Mail Stop 05-10
June 10, 2005
via U.S. mail and Facsimile
Francis J. Petro
President and Chief Executive Officer
Haynes International, Inc.
1020 West Park Avenue
Kokomo, Indiana 46904-9013
Re: Haynes International, Inc.
Form S-1 filed May 16, 2005
File No. 333-124977
Dear Mr. Petro:
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 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-1 filed May 16, 2005
General
Prospectus Summary, page 1
1. In your Summary and throughout the prospectus you refer to your
company as being a "leading innovator, developer, producer and
solution provider," "leading producer," "technological leader"
and
other similar comments. Please revise these disclosures to
specify
the measure upon which you base these statements.
2. Please revise this section to include a balanced description of
your business. For example, to the extent that you discuss your
business strategy in the summary, please balance it by briefly
discussing the risks of implementing the strategy, such as the
fact
that liquidity issues may limit your ability to make significant
capital investments.
Risk Factors, page 7
3. Throughout this section, you state that you "cannot assure",
"there can be no assurance", or you "cannot be sure [of]" various
facts. The real risk, however, is not your inability to assure
the
reader. Please revise so that the risk is clear.
The sale of a large block of our stock could adversely affect...,
page 11
4. We note the second sentence in this risk factor. Please tell
us
supplementally how all of the outstanding common stock being
freely
tradeable allows you to comply with your obligation to maintain
the
effectiveness of this registration statement.
Pro Forma Financial Information, page 17
5. Please revise note 1 to separately state the amount of
adjustment
for each item listed. In addition, please provide sufficient
information for each adjustment item to allow an investor to
recalculate the amount.
6. Please tell us how you determined it was appropriate to adjust
cost of sales for the fair value of inventory from the fresh start
accounting. It appears that the fair value adjustment of
inventory
directly relates to the plan of reorganization and would be
included
in the determination of income within the twelve months following
the
plan of reorganization, which Article 11 of Regulation S-X
requires
to be disclosed but not adjusted in the pro forma financial
statements.
7. Please revise notes 2 and 3 to include sufficient information
to
allow an investor to recalculate the adjustments.
8. Expand your disclosure in note 5 to indicate how you determined
the appropriateness of the expected tax benefit on the pro forma
operations.
9. As indicated on page 62, we note that you entered into an
Employment Agreement with your president and chief executive
officer
in connection with your plan of reorganization. Please expand
your
disclosures to clarify whether the
new salary agreement results in material changes in compensation
and
if so, revise your pro forma financial statements accordingly.
Selected Historical Consolidated Financial Data, page 19
10. Please revise your tabular presentation to include pro forma
financial information for fiscal year 2004 to enhance an
investor`s
understanding of your results of operations. Refer to Item 301 of
Regulation S-K for guidance.
MD&A
Results of Operations, page 27
11. We note that you combine the results of operations for the
predecessor and successor periods of Haynes International. As you
note in your filing, these two periods are not prepared on a
comparable basis of accounting and therefore should not be
discussed
on a combined basis. Given that the effective date of the plan of
reorganization occurred during the latest fiscal year, it appears
more appropriate to discuss and disclose fiscal year 2004 on a pro
forma basis. We remind you however, that you still must discuss
your
2004 historical results of operations (on a predecessor and
successor
basis) in your Management`s Discussion and Analysis.
12. Please revise your discussion and analysis of selling, general
and administrative expense (SG&A) for the annual periods to
include
information as a percentage of net revenues. Since your net
revenues
are increasing, an analysis of SG&A as a percentage of net
revenues
appears to be a more appropriate analysis.
Liquidity and Capital Resources, page 35
13. State the interest rate on the Loan and Security Agreement and
the U.K. Facility Agreement as of the most recent date
practicable.
14. We note that your Congress Loan and Security Agreement and
U.K.
Facility Agreement contain financial covenants. As such, please
include a discussion of your material financial debt covenants,
including the actual ratio amounts for the most recent period
presented (March 31, 2005), unless management believes that the
likelihood of default is remote. See Section 501.03 of the
Financial
Reporting Codification. Please state whether or not you were in
compliance with these financial covenants for the most recent
period.
Finally, you state that $11 million available under your credit
agreements. Please confirm to us that borrowing this full amount
would not violate any of your existing debt covenants; otherwise,
please state the amount available under your credit agreements
that
would not result in a violation of your financial covenants.
15. We note that you expect to spend approximately $12.7 million
for
capital expenditures during fiscal year 2005. We further note
that
you believe the amount available under your credit agreements
(~$11
million) and your approximate $2.8 million in available cash is
sufficient to fund your $12.7 million in capital expenditures plus
your working capital needs. Please revise your disclosure to
provide
sufficient detail as to how your sources of capital will be
sufficient to fund your capital expenditures and working capital
needs for the next twelve months.
16. In note 10 to your annual consolidated financial statements,
you
provide the expected future pension and postretirement health care
benefit payments for fiscal years 2005 through 2014, which totals
to
$146,810,000. However, you contractual obligations table only
includes a total of $57,030,000 payments. Please either revise
your
contractual obligations table to agree to the information included
in
note 10, or provide a footnote explaining the difference.
Critical Accounting Policies and Estimates, page 38
17. Please expand this section to include the following
information:
* Revenue Recognition: State whether there is any history of
actual
returns exceeding allowances.
* Pension and Post-Retirement Benefits: State the impact of a
plus
or minus 1% change in the discount rate, expected rate of return
on
plan assets, and rate of compensation increase. In addition, we
note
that your expected return on plan assets is 9%. Expand your
disclosures to help readers understand why you believe 9% is a
reasonable expected rate of plan assets given the fact that your
plan
asset allocation is 60% equity and 40% fixed income. Specifically
discuss the expected rate return for your equity plan assets and
your
fixed income plan assets.
* Impairment of Long-Lived Assets, Goodwill and Other Intangible
Assets: Provide a more detailed description of the assumptions
and
estimates you have made in determining the fair value of your
reporting units using the discounted cash flow approach to support
recoverability of goodwill. State the impact on your results of
operations and financial position if actual results differ from
your
estimates and the types of events that could result in an
impairment
to your goodwill balance.
* Income Taxes: Please provide a comprehensive analysis regarding
your determination that the realizability of your deferred tax
assets
is more likely than not. Please refer to paragraphs 20-25 of SFAS
109 for guidance. In addition, quantify the amount taxable income
you must generate to fully realize your deferred tax assets.
Refer to SEC Interpretive Release No. 33-8350, SEC Other Release
No.
33-8040 and SEC Proposed Release No. 33-8098 for guidance.
18. We note that you are subject to environmental regulations,
which
require you to make estimates as to your costs for remediation and
product liability. Please tell us what consideration you gave to
including your environmental contingencies and product liabilities
as
a critical accounting policies and estimates.
Quantitative and Qualitative Disclosures About Market Risk, page
41
19. State the number and dollar amount of currency contracts
outstanding.
Security Ownership of Certain Beneficial Owners and Management,
page
67
20. Revise this section to provide the address for each officer
and
director, as well as Northeast Investors Trust.
Certain Transactions, page 69
21. In the first paragraph, please delete the statement that the
information provided is "qualified in its entirety by reference"
to
the registration rights agreement. Qualification of information
within the prospectus by reference to information outside the
prospectus is only appropriate where a summary or outline of a
document is required or where provided in the appropriate form.
See
Rule 411(a) of Regulation C. Make similar revisions elsewhere in
the
document as necessary.
Selling Stockholders, page 70
22. Please revise your disclosures to identify the natural person
or
persons who have voting or investment control over the company`s
securities that JANA Partners LLC owns. See Interpretation 4S. of
Regulation S-K Item 507 in the March 1999 supplement of the manual
of
publicly available CF telephone interpretations.
23. Please tell us whether any of the selling shareholders are a
broker-dealer or an affiliate of broker-dealer. If any selling
shareholder is a registered broker-dealer, it should be named as
an
underwriter. If the selling shareholder is an affiliate of a
registered broker-dealer, expand the prospectus to indicate
whether
it acquired the securities to be resold in the ordinary course of
business. Also indicate whether at the time of the acquisition it
had any agreements, understandings or arrangements with any other
persons, either directly or indirectly, to dispose of the
securities.
Shares of Common Stock Issued in the Reorganization Eligible for
Future Sales, page 74
24. We note that you entered into a registration rights agreements
with certain entities that received common shares in exchange for
their claims against the company and that these entities are
listed
as selling stockholders. It appears that an additional selling
shareholder, JANA Partners LLC, is listed in the table but was not
a
party to the registration rights agreement. Please tell us how
JANA
Partners LLC received its common shares and why it is necessary to
register its shares for resale.
Plan of Distribution, page 76
25. Please revise to state that any pledges or transferees of the
selling shareholders will be named in a prospectus supplement.
26. Please revise this section to state that if an underwriter is
used in the resale of the shares, you will file a post-effective
amendment to disclose the name of the underwriter and discuss the
material terms of any agreement.
Haynes International financial statements for the year ended
September 30, 2004
General
27. We note you refer to your financial advisor with regard to
preparing the valuation analysis of your business and the new
securities to be issued under the plan of reorganization (note 1)
and
an independent valuation with regard to the determination of the
fair
value of your common stock in connection with the issuance of
stock
options (note 14). Please either identify your financial advisor
and
third party independent valuation firm or delete your references
to
them. We remind you that if you identify and refer to third
parties,
you must include their consent in the S-1. Refer to Section
436(b)
of Regulation C.
Consolidated Statements of Operations, page F-4
28. Based on your description of the costs included in your
research
and technical expense on page 52, it appears that this expense
includes items beyond the description of research and development
costs detailed in paragraphs 8-10 of SFAS 2. As such, please
revise
your disclosure and statements of operations, as appropriate.
Specifically address the amount of expenses related to providing
technical services to customers and indicate why such costs are
not
recorded as cost of revenues.
