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Mail Stop 03-05
December 10, 2004
Via U.S. Mail
Robert E. Sigler
Chief Financial Officer
Universal Truckload Services, Inc.
11355 Stephens Road
Warren, MI 48089
Re: Universal Truckload Services, Inc.
Registration Statement on Form S-1, filed on November 15,
2004
File No. 333-120510
Dear Mr. Sigler,
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
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
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 and welcome any questions you may have
about our comments or on any other aspect of our review. Feel
free
to call us at the telephone numbers listed at the end of this
letter.
General
1. In an appropriately captioned section, please expand your
disclosure to describe the business purpose of the proposed spin-
off.
2. Throughout the document, please clarify whether the common
stock
that will be distributed from CenTra to Mr. Moroun and the trust
will
be restricted securities within the meaning of Rule 144.
3. Please provide us with a detailed supplemental analysis in
order
to confirm that you are not required to register the spin-off of
CenTra`s shares, under the guidance set forth in Staff Legal
Bulletin
No. 4 (September 16, 1997), available in the Division of
Corporation
Finance section of our website, www.sec.gov.
4. Please update your financial statements and consent in
accordance
with Rule 3-12 of Regulation S-X in your next amendment.
Outside Front Cover Page of Prospectus
5. Please confirm that you will include an estimate of the range
of
the maximum offering price and the maximum number of shares to be
sold in any preliminary prospectus you circulate. See Instruction
1.
(A) to Item 501(b)(3).
Inside Front Cover Page of Prospectus
6. Provide us with the artwork you intend to include as soon as
possible so that we may have time to review it. Also, please note
that the inside front cover artwork should be clear illustrations
of
your product or business with concise language describing the
illustrations.
Prospectus Summary, page 1
Non-Asset Based Strategy, page 1
7. Supplementally provide us with the basis for your belief that
your
"low fixed costs and capital expenditure requirements produce
higher
returns on assets than many of our asset-based competitors."
Growth Strategy, page 2
8. Please define "intermodal support services."
Corporate Information, page 3
9. It appears that the website address you disclose in the filing
(www.goutsi.com) is not working. Please advise.
10. Please consider discussing the spin-off transaction under a
separately captioned section within the prospectus summary.
11. We note your disclosure that CenTra is owned by Matthew T.
Moroun
and a trust controlled by Manuel J. Moroun; however, elsewhere in
the
document, you disclose that CenTra is owned by Matthew T. Moroun,
Manuel Moroun and members of their family. These statements
appear
to be inconsistent. Please clarify and revise as necessary.
12. Please consider including a chart, or other explanatory tool,
to
depict your corporate structure, before and after the IPO, and
with
reference to the parent company, so that investors can better
understand the company in which they are making an investment.
Summary Historical and Pro Forma Financial and Operating Data,
page 5
Balance Sheet Data, page 7
13. Please revise your presentation of Balance Sheet Data within
your
Summary Historical and Pro Forma Financial and Operating Data to
be
in a position of greater prominence than your Other Financial Data
and unaudited Operating Data. Refer to the presentation
requirements
set forth in FR 65. This comment applies to your Selected
Historical
Financial and Operating Data as well.
EBITDA, page 7
14. Please revise your footnote (3) on the presentation of EBITDA
to
include the primary purpose for which management uses this non-
GAAP
measure. If management uses EBITDA primarily as a liquidity
measure,
please remove the reconciliation to Net Income and provide a
reconciliation to Operating Cash Flows as this would be the most
comparable measure. Refer to the guidance in FR-65. Your
disclosure
under Selected Historical Financial and Operating Data on page 33
should be similarly revised.
Risk Factors, page 9
We heavily rely upon our agents to develop customer
relationships...,
page 9
15. Please expand your disclosure to discuss the risks associated
with relying on verbal agreements as part of your operations, if
material. For example: the risk of error in recording financial
results; misunderstanding of contract obligations or rights; or in
the case of dispute, the inability to verify contract terms.
Our business may be harmed by terrorist attacks..., page 13
16. Please be more specific, if feasible, in describing how your
business has been affected by increased security following the
September 11, 2001 terrorist attacks. For example, we note from
news
reports that security measures at the Ambassador Bridge between
Michigan and the Ontario province of Canada increased after the
terrorist attacks, and since you do business in those regions,
consider disclosing this information, or other information, as to
what costs you or your owner-operators have been forced to bear
relating to increased security measures following the September
11th
terrorist attacks.
Dividend Policy, page 21
17. Supplementally tell us, with a view towards disclosure, why
you
will declare a cash dividend of $47.5 million to CenTra (which is
much higher than any previous dividend you have declared since
2002),
and for what purpose the four previous dividends were declared in
2002 and 2004.
