MAIL STOP 4-6
February 3, 2005
Robert Lisle
President
Assure Data, Inc.
2591 Dallas Pkwy Suite 102
Frisco, Texas 75034
Re: Assure Data, Inc.
Amendment No. 1 to Registration Statement on Form SB-2
Filed on January 4, 2005
File No. 333-121347
Dear Mr. Lisle,
We have reviewed your amended 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.
Prospectus
General
1. Throughout your prospectus you disclose that Assure Data is not
using an underwriter in this offering. However, we note that you
also disclose in your summary that Mr. Lisle is considered a
statutory underwriter in this transaction, which appears to be
consistent with Section 2(a)(11) of the Securities Act of 1933.
Consider relocating your discussion of Mr. Lisle as a statutory
underwriter to your "Plan of Distribution" section to clarify the
disclosure that Mr. Lisle is a statutory
underwriter. Please clarify your "Risk Factor" section as well.
2. When describing this offering, please ensure that you refer to
it
as a direct public offering or self-underwritten offering. In
some
cases you use the term "best efforts," which signifies the
presence
of a broker-dealer.
3. In the event of a delay in the effectiveness of your
registration
statement, update the financial statements in accordance with Item
310(g) of Regulation S-B.
4. In your next amended registration statement, include a
currently
dated consent pursuant to Item 601(b)(23) of Regulation S-B.
Cover Page, page 2
5. Please provide a cross-reference to the risk factors section,
including the page number where it appears in the prospectus. You
should highlight this cross-reference by prominent type, such as
bold
and/or italics. See Item 501(a)(5) of Regulation S-B.
6. We note that you discuss your hope to have prices for your
shares
quoted on the Over-the-Counter Bulletin Board. Supplementally
advise
of the steps that you have taken to have your shares listed on the
Over-the-Counter-Bulletin Board. For example, have you had
discussions with market makers regarding becoming quoted on the
Over-
the-Counter Bulletin Board? If not, tell us when you plan to take
steps to have your shares listed.
Summary, page 3
The Company, page 3
7. You disclose that you have installed your process for six
customers in your summary. However, you disclose that Assure Data
has installed its process for seven customers in your "Risk
Factors,"
MD&A and "Sales to Date." Please reconcile.
8. You describe your "proposed" business. However, you disclose
that
Assure Data has installed your process for customers. Please
reconcile.
9. We refer you to the bullet point list of potential risks
associated with the offering. Please revise your summary section
to
limit the information that is key to the offering or to Assure
Data.
See Item 503 of Regulation S-B.
10. We note that you intend to offer your securities in states in
which there are exemptions for accredited investors.
Supplementally
advise of the states that you intend to offer and sell your
securities.
Risk Factors, page 4
11. Revise all of your subheadings to ensure they specifically
disclose the material risk that you discuss in the text. If a
risk
factor is included in your prospectus, you should describe the
risk
clearly and concretely and include the nature of the specific risk
or
harm in your subheadings. Refrain from merely stating facts or
describing events that may occur in the future in your
subheadings,
such as "[a] number of other companies in the data backup service
industry have failed because of competition," "[w] have
experienced
losses since inception," " [c]ontrol of the company will continue
to
be held by two officers who are also directors" and "[w]e lack
staff." Accordingly, revise your disclosure to succinctly state
in
your subheading the risks that result from the facts or
uncertainties
and clearly state the risk that follows in the narrative.
12. We note that many of your risk factors present risks that
could
apply to any issuer or to any offering. If you elect to retain
these
and other general risk factors in this
section, you must clearly explain how they specifically apply to
your
industry, company or offering. Otherwise, relocate the discussion
of
risk factors that do not contain material risks that are unique to
Assure Data to the body of
the prospectus. For example, the following risk factors appear to
be
generic or appear to address matters that do not raise material,
concrete risks:
* There could be changes in the regulation of the Internet;
* We face a likely business failure if we lose the services of our
key personnel;
* Shareholders may have no way to recoup any if [sic] their
investment;
* We need to grow our customer base; and
* The offering price was established arbitrarily.
Limited capital reserves could cause us to fail, page 6
13. You disclose that even if Assure Data sells all of the shares
offered, you may not have significant funds to conduct business.
However, in your MD&A, you also disclose that Assure Data will be
able to meet its obligations for at least the next twelve months
even
without the proceeds of this offering. Please reconcile.
We face a likely business failure if we lose the services of our
key personnel,
page 6
14. Clarify that Messrs. Lisle and Kipness will be working part-
time
for Assure Data. Quantify the amount of time involved.
