Mail Stop 0407
January 19, 2005
Mr. Kurt A. Johnson
President and Chief Executive Officer
Fastclick, Inc.
360 Olive Street
Santa Barbara, CA 93101
RE: Fastclick, Inc.
Registration Statement on Form S-1
Filed December 22, 2004
File No. 333-121528
Dear Mr. Johnson:
We have reviewed your filing and have the following
comments.
Please amend your Form S-1 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 a number of blank spaces throughout your registration
statement for information that you are not entitled to omit under
Rule 430A, such as the anticipated price range. Please note that
we
may have additional comments once you have provided this
disclosure.
Therefore, please allow us sufficient time to review your complete
disclosure prior to any distribution of preliminary prospectuses.
1.
2. Please provide us with copies of your artwork prior to
circulating
preliminary prospectuses. Since we may have comments that could
result in material revisions to your artwork, we suggest that you
provide us with enough time to finish commenting on your artwork
prior to circulating preliminary prospectuses. In order to
expedite
this process, you may submit your artwork to us supplementally.
See
Item VIII of the March 31, 2001 quarterly update to the Division
of
Corporation Finance`s "Current Issues and Rulemaking Projects
Outline."
3. We note that you include industry research for growth estimate
data and other figures cited throughout the document, such as
those
provided by the Forrester Research. Please provide us with marked
copies of any materials that support these and other third party
statements, clearly cross-referencing a statement with the
underlying
factual support. Confirm for us that these documents are publicly
available. To the extent that any of these reports have been
prepared specifically for this filing, file a consent from the
party.
Prospectus Summary
4. Please delete the second and last sentences of the italicized
introductory paragraph. In this regard, the second sentence is
not
necessary because a summary, by its nature, does not contain all
the
information. In addition, your disclosure explaining what
"Fastclick" "we," and "us" mean is unnecessary. If you make your
disclosure clear from its context, you do not need to define these
terms.
5. Please revise your summary to more clearly explain what
services/products you provide. For example, are you an
advertising
placement service? If so, revise your summary to simply state
that
this is what you do. Your use of industry jargon including, but
not
limited to, "website publishers," "managed-market bidding system,"
and "reporting suite" is too vague and technical to provide
meaningful disclosure regarding your business. Revise your entire
document, including this section and your Business section, so
that
ordinary investors have a clear understanding of what you do and
the
goods and services that you sell. We may have further comments
once
you have revised the disclosure.
6. In this regard, do not refer to providing "solutions." The
term
solution is distracting to the reader who may wonder what your
solutions are and what they are solving. And, more importantly,
this
type of vague, industry jargon does not provide investors with any
meaningful idea of what your company does.
7. Please revise to decrease the length of your summary. Consider
eliminating some of the detail. In order to make it more of a
summary, focus only on the most material terms of the offering.
In
this regard, please delete or substantially reduce the information
under "The Fastclick Solution," and "Our Strategy." This
disclosure
is too detailed for the summary and more appropriate for your
business section.
8. Further, as part of your revisions, we remind you to ensure
your
summary disclosure provides a balanced picture of your operations,
financial condition, and structure. For example, please disclose
that your top ten advertisers accounted for 47.6% of your ad
revenue
for 2003 and 44.2% for the nine months ended September 30, 2004.
As
another example, include a statement that you cannot provide any
assurance that you will benefit from the projected growth in U.S.
Internet advertising discussed under "Industry Background."
9. Eliminate the use of the unnecessary acronym "ROI" from your
summary since its meaning is unclear without the benefit of an
explanation. See Securities Act Rule 421(b). In addition, please
consider deleting "ROI" and other unnecessary acronyms appearing
throughout the remainder of the prospectus, such as "CPM," "CPA"
or
"CPC."
10. Provide us with objective support for your assertion that you
"have built one of the largest Internet advertising networks."
Upon
what standard or measure are you basing your claim?
Risk Factors, page 7
11. Please delete the last two sentences of the italicized
introductory paragraph. Once you describe all material risks, and
tailor each one to your specific facts and circumstances, you will
not need this generic boilerplate risk disclosure.
12. Please revise each risk factor caption so that it reflects the
risk that you discuss in the text. Currently, many of your risk
factor captions are unduly vague, such as "Capacity constraints
could
impair our level of service" on page 13, and do not discuss
adequately the risk that follows. Other risk factor captions
merely
state a fact about you, such as "Some of our advertisers may not
be
able to pay for our services" on page 18, or allude to a future
event, such as "We will incur increased costs as a public company"
on
page 23. These are only examples. Revise throughout to identify
briefly in your captions the risks that result from the facts or
uncertainties. Potential investors should be able to read the
risk
factor captions and come away with an understanding of what the
risk
is and the result of the risk as it specifically applies to you.
