October 5, 2006
By Facsimile ((646) 349-1336) and U.S. Mail
Dan Nemo, Esq.
General Counsel
WiderThan Americas, Inc.
11 West 42nd Street, 11th Floor
New York, NY 10036
Re: WiderThan Co., Ltd.
Schedules 14D-9C filed September 13, 14 and 15, 2006
Schedule 14D-9 filed September 29, 2006
Schedule 14D-9/A filed October 2, 2006
File No. 005-81250
Dear Mr. Nemo:
We have reviewed your filings 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 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.
Schedules 14D-9C
Forward-Looking Statements
1. We note in the joint press release dated September 12, and in
other pre-commencement communications, the disclaimer that you do
not
undertake any obligation to update any forward-looking statements
to
reflect any changes in events, new information or otherwise. This
disclaimer is inconsistent with the requirements of General
Instruction D of Schedule 14D-9 and your obligations under Rule
14d-
9(c) to amend the Schedule to reflect a material change in the
information previously disclosed. Please confirm that the company
will avoid using this statement in all future communications.
Schedule 14D-9
Past Contacts, Transactions, Negotiations and Agreements, page 3
2. Please tell us why you need to qualify your disclosure "to the
knowledge" of the company. What prevents you from knowing and
disclosing this information? Please explain or delete the
qualifier.
Please apply this comment to your disclosure under the heading
Interest in Securities of the Subject Company.
Arrangements with Offeror and Buyer - Compensation of Directors,
page
6
3. We note your disclosure in the last paragraph of page 6 with
respect to the stock compensation payable to your directors which
calls for an initial grant of 20,000 or 30,000 options, or an
annual
grant of 8,000 or 12,000 options, depending on the director`s
specific service in one of your committees. Please reconcile that
disclosure with the grants made on July 3, 2006 to some of your
directors in amounts other than those disclosed on page 6.
The Solicitation or Recommendation - Background and Reasons, page
8
4. Please expand your disclosure of the events that led to the
increase of the bidders` offer on September 9 and 10. Did you ask
for a higher offer? In this respect, also expand your disclosure
with respect the telephone conversation held on September 8
between
Mr. Glaser and Mr. Wheeler: what about the price and timing of the
transaction was discussed?
The Solicitation or Recommendation - Reasons for the
Recommendation,
page 12
5. The disclosure in this section refers to a wide variety of
factors
considered by the Board and its advisors in connection with their
evaluation of the offer. Item 4 of Schedule 14D-9 and the
corresponding Item 1012(b) of Regulation M-A, however, require
that
actual reasons be cited to explain why a favorable recommendation
is
being made. Please revise this section to clarify which of the
enumerated factors are in fact reasons in support of the Board`s
decision to recommend that the security holders accept the offer.
Also, note that simply listing the factors, without explaining how
the board analyzed them, is of limited usefulness to security
holders. For example, how did the historical and current
information
regarding your business, financial condition, etc. factor into the
board`s decision?
The Solicitation or Recommendation - Opinion of Financial Advisor,
page 13
6. Please provide us, supplementally, a copy of any report
Jefferies
Broadview provided to your board of directors.
7. We note your disclosure that the fairness opinion from
Jefferies
Broadview was provided "solely" for the information of your board
of
directors and we note that the opinion does not include this
language. Revise your disclosure to reconcile the disclosure and
make clear that security holders may rely upon the materials when
making their evaluation. See Section II.D.1 of our Current Issues
Outline for further guidance.
8. Please disclose the results of the advisor`s historical stock
price performance analysis.
9. Please explain why Jefferies Broadview used terminal growth
rates
of 4%-6% and why it adjusted the discount rate for a market risk
premium of 7.2% and a small company premium of 4.5% in conducting
the
Discounted Cash Flow Valuation Analysis. Also, explain the
concept
of the Capital Asset Pricing Model. Finally, disclose the
projected
free cash flow for the 12 months ending December 31, 2010 that
Jefferies Broadview used in its analysis.
10. Please disclose the 2007 projected earnings per share used by
Jefferies Broadview in its Present Value of Projected Share Price
Analysis Based in EPS.
Persons/Assets Retained, page 21
11. Please quantify the fees paid and to be paid to Jefferies
Broadview.
Closing Information
As appropriate, please amend your filing and respond to
these
comments within 10 business days or tell us when you will provide
us
with a response. 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
Exchange Act of 1934 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.
In connection with responding to our comments, please
provide,
in writing, a statement from the company acknowledging that:
* the company is 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 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 filing or in
response to our comments on your filing.
Please direct any questions to me at (202) 551-3619. You
may
also contact me via facsimile at (202) 772-9203. Please send all
correspondence to us at the following ZIP code: 20549-3628.
Sincerely,
Daniel F. Duchovny
Special Counsel
Office of Mergers & Acquisitions
Dan Nemo, Esq.
WiderThan Americas, Inc.
October 5, 2006
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE