January 7, 2004
Mail Stop 0510
via U.S. Mail and facsimile
James Nolan
President and Chief Executive Officer
Sheffield Steel Corporation
220 N. Jefferson Street
Sand Springs, Oklahoma 74063
Re: Sheffield Steel Corporation
Form S-4/A
File No. 333-121176
Dear Mr. Nolan:
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 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
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 on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
General
1. On the cover page of your prospectus, please state that broker-
dealers who acquired the old securities as a result of market
making
or other trading activities may use this prospectus for the
exchange
offer, as supplemented or amended, in connection with re-sales of
the
new securities.
Please include the market risk disclosures required by Item 305 of
Regulation S-K, or tell us where you have already addressed each
of
these requirements elsewhere in the filing.2.
Inside Front Cover
3. Please include all of the information required by Item 2(2) of
Form S-4 on the inside front cover page of the prospectus. State
that to obtain timely delivery, security holders must request the
information no later than five business days before the date they
must make their investment decision.
Summary; page 1
4. We note your summary contains a lengthy description of the
company`s business and business strategy. Further, we note the
identical disclosure appears later in your prospectus. In the
summary, you are to carefully consider and identify those aspects
of
the offering that are the most significant and determine how to
best
highlight those points in clear, plain language. The summary
should
not include a lengthy description of the company`s business and
business strategy. This detailed information is better suited for
the
body of the prospectus. If you want to highlight key aspects of
your
business strategy, consider listing these in a bullet-point
format,
with one sentence per bullet point. See Item 503(a) of Regulation
S-K
and part IV.C. of SEC No. 33-7497.
5. So that you do not give greater prominence to a non-GAAP
measure,
please also present or discuss net income each time EBITDA is
presented or discussed here or elsewhere throughout the filing.
This
includes each of the ratios that you present having EBITDA in it
as
well.
6. Please provide a brief statement in your summary as to the
accounting treatment of the proposed exchange offer. See Form S-
4,
Item 4(a)(5).
7. We note the discussion of your business strategy and your
company`s strengths. Please balance the summary by providing an
equally prominent summary of your competitive weaknesses. In
addition, please provide a brief summary of the most significant
risks associated with an investment in the notes. The cross-
reference alone on page 11 is not meaningful to investors.
8. Include a brief summary of the material provisions of the
indenture, including any covenants or provisions, or the lack of
any
covenants or provisions, which may afford a debt holder protection
in
the event of a highly leveraged transaction, merger, or similar
transaction which may adversely affect the creditworthiness of the
new notes and the ability to waive any such covenants or
provisions.
The cross-reference alone on page 11 is not meaningful to
investors.
Summary Historical Financial Data; page 12
9. Given that you have adjusted EBITDA for charges other than
interest, taxes, depreciation and amortization expenses you should
revise your acronym accordingly. Measures that are calculated
differently than EBITDA as defined in Item 10(e) of Regulation S-K
should not be characterized as EBITDA. Refer to Question 14 of
our
June 13, 2003 FAQ on Non-GAAP Financial Measures.
10. To the extent that your disclosure suggests that EBITDA is a
measure of operating performance, it is unclear to us how EBITDA
could be a useful measure of your operating performance because of
your need for on-going debt financing. EBITDA eliminates critical
recurring charges that are a necessary cost of your operations.
Please include a more comprehensive explanation of why you believe
that EBITDA represents a useful measure of operating performance
for
investors. Please avoid boilerplate conclusions like "assisting
in
comparing performance." Please disclose the following:
* The manner in which you use EBITDA to conduct or evaluate your
business;
* The economic substance behind your decision to use the non-GAAP
measure;
* The material limitations associated with your use of EBITDA as
compared to net income;
* How you compensate for these limitations; and
* The substantive reasons why you believe EBITDA provides useful
information to investors.
Refer to Questions 8 and 15 of our June 13, 2003 FAQ on Non-
GAAP Financial Measures.
11. In addition, if management uses EBITDA to evaluate liquidity,
you
must also reconcile it to the most closely comparable GAAP measure
of
liquidity, cash flows from operating activities.
12. It appears that EBITDA excludes, rather than includes, the
$2.4
million loss on debt retirement for the six months ended October
31,
2004. Please revise your disclosures accordingly.
13. Please disclose in note (2) to your selected financial data
the
dollar amount of the deficiency in your earnings to cover fixed
charges for the six months ended October 31, 2003. See
Instruction
2(A) to Item 503(d) of Regulation S-K.
14. Please show us the computations you performed for the most
recent
year and interim period in determining that no pro forma ratio of
earnings to fixed charges was required related to your issuance of
the old notes on August 12, 2004, if a portion of the proceeds was
used to repay debt. See Item 503(d) of Regulation S-K.