As
a general rule, your revised captions should work only in this
document. If they are readily transferable to other companies`
documents, they are probably too generic. Please revise
accordingly.
13. Please avoid the generic conclusion in the captions and
discussions that if a risk occurs, your business and results of
operations could be harmed. This does not represent meaningful
disclosure. Instead, replace this language with specific
disclosure
of the possible impact upon your operating results, business,
liquidity, cash flow, financial condition, share price, etc.
If we offer new solutions that compete with products..., page 11
14. In order for investors to put this risk in context, please
discuss how you may compete with your customers and providers in
the
future.
If we do not adequately protect our intellectual property..., page
13
Third parties may sue us for intellectual property
infringement...,
page 13
Disputes with advertisers or website publishers..., page 17
We could lose advertisers..., page 18
We may be liable to content displayed on our network..., page 19
15. In order for investors to understand the likelihood of these
risks, please discuss the extent to which you have experienced the
above risks in providing your services.
The price that some of our advertisers pay for advertising...,
page
14
16. Please disclose what you mean by "impression," "action," or
"click" with respect to your billing methods.
Changes in government regulation and industry standards..., page
15
17. This risk factor appears to contain multiple risks. Please
consider discussing as a separate risk the uncertainty associated
with your estimates of income taxes and other tax liabilities.
New technologies could block our ability to serve
advertisements, page 17
18. To provide investors with a meaningful understanding of this
risk, revise to quantify the "substantial portion" of your
revenues
attributable to your deployment of pop-under ads.
We do not intend to pay any cash dividends..., page 23
19. Please revise to clarify the risk to you and your investors
resulting from your intention not to pay cash dividends on your
common stock.
Use of Proceeds, page 26
20. Currently, your disclosure indicates that you intend to use
the
proceeds from the offering for "general corporate purposes,
including
working capital." To the extent possible, please revise to more
specifically identify and quantify the amount of proceeds to be
used
for particular purposes. For example, do you intend to dedicate
any
portion to the planned increase in your research and development
efforts or to the "significant resources" you plan to invest in
your
sales and marketing organization?
Management`s Discussion and Analysis..., page 31
Components of our Operating Costs and Other Items, page 33
21. If material, provide quantified discussions of the expected
increases in expenses mentioned throughout this section and the
section entitled "Trends that Affect our Business," to the extent
known. For instance, have you estimated the increase to your
general
and administrative expenses associated with the costs related to
being a public company? Also address how you intend to pay for
the
anticipated increase in expenses.
Trends that Affect our Business, page 34
22. We note your disclosure on page 34 regarding the various
components affecting your revenue growth. Please discuss how you
expect your revenue mix to change as you expand your business and
discuss the impact that this change will have on your revenues
going
forward.
23. Please discuss why you expect your gross margins to increase
as
it appears that paying for advertising space on a CPM-basis is
more
costly, particularly when your advertisers appear to be moving
toward
CPA and CPC-based pricing models.
Liquidity and Capital Resources, page 39
24. Please expand your discussion of liquidity and capital
resources
to provide a clear picture of your company`s ability to generate
cash
and meet existing and known or reasonably likely short-term and
long-
term cash requirements. Also provide a more detailed analysis of
the
factors contributing to the variability and uncertainties of cash
flows. For example discuss the impact of deferred revenue, cash
receipts from sales and cash payments for expenditures.
25. Describe and quantify the impact of this offering on your
liquidity and results of operations.
Contractual Obligations, page 41
26. We note your table of contractual obligations, including those
relating to bandwidth and content delivery. Revise to include
provisions that create, increase, or accelerate obligations and
the
course of action you may propose in response to such action. Also
include the nature and business purpose of each contractual
obligation and the importance of each arrangement. Refer to
Regulation S-X, Item 303 and Release No. 33-8056.
Business, page 45
Industry Background, page 45
The Fastclick Solution, page 47
Our Strategy, page 49
27. Currently, you discuss your industry, competitive strengths,
and
strategy prior to discussing your actual business operations. To
provide readers with the appropriate context and background in
assessing your strengths and strategy, move these sections so that
they at least follow the discussion of your products.
The Fastclick Solution, page 47
28. Revise the first bullet point to clarify what you mean by ads
using "the most effective creative content" and the basis on which
you determine the websites that are the "highest performing" ones.
