Jody M. Walker
Attorney At Law
7841 South Garfield Way
Tel: 303-850-7637 Centennial, CO 80122 Fax: 303-482-2731
September 16, 2008
Indira Lall
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549-3561
RE: Tri-Mark MFG, Inc.
Amendment 1 to Registration Statement on Form S-1
Filed May 5, 2008
File No. 333-149546
Dear Ms. Lall:
Pursuant to your comment letter dated June 3, 2008, please note the
following responses.
General
1. We note your revisions in response to comment two in our letter
dated April 2, 2008. You should present the pro forma information in
columnar form on the face of the balance sheet as opposed to the notes.
Please note that to the extent that tax expense or benefit, net of a
valuation allowance, would change assuming the Subchapter S election
was terminated at an earlier date, you are required to present a pro
forma tax provision for at least the most recent fiscal year and
interim period. Refer to Rule 8-05 of Regulation S-X and SAB Topic
4:B.
The pro forma information has been presented in columnar form on
the face of the balance sheet.
Prospectus Summary
2. We note your response to comment five in our letter dated April 2,
2008. Please indicate in the Prospectus Summary that Mr. Sytner
currently owns and will continue to own sufficient shares to control
the operations of the company.
The following discussion has been added to the Prospectus
Summary.
Common Stock Control
- -------------------- Barry Sytner, an officer and
director, currently owns and will
continue to own sufficient common
shares to control the operations of
Tri-Mark.
3. We note your revisions in response to comment six in our letter
dated April 2, 2008. Please revise your disclosure to clarify the
meaning of the phrase "a major retail customer, Zale Corporation." If
2
you believe the loss of Zale Corporation as a customer would have a
material adverse effect on your business, please add a risk factor to
inform investors of your dependence on this customer.
The phrase has been revised for clarity to delete the term
"major". A risk factor has been added as follows:
7. The loss of our one retail customer would have a material adverse
effect on our business.
Two of our new items have been selected for distribution by Zale
Corporation, one of the largest jewelers in the United States. Our
products were being sold in 140 of their stores on a test basis. There
can be no certainty that the orders will result in a material impact on
our financial condition. At this point, because of a downturn in retail
sales, Zale has postponed the test market of our products. We currently
cannot predict when the test market will be resumed, if ever. The
cancellation of the test marketing would have a material adverse effect of
our business.
Use of Proceeds.
4. We note your revisions in response to comment 36 in our letter
dated April 2, 2008. Please also delete the reference to the exercise
of the warrants in this section.
The reference has been deleted.
Business Operations.
5. We note your revisions in response to comment 11 in our letter
dated April 2, 2008. Please identify the customers that represent over
10% of your revenues, if any. See Item 101(c)(vii) of Regulation S-K.
If you depend on one or a few customers, please include a risk factor.
At this time, no one account represents over 10% of our revenue.
6. When you describe your product pricing, you state that you maintain
"appropriate forward contracts for the purchase of silver" thereby
protecting you "against fluctuations in the price of silver between the
order date and the date of sale." Please discuss your forward
contracts in your MD&A and describe all significant terms of these
instruments. See Item 305 of Regulation S-K.
The disclosure has been revised for accuracy as follows:
We currently fix the metal price on the date of shipping. As
orders increase, we intend to lessen the risk of market
fluctuations in the price of silver by either using the price we
pay for the silver to determine the prices we charge to our
customers for finished products incorporating the silver or by
maintaining appropriate forward contracts for the purchase of
silver which protects us against fluctuations in the price of
silver between the order date and the date of sale.
7. When you describe your competition, you state that the "ability to
provide specialized services" is a particularly important competitive
fact in your sale to certain large retailers. Please discuss the types
of specialized services you believe large retailers require and whether
you currently provide these services. If you do not currently provide
these specialized services, please discuss what steps you have taken to
provide these services in the future so that an investor can evaluate
your ability to compete for sales to certain large retailers.
The following disclosure has been added:
The diverse distribution channels in which we market our products
frequently involve different competitive factors. The ability to
provide specialized services is a particularly important
competitive factor in our sales to certain large retailers such
as mass merchandisers, discount stores, and warehouse clubs. As
a result, we offer the retailer the opportunity to give them a 3-
D cad drawing of the earrings with the retail price before the
item is made. Therefore, if the retailer wants to change the
price because it is too high, we can make the item smaller to
adjust the retail price.
8. We note your revisions in response to comment 17 in our letter
dated April 2, 2008. You state that your ability to continue as a
going concern is dependent on your ability to meet your financing
arrangement. Please describe all significant terms of your financing
arrangement. See Item 303 of Regulation S-K.
The disclosure has been revised for clarity as follows:
We are actively increasing marketing efforts to increase
revenues. The ability of Tri-Mark to continue as a going concern
is dependent on our ability to raise at least $125,000 through
this offering and the success of our future operations.
9. We note your revisions in response to comments 22 and 27 in our
letter dated April 2, 2008. Please discuss the business activities you
will undertake based upon raising funds at the various levels outlined
in the use of proceeds. Descriptions of any expansion, manufacturing
and marketing plans should be accompanied by a discussion of how you
will achieve your plans in enough detail so that investors can evaluate
your business plan. For example, please indicate the costs associated
with undertaking various business activities in the future, noting the
ones that will receive priority over others in the vent funding is less
than you expect. Please include in this discussion the anticipated
timing for the expenditures.
