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[Rutan & Tucker, LLP Letterhead]
April 24, 2008
VIA EDGAR CORRESPONDENCE
Russell Mancuso, Esq.
Branch Chief
Division of Corporation Finance
Securities and Exchange Commission
Mail Stop 6010
100 F Street, N.E.
Washington, D.C. 20549
Re: Strasbaugh
Registration Statement on Form S-1
Amended March 25, 2008
File No. 333-144787
Dear Mr. Mancuso:
This letter responds to the comments of your letter dated April 15,
2008 relating to Strasbaugh (the "Company"). We have reproduced below in bold
font each of your comments set forth in your letter of April 15, 2008, together
with the Company's responses in regular font immediately following each
reproduced comment. The Company's responses in this letter correspond to the
numbers you placed adjacent to your comments in your letter of April 15, 2008.
The Company's independent registered public accounting firm is in the
process of completing its audit of the Company's financial statements for the
year ended December 31, 2007. In addition, the Company is in the process of
completing its unaudited financial statements for the three months ended March
31, 2007 and 2008. In the interest of time, we are responding to your letter of
comments without filing an amendment to the Company's registration statement on
Form S-1 (the "Amendment"), which Amendment will be filed once all financial
statements have been completed.
PROSPECTUS COVER
1. WE REISSUE PRIOR COMMENT 5 IN PART. YOUR PROSPECTUS COVER CONTINUES TO
LIMIT THE FIXED PRICE TO SALES "IN THE PUBLIC MARKET" RATHER THAN TO
ALL OFFERS AND SALES.
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Russell Mancuso, Esq.
April 24, 2008
Page 2
The Company will revise its disclosure on the cover page of the
prospectus and in the "Plan of Distribution" section of the Amendment to delete
the following phrase "in the public market."
BECAUSE CERTAIN ACTION TAKEN BY OUR PRIOR BOARD.., PAGE 13
2. PLEASE EXPAND YOUR RESPONSE TO PRIOR COMMENT 2 TO:
o CLARIFY HOW THE BOARD HAD THE LEGAL AUTHORITY TO DECLARE AN
EXTRAORDINARY DIVIDEND AFTER THE COMMENCEMENT OF THE ELECTION
TO DISSOLVE AND BEFORE THE SHAREHOLDERS REVOKED THE ELECTION,
AND
o TELL US HOW YOU HAVE INFORMED SHAREHOLDERS THAT THE PRESS
RELEASE THE COMPANY SENT REGARDING THE SECOND DIVIDEND
CONTRADICTS THE INTENTION OF THE COMPANY, INCLUDING ANY
DIFFERENCE FROM THE PRESS RELEASE REGARDING THE INCOME TAX
EFFECTS OF THE TRANSACTION.
ALSO, IF THERE IS A MATERIAL RISK THAT THE PAYMENT OF THE PROCEEDS FROM
THE MIMIX SALE AS A DIVIDEND CONFLICTED WITH YOUR PROXY DISCLOSURE
REGARDING THE DISSOLUTION, EXPAND THE RISK FACTOR TO SPECIFICALLY
ADDRESS THIS ISSUE.
We undertook a review of applicable California statutory and case law
to determine whether the Company's board of directors had the legal authority to
declare an extraordinary dividend after the commencement of the election to
dissolve and before the shareholders revoked the election. We have been unable
to locate any legal authority expressly permitting or prohibiting the board from
taking such action. Section 2001 of the California General Corporation Law
("CGCL") sets forth the powers and duties of directors and officers after
commencement of a dissolution proceeding. Although the power to declare an
extraordinary dividend is not included among the powers specifically enumerated
in Section 2001 of the CGCL, the prefatory paragraph to Section 2001
specifically states that the powers and duties "include, but are not limited
to," those actions described in Section 2001. Accordingly, the Company believes
that given the broad language of Section 2001 coupled with the absence of any
express language contained in the CGCL prohibiting the Board from declaring an
extraordinary dividend, the Board had the power to declare the second
extraordinary dividend prior to the revocation of the plan of dissolution.
The Company has not directly informed its shareholders that the press
release the Company issued regarding the second dividend payment contradicts the
original intention of the Company to make a distribution other than pursuant to
a plan of dissolution. The Company believes that its subsequent actions, namely
securing shareholder approval of the share exchange transaction with R. H.
Strasbaugh and revocation of the plan of dissolution, provided the Company's
shareholders with sufficient information for them to understand that any
dividend payment made by the Company was an extraordinary dividend rather than a
liquidating dividend.
