January 11, 2006
Mail Stop 6010
Leonard Foxman
Chief Executive Officer and President
Eagle Test Systems, Inc.
2200 Millbrook Drive
Buffalo Grove, Illinois 60089
Re: Eagle Test Systems, Inc.
Registration Statement on Form S-1
Filed December 20, 2005
File No. 333-130521
Dear Mr. Foxman:
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
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 any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
General
1. Please confirm that your responses to all of our previous
comments
remain accurate and current as if the comments were issued in this
letter.
Graphics
2. Please provide independent, objective support for the
statements
you make in the text in your graphics, including:
* the ETS-200T being the "ideal solution,"
* the ETS-364 offering "superior parallel test capability" and
* that you are "the leader," including evidence that there are no
other industry leaders.
Summary, page 1
3. Please tell us what criteria you used to ensure that the
customers
identified on pages 1, 27, 41 and 48 objectively represent your
customer base and whether you named all the customers that
satisfies
the criteria.
4. We note the comparative language under "Our Solution to Lower
Cost-of-Test" and here and on page 43. Please clarify against
whom
you are comparing yourself, and provide us support for your
statements.
5. In the fourth bullet point in your growth strategy, you explain
that "through new product introduction...we have recently
begun..."
However, your products described on page 46 do not appear to
include
any new products since 2003. Please revise or advise.
Our Corporate Information, page 3
6. Please confirm that your Delaware merger will occur before your
registration statement is effective and that the Delaware
corporation
will sign the registration statement.
The Offering, page 4
7. Please disclose here and under "Use of Proceeds" your
affiliate`s
relationship with TA.
If we fail to maintain adequate internal control, page 11
8. Please tell us why you removed previous disclosure regarding
the
need for improved controls.
Certain of our principal stockholders will receive a material
benefit, page 17
9. With a view toward clarified disclosure in the appropriate
section
of your document, please tell us the purpose of each step of the
conversion and redemption.
Capitalization, page 22
10. "Cash, cash equivalents and marketable securities" is not a
component of the capitalization disclosure. Please revise to
remove
that caption from the capitalization table.
Management`s Discussion and Analysis of Financial Condition and
Results of Operations
Critical Accounting Policies and Estimates, page 30
Stock-Based Compensation, page 31
11. You disclose that you anticipate adopting SFAS 123R on October
1,
2005. Please update the disclosure to more specifically address
the
method and impact of adopting SFAS 123R. To the extent
significant,
your disclosures should consider the disclosure guidance from SFAS
123R and SAB Topic 14.
Net Revenue, page 33
12. With a view toward expanded analysis and discussion, please
tell
us whether the industry downturn affected you and your competitors
proportionately. If not, please explain the differences.
13. If any of your significant customers switched to a
competitor`s
products during the periods presented, please provide appropriate
disclosure.
Provision for income tax, page 34
14. Please explain how and why the extraterritorial income tax
exclusion affected your tax rate during the periods presented.
Also
explain why the state tax rate changed and what you mean by "tax
method changes."
Business, page 41
15. Please explain the purpose, nature and effect of the 2003
recapitalization.
Management, page 52
16. Please disclose who was selected as a board member under each
applicable agreement. Disclose who had the right to nominate that
director. Also, clarify whether a majority of your board will be
independent at the time of the offering.
Director Compensation, page 56
17. Please reconcile the terms of the annual option disclosed at
the
top of page 57 with the disclosure on page 59.
Summary Compensation Table, page 57
18. Please provide tables in the format required by Item 402 of
Regulation S-K, including all information required by that Item.
For
example:
* The "All Other Compensation" column of the summary compensation
table should not be included under the "Annual Compensation"
heading.
* Your asterisk footnote inappropriately implies that the
disclosure
in the "All Other Compensation" column is affected by the
limitation
in Item 402(b)(2)(iii)(C)(1).
* Given that information for your fiscal 2003 was required in your
previous filing, it also should be included in this filing. See
Instruction to Item 402(b).
19. Please tell us why you removed individuals from the table.
Employment Agreements, page 61
20. Please describe the "standard insurance and retirement
benefits"
mentioned in your description of the executive employment
agreements.
Certain Relationships and Related Transactions, page 63
21. Please clarify whether TA Associates has contractually agreed
to
exercise its warrants, as you describe here, or whether they only
"intend" to exercise as described on the top of page 69. Please
cite
to us with specificity the provisions of each exhibit that govern
TA`s obligations in connection with this offering.
22. Please expand your disclosure about the indemnification you
have
provided to TA Associates including any time or amount limitations
on
such indemnification. Also, please identify any other provisions
that survive the offering.
23. Please clarify whether your obligation to indemnify TA for
"diminutions in value...relating to their involvement with" you
requires you to pay for losses that TA may incur as a result of
the
market price of your securities.
24. Disclose the amounts paid under your obligation mentioned in
the
last sentence on page 63.
25. Please explain whether the Management Rights Agreement
continues
after the offering or Mr. Child`s board service. Also, file an
executed version of this agreement.
26. Please explain to us how Pacific Support Group was able to pay
amounts to Leonard and Theodore Foxman in excess of the amounts
you
paid to Pacific.
Principal and Selling Stockholders, page 66
27. Please identify any other individuals with investment or
voting
power over the shares held by the Employee Stock Ownership Plan.
Clarify how the voting and investment control is allocated.
28. In footnote 6, please clarify why the plan`s shares are also
listed in the ownership of the individual officers. Do those
officers exercise a proportionate share of voting or investment
power? When and how do they have access to those shares?
Description of Capital Stock, page 68
29. Your disclosure may not be qualified by reference to statutes.
Please revise accordingly.
Underwriting, Page 75
30. We note that the underwriters have reserved a certain number
of
shares to be sold in this offering to officers and employees.
Please
provide us with the following information:
* Please tell us the circumstances leading to the allotment of
shares
being reserved, including the timing and content of all
communications with potential participants;
* Provide details on how the reserved share plan is being
conducted,
including how the prospective participants and the number of
reserved
shares will be determined;
* Tell us whether purchasers are required to establish accounts
with
the underwriters before the effective time, and, if so, whether
any
funds are deposited into any newly established brokerage accounts
before the effective date of the registration statement;
* Tell us whether the procedures for the reserved shares differ
from
the procedures for the general offering to the public;
* We note that some of the persons who may purchase the shares are
also within the categories of persons described in Item 404 of
Regulation S-K. If applicable, please add the disclosure required
by
Item 404 in an appropriate place in your document; and
* Provide a copy of all written material used in connection with
the
reserved share program and analyze how that material is consistent
with Section 5 of the Securities Act and related rules.
Financial Statements, page F-1
31. Please update the financial statements when required by Rule
3-12
to Regulation S-X.
Exhibit 23.1
32. Please update the accountant`s consent with any amendment to
the
filing.
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 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 filing to be certain that the
filing includes all information required under the Securities Act
of
1933 and that they have provided all information investors require
for an informed investment 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 staff comments and the declaration
of
effectiveness 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 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 Dennis Hult at (202) 551-3618 or in his
absence, Gary Todd at (202) 551-3605 if you have questions
regarding
comments on the financial statements and related matters. Please
contact Jay Mumford at (202) 551-3637 or me at (202) 551-3617 with
any other questions.
Sincerely,
Russell Mancuso
Branch Chief
cc: John R. LeClaire, Esq.
Martin Carmichael III, Esq.
Michael Turner, Esq.
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Leonard Foxman
Eagle Test Systems, Inc.
January 11, 2006
Page 7