MAIL STOP 05-11
December 17, 2004
Stephen G. Luke, Chief Executive Officer
Nationwide Financial Solutions, Inc.
3231 S. Country Club Way, Suite 102
Tempe, Arizona 85282
Re: Nationwide Financial Solutions, Inc.
Registration Statement on Form SB-2
File No. 333-120428
Filed November 12, 2004
Dear Mr. Luke:
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.
Please understand that 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. We 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. We note the registration statement covers the resale of most of
the company`s outstanding securities and that a majority of these
shares are being offered by officers, directors, affiliates and
control persons. Generally, we view resale transactions of this
magnitude as an offering "by or on behalf of the issuer" for
purposes
of Rule 415(a)(4) of Regulation C. Under the rule, equity
securities
offered by or on behalf of the registrant must be sold at a fixed
price for the duration of the offering. Please revise your
prospectus to disclose that the selling shareholders will conduct
their offering the stated fixed price for the duration of the
offering. The prospectus should also make clear the fact that the
selling shareholders are considered underwriters in this offering.
Revise your prospectus accordingly, including your Cover Page,
Prospectus Summary and Selling Stockholders sections.
2. Include the disclosure required by Item 505 of Regulation S-B
regarding Determination of Market Price.
Prospectus Cover Page
3. Please highlight the risk factor cross reference by prominent
type
or in another similar manner in accordance with Item 501(a)(5) of
Regulation S-B.
4. Please provide the dealer prospectus delivery obligation on the
outside back cover page of the prospectus as set forth in Item
502(b)
of Regulation S-B.
Summary, page 1
5. Please include the company`s web site address.
6. A brief discussion of the fire would be appropriate and its
effects would be appropriate. Include a discussion of insurance
coverage or its lack. If none, explain.
Risk Factors, page 3
7. Please avoid the broad conclusion you reach in the narrative
and
subheading to risk factor 6 that the risk would have a "material
adverse effect" on your business, operating results and financial
condition. Instead, replace this language with specific disclosure
of
how your business, operating results and financial condition would
be
affected.
8. In the subheadings to risk factors 7 and 11, you allude to a
risk
but do not clearly state the material risk to the company or to
investors in this offering. Generally, the subheading should
clearly
state the particular risk and the consequences that may result if
that risk should occur. Revise these subheadings to present the
risks you are addressing in concrete terms. In addition, please
indicate in risk factor 11 whether any preferred stock has been
issued to date.
9. Please revise risk factor 10 so as to clarify that your stock
will
be classified as penny stock.
10. We note that officers and directors own 55.1% of the company`s
common stock. Please consider including an additional risk factor
discussing the risks posed by the fact that these persons will be
able to exert substantial influence over normal operating
activities
as well as the election of directors.
11. The first risk factor contains two distinct and material
risks:
large losses and the current insolvent financial condition.
Please
separate them into two factors.
12. The fourth risk factor is generic and a fact of doing
business.
It should be deleted.
13. The seventh risk factor does not appear to be material to this
business.
Dilution, page 6
14. As this is a selling shareholder offering, and the company is
not
offering additional shares, we do not understand the reason you
have
included a discussion of dilution. Item 506 of Regulation S-B
only
applies in situations where the issuer is selling common equity.
Management`s Discussion and Analysis of Results of Operations and
Financial Condition, page 8
Forward-Looking Statements
15. We note reference to forward looking statements within the
meaning of Section 27A of the Securities Act of 1933 and Section
21E
of the Securities Exchange Act of 1934. Please note that Section
27A(b)(1)(C) of the Securities Act and Section 21E(b)(1)(C) of the
Securities Exchange Act expressly state that the safe harbor for
forward looking statements does not apply to statements made by
companies that issue penny stock. In addition, Section
27A(b)(2)(D)
of the Securities Act and Section 21E(b)(2)(D) of the Securities
Exchange Act expressly state that the safe harbor for forward
looking
statements does not apply to statements made in connection with an
initial public offering. Please either:
* delete any reference to the Private Securities Litigation Reform
Act; or
* make clear, each time you refer to the Litigation Reform Act,
that
the safe harbor does not apply to your company.
16. Please delete the word "will" from your list of forward-
looking
statements.
Introduction
17. Please allocate the amounts necessary over the next 12 months
to
cover all budgeted expenses deemed material. Discuss the
anticipated
milestones in implementing your plan of operation and the time
frame
for beginning and completing each.
18. Please disclose the cause of the fire on page 9 and confirm
whether the company has incurred any material contingencies or
liabilities associated with the same.
Critical Accounting Policies
19. Please note that the disclosure of Critical Accounting
Policies
is supposed to supplement, not duplicate, the description of
accounting policies in the notes to the financial statements, and
provide greater insight into the quality and variability of
information regarding financial condition and operating
performance.
