Mail Stop 0309 May 23,
2005
Keith Butler
Chief Financial Officer
Synbiotics Corporation
11011 Via Frontera
San Diego, California 92127
Re: Synbiotics Corporation
Proxy Statement on Schedule 14A, Schedule 13E-3
and all included and incorporated documents
File No. 0-11303, Filed April 20, 2005
Dear Mr. Butler:
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.
Schedule 13E-3
1. Rule 14a-4(b)(1) requires you to separately break out on the
proxy
card each matter to be voted on. Separate matters may be cross-
conditioned upon one another, such that one will not pass unless
the
other does. See the September 2004 interim supplement to the
Division of Corporation Finance`s Manual of Publicly Available
Telephone Interpretations, available on our Web site at
www.sec.gov.
In this regard, what consideration was given to the need to
unbundle
the proposal to include two separate proposals, one representing
the
reverse stock split and one representing the forward stock split?
Your proxy statement suggests that the reverse and forward stock
splits may be separate matters that should be presented separately
on
the proxy card for shareholder vote. Our belief is based on the
fact
that you have attached two different amendments to the company`s
articles of incorporation, which appears to indicate that state
law
and the company`s governing instruments dictate that both matters
are
subject to a shareholder vote. Please revise to allow
shareholders
to separately vote on the reverse and forward stock splits, or
explain why, based on our telephone interpretation and the
reasoning
articulated in this comment, separation is not required.
2. We believe the following individuals and entities should be
included as filing persons on the Schedule 13E-3 because they are
engaged in this going private transaction:
- - Redwood Holdings, LLC (source of funds to finance the Split
Transaction and a shareholder going forward);
- - Redwood West Coast, LLC (a controlling shareholder of the
Company
and an affiliate of Redwood Holdings, LLC);
- - Thomas Donelan (a director of the Company and an affiliate of
Redwood Holdings and Redwood West Coast);
- - Christopher P. Hendy (a director of the Company and an affiliate
of
Redwood Holdings and Redwood West Coast);
- - Jerry L. Ruyan (a control person of Redwood Holdings, LLC); and
- - Remington Capital, LLC (member of a group for purposes of
Schedule
13D with all of the above persons and entities and a 100%
indirectly
owned subsidiary of Redwood Holdings, LLC).
Please add them as filers on the Schedule 13E-3, and revise the
proxy
statement to include all of the disclosure required by that
Schedule
as to each filer individually. In addition, to the extent they
apply,
please address the comments below as to each new filing person.
3. Note that each filing person must satisfy the disclosure,
dissemination and timing requirements of Rule 13e-3. In light of
the
fact that you will likely add significant new and material
information as to the new filing persons, advise how you intend to
disseminate the revised proxy statement.
4. To the extent that other members of the board of directors and
management of the company will own equity in the Company both
before
and after the Split Transaction, analyze whether such persons also
need to be included as filing persons. If you decide they don`t
please explain why supplementally.
5. It appears that you do not believe that pro forma financial
information pursuant to Item 13 of Schedule 13E-3 is applicable.
Please advise of your basis for not disclosing this financial
information as set forth in Item 1010 of Regulation M-A.
Schedule 14A
General
6. On a supplemental basis, please confirm that the proxy
statement
will be provided to your shareholders at least 20 business days
prior
to the consent submission deadline.
7. In a prominent place in the soliciting materials, create a
subsection entitled "Interests of the Members of the Board of
Directors and Executive Officers in the Split Transactions," and
describe in reasonable detail the benefits each of these persons
will
receive if the split transactions are completed. This discussion
should include, but not be limited to, a discussion of Messrs.
Donelan`s and Hendley`s ownership of Redwood and control of the
board
of directors, as well as any change of control provisions in any
employment, option or similar agreements with any of the executive
officers or board members, and any accelerated payments to any of
these persons that will be triggered as a result of the split
transactions. You should also highlight in this section that only
these persons and not those unaffiliated shareholders who will be
cashed out in the split transactions will share in any future
profits
or prospects of the company. See Item 5 of Schedule 14A and
Schedule
13E-3, Item 11.
8. Disclose Redwood`s and the other filing persons` prior stock
purchases in the format required by Item 1002(f) of Regulation M-
A.
In this regard, provide the range of prices paid and the average
purchase price for each quarter during the past two years. Also,
provide a presentation of their transactions in your securities
during the past 60 days in accordance with Item 1008(b) of
Regulation
M-A, including the date and price per share of each separate
transaction.
