July 1, 2005
Room 4561
David Brown
Chief Executive Officer and President
Website Pros, Inc.
12735 Gran Bay Parkway West, Building 200
Jacksonville, Florida 32258
Re: Website Pros, Inc.
Amendment No. 1 to Form S-1
Filed on June 8, 2005
File No. 333-124349
Dear Mr. Brown:
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.
Amendment No. 1 to Form S-1
General
1. We note your response to prior comment 4. As previously
requested,
please clarify for us whether the fees associated with the Jupiter
Research and International Data Corporation Reports are nominal.
Prospectus Summary, page 1
2. We reissue prior comment nine from our last letter dated May
27,
2005. We requested that you revise the italicized paragraph to
clarify that the summary contains the material terms of the
offering.
Instead, it appears that you revised to state only that your
summary
does not contain all information important to investors. Please
revise.
Our Business, page 1
3. We note your response to our prior comment 11 adding strategic
relationship disclosure to your business discussion. In the
summary, please briefly clarify that you do not have any
agreements
with Network Solutions and IBM.
Recent Acquisitions, page 3
4. We reissue comment 13 from our last letter. Please disclose
the
total amount of non-cash consideration paid to acquire Leads.com,
Inc. and substantially all of the assets of E.B.O.Z., Inc.,
including
the contingent amount of 927,624 additional shares as disclosed on
page 24. We note that on page F-47, you already disclose the
estimated fair value of Leads.com as totaling $12,880,000.
Risk Factors, page 7
Our systems, and those of our co-location provider, are vulnerable
to
natural disasters . . ., page 10
5. Please revise this risk factor to clearly convey to investors
that
you do not own or lease a co-location facility, but rather hold a
contract with a third party that provides co-location facility and
services.
We may be unable to protect our intellectual property adequately
or
cost-effectively. . . , page 13
6. Please revise this risk factor or create a separate risk factor
to
specifically address the risk of your dependence on open source
code,
as mentioned on page 60 of this prospectus, and how your use of
such
unprotected open source code, even if only a portion of your
overall
subscription service programming. Further, please revise your
business section to specifically address the extent to which your
third party providers utilize open source code in your products.
Use of Proceeds, page 19
7. We reissue comments 20 and 21 from our last letter. While you
state that you have not made any specific plans with respect to
the
use of the net proceeds, we note your continued disclosure
referring
to specific plans to fund:
* sales and marketing expenses;
* research and development expenses;
* capital expenditures; and
* acquisitions and investments in businesses, services, products
or
technologies complementary to your current business.
It is unclear whether you would be able to fund all of these
expenses
and planned expansions of services and staff without utilizing
offering proceeds. Your MD&A continues to describe your intention
to
upgrade and extend your service offerings, develop new
technologies,
expand domestic and international activities, hire additional
sales
personnel, website development staff, professional service and
custom
design resources. Utilizing bullet points rather than a serial
list,
please revise to quantify the amount of your proceeds allocated to
each use or advise how you intend to fund these expenditures.
Management`s Discussion and Analysis of Financial Condition and
Results of Operations, page 24
Key Business Metrics, page 25
8. Regarding prior comment 26 from our last letter, please explain
to
us and disclose the nature and duration of the attempts you make
to
maintain subscribers. Describe your historical success rate after
three and six months of attempts. Tell us how you factor your
success rate into your subscriber count. For example, if after
three
months of attempts and you historically retain only 25% of non-
paying
subscribers do you reduce your subscriber counts of non-paying
subscribers by an estimate related to that historical retention
rate?
Restatement, pages 25-26
9. We note your discussion of the reclassification of convertible
redeemable preferred stock. Please revise your disclosure to
quantify this $20,829,000 reclassification.
Quarterly Results of Operations, page 41
10. Please revise your presentation to provide a table indicating
the
line items to which "stock-based compensation" is attributable.
Recently Adopted and Recently Issued Accounting Standards, page 45
11. Your revised disclosures indicate that you have classified
your
preferred stock between liabilities and stockholders` equity
because
it is redeemable. Presentation between liabilities and equity is
appropriate when an instrument is "conditionally redeemable."
Please
advise.
Business, page 47
12. In connection with your response to prior comment 32, please
briefly discuss the negotiated share conversion ratio, the amount
of
consideration paid to Innuity for this transaction, and the
business
reasoning for the recapitalization as the optimum form of business
transaction.
Strategic Marketing Relationships, page 57
13. We note your amended disclosure responding to prior comment
33.
