January 14, 2005
Via Facsimile and U.S. Mail
David A. Kraemer
President and Chief Executive Officer
Bestway, Inc.
7800 Stemmons Freeway, Suite 320
Dallas, Texas 75247
Re: Bestway, Inc.
Revised Schedule 14A filed December 30, 2004
File No. 0-08568
Revised Schedule 13E-3 filed December 30, 2004
File No. 5-19828
Annual Report on Form 10-K
For the year ended July 31, 2004
Filed October 25, 2004
Dear Mr. Kraemer:
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 13E-3
1. As the proxy statement is not in definitive form, the revised
proxy should not be filed as a definitive revised proxy. Be
certain
to use the appropriate EDGAR header tags when filing your next
amended Schedule 14A and Schedule 13E-3.
2. We note your responses to comments 3 and 4. Revise the
document
to indicate when the company first learned that O`Donnell and
Masur
would support a going private transaction. We note the disclosure
on
pages x-xi that the company could obtain approval through majority
written consent.
3. We note your response to comment 4 with respect to Mr.
O`Donnell`s
beneficial ownership of the shares. It appears that Mr. O`Donnell
has beneficial ownership over the shares held by O`Donnell and
Masur
according to Rule 13d-3. As such, please revise the beneficial
ownership table, and the remainder of the document where
applicable,
to attribute the shares held by O`Donnell and Masur to Mr.
O`Donnell,
or provide us your detailed analysis regarding why he does not
beneficially own the shares. Although one may disclaim beneficial
ownership, this does not affect disclosure of beneficial ownership
in
the table. Revise Note 2 to the table accordingly. Furthermore,
it
appears that Mr. O`Donnell shares beneficial ownership over the
shares. Provide us more detailed information regarding his voting
and/or investment power over the shares and whether anyone else,
such
as the individual(s) holding the other 50% interest in the general
partnership are beneficial owners of the shares and should be
included in the beneficial ownership table.
4. We note your response to comment 4 with respect to other board
members who have partnership interests in O`Donnell and Masur. It
appears that these relationships should be disclosed as required
by
Item 5 of Schedule 13E-3. Please revise or advise.
Special Factors
Effects on Stockholders With 100 or More Shares of Common Stock,
page
vii
5. Please specify the financial information about the company that
the DGCL requires you to distribute to shareholders.
Federal Income Tax Consequences, page viii
6. Please quantify the net operating loss carryforwards that may
be
utilized by the company. With a view toward disclosure, tell us
whether the availability of the carryforwards impacted the
decision
to engage in this form of transaction or to engage in this
transaction at this time. See Item 1013(b) and (c) of Regulation
M-
A.
Fairness of the Transaction, page ix
7. We reissue comment 24. Our comment sought clarification
regarding
what consideration the board and special committee gave to the
fact
that the financial advisor`s opinion is addressed to the company
as
well as unaffiliated security holders. It appears that the
inclusion
of the company in this determination could affect the outcome.
8. We reissue comment 27. It is unclear whether the board and
special committee found that the transaction was procedurally and
substantively fair to each group of unaffiliated security holders
independently, or whether they have made this determination with
respect to all of the unaffiliated security holders as a whole.
Please revise to clarify.
9. Refer to the first and second-to-last sentences in the
carryover
paragraph on pages x-xi. Please clarify how seeking a shareholder
vote supports the procedural fairness determination where the
proposal is not structured to require approval of a majority of
the
unaffiliated security holders.
Advantages of the Reverse/Forward Stock Split, page xii
10. We note your response to our prior comment number 27 that the
liquidation value was not considered helpful in part because the
company will continue as a private company. The fact that the
company does not intend to liquidate does not necessarily mean
that
an analysis using the liquidation value is not appropriate. In
this
regard, please refer to Question and Answer No. 20 of Exchange Act
Release No. 17719 (April 13, 1981). Please expand your
explanation
as to why liquidation value is not an appropriate basis for
comparison in order to determine if that consideration offered is
fair. In addition, it is unclear whether you have addressed the
remaining factors in Instruction 2 to Item 1014. For example, we
are
unable to locate your discussion of going concern value and net
book
value. Please revise or advise. Finally, the disclosure of the
factors considered by the board and special committee is confusing
in
that the factors considered in determining fairness are spread out
through this section and the above section. For example, it is
unclear why you have included disclosure of the net book value,
current and historical market prices, liquidation value, lack of
firm
offers, etc. in the section addressing the advantages of the
splits.
