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Colfax
Corporation
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8730
Stony Point Parkway
Suite
150
Richmond,
VA 23235
USA
Tel: (804)
560-4070
Fax: (804)
560-4076
www.colfaxcorp.com
July 7,
2010
Mr. Gary
Todd
Reviewing
Accountant
Division
of Corporation Finance
U.S.
Securities and Exchange Commission
100 F
Street NE
Washington,
DC 20549
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RE:
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Colfax
Corporation
Form
10-K for the fiscal year ended December 31, 2009
Filed
February 25, 2010
File
No. 001-34045
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Dear Mr.
Todd:
Colfax
Corporation (the “Company”) received the staff’s letter dated June 25, 2010,
which provided comments on the above-referenced document. References
to the Company in the response refer to Colfax Corporation and its consolidated
subsidiaries. This response letter has been filed on
EDGAR.
In
connection with responding to the staff’s comments, the Company hereby
acknowledges the following:
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the
Company is responsible for the adequacy and accuracy of the disclosure in
the filing;
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staff
comments or changes to disclosure in response to staff comments do not
foreclose the Commission from taking any action with respect to the
filing; and
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the
Company may not assert staff comments as a defense in any proceeding
initiated by the Commission or any person under the federal securities
laws of the United States.
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For your
convenience, the staff’s comments are set forth below and are followed by the
Company’s responses.
Form 10-K for the fiscal
year ended December 31, 2009
Item 8. Financial
Statements
Note
18. Commitments and Contingencies, page 74
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1.
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We
note that the average cost of resolved claims more than doubled from
$5,378 in 2008 to $11,106 in 2009. Please describe to us the
specific factors leading to the significant increase in the average cost
of resolved claims.
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Response
As
described in Note 18, the annual average settlement payment per asbestos
claimant fluctuates based upon, among other things, the number and type of
claims settled in a particular period and the jurisdiction in which claims
arise. In 2009, the mix of resolved claims shifted towards high
dollar value mesothelioma claims and away from dismissals with no dollar value,
resulting in an increase in the average cost of resolved claims compared to
2008.
In future
filings, we will describe the specific factors leading to any significant
changes in average settlement costs.
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2.
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We
also see that the liabilities for unresolved claims significantly
increased in 2009 while the number of unresolved cases declined by
approximately 10,000 cases, or nearly 30%. In light of the
decrease in the number of cases, please describe to us the specific
factors leading to the increased
liability.
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Response
The table
referenced in our filing includes asserted claims only. A significant
portion of our liability also results from management’s estimate of unasserted
claims. As disclosed in our footnotes and within our Critical
Accounting Policies in Item 7. Management’s Discussion and Analysis of Financial
Condition and Results of Operations, this estimate is based upon the Nicholson
methodology. This methodology is the standard approach used by most
experts, and as outlined further in response to comment 3 below, certain
conclusions reached as part of this methodology can have a significant impact
upon the recorded liability. Due to the timing of settlements, the alleged
disease mix of existing claims and that a significant portion of the liability
relates to claims expected to be received in the future; there is no direct
correlation between existing claims and the recorded liability. The specific
factors leading to the increased liability are described in the Company’s
response to comment 3, below.
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3.
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As
a related matter, we refer to the discussion of the $11.6 million pretax
charge in the third quarter of 2009. Please further describe to
us the analysis and changes in assumptions leading to the $111.3 increase
in recorded liabilities. Furthermore, describe how you were
able to conclude that the increase in liabilities would be “offset by
expected insurance recoveries of $99.7
million.”
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Response
As
outlined in Note 18 and our Critical Accounting Policies in Item 7. Management’s
Discussion and Analysis of Financial Condition and Results of Operations of our
2009 Annual Report on Form 10-K, we believe that we can reasonably estimate the
asbestos-related liability for pending and future claims that will be resolved
in the next 15 years. While it is reasonably possible that the
affected subsidiaries will incur costs after this period, we do not believe the
reasonably possible loss or range of reasonably possible loss is estimable at
the current time.
