May 27, 2005
John R. Hinson
Raymond W. Cohen
CSQ Holding Company
3303 Monte Villa Parkway
Bothell, Washington 98021
Re: CSQ Holding Company
Registration Statement on Form S-4
Filed May 2, 2005
File No. 333-124514
Dear Messrs. Hinson and Cohen:
We have limited our review of your filing to those issues we
have addressed in our 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 information so we may better understand
your
disclosure. After reviewing this information, we may 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 any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Summary - Page 1
1. With a view toward disclosure, please tell us whether
shareholder
approval of the transaction with Mr. Newton`s entities is
required.
Also, please clarify in your summary whether the fairness opinions
extend to the transaction with Mr. Newton`s entities. If there was
no
fairness opinion, fully describe in an appropriate section of your
document how the boards determined that the transaction was fair.
We are proposing a merger between Quinton and Cardiac Science,
page 2
Why are Quinton and Cardiac Science proposing the transaction?,
page
2
2. Please balance your disclosures regarding the reasons why the
boards of directors recommended the merger with a brief discussion
under a separate heading of the principal risks, detriments, or
challenges of the merger.
3. Revise to explain briefly the basis for your expectations
regarding the potential strategic benefits. Also quantify these
expectations where possible.
What will happen to Cardiac Science`s outstanding senior notes...,
page 2
4. We note that certain Cardiac Science note and warrant holders
have
agreed to exchange their notes and warrants for $20 million and
2,843,915 shares of Newco common stock. Please advise us whether
the
exchange will comply with Rule 13e-4 and Regulation 14E.
What percentage of Newco, page 4
5. Please also show the ownership reflecting the assumption of all
outstanding securities convertible or exercisable into equity.
Do persons involved in the transaction have interests that may
conflict..., page 6
6. Quantify the value of each affiliate`s interest. For example,
quantify the value of severance payments and accelerated options,
the
amount of additional compensation to be received under new
employment
terms, and the value of the securities held by Mr. Newton`s
entities
before the merger relative to what they are receiving in exchange.
Also disclose the percentage of shares to be held by Mr. Newton`s
entities.
Recent Market Prices, page 19
7. Please clarify what "pro forma equivalent per share value" is
intended to demonstrate. Also, it is unclear why you do not
provide
a comparison of the value of a CSQ share relative to the value of
the
market price of the Quinton and Cardiac Science shares.
Recent Developments, page 20
8. Relocate this disclosure to a more prominent location in the
questions and answers section of the document.
9. Please provide us with a copy of the consolidated class action
complaint filed in the Chancery Court of Delaware, a copy of the
complaint filed in the Chancery Court of Delaware that has not yet
been consolidated, and a copy of the complaints filed in the
Superior
Court of Orange County, California.
Risk Factors, page 21
10. To the extent material, please revise to add risk factor
disclosure discussing the risks associated with:
* the restrictions on the ability of the parties to solicit
alternative transactions
* the potential payment of the termination fee if the agreement is
terminated under certain circumstances, and
* the lack of appraisal rights relating to the transaction.
The merger and related transactions, page 32
11. Based on currently available information, please quantify the
amount of the limitations. Likewise, please quantify the amount
of
indebtedness income mentioned in the next risk factor.
The Quinton Special Meeting, page 36
12. We note your disclosure here and on page 38 that proxies may
be
used to vote to adjourn the Quinton special meeting and the
Cardiac
Science special meeting in order to continue to solicit votes to
approve the merger. Proxies instructing a vote against the merger
should not be used to vote in favor of adjournment to solicit
additional votes for the merger unless you include a separate box
on
each proxy card to allow stockholders to grant that authority
expressly. You also should include a brief discussion of the
authority that is being sought in the proxy statement/prospectus.
The Cardiac Science Special Meeting, page 38
Recommendation of the board of directors, page 39
13. Revise to indicate whether Mr. Newton voted to recommend the
transaction to shareholders.
The Transaction, page 41
14. In an appropriate section of your document, please provide a
table showing the beneficial ownership of your company after the
transactions.
Background of the transaction and related agreements, page 41
15. We note your disclosure on pages 44 and 45 that both boards of
directors considered alternative transactions. Please expand your
disclosure with regard to the alternatives considered by
identifying
the alternatives and explaining why they were rejected in favor of
the proposed transaction.
Quinton`s reasons for the transaction, page 49
16. Please expand your discussion of both Quinton and Cardiac
Science`s reasons for the merger to quantify the cited benefits
and
negative factors.
