Mail Stop 3561
June 2, 2005
Mr. Gary A. Simanson, President and CEO
Community Bankers Acquisition Corp.
717 King Street
Alexandria, Virginia 22314
Re: Community Bankers Acquisition Corp.
Registration Statement on Form S-1
Filed April 22, 2005
File No. 333-124240
Dear Mr. Simanson:
We have reviewed your filing 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.
General
1. Have you identified or been provided with the identity of, or
had
any direct or indirect contact with potential acquisition
candidates?
Currently, you merely disclose that you have not "selected" a
target
business for combination. If management, the directors, or any
affiliate, agent or other representative of any of the company,
the
directors, or management has already taken direct or indirect
measures to locate a target business, or unaffiliated sources have
approached you with possible candidates, you must disclose this
information or advise us. We may have further comment.
2. Provide disclosure with respect to the conversion rights to
discuss the relative benefits and financial advantages to
utilization
of such feature between the existing stockholders and the public
stockholders. This disclosure should include, in part, an
analysis
and comparison of the financial consequences of the exercise of
the
conversion right when exercised by an existing stockholder as
compared to a public stockholder. In this context we note that:
(i)
the existing stockholders are allowed, and in fact intend to make
purchases of shares in both the offering and in the open market
subsequent to the offering; (ii) there appears to be a
disincentive
for public stockholders to exercise their conversion rights due to
the fact that the amount available to such stockholders
(approximately $7.20 per share) is virtually certain to be less
than
the purchase price paid for the unit in the offering ($8.00); and
(iii) there does not appear to be a corresponding disincentive for
existing stockholders to exercise their conversion rights since
the
average price of their existing shares was $.025 per share and
thus
even after paying the offering price and/or market price for the
other shares acquired after the date of the prospectus, the
effective
cost to the existing stockholders of their shares will be less
that
the conversion price of approximately $7.20 per share. Similar
disclosure should be provided, as applicable, with respect to the
shares held by the Underwriters. We may have further comment.
3. Provide disclosure in a prominent place in the prospectus
detailing the various fees, reimbursements and other cash flows
being
paid to the existing stockholders and/or officers and directors in
this offering. We may have further comment.
4. We note the structure of this offering and its similarity to
numerous blank check offerings underwritten on a firm commitment
basis that recently have been registered with the Commission.
With a
view toward disclosure, identify for us supplementally the names
of
the companies that have registered or are seeking to register
blank
check offerings underwritten on a firm commitment basis in which
an
officer, director, affiliate, underwriter or attorney for any of
the
above have been involved; the Securities Act Form the companies`
filed on; if applicable, the date of effectiveness; and, the
status
of the offering thus far. In this regard, tell us the amount
escrowed to date and whether the blank checks have engaged in the
desired business combination outlined in the prospectus. To
assist
the staff in this regard, please present the information in a
tabular
format. We may have further comment.
5. Prior to the effectiveness of the company`s registration
statement, the staff requests that we be provided with a copy of
the
letter or call from the NASD that the NASD has no additional
concerns.
6. Prior to effectiveness please provide an update with respect to
those states in which the offering will be conducted.
7. We note that the registration statement covers "such
indeterminable additional securities as may be issued as result of
the anti-dilution provisions contained in the Redeemable
Warrants."
Please revise the disclosure to state that the indeterminate
number
of additional shares of common stock shall be issuable "pursuant
to
Rule 416 to prevent dilution resulting from stock splits, stock
dividends or similar transactions."
Cover page of Prospectus
8. Please revise the second paragraph to indicate the offering
price
per unit.
9. Revise your disclosure referencing your intent to have the
company`s securities listed on the OTC Bulletin Board to clarify
that
there is no assurance that such securities will be listed for
trading
on the OTC Bulletin Board.
10. We note your disclosure here and elsewhere that the components
of
your units will begin trading separately 90 days after the
effectiveness of this registration statement "unless the
representative of the underwriter determines that an earlier date
is
acceptable." Please revise to elaborate on the noted disclosure
in
an appropriate place in the prospectus. Discuss the factors that
the
underwriter will consider in making the determination to allow
earlier separate trading. If the underwriter decides to allow
separate trading before the end of 90 days, discuss how investors
will become aware of the acceleration.
Table of Contents
11. Please move the paragraph immediately following the table of
contents to an appropriate section following the risk factors
section.
12. In light of the Rule 415 undertakings in Part II of the
registration statement, please revise or remove the statement
"[y]ou
should not assume that the information in this prospectus is
accurate
as of any date other than the date on the front of this
prospectus."
