[KAYE SCHOLER LLP LETTERHEAD] Hillary F. Jassey
212 836-7799
Fax 212 836-6758
hjassey@kayescholer.com
425 Park Avenue
New York, New York 10022-3598
212 836-8000
Fax 212 836-8689
www.kayescholer.com
December 10, 2004
BY EDGAR AND BY HAND
Mr. Matthew Franker
Division of Corporation Finance
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: MAAX Corporation
Registration Statement on Form F-4
File No. 333-118990
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Dear Mr. Franker:
This letter is submitted on behalf of MAAX Corporation (the "Company")
in response to the comments of the staff (the "Staff") of the Division of
Corporation Finance of the Securities and Exchange Commission (the "Commission")
with respect to the Company's Registration Statement on Form F-4 (File No.
333-118990) (the "Registration Statement"), as set forth in your letter to Andre
Heroux dated October 7, 2004. The Company is filing under separate cover
Amendment No. 1 to the Registration Statement in response to such comments.
Included with this letter are two copies of such filing, one of which has been
marked to show changes to the Registration Statement filed on September 15,
2004.
The text of each comment contained in the Staff's letter is set forth
in italics below, followed by the Company's response. All references to page
numbers in the text of this letter refer to pages in the Registration Statement,
as revised and marked to show changes from the filing dated September 15, 2004.
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NEW YORK CHICAGO LOS ANGELES WASHINGTON, D.C. WEST PALM BEACH FRANKFURT HONG KONG LONDON SHANGHAI
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[KAYE SCHOLER LLP LETTERHEAD]
2 December 10, 2004
ACCOUNTING COMMENTS
1. Please amend to include the corporate structure chart on page 4 of
your filing. In addition, provide us with an organizational chart that captures
the relationship between MAAX Corporation and all of the entities that are
guaranteeing the notes being registered, if not, already displayed on the
corporate structure chart to be inserted on page 4.
RESPONSE: The corporate structure chart on page 4 has been revised to include
all of the entities that are guaranteeing the notes being registered.
2. In accordance with Rule 3-10 of Regulation S-X, you must provide
separate financial statements for every guarantor, unless you fall within one of
the exceptions provided in paragraphs (b), (c), (d), (e) or (f) of Rule 3-10 of
Regulation S-X. However, only one of the exception paragraphs can be applied.
Please advise, as appropriate. If you meet one of the exceptions, please note
that in lieu of separate financial statements, the financial statements included
in the registration statement must include an audited footnote that contains all
of the disclosures required by Rule 3-10 of Regulation S-X. In this regard, your
interim financial statements must also provide all of the required Rule 3-10 of
Regulation S-X disclosures.
RESPONSE: MAAX Inc. was acquired by the issuer, MAAX Corporation, pursuant to a
merger agreement by which two of MAAX Corporation's wholly-owned subsidiaries
were amalgamated with MAAX Inc. on June 4, 2004. Upon consummation of the
amalgamation, MAAX Corporation acquired MAAX Inc. and its direct and indirect
subsidiaries. The amalgamation occurred immediately prior to the private
placement offering of the US$150 million 9.75% Senior Subordinated Notes due
2012 that is being registered with the Commission in the Registration Statement.
To comply with the requirement to provide financial statements of an acquired
business (S-X 210.3-05) in a registration statement, the consolidated financial
statements of MAAX Inc. were included in the Registration Statement.
FOR ANNUAL FINANCIAL STATEMENTS
The consolidated financial statements of MAAX Inc. were also required under
application of S-X 210.3-10(g) as:
i. the financial statements of the acquiree, MAAX Inc., have not
been included in the audited consolidated results of MAAX
Corporation for at least nine months; and
ii. the purchase price of MAAX Inc. (US$422 million) exceeded the
principal amount of the debt being registered (US$150 million)
by more than 20%.
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NEW YORK CHICAGO LOS ANGELES WASHINGTON, D.C. WEST PALM BEACH FRANKFURT HONG KONG LONDON SHANGHAI
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[KAYE SCHOLER LLP LETTERHEAD]
3 December 10, 2004
Based on the instructions and examples provided in SEC Final Release No. 33-7878
(the "SEC Release"), MAAX Corporation performed the "20% test" based on the
consolidated financial statements of all the guarantors acquired. Even though
the organizational chart shows many entities as guarantors, these companies were
all related (as all guarantors, other than Beauceland Corporation, were
subsidiaries of MAAX Inc.) and thus MAAX Corporation performed the test based on
the acquisition cost of MAAX Inc.
Furthermore, example 5 of Appendix B of the SEC Release indicates that for two
related acquired entities under common control "combined financial statements
may be appropriate".
In our situation, the financial statements of MAAX Inc. are already consolidated
and provide better information than combined financial statements.
