June 2, 2005
Via facsimile to ((404) 873-8707) and U.S. Mail
Robert F. Dow, Esq.
Arnall Golden Gregory LLP
171 17th Street, NW
Suite 2100
Atlanta, GA 30071
Re: Color Imaging, Inc.
Preliminary Schedule 14A
Filed May 5, 2005
File No. 000-16450
Schedule 13E-3
Filed May 5, 2005
File No. 005-59249
Dear Mr. Dow:
We have reviewed the above filings for compliance with Rule
13e-3 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
filings. 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.
Schedule 13E-3
Introduction
1. Please revise the references to an "annual" meeting in this
section and to a "special" meeting in Item 16(a)(i) to make them
consistent.
2. Please revise the last sentence in the second paragraph of this
section to avoid stating that a proxy statement is incorporated by
reference into itself.
3. We note that Mr. Jui-Chi Wang, Mr. Jui-Hung Wang and Mr. Jui-
Kung Wang serve on your board of directors and share voting and
dispositive authority with respect to the shares of your common
stock held by General Plastic Industrial through Chi Fu Investment.
Please advise us why each of those persons has not also been
identified as a filing person in the Schedule 13E-3.
4. We note that Sueling Wang is a director of the company who will
continue in that capacity after the reverse stock split and his
beneficial ownership of shares of your common stock will be
approximately 17%. As for Mr. Sueling Wang and any other of your
directors and executive officers, please provide an analysis as to
whether each is engaged in this going private transaction. For
help in making this determination, please review Section II.D.3 of
our Current Issues Outline, publicly available at our website at
www.sec.gov.
5. Each filing person must individually comply with the filing,
dissemination, disclosure and signature requirements of Schedule
13E-3. Therefore, you will need to include all of the information
required by Schedule 13E-3 and its instructions for any filing
persons added in response to the preceding comments. For example,
include a statement as to whether each person believes the Rule
13e-3 transaction to be fair to unaffiliated security holders and
an analysis of the material factors upon which he relied in reaching
such a conclusion. See Item 8 of Schedule 13E-3, Item 1014 of
Regulation M-A and Question and Answer No. 5 of Exchange Act
Release No. 34-17719 (April 13, 1981). In this regard, the reasons
for the transaction and the alternatives considered by these
affiliates may be different than those of the company, and this
fact should be reflected in the disclosure. In addition, be sure
that each new filer signs the Schedule 13E-3 in his or her
individual capacity.
6. Please note also that you must include the information required
by Items 3, 5, 6, 10 and 11 of Schedule 13E-3 with respect to each
executive officer and director of your corporation. For example,
you need to provide all of this information with respect to Mr.
Wilson. See General Instruction C to Schedule 13E-3. In addition,
provide the disclosure required by Item 1005(a) with respect to the
filing persons and each of your executive officers and directors.
Preliminary Schedule 14A
General
7. 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). We believe
you must present as separate matters: (i) each potential ratio for
the reverse stock split; and (ii) potentially also the forward stock
split. Please revise to allow shareholders to separately vote on
each potential ratio for the reverse stock split and the forward
split, or explain why, based on our telephone interpretation and
the reasoning articulated in this comment, separation is not
required. With respect to a separate vote on the forward stock split,
if you choose to present your analysis, it should note whether sate
law and/or Color Imaging`s governing instruments require a
shareholder vote.
8. Please include the legend required by Rule 13e-3(e)(1)(iii).
9. Please include the form of letter of transmittal as an appendix
to your proxy statement.
Summary Term Sheet - Page 3
10. It appears from the subsection entitled "Voting Information"
that the approval of proposal 1 is assured. Please state
affirmatively that approval is assured here and throughout the proxy
statement.
11. We note your reference to the Private Securities Litigation
Reform Act of 1995 in the "Cautionary Notice" subsection. The
safe harbor for forward looking statements provided in the Reform
Act does not apply to statements made in connection with a going
private transaction. See Sec. 21E(b)(1)(E) of the Securities
Exchange Act of 1934. Revise your proxy statement to delete the
reference to the Reform Act, or revise to state explicitly that is
safe harbor provisions do not apply in the context of this
transaction.
