February 18, 2005
VIA EDGAR
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CONFIDENTIAL
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U. S. Securities and Exchange Commission
450 Fifth St., N.W.
Judiciary Plaza
Washington, DC 20549
Attention: Christine Davis
RE: LANTRONIX, INC.
FORM 8-K FILED JANUARY 21, 2005
SEC FILE NO. 001-16027
Ladies and Gentlemen:
On behalf of Lantronix, Inc. (the "Company" or "Lantronix") and in
response to the comments of the Staff (the "Staff") of the Securities and
Exchange Commission (the "SEC") set forth in the SEC's letter dated February 8,
2005, in connection with the Company's Form 8-K, filed with the SEC on January
21, 2005, set forth below are the Company's responses to the comments regarding
the Form 8-K. For your convenience the Staff's comments are reproduced prior to
each response.
1. WE NOTE IN YOUR FORM 8-K THAT ERNST & YOUNG ADVISED THE AUDIT
COMMITTEE OF SEVERAL REPORTABLE CONDITIONS. SUPPLEMENTALLY PROVIDE US WITH ANY
WRITTEN CORRESPONDENCE BETWEEN MANAGEMENT, THE AUDIT COMMITTEE, ERNST & YOUNG
AND ANY OTHERS RELATED TO THESE CONDITIONS.
The requested materials have been provided to the Staff under separate
cover.
2. TELL US WHAT PERIOD THE REPORTABLE CONDITIONS RELATE TO AND WHY THEY
WERE NOT DISCLOSED IN ITEM 9A. OF YOUR AMENDED FORM 10-K OR IN ITEM 4 OF YOUR
FIRST QUARTER 10-Q. TELL US HOW, IN LIGHT OF THE REPORTABLE CONDITIONS, YOU WERE
ABLE TO CONCLUDE THAT YOUR DISCLOSURE CONTROLS AND PROCEDURES WERE EFFECTIVE.
ADDITIONALLY TELL US IN DETAIL THE STEPS YOU HAVE TAKEN (OR PLAN TO TAKE) AND
PROCEDURES YOU IMPLEMENTED (OR PLAN TO IMPLEMENT) TO CORRECT THESE REPORTABLE
CONDITIONS.
Overview
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The reportable conditions were not required to be disclosed in Item 9A
of the Company's amended Form 10-K or Item 4 in its subsequent Form 10-Q because
the conditions were not sufficiently material to cause management to conclude
the Company's controls were inadequate or to otherwise mandate disclosure.
Moreover, remediation of the conditions did not require material changes to the
Company's disclosure controls and procedures. The Company further notes that the
final draft of the management letter that identified the issues as reportable
conditions was received on January 19, 2005, and these conditions were disclosed
in the Company's January 21 Form 8-K. A more detailed analysis, including a
description of the corrective actions taken by the Company, is provided below.
Summary
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On January 19, 2005, Lantronix's former auditors, Ernst & Young LLP
("E&Y"), delivered a final copy of the 2004 Management Letter (the "Management
Letter") to the Company. Two reportable conditions were identified in the
Management Letter. The first condition related to the Company's financial
statement close and external reporting processes and the second condition
related to the reconciliation of accounts concerning the Company's contract
manufacturers. The Management Letter was prepared in connection with the audit
of the Company's Form 10-K for the year ended June 30, 2004. Neither reportable
condition was classified as a material weakness and, in the opinion of the
Company's Chief Executive Officer and Chief Financial Officer, neither condition
caused the Company's controls and procedures to be ineffective.
Background
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FINANCIAL STATEMENT CLOSE AND EXTERNAL REPORTING PROCESSES
On September 28, 2004, the Company filed its Form 10-K for the year
ended June 30, 2004. Shortly after filing the Form 10-K, the Company determined
that the filed EDGARized version did not include the final edits made by the
Company's finance team to the "master" document. After recognizing the error,
the Company and E&Y re-reviewed in detail the Form 10-K and identified several
additional errors, which were corrected in amendments to the Form 10-K.
The Company determined that the errors in the initial Form 10-K were
primarily caused by two factors. First, at the time of the Form 10-K filing, the
Company's in-house legal department performed the EDGARization process. This
process lacked the multiple levels of checks typically present when third-party
providers are used for EDGARization services. As a result, the master document
(in Microsoft Word format) included a final set of revisions, some of which were
not included in the final EDGARized document.
Second, in the quarter ending March 31, 2004, the Company sold its
Premise Division, and determined that it should be reported as a discontinued
operation for historical periods. In the 2004 Form 10-K, the Company was
required to reclassify prior periods to reflect the discontinued business. This
involved numerous changes to prior period financial statements, footnotes and
narrative which increased the opportunity for error. The Company's review
process was generally focused on the current period, and did not detect certain
reclassification errors to the prior periods arising from discontinued
operations.
