Mail Stop 6010 July 6,
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, Amended June 14, 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.
Schedule 13E-3
1. We reissue prior comment 2 relating to filing persons listed on
Schedule 13E-3. We continue to believe the persons identified in
that comment should be added as filing persons on the Schedule
13E-3,
for the reasons listed in our comment. Please be aware that the
market capitalization of the company and your assertion that
fractional shares are being cashed out at a 30% premium do not
factor
into our analysis of who is engaged in this going private
transaction. Nor is the fact that this is not a management buyout,
and does not involve, in your view, significant amount of funds,
dispositive of the issue of who is required to file and sign the
Schedule 13E-3. As previously requested, please add the persons
listed in prior comment 2 as filers on the Schedule, or provide a
well-reasoned legal analysis, citing to applicable precedent, as
to
why those persons or entities are not engaged.
2. We reissue comment 4 in our prior comment letter. Although it
is
possible that other directors or officers not affiliated with
Redwood
do not need to be added as filing persons on the Schedule 13E-3,
your
response does not provide enough relevant facts for us to make
this
determination. Provide an estimation of each such person`s
interest
in the company (as a percentage) both before and after the reverse
stock split. In addition, where applicable, discuss any other role
each such person played in initiating, structuring or financing
this
transaction, especially in a context other than in their position
with the company.
3. We note your response to prior comment 5 that you have not
included information relating to the ratio of earnings to fixed
charges because the company does not have registered debt
securities
or preference equity securities. Although we understand that Item
503(d) of Regulation S-K refers to registered debt securities or
preference equity securities, the ratio of earnings to fixed
charges
required by Item 1010(a)(3) is not limited to circumstances in
which
a company has registered debt securities and/or preference equity
securities. Rather, Item 1010(a)(3) of Regulation M-A requires
that
Synbiotics present its ratio of earnings to fixed charges "in a
manner consistent with 503(d) of Regulation S-K." The fixed
charges
referred to by the item requirement are not limited to those
associated with registered debt or preference equity securities
and
should be presented in all circumstances in which the company has
any
fixed charges. Please revise.
Schedule 13E-3
Schedule 14A
4. Please revise page 1 to disclose that none of the directors
recommending the transaction are independent and that the fairness
of
the transaction to unaffiliated security holders has not been
opined
upon by a third party or a financial advisor.
5. We note your responses to prior comment 4. However, in light
of
our decision to reissue prior comment 2 relating to filing
persons,
we are also reissuing this prior comment, which asks you to
include
these persons as filing persons and provide the disclosure
required
by Regulation M-A. Similarly, we reissue prior comments 14 and
33,
regarding the need to address each filing person`s view of
fairness
and the disclosure required by Instruction 3 to Item 1013,
respectively.
6. Refer to prior comment 7 and your response. You state that
"there
would be nothing material to disclose" in a section addressing the
unique interests and conflicts of interest of officers and
directors
in this transaction. We disagree, since some affiliates will own
the
company going forward, while most unaffiliated shareholders will
be
cashed out. We note that despite your assertion, you have added
some
new language on pages 1 and 3 of the revised proxy statement;
however, the new disclosure there does not clearly and concisely
describe the effect of the reverse and forward stock splits as it
relates to those individuals. That is, a company controlled by
directors will concentrate its ownership of the company going
forward, while no longer being subject to the current federal
reporting scheme and other federal securities laws that apply to
public companies. In a single section in a prominent part of the
proxy statement, explicitly describe how this transaction will
affect
the interests of the affiliated filing persons. Your expanded
disclosure should present their ownership interest going forward,
assuming that all shareholders who currently own less than 200
shares
are cashed out. Where Redwood is referenced, describe the
relationship between that entity and certain of the company`s
directors.
7. We note our prior Comment 9 and your response. Please include
the
information required by Exchange Act Rule 14a-5(e). While there
may
be no meeting in 2006 if the company ceases to report under the
Exchange Act, the company is not private currently and may not
ultimately become private.
Schedule 14A
Introduction, p. 1
8. We are reissuing prior comment 11 relating to expansion of
disclosure in the fourth paragraph in the introduction. While we
note that you have responded to the second sentence of that
paragraph
and need not respond further to that portion of the comment, the
remainder of your response does not provide sufficient analysis to
resolve the issues raised in the comment. As a couple of examples
only, your references to "self-evident," "redundant" and "not
fully
correct" are conclusory statements that do not resolve the issues
raised in the comment. In addition, we could not locate the
language
in the introduction stating that no independent advisors were
retained and that there are no independent directors. If you are
referring to the mention of the relationship between Messrs
Donelan
and Hendy and Redwood, that language does not clearly articulate
the
point we asked you to address. Please revise.
9. We are reissuing prior comment 18 with respect to disclosure of
the Board`s determination of the offering price. Please include
the
information contained in your response to our prior comment in the
proxy statement. Also, describe the analysis the Board performed
to
determine that the premium "represented a nice, round, fairly
generous figure." State specifically, what if any analysis it
performed concerning the future prospects of the company and its
current and prospective products and services. If it performed no
additional analysis other than what is stated in the response to
our
prior comment, so state in the proxy statement. Also, it may also
be
helpful to explain the basis for the board`s decision to use a 30%
premium over the average closing price for the 30 trading days
ending
on the day before announcement of the Split Transaction rather
than a
different premium, such as 25% or 35%, for example.