Additionally, revise the statement on the back cover page "the
delivery of this prospectus will not, under any circumstances
create
any implication that the information is correct as of any time
subsequent to the date of this prospectus."
Prospectus Summary, page 1
13. We note that parts of the summary section and the business
section appear promotional, rather than factual, and should be
revised to remove all promotional statements. No speculative
information should be included, unless clearly labeled as the
opinion
of management of the company along with disclosure of the
reasonable
basis for such opinions or beliefs. For example we note the
statements "[m]embers of our management team and board of
directors
have significant management experience in operating banks,
negotiating and consummating mergers and acquisition transactions
as
well as implementing and integrating such transaction with
existing
bank operations. We intend to leverage the experience of our
management team and our capital to create value for our
shareholders." Please provide reasonable support for the
promotional
statements in the prospectus. If a reasonable basis cannot be
provided, the statements should be removed.
14. Please note, in the discussion of the offering on page 2 or in
another appropriate place, whether the company plans to amend its
8-K
filing to provide an audited balance sheet to reflect the exercise
of
the over-allotment option if such exercise does not take place
prior
to the filing of the 8-K to reflect the consummation of the
offering.
15. Supplementally advise us why you appear to have a Virginia
address and a Washington DC phone number.
16. Disclose, here or elsewhere as appropriate, the rationale for
requiring the stock to trade at $11.50 per share or more in order
for
the redemption rights to apply.
17. Provide, here or elsewhere in the prospectus as appropriate, a
definition for the term "public stockholder" as used by the
company
with respect to this offering. In this context, please discuss in
particular whether this term would include the "existing
stockholders" of the company and/or their affiliates, in the case
of
shares held by such persons that are acquired in the offering,
pursuant to open market purchases of units, common stock or
warrants,
or from the exercise of warrants held by such persons.
18. We note your statement here and throughout the prospectus that
you will not proceed with a business combination if shareholders
owning 20% or more of the shares sold in this offering vote
against
the business combination and exercise their conversion rights.
Please revise to clarify that this is a two step process (first,
they
would have to vote against the combination, and second, they have
to
exercise their conversion rights) and that voting against the
combination alone will not result in a pro rata distribution of
the
trust fund.
19. We note your statement that "in certain business combinations,
the amount of our cash contribution in the target business may
exceed
the fair market value of the target business (not including our
cash
contribution) prior to the consummation of the business
combination."
We do not understand your statement. Please revise.
20. Briefly detail, here or elsewhere in the prospectus as
appropriate, the "certain limited exceptions" to the requirement
that
all existing stockholders` shares shall not be transferable during
the escrow period and cannot be released from escrow for three
years
from the date of the prospectus.
21. We note that purchasers of your units will receive one share
of
common stock and one warrant, allowing them to purchase shares
(following a business combination) at the price of $6.00 per
share.
We also note that in order to convert and receive a portion of the
funds held in trust, only the shares are required to be returned.
Please revise to clarify if the warrants remain outstanding
following
an election to receive funds in the trust. This appears to create
an
opportunity for individuals to purchase units, remit the shares
allowing them to receive a portion of the trust, and benefit from
the
subsequent sale of the warrants they retain.
22. We note that the company will received proceeds of $55,500,000
after underwriters discounts and commissions and that $54,000,000
will be deposited into a trust account. We note your statement
that
approximately $1,100,000 of the net proceeds will not be held in
the
trust fund. It appears to us that approximately $1,500,000 of the
proceeds will not be held in the trust fund. Please revise as
appropriate.
23. Please revise to indicate the approximate dollar amount
converted
if 19.99% of the 7,500,000 shares are converted under the
conversion
rights.
Risk Factors, page 6
24. Please revise your risk factor subheadings to concisely state
the
specific material risk each risk factor presents to your company
or
investors and the consequences should that risk factor occur. For
example, the subheading for the second factor merely reads "Our
management has broad discretion with respect to the identification
and selection of a prospective target." Similarly, the subheading
for the third risk factor reads "We must receive regulatory
approvals
before we can consummate a business combination involving a bank
or
bank holding company." Finally, we note the subheading "You will
not
be entitled to protections normally afforded to investors of
certain
blank check companies." These examples are illustrative. Avoid
simply referring to a fact about your company or a future event in
your subheadings. Please revise your subheadings so that they
adequately describe the specific risk that results from the stated
fact.
25. In risk factor three, please describe in more detail the
regulatory approval required in order to consummate the business
combination.
