August 5, 2005
Danford L. Martin
The FPFX Shareholder Value Committee
7 Egret Lane
Aliso Viejo, CA 92656
Re: Firstplus Financial Group, Inc.
Preliminary Proxy Statement on Schedule 14A
Filed July 28, 2005 by James T. Capretz, Robert D. Davis, George
R.
Eberting, Rupen Gulenyan, James P. Hanson and Danford L.
Martin (The FPFX Shareholder Value Committee)
File No. 1-13753
Dear Mr. Martin:
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 a 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 any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Schedule 14A
1. It appears that the participants in this solicitation have
formed
a group. See Rule 13d-5(b). We note from Schedule I that the
group
beneficially owns more than five percent of the company`s common
stock. We are unable to locate a Schedule 13D filed by the group.
File the Schedule 13D and provide us your detailed analysis
regarding
the group`s compliance with Regulation 13D-G. See Rule 13d-1.
2. Please tell us supplementally whether you are aware of the
participation, if any, of the company in the annual meeting and
proxy
solicitation.
3. Please revise page 1 of the proxy statement and the form of
proxy
to clearly mark them as "Preliminary Copies." Refer to Rule 14a-
6(e)(1).
Letter to Security Holders
4. Please clarify the meaning of your statement referring to the
"track record" of the company`s management.
Cover page, page 3
5. Please revise to state the approximate date on which the proxy
statement and form of proxy are first delivered to security
holders.
Information Concerning Solicitation and Voting
Record Date and Voting Securities, page 4
6. Please clarify whether the record date was set by the court.
If
not, please tell us your basis for disclosing July 28, 2005 as the
record date. Also, provide us copies of the court order setting
the
meeting and record date.
Revocability of Proxies, page 4
7. Please advise us as to why you are recommending that security
holders should mail the original revocation of a proxy card to
you.
Also, clarify where the proxies and any revocations should be
mailed:
we note the discrepancy between the instructions on pages 4 and 19
and the apparent discrepancy within this section of the proxy
statement. Explain why security holders should deliver the proxy
card to the company but revocation documents to you.
Voting and Solicitation, page 4
8. We note your statement that if a quorum is not present, the
security holder entitled to vote at the meeting may adjourn the
meeting from time to time until a quorum is present or
represented.
Please tell us your basis for the statement. Also, describe which
security holder you are referring to and the procedures necessary
for
this adjournment.
9. We note that you may employ various methods to solicit proxies,
including mail, facsimile, telephone, e-mail, in person or via the
internet through websites. Be advised that all written soliciting
materials, including any e-mails or scripts to be used in
soliciting
proxies over the telephone or any other medium, must be filed
under
the cover of Schedule 14A on the date of first use. Refer to Rule
14a-6(b) and (c). Please confirm your understanding.
10. Please tell us whether the solicitation of proxies via the
internet will include solicitations via internet chat rooms and
tell
us which websites you plan to utilize.
11. Revise your disclosure to include the amounts expended to date
as
costs of your solicitation. See Item 4(b)(4) of Schedule 14A.
Quorum; Abstentions; Broker Non-Votes, page 5
12. Please explain the meaning of the last sentence in this
section.
It appears that since there are currently no other matters for
security holders to vote, the sentence is unnecessary.
Reasons for Solicitation, page 6
13. To the extent you have not done so, please provide us support
for
the statements relating to the company`s statements, its "repeated
promises," the appointment of its current directors, all discussed
on
page 6, and other statements related to the company`s performance
on
a supplemental basis. Also provide the basis for your statement
regarding the scope of the engagement of the company`s current
auditor. To facilitate our review, provide an annotated copy of
your
materials, identifying the specific support for each such
statement
or group of related statements. Where the bases are other
documents,
such as Form 8-K`s, provide either complete copies of the
documents
or sufficient pages of information so that we can assess the
context
of the information upon which you rely. Mark the supporting
documents provided to identify the specific information relied
upon,
such as quoted statements, press releases, and identify the
sources
of all data utilized. Where you cite company filings in your
document, such as Form 8-Ks, provide the date of each filing
cited.
14. Please summarize the events that resulted in the current proxy
contest. You should summarize any contacts between the Committee
and
the company, and provide appropriate disclosure about any actions
that resulted from the contacts.
15. Please include a description of the litigation referred to in
the
third bullet point, including whether any of the filing persons
were
parties.
