Mail Stop 4-6
February 25, 2005
Mr. Jerome R. Mahoney
Chairman of the Board
Deep Field Technologies, Inc.
750 Highway 34
Matawan, New Jersey 07747
Re: Deep Field Technologies, Inc.
Amendment No. 1 to Registration Statement on Form SB-2 filed
January 13, 2005
File No. 333-120506
Dear Mr. Mahoney:
We have reviewed your filing and have the following comments
which we summarized and communicated to your counsel, Scott
Rosenblum, Esq. of Kramer Levin Naftalis & Frankel LLP on February
10, 2005.
General
1. We note your response to our prior comment no. 1. We
acknowledge
that you have entered into an agreement. However, we reiterate
that
the structure of your `equity line` transaction does not fit the
necessary parameters for a valid equity line financing with
respect
to our guidance concerning such financings. In particular the
necessary purchase commitment of the investor was not established
in
an equity line agreement prior to the filing of the resale
registration statement for the equity line shares. We do not
concur
with your assertion that you may subsequently satisfy the
conditions
we cited in the prior letter and use the existing equity line at
that
time. See Interpretation 4S of the March 1999 supplement to the
telephone interpretation manual. Your reference to an `equity
line`
arrangement in a manner that suggests it is or will become a
source
of funding on which you and investors may rely is not appropriate.
Please revise the disclosure throughout the filing to remove any
implication that the agreement you refer to as an `equity line`
provides you with a viable mechanism to obtain needed financing.
In
this regard, your summary, risk factors and management`s
discussion
and analysis, as well as the reference on page F-15 should all be
revised to provide investors with information concerning this
agreement that will not be readily misinterpreted. In the context
of
an agreement that does not provide a viable source of financing,
we
do not understand why detailed descriptions of the financial terms
of
the agreement or the procedures associated with hypothetical
performance under that agreement conforms to the requirements of
Rule
421(b).
2. It appears that Cornell Capital, the proposed investor under
your
current equity line agreement, holds convertible or exercisable
securities with conversion prices or exercise prices that will
fluctuate with a market price rate. Please be advised that equity
line agreements with any proposed investor that holds convertible
or
exercisable securities that have market-price sensitive conversion
or
exercise prices will not be viewed as arrangements that are
binding
on the investor in the manner required by Interpretation 4S of the
March 1999 supplement to the telephone interpretation manual. We
note that the purchase obligation of the holder of the security
with
a market-sensitive conversion or exercise rate under the equity
line
can affect the purchase obligations under the equity line.
Prospectus Summary
Overview, pp. 1-3
3. We note your revised disclosure in response to our prior
comment
no. 9. Please disclose the cash balance iVoice will be retaining
in
your discussion of what iVoice`s management and board considered
in
establishing your initial capitalization. Please also
supplementally
inform us why iVoice will need to expand its research and
development
efforts in light of your disclosure in the first paragraph which
seems to suggest that iVoice`s business will solely consist of
licensing its current intellectual property assets.
Risk Factors
4. Please include a risk factor discussing the penny stock rules
and
the additional risks classification of the securities as a "penny
stock" poses to shareholders.
Deep Field Technologies has in the past and may in the future sell
additional unregistered convertible securities..., pp. 14-16
5. We note your new risk factor in response to our prior comment
no.
7. Your statement in the second bullet of the risk factor
discussing
a risk of "increasing the potential profits to the holder when the
price per share later increases" does not appear to be a risk to
investors. Your current investors would share proportionately in
an
increasing share price. It appears that the pertinent risk is a
further depressed stock price as the shares are issued in greater
numbers and at a discount to the market price. A sale of such
shares
in the market would likely result in further downward pressure on
the
stock price. Please revise or otherwise explain to us why this is
a
risk.
Deep Field Technologies may depend on distribution by resellers
and
distributors for a significant portion of revenues, p. 19
6. Please disclose whether you have a material relationship, if
any,
with a distributor or reseller. Do you derive a significant
amount
of your sales from a single distributor or reseller?