12. Please reorganize your filing so that all of the disclosure
required by Items 7, 8 and 9 of Schedule 13E-3 is in the Special
Factors section and avoid duplication of your disclosure to the
extent possible. We note, for example, the section "Background of
the stock splits" is not included under the Special Factors, and
the subsections "Reasons for the stock splits" and "Did the board
consider any disadvantages?" within the Special Factors appear to
be duplicative.
Special Factors
Purposes of the Stock Splits - Page 7
13. We note your reference to possible trading of your shares in
the Pink Sheets. Please describe the nature of this service, and
the eligibility and disclosure requirements with respect to your
shares.
Reasons for the stock splits - Page 7
14. Please clarify how you will realize cost savings of $50,000
from audit fees if you continue having your financial statements
audited after your reporting obligations are suspended, as
disclosed in the section "Effects of the stock splits" (page 15).
15. Please explain whether you considered using an alternative
ratio that would have enabled some unaffiliated stockholders to
retain an ownership interest in your company while still
sufficiently reducing the total number of stockholders so that
you may seek to terminate your Exchange Act reporting obligations.
See Item 1013(c) of Regulation M-A.
Did the Board consider any disadvantages of going private? -
Page 9
16. Refer to the last sentence in this section. Please tell us,
with a view toward revised disclosure, why you express doubt
regarding the aggregate payment amount to be made as a result of
the reverse stock split.
17. The circumstances under which the board may choose to abandon
the going private transaction despite shareholder approval are
material and should be described with as much specificity as
possible in the Summary Term Sheet section.
18. Your disclosure here indicates that the board reserves the
right to "if and when to effect the reverse stock split." With
respect to the anticipated timing of the reverse split, please
describe your current intentions here and where appropriate in
the proxy statement, including in the Summary Term Sheet.
How will the board select the reverse split ratio? - Page 10
19. Please provide a table showing the costs associated with
each proposed stock split ratio and the effect of each ratio on
the number of shares outstanding as of a recent date. Also,
disclose how you expect to notify shareholders of the ratio
selected.
20. Clarify the basis on which the company will select the final
ratio for the reverse stock split. For example, does it intend to
choose the ratio that will allow as many unaffiliated shareholders
as possible while still having the desired effect of taking the
company private?
Is there a possibility that the board will not complete the stock
splits? - Page 11
21. We note in the last bullet point that the approval of the
stock splits is subject to a determination of continued compliance
with the covenants of your credit arrangements. Please expand your
disclosure to describe those covenants and how they may be affected
by the stock splits.
What if I hold shares in "street name"? Page 11
22. Expand this section to explain what it means to hold shares in
"street name."
What are the interests of affiliates? - Page 12
23. Please explain the nature of the payment to the wife of Mr.
Sueling Wang disclosed in the last sentence of this section (i.e.,
Why was this payment made and what services did Ms. Wang
perform?). Was she a member of the special committee of directors?
Did each of the persons listed in this section receive payments
of $20,000?
24. Expand this section to disclose how the percentage of shares
held by affiliates will change as a result of the reverse and
forward stock splits.
Effects of the Stock Splits - Effects on the Common Shares -
Page 13
25. The disclosure here is incomplete because it fails to discuss
the effects of deregistration on the common shares as a result of
the reverse stock split. Please revise to address.
Effect on Common Shares Held in Street Name - Page 14
26. See our comment above concerning the need to explain the
meaning of the term "street name" that you use throughout this
document.
27. The disclosure here suggests that shares held in street name
may be treated differently for purposes of the reverse and forward
stock splits than those held directly by an individual owner. If
this is the case, this difference should be prominently and clearly
disclosed where appropriate in this disclosure document. For example,
in determining who will be cashed out in the reverse stock split,
will you aggregate all shares held through the same record holder
nominee? If so, how can a shareholder determine whether his or her
nominee holds sufficient shares so as to enable the shareholder to
remain as a shareholder after the reverse and forward splits?
Alternatives to the Stock Splits - Page 16
28. note that state law does not provide appraisal rights in
connection with this transaction. Discuss whether this was a
factor in setting the structure of this going private transaction.