Note 1 Background and Organization, Fresh Start Reporting, page
F-10
29. We note that you applied fresh start accounting on August 31,
2004 and that your financial advisor presented estimates that the
total enterprise value of Haynes was within a range of $160 to
$240
million. We also note that the company used $200 million (the
midpoint of the range) as the basis for its reorganization value
for
purposes of applying fresh start accounting. You allocated $118.7
million of the $200 million to common equity value. Based on the
10,000,000 shares issued, this results in a per share deemed fair
value of $11.80 per share. Tell us how this deemed per share
value
is reasonable in light of your disclosures in Note 14 which
indicates
that the fair value of the Company`s common stock on the stock
option
date (August 31, 2004) was $15.37 per share as determined by
management based in part on an independent valuation.
30. Please revise your disclosure to provide the following
information, as required by paragraph 39 of SOP 90-7:
* The method(s) used to determine the reorganization value,
including
the factors used in the calculation such as the discount rates,
tax
rates, the number of years for which cash flows were projected,
and
the method of determining terminal value.
* The assumptions made for which there is a reasonable possibility
of
a variation that could materially affect the measurement of the
reorganization value.
* The assumptions about anticipated conditions that are expected
to
be different from current conditions.
Refer to Appendix B of SOP 90-7 for additional guidance.
Note 3 Inventories, page F-21
31. We note that effective October 1, 2003, Hayes-predecessor
changed
its inventory costing method for domestic inventories from the
LIFO
method to the FIFO method. In this regard, we also note your
belief
that FIFO inventory values presented in your balance sheet will
more
closely approximate the current value of inventory. However, we
note
that the cost of nickel, a major component of your products rose
rapidly in fiscal year 2003 and continued to increase throughout
fiscal year 2004. We also note that your conversion costs of
inventory (particularly energy costs) have continued to increase.
Given these two factors, revise Management`s Discussion and
Analysis
to adequately discuss the limitations of using the FIFO as it
relates
to reporting your results of operations.
Note 6 Income Taxes, page F-23
32. It appears that for the successor period you no longer have
any
undistributed earnings of foreign subsidiaries. If this is
correct,
please state the amount of earnings that were repatriated, the tax
impact of this transaction, and the reason you decided to
repatriate
these earnings. Otherwise, please revise your disclosure to
provide
the information required by paragraph 44 of SFAS 109.
Note 10 Pension and Retirement Benefits, page F-28
33. Please revise your disclosure on page F-31or your discussion
within Critical Accounting Policies to specify which actuarial
assumptions were revised.
Note 12 Environmental and Legal, page F-34
34. We note that you are the subject to five lawsuits alleging
product liability and other environmental remediation liabilities.
Please revise your disclosure to provide the information required
by
Questions 2 and 4 of SAB Topic 5:Y, as applicable. Also, it is
unclear from your disclosure of your five lawsuits whether you are
assessing your liability for these lawsuits on a gross or net
basis.
Please revise your disclosure to clarify. Please also revise your
interim disclosures, as appropriate.
35. We note that you have closure and post-closure
responsibilities
for the storage and disposal of wastes. Please revise your
consolidated financial statements to provide the following
information:
* Your accounting policy for the accrual of these costs, including
the impact of adopting SFAS 143;
* Roll-forwards of your closure and post-closure liabilities and
environmental liabilities for each period presented;
* Reasons for any material fluctuations in your liability, if
applicable;
* Total anticipated cost for closure and post-closure activities,
the
range of reasonably possible additional losses, and the
anticipated
timeframe for paying the costs; and
* Disclosure of any material changes in estimates related to
closure
and post-closure costs, consistent with the requirements of
paragraph
33 of APB 20.
Note 14 Stock-based compensation, page F-35
36. Please revise your disclosure regarding the fair value of your
common stock to provide the following additional information:
* Whether the valuation used to determine the fair value was
contemporaneous or retrospective. If the valuation was not
contemporaneous, disclose the reason management chose not obtain a
contemporaneous valuation.
* A comprehensive discussion of the significant factors and
assumptions underlying your valuation method to estimate the fair
value of your common stock.
* Once you have determined your estimated IPO price, expand your
discussion to address each significant factor contributing to the
difference between the fair value of your common stock on August
31,
2004 and the estimated IPO price.
Legal Matters, page 78
37. Please specify the legal matters that counsel will opine upon
relating to the offering.
Legality Opinion
38. Please state which state or states law your opinion is based
upon.
Closing Comments
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.
Please direct accounting comments to Tracey Houser, Staff
Accountant, at (202) 551-3736 or, in her absence, to Jeanne Baker,
Assistant Chief Accountant, at (202) 551-3691. Direct questions
on
disclosure issues to Tamara Brightwell, Staff Attorney, at (202)
551-
3751 or, in her absence, to me at (202) 551-3767.
Sincerely,
Jennifer Hardy
Branch Chief
cc: Stephen J. Hackman, Esq.
Ice Miller
One American Square, Box 82001
Indianapolis, Indiana 46282-0002
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Francis J. Petro
Haynes International, Inc.
June 10, 2005
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0510
DIVISION OF
CORPORATION FINANCE