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RECONCILIATION OF ACCOUNTS RELATED TO CONTRACT MANUFACTURERS
During the quarter ended June 30, 2004, it was determined that an
unrecorded audit adjustment was required to reduce inventories and increase
accounts receivables. The Company determined that this resulted from the timing
of the Company's receipt of purchase orders from its contract manufacturer
("CM") for raw goods the Company supplied to them. The Company determined that
its process of providing raw goods to its CM, which included issuing monthly
invoices and receiving quarterly inventory statements, could be refined by
implementing more timely reporting between it and the CM, as well as making
related changes to its handling of the raw goods, as detailed below.
Evaluation of the Severity of the Problems
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Prior to filing any periodic report, including the filing of the Form
10-K (and the amendments thereto) and the filing of the first quarter Form 10-Q,
the Company's executive team reviews the disclosure controls and procedures in
place in order to assess whether the Company has disclosure controls and
procedures that ensure compliance with the Company's disclosure obligations in a
timely manner. In the case of the Company's Form 10-K (including the amendments
thereto) and Form 10-Q, the executive team reviewed the existing controls and
procedures, including whether improvements could be made. It concluded that the
Company's controls and procedures were effective, despite the existence of the
problems discussed above.
Each of the issues discussed above was unlikely to cause any material
misstatement and was unlikely to recur in the future. First, the Company's
process relating to EDGARization of its periodic reports involved all parties
working from a master document stored in Microsoft Word. Shortly before the
planned filing, and at a time at which all material changes would be included in
the master, the Word document would be EDGARized by the Company's internal legal
department. Once EDGARized, any additional changes would manually be entered
into the EDGARized version of the document. The Company noted that the errors in
the initial Form 10-K filing were not material and that only minor process
changes were required to be implemented to confirm that all intended changes
would be included in the final draft. The Company further concluded that even
without such process changes the risks of a similar error in the future were not
substantial.
Second, the additional changes made to certain historical data in the
Form 10-K/A related to the reclassifications to reflect Premise as a
discontinued business. In determining whether the Company's internal controls
and procedures were effective, the Company's management noted that the errors
were not material individually or in the aggregate and related primarily to
prior year reclassifications. The changes required to avoid similar issues
arising in the future were minor, and included an expanded review of the
historical numbers.
Finally, the issues relating to the reconciliation of accounts relating
to the contract manufacturer were determined by the Company's management not to
reflect a control failure of a magnitude that would render the Company's control
process and procedures ineffective. Rather, the issue, which ultimately caused a
$150,000 unrecorded audit reclassification adjustment to balance sheet accounts,
was unlikely to result in any audit adjustment except in unusual circumstances
similar to those present in June 30, 2004. Moreover, the process changes
required to reduce the risk of the issue reoccurring were not difficult to
implement, nor were the changes of a nature likely to materially affect the
Company's internal controls, and, as detailed below, were substantially
implemented in August 2004, prior to the filing of the Form 10-K.
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History of the Management Letter Comments
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Although the Company was aware of the underlying issues described
above, it did not learn that E&Y was considering characterizing these issues as
reportable conditions until October 13, 2004, when it received a revision to the
draft management letter previously provided on September 21, 2004. Neither the
September draft of the management letter nor the formal Audit Results and
Communications report, also sent by E&Y to the Company's Audit Committee on
September 21, identified any reportable conditions. When transmitting the
October 13 draft that first mentioned reportable conditions, E&Y expressly noted
that no final decision had been made by them whether to classify the above
mentioned issues as reportable conditions.
After receipt of the October 13 draft, the Company's Chief Financial
Officer discussed with the independent review partner at E&Y the draft letter
and questioned whether the identified issues were appropriately categorized as
reportable conditions. Subsequent to that conversation, in early November, E&Y
provided the Company's Audit Committee with a summary of the close of the
quarter ended December 31, 2004, without mention of the existence of any
reportable conditions. The Company's executives believe that E&Y's decision to
not discuss the issues described above during these meetings correctly reflected
the relative lack of severity of the issues; although corrective action was
merited, the issues did not represent threats to the Company's fundamental
disclosure controls and procedures.
On January 17, 2005, the Company determined to change auditors and
notified E&Y. On January 19, 2005, E&Y issued the final management letter. On
January 21, 2005, the Company filed its Form 8-K regarding the change of
auditors. Given the disclosure regarding the change in auditors, the Company and
E&Y believed it was appropriate and prudent to also include in the Form 8-K a
discussion of the management letter and the reportable conditions identified in
the letter at the time of the announcement regarding the change in auditors.