That is, how did the board consider the lack of appraisal rights in
choosing the method by which to take the company private? Would
appraisal rights have been available had you chosen a different means?
29. The disclosure under "How did the Board Determine the Fairness
of the Reverse Stock Split?" on page 12 lists more alternative kinds
of transactions that the special committee considered. These include
mergers and acquisitions and "other transactions" besides going
private. Please discuss those here, and why the special committee
chose to pursue this going private transaction.
Fairness of the stock splits - Page 16
30. Explain why (as stated on page 19) the special committee
determined that neither book value nor liquidation value
accurately reflect the value of the company "in light of its
business and assets." What specific facts about its assets and
business caused this conclusion?
Advantages of the stock splits - Page 17
31. Please explain the meaning of the "indicated value."
32. Revise your document to ensure that you have provided a
reasonably detailed discussion of each material factor forming the
basis for your fairness determination in accordance with Item
1014(b) of Regulation M-A. A listing of the factors considered,
without a discussion of how that factor relates to the determination
that the transaction is fair to the unaffiliated stockholders (i.e.,
how each factor was analyzed) is inadequate. See In the Matter of
Meyers Parking Systems Inc., Securities Exchange Act Rel. No. 26069
(September 12, 1988). For example, we note the lack of a going
concern value, current value and historical value analyses, the
lack of a quantification of the liquidation value and the indicated
value. If true, indicate why any factor was not material to this
transaction. If any of these factors were disregarded or not
considered despite being material, please discuss the reasons why
those factors were disregarded or not considered. If any of these
factors indicated a higher value than the $1.10 per share to be
paid to the unaffiliated shareholders, your discussion should address
that difference and include a statement as to the basis for the belief
that the transaction is fair despite the difference in value. See
Questions 20 and 21 in Exchange Act Release No. 17719 (April 13,
1981) for guidance in revising your disclosure.
33. Please provide more details about how you arrived at the price
per share to be paid for the shares held by your unaffiliated
security holders as a result of the going private transaction.
Your expanded discussion should state who set the price and by what
methodology.
Opinion of CBIZ Valuation Group - Page 19
34. The disclosure on page 34 in the Background section later in
the disclosure document indicates that on April 14, 2005, the Board
received a report from CVG "to consider strategic alternatives of
Color Imaging, including a merger or going private transaction."
However, the disclosure here does not seem to describe any
alternative transactions analyzed by CVG, as required by Item 1015
of Regulation M-A. Please revise.
35. We note your disclosure in the proxy statement that the
fairness opinion is "solely" for the information of the board of
directors and is not to be relied upon by any Color Imaging security
holder. We also note that the fairness opinion includes similar
language limiting its benefit "solely" to the board of directors.
Revise the proxy statement disclosure and the fairness opinion to
make clear, if true, that unaffiliated security holders may rely
upon the materials when making their evaluation. See Section II.D.1
of our Current Issues Outline for further guidance.
36. Please provide the disclosure required by Item 1015(b)(6) of
Regulation M-A. Please include a summary of the results achieved
in each analysis, the underlying data for each analysis (i.e., list
the comparable companies and transactions and the financial measures
used), and a tabular description of how those results (i) compare
with the per share consideration offered to unaffiliated
shareholders, and (ii) support the ultimate fairness opinion
rendered by CVG. Please refer to the additional comments in this
regard below.
37. Please provide the statement required by Item 1015(c) of
Regulation M-A
Purpose and content of the fairness opinion - Page 20
38. Please provide us with supplemental copies of any materials
prepared by CVG in connection with its fairness opinion, including
any "board books," draft fairness opinions provided to your board
of directors and any summaries of presentations made to your board
of directors (including the materials presented by CVG to your board
of directors on April 6, 2005). All such materials generally fall
within the scope of Item 1015 of Regulation M-A and must be
summarized in the disclosure document and (if written) filed as an
exhibit to the Schedule 13E-3. In addition, each presentation,
discussion, or report held with or presented by CVG, whether oral
or written, preliminary or final, is a separate report that requires
a reasonably detailed description meeting the requirements of Item
1015 of Regulation M-A. Revise to summarize all the presentations
made by CVG, if any, and file any additional written reports as
exhibits pursuant to Item 9 of Schedule 13E-3.