Risk Factors; page 14
15. In your discussion under The collateral securing the notes may
be
insufficient . . ., please quantify the amount of debt to which
the
securities issued under the exchange offer will be subordinated.
16. Please show how the ratio of net debt to EBITDA is computed,
including how net debt is determined. Please also show how the
ratio
of EBITDA to cash interest expense, which is discussed on page 43
and
elsewhere, is determined. See Item 10(e) of Regulation S-K.
Use of Proceeds; page 26
17. Please disclose with quantification how you used or intend to
use
proceeds from the old notes you issued on August 12, 2004.
Management`s Discussion & Analysis; page 31
Results of Operations; page 32
18. Please discuss in greater detail the business reasons for the
changes between periods in the following line items:
* Selling, general and administrative expense;
* Depreciation and amortization expense;
* Post-retirement benefit expense other than pensions;
* Interest expense, net; and
* Loss on debt retirement.
In doing so, please disclose the amount of each significant
change in line items between periods and the business reasons for
it.
In circumstances where there is more than one business reason for
the
change, attempt to quantify the incremental impact of each
individual
business reason discussed on the overall change in the line item.
It
is also important to discuss and quantify each change between
periods
in a line item that resulted solely due to the forgiveness of
various
liabilities and the change in the basis of your net assets upon
emergence from bankruptcy on August 14, 2002. See Item 303(a)(3)
of
Regulation S-K and Financial Reporting Codification 501.04.
19. Please discuss any known trends in your reported results that
occurred or are likely to occur and may affect future results.
Please see SEC Release No. 33-8350.
Liquidity and Capital Resources; page 36
Please disclose total capital commitments for capital expenditures
for your 2005 fiscal year and the anticipated source of funds for
these commitments.20.
21. On page 36 you state that as of October 31, 2004, you had
current
indebtedness of $14,000. Please revise this disclosure to state
your
current indebtedness in millions, as you do elsewhere. We also
note
that you state on page 73 that the security interests granted by
the
Company are junior to Permitted Liens securing $33,000 of other
existing indebtedness. Please revise this disclosure as well.
22. Please disclose if you were in compliance with your debt
covenants during each period presented subsequent to your
emergence
from bankruptcy. Please also provide a discussion here that is
similar to that in Note M of your April 30, 2004 financial
statements.
Contractual Commitments; page 38
23. Please revise your table of contractual cash obligations to
include purchase commitments, pension and post-retirement
benefits,
and estimated interest payments on your debt. Because the table
is
aimed at increasing transparency of cash flow, we believe these
payments should be included in the table. Please also disclose
any
assumptions you made to derive these amounts.
Critical Accounting Policies and Estimates, page 40
24. With respect to your critical accounting policies, please
indicate whether you have discussed your critical accounting
estimates with your audit committee. Additionally, for each
critical
accounting policy or estimate, please discuss the likelihood of
materially different reported results if different assumptions or
conditions were to prevail. To the extent practicable and
meaningful, you should also quantify the effect changes in
assumptions and estimates would have on your overall financial
performance. See SEC Releases 33-8040 and 33-8098.
Description of Certain Indebtedness; page 61
25. Please elaborate on the terms of your outstanding indebtedness
relating to events of default if a default could result in the
acceleration of such indebtedness and therefore an event of
default
under the indenture. If the violation of financial covenants you
have made in connection with other indebtedness would ultimately
result in an event of default under the indenture, please describe
those covenants as they would be in effect from time to time
throughout the term of the exchange notes. Finally, if a default
in
any of the terms of your outstanding indebtedness could result in
the
acceleration of that indebtedness and therefore an event of
default
under the indenture, please include a risk factor discussing this
possibility and the company`s ability to repay all accelerated
indebtedness, including the exchange notes, simultaneously.
The Exchange Offer; page 62
Resale of New Notes; page 62
26. A no-action letter relates to whether the staff of the
Division
of Corporation Finance, rather than the Commission, will grant a
company`s request not to recommend enforcement action to the
Division
of Enforcement or the Commission, and does not express any legal
conclusion on the questions presented. Please revise your
statements
indicating that prior no-action letters are the position of the
SEC
as to whether a particular matter complies with the federal
securities laws.
Terms of the Exchange; page 63
27. Please confirm that the offer will be open for at least twenty
full business days to ensure compliance with Rule 14e-1(a). As
currently represented, the offer could be open for less than
twenty
business days due to the 5:00 p.m. New York City expiration time
instead of midnight on what ultimately may be the twentieth
business
day following commencement. See Q & A #8 in SEC Release No. 34-
16623
(Mar. 5, 1980). Further, confirm that the expiration date will be
included in the final prospectus disseminated to security holders
and
filed pursuant to the applicable provisions of Rule 424.