Opinion of Quinton`s financial advisor, page 54
17. Provide us with copies of the materials that SunTrust Robinson
Humphrey and CIBC World Markets prepared in connection with their
fairness opinions or otherwise provided to each board of directors
in
connection with this transaction, including, among other things,
any
"board books," drafts of fairness opinions provided to the boards,
and summaries of all oral presentations made to the boards. We
may
have additional comments after we review those materials.
18. Please revise to explain the criteria used to select the
companies used in market analyses of selected publicly traded
companies and the analyses of selected merger and acquisition
transactions.
19. We note the statement at the bottom of page 55 that the
analyses
are not necessarily indicative of actual value. Please clarify
this
statement. If the analyses are not indicative of the value,
please
clarify how they can support a fairness determination. Likewise,
we
note the statement on page 65 that the financial advisor does not
express an opinion on the valuation of Cardiac Science.
20. Please discuss how each analysis was used in the fairness
determination. For example, to what was the implied equity value
derived from the comparable companies analysis compared?
21. Clarify how each company`s financial advisors selected
terminal
value multiples and discount rates.
Information regarding SunTrust Robinson Humphrey, page 63
22. Please revise to disclose the fees that SunTrust will receive
for
its services in connection with the merger, and indicate the
portion
of those fees that is contingent upon completion of the merger.
23. Please quantify the amount of fees Quinton has paid to
SunTrust
during the past two years.
Opinion of Cardiac Science`s financial advisor, page 63
24. Please revise to explain the criteria used to select the "peer
group" companies used in the selected companies analysis and
combined
company analysis.
25. Clarify how the financial advisor selected the range of
multiples
to use in its analyses.
Other Factors, page 68
26. Please summarize these analyses.
Miscellaneous, page 68
27. Please revise to disclose the fees that CIBC World Markets
will
receive for its services in connection with the merger, and
indicate
the portion of those fees that is contingent upon completion of
the
merger.
28. Please quantify the amount of fees Cardiac Science has paid to
CIBC World Markets during the past two years.
Interests of Quinton directors, officers and affiliates in the
transaction, page 69
29. Please revise the table on page 70 to indicate the dollar
amount
of the severance payments, the dollar value of the health and
other
benefits, and the dollar value of accrued unpaid salary and
vacation
time for each officer. Please revise page 71 with respect to the
officers of Cardiac Science similarly.
30. Please revise to provide disclosure with respect to the
material
terms of employment of those officers and directors of both
Quinton
and Cardiac Science who will be employed at the combined company.
Also disclose how those agreements differ from current employment
arrangements.
Interests of Cardiac Science directors, officers and affiliates in
the transaction, page 70
31. Please quantify the number of shares underlying options that
will
fully vest upon completion of the merger for each director and
executive officer.
Material United States federal income tax considerations of the
transaction, page 74
32. Your disclosure assumes that the transaction will constitute a
reorganization or an exchange. This is a legal conclusion that
underlies the ultimate opinion. Please revise to eliminate this
assumption.
33. In it inappropriate to disclaim responsibility for the opinion
and your disclosure. Please remove the statement that the
disclosure
"is for general information only" which we view as an
inappropriate
disclaimer.
34. You must unequivocally disclose the material tax consequences.
Disclosure of what the tax consequences "can be" (page 75) or are
"expected" to be (page 5) is insufficient.
The Merger Agreement, page 78
35. Disclose the reasons for the structure of the merger. Your
revised disclosure should make clear the advantages and
disadvantages
of merging the companies into separate subsidiaries of a new
holding
company and of merging one of the surviving companies into the
parent.
Conditions, page 85
36. Please clarify whether the pending litigation is an event that
permits a party to terminate the agreement.
Extension, waiver and amendment of the merger agreement, page 88
37. We note that certain conditions to the closing of the merger
may
be waived. Please disclose your intentions with respect to
amending
the proxy statement/prospectus and resoliciting proxies in the
event
that a material condition is waived.
38. Please disclose how you will notify stockholders of any waiver
or
amendment prior to the stockholder meeting.
Agreements related to the transaction, page 89
39. Please revise to explain the reasons why Cardiac Science
entered
into the note and warrant conversion agreement with entities
affiliated with Ray E. Newton in connection with the merger.
Indicate whether any noteholders other than those affiliated with
Mr.
Newton were approached as potential parties to the agreement. Also
clarify how the amount of the payment was calculated.
40. Please disclose the consideration that Mr. Newton`s affiliates
provided for the notes and warrants. Also disclose the purpose of
that issuance of those securities.