The company`s discussion of critical accounting policies in the
MD&A
does not provide any further analysis than is already provided in
the
notes to the financial statements. Revise this section to discuss
the nature of critical accounting estimates and assumptions that
relate to highly uncertain matters or matters highly susceptible
to
change and the impact of these estimates and assumptions on
financial
condition and operating performance. Please refer to the
Commission`s guidance concerning Critical Accounting Estimates and
revise Management`s Discussion and Analysis to comply with the
required disclosures as necessary. The guidance is available on
the
SEC website at www.sec.gov./rules/interp/33-8350.htm. Please see
section V.Critical Accounting Estimates.
Results of Operation
20. Under "Revenues," consider the need to disclose the number of
clients you had previous to the fire and as of the most recent
practicable date.
21. Under "Costs," disclose the number of employees, in the three
operating expense lines, that the company had previous to the fire
and as of the most recent practicable date. Also, disclose if any
temporary labor was hired during the company`s recovery from
September 2003 to June 2004.
22. Under "Selling and marketing expenses," please compare the
fiscal
year ended 2003 with 2004.
23. Under "Interest income (expense), net," we note that Mr. Luke
has
provided you with a written personal guarantee of repayment. We
also
note that you have 3 notes payable with Shalimar. Please file
each
as exhibits.
24. Indicate the nature of the business of Infinity Southwest Inc.
If the loan program was discontinued in December, 2003, please
explain why the $489,000 remains outstanding and whether or not
the
company has demanded repayment and if not, why not.
Liquidity and Capital Resources
25. The lease you have with Shalimar appears to be a "triple net
lease," whereby you are required to pay all expenses, insurance
and
taxes in addition to the fees disclosed. Please revise the
disclosure so that it is clear what the total monthly and yearly
rental amounts will be.
26. Reference is made to Note 12 to the financial statements.
Please
include a discussion of all recent financings in the MD&A section.
In this regard, we also note that you have retained an unrelated
individual to identify sources of financing and that this person
will
receive a 10% finder`s fee if you raise one million dollars.
Please
discuss this arrangement in the MD&A section, identify this
individual and file the agreement as an exhibit if considered
material.
Business, page 15
27. Include a discussion of the business development for the
company
and its predecessor(s), including the identity of all promoters of
each and the dates and places of incorporation. Discuss fully all
merger transactions to date, including the consideration paid and
material terms. See Item 101(a)(3) of Regulation S-B.
28. We note disclosure in Note 8 to the financial statements
regarding NBA`s emergence from bankruptcy. Please elaborate. See
Item 101(a)(2) of Regulation S-B.
29. Under "Current Operations," please discuss the qualifications
of
your management and/or employees as debt resolution specialists.
30. We note the following on your website: "If one of our clients
does get sued, we have a legal department here to advise them and
to
continue working for a settlement." Please elaborate on this and
advise the extent to which you, or any of your affiliates, are
authorized to practice law.
31. Please provide the disclosure required by Item 101(b)(1), (2),
(3), (6), (7), (8), (9) and (10) of Regulation S-B, where
appropriate
and material to an understanding of the business.
Security Ownership of Certain Beneficial Owners and Management,
page
20
32. We note that you have provided the company`s address for the
shareholders listed in the beneficial ownership table. Only your
officers and directors may claim the company`s address. Please
revise.
33. Indicate the relationship of Stephen and William Luke.
34. Pursuit Venture Group appears to beneficially own greater than
5%
of the company`s shares. Please include this entity in the table
of
beneficial ownership along with its control person(s).
Selling Stockholders, page 21
35. Revise this section in accordance with our first under General
above.
36. Remove the two references to "pledgees, donees, transferees or
other successors in interest" or name them.
37. Please indicate if any of your selling stockholders in this
prospectus are broker-dealers or affiliates of broker-dealers.
Please include a representation, if true, that each affiliate of a
broker-dealer (1) purchased your securities in the ordinary course
of
business and (2) at the time of the purchase of the securities to
be
resold, the seller had no agreements or understandings, directly
or
indirectly, with any person to distribute the securities. If you
cannot provide this representation, please advise.
38. Please disclose all material relationships security holders
have
had with the company or any of its predecessors or affiliates
within
the past 3 years. See Item 507 of Regulation S-B.
39. We note that you intend to pay the expenses associated with
this
offering. Please disclose the estimated amount of the expenses.
Related Party and Other Material Transactions, page 23
40. Please identify your promoters if other than
officers/directors
and provide the information required under Item 404(d) of
Regulation
S-B.