Dilution, page 23
18. Refer to your historical balance sheet on page F-20. Your net
book value is stated at approximately $36.3 million as of July 3,
2004. We would expect your net tangible book value to be lower
than
your net book value because you have intangible assets recorded as
of
that date. Please revise or advise.
Unaudited Pro Forma Financial Information, page 24
19. We note your disclosure that the purchase price allocation for
AFA has not yet been finalized. Please supplementally explain to
us
the contingencies that exist barring completion of such allocation
within 3 months of the acquisition date.
Unaudited Pro Forma Combined Statement of Income, page 25
20. Please revise your footnoted explanations to incorporate the
following comments. Explanations on page 27 should be similarly
revised.
a. Footnote (a) Please tell us whether the new consulting
arrangement
with Mr. Fonzi was entered into as part of the acquisition
agreement.
If so, please revise this explanation to include the material
terms
of the consulting arrangement. If the consulting agreement was
reached in conjunction with, but not as part of the acquisition,
please delete this adjustment as it would not be considered
directly
attributable to the transaction.
b. Footnote (b) Please revise this explanation to include the
component parts of this adjustment. Specifically, include the
total
change in expense for each asset category as well as the asset
values
and useful lives used in computing the change in depreciation and
amortization.
c. Footnote (c) Please revise this explanation to include the
material terms of the additional indebtedness, including the
amount
of additional indebtedness incurred, interest rate, and term.
d. Footnote (e) Please revise your calculation of average common
shares outstanding to be used in the calculation of pro forma EPS
to
include only those shares issued whose proceeds will be used in
the
payment of the $47.5 million dividend and the debt repayment.
Please
note that shares issued for proceeds that will be used for general
corporate purposes should not be reflected in pro forma EPS
calculations.
e. Footnote (f) Please revise this explanation to include the
material terms of the outstanding debt to be repaid as well as the
amount of the change in each expense cited. For example, you
should
state the amount of the reduction in interest expense, the
interest
rate on the repaid debt, and the amount of debt repaid so that the
investor can recalculate your adjustment.
f. Footnote (f) Please remove from this adjustment the effects of
the
investment of proceeds from shares issued for general corporate
purposes.
Unaudited Pro Forma Balance Sheet, page 29
21. Please revise your footnoted explanations to incorporate the
following comments:
a. Footnote (b) Please revise this explanation to fully and
completely explain the terms of the additional indebtedness
incurred
to finance the AFA acquisition.
b. Footnote (f) Please revise this explanation to fully and
completely explain the terms of the indebtedness repaid.
Selected Historical Financial and Operating Data, page 31
22. Refer to the table on page 33. It appears that pro forma
earnings per share should be presented for the most recent fiscal
year and interim period only in accordance with SAB Topic I-B-3.
In
this regard, pro forma and historical earnings per share appear to
be
exactly the same for each of the other fiscal periods presented.
It
is unclear why both presentations would be either necessary or
appropriate. Please revise or advise. This comment applies to
the
table on page 7 as well.
23. Pro forma earnings per share figures should give effect only
to
the number of shares that will be used to pay the dividend.
Please
delete the line item captioned "Shares to be sold in the
offering."
This comment applies to the table on page 7 as well.
Management`s Discussion and Analysis, page 35
Results of Operations, page 38
2003 Compared to 2002, page 39
24. We note that you have cited as the primary reason for the
increase in Selling, General, and Administrative expenses the
increase in bad debt expense and, from your Consolidated
Statements
of Cash Flows and Note 5, it appears bad debt expense increased
significantly ($1.6 million) from 2002 to 2003. We also note that
you recorded a net recovery in 2002. Supplementally explain to us
and
expand your disclosure to indicate the reason for the increase in
the
provision for customer bad debt allowance as well as the facts and
circumstances surrounding the net recovery in 2002.
Liquidity and Capital Resources, page 43
25. Please refer to the first sentence of the second paragraph and
revise to briefly explain how your operating strategy limits your
capital expenditure requirements when compared to most large
trucking
companies.
26. We note from your disclosure in your Liquidity and Capital
Resources section and the notes to your financial statements, that
your revolving secured line of credit, which you cite as a primary
source of liquidity, contains several covenants. We also note
that,
on a consolidated basis, you have several other smaller loans that
also contain restrictive covenants. We assume that no defaults or
breaches of covenants have occurred. If our assumption is not
correct, additional disclosures may be required under Rule 4-08(c)
of
Regulation S-X.
Contractual Cash Requirements and Commitments, page 46
27. We note from your disclosure on page 46 that the amounts owed
to
Stony`s Trucking are currently in dispute, and you have not paid
any
amounts you may have incurred since the inception date of February
1,
2004. Please revise your disclose to indicate either the amount
currently owed under the original contract or that you believe
these
amounts are not material to your consolidated financial
statements.