Please revise to include a summary of all material terms of your
Discover Financial agreement, such as the duration term and any
material revenue sharing ratios, consistent with your recent
confidential treatment request (#16730). We will provide you with
any
comments regarding this request under separate cover.
Intellectual Property, pages 59-60
14. Noting your response to prior comments 34, 35 and 36 stating
that
you own your software products outright and are not substantially
dependent on third parties, with a view toward disclosure, please
advise us as to:
* How you define owning your software products "outright;"
* Which of your software products utilize open source code and the
specific type of open source software being used, e.g. Linux,
MySQL
or GNU;
* Why you believe your relationship with these non-employee third
party contractors afford you outright ownership such as work made
for
hire status rather than an assignment or license;
* Why you believe that despite assistance from third party
developers, you have not created joint works;
* How your sales of software licenses may be impacted by your use
of
open source code; and
* Why you believe your usage of open source code does not require
you
to publicly disclose your software code, which may substantially
rely
on open source code to function properly.
Employment Agreements, page 67
15. We reissue prior comment 43 from our last letter requesting
disclosure of the material terms of the referenced employment
agreements, including bonuses, any performance goals, and other
material terms. For example, we note that your employment
agreement
with Mr. Brown filed as Exhibit 10.7 refers to a target annual
bonus
of up to 50% of his annual base salary and Mr. Carney`s agreement
refers to a target annual bonus of up to 40% of his annual base
salary.
Change of Control Provisions, page 67
16. Discuss the cash severance benefit associated with the
executive
severance benefit plan.
Certain Relationships and Related Party Transactions, page 77
17. We reissue prior comment 48 from our last letter requesting
you
state the amount of consideration paid for the listed transactions
and briefly disclose how management determined the share prices
for
each transaction. Please explain what you mean when you say that
you
"did not negotiate these transactions based on the value of the
shares issued or subject to the warrant or based on a price per
share, in any of the referenced transactions."
Shares Eligible for Future Sale, page 90
Lock-Up Agreements, page 91
18. We note your response to prior comment 53 from our last
letter.
Please advise us as to the circumstances that a particular
shareholder could unilaterally request and receive a release from
the
FBR lock-up agreement.
Underwriting, page 93
19. In connection with comment 57, we note your statement that
electronic invitees may be subject to lock-ups. Please describe
how
FBR will determine who among the electronic invitees will be
subject
to lock-up agreements.
20. We also note in your response to prior comment 57 you state
that
invitees may generally be allowed to modify or cancel his or her
conditional offer until the time of pricing. Please tell us the
facts and circumstances whereby invitees will not be allowed to
cancel their conditional offers.
21. Please revise your disclosure to convey as described in your
response to prior comment 57 that the allocation among invitees
will
be made in the registrant`s sole discretion.
Financial Statements - Website Pros, Inc.
Report of Independent Registered Public Accountants, page F-2
22. Revise the date of the audit report to refer to the date of
Note
2.
Consolidated Statements of Stockholders` Equity (Deficit) and
Convertible Redeemable Preferred Stock, page F-5
23. We note that you have now included an unaudited pro forma
consolidated balance sheet to reflect the assumed conversion of
your
convertible redeemable preferred stock. Tell us why you have not
presented a statement of stockholders` equity as of March 31, 2005
reflecting such conversion. We may have further comment.
Note 1. The Company and Summary of Significant Accounting
Policies,
page F-7
Revenue Recognition, page F-7
24. We note your response to prior comment number 62. Your
response
and revised disclosures refer to vendor-specific objective
evidence.
Tell us how this reference complies with paragraph 12 of EITF 00-
21.
Tell us how the "respective fair value" addresses the requirement
that the arrangement consideration should be allocated to the
separate units of accounting based on their relative fair values.
25. You further indicate in response to prior comment number 62
that
the customer support and technical support services were provided
as
outsourcing services for a third-party and were unrelated to your
customized website services. On page 27 you disclose that cost of
revenue includes customer support costs and compensation for your
technical support staff. Please explain to us the services these
staff are providing and explain how they are not considered
support
services. Explain their relationship to the customer support and
technical support services provided only in 2002 and prior.
26. We note your response to prior comment 63. Tell us why you
believe labor hours are the appropriate input measure for the
proportional performance model in measuring Website design
services
revenue. Explain why you did not use output measures such as
interim
deliverables or milestones to measure performance.
27. We note the revisions you have made regarding rights of return
for your distributors. Please revise to address any rights of
return
you allow for sales you make directly to the end user.