Background, p. 4
10. See prior comment 17 and your response. We are unclear as to
what
is meant by the fact that no initial contacts or negotiations
occurred because Redwood controls the issuer. It is precisely
Redwood`s and its affiliates` role in this transaction that should
be
described in greater detail. Simply providing dates of board
actions
is inadequate, without describing the catalyst for those events.
In
this regard, it should be clear to security holders what is
driving
the timing of this Split Transaction and why the board began
considering this transaction on January 7, 2005. See also Item
1013
of Regulation M-A. Also, your disclosure should be revised to
disclose the role of the affiliates in initiating and structuring
the
Split Transaction.
Please revise.
Factors considered by the board, p. 5
11. We refer you to prior comment 21. As we note in our prior
comment, 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. In this regard, it does not appear that the board`s
analysis
as to substantive fairness discusses all of the substantive
factors
from Item 1014. For example, the disclosure does not address net
book value, historical market prices or prices paid in previous
purchases. If the board did not consider these factors, please
disclose and explain why these factors were not relevant in this
transaction.
12. You state on page 7, "[o]ur board of directors did not
consider a
sale of the Company, to non-affiliates or otherwise, as an
alternative to the Split Transaction because it believes that the
value of the Company will increase, and that, accordingly, a sale
of
the Company in the future will result in a higher price paid to
shareholders than would a sale of the Company at this time." You
should expand the bullet on page 3 concerning your directors`
conclusion that the transaction is fair to the company and its
unaffiliated shareholders to highlight the Board`s belief that the
company`s value will increase in the future, and to explain how
this
factored into the board`s fairness determination.
13. In addition, explain the reasons for the timing of this
transaction, given your view that value of the company will
increase
in the future.
14. We note your disclosure on page 7 that you did not retain an
outside party to provide a report and opinion relating to the
fairness of the consideration to be paid to unaffiliated
shareholders
holding fewer than 2,000 pre-split shares and other fractional
shares. In view of the fact that none of the directors that are
recommending the Split Transaction are independent and the payment
to
be received by holders of less than 2,000 shares of common stock
appears to be based on an arbitrarily determined price above
market,
revise to disclose the basis for the board`s decision not to
retain
an outside party and explain why the board believes that the
transaction is fair based on these circumstances.
15. We note your response to our prior Comment 23. You state in
your
response letter that fairness is primarily a function of the
market
price and cash out price. If the Board`s fairness decision was
primarily based upon these two prices, so state in the proxy
statement.
16. We note our prior Comment 24 and reissue the comment. Please
explain why you did not consider other alternatives. You state
that
the Board believes the value of the company will be higher in the
future than it is today. But isn`t the relevant analysis whether
a
sale would yield a higher per share value than the reverse stock
split? If not, please explain.
17. We refer you to your response to prior comment 29 and the
additional disclosure you included in the first paragraph on page
8.
Other than the board`s conclusion as to fairness, it does not
appear
that the disclosure addresses the different subsets of
unaffiliated
shareholders. Rule 13e-3 requires a separate analysis as to
fairness
for each. Please expand your disclosure to more clearly present
this
information.
18. We note your response to prior comment 31. Although your
response advises that "you have nothing particular in mind," your
disclosure suggests that there are specific circumstances that may
trigger the board`s decision to utilize its right not to implement
the Split Transaction. Accordingly, to the extent that you retain
this disclosure, clarify, if true, that there are no current
circumstances which would cause the board to exercise its right
not
to implement the Split Transaction. If future events or
circumstances may cause the board to exercise its right, please
disclose.
Material Federal Income Tax Consequence, p. 11
19. Please disclose your response to prior comment 32.
We do not intend to pay dividends..., p. 12
20. We note your response to prior comment 36. You should
disclose
this rationale in the risk factor.
21. Throughout your response letter, you state that the Board`s
fairness determination is premised upon the amount of the premium
over the 30-day mentioned trading price. Please create a risk
factor
which states, if true, that the Board did no further analysis to
determine whether or not the transaction is fair to unaffiliated
shareholders.
Prior Stock Purchases by Affiliates, p. 21
22. We note that affiliates, including directors of the company,
purchased shares at prices higher than that being paid in this
transaction as recently as the quarter ended December 31, 2004.
Given
that the board set the per share price to be paid in this
transaction
within a few months of that date, disclosed how the price paid in
these transactions factored into the board`s and such individuals`
fairness determination. If it did not, please explain why.
Form 10-K
23. We note our prior Comment 39 and your response, and reissue
the
comment in its entirety. Your business section needs to be
expanded
to discuss the various aspects of your business we mention in our
prior comment. As to the suggestions in your response to our
comment, whether or not the company is being acquired and its
market
capitalization are irrelevant to its disclosure obligations under
the
Exchange Act.
24. We note our prior Comment 40 and reissue it. Expand the
disclosure to 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. Note that the staff has requested this disclosure of
registrants of all sizes and that registrants furnish it in their
respective disclosure documents.
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.
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: Hayden Trubitt
Heller Ehrman
4350 La Jolla Village Drive
7th Floor
San Diego, CA 92122-1246
FAX: +1.858.450.8499
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