26. We note your cross-reference to the section "Effecting a
business
combination - Liquidation if no business combination" in your
fourth
risk factor. Revise the registration statement to delete the use
of
cross-references from the forepart of the prospectus except for
the
cross-reference to the risk factors on the cover page.
27. In risk factor six, we note your disclosure that you "will
seek
to have all" third parties execute agreements to waive any right,
title, interest or claim to offering proceeds held in trusts. In
your business section, please revise to elaborate on the factors
you
would consider when deciding to engage a third party that refuses
to
execute any of the noted agreements.
28. Please explain the disclosure in the tenth risk factor that
"it
is possible that some of or key personnel will remain associated
in
various capacities with the target business following a business
combination." Please provide detailed disclosure in the business
section regarding this matter. State whether this may be a term
of
the business combination agreement. We may have further comment.
29. Revise risk factor thirteen to indicate the amount of stock
that
the officers and directors own in the company.
30. We note that Messrs. Zalman and Simanson have agreed to
purchase
warrants in the open market following the offering. Clarify
whether
they are obligated to purchase any specific amount of warrants
following the offering. Supplementally, advise us why the
underwriters have required them to purchase warrants following the
offering.
31. In risk factor 15, we note that the company states that "[o]ur
initial business combination may involve the simultaneous
acquisition
of more than one target business." The company also states in the
Use of Proceeds section that "[a]ny amounts not paid as
consideration
to the sellers of the target business may be used to finance
operations of the target business or to effect other
acquisitions."
Please reconcile these statements with the disclosure in the MD&A
section that states "[t]o the extent that our capital stock is
used
in whole or in part as consideration to effect a business
combination, the proceeds held in the trust fund as well as any
other
net proceeds not expended will be used to finance the operations
of
the target business." It would appear that to the extent that the
company uses stock/cash or a combination of the two, any net
proceeds
would be used to finance the operations of the target business.
Please revise the registration statement accordingly.
32. In risk factor 28, please describe in more detail the
regulatory
restrictions on the payment of cash dividends.
33. Some of your risk factors are too broad and generic and should
be
revised to state the material risk that is specific to Community
Bankers Acquisition Corporation. As a general rule, a risk factor
is
probably too generic if it is readily transferable to other
offering
documents or describes circumstances or factual situations that
are
equally applicable to other similarly situated businesses. The
following risk factors should be revised, deleted or moved to
another
section of the prospectus as appropriate:
* "Our board of directors is staggered and will probably remain in
control of our company until at least the consummation of a
business
combination" and
* "We intend to have our securities quoted on the OTC Bulletin
Board,
which will limit the liquidity and price of our securities more
than
if our securities were quoted or listed on the NASDAQ Stock Market
or a national exchange."
34. The write off of organizational costs has been required by SOP
98-5 since 1999. Please revise the last risk factor on page 12.
Use of Proceeds, page 14
35. We note that you have allocated $200,000 towards due diligence
of
prospective target companies. Considering current management will
not devote a set amount of time to your endeavors, please revise
to
discuss how due diligence will be performed and who will perform
it.
36. We note that the proceeds held in trust may be used to
compensate
any finders that aid in your search of a target business. Please
clarify if the finders` fee expenses will be disclosed in the
proxy
that will be sent to public shareholders before a business
combination takes place.
Dilution, page 15
37. We note you indicate that the existing stockholders will have
an
immediate increase in net tangible book value of $5.69 per share.
It
appears to us that they would have an increase of $5.63 per share
in
net tangible book value. Please advise or revise.
Proposed Business, page 19
Effecting a Business Combination, page 20
38. Please include if true, that none of the company`s officers,
directors or promoters, and no other affiliate of the company,
have
had any preliminary contact or discussion with any representative
of
any other company regarding the possibility of an acquisition or
merger between the company and such other company.
39. In the paragraph under the heading "We have not identified a
target business," and elsewhere in the prospectus as appropriate,
expand your discussion concerning potential business combination
candidates to specify the specific criteria, if that criteria has
been established, the company will utilize in determining
qualified
business combination candidates (i.e., fair market value of at
least
80% of the company`s net assets, annual revenues between $xxx to
$xxx, EBITDA of $xxx to $xxx, etc.), provide the number of
participants that qualify as potential combination candidates
given
the company`s established criteria and, to the extent not
excessive
in number, identify such candidates by name and provide relevant
information (both financial and narrative) concerning such
entities.
We may have further comment.
40. In the paragraph "Sources of target businesses," we note the
disclosure that unaffiliated sources will inform you of potential
target businesses and that such information will be either
"solicited
or unsolicited." Please revise to discuss how you will solicit
proposals and how unsolicited parties would become aware of your
search. Also, please revise to clarify if any unaffiliated
parities
providing proposals will receive a fee and how that fee would be
determined.
