August 2, 2005
By Facsimile and U.S. Mail
Karen E. Bertero
Peter W. Wardle
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Lost Angeles, California 90071
Re: Worldwide Restaurant Concepts, Inc.
Schedule 13E-3 filed by Worldwide Restaurant Concepts,
Inc.,
Kevin W. Perkins, Pacific Equity Partners Fund II, L.P.,
Aus Holdco Pty Limited and US Mergeco, Inc.
Filed July 26, 2005
Dear Ms. Bertero and Mr. Wardle:
We have the following comments on the above-referenced
filing.
Please note that we have limited our review to issues related to
Rule
13e-3:
Schedule 13E-3
Chapter 1-The Merger, page 2
1. We reissue comment 2. Please provide us your analysis
regarding
why members of the Australian Management Group are not affiliates
of
WRC. In addition, please revise the filing to indicate when the
additional members of management who will participate in the
transaction will be identified and the potential size of their
equity
interests in the investor group.
2. We reissue comment 3. Revise the summary term sheet to include
all the most material terms of the transaction, including each
party`s fairness determination. Also, please shorten the summary
term sheet, to the extent practicable. For example, we note that
the
first two pages include the mailing addresses of each of the
entities
involved. In addition, you have shown the formula for each
calculation of the possible merger consideration. Please revise
the
summary to include the table requested in prior comment 4 and
eliminate repetitive disclosure of the various calculations.
Also,
please move the table of contents behind the summary term sheet.
3. We note your response to comment 4. Please revise the cover
page
to clarify that security holders will not know the exact amount of
the consideration prior to the vote, and, as such, the actual
consideration may differ from the example provided as of the most
recent practicable date. Also revise the cover page to clarify
the
relative timing of the "bring down" opinion, the vote, the date
that
the merger consideration will be fixed, and the closing. Revise
the
document to clarify the purpose of the "bring down" opinion where
the
merger consideration will not be determined until after the
opinion
is issued.
4. We note your response to comment 5 that you will amend the
Schedule 13E-3 to include any additional reports as exhibits.
Please
tell us what consideration you have given to disseminating a
summary
of the reports should the financial advisor`s analysis materially
differ from that previously disclosed. Please confirm that you
will
file the press release as an exhibit to the Schedule 13E-3 and as
definitive additional materials pursuant to Rule 14a-6(b).
The Merger, page 15
5. We note your response to comment 8. Please revise to clarify
whether any parties proposing transactions at higher prices were
excluded from the final group of seven.
6. Please refer to comment 9. With a view toward disclosure,
please
describe the outstanding issues related to the termination fee and
the circumstances under which it would be required to be paid.
Considerations Relating to the Merger, page 19
7. We note the revised disclosure in response to comment 6. On
page
20, please provide the basis for the board and/or special
committee`s
conclusion that the "liquidation of WRC`s asset[s] would not
likely
realize more than [$0.63] net book value per share." In addition,
please disclose the historical market prices considered by the
board
and/or special committee.
Recommendation of the WRC Board of Directors, page 23
8. Please revise this section to specifically state whether the
board
believes that the transaction is fair to WRC`s unaffiliated
security
holders. See Item 1014(a) of Regulation M-A. Currently, the
disclosure in this section states that the board determined that
the
consideration is fair and provides the board`s recommendation with
respect to the merger, but does not address the fairness of the
transaction.
9. We reissue comment 12. Please address how the board reached
its
fairness determination despite the absence of each of the
procedural
safeguards. It does not appear that you have addressed the
safeguard
in Item 1014(c) of Regulation M-A. With a view toward disclosure,
tell us what consideration the board gave to security holders`
appraisal rights in reaching its procedural fairness
determination.
Opinion of Financial Advisor, page 23
10. We note your response to comment 14; however, it is unclear
where
you have summarized the revised or additional analysis presented
by
Houlihan Lokey on April 28 and/or the earlier analysis. Please
revise the disclosure on pages 24-31 and the background of the
merger
to clarify when the information was presented. Furthermore,
please
revise the disclosure to summarize all aspects of each report.
For
example, we note that the reports summarize the sale process and
disclose the price ranges of potential transactions at various
stages
of the process. It appears that this information should be
disclosed
in the document disseminated to security holders. Furthermore, we
note the disclosure that "second round bids, which do not reflect
potential closing adjustments, ranged from $4.95 per share to
$7.69
per share" and "two parties were selected to proceed to the third
round in a parallel process, with bids of approximately $6.81 and
$6.36 per share, giving consideration to proposed closing
adjustments
(e.g. working capital adjustments." On page 17 you state that
"The
WRC Board of Directors determined to proceed with the two parties
that had submitted final proposals with the highest price per
share
to WRC." Please clarify this disclosure in light of the
information
in the financial advisor`s reports, which appears to indicate that
the two finalists did not propose offers with the highest prices.
Opinion of the Financial Advisor, page 23
11. We note your response to comments 14 and 15. Please confirm,
if
true, that you did not receive any report, opinion or appraisal
from
Houlihan Lokey (in addition to any reports from Houlihan Lokey
Financial Advisors). Please provide all information required by
Item
1015(b) of Regulation M-A with respect to each of Houlihan Lokey
and
Houlihan Lokey Financial Advisors, to the extent you have not
already
done so. For example, it does not appear that you have described
the
method of selection of Houlihan Lokey Financial Advisors, as
required
by Item 1015(b)(2) of Regulation M-A.
The Merger Agreement, page 46
12. Please eliminate the disclaimers highlighted in prior comments
21
and 22.
Ownership of More than 5% of WRC Common Stock, page 83
13. We note your response to comment 25; however, it is unclear
why
the company does not have access to this information. Please
revise
the table as requested in our prior comment or clarify for us why
this information is not determinable.
Where Stockholders Can Find More Information, page 84
14. We reissue comment 28. Please eliminate the disclaimers
highlighted in our prior comment. Security holders are entitled
to
rely on the disclosure in your document.
Form of Proxy
15. We note the revised disclosure on the form of proxy in
response
to comment 30. Please revise the form of proxy and the associated
disclosure on page 67 to clarify that you may only use
discretionary
authority to vote on matters to be presented at the meeting which
were not known a reasonable time prior to the solicitation. See
Rule
14a-4(c)(3).
* * *
Please respond to these comments by promptly amending the
filing and submitting a response letter filed via EDGAR under the
label "CORRESP." If you do not agree with a comment, please tell
us
why in your response. Please note that Rule 14a-6(h) requires you
to
filed revised preliminary proxy materials that are marked to show
changes. Direct any questions to me at (202) 551-3262. You may
also
contact me by facsimile at (202) 772-9203.
Sincerely,
Abby Adams
Special Counsel
Office of Mergers and Acquisitions
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Karen E. Bertero
Peter W. Wardle
August 2, 2005
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0303
DIVISION OF
CORPORATION FINANCE