Control of the company will continue to be held by two officers
who
are also directors, page 6
15. It appears that this risk factor discloses the same or
substantially similar risks as the risk factor "[t]hree
shareholders
effectively control the board of directors and the company."
Accordingly, please revise your "Risk Factors" section to disclose
each distinctive risk only once. Where particular risks are
disclosed in multiple risk factors, remove the repetitive risk
factors or aggregate the risk factors with the same or similar
risks
into one inclusive risk factor.
We may not remain a reporting company, page 8
16. Please expand your risk factor to explain why you may not
remain
a reporting company. For example, are you referring to the fact
that
your reporting obligations may be suspended if Assure Data falls
below 300 shareholders? If so, please explain.
Use of Proceeds, page 9
17. We note that this is a self-underwritten offering with no
guarantee of the amount of shares that may be sold. Accordingly,
please revise this section to also disclose the use of proceeds if
you only receive nominal proceeds from this offering.
18. We refer you to the disclosure that the maximum net proceeds
of
this offering will provide you with sufficient funds to meet your
cash requirements for approximately 18 months. Please revise to
also
disclose how long your cash needs will be met if you receive
nominal
proceeds in this offering.
19. Elaborate on plans to pay offering expenses if offering
proceeds
are inadequate to pay those expenses.
20. You disclose that you have not yet determined the amount of
net
proceeds to be used specifically for any of the disclosed purposes
and that you will have flexibility in applying net proceeds of the
offering. Please reconcile this disclosure with the dollar
amounts
that you have specifically earmarked for each purpose in your "Use
of
Proceeds" table. Also, to the extent applicable, revise this
section
to
clearly discuss the circumstances that would require management to
alter the use of proceeds from this offering and discuss
alternatives
to the currently stated uses.
21. We note that most of the proceeds received in this offering
will
be put towards working capital. Please disclose the priority of
uses
within the category of "working capital" depending on the number
of
shares sold.
Dilution, page 10
22. We note that this is a self-underwritten offering with no
guarantee of the amount of shares that may be sold. Accordingly,
please revise your "Dilution" section, including the text and the
dilution table, to also include dilution disclosures assuming
sales
of 25%, 50% and 75%. Also, revise to disclose the dilution to if
you
only receive nominal sales in your offering.
Description of Business, page 11
General
23. We note that you have a limited number of customers. As a
result, it appears that you are dependent upon one, some or all of
your customers. Please revise to disclose whether you are equally
dependent upon all of your customers or if you are dependent upon
some customers more than others. To the extent applicable, please
revise your disclosure to provide a materially complete
description
of the customer agreements that you are dependent upon. For
example,
your description should address the services provided, the term
and
termination and the material economic terms of the customer
agreements.
Assure Data Virus and Spam Protection Services, page 11
24. Supplementally support your statement that your SPAM filtering
service uses the latest heuristic algorithms of three
internationally
recognized SPAM Killers to stop up to 98% of SPAM while allowing
users to regulate specific email servers.
25. You state that data is backed up and e-mail reports are
automatically sent to the customer as well as Assure Data staff.
You
go on to state that if a service fails, additional notification to
Assure Data staff via cell phone text messages are sent. Clarify
how
this system works currently when you have only two part-time
employees - Messrs. Lisle and Kipness.
The Primary Manner In Which We Expect to Conduct Business, page 11
26. Explain your statement that you have obtained rights to select
email listing of information technology employees and consultants.
Data Backup Industry in General, page 12
Tape, page 12
27. We note that you discuss "tape" as a competing backup media in
the first paragraph on page 12. Please specifically disclose the
factual basis for, and the context of all your statements,
beliefs,
understandings and opinions regarding "tape" as a backup method.
Unless you can substantiate on a reasonable basis all of your
beliefs, please remove them from your prospectus.
Competition, page 12
28. Please revise to more completely disclose the competitive
business conditions and your competitive position in your
industry.
Also, disclose your method of competition. See Item 101(b)(4) of
Regulation S-B.
Our Concept and Technology, page12
29. Reconcile the statement that your founders have over 40 years
of
computer industry related experience with the disclosure in their
biographies that suggests that the number is closer to 30.
Expected Employee Requirements, page 13
30. We note that Messrs. Lisle and Kipness work on a part-time
basis.
Please revise to disclose the amount of time that Messrs. Lisle
and
Kipness will spend on the matters of Assure Data.