39. Please revise the last sentence in the first (partial)
paragraph on page 21 to clarify the disclosure.
40. Please disclose the financial projections for fiscal years
ended December 31, 2005 to 2009 provided to CVG.
41. Refer to the last paragraph on page 21. We note that this
cautionary language, and the language following it, appears
elsewhere within the disclosure describing the fairness opinion
issued by CVG. Please avoid duplicative disclosure.
Discounted Cash Flow Method - Page 23
42. Please explain how CVG determined that discount rates of 14-
21% and EBITDA multiples of 5x-7x were the most appropriate
indicators of value. Disclose the industry averages.
43. Please revise to disclose the data underlying the results
described in each analysis and to show how that information
resulted in the values already disclosed. Please apply this
comment to every CVG analysis disclosed.
44. Explain how CVG reached its fairness opinion given that in
each of the discounted cash flow analysis the majority of the
results indicate a per share value higher than the consideration
to be paid to cashed-out security holders.
Publicly-Traded Company Analysis - Page 23
45. Please disclose the measures used to conduct these analyses
for Color Imaging (in each of the stand-alone and the stock splits
basis).
46. We note in the "Reverse stock split basis" section that CVG
used pro forma 2004 results. It appears that at the time CVG
issued its opinion, audited financial statements were available.
Please explain why CVG used pro forma 2004 results instead of
audited financial information for 2004 and the effect of the use
of that information on the ability of the special committee and
the board of directors to make the required fairness determination.
Merger and Acquisition Analysis - Page 25
47. Please list the six transactions that CVG used in its analysis
and present the relevant information from each transaction that
CVG used to conduct its analysis. In addition, please explain why
CVG selected only the 2004 transaction (in the stand-alone basis
analysis).
Premium Analysis - Page 25
48. Please show the transactions and relevant data used by CVG in
this analysis. In addition, explain why the SICs selected are
relevant to the analysis and the data underlying the results
presented.
Quorum and Required Vote - Page 27
49. We note your disclosure in the fourth paragraph of this
section that broker non-votes and abstentions will have the effect
of votes against the proposal, while the sixth paragraph states that
neither broker non-votes nor abstentions will be counted for purposes
of determining whether the proposals are approved. Please revise to
address this discrepancy.
50. Rule 14a-4(c)(3) contemplates the use of discretionary
authority only for matters unknown "a reasonable time before the
solicitation." Please revise the fifth paragraph in this section to
clarify and revise your proxy card accordingly. In this regard, it is
not clear what you mean by "amendments or variations" to the matters
listed here, for which you purport to have discretionary proxy
authority. Please advise or revise.
Solicitation and Costs - Page 27
51. Please revise the table in this section to include footnote 2.
Background - Page 30
52. In this section, you chronologically discuss a variety of
alternate transaction or business combination partners considered
by the company. In almost every case, after briefly describing such
party or potential transaction, you simply cryptically state that
it did not occur. Please revise this section generally to fully
explain, in context, why each particular transaction or merger
partner was not pursued. For example, at the bottom of page 30,
you state that in July 2003, management was contacted by a merger
and acquisition firm that indicated it had a client interested in
investing in Color Imaging. The next sentence reads: "No further
contact has taken place between this firm and Color Imaging."
Revise to explain why. In addition, your disclosure elsewhere in
the filing concerning alternative transactions considered should
discuss why, in light of the many potential alternative transactions
or proposals presented during recent years, the company chose this
going private transaction to address the issues confronting the
company.
53. Expand this section to more specifically describe the
company`s initial decision to explore going private. The meeting
between management and two members of the board on August 9, 2004
appears to have been the first time the board considered this course
of action. Expand to specifically identify the parties involved in
the discussions, who initiated them and why. Also, briefly
summarize the discussions.
54. See our comment above. Update the disclosure to indicate
whether there have been any further contacts with the potential
merger partner that is a toner products wholesaler and with whom you
met in August 2004. That is, have there been any further discussions
about a potential transaction between the parties or about the status
of the non-disclosure agreement? Did you discuss with this party
your plans to take the company private?