9. Please include the information required by Item 1(c) of
Schedule
14A and Exchange Act Rule 14a-5(e).
10. Please provide a pro forma beneficial ownership table to
disclose
the beneficial owners of 5% or more of each class of Synbiotics
voting securities after the Split Transaction and financing
transaction with Redwood.
Introduction, p. 1
11. In the fourth paragraph, you state that in connection with its
evaluation, your board of directors did not retain any advisors to
render an opinion as to the fairness to your shareholders of the
consideration to be received by them in connection with the split
transactions. You should expand this paragraph to state that two
of
your three directors are affiliates of Redwood, which is funding
and
will acquire greater control of the company in the split
transactions, and that your other director, Mr. Hays, is and will
after the transactions be President of the Company. You should
state
that these three gentlemen each have personal financial interests
in
the split transactions that are vastly different from unaffiliated
shareholders and describe the differences. You should state that
no
independent board members or independent third parties have
performed
any analysis regarding or opined that the $.13 per share
consideration to be paid is fair to the unaffiliated shareholders
who
will receive it.
12. We note that you disclose that the document was mailed on May
5,
2005 and consents need to be submitted by May 30th. Please advise
whether this is draft language or whether you mailed this proxy on
May 5, 2005.
Summary Term Sheet, page 2
13. See our comment above regarding the need to prominently
disclose
the interests and potential conflicts of interests of affiliates
in
this transaction. They should be briefly summarized here, with
further discussion in the body of the proxy statement.
14. In this section, you should address each filing persons` view
of
the fairness (both procedural and substantive) of the transaction.
15. The last bullet point on page 3 in this section provides
little
meaningful disclosure for shareholders. Revise to briefly discuss
the
risks associated with the split transactions.
16. Describe the accounting treatment of the Split Transaction.
See
Item 1004(a)(1)(xi) of Regulation M-A.
Special factors, p. 4
Background, page 4
17. Provide a reasonably detailed discussion of all material
events
that led to and culminated with the board`s decision to undertake
the
split transactions. All material contacts, negotiations and
agreements must be described. See Item 1005 of Regulation M-A.
Identify the person(s) who initiated and participated in the
process,
and describe the context and nature of each material action. This
revised section should specifically discuss the role of affiliates
(including those we asked you to include as filers in our comments
above) in initiating and structuring the Split Transaction.
18. Also, clearly identify who determined the consideration to be
offered to fractional security holders and disclose the criteria
used
to determine the ultimate consideration, including an explanation
of
how the board derived the premium.
19. Please disclose whether any affiliates of the company have
economic or other interests that differ from the interests of
nonaffiliated stockholders. If there are any differences, explain
what they are and the impact of those differences in the decision
to
undertake the Split Transaction and any consequences or
disadvantages
for the unaffiliated stockholders.
20. Please disclose all of the economic or other interests
affiliates
of the company have that differ from the interests of
nonaffiliated
stockholders. Explain what these interests are and the impact of
those differences on the decision to undertake the split
transaction
and any consequences or disadvantages for the unaffiliated
stockholders.
Factors Considered by the Board, p.5
21. All of the factors listed in Instruction 2 to Item 1014 of
Regulation M-A are generally relevant to the fairness
determination
in a Rule 13e-3 transaction and should be discussed by each filing
person. To the extent that any one or more of such factors was
not
considered, or was given little weight, this fact is an important
part of the Board`s decision-making process that should be
explained
to shareholders. Revise the discussion of the board`s fairness
determination to address all of the factors listed in Instruction
2
to Item 1014 of Regulation M-A. If a filing person did not
consider
one or more of the factors, state that and explain why the
factor(s)
were not deemed material or relevant. In addition, if any of the
factors yielded a higher per share value than the cash out price,
this should be prominently disclosed. See Question and Answer No.
20
in Exchange Act Release No. 34-17719.
22. Please include discussions of procedural fairness that
separately
address Item 1014(c) and (d) of Regulation M-A. For instance,
clarify how the board reached the conclusion that the transaction
is
procedurally fair in the absence of the procedural safeguard set
forth in Item 1014(c) of Regulation M-A. Similarly revise the
other
filing persons` discussions of procedural fairness to explicitly
address these factors.