Our Strategy, page 49
29. Provide specific timeframes for your plans discussed
throughout
this section, such as enhancing your Optimization Engine and
hiring
additional personnel. Also disclose the specific aspects of your
plans, such as how you intend to improve the functionality of your
managed-market bidding system, to the extent practicable.
Our Advertisers, page 50
30. Disclose the fact that one advertiser accounted for 11.2% of
your
revenues for the year ended December 31, 2003 and 11.6% of your
revenues for the nine months ended September 30, 2003, as
indicated
on page F-10 of your financial statements. If the loss of such
customer would have a material adverse effect on you, then revise
to
disclose the identity of the advertiser. See Item 101(c)(vii) of
Regulation S-K.
Technology, page 51
31. We note your disclosure on page 15 that you intend to launch
an
advertising search engine. Please discuss this technology and how
it
will assist in providing your services. Address how your
technology
differs from the search engines provided by potential competitors
such as Google and Yahoo!, if at all.
Competition, page 52
32. Please revise this section to explain better the various
products
your competitors offer, and how their products, relationships, and
distribution methods compare to yours. Are products in each
market
relatively interchangeable?
33. To the extent reasonably known, provide quantified disclosure
of
your market shares in each of your markets. See Item 101(c)(x) of
Regulation S-K.
Intellectual Property, page 53
34. Please discuss in further detail the technology and databases
that you license from third parties and discuss the extent to
which
your business is reliant upon these licenses. We remind you to
file
the license agreements, if material, and any other material
contracts
as exhibits to the registration statement pursuant to Item
601(b)(10)
of Regulation S-K.
Certain Relationships and Related Transactions, page 69
35. Disclose the amounts paid to each executive officer, director
and
affiliate in connection with the repurchase of 1,562,944 shares of
your common stock in September of 2004.
36. Identify the executive officers and directors that are parties
to
the Investors` Rights Agreement. In this regard, we note your
reference to executive officers and directors here, but the
disclosure under "Description of Capital Stock - Registration
Rights"
does not name them. Also describe the specific nature of the
relationships that your directors have with the purchasers of your
Series A Preferred Stock.
Principal and Selling Stockholders, page 70
37. Please disclose who has voting and investment control over the
shares held by Highland Capital Partners, Oak Investment Partners,
and Steamboat Ventures (and their affiliated entities if
applicable).
38. Tell us whether any of the selling stockholders are broker-
dealers or affiliates of broker-dealers. We may have further
comments.
Underwriting, page 78
39. State that the selling stockholders may be deemed to be
underwriters or advise us why you believe such a statement is
unnecessary.
40. Disclose how many shares are subject to the lock-up agreement.
Indicate any current intention to release the shares subject to
the
lock-up, and disclose what factors the underwriters will use in
any
determination to release those shares.
41. When the information is available, describe the factors
considered in determining the offer price in accordance with Item
505(a) of Regulation S-K. Address whether one of the factors was
the
price at which the company sold the Series A Preferred Stock.
42. Please identify any members of the underwriting syndicate that
will engage in any electronic offer, sale or distribution of the
shares and describe their procedures to us supplementally. If you
become aware of any additional members of the underwriting
syndicate
that may engage in electronic offers, sales or distributions after
you respond to this comment, promptly supplement your response to
identify those members and provide us with a description of their
procedures.
Briefly describe any electronic distribution in the filing.
Also, tell us how your procedures ensure that the distribution
complies with Section 5 of the Securities Act. In particular,
please
address:
* the communications used;
* the availability of the preliminary prospectus;
* the manner of conducting the distribution and sale, such as
the
use of indications of interest or conditional offers; and
* the funding of an account and payment of the
purchase
price.
Alternatively, to the extent that our Division has reviewed your
procedures, please confirm this and tell us if you have changed or
revised your procedures subsequent to our clearance.
Further, 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, describe the material terms of your agreement, and
provide
us with a copy of any written agreement. Provide us also with
copies
of all information concerning your company or prospectus that have
appeared on their website. Again, if you subsequently enter into
any
such arrangements, promptly supplement your response.
Finally, tell us whether any members of the selling group have
made
copies of the preliminary prospectus available over the internet.
If
so, tell us when. If not, tell us if they intend to do so. In
this
regard, note that we would consider this posting a circulation of
the
preliminary prospectus.
We may have further comment.
43. We note that you intend to reserve shares for sale to your
directors, employees, and others. Supplementally describe the
mechanics of how and when these shares were or will be offered and
sold to investors in the directed share program for this offering.