The
Company projects future asbestos-related liability costs using the Nicholson
methodology. The Nicholson methodology is the standard approach used by most
experts and has been accepted by numerous courts. This methodology is based upon
risk equations, exposed population estimates, mortality rates, and other
demographic statistics. In applying the Nicholson methodology the Company
performed: 1) an analysis of the estimated population likely to have been
exposed or claim to have been exposed to products manufactured by the
subsidiaries based upon national studies undertaken of the population of workers
believed to have been exposed to asbestos; 2) the use of epidemiological and
demographic studies to estimate the number of potentially exposed people that
would be likely to develop asbestos-related diseases in each year; 3) an
analysis of the affected subsidiaries’ recent claims history to estimate likely
filing rates for these diseases; and 4) an analysis of the historical asbestos
liability costs to develop average values, which vary by disease type,
jurisdiction and the nature of claim, to determine an estimate of costs likely
to be associated with currently pending and projected asbestos
claims.
On a
quarterly basis the Company with the aid of an outside expert, performs an
analysis of claims data in accordance with the Nicholson methodology as
described above. Based upon the results of this analysis, management records its
best estimate for the future asbestos-related liability costs with regard to
pending and future unasserted claims.
During
the third quarter of 2009, our analysis of claims data including filing and
dismissal rates, alleged disease mix, filing jurisdiction, as well as settlement
values resulted in the determination a significant increase had occurred in
management’s estimate of the future asbestos-related liability
costs. The data analyzed during the third quarter analysis, as
opposed to the results of the immediately preceding quarters, reflected a
statistically significant increase in the number of mesothelioma claims filings
had occurred for both subsidiaries, which the Company expects to continue. Based
on the results of this third quarter 2009 analysis, the Company determined it
should revise its estimate for pending and future claims. The new estimate,
prepared with the aid of an expert, resulted in an increase to the liability of
$111.3 million.
Each of
the Company’s subsidiaries with asbestos-related claims has separate substantial
insurance coverage. As stated in the Company’s response to previous staff
comments, submitted on March 11, 2008, no dispute exists with our carriers as to
whether coverage exists for these asbestos claims. In order to
determine the expected insurance recovery, the Company, with the assistance of
outside experts, assessed the subsidiaries’ existing insurance arrangements and
agreements, determined the applicability of insurance coverage for existing and
expected future claims, analyzed publicly available information bearing on the
current creditworthiness and solvency of the various insurers and employed such
insurance allocation methodologies as the Company believed appropriate to
ascertain the probable insurance recoveries for asbestos liabilities. The
analysis took into account self-insurance reserves, policy exclusions, liability
caps and gaps in the Company’s coverage, allocation agreements, indemnity
arrangements with third-parties, existing and potential insolvencies of insurers
as well as how legal and defense costs will be covered under the insurance
policies. This analysis was performed factoring in the prevailing
loss allocation laws in each jurisdiction for which the Company has claims
estimated.
For one
subsidiary, the Delaware Court of Chancery ruled that asbestos-related costs
should be allocated among excess insurers using an “all sums” allocation and
that the subsidiary has rights to excess insurance policies purchased by a
former owner of the business. For the other subsidiary it was
determined by court ruling that the allocation methodology mandated by the New
Jersey courts will apply. This allocation methodology, referred to as the
Carter-Wallace methodology, was applied in the New Jersey Supreme Court in the
case of Carter-Wallace, Inc. v. Admiral Ins. Co., 154 N.J. 312 (N.J.
1998).
The
Company, with the aid of an outside expert, calculated the expected insurance
recovery under each of these allocation methodologies and determined that it
expects to recover from its insurers $99.7 million of the $111.3 million of
increased asbestos-related liabilities.
Item
10. Directors, Executive Officers and Corporate Governance, page
79
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4.