23. You state in your Form 10-K that you are a "leading provider
of
rapid diagnostic and laboratory diagnostic products for the animal
health care industry," and that many of your products hold strong
positions in their specific markets. Please discuss the
consideration your board gave these factors here and why in light
of
these factors it determined the split transactions were fair to
unaffiliated shareholders. Also, please supplementally provide
support for your belief that Synbiotics is a "leading provider."
24. You have indicated that you considered a cash tender offer by
management and the purchase of shares on the open market by
management. Please disclose that you did not consider any
transactions that did not include management, such as placing the
Company up for sale to non-affiliates, and explain why that
alternative was not considered.
25. Please clarify your statement (at the bottom of page 6) that
"No
single account can receive more than $259.87 in payment for its
Pre-
Split Shares of common stock." Is this simply a function of who
owns
the shares and in what amount?
26. Please explain and qualify your contention that stockholders
holding less than 2000 shares can purchase shares to reach the
2000
threshold. Specifically, it appears that many of the stockholders
currently holding 2000 or more shares are at an advantage vis a
vis
those with fewer shares who would like to reach the 2000
threshold.
In your hypothetical scenario in which Mr. Wu owns 20,500 shares,
for
example, there will be no reason for Mr. Wu to sell his 500 shares
to
a smaller shareholder for less than $.13 because he will be able
to
receive that price from the Company. Please explain how holders
with
less than 2000 shares will be able to reach the threshold under
these
circumstances.
27. On a related noted, if the answer to the above-referenced
question is that the smaller shareholders might have to pay a
premium
for the shares to reach the 2000 threshold, you should disclose
this
fact explicitly. Specifically, you should disclose the
possibility
that the $.13 price you are offering could have the affect of
driving
share prices higher, such that those investors who seek to
purchase
additional securities to reach the 2000 threshold may be forced to
pay a significant premium to reach that threshold. Please revise
your disclose in all places where you refer to investors` ability
to
purchase to reflect this possibility.
28. Finally, with respect to the ability of smaller shareholders
to
purchase stock to reach the 2000 share threshold, how can the
company
guarantee that the consummation of the transactions will result in
fewer than 300 holders so that the company may go private? If you
are
assuming that few small shareholders will seek to purchase
additional
shares, then you should include this qualification when you
indicate
that you will have fewer than 300 holders.
29. Where a transaction will affect different subsets of
unaffiliated
shareholders differently, Rule 13e-3 requires a separate analysis
as
to fairness for each. Expand to address why each filing person
believes this transaction is fair to those unaffiliated
shareholders
who will be cashed out as well as those who will remain as
shareholders of an illiquid security.
30. In addition, consider highlighting the fairness determination
itself, through the use of a separate section.
31. We note the disclosure on page 7 that the Board reserves the
right not to implement the Split Transaction even if it is
approved
by shareholders. Please briefly discuss the circumstances under
which
it might decide not to do so.
Effect of the Split Transaction, page 9
32. Describe the federal income tax consequences of the Split
Transaction on the Company. See Item 1013(d) of Regulation M-A.
33. In our comments above, we ask you to include certain other
filing
persons besides the Company. Please note that when you do so, you
should provide the disclosure required by Instruction 3 to Item
1013
as to the effects of this transaction on those individuals and/or
entities.
Risk Factors, p. 12
General
34. You should create a separate risk factor which highlights the
following.
* none of the board members who are recommending the split
transactions are independent;
* no independent committee of the board considered whether or not
the
split transactions are fair to unaffiliated shareholders who will
receive cash for their minority shares; and
* no independent third party or financial advisor has performed
any
analysis regarding or opined that the $.13 per share consideration
to
be paid is fair
35. Please consider including a risk factor relating to your
going-
concern auditor`s opinion. Please make sure that any figures
included in your discussion are up to date.
"We do not intend to pay dividends...," p. 12
36. Please disclose how failure to pay dividends represents a risk
to
stockholders, particularly since you have not paid them in the
past.
"Sources of funds...," p.13
37. Please explain how the transactions could constitute a stock
redemption violating California Corporations Code Section 500, and
the ramifications of this to unaffiliated shareholders.
Form 10-K for the year ended December 31, 2004
General
38. Please amend your Form 10-K in response to the following
comments. In addition, please note that our foregoing comments
should also be considered when amending the 10-K.
Item 1. Business
39. Please expand your discussion under each of the headings so
that
investors can better understand your company. At a minimum, you
should disclose the following:
General
Please provide more information about the company and its business
model. If the company is a retailer of products, state this fact
explicitly. Alternatively, if the company is engaged in research
and
development, state that this is the case. Also, disclose the
company`s primary sources of revenue and primary expenses.
