Mail Stop 03-06
February 11, 2005
Oren B. Azar
Associate General Counsel and Secretary
100 East Wisconsin Avenue
Suite 2780
Milwaukee, Wisconsin 53202
Re: Joy Global Inc.
Amendment No. 1 to Registration Statement on Form S-3
Filed January 26, 2005
File No. 333-121569
Dear Mr. Azar:
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.
Form S-3
Risk Factors - Page 6
The cyclical nature of our original equipment manufacturing
business... - Page 6
1. Please revise to quantify the significant impact that
cyclicality
has had on your business, results of operations, and financial
condition.
We operate in a highly competitive environment - Page 7
2. In order to demonstrate the risk to investors, please revise to
cite specific examples of the "significant competitive pressures"
you
face.
Exhibits
3. We note your indication that you will file a deposit agreement
by
post-effective amendment or by means of filing a Form 8-K to be
incorporated by reference. Because you may not register
depositary
shares without filing a deposit agreement or form of deposit
agreement prior to effectiveness, please revise your filing to
include the agreement or form of agreement as an exhibit.
4. Please add the form of subsidiary guarantee as an exhibit to
your
registration statement.
Exhibit 5.1
5. Please supplementally confirm to us, if true, that the Stock
Warrants, the Debt Warrants, the Purchase Contracts, the Units and
the Deposit Agreement will be governed by New York or Delaware
law.
Alternatively, please revise the opinion to clarify that counsel`s
opinion extends to the laws of the states whose laws will govern
those documents.
6. Please revise to eliminate the statement that counsel is
admitted
to practice law in Illinois and the District of Columbia.
Although
we may not object if counsel elects to opine on laws of states
other
than the jurisdictions in which counsel is admitted to practice,
the
opinion may not state or imply that counsel is not admitted to
practice in those other states.
7. Please delete your statement that "issues addressed by this
letter
may be governed in whole or in part by other laws, but [you]
express
no opinion as to whether any relevant difference exists between
the
laws upon which [your] opinions are based and any other laws that
may
actually govern," and revise the opinion to clarify that counsel
is
opining on those other laws that may actually govern.
8. We note that counsel expresses no opinion as to the potential
liability of holders of any security with respect to wage claims
of,
or other debts owing to, employees of the Company for services
performed, to the extent provided by Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law. Please delete this statement
as
it appears to be inconsistent with counsel`s opinion that the
common
and preferred shares being registered will be, when issued, non-
assessable.
9.
We note counsel`s disclaimer of any obligation to advise of any
change in any source of law or subsequent legal or factual
developments that might affect any matters or opinions set forth
in
the legal opinion. This language appears to be inconsistent with
your response to comment 7. Please delete this language from the
opinion and confirm our understanding that you will file a clean,
unqualified legal opinion in connection with each takedown of
securities. In addition, if counsel intends to rely on an opinion
of
New York counsel with respect to New York law when issuing any
future
unqualified opinions, please also confirm, if true, that a clean,
unqualified opinion of New York counsel will be obtained in
connection with each takedown of securities.
10. Please revise the penultimate paragraph of the opinion to
eliminate the inappropriate implication that purchasers of the
registered securities may not rely on the opinion.
Exhibit 5.2
11. Because the guarantees that may be issued by the subsidiary
guarantors appear to be governed by New York law, please revise
the
New York law opinion so that it also addresses those guarantees.
Form 10-K for fiscal year ended October 30, 2004
Management`s Discussion and Analysis
Results of Operations
2004 Compared with 2003
12. We note your response to comment 22. Please revise future
filings to clarify the term "activity levels" as explained in your
response and quantify the change from period to period in each of
components (1) through (4), where possible and material to your
results of operations.
Controls and Procedures
13. We note your proposed disclosure in response to comments 26
through 32. Please revise to disclose any changes to your
internal
control over financial reporting that occurred during your fourth
quarter of fiscal 2004 that materially affected, or that are
reasonably likely to materially affect, your internal control over
financial reporting or supplementally confirm to us, if true, that
no
such changes occurred.
Financial Statements
Note 2. Significant Accounting Policies
Revenue Recognition
14. We note your response to prior comment 41. Given the long-
term
nature of the life-cycle service contracts, please consider
whether
you should make more detailed disclosure (possibly under critical
accounting polices) about how you account for these arrangements,
including more detail about the extent to which the accounting
relies
on estimation. We see, for instance, that the contracts are
dependent on long-term estimates of maintenance requirements. To
the
extent material, it appears that you should also more fully
address
your exposure to losses under these arrangements.
15. Refer to your response to prior comment 44. When and if
significant, future filings should include disclosure about how
you
value and account for multiple element arrangements. Refer to
paragraph 18 of EITF 00-21.
16. Refer to your response to prior comment 46. When and if
significant, future filings should include revenue recognition
disclosure regarding agency relationships accounted for under EITF
99-19.
Note 21. Segment Information
17. We see your proposed changes in response to prior comment 51.
However, it is not clear that the revised disclosures conform to
the
requirement from paragraph 38b to FAS 131. For instance, how can
long-lived tangible assets be more than $1 billion as of October
30,
2004? It appears that more than long-lived tangible assets are
included in the total. Either revise or advise.
18. As a related matter, we see that when you revised the
enterprise
wide geographic disclosure (FAS 131, paragraph 38b) you also
revised
the segment asset disclosure (FAS 131, paragraph 31) so that the
year-end totals no longer agree to total assets from your balance
sheet. Accordingly, you should revise to also provide the
reconciliation called for by paragraph 32(c) of FAS 131.
* * * * *
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.
You may contact Traci Hornfeck at (202) 824-5565 or Gary
Todd
at (202) 942-2862 if you have questions regarding comments on the
financial statements and related matters. Please contact Mary Beth
Breslin at (202) 942-2914 or me at (202) 942-7924 with any other
questions.
Sincerely,
David Ritenour
Special Counsel
cc (via fax): Keith S. Crow, Esq.
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Joy Global Inc.
February 11, 2005
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