Additionally,
such material agreements, if any, and any related assignment and
consent may need to be filed as exhibits to the registration
statement. Please see Item 601(b)(10) of Regulation S-K. Be
advised
that agreements with customers contributing in excess of ten
percent
of your revenues generally will not be viewed by us as "ordinary
course" contracts. Further, please reconcile your disclosure
under
"Dealer and Reseller Relationships" on page 40 with your
disclosure
in this risk factor and specify on page 40 the percentage of your
sales that are derived on a direct basis.
The Distribution of Deep Field Technologies Class A Common Stock
may
result in tax liability to you, p. 23
7. We note your response to our prior comment no. 35. The
business
appears to have historically generated book-basis losses and would
appear to do so again in the current fiscal year. Why do you
believe
these financial accounting results will vary substantially from
the
tax-basis results? Notwithstanding your assertion that the
transaction is a taxable transaction, the transaction appears to
effectively be tax-free and would likely be understood as such by
investors in accordance with the tax formulation you present.
Please
provide a tax opinion supporting the tax consequences you
describe.
Please also consider setting forth in your tax section an example
of
how a sample stockholder determines their tax liability based on
your
earnings and profit.
In light of the fact that your current earnings and profit cannot
be
determined until year-end and that the determination of such
earnings
and profit for tax purposes may differ from such determinations
for
financial reporting purposes, please discuss whether you or iVoice
intends to provide such earnings and profit information to your
distributee-shareholders when available or otherwise how they may
obtain such information. Please also clarify your disclosure to
indicate whether the earnings and profit for each shareholder are
calculated on a pro rata basis as of the date of the distribution.
Also discuss in the tax section the risks and tax implications to
a
shareholder of a sale of your stock when the current earnings and
profits information is not known to them.
Further, your response states that the governing rule is that the
distribution is taxable to the extent of the lesser of (1) the
fair
market value of the shares and (2) the earnings and profit. Your
disclosure, however, seems to suggest that a distributee-
shareholder
will be taxed on the fair market value of the shares to the extent
of
any earnings and profit with any excess treated as a tax-free
return
of capital and thereafter as capital gain. Please explain.
Please also revise the tax matters disclosure to specify the date
upon which the fair market value of the shares received in the
distribution will be determined for purposes of determining their
basis.
Management`s Discussion and Analysis of Financial Condition and
Results of Operations
Overview, pp. 26-27
8. We note your disclosure in your prospectus summary discussing
the
board`s balancing of iVoice`s prospective capital requirements
with
the more likely ability of obtaining financing for the unified
messaging software business. Your disclosure in this section
starting with the sixth sentence of the last paragraph of this
section suggests otherwise. Please also reconcile your statement
that
"the board has elected not to transfer any part of the working
capital balance of iVoice" with the following statement that
"iVoice
has the ability to satisfy its working capital needs." Please
clarify your disclosure.
Separation from iVoice, pp. 27-29
9. With respect to your disclosure regarding the administrative
services agreement, do you plan to seek replacement services or
provide the services for yourself in the near future? We note
your
response to our prior comment no. 31 stating your intent to
maintain
the agreement for the foreseeable future as well as your lack of
any
current plans to expand personnel.
Results of Operations for the Nine Months Ended September 30, 2004
as
Compared with the Nine Months Ended September 30, 2003, pp. 29-30
10. The discussion of gross margin for the years ended December
31,
2002 and 2003 and the nine months ended September 30, 2003 and
2004
mentions a change in the products and services mix being sold, by
providing more consulting and maintenance services. However, the
section on critical accounting policies for revenue recognition
discloses that the company derives 100% of its revenues from
licensing of the company`s product and none from optional support
services. We note that the financial statements do not disclose
that
the company has generated revenues from services, or that it is
engaged in consulting. Please revise to be consistent. Further,
please provide disclosure in your business section with respect to
the consulting and maintenance services that you provide. Also
explain to us the basis for attributing the change in gross margin
to
product/service mix as opposed to price changes. Did price
changes
play a role in the change of gross margins for the nine-month and
fiscal year periods? Please also disclose the nature of the
change
in product mix and why such change occurred.
Results of Operations for the Year Ended December 31, 2003 as
Compared with the Year Ended December 31, 2002, pp. 30-31
11. Please reconcile your statement that you intend to pursue
additions to sales and management staff with your statement in
liquidity and capital resources that management has no current
plan
to hire additional employees.