41. In the paragraph under the heading "Sources of target
businesses," we note the disclosure that the company will not pay
any
finders or consulting fees to the officers, directors or existing
stockholders. Please expand this disclosure, if accurate, to
affirmatively confirm that the officers, directors and existing
stockholders will receive no finders fees, consulting fees, or any
similar type fees from any person or entity in connection with any
business combination involving the company or an affiliate
thereof.
42. In the disclosure under the heading "Probable lack of business
diversification," provide additional disclosure to clarify, in
light
of the company`s requirement that any acquisition must be of a
company with a fair market value equal to at least 80% of the
company`s net assets, how the company would be able to effectuate
a
business combination with more than one target business.
43. We note your statement in the "Limited ability to evaluate the
target business` management" section that "we cannot assure you
that
our officers and directors ...will be familiar with their
responsibilities under the United States securities laws." We do
not
understand the relevance of your statement in the prospectus.
Revise
to delete the noted statement.
Employees, page 24
44. Given the disclosure regarding the amount of time management
will
devote, please revise to discuss in detail how management intends
to
carry out its duty of seeking a target business.
Management, page 34
45. For Gary A. Simanson and Keith Walz, please describe all
employment during the past five years. See Item 401(e)(1) of
Regulation S-K. In the description, please include the name and
business of the person`s employer, beginning and ending dates of
employment, the positions held and a brief description of the
employer`s business. Also include any other directorships held by
each director as required by Item 401(e)(2) of Regulation S-K.
46. Please disclose the period during which each person has served
as
a director, as required by Item 401(a) of Regulation S-K.
Conflicts of Interest, page 35
47. In the fifth paragraph, please clarify the disclosure to
affirmatively state that existing stockholders are not required to
vote any shares they hold which were not owned prior to the
offering
in accordance with the vote of the majority of the public
stockholders and that such shares may be voted either for or
against
the proposed business combination in the existing holder`s own
discretion. In addition, clarify, here and elsewhere as
appropriate,
that with respect to shares held by an existing stockholder which
were acquired after the offering (whether pursuant to the
offering,
pursuant to open market purchases, or pursuant to the exercise of
warrants) that the existing stockholder may vote against the
proposed
business combination and exercise his/her conversion rights in the
event that the business combination transaction is approved by the
requisite number of stockholders.
Principal Stockholders, page 36
48. We note your disclosure regarding management`s agreement with
I-
Bankers Securities to make open market purchases of the warrants
once
separate trading begins, so long as the price does not exceed
$1.20.
This arrangement appears to be an additional mechanism for initial
shareholders to retain an even larger portion of their ownership,
than is disclosed in the risk factors section, following a
business
combination. Please revise to discuss this risk in the risk
factors
section.
49. Please clarify if the purpose of the disclosed purchases is to
stabilize the price of the warrants.
Underwriting, page 43
50. We note your disclosure that underwriters may make bids or
purchases in order to stabilize the market price, so long as the
bids
do not exceed a "specific maximum." Please revise to quantify
that
maximum.
51. We note your statement that the underwriters may make bids or
purchases for the purpose of pegging, fixing or maintaining the
price
of our securities. Supplementally, advise us how these
transactions
comply with Regulation M. We may have further comment.
Financial Statements
General
52. Your attention is directed to Item 310(g) of Regulation S-B
and
the possible need for updated financial statements and related
disclosures.
53. You are reminded that a currently dated consent of the
independent accountants with typed signature should be included in
any amendment to the registration statement.
Part II
Exhibits
54. Please file the form of the underwriting agreement with the
next
amendment.
Signatures
55. Please have the principal accounting officer sign in this
capacity. See Instructions to Signatures, Form SB-2.
* * * * *
As appropriate, please amend your registration statement 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 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
statement, 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 filing; 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
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and 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 amendment 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.
You may contact Maureen Bauer at (202) 551-3237 or Terence
O`Brien at (202) 551-3355 if you have questions regarding comments
on
the financial statements and related matters. Please contact
Thomas
Kluck at (202) 551-3233 or David Link, who supervised the review
of
your filing, at (202) 551-3356 with any other questions.
Sincerely,
John Reynolds, Assistant Director
Office of Emerging Growth Companies
cc: Kathleen Cerveny, Esq.
Fax: (202) 452-0930
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Mr. Gary A. Simanson
Community Bankers Acquisition Corp.
June 2, 2005
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