Corrective Actions
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FINANCIAL STATEMENT CLOSE AND EXTERNAL REPORTING PROCESSES
In response to issues relating to the Company's financial statement
close and external reporting process issues, the Company has made the following
changes:
The Company has hired a third-party provider, PublicEase, to perform
EDGARization services. The Company believes the additional review processes
involved in third-party EDGARization will reduce the risk that its periodic
report will not correctly reflect all requested changes. The change was
effective in January 2005 and PublicEase was used for filing the second quarter
Form 10-Q and prior Form 8-Ks. The Company intends to continue to use PublicEase
or a similar third-party EDGARization provider on an on-going basis.
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Prior to filing the first quarter Form 10-Q, the Company added an
additional level of management review to confirm that all financial information
in its periodic reports accurately conforms to the supporting documentation.
Prior to filing the first quarter Form 10-Q, the Company segregated
responsibilities for cross-checking changes to the internal master document and
EDGARized documents for all of its periodic reports.
The Company has contracted with a proofreader to review its periodic
filings to reduce the risk of typographical errors. The proofreader was used in
connection with the Company's first and second quarter Form 10-Q filings, and
the Company intends to continue the use of a proofreader for future periodic
reports.
RECONCILIATION OF ACCOUNTS RELATED TO CONTRACT MANUFACTURERS
The Company has revised its method of invoicing its CM for raw goods.
Previously, the Company shipped material directly to its CM for immediate use,
as well as shipped inventory to Lantronix consigned inventory location at the
CM's site for future use. In the first situation, the Company invoiced the CM
upon shipment, and the product transferred ownership from the Company to the CM
upon shipment. This would be reflected on the Company's balance sheet in
Accounts Receivable. In the second situation, inventory was transferred to the
CM site, but remained in the Company's inventory in a consigned location. This
inventory would not be invoiced and would be reported on the Company's balance
sheet in inventory. When the CM uses the inventory, an order would be issued to
the Company and the CM would be invoiced on a monthly basis. Upon invoicing, the
value of the product would be transferred from inventory to accounts receivable.
Under the Company's new process, it only ships raw goods into the
consigned inventory location at the CM facility. This simplifies the
reconciliation process by having one consistent process for transferring
inventory. The Company now invoices the CMs on a weekly basis rather than
monthly. Lantronix also now requires monthly inventory reports from its CM.
Previously these reports were provided on a quarterly basis. By increasing the
frequency of these activities, the Company is able to reconcile on a more timely
basis. These changes were substantially complete prior to the Company filing its
first quarter Form 10-Q.
3. WE ALSO NOTE THAT IN YOUR FORM 10-K/A AND YOUR FORM 10-Q FOR THE
QUARTER ENDED SEPTEMBER 30, 2004, YOU STATE "OUR DISCLOSURE CONTROLS AND
PROCEDURES ARE SUFFICIENTLY EFFECTIVE." YOU SHOULD REVISE THIS DISCLOSURE TO
CLEARLY STATE THAT YOUR DISCLOSURE CONTROLS AND PROCEDURES EITHER WERE EFFECTIVE
OR WERE INEFFECTIVE AS OF THE DATE OF THIS REPORT. ANY QUALIFICATIONS, SUCH AS
"SUFFICIENTLY EFFECTIVE," ON THIS CONCLUSION DO NOT CONFORM TO THE REQUIREMENTS
OF ITEM 307 OF REGULATION S-K. WHEN REVISING YOUR DISCLOSURE PLEASE NOTE THAT
MANAGEMENT SHOULD NOT STATE THAT THE CONTROLS ARE EFFECTIVE EXCEPT TO THE EXTENT
THAT CERTAIN PROBLEMS HAVE BEEN IDENTIFIED. RATHER, MANAGEMENT MUST TAKE THOSE
PROBLEMS INTO ACCOUNT WHEN CONCLUDING WHETHER THE CONTROLS AND PROCEDURES ARE
EFFECTIVE OR INEFFECTIVE. IF THE CONTROLS AND PROCEDURES ARE INEFFECTIVE,
MANAGEMENT SHOULD STATE THE SPECIFIC REASONS WHY THEY ARE INEFFECTIVE. REFER TO
QUESTION 5 OF THE FAQ ON RELEASE NO, 34-47986 "MANAGEMENT'S REPORT ON INTERNAL
CONTROL OVER FINANCIAL REPORTING AND DISCLOSURE IN EXCHANGE ACT PERIODIC
REPORTS."
