
factors with greater precision.
Method of Offering, page 14
9. With a view toward disclosure, please tell us in greater detail
how you will offer these securities to potential purchasers, such
as:
* the types of communication you will use;
* the method used to identify prospective member-patrons;
* the availability of a preliminary prospectus or other written
materials;
* the payment of the purchase price; and
* the relation to any concurrent offering of Class B shares.
10. With a view toward disclosure, please tell us what evidence of
ownership you will issue to purchasers and how you will track the
issuance of the $50,000,000 of subordinated patrons` deposit
accounts.
Use of Proceeds, page 13
11. Please revise to more clearly articulate the intended use of
proceeds, including an estimate of each possible bulleted-use
listed.
See Item 504 of Regulation S-K. Alternatively, if you have no
specific plan for use of the proceeds, then revise to so state and
discuss the principal reasons for the offering.
Reduced Share Requirement, page 20
12. We note the temporary discontinuance of the Class B
requirement.
Please expand your disclosure to explain the reasons you decided
to
institute the discontinuance. Please also consider providing an
appropriate risk factor disclosure.
Item 17. Undertakings, II-11
13. Please revise to provide the full Item 512(a)(1)(ii) of
regulation S-K undertaking.
Exhibit 5.1
14. We note that in the fifth and seventh paragraphs of the legal
opinion that counsel has extensively qualified and assumed its
opinion. The purpose and effect of these qualifications is
unclear
and may be so encompassing as to negate the opinion itself.
Please
advise or revise.
15. We note the language in the second to last paragraph, "[t]he
opinion expressed herein are given as of the date hereof," and in
the
last paragraph, "[t]his opinion letter is rendered as of the date
first written above, and we disclaim any obligation to advise you
of
facts, circumstances, events or developments which hereafter may
be
brought to our attention and which may alter, affect or modify the
opinion expressed herein." Please be advised that in order for
you
to become effective, it will be necessary for counsel to file an
opinion dated as of the effective date. Alternatively, counsel
should remove the limitations from the opinion.
Form S-2, Post-Effective Amendment 2
16. As applicable, please revise your Form S-2, post-effective
amendment 2, to address the comments above.
17. Please update your Form S-2 to disclose - for example in a
footnote to the calculation of registration fee table - the number
of
Class A, Class B and Class E shares you have sold as of the date
of
the post-effective amendment.
Form 10-K for the fiscal year ended October 2, 2004
Part II
Item 5. Market for Registrant`s Common Equity, Related Shareholder
Matters and Issuer Purchases of Equity Securities, page 16
18. In future filings please include in your disclosure the
frequency
and amount of any cash dividend declared, if any, on each class of
your common equity for the two most recent fiscal years. See Item
201(c) of Regulation S-K.
19. Supplementally confirm that you currently do not have any
equity
compensation plans. See Item 201(d) of Regulation S-K.
Item 10. Directors and Executive Officers of the Registrant, page
90
20. We note that you have incorporated by reference from your
proxy
the business experience for each director. In future filings,
please
revise the description of the business experience for each
director
to provide a brief description of their experience during the last
five years. See Item 401(e) of Regulation S-K.
Signature Page
21. Your Form 10-K is not signed as provided in the Form. Your
signatures currently are under the caption that should apply to
the
person signing for the registrant. Other signatures should be
below
the relevant language in Form 10-K indicating that such persons
are
signing on behalf of the registrant and in the capacities
indicated.
Please amend your Form 10-K to provide for signatures as provided
in
the form. See Form 10-K and General Instruction D.(2)(a).
Exhibits 31.1 and 31.2
22. Please amend your Form 10-K to correct your certifications.
Please revise to ensure the form of these certifications is in the
exact form specified in Item 601(b)(31) of Regulation S-K. In
particular, please delete the title of the officer from the first
sentence of each certification. The first sentence of the exhibit
should simply state the officer`s name without reference to his
title
or the name of the registrant.
Form 10-Q for the fiscal quarter ended January 1, 2005
Item 9A. Controls and Procedures, page 40
23. We note your statement that "Disclosure controls and
procedures,
no matter how well designed, can provide only reasonable assurance
of
achieving an entity`s disclosure objective." In your future
filings,
state clearly, if true, that your CEO and CFO concluded that your
disclosure controls and procedures are effective at that
reasonable
assurance level. In the alternative, you can remove the reference
to
the level of assurance of your disclosure controls and procedures.
Please refer to Section II.F.4 of SEC Release No. 33-8238,
available
on our website at www.sec.gov.
* * * * * * * * * * *
As appropriate, please amend your registration statements
and
Form 10-K 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
amendments 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.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statements, it should furnish a letter, at the time of such
request,
acknowledging that:
? should the Commission or the staff, acting pursuant to
delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
? the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filings; and
? the company may not assert staff comments and the declaration
of
effectiveness 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
filings or in response to our comments on your filings.
We will consider a written request for acceleration of the
effective date of the registration statements as a confirmation of
the fact that those requesting acceleration are aware of their
respective responsibilities under the Securities Act of 1933 and
the
Securities Exchange Act of 1934 as they relate to the proposed
public
offering of the securities specified in the above registration
statement. We will act on the request and, pursuant to delegated
authority, grant acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendments for further
review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
Please contact Scott Anderegg, Attorney at (202) 942-2868,
David Mittelman, Legal Branch Chief at (202) 942-1921 or me at
(202)
942-1900 with any questions.
Sincerely,
H. Christopher Owings
Assistant Director
cc: Charles S. Kaufman
Sheppard, Mullin, Richter & Hampton LLP
VIA FAX
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Mr. Robert M. Ling
Unified Western Grocers, Inc.
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