Also, it is often unclear which factors were considered by the
board
in reaching its fairness determinations and which factors were
considered by the special committee. Revise the document to
clarify
the factors considered by the board and special committee in
reaching
their respective fairness determinations, and clarify what
consideration each gave to each factor. For example, we are
unable
to locate the discussion of what consideration the board or
special
committee gave to book value. See page xii, where you indicate
that
net book value is "discussed in greater detail below." Finally,
we
note that the factors considered in making the procedural fairness
determinations are similarly difficult to locate because they
appear
before, during and after the discussion of the advantages and
disadvantages of the transactions.
Discounted Cash Flow Analysis, page xix
11. Please disclose the projections provided by management that
were
used in this analysis.
Background of the Reverse/Forward Stock Split, page 9
12. We reissue comment 16. Revise to identify the individual who
first raised the possibility of going private.
13. We note your response to comment 17. Clarify why Stephens,
Inc.
was not contacted in September 2004.
14. We reissue comment 19. Revise to clarify how the special
committed selected the price to be paid in the transaction.
15. Identify the members of the special committee on page 11.
Disclose any conflicts of interest of the special committee. For
example, disclose any ownership percentage in O`Donnell and Masur
held by any member of the special committee. Clarify how the
special
committee members were chosen.
Accounting Comments
Comment 48
16. We note your response to prior comment 48. Supplementally
advise
us of where purchases of rental merchandise, considered to be
leased
assets or not, as an investing activity is prescribed in GAAP. It
is
not clear to us how your ownership argument supports your
explanation, nor how it adequately addresses our concern.
Paragraph
17c of FAS 95 suggests that classification as an investing
activity
is appropriate for property, plant and equipment, and other
productive assets; however, rental merchandise is neither.
Further,
paragraph 21 of FAS 95 indicates that cash flows from operating
activities are "generally the cash effects of transactions...that
enter into the determination of net income." Since you derive
substantially all your net income from such rental agreements and
fees, it would appear that classification of cash payments as
operating cash is the only appropriate treatment. Also refer to
paragraph 95 of FAS 95. Please advise or amend your Form 10-K to
correct the accounting.
Comment 49
17. We note your response to prior comment 49. It appears that
$455
thousand is still unaccounted for at April 30, 2004, as follows.
Please advise.
At April 30, 2004
Impairment 1,041,849 From Note 4 of 10-Q
Cost of merchandise sold 534,258 From Income Statement
Subtotal 1,576,107
NBV retired 2,299,273 From Statement of Cash Flows
Difference 723,166
Recoveries 268,476 Per your 12/31/04 response
Unexplained difference 454,690
Comment 50
18. We note your response to prior comment 50. It does not appear
that you are properly applying FAS 144 since it appears that,
historically, you have not been able to recover the net carrying
value of your assets. In order for us to reasonably determine
your
ability to recover your assets, supplementally provide how much of
the $1,385,931 written off in 2004 impacts the recoverability of
assets on your July 31, 2003 balance sheet, and how much of the
$1,410,312 written off in 2003 impacts the recoverability of
assets
on your July, 31, 2002 balance sheet.
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 Chris Edwards at (202) 942-2842 with any other
questions.
Sincerely,
Pamela Long
Assistant Director
Cc: J. Kenneth Menges, Jr., Esq.
Aaron A. Scow, Esq.
Akin Gump Strauss Hauer & Feld LLP
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201-4675
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David A. Kraemer
Bestway, Inc.
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE