By Facsimile: (212) 451-2222
Steven Wolosky, Esq. December 16, 2005
Olshan Grundman Frome et al.
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
Re: Whitehall Jewelers, Inc.
Schedule TO-T filed by JWL Acquisition Corp. and Newcastle
Partners, L.P. on December 5, 2005
File No. 005-46037
Dear Mr. Wolosky:
We have comments on the filing referenced above. We may have
comments on other filings. 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 on any other aspect of our review. Feel free to call
us at the telephone numbers listed at the end of this letter.
Summary Term Sheet, page 1
1. Please remove your qualification of the information in the
summary. This limitation appears to limit reliance by investors
on the summary. We view this limitation as inappropriate since the
summary is being provided to shareholders in a public disclosure
document under the federal securities laws and must describe the
most material terms of the proposed transaction. The summary term
sheet must provide security holders with sufficient information to
understand the essential features and significance of the proposed
transaction. Please see Item 1 of Schedule TO and Item 1000 of
Regulation M-A. You may urge security holders to read the
entirety of the disclosure documents.
When and how will I be paid for my tendered shares? Page 3
2. Please remove the qualification of prompt payment on "the later
of the date of expiration of the offer and the satisfaction of waiver
of the conditions set forth in "The Offer - - Section 14" that are
dependent upon the receipt of government approvals." You may not
condition prompt payment. Please see Rule 14e-1(c). Please make
corresponding changes throughout your disclosure, including, but
not limited to the disclosure on page 8.
If I decide not to tender, how will the offer affect my shares?
Page 3
3. Please tell us how you can make the assertion that that all
shares exchanged in a merger transaction will be for an amount in cash
per share equal to the price per share paid in the offer and that the
only difference between tendering and not tendering shares in the
offer is that tendering security holders will be paid earlier.
You should reconcile this with the disclosure on page 22 in which you
reserve the right to propose consideration in a merger consisting
of securities or a combination of cash and securities. You further
state that you reserve the right to propose consideration in such
a transaction having a value more or less than the amount referred
to above.
The Offer, page 6
4. We note you statement that if the "Rights" detach and separate
certificates evidencing the Rights are issued, tendering
stockholders will be required to deliver Rights certificates with the
common stock. Please revise your disclosure to explain how this would
happen, for example, by board action, and state how you would give
notice of the change and instruction regarding any additional
procedural requirements you plan to adopt. Please make
corresponding changes throughout your disclosure, including, but not
limited to the disclosure on page 14.
Preferred Stock Purchase Rights, page 14
5. We note that unless your rights condition is satisfied, company
security holders will be required to tender one right for each
share of common stock tendered in order to affect a valid tender of
shares in accordance. You further state that "[b]ecause of the nature of
the dividend, liquidation and voting rights of the Preferred
shares, the value of the one one-hundredth interest in a Preferred Share
purchasable upon the exercise of each Right should approximate the
value of one share of Common Stock, adjusted to give effect to any
dilution event." Please describe the basis for your valuation of
the rights. Further, state whether you will be providing any
additional compensation if the rights detach and security holders are
required to deliver rights certificates with the common stock.
Conditions of the Offer, page 23
6. We note your condition labeled (v)(a) where if you learn that
any person or "group" has acquired or proposes to acquire beneficial
ownership of more than 5% of any class or series of capital stock
or the company. . . . We note that Prentice Capital Management, LP
filed a Schedule 13D on December 14, 2005 that claims 65.5% of the
company`s shares. Tell us if you view that Schedule 13D filing as
a triggering event for your condition and if so, whether you intend
to waive the condition.
7. In our view, you may condition a tender offer on any number of
conditions, as long as they are described with reasonable
specificity, capable of some measure of objective verification,
and outside of your control. You state, in the last paragraph of this
section that you may assert any of the conditions "regardless of
the circumstances (including any action or omission by Parent or us)
giving rise to any such conditions." Please revise in accordance
with our position.
Closing Comment
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 information investors require
for an informed decision. Since the bidders are in possession of all
facts relating to its disclosure, it is responsible for the
accuracy and adequacy of the disclosures it has made.
In connection with responding to our comments, please
provide, in writing, a statement from all bidders acknowledging that:
* All bidders are responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the bidders 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.
As appropriate, please amend your documents in response to
these comments. You may wish to provide us with marked copies of
the amendment, if required, 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 file
your cover letter on EDGAR. Please understand that we may have
additional comments after reviewing your amendment and responses
to our comments. In addition, depending upon your response to these
comments, a supplement may need to be sent to security holders.
Please direct any questions to me at (202) 551-3257. You may also
contact me via facsimile at (202) 772-9203. Please send all
correspondence to us at the following ZIP code: 20549-3628.
Very truly yours,
Celeste M. Murphy
Special Counsel
Office of Mergers and
Acquisitions