Liquidity and Capital Resources, pp. 31-34
12. Please revise your disclosure in the second paragraph of this
section. It does not appear that you are raising any proceeds in
this public offering. Further, please file the agreement whereby
Messrs. Mahoney and Meller have agreed to accept Class B common
stock
in satisfaction of your obligations under their employment
agreement.
If an oral agreement, please file a written description of the
material terms of such agreement. Please also revise your
disclosure
to discuss the material terms of the agreement. At what price
will
the Class B common stock be exchanged for your obligations under
their employment agreements?
13. We note your revised disclosure regarding the fee to be paid
to
Cornell Capital Partners in connection with the convertible
debentures. Please disclose whether this fee has been paid and
describe how it will be paid.
14. We note your revised disclosure in the second paragraph on
page
32. Please clarify the minimum duration of the period for which
you
expect the annual going-forward expenses will be no more than
$240,000. Please elaborate on the minimum period of planned
operations you expect you will be able to fund with the proceeds
from
the sale of the secured convertible debentures.
15. Please explain the events that led to and the basis for the
change in aggregate book value of the unified messaging software
business assets from $250,000 to $3,000 and when such a change was
determined necessary. Was a third-party valuation made of the
assets
which resulted in the revaluation?
Deep Field Technologies` Management
16. Please identify Mr. Meller as a director in your table
presentation.
Employment Agreements, pp. 43-46
17. In your revised disclosure with respect to Messrs. Mahoney and
Meller`s employment agreements, please elaborate on the fact that
there are only two directors, each of which is a party to their
respective employment agreements, and explain how this affects the
board`s ability to determine that a future termination is for
cause.
Certain Relationships and Related Transactions
18. Please provide disclosure with respect to the security
agreement
and registration rights agreement with Cornell Capital. Please
also
include a risk factor discussing the risk to shareholders related
to
Cornell Capital`s security interest in substantially all of your
assets.
19. Please file the executed note made in favor of Mr. Mahoney for
the principal amount of $190,000 as an exhibit and supplementally
inform us how the form of note differs from the executed note, if
at
all. Please note that the exhibits have been filed without
conforming signatures. The signatures and any other manual
additions
to the document are a part of the agreements required to be filed.
The Distribution
Results of the Distribution, p. 55
20. Please supplementally respond to our inquiries in prior
comment
no. 57. Do you intend to adjust the distribution ratio so that
the
10 million shares will be allocated among the holders? Is this
why
you have removed the reference to the 1-for-874 share
distribution?
Please explain how and when you will compute distribution ratio to
achieve the issuance of the desired 10 million shares. Will the
shares held in aggregate by nominee holders or each beneficial
owner`s shareholdings be used to determine the shares issuable as
well as serve as the basis for any rounding determinations?
Further,
please supplementally provide us with an analysis of what you
would
do in terms of updating your disclosure, if you were to change the
Distribution ratio after the effective date. Would you be able to
make this change by prospectus supplement and, if so, what is the
basis for such belief?
Financial Statements
21. Please advise us supplementally of the reasons that general
and
administrative expenses and other income have been reduced by
$2,511
during the nine months ended September 30, 2004.
Pro Forma Financial Information
22. Please refer to prior comment 69. It appears that no revision
to
the historical financial statements has been made to reflect the
$250,000 impairment charge previously reported as a pro forma
adjustment. Please revise or advise us supplementally of the
reasons
why such revision should not be made.
* * * *
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.
You may contact Maureen Bauer at (202) 942-1824, or Tia
Jenkins
at (202) 942-1902, if you have questions or comments on the
financial
statements and related matters. Please contact Daniel Lee at
(202)
942-1871 with any other questions. If you need further
assistance,
you may contact me at (202) 942-1818 or Barbara Jacobs, Assistant
Director, at or (202) 942-1800.
Sincerely,
Mark P. Shuman
Branch Chief - Legal
cc: Via Facsimile
Scott Rosenblum, Esq.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
Telephone: (212) 715-9100
Facsimile: (212) 715-8000