Shares Eligible for Future Sale, page 24
41. We note the statement that you have 1,000,028 shares which are
"currently free trading." We note similar disclosure in risk
factor
8. We do not understand the reference to "free trading" and ask
that
you either revise this statement or advise as to its availability.
Financial Statements
Recapitalization
42. You state that NIS is included in the consolidated financial
statements; however in the financial statements and MD&A, you
state
that the share issuance is still pending. Accordingly, you may
not
give effect to the merger until financial statements are issued
for a
period that includes the date that shares were exchanged between
the
two companies. Please revise to include separate financial
statements of the private operating shell (NBA) and the private
operating company (NIS), pre-merger, and pro forma information
that
gives effect to the merger, if material. If you believe that the
merger has been consummated and hence should be reflected in the
June
30, 2004 financial statements, please supplementally tell us why.
Fire
43. Please tell us if you provided any one-time termination
benefits
for the employees that were dismissed as a result of the fire, if
you
incurred any costs to terminate an operating lease before the end
of
its term or if you continued to pay costs under the lease for its
remaining term without economic benefit. If so, please tell us
the
amount of such costs and your accounting treatment thereof.
Update
Management`s Discussion and Analysis and Note 10 accordingly.
Statement of Changes in Stockholders` Equity
44. Please update the financial statement to include a statement
of
changes in stockholder`s equity. Refer to Item 310(a) of
Regulation
S-B.
Note 1 - Summary of Significant Accounting Policies (Revenue
Recognition)
45. You state that new clients are assessed a non-refundable set-
up
fee for file creation, debt analysis, budget formulation and
initial
creditor contacts. Although this fee is paid by the client on an
installment basis over a six-month period and recognized as
revenue
when paid, it appears that you continue to provide the set-up
services over a longer period. If it takes longer than six months
to
provide these services, tell us why you recognize revenue over a
shorter period. With a view towards revised disclosure, explain
to
us also what type of revenue is considered to be unearned.
Note 7 - Convertible Notes Payable
46. Advise the staff supplementally whether a beneficial
conversion
feature exists with respect to the debt owed to Pursuit Venture
Group. Refer to EITF 98-5 and EITF 00-27.
Note 8 - Stock Option Plan
Common Stock Purchase Warrants
47. In "Description of Common Stock - Warrants", you state that
the
Company has 72,783 warrants outstanding. Please reconcile this
amount with the 6,000,168 warrants shown in Note 8 and, revise the
note as well to include the disclosures required by paragraphs 45
- -
48 of SFAS 123, as amended by SFAS 148.
Stock Option Plan
48. We note the existence of your stock option plan. Please
update
the notes to the financial statements to include the disclosures
required by paragraphs 45 - 48 of SFAS 123, as amended by SFAS
148,
if necessary.
Note 9 - Income Taxes
49. We note in MD&A that you were able to carryback your tax loss
to
recover prior years taxes paid. Please update to disclose if
there
are any remaining tax losses that can be carried forward and if
so,
the amount and expiration date of federal net operating loss
carryforwards. If not, please disclose that you have no federal
net
operating loss carryforwards.
General
50. Please note the updating requirements of Item 310(g) of
Regulation S-B.
51. A currently dated consent of the independent public accountant
should be provided in all amendments to the registration
statement.
Part II
Item 26. Recent Sales of Unregistered Securities
52. Disclose the facts supporting your reliance upon Section 4(2)
as
an exemption in the March to October 2004 transactions, as
required
by Item 701(d) of Regulation S-B.
Item 27. Exhibits
53. Exhibits 10.01 and 10.03 are not signed. Please file validly
executed documents.
54. Please file the amendments to your Articles and Bylaws.
55. Revise your legality opinion to indicate that the opinion
opines
upon Nevada law including the statutory provisions, all applicable
provisions of the Nevada Constitution and all reported judicial
decisions interpreting those laws.
56. Article 1.2 to the Share Exchange Agreement (Exhibit 10.03)
refers to 72,783 shares held by NB "public shareholders." Please
explain "public shareholders." In addition, footnote (2) to
Article
1.2 states that NB has agreed to register 750,000 shares with the
Commission within 45 days of the closing date. Please advise
whether
failure to register these shares creates any contingencies.
Item 28. Undertakings
57. Please provide the full undertaking required by Item
512(a)(1)(ii) of Regulation S-B.
Closing Comments
As appropriate, please amend your 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 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.
Any questions regarding the financial statements may be
directed to Babette Cooper at (202) 824-5069. Questions on other
disclosure issues may be directed to William Bennett at (202) 942-
0135.
Sincerely,
John Reynolds, Assistant
Director
Office of Emerging Growth
Companies
cc: Gary A. Agron, Esq.
5445 DTC Parkway, Suite 520
Greenwood Village CO 80111
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Nationwide Financial Solutions, Inc.
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