16. With respect to the fourth bullet point, please tell us
whether
the organizational documents of the company or Nevada law disallow
the appointment of directors without an election. If these
actions
are not so disallowed, please delete or revise the statement to
remove the implication that the company has acted inappropriately.
Refer to Rule 14a-9.
Proposal One, Election of Directors, page 7
17. We note your statement that you wish to "replace the entire
board
because of their apparent disregard for the rights of the Company
shareholders." You must avoid statements that directly or
indirectly
impugn the character, integrity, or personal reputation or make
charges of illegal or immoral conduct without factual foundation.
Note that the factual foundation for such assertions must be
reasonable. Please revise the quoted statement to clarify your
beliefs and the basis for those beliefs. Refer to Rule 14a-9.
18. We note the second paragraph in this section discussing what
your
nominees intend to accomplish, if elected. Please also indicate
that
there is no assurance that, even if your nominees are elected, you
will be able to successfully carry out each of the items you
mention.
In doing so, eliminate statements throughout the document that
your
nominees can "ensure" the salvage of "substantial value". Also,
please expand your statement that the nominees will consider
alliances without dilutive effects to the current security holders
to
clarify your plans in this regard and how you believe this
objective
may be achieved.
19. Provide the disclosure required by Item 5(b)(1)(iii), (viii),
(ix) and (xii) of Schedule 14A.
20. Please disclose any potential effects of your proposal on
existing security holders of the company. For instance, do you
know
of any existing company agreements with change in control
provisions
that may be triggered by the election of your nominees?
21. Supplementally, please confirm your understanding that you may
only use discretionary authority conferred with the proxies to
vote
upon matters not known to reasonable time before the solicitation.
See Rule 14a-4(d).
22. We note the disclosure at the bottom of page 11 regarding
additional or substitute directors. Revise to disclose whether
the
current nominees here have consented to being named in the proxy
statement and will serve if elected. See Rule 14a-4(d). Also
revise
to clarify your plans to solicit security holders with respect to
any
changes.
Questions and Answers About the Special Meeting
How do I vote in person?, page 12
23. We note in the second paragraph a reference to the "adoption
of
our proposals." Given that you only appear to be proposing a
slate
of nominees for director only, this statement appears
inapplicable.
Please revise or advise.
Schedule I
24. We note your reference to the purchases made within the last
two
years. Please provide the disclosure about those transactions as
required by Item 5(b)(1)(vi).
25. Revise this table to provide a beneficial ownership table as
required by Item 6(d) of Schedule 14A. In this regard, clarify
your
reference to Mr. Hanson`s related entities. Note that a
beneficial
owner includes any person who shares voting or dispositive power
over
the subject securities. See Rule 13d-3.
26. On a related matter, since each of the filing persons appears
to
have formed a group, please revise the table to disclose each
persons
beneficial ownership as determined by Rule 13d-5(b) by including
each
filing person`s shares in every other filing person`s line-item
and
clarify this through footnotes.
Other Matters, page 19
27. Refer to instruction 3 under the caption "Important." Please
explain in the proxy statement who are "registered holders."
Form of Proxy
28. Ensure that you include a statement indicating that the
Committee
is making the solicitation of proxies and that it appears in bold-
faced type. See Rule 14a-4(a)(1).
29. Tell us why your proxy card appears to have two versions of
its
back page. We note that the first version of this proxy back page
appears to include incomplete text. Also, the three boxes on your
proxy card are confusing. Please revise the card to correspond
with
the requirements of Rule 14a-4(b)(2).
Closing Comments
Please amend the Schedule 14A promptly to comply with our
comments. In addition, provide a letter keying your responses to
the
comments, and provide any requested supplemental information. If
you
believe complying with these comments is not appropriate, tell us
why
in your letter. The response letter should be uploaded to EDGAR,
with the form type label "CORRESP" and linked to the Exchange Act
file number. We may have comments after reviewing revised
materials
and your responses.
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 filing persons 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 each of the filing persons
acknowledging
that:
* the filing persons are 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 filing persons 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 should contact the undersigned at (202) 551-3619 for
assistance with respect to the foregoing comments and your proxy
materials. Direct all correspondence to the following ZIP code:
20549-3628.
Sincerely,
Daniel F. Duchovny
Attorney-Advisor
Office of Mergers and Acquisitions
cc: Nathan Jenkins, Esq. (via facsimile: (775) 829-0511)
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Danford L. Martin
The FPFX Shareholder Value Committee
August 5, 2005
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-3628
DIVISION OF
CORPORATION FINANCE