Expiration Date; Extensions; Amendments; page 64
28. We note on page 64 that you reserve the right to delay the
acceptance of any tendered notes. Please clarify in what
circumstances you will delay acceptance, as opposed to extending
the
exchange offer, which is discussed below.
29. We note your reservation of the right to amend the terms of
the
offer. Please revise to indicate that, in the event of a material
change in the offer, including the waiver of a material condition,
you will extend the offer period if necessary so that at least
five
business days remain in the offer following notice of the material
change.
30. Please advise us as to how oral notice of any extension is
reasonably calculated to reach registered holders of outstanding
notes or otherwise satisfies the requirements of Rule 14e-1(d).
Conditions to the Exchange Offer; page 64
31. We note on page 65 that you have reserved the right not to
accept
securities for exchange if you determine that the offer would
violate
applicable law or any interpretation of the staff of the SEC, and
that you can assert this and other reserved rights "at any time
and
from time to time." Please revise to indicate that all conditions
to
the offer, other than those subject to government approval, will
be
satisfied or waived prior to expiration of the offer, not merely
before acceptance of the outstanding notes for exchange. Please
also
make similar revisions to language that appears on pages 64 and 66
suggesting that you may determine whether a condition has been
satisfied either before or after the expiration date.
32. We note disclosure that you reserve the right to waive defects
or
irregularities or conditions of the exchange offer as to any
particular initial notes. Revise this disclosure to indicate that
to
the extent you waive any condition of the offer, you will waive
that
condition for all holders of the initial notes. Similarly revise
the
Letter of Transmittal.
Procedures for Tendering; page 65
33. We note your disclosure on page 66 that your "interpretation
of
the terms and conditions of the exchange offer . . .will be final
and
binding on all parties," while elsewhere you qualify your
discretion
in these matters by stating that it shall be "exercised
reasonably."
In the absence of any objective criteria, such as a standard of
reasonableness, satisfaction of the offer conditions in the sole
discretion of the bidder is the equivalent of a waiver of the
offer
condition. Please revise to include the objective standard for
the
determination of whether a condition has been satisfied that you
use
elsewhere. Similarly revise the Letter of Transmittal.
34. We note disclosure on page 67 indicating that the exchange
agent
will return any improperly tendered notes "as soon as practicable
following the expiration date." Please note that Rule 14e-1(c)
requires that you issue the exchange notes or return the initial
notes "promptly" upon expiration or termination of the offer, as
applicable. Please revise here and throughout the document, as
necessary. Additionally, please revise your disclosure to state
that
you will issue the exchange notes or return the initial notes
promptly after expiration of the exchange offer, rather than after
acceptance.
Financial Statements
General
Please address the comments below in your predecessor financial
statements as well.
35. Please provide the segment information required by SFAS 131,
including your revenues from external customers for each product
and
service or each group of similar products and services as required
by
paragraph 37 of SFAS 131. We assume your product classifications
will be similar those shown in the tonnage shipped data on page
31.
If not, please tell us why not.
36. Please disclose the information required by SFAS 123 regarding
your Management Stock Incentive Plan. Note that SFAS 148 amended
paragraph 45 of SFAS 123. This information is important for
investors in your debt.
37. Please provide the credit risk disclosures arising from the
concentration of 40% of your sales to ten customers. Please refer
to
paragraph 15A of SFAS 107.
B. Fresh-Start Accounting; page F-8
38. Your reorganization value was based on the consideration of
many
factors and various valuation methods, including discounted cash
flow
analysis using projected cash flow information, selected publicly
traded company market multiples of certain companies operating
businesses viewed to be similar to yours, and other applicable
ratios
and valuation techniques believed to be representative of your
business and industry. Though your reorganization value was based
on
consideration of many factors and various valuation methods, it is
not clear which method was ultimately used and how you
specifically
arrived at your reorganization value. Please expand your
disclosure
to clarify your reorganization value as well as how you arrived at
this reorganization value including a discussion of your
significant
assumptions. Refer to paragraph 39 of SOP 90-7.
C. Summary of Significant Accounting Policies
3. Accounts Receivable; page F-10
39. Please disclose your typical credit terms and the reasons for
any
differences between your credit term policy and the number of days
accounts receivable are outstanding. Please explain to us why the
provision for bad debts in your accounts receivable footnote is
not
equivalent to bad debt expense in your statements of cash flows
and
reconcile the two amounts, if necessary. Please also disclose
what
caused recoveries of accounts receivable written-off to exceed
accounts receivable write-offs by $441,000 in the period ended
April
30, 2003.