55. Refer to the disclosure in the last two paragraphs on page 32,
continuing onto page 33. Clarify the status of the potential
business combination transaction with a customer that appears to
have been close to fruition. That is, explain why, after focusing
on its year end financials, the company did not continue discussions
with this party. Your expanded disclosure should summarize the
material terms of any transaction discussed, including a per share
value if discussed.
56. Expand to discuss the $1 million maximum the Board set as the
most it was willing to spend on a going private transaction.
Explain how and why it set this figure and whether it was
communicated to the Special Committee and/or CVG in determining
the price to be paid per share.
57. In your discussion of the formation of the Special Committee
(made up of a single member), describe the interests of that
member in this transaction. Is the member employed with the
company? Will he or she continue as a shareholder after the
reverse and forward stock splits? Also, identify the member of
the Special Committee by name here.
58. Clarify the scope of the Special Committee`s authority and
its consideration of this transaction. That is, did the Special
Committee consider alternative transactions such as a sale of the
company? Why or why not? Did it consider alternate means of
going private? Did it set the price per share to be paid?
59. Explain why, if the Special Committee engaged the fairness
advisor, it reviewed all proposals received form investment
bankers with management. Who actually engaged CVG - management
or the Special Committee?
60. Summarize the "extensive pricing analysis" and review of
strategic alternatives prepared by CVG and discussed with
management on February 17, 2005. See Item 1015. To the extent
that any written report was received, please file it as an exhibit
to the Schedule 13E-3. Provide a similar summary of the report
from CVG referenced in the first full paragraph on page 34.
61. Describe the "various alternatives" discussed by your chief
financial officer and the Special Committee on April 6, 2005.
62. Summarize the discussions between the Special Committee and
CVG, and especially the discussions about the impact on CVG`s
valuation analysis of the company`s net book value and prior
merger discussions with third parties.
Reservation of Rights - Page 36
63. We note the disclosure that if you decide to withdraw the
stock splits proposal from the annual meeting agenda, you will
file a current report on Form 8-K and make an announcement at the
meeting. Please tell us your basis for not mailing such announcement
to your security holders along with a new proxy card. For example,
if you know a reasonable time before the meeting that you will not
present the reverse stock split proposal, how do you plan to proceed?
Information of certain persons - Page 37
64. Please include footnotes 3-13 in the table.
65. Given the beneficial ownership by Mr. Jui-Chi Wang, Mr. Jui-
Hung Wang and Mr. Jui-Kung Wang of shares held of record by Chi Fu
Investment, please revise the line items listing the beneficial
ownership of those individuals to include such shares. Also,
revise the line item for all executive officers and directors as a
group accordingly.
Pro Forma Financial Information - Page 42
66. Please revise the pro forma income statements to ensure that
the pro forma adjustments are included in the statements. We note,
for example, that the adjustment to administrative expenses in the
statement is either not present or showing an amount that does not
correspond with the total line item.
67. Please provide the ratio of earnings to fixed charges required
by Item 1010(c)(4) of Regulation M-A.
Certain Relationships and Related Transactions - Page 59
68. Please update the disclosure with respect to the status of
your indebtedness with your shareholders, which appear to have
been due March 1, 2005.
As appropriate, please amend your filings in response to
these comments. You may wish to provide us with marked copies of
the amended filings to expedite our review. Please furnish a cover
letter with your amended filing 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 amended filings 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 material information to
investors. 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 persons you add on the Schedule 13E-3 in response
to our comments above) acknowledging that:
* the company is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments do not foreclose the Commission from taking any action
with respect to the filings; 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 filings
or in response to our comments on your filings.
Please direct any questions to me at (202) 551-3619 or, in
my absence, to Christina Chalk, Special Counsel, at (202) 551-3263.
You may also contact me via facsimile at (202) 772-9203. Please send
all correspondence to us at the following ZIP code: 20549-0303.
Sincerely,
Daniel F. Duchovny
Attorney-Advisor
Office of Mergers & Acquisitions