Growth Strategy, page 52
28. Please define "drayage services" on page 53, in the bullet
point
discussion regarding the expansion of your intermodal support
services.
Our Operations, page 53
29. We note that your services are grouped into three broad
business
categories. Please balance your discussion of financial results
by
also discussing expense results for each category, if that
information is available.
Management, page 59
30. Please revise this section to disclose the relevant dates of
business experience during the past five years for Joseph J.
Casaroll
and Angelo A. Fonzi. Refer to Item 401(e)(1) of Regulation S-K.
Related Party Transactions, page 66
Agreements with CenTra and its Affiliates..., page 67
31. We note from your disclosure in this section that the amounts
paid to CenTra in recent years for administrative functions they
perform for you and for rent have decreased significantly. We
also
note that, in other sections in your filing, these decreases are
explained by service level reductions or decreases in the number
of
properties rented. Please revise your disclosure both here and
within MD&A to clarify the reasons for and amounts of these
decreases.
Past Loans to CenTra, page 68
32. Please distinguish between the loans you made to CenTra as
part
of your stated dividend policy, and the loans you made to CenTra
that
were not dividends. For example, we note that the loan amounts in
this section do not correspond to the dividend payments you made
to
CenTra as reflected in the dividend policy section on page 21.
Please advise and revise as appropriate to reconcile what appears
to
be contradictory information.
33. We note your reference to the dividend policy that was in
effect
prior to this offering. Please consider disclosing the existence
of
this policy earlier in the document; for example, where you first
discuss the $47.5 million dividend you intend to pay to CenTra
using
the proceeds from this offering, both in the summary and use of
proceeds sections, or in the dividend policy section on page 21.
Is
the $47.5 million dividend for a similar purpose as prior
dividends
(payment of excess cash in the form of loans), or is it for a
different purpose? Please advise and revise your disclosure, as
appropriate, to clarify these issues.
Principal Shareholders, page 69
34. Please confirm that there are no arrangements that may result
in
a change of control that you would be required to disclose under
Item
403(c) of Regulation S-K, or revise to disclose that information.
Description of Capital Stock, page 70
35. Please revise to disclose the present number of holders of
your
common stock, and the effect of the transaction on those
stockholders, if applicable. Refer to Item 201(b) of Regulation
S-K.
Shares Eligible for Future Sale, page 73
36. Please revise as appropriate to clarify that the 10,022,500
shares of restricted common stock outstanding, as referenced here,
are the same as the shares issued in the proposed spin-off, and
specifically identify the holders of this restricted stock.
Underwriting, page 77
Electronic Distribution, page 79
37. We note that one or more of the underwriters may distribute
prospectuses electronically. Please supplementally confirm that
their procedures have been cleared with us.
38. Please tell us whether you or the underwriters have any
arrangements with a third party to host or access your preliminary
prospectus on the Internet. If so, identify the party and the
website and describe the material terms of the agreement. Provide
us
also with copies of any information concerning your company or
prospectus that may have appeared on their website.
Consolidated Balance Sheets, page F-4
39. We note from your disclosure in Note 1 (f) that Other Assets
is
wholly and completely comprised of intangible assets as of
December
31, 2003. Please revise your balance sheet presentation to more
accurately caption this line item as required by paragraph 42 of
SFAS
141.
Consolidated Statements of Shareholders` Equity, page F-6
40. Please supplementally explain to us the facts and
circumstances
surrounding the $4.997 million reclassification of the amounts due
to
CenTra in fiscal 2002.
(1) Summary of Significant Accounting Policies, page F-8
(h) Freight Revenue and Related Expenses, page F-9
41. We note that your disclosure of revenue recognition policies
related to freight delivery services appear to also cover your
brokerage revenues. Supplementally explain to us how these
revenues
are earned, how your obligations and risks compare with the third
party trucking company contracted, and how these obligations and
risks differ from those you assume in your ordinary truckload
operations. Include in your response justification for gross
recognition using the arguments set forth in EITF 99-19.
42. Please expand your accounting policies footnote to also
address
revenue recognition on intermodal support services.
43. You disclose the fact that you impose and collect surcharges
to
address fluctuations in fuel prices and you pass these surcharges
directly on to owner-operators. Please quantify the amount of
such
surcharges recorded in each period for which an annual or interim
income statement has been presented. Disclose these amounts in
your
MD&A discussions of operations as well, if significant.
(l) Segment Information, page F-10
44. We note from your discussion of your business and your
presentation of revenues on your consolidated statements of income
that you have three primary main sources of revenue including your
truckload business, your brokerage business, and your intermodal
business. Supplementally and in detail explain why these
activities
do not constitute separate operating segments pursuant to the
guidance in paragraphs 10-15 of SFAS 131.