Unaudited Pro Forma Condensed Combined Consolidated Financial
Statements of Quinton and Cardiac Science, page 91
41. We see that upon consummation of the transaction the
stockholders
of Quinton will own approximately 48.7% of the outstanding stock
of
the merged entity while the share and note holders of Cardiac
Science
will own approximately 51.3% of the outstanding stock of the
merged
entity. However, "the transaction will be accounted for as an
acquisition of Cardiac Science by Quinton under the purchase
method
of accounting." Please tell us supplementally how you determined
that Quinton is the accounting acquirer. Specifically address the
items in paragraph 17 of SFAS 141.
42. Please update the pro forma financial statements as required
by
Rule 3-12 of Regulation S-X.
Unaudited Pro Forma Condensed Combined Consolidated Balance Sheet,
page 93
43. Please expand to provide reconciliation between the
disbursements
described in Note (A) and the pro forma adjustment to cash
totaling
$(21,250).
Pro Forma Adjustments, page 95
44. In a supplemental response, please describe the factors you
considered in concluding that the trade name is an indefinite-
lived
asset. Refer to paragraph 11 to SFAS 142.
Comparison of rights of holders of Newco common stock..., page 100
Vacancies on the board of directors and removal of directors, page
102
45. We note your disclosure that certain provisions of Delaware
law
govern Cardiac Science shareholders` rights with respect to
vacancies
on the board and removal of directors. Please revise to describe
these provisions of Delaware law. Also describe the provisions of
Delaware law that govern amendments to the Cardiac Science
certificate of incorporation.
46. Please provide us your analysis of whether the corporate
governance changes should be unbundled.
Annex A
47. Pursuant to Item 601(b)(2) of Regulation S-K, please file a
list
briefly identifying the contents of all omitted schedules or
similar
supplements. In addition, please file an agreement to furnish the
staff with a copy of any omitted schedule upon request. The
agreement to furnish the staff with omitted schedules may be
included
in the exhibit index to the registration statement.
Exhibit 5.1
48. Please tell us whether you intend to file the amended and
restated certificate of incorporation before this registration
statement is declared effective so you can file an opinion without
the condition in paragraph (c). If not, please tell us how you
believe the opinion satisfies your obligation under Regulation S-K
Item 601(b)(5).
Exhibit 8.1 (and Exhibit 8.2 as applicable)
49. The exhibit required by Regulation S-K Item 601(b)(8) must
include an opinion of what the tax consequences of the transaction
are. It is insufficient to file an exhibit that simply opines on
the
accuracy of your disclosure.
50. The exhibit required by Regulation S-K Item 601(b)(8) may not
assume conclusions of law which are a necessary requirement of the
ultimate opinion. Please file an opinion that does not include
(a)
assumptions regarding the due execution and delivery of all
documents
where due execution and delivery are prerequisites to the
effectiveness thereof or (b) the assumptions in clause (iv) in the
first full paragraph on page 2.
51. Given the statement that counsel does not undertake to advise
of
any subsequent changes of the facts stated or assumed in the
opinion
or of any new developments in the application or interpretation of
the federal income tax laws, please be advised that you will need
to
file a new opinion prior to effectiveness of the registration
statement.
52. Shareholders must be permitted to rely on the opinion required
by
Regulation S-K Item 601(b)(8). Please file an opinion that does
not
imply the contrary, like the penultimate paragraph in this exhibit
currently does.
Exhibit 8.2
53. As noted above, please file an opinion that does not include
(a)
assumptions regarding the due execution and delivery of documents
and
(b) the legal conclusions in the paragraph numbered 4. Likewise,
the
opinion you file should clarify whether the third paragraph and
the
penultimate paragraph mean that counsel relied on others for legal
conclusions.
Exhibit 99.1
54. Please reconcile the date of the opinion mentioned in this
exhibit with the date of the letter included as attachment B to
the
proxy statement.
* * * * *
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 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 to be certain that the
filing includes all information required under the Securities Act
of
1933 and that they have provided all information investors require
for an informed investment 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 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 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 Lynn Dicker at (202) 551-3616 or Gary Todd,
Reviewing Accountant, at (202) 551-3605 if you have questions
regarding comments on the financial statements and related
matters.
Please contact Mary Beth Breslin at (202) 551-3625 or me at (202)
551-3617 with any other questions.
Sincerely,
Russell Mancuso
Branch Chief
cc (via fax): Stewart Landefeld, Esq.
Eric DeJong, Esq.
Michael Matysik
Roderick de Greef
Shivbir S. Grewel, Esq.
??
??
??
??
John R. Hinson
Raymond W. Cohen
CSQ Holding Company
May 27, 2005
Page 13