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The Company notes your comment and has revised its disclosure in its
quarterly report on Form 10-Q for the period ended December 31, 2004 to read as
follows:
We carried out an evaluation, under the supervision and with the
participation of our management, including our Chief Executive Officer
and our Chief Financial Officer, of the effectiveness of the design and
operation of our disclosure controls and procedures (as defined in
Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934
(the "Exchange Act")) as of the end of our second fiscal quarter. Based
upon that evaluation, our Chief Executive Officer and our Chief
Financial Officer concluded that our disclosure controls and procedures
are effective in ensuring that information required to be disclosed by
us in reports that we file or submit under the Exchange Act is
recorded, processed, summarized and reported within the time periods
specified in Securities and Exchange Commission's rules and forms.
The Company intends to use substantially similar language in any future
report in which the Company's Chief Executive Officer and Chief Financial
Officer conclude the Company's internal controls are effective.
4. WE NOTE THAT YOU HAVE DISCLOSED THAT THERE WERE NO "REPORTABLE
EVENTS" DURING THE COMPANY'S MOST RECENT TWO FISCAL YEARS AND THROUGH JANUARY
17, 2005. TELL US WHY YOU BELIEVE THE REPORTABLE CONDITIONS YOU HAVE DISCLOSED
ARE NOT CONSIDERED "REPORTABLE EVENTS" AS DEFINED IN ITEM 304(A)(1)(V) OF
REGULATION S-K.
Item 304(a)(1)(v) of Regulation S-K provides that a "reportable event"
exists when certain specified conditions have occurred. As detailed below, the
Company's reportable conditions do not constitute "reportable events" as defined
in Item 304(a)(1)(v) and no reportable event has otherwise occurred.
Item 304(a)(1)(v)(A) requires disclosure if a company's accountants
have advised that the internal controls necessary for the registrant to develop
reliable financial statements do not exist. At no time did E&Y advise the
Company of such a conclusion. Although E&Y identified certain reportable
conditions as discussed above, none of these were identified as material
weaknesses. A material weakness is a reportable condition in which the design or
operation of one or more of the internal control components does not reduce to a
relatively low level the risk that misstatements caused by errors or fraud in
amounts that would be material in relation to the consolidated financial
statements being audited may occur and not be detected within a timely period by
employees in the normal course of performing their assigned functions. Moreover,
in the course of informal conversations and formal presentations to the
Company's Audit Committee, at no time did E&Y advise the Company that it lacked
internal controls necessary for the Company to develop reliable financial
statements.
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Item 304(a)(1)(v)(B) requires disclosure if a registrant's accountants
have advised that the accountants are no longer able to rely on management
representations or are unwilling to be associated with the financial statements
prepared by management. E&Y was replaced at the Company's election and at no
time did it express unwillingness to continue its representation of the Company
or advise the Company that it was unable to rely upon management
representations.
Item 304(a)(1)(v)(C) requires disclosure if a company's accountants
advise of the need to significantly expand the audit and it was unable to do so
due to dismissal or other reason. E&Y at no time advised of the need to expand
the scope of its audit. Disclosure is also required if a registrant's
accountants advise that information has come to its attention that, upon further
investigation, may materially impact current or former audit statements or
underlying financials or cause it to be unwilling to rely on management's
representations or continue to be associated with the registrant's financial
statements and that due to dismissal or other reason the accountants were unable
to conduct such investigation. Again E&Y did not advise the Company of any such
event.
Item 304(a)(1)(v)(D) requires disclosure if a company's accountants
advise it that information has come to the accountants' attention that the
accountants conclude materially impacts the fairness or reliability of either a
previously issued audit report or underlying financials or current financials
and the issue has not been resolved to the accountant's satisfaction prior to
their dismissal. Although, as discussed above, E&Y from time to time advised the
company of suggested improvements to the Company's controls and procedures, E&Y
did not advise the Company that it was aware of any information that, in E&Y's
opinion, would materially impact the fairness or reliability of the Company's
current or prior financial statements.
5. AMEND ITEM 4(b) OF FORM 8-K TO COVER THE INTERIM PERIOD FROM THE
DATE OF THE LAST AUDITED FINANCIAL STATEMENTS TO JANUARY 17, 2005, THE DATE OF
THE ENGAGEMENT. SEE ITEM 304(a)(2).
The Company will amend its Form 8-K to cover the interim period from
June 30, 2004 to January 17, 2005.
Please do not hesitate to call Jack Sheridan at (650) 320-4631 or the
undersigned at (650) 565-3599 with any questions or comments.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ John B. Turner
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John B. Turner
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