However, some subsidiaries of MAAX Corporation (the European subsidiaries and
Sani-Nova B.V.) are non-guarantors. We understand that the Staff has previously
interpreted a similar situation and that the exemption under S-X 210.3-10(f)
would apply as if MAAX Inc. were the issuer and the guarantees were provided by
some but not all of its subsidiaries. The non-guarantors do not meet the test to
be considered minor as defined under S-X 210.3-10(h)(6).
This results in the inclusion of condensed consolidating financial information,
by way of a footnote on page F-47 in the MAAX Inc. consolidated financial
statements, which presents the following information:
- parent company (MAAX Inc.)
- subsidiary guarantors on a combined basis (all of the former MAAX
Inc. subsidiaries except the European subsidiaries and Sani-Nova
B.V.)
- the non-guarantors (the European subsidiaries and Sani-Nova B.V.)
- consolidated adjustments
- total consolidated amount for MAAX Inc.
The condensed consolidating financial information is provided for the two fiscal
years ended February 29, 2004 and February 28, 2003 as MAAX Corporation was only
required to provide two (2) years of U.S. GAAP financial statements in the
initial filing of its Registration Statement.
FOR INTERIM FINANCIAL STATEMENTS
In updating the Registration Statement, MAAX Corporation included the six-month
interim consolidated financial statements for the period ended August 31, 2004
of its parent, Beauceland Corporation, which is also a guarantor and a
registrant. The Beauceland Corporation interim consolidated income statement and
cash flows include the results of operations of the acquired entity MAAX Inc.
since the date the acquisition was completed on June 4, 2004. The consolidated
balance sheet at August 31, 2004 reflects the acquisition of MAAX Inc.
The exception to the requirements of S-X 210.3-10 applicable to the interim
consolidated financial statements of Beauceland Corporation is that of section
(d) - Subsidiary issuer of securities guaranteed by its parent company and one
or more other subsidiaries of that parent company.
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NEW YORK CHICAGO LOS ANGELES WASHINGTON, D.C. WEST PALM BEACH FRANKFURT HONG KONG LONDON SHANGHAI
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[KAYE SCHOLER LLP LETTERHEAD]
4 December 10, 2004
The following condensed consolidating financial information is presented in the
footnote on page F-14 to the Beauceland Corporation financial statements:
- parent company (Beauceland Corporation)
- the issuer (MAAX Corporation)
- subsidiary guarantors on a combined basis (all subsidiaries except
the European subsidiaries and Sani-Nova B.V.)
- the non-guarantors (the European subsidiaries and Sani-Nova B.V.)
- consolidated adjustments
- total consolidated amount for Beauceland Corporation.
Because the consolidated interim financial statements of Beauceland Corporation
for the six-month period ended August 31, 2004 include, for comparison purposes,
financial statements of the predecessor MAAX Inc., the following columns are
presented in the consolidated financial statements:
Balance sheet August 31, 2004 - Beauceland Corporation
February 28, 2004 - MAAX Inc.
(indicating that it is the predecessor)
Income and cash flows statement Beauceland Corporation which had no prior operations
includes the results of operations of MAAX Inc. since
completion of the acquisition on June 4, 2004.
MAAX Inc. - as predecessor for the
periods from March 1, 2004 to May 31, 2004
and from June 1 to June 3, 2004 and comparative
six months from March 1, 2003 to August 31,
2003 (indicating that it is the predecessor).
The interim consolidated financial statements include the presentation of
condensed consolidating financial information in the footnote for either
Beauceland Corporation or MAAX Inc., as appropriate.
DETERMINATION OF "PARENT"
The Registration Statement of MAAX Corporation includes Beauceland Corporation
as an Additional Registrant. We understand that as a result, Beauceland
Corporation will be an Exchange Act reporting company for the fiscal year in
which the Registration Statement is declared effective. Beauceland Corporation
has no assets or operations, other than its investment in MAAX Corporation.
Based on the SEC Release and the definition in S-X 210.3-10, it appears that
Beauceland Corporation meets the definition of "parent". Consequently, the
consolidated financial statements of the parent Beauceland Corporation are
provided instead of the consolidated financial statements of MAAX Corporation.
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NEW YORK CHICAGO LOS ANGELES WASHINGTON, D.C. WEST PALM BEACH FRANKFURT HONG KONG LONDON SHANGHAI
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[KAYE SCHOLER LLP LETTERHEAD]
5 December 10, 2004
Thank you for your assistance regarding this matter. Please contact
Stephen C. Koval at (212) 836-8019 or the undersigned at (212) 836-7799 with any
further comments or questions you may have.
Sincerely,
/s/ Hillary F. Jassey
Hillary F. Jassey, Esq.
cc: Tracey Houser
Jeanne Baker
Andre Heroux
Denis Aubin
Pierre Leblanc
Stephen C. Koval, Esq.
Marlo Salz, Esq.
Christopher Britton, Esq.
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NEW YORK CHICAGO LOS ANGELES WASHINGTON, D.C. WEST PALM BEACH FRANKFURT HONG KONG LONDON SHANGHAI
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