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Russell Mancuso, Esq.
April 24, 2008
Page 3
As a result of the Company's inaccurate and contradictory disclosures,
some or all of the Company's shareholders may have reported one or both of the
distributions made as a result of the Mimix sale to the Internal Revenue Service
(the "IRS") as liquidating dividends rather than as extraordinary dividends.
Although, in either case, the applicable tax rate would have been the same, if a
shareholder characterized the dividend payment as a liquidating dividend rather
than as an extraordinary dividend, the shareholder would have received an
unintended benefit as a result of such characterization (i.e., the shareholder
would have been able to deduct the cost basis of the shares in determining the
total amount of taxable gain on loss as a result of such distribution). If such
shareholder's tax return were audited by the IRS, the IRS may conclude that the
shareholder should not have been able to utilize such benefit. This conclusion
by the IRS could possibly result in an action by the shareholder against the
Company to recover the amount of the lost benefit and any potential penalties
imposed on the shareholder by the IRS as a result of the improper
characterization. However, it is important to note that the benefit would not be
lost forever and that the shareholder would be able to utilize the cost basis of
the shares in determining taxable gain or loss when the shareholder ultimately
sells the shares. Also, we believe that a shareholder who reported one or more
of the dividend payments as liquidating dividends would not be subject to any
penalties imposed by the IRS because such shareholder would have taken such a
position based upon reasonable reliance on the Company's various disclosures
suggesting that the dividend payments were to be treated as liquidating
dividends. As a result, the Company believes that any potential claim against
the Company as a result of shareholders inappropriately characterizing the
dividend payments as a liquidating dividend rather than an extraordinary
dividend is both remote and, to the extent asserted, would not result in any
significant amount of monetary damages against the Company. The Company believes
that damages, if any, would be limited to interest on the foregone benefit.
Based on the foregoing, the Company does not believe that the inclusion of a
risk factor is necessary.
PLAN OF DISTRIBUTION, PAGE 86
3. PLEASE EXPAND YOUR RESPONSE TO PRIOR COMMENT 6 TO ADDRESS THE
FOLLOWING:
o IF THE WARRANTS ARE ELIGIBLE TO BE SOLD UNDER RULE 144, PLEASE
TELL US HOW YOU HAVE ENSURED THAT YOU WILL BE ABLE TO OFFER
AND SELL THE COMMON STOCK TO BE ISSUED UPON EXERCISE OF THOSE
WARRANTS BY ANY SUBSEQUENT WARRANT HOLDER.
o GENERALLY, IT IS INCONSISTENT WITH SECTION 5 OF THE SECURITIES
ACT TO CONVERT A REGISTERED OFFERING INTO A PRIVATE OFFERING.
IF YOU REGISTER THE EXERCISE OF THE WARRANTS AND ARE UNABLE TO
MAINTAIN THE EFFECTIVENESS OF THAT REGISTRATION STATEMENT,
PLEASE PROVIDE US YOUR ANALYSIS OF HOW YOU COULD ISSUE
SECURITIES IN A PRIVATE TRANSACTION UPON EXERCISE OF THE
WARRANTS. CITE ALL AUTHORITY ON WHICH YOU RELY.
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Russell Mancuso, Esq.
April 24, 2008
Page 4
The warrants are not eligible to be sold under Rule 144. As we noted in
our response to prior comment No. 6, the Company has the power to require an
opinion of counsel reasonably acceptable to the Company to the effect that any
of the securities sold in the offering are eligible for sale under Rule 144.
Because the warrants are not securities eligible for sale under Rule 144, the
Company will not allow for any such sale in reliance upon Rule 144. We also note
that the Company is not registering the exercise of the warrants.
INDEX TO FINANCIAL STATEMENTS PAGE F-1
4. PLEASE UPDATE THE FINANCIAL STATEMENTS, AS APPLICABLE, AS REQUIRED BY
RULE 8-08 OF REGULATION S-X.
The Company plans to file the Amendment including the updated financial
statements as soon as reasonably practicable.
If you have any questions, please call me at (714) 641-3450.
Sincerely yours,
RUTAN & TUCKER, LLP
/s/ LARRY A. CERUTTI
Larry A. Cerutti
cc: Jay Mumford, Esq. (via facsimile)
Ms. Tara Harkins (via facsimile)
Mr. Chuck Schillings (via electronic mail)
Mr. Richard Nance (via electronic mail)
Mr. Fred Furry (via electronic mail)