Describe
any how you conduct the business and any material changes to your
business. Also disclose the most recent material events the
company
has faced, such as the cash crisis mentioned subsequently in the
10-
K.
Market and product overview
Please describe your products and any product candidates in much
greater detail. You should disclose the proper names of each
product
and product candidate or product class, you`re your products are
used
for, sales levels and any other information that will help
investors
understand your products. Also, discuss the principal products
produced and services rendered, as well as the principal markets
for,
and methods of distribution of, your products and services.
Manufacturing
Name the products that are manufactured in-house. Also, disclose
why
you have chosen to have the Witness and SCA 2000 products produced
by
a third-party. Please disclose the reasons that Agen terminated
the
agreement, the length of time manufacture had stopped, the impact
of
any stoppage on the company and any other material information
relating to the interruption.
Patent and Trade Secrets
Please disclose the nature of your disputes with Agen and Heska,
including the types of litigation, whether you were defendant or
plaintiff and the terms of your settlements with Agen and Heska.
We may have further comments on your revisions.
Government Regulation, p. 4
40. Please state whether or not you are currently in compliance
with
each of the laws, rules and regulations you mention in this
section.
Also, describe any incidence of noncompliance over the past three
years.
Research and Development, p. 5
41. Please expand this disclosure to describe upon what product
candidates or matters you are spending your research and
development
monies. Also, to the extent you have licensing or development
agreements with third parties which are material and concern major
research and development initiatives, please describe them here.
Item 7 MD&A, p.6
Overiew, p.6
42. Please summarize your plans for dealing with the unsecured
contractual obligations due in June of 2005 and 2006.
43. As the MD&A overview is intended to highlight the main points
set
forth in the MD&A, with an emphasis on key analytical trends and
points, you should introduce the overview with a discussion of the
going-concern opinion and also review the MD&A to make sure that
it
summarizes the highlights of the section as a whole.
Form 10-K
Management`s Discussion and Analysis of Financial Condition and
Results of Operations
General, pg. 4
44. We have reviewed your Management`s Discussion and Analysis of
Financial Condition and believe the presentation can be improved.
Please refer to the Commission Guidance Regarding Management`s
Discussion and Analysis of Financial Condition and Results of
Operations, Financial Reporting Release #72. Specifically,
separately identify your critical accounting estimates and discuss
the impact of the estimates and assumptions on financial condition
or
operating performance, if material. Such disclosure should
supplement, not duplicate, the description of accounting policies
that are already disclosed in the notes to the financial
statements.
Results of Operations
Year Ended December 31, 2004 Compared to Year Ended December 31,
2003, pg. 6
45. We acknowledge your revenue recognition policy within your
discussion of the results of operations and within your Summary of
Significant Accounting Policies within your Notes to the
Consolidated
Financial Statements. We believe that your disclosure related to
estimates of items that reduce gross revenue such as promotional
discounts and rebates could be improved as follows:
a) Disclose the nature and amount of each accrual at the balance
sheet date and the effect that could result from using other
reasonably likely assumptions than what you used to arrive at each
accrual such as a range of reasonably likely amounts or other type
of
sensitivity analysis.
b) Disclose the factors that you consider in estimating each
accrual
such as historical return of products, levels of inventory in the
distribution channel, estimated remaining shelf life, price
changes
from competitors and introductions of generics and/or new
products.
c) To the extent that information you consider in b) is
quantifiable,
disclose both quantitative and qualitative information and discuss
to
what extent information is from external sources (e.g., end-
customer
prescription demand, third-party market research data comparing
wholesaler inventory levels to end-customer demand). For example,
in
discussing your estimate of product that may be returned, consider
disclosing and discussing, preferably by product and in tabular
format, the total amount of product (in sales dollars) that could
be
potentially be returned as of the balance sheet date and
disaggregated by expiration period.
d) If applicable, discuss any shipments made as a result of
incentives and/or in excess of your customer`s ordinary course of
business inventory level. Discuss your revenue recognition policy
for such shipments.
e) You should consider disclosing a roll forward of the liability
for
each estimate for each period presented showing the following:
* Beginning balance,
* Current provision related to sales made in current period,
* Current provision related to sales made in prior periods,
* Actual returns or credits in current period related to sales
made
in current period,
* Actual returns or credits in current period related to sales
made
in prior periods, and
* Ending balance.
f) In your discussion of results of operations for the period to
period revenue comparisons, discuss the amount of and reason for
fluctuations for each type of reduction of gross revenue (i.e.
product returns, chargebacks, customer rebates and other discounts
and allowances) including the effect that changes in your
estimates
of these items had on your revenues and operations.
Certain risk factors, p. 14
General
46. Please update the risk factors to include the latest
information
available. As one example only, in the Risk Factor "We may be
unable
to fully succeed..." on page 15, you should include the latest
assessments relating to your ability and progress in reintroducing
your products. As another example, you should update your
accumulated loss information in the risk factor "We have a history
of
losses..." Please review all risk factors and update them.
"We rely on third party distributors...," p. 16
"We depend on third party manufacturers...," p.16
47. If you are substantially dependent upon any third party
distributor, please disclose the name of that distributor and file
your agreement with the distributor as an exhibit to the 10-K.
You
should also provide a summary of material terms of the contract in
the Business section. Please also indicate what alternatives you
would face if you lost a material distributor.
48. With respect to third party manufacturers, please disclose any
problems you have faced or expect to face of the type set forth in
the bullet points.
"We depend on key executives...," p. 16
49. Please disclose any problems you have faced or anticipate
facing
with respect to key personnel, including problems related to
hiring
or departures of key persons or positions.
"Our canine heartworm business is moderately seasonal...," p. 17
50. Please disclose how the disclosure represents a risk to
investors.
"Any failure to adequately establish or protect our proprietary
rights...," p. 17
51. Please disclose any specific facts or circumstances that might
lead to the problems discussed in this risk factor. For example,
you
have already been forced to litigate two different cases relating
to
intellectual property and you should refer to those cases
specifically rather than referring to the risk of intellectual
property litigation generically.
"Redwood controls us...," p. 18
52. Please expand your discussion of this risk factor to clarify
the
risks posed. Specifically, you should explain how Redwood`s
control
over decisions poses a risk to investors. In addition, you should
explain why your ability to negotiate with the note holder could
be
impacted by the fact that the holder is an affiliate of Redwood.
Consolidated Statement of Operations and Comprehensive (Loss)
Income,
pg. 21
53. We note that you recorded a credit to operating expenses as a
result of settlements regarding patent infringement. Please
provide
to us management`s justification for classification within
operating
expenses. It would appear to be more appropriately classification
as
a non-operating gain. Within your response, please cite any
applicable authoritative guidance used to justify management`s
conclusion.
Notes to Consolidated Financial Statements
Note 1 - Significant Accounting Policies
Inventories, pg. 24
54. Please tell us and disclose your policy for assessing
inventory
obsolescence and any reserves you have at the balance sheet dates.
Goodwill and Other Intangible Assets, pg. 24
55. We note that the Company based their measurement of fair value
upon adoption of SFAS 142 upon an opinion "prepared by an
independent
investment advisor." Please provide to us and include within your
filing, the name of the "independent investment advisor" and
provide
a consent, as appropriate.
Security ownership of certain beneficial owners and management, p.
51
56. Please include a footnote in the table indicating that Messrs.
Donelan, Hendy and Ruyan are the natural persons who have
voting/dispositive power over the shares held by Redwood.
Item 13. Certain relationships and related transactions, p. 53
57. Please provide more information regarding the $15,000 monthly
payment to Redwood. It appears that Redwood is receiving the
payment
simply for being a majority stockholder. If this is the case, you
should indicate this fact more clearly. On the other hand, if
Redwood is providing some kind of services to the company in
exchange
for this payment, describe those services. We may have further
comments on your response.
As appropriate, please amend your filing in response to these
comments. You may wish to provide us with marked copies of the
amendment to expedite our review. Please furnish a cover letter
with
your amendment 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 filing 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 (and any additional filing
person you add in response to comments) 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 our review of your filing or in
response to our comments on your filing.
You may contact Kevin Woody at (202) 551-3629 if you have
questions regarding comments on the financial statements and
related
matters. Please contact Zafar Hasan at (202) 551-3653, or me at
(202) 551-3715 with any other questions.
Sincerely,
Jeffrey Riedler
Assistant Director
cc: Ryan Murr
Heller Ehrman
4350 La Jolla Village Drive
7th Floor
San Diego, CA 92122-1246
FAX: +1.858.450.8499
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