February 3, 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.
Amendment No. 1 to Registration Statement on Form S-1
Filed January 23, 2006
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.
Summary, page 1
1. We note your response to our prior comment 4 from our letter
dated
January 11, 2006. Please revise your disclosure here and in the
related section on page 43 to clarify against whom you are
comparing
yourself when you use comparative language. For example, we note
your reference to higher test yields, lower cost of test and
significant cost savings. Also, if your disclosure is based on
unverified customer feedback, please make that basis for your
statements clear.
If we fail to maintain adequate internal control, page 11
2. We note your response to comment 8; however, it remains unclear
how investors can effectively evaluate your current disclosure
regarding controls without disclosure of your recent history with
control issues.
Net Revenue, page 33
3. We note your response to comment 12; however, it remains
unclear
why it is appropriate for your disclosure solely to attribute your
results to an industry downturn if you do not know whether the
downturn affected you proportionately or caused potential
customers
to prefer your competitors` products.
Income taxes, page 34
4. We reissue prior comment 14, which sought disclosure that is
clear
to investors who may not be tax experts.
Business, page 41
5. We reissue comment 15 which sought disclosure in your
prospectus.
Director Compensation, page 56
6. We reissue comment 17. Your disclosure on pages 57 and 59
continues to provide conflicting information regarding the pricing
of
the options.
Compensation Table, page 57
7. We note that the previous version of your filing reported over
$24,000 of additional compensation paid to Mr. Weimer. Please tell
us
how this compensation can be excluded from the table under the
formula cited in the footnote designated by an asterisk.
8. Please expand your response to comment 19 to tell us (1) the
facts
that led you to believe that the individuals should be included in
the table previously and (2) how your analysis of those facts has
changed.
Employee Stock Ownership Plan, page 61
9. Please disclose the substance of the second paragraph of your
response to comment 28.
Certain Relationships and Related Transactions, page 63
10. Please revise your disclosure so that the purpose of the
structure of these transactions is clear. For example, we note
the
second sentence of the second paragraph to your response to prior
comment 9 and the third paragraph of that response. From your
revise
disclosure, investors should understand the purpose of the
transactions, including:
* why the senior subordinated convertible notes were structured to
convert into both senior subordinated notes and penny warrants,
* why the warrants will be immediately exercised, and
* how a structure permitting a return of capital facilitates tax
planning.
11. We note your response to our comment 23. Please cite to us
the
exhibit that amends your agreement with TA Associates regarding
your
indemnification for "diminutions in value ....relating to their
status as a security holder."
12. We note your response to comment 25. However, given the
definition of material contract in Regulation S-K Item 601(b)(10),
it
appears that both the agreement and its amendment must be filed as
exhibits.
13. We note your response to our comment 26 regarding payments
received from Pacific Support Group. Please clarify, if true,
that
the source of funds for all payments from Pacific Support Group
came
from the company in prior years.
14. We note the disclosure added at the end of the "Stockholders
Agreement" section. Please expand your disclosure in response to
Regulation S-K Item 511 to provide the separate line item required
by
the second sentence of the instruction to that Item.
Principal and Selling Stockholders, page 66
15. We note your response to our comments 27 and 28. Please
disclose
in the footnotes how the voting and investment control is
allocated
for shares held by your Employee Stock Ownership Plan and how such
control would change after the offering.
Experts, page 79
16. Please ensure that the consent of Valuation Research matches
your
disclosure in this section, including consent to your reference to
the report and your use of "any statements contained in such
report."
Exhibit 5.1
17. The opinion that you file should not make conclusions
regarding
governing law like the third paragraph in the draft provided.
18. The opinion that you file should not assume conclusions of law
that are a necessary requirement of the ultimate opinion given.
For
example, we note that the draft that you provided assumes that
when
the shares "have been duly issued..." they will be "validly
issued..."
19. We note the assumption regarding the filing of the certificate
of
incorporation in Delaware. It is unclear why that filing will not
be
complete before the effectiveness of the registration statement.
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.