(3) Transactions with CenTra and Affiliates, page F-12
45. If practicable, please disclose management`s estimate of what
the
expenses associated with CenTra provided services would have been
on
a stand alone basis as contemplated by the Interpretive Response
to
Question 2 of SAB Topic I-B.
46. Please expand your disclosures to explain how interest charges
and interest income are computed on financing arrangements with
your
parent pursuant to the Interpretive Response to Question 4 of SAB
Topic I-B.
(11) Subsequent Events, page F-17
Acquisition of AFA Enterprises, Inc., page F-17
47. Supplementally explain to us the facts and circumstances
justifying a useful life of 15 years for customer relationships
acquired through the AFA acquisition.
48. The responsibility for the valuation of assets and liabilities
acquired and for the purchase price allocation lies with
management.
Please revise your footnote to clarify this fact. Further, if you
elect to make reference to an independent valuation in your
footnote,
you should identify the appraiser as an expert in your
registration
statement. You should also include his consent in that document.
This comment applies to disclosures in your interim financial
statements as well.
Consolidated Balance Sheets, page F-20
49. If a planned distribution to owners is not reflected in the
latest balance sheet but would be significant relative to reported
equity, a pro forma balance sheet reflecting the distribution
accrual
should be presented alongside the historical balance sheet. This
pro
forma balance sheet should not reflect the offering proceeds. We
refer both to the cash dividends discussed in your footnote and to
the $47.5 million dividend to CenTra to be declared prior to the
spin
off. Please revise or advise.
50. If a distribution to owners is to be paid out of proceeds of
the
offering rather than from the current year`s earnings, in addition
to
your historical earnings per share presentation, pro forma per
share
data should be presented for the most recent fiscal year and
interim
period only giving effect to the number of shares whose proceeds
would be necessary to pay the dividend. To the extent that a
dividend declared during the latest fiscal year exceeded earnings
during the previous twelve months, we would presume that your
intention was to pay it out of offering proceeds. Please refer to
SAB I-B-3 and revise your filing as appropriate.
(4) Intangible Assets, page F-25
51. We note from your disclosure in your unaudited consolidated
financial statements that Other Assets consisted solely of
intangible
assets at December 31, 2003, but included $322,000 of assets other
than intangibles at July 3, 2004, ($940,000 per disclosure versus
$1,162,000 per balance sheet). Please supplementally explain and
revise your disclosure to indicate to us the nature of the
additional
$322,000.
(8) Subsequent Events, page F-26
52. We note from your disclosure on page F-28 that in October 2004
you declared three in-kind dividends to CenTra, the third of which
was a right of first refusal and an option to reacquire certain
real
estate obtained from CenTra on December 31, 2003. Please
supplementally explain to us and revise your subsequent event
disclosure to indicate how you valued and recorded this dividend.
Also, please revise your subsequent events disclosure to indicate
the
value assigned.
AFA Enterprises
Tax Status, page F-35
53. As AFA is treated as an S Corporation, please expand your
annual
and interim income statements to also disclose, on a pro forma
basis,
what tax expense and after-tax net income would have been had AFA
been treated as a taxable corporation. Refer, by analogy, to SAB
Topic I-B, Sections 1 and 2 for guidance.
Note 9 - Restatement, page F-38
54. Supplementally advise us whether this is the year in which the
restatement was made. If true, it appears that an explanatory
paragraph in the auditor`s report would be appropriate. Please
revise or advise.
Condensed Consolidated Balance Sheets, page F-39
55. Refer to the line item captioned "Property, Plant and
Equipment."
You appear to be disclosing three accumulated depreciation
balances
for the two balance sheets presented. Please revise or advise.
Part II
Item 13. Other Expenses of Issuance and Distribution, page II-1
56. Please confirm that you will provide the amount of expenses in
connection with the issuance and distribution, or an estimate of
those amounts, in your next amendment.
Item 15. Recent Sales of Unregistered Securities, page II-2
57. We note that this section is incomplete. Please provide all
information required by Item 701 of Regulation S-K in the next
amendment.
* * * * *
As appropriate, please amend the 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 supplemental 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 filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed 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 this action 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 a 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 Amy Geddes at (202) 942-2885 or Margery
Reich
at (202) 942-1839 if you have questions regarding comments on the
financial statements and related matters. Please contact Rolaine
Bancroft at (202) 824-5537 or me at (202) 942-2936 with any other
questions.
Regards,
Sara W. Dunton
Branch Chief
cc: William B. Brentani, Esq.
Simpson Thacher & Bartlett LLP
via facsimile: 650-251-5002
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Robert E. Sigler
Universal Truckload Services, Inc.
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