For example, tell us how the prospective recipients and number of
reserved shares is determined. Tell us how and when the issuer
and
underwriter notified or will notify the directed share investors,
including the types of communications used. Discuss the
procedures
these investors must follow in order to purchase the offered
securities, including how and when any communications are sent or
received or funds are received by the underwriters or you. Tell
us
how the procedures for the directed share program differ from the
procedures for the general offering to the public. Provide us
with
copies of all written communications with prospective purchasers
about the directed share program. Alternatively, to the extent
that
our Division has reviewed your procedures, please confirm this and
tell us if you have changed or revised your procedures subsequent
to
our clearance.
Financial Statements for the Year Ended December 31, 2003
Consolidated Statements of Operations, page F-4
44. Disclose earnings per share data on the face of your income
statement pursuant to paragraphs 36 - 38 of SFAS 128. You should
also report this information within the Selected Financial Data
and
the Summary Financial Data.
45. Please present pro forma earnings per share data for the most
recent year and subsequent interim period to give effect to the
number of common shares that will be issued upon the conversion of
the Series A preferred stock. In addition, since your pro forma
information will give effect to more than an adjustment for income
taxes, you should limit this pro forma information to the most
recent
year and subsequent interim period. Also, please make similar
revisions in your Selected Financial Data and the Summary
Financial
Data.
Note 1 - The Company and Summary of Significant Accounting
Policies,
page F-7
46. We note your brief discussion for FASB Standard 123R. Revise
your disclosures to address Question 2, SAB Topic 11:M.
Specifically, please include:
* the date that you plan to adopt the standard, if earlier;
* a more detailed discussion of the methods of adoption allowed by
the standard and the method expected to be utilized by the
registrant; and
* a statement whether it is known or estimable of the impact that
adoption of the standard is expected to have on the financial
statements.
Note 5 - Allowance for Doubtful Accounts, page F-16
47. We note that your allowance for doubtful accounts has
significantly increased. Please disclose your policy for
recording
an allowance for doubtful accounts and explain, as necessary, your
credit risks.
Note 6 - Related Party Transactions, page F-17
48. Clarify how much you paid to Jeff Pryor for previously accrued
royalties and how much you paid for the domain name
"Fastclick.com."
Notes 10 and 11 - Stock Options and Compensation, pages F-20 to F-
23
49. In light of the $35.19 valuation established in connection
with
the company`s repurchase of 1,562,944 shares of common stock, we
do
not understand the basis for your conclusion that the exercise
price
per share for the options issued under the 2004 Stock Incentive
Plan
was the fair value of the company`s common stock at the date of
grant. We also note in the second paragraph in footnote 12 that
you
disclose that the fair market value of the company`s common stock
was
$35.19 per share in September 2004. Please revise your accounting
and/or advise us in detail. Also, please tell us your anticipated
offering price per share.
50. In regard to the above comment, if your common stock
valuations
are appropriate then this may suggest that there was a significant
compensatory element in the repurchase of the shares held by your
founders and employees. Refer to paragraph 37 of SFAS 123 and
advise
us or revise your financial statements, as necessary.
51. Please provide all of the disclosures recommended for IPOs in
paragraphs 179 - 182 of the AICPA Practice Aid "Valuation of
Privately-Held-Company Equity Securities Issued as Compensation."
General
52. Please note the age of financial statements requirements in
Rule
3-12 of Regulation S-X.
53. An updated auditor`s consent must be included with any
amendment
to each filing.
Exhibits
54. Please file your exhibits as soon as possible. In particular,
provide us with at least draft copies of the legality opinion and
underwriting agreement with your next amendment. We will need
adequate time to review and comment upon these and other exhibits.
* * * *
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. Indicate in the cover
letter
where you have made changes in the amendment. Detailed cover
letters
greatly facilitate our review. Please file your cover letter on
EDGAR.
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 Drew Walker, Staff Accountant, at (202) 942-
2893 or Robert Littlepage, Accountant Branch Chief, at (202) 942-
1947
if you have questions regarding comments on the financial
statements
and related matters. Please contact Reginald A. Norris, Staff
Attorney, at (202) 942-2875 or me at (202) 942-1990 with any other
questions.
Sincerely,
Michele M. Anderson
Legal Branch Chief
cc: via facsimile (805) 568-1955
C. Thomas Hopkins, Esq.
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Mr. Kurt A. Johnson
Fastclick, Inc.
January 19, 2005
Page 11