Facilities and Offices, page 13
31. You disclose that you have offices in Frisco, Texas. Please
clarify whether you have offices separate from the offices and
home
offices of Messrs. Lisle and Kipness. To the extent that you have
separate offices, please describe your arrangements and file
material
leases associated with these offices as exhibits. See Item
601(b)(10)(i) of Regulation S-B.
32. Here or elsewhere as appropriate, please discuss your data
backup
repositories. Do you have agreements with these repositories upon
which you are substantially dependent for purposes of 601(b)(10)
of
Regulation S-B?
Management`s Discussion and Analysis or Plan of Operation, page 14
33. We note that you have had revenues in your last fiscal year
ended
December 31, 2003 and in the nine months ended September 30, 2004.
Please revise your disclosure to include the information required
by
Item 303(b) of Regulation S-B.
34. We note that you are conducting a self underwritten offering
with
no guarantee that you will receive any proceeds. We also note
that
you are going to move forward with your business plan with the
proceeds from this offering. Accordingly, please expand your
disclosure to discuss your plan of operation if you receive
minimal
funding and varying amounts below your maximum. For each
scenario,
disclose each proposed activity under your business plan and
clarify
the material events or steps required to ultimately complete your
business plan, including conditions or contingencies to reach this
end.
35. You disclose that you may be required to cease operations in
less
than one year if you do not raise $300,000. Please reconcile this
statement with the disclosure that you have sufficient resources
to
meet your obligations for at least the next twelve months even
without proceeds of this offering. Also, reconcile these
statements
with the disclosure that you will have to complete at least 50% of
the offering, or $150,000 in order to have sufficient funds
available
to move forward with your business plan.
36. Disclose the costs associated with becoming a public company
and
explain how Assure Data intends to pay these costs.
37. We refer you to your risk factor that you may not remain a
reporting company. Please explain any circumstances, other than
the
possibility that your reporting obligations may be suspended as a
result of having less than 300 shareholders, that may cause you to
no
longer report under the Exchange Act. Does Assure Data have
specific
business or financial goals related to its development of a
customer
base that it must reach to remain a public company after one year?
What factors will be considered when evaluating the growth of the
company? What are your exit strategies if you decide not to
remain a
public company? Will you keep your company intact and become a
private company? Do you plan on entering into a merger or other
transaction?
38. We note that your plan of operations for the next twelve
months
includes new customer acquisitions, which would require the
purchase
of additional on-site servers. Revise your disclosure to discuss
any
significant expected capital expenditures. We refer you to Item
303(a)(iii) of Regulation S-B. In addition, tell us and revise
your
disclosure to indicate how you plan to fund these activities.
Directors and Executive Officers, page 15
39. Please revise to also disclose Mr. Lisle as the chief
financial
officer and accounting officer, if true.
Executive Compensation, page 17
40. You disclose that Assure Data has no employees. However, your
disclosure under "Directors and Executive Officers" identifies Mr.
Lisle as the president and treasurer and Mr. Kipness as your vice
president. Please reconcile.
41. We note that Mr. Lisle was compensated by Information
Technology
Systems. Please explain the relationship between Assure Data and
its
executive officers and Information Technology Systems. Why was
Mr.
Lisle compensated in this manner? Also, revise your "Executive
Compensation" section to include an executive compensation table
that
discloses the compensation received by Mr. Lisle from Information
Technology Systems and invoiced to Assure Data. Similarly, your
executive compensation table should include the compensation
provided to Mr. Kipness through his consulting service. See Item
402(a) of Regulation S-B.
Certain Relationships and Related Transactions, page 16
42. Please ensure that all related party disclosure is provided.
For
example, advise why the transaction discussed in Note 2 to the
notes
to your financial statements has not been disclosed under this
item.
43. Please disclose the date of each related party transaction.
44. You disclose that Mr. Lisle performed services on behalf of
Information Technology Systems and its client Assure Data. Please
clarify the relationship between Assure Data and Information
Technology Systems and explain the purpose behind the structure of
this transaction. If Assure Data will continue to be a client of
Information Technology Systems consider addition information in
your
"Description of Business" section to explain how Assure Data and
Information Technology Systems will be associated on a going
forward
basis.
45. Please disclose the nature of the services that Mr. Kipness
was
compensated for through his consulting service.
Promoters, page 16
46. Supplementally explain of Patrica Gunter`s relationship in the
development of the processes and services provided by the Company.
Also, supplementally advise whether Ms. Gunter is a promoter.