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We
refer to your disclosure on page 3 of the definitive proxy statement that
you have incorporated by reference to your Form 10-K. While we
note that the nominating and corporate governance committee considers
diversity with respect to “geography, gender and ethnicity” in seeking
potential directors, please expand your disclosure in future filings to
describe more specifically how the committee considers diversity in
identifying nominees for director. Please also tell us whether
the committee has a policy with regard to consideration of diversity in
identifying director nominees; if so, please describe in your response and
expand future filings to describe how this policy is implemented and how
the committee assesses the effectiveness of the
policy.
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Response
The
Nominating and Corporate Governance Committee (the “Nominating Committee”) does
not at this time have a formal separate policy with regard to the consideration
of diversity in identifying director nominees. However, the
Nominating Committee’s charter recognizes diversity as one of the criteria for
consideration in selecting nominees. In all discussions concerning
nominations and potential director appointments, the Nominating Committee has
paid particular attention to diversity and given careful consideration to
“geography, gender and ethnicity” together with all other qualifying
attributes. For example, the Nominating Committee gave significant
weight to gender diversity in considering the most recent addition to the
Board. In future filings we will expand our disclosure to describe
more specifically how the Nominating Committee considers diversity in
identifying nominees for director.
Item 11. Executive
Compensation, page 79
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5.
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We
note that you have not included any disclosure in your proxy statement in
response to Regulation S-K Item 402(s). Please advise us of the
basis for your conclusion that disclosure is not necessary and describe
the process that you undertook to reach such
conclusion.
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Response
Taking
into consideration the nature of the business, which is primarily the
manufacture and sale of fluid handling products, including pumps, fluid handling
systems and valves, management with oversight from the Compensation Committee
reviewed our compensation policies and practices and the design of our overall
compensation program in relation to risk management practices and risk-taking
incentives. This assessment included a review of the primary elements of our
compensation program (base salary, annual incentive plan and long-term
incentives) in light of potential risks. For each of these
components, the assessment determined that the design and operation of each
component did not heighten risks to the Company:
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Base
Salary — Base salary levels are reviewed annually by the Compensation
Committee and are not subject to incentive-based
increases.
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Annual
Incentive Plan — Annual incentive plan targets are linked to stated goals
in key areas of operational and financial performance. These metrics
are designed to enhance long-term growth and shareholder value.
Individual personal goals, which collectively account for 30% or less of
the annual incentive plan, are not material to the annual incentive plan
and no one factor materially affects the total potential amount of bonus
awarded.
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Long-Term
Incentives — Stock options and performance-based restricted stock unit
awards are used to align executive compensation with the interests of
shareholders by encouraging long-term improvement in operational and
financial performance and as such, does not subject the Company to
heightened risks.
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The
Compensation Committee reviewed with management the results of this assessment
at its meeting in February 2010. At a Board meeting held thereafter, the
Compensation Committee reported to the full Board on this review, noting that
none of the Company’s compensation policies, in the judgment of the Committee,
created heightened risk. Based on this review, we concluded that the risks
arising from the compensation policies and practices for our employees are not
reasonably likely to have a material adverse effect on the Company.
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6.
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We
note from page 14 of your definitive proxy statement that you reviewed
survey data from peer companies in determining executive compensation in
2009. In future filings, as applicable, please expand your
disclosure to explain how the compensation
committee used this information to make compensation
decisions. For example, was compensation adjusted after
reviewing the information?
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Response
In future
filings, to the extent the Compensation Committee uses survey data from peer
companies in determining executive compensation, we will expand our disclosure
to describe more specifically how the Compensation Committee used this
information in making compensation decisions.
If you
have any questions or require further information, please call me at (804)
327-5668 or fax me at (804) 560-4076.
Sincerely,
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/s/
G. SCOTT FAISON
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G.
Scott Faison
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Senior
Vice President, Finance
and
Chief Financial Officer
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