4. Inventories; page F-10
40. Please disclose your accounting policy for establishing
reserves
for inventory obsolescence.
11. Revenue Recognition; page F-11
41. Please revise your revenue recognition accounting policy for
product and Railway service revenues in accordance with SAB Topic
13:A. Please disclose when title passes to the customer. Please
also disclose whether there are customer acceptance provisions.
Please discuss your revenue recognition policy with respect to
calculating and billing raw material surcharges. Please also
update
your estimate of product returns based on the guidance in SFAS 48.
Please ensure that the revenue recognition policy in your footnote
is
consistent with the policy disclosed in your Critical Accounting
Policies and Estimates.
18. Planned Maintenance Activities; page F-13
42. You accrue for planned major maintenance activities prior to
the
periods in which the costs are actually incurred. Please disclose
the nature of each planned maintenance activity you accrue for in
advance, when each plant shutdown is expected to occur, its total
expected cost, when you begin accruing the related costs, the
amounts
that you accrued in each period related to each activity in
advance
of the costs actually being incurred, and the related amounts
still
to be accrued. Please also disclose your accounting policy for
planned major maintenance in your predecessor financial statements
as
well. If you have not used this same method for all periods
presented, please tell us when you changed and how you concluded
your
current method was preferable.
F. Property, Plant and Equipment; page F-14
43. Please breakout the machinery and equipment line item into
smaller and more meaningful components. In addition, the range of
useful lives currently disclosed for each major class of assets is
very broad. Please separately disclose the range of useful lives
for
each new category presented. For categories that still have very
broad useful lives, you should separately discuss the types of
assets
that fall in each part of the range.
G. Long-Term Debt; page F-14
44. Based upon your disclosure on page F-16, it appears you
obtained
waivers related to your non-compliance with certain debt covenants
in
some periods. Please disclose when each waiver was obtained.
Also,
please disclose the specific debt covenants that you were not in
compliance with, the duration of each waiver, and the amounts and
forms of consideration that you paid, if any, to obtain the
waivers.
Also, please disclose whether each of your various debt
arrangements
have cross default provisions.
I. Employee Benefit Plans; page F-17
45. Please disclose the benefits expected to be paid in each of
the
next five years and in the aggregate for the five fiscal years
thereafter as required by paragraph (5)(d) of SFAS 132(R) with
respect to your defined benefit plan.
Condensed Consolidated Balance Sheet - Intangible assets, net;
page
F-38
46. Please tell us why the reorganization value in excess of
identifiable assets at April 30, 2004 has been reclassified to an
intangible assets account at October 31, 2004. Please consider
that
fresh-start accounting in accordance with SOP 90-7 as applied on
August 14, 2002 allocated the reorganization value in excess of
identifiable assets to goodwill rather than to an intangible
asset.
Please also disclose why the intangible assets or reorganization
value amount has increased from $1.5 million at April 30, 2004 to
$6
million at October 31, 2004.
Condensed Consolidated Statements of Operations and Changes in
Stockholders` Deficit - Income Tax Expense; page F-39
47. Please disclose the reasons for your low effective income tax
rate for the six months ended October 31, 2004. Please refer to
guidance in paragraph 47 of SFAS 109 that requires disclosure of
the
nature and effect of any significant matters affecting
comparability
for all periods presented.
Schedule II - Valuation and Qualifying Accounts
48. Please provide Schedule II for your allowance for doubtful
accounts receivable. See Rule 5-04 of Regulation S-X.
Information Not Required in Prospectus; page II-1
Item 22 Undertakings; page II-1
49. Furnish, in full, the undertakings required by Item
512(a)(1)(ii)
of Regulation S-K and Item 22(c) of Form S-4.
Exhibits
50. Delete language in the letter of transmittal requiring the
note
holder to acknowledge or certify that he has "reviewed" the
prospectus and the Letter of Transmittal.
As appropriate, please amend your registration statement in
response to these comments. 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 supplemental 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 filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed 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.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
? should the Commission or the staff, acting pursuant to
delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
? the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
? the company may not assert this action 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 connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as a confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
You may contact Gus Rodriguez at (202) 824-5524 or Rufus
Decker
at (202) 942-1774 if you have questions regarding comments on the
financial statements and related matters. Please contact Matt
Franker at (202) 824-5495 or me at (202) 942-2864 with any other
questions.
Sincerely,
Jennifer Hardy
Branch Chief
cc: Matthew J. Gardella, Esq. (via facsimile 617/316-8306)
Palmer & Dodge LLP
111 Huntington Avenue
At Prudential Center
Boston, Massachusetts 02199-7613
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James Nolan
Sheffield Steel Corporation
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0404
DIVISION OF
CORPORATION FINANCE