The disclosure has been revised to make it clear that marketing
our products at shows, etc. will be the only activity undertaken
if less than $125,000 is raised.
In the event we are not successful in selling all of the
securities to raise at least $125,000, we would utilize any
available funds raised, after funding our working capital needs,
to increase our marketing efforts.
Also, the following disclosure has been added under Business
Strategy.
For the next six months, we shall only concentrate on the
marketing of our products at jewelry shows. Other business
activities will only be pursued if we raise at least $125,000
and/or when we begin to generate a positive cash flow, if ever.
The cost of expanding our product line is on a piecemeal basis
and is yet to be determined.
Management's Discussion and Analysis of Financial Condition and Results
of Operations.
10. We note your revisions in response to comment 26 in our letter
dated April 2, 2008. Please provide additional information about the
quality of your earnings and cash flows so that investors can ascertain
the likelihood of the extent past performance is indicative of future
performance. Please discuss whether you expect your financial position
to remain at its current level or increase or decrease, including a
discussion of the impact of any changes to your earnings.
The following disclosure has been added.
We have not received any significant revenues to date and our test market
with Zale has been postponed indefinitely. As a result of our limited
working capital, we have had to limit the marketing of our products and
attendance at shows. Until we are able to raise additional funds to
pursue our business plan and generate material revenues, our activities
will be restricted.
11. We note your revisions in response to comments 11 and 26 in our
letter dated April 2, 2008. You state that your products currently are
being sold in 140 Zale Corporation stores on a test basis. Please
expand this disclosure to describe the significant terms of this
arrangement.
There are no significant terms. The disclosure has been revised
to discuss the fact that the program has been put on hold
indefinitely.
12. Please clarify why you believe you will earn a significant portion
of earnings in the "third fiscal quarter holiday selling season." We
note that your disclosure regarding the seasonal nature of your
business in the business operations section of the prospectus indicates
that retail sales of jewelry are generally weighted to the fourth
quarter. If your wholesale jewelry revenues are weighted in the third
quarter and your retail jewelry revenues are weighted in the fourth
quarter, please state what portion of your sales are wholesale and what
portion are retail to better inform investors of the seasonal nature of
your revenues.
The disclosure has been clarified to show that Tri-Mark is 100%
wholesale.
Directors, Executive Officers and Control Persons
13. In the table in this section of the prospectus you indicate that
Mr. Brennan is the vice president of operations. You describe Mr.
Brennan's business experience below the table and indicate that he is
the vice president of sales and that since 2006 he has served as
president. If Mr. Brennan serves in all these capacities, please
clarify throughout the prospectus. See Item 401(b) of Regulation S-K.
The disclosure has been reconciled for accuracy.
14. We note your revisions in response to comment 31 in our letter
dated April 2, 2008. Please revise your disclosure so that you have
described briefly the business experience during the past five years of
each of your officers and directors as required by Item 401(e) of
Regulation S-K. For example, in the description of Mr. Brennan's
business background, please state the dates of his service as a
principal of E.V. Brennan & Associates if this service was during the
past five years.
The disclosure has been revised to include the dates of his
service.
Certain Relationships and Related Transactions
15. We note your revisions in response to comment 32 in our letter
dated April 2, 2008. If there is a written agreement(s) with Mr.
Sytner evidencing the loans of $1,450 in 2006 and $129,521 in 2007,
please file this agreement(s) as an exhibit to the registration
statement. See Item 601(b)(10(ii) of Regulation S-K.
There is no written agreement(s) with Mr. Sytner evidencing the
loans. This fact has been disclosed.
Financial Statements
16. We reviewed the revisions to your disclosure in response to
comment 37 in our letter dated April 2, 2008. Please revise to include
all disclosures required by paragraphs 11a-d of SFAS 7.
The financial statements have been revised to include all
disclosures required by paragraphs 11 a-d of SFAS 7.
17. We reviewed the revisions to your disclosure in response to
comment 38 in our letter dated April 2, 2008. As previously requested,
please revise to give retroactive effect of the change in capital
structure resulting from the stock split that occurred on February 15,
2008 in the balance sheet, net loss per share calculation and your
statement of stockholders' deficit. Refer to paragraph 54 of SFAS 128
and SAB Topic 4:C.
The financial statements have been revised to give retroactive
effect of the change in capital structure resulting from the
stock split.
18. We reviewed your response to comment 43 in our letter dated April
2, 2008. Please note the impending requirement to include unaudited
financial statements for the first quarter of fiscal 2008 and the
comparable period of the preceding year. Refer to Rule 8-08 of
Regulation S-X.
The financial statements have been updated as required.
Undertakings
19. We note your revisions in response to comment 44 in our letter
dated April 2, 2008. You omitted certain language required by Item
512(a)(5)(B). Please revise this undertaking to fix the typographical
error that we noted.
The undertaking has been revised to fix the typographical error.
Very truly yours,
/s/Jody M. Walker
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Jody M. Walker