Description of Securities, page 16
47. You disclose that the outstanding common stock is "fully paid
and
non-assessable." It does not appear that the Assure Data is
qualified to make this legal conclusion. We also note that you
have
not identified legal counsel in the registration statement - in
fact,
you have left the subsection entitled "Legal Matters" blank and
you
have not indicated who will be providing a legality opinion for
purposes of Item 601(b)(5) of Regulation S-B. Please advise or
revise.
Plan of Distribution, page 17
48. We note that you disclose that Robert Lisle is exempt from
registration as a broker dealer under Rule 3a4-1. In light of the
fact that Mr. Lisle is relying on Rule 3a4-1, supplementally
provide
an analysis explaining the basis for his belief that the safe
harbor
is available. Please clarify your disclosure elsewhere in the
prospectus that suggests that Mr. Kipness might be selling your
securities as well. See, for example, your discussion under plan
of
distribution under Summary.
49. Supplementally confirm that you do not have any intention to
offer your securities over the Internet.
Independent Auditor`s Report, page F2
50. Please request for your independent auditors to revise their
audit opinion to include the city and state where issued. Also
tell
us why your auditor is located in Maitland, Florida when it
appears
that your principal offices are located in Frisco, Texas. Explain
the circumstances that led to you retaining this particular audit
firm.
Financial Statements
Consolidated Statements of Operations, page F4
51. We note from page 15 of your MD&A that you incur a monthly
cost
to maintain customers. Tell us the amount of this cost in each
period presented. To the extent material, these types of expenses
should be classified as costs of revenue.
52. We note that there have been significant related party
transactions for consulting services, reimbursements of expenses,
and
purchases of equipment. Revise to indicate the amount of related
party transactions on the face of the balance sheets and
statements
of operations. Also supplementally reconcile the total amount of
related party transactions disclosed in Note (2) on page F8 to
your
MD&A disclosure on page 16.
Notes to the Financial Statements
Organization and Summary of Significant Accounting Policies, page
F7
Revenue Recognition
53. Revise the notes to the financial statements to include a
detailed description of your revenue recognition policy. Your
revenue recognition policy should reference the applicable
accounting
guidance, such as SOP 97-2, SAB 104, SOP 81-1, and/or EITF 00-3.
Furthermore, your disclosure should separately discuss the revenue
recognition policy for each product and service that you offer and
the criteria considered in determining when to recognize revenue
for
each of the particular elements. Also, to the extent applicable,
disclose how you consider setup fees, warranty provisions,
upgrades,
discounts, rights of return, and cancellation provisions in your
revenue recognition policy.
Property & Equipment
54. Revise the notes to the financial statements to include the
major
classes of depreciable assets and accumulated depreciation for all
periods presented. See paragraph 5 of APB 12.
Stockholders` Equity
55. Revise your notes to the financial statements to include a
detailed discussion of the activity in shareholders` equity for
all
periods presented. Include a description of the significant terms
and conditions of the securities outstanding, including any
restrictions on your common stock. Refer to SFAS 129.
Part II
Exhibits, page II-2
Data Protection Services Agreement
56. We note that you provide a form of Data Protection Services
Agreement as an exhibit. Please separately file a complete copy
of
each agreement that you are substantially dependent upon.
Alternatively, refile this exhibit with a schedule identifying the
agreements that were omitted as a result of filing this form of
agreement and setting forth the material details in which the
documents differ from the document that was filed. For example,
for
each agreement omitted, provide the information that was left
blank
on the form of agreement included as an exhibit.
Subscription Agreement
57. It appears that this subsection includes representations and
warranties that contemplate an unregistered offering. For
example,
we refer you to sections 3(e) and 3(h)(1)(ii) of your subscription
agreement. Please revise your subscription agreement or
supplementally advise.
Recent Sales of Unregistered Securities, page II-2
58. Please expand your disclosure regarding the private placement
beginning on April 2003 to further explain the facts relied upon
to
make the exemption relief upon available. See Item 701 of
Regulation
S-B. For example, explain whether the purchasers were accredited
or
sophisticated with access to information.
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 staff comments and the declaration of
effectiveness 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 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 Morgan Youngwood at (202) 942-5531 or Melissa
Walsh, at (202) 942-1822 if you have questions regarding comments
on
the financial statements and related matters. Please contact
Jeffrey
Werbitt at (202) 942-1957 with any other questions. If you need
further assistance, please contact the undersigned at (202) 942-
1800.
Sincerely,
Barbara C. Jacobs
Assistant Director
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Assure Data, Inc.
Form SB-2
February 3, 2005
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