28. We note your response to prior comment number 68. You
indicate
that certain distributors pay upon the sale of the software
license
to the end-user. Tell us how long it typically takes for your
distributors to sell your software licenses to an end user and
explain how these terms affect the revenue recognition and credit
collection for these sales. Your response indicates that your
disclosures on pages 29 and F-8 were revised to disclose the
revenue
recognition policy related to distributors who pay upon shipment
of
the software product to end-customers. Please tell us where your
disclosures include such revisions or revise accordingly.
29. You disclose on page 57 that you customize the NetObjects
Fusion
software in order to include it in your OEM`s products. Describe
the
nature of these services and indicate whether they are essential
to
the functionality of other elements of your arrangements. Tell us
how
you recognize revenue for these services and explain how you have
considered paragraphs 7 and 63 to 71 of SOP 97-2.
Stock-Based Employee Compensation, page F-11
30. You disclose that in the absence of a liquid market for your
stock you determined the fair value to be $0.40. Page 28 of your
response appears to indicate a fair value of $0.29. Please
advise.
Note 5. Acquisition of Assets from Innuity, Inc., page F-16
31. We note your response to prior comment number 74 and have the
following comments:
* Explain to us why you believe the cost approach valuation was a
more appropriate method of valuation than the market approach.
* Tell us what consideration you gave to weighting some
combination
of the methods used.
* Explain the basis for a 25% book value discount on "other long-
term
assets."
* We note that you have used diluted common stock outstanding in
calculating the per share value under the cost approach yet you
have
used common stock outstanding in your market approach valuation.
Please explain to us why you have used different shares
outstanding
amounts in these calculations.
* Tell us whether the enterprises used in the market approach were
public or private enterprises. If these enterprises were public
enterprises, tell us how you considered the use of a marketability
discount.
* Describe in detail how you calculated the value using the
discounted cash flow approach. Tell us through what year you
projected the operating results used in the valuation.
Note 9. Stock Based Compensation Plans, page F-18
32. We have considered your responses to prior comments number 76
and
do not believe the method used to determine the fair value of
shares
underlying stock options awarded is appropriate. In this regard,
we
note that the values of common shares underlying stock options
granted in the period June to December 2004 were determined based
on
a straight-line appreciation of value of your preferred stock.
This
method does not appear to be objectively supportable or based on
generally accepted valuation methodologies. In view of this,
supplementally tell us how you considered the guidance provided in
paragraph 4 footnote 4 and paragraph 131 of the AICPA Practice Aid
"Valuation of Privately-Held-Company Equity Securities Issued As
Compensation" (the "Practice Aid"). In addition, explain why you
believe that use of a straight-lining method between two disparate
points of time is not inconsistent with the condition in paragraph
11
of the Practice Aid which would call for the preferred stock to be
a
current transaction.
33. In supporting your belief that straight-line appreciation is
reasonable you indicate that revenue of the Company was growing on
a
relatively consistent basis over that period. For fiscal 2004
provide your monthly profit and loss statements and describe any
significant events that you did or did not consider as possibly
impacting the company.
34. Supplementally, tell us whether your independent auditor
consulted with their national office with respect to the valuation
of
common shares underlying your option awards. If so, please
provide
the name of the person with whom they consulted.
35. We note your response to prior comment number 77 regarding the
use of Series A and B convertible redeemable preferred stock to
value
your common stock. We note you have used what appears to be an
arm`s-length cash transaction of preferred stock with unrelated
parties as an "observable price" for purposes of determining a
quoted
market price of your stock. The conditions in paragraph 11 of the
Practice Aid call for equity securities in such transactions to be
the same securities as the common stock for which the fair value
determination is being made and the transaction is, among other
things, a current transaction between willing parties not under
terms
or condition arising from a prior transaction. Tell us how your
use
of the Series A and B convertible redeemable preferred stock in
valuing your common stock complies with paragraph 11 of the
Practice
Aid.
36. We note your response to prior comment number 78. Please note
that we may have further comment once you determine your proposed
IPO
price or become aware of the estimated price range.
37. Revise to include the disclosures in paragraph 182 (b) of the
Practice Aid.
Note 18. Subsequent Events, page F-28
Acquisitions, page F-30
38. We note your response to prior comment number 81.
Supplementally
tell us how you determined the fair value of the shares issued in
the
E.B.O.Z acquisition. Tell us what valuation methods you used to
determine the common stock fair value, tell us whether you used a
third-party valuation specialist and when the valuation was
performed. Explain any disparity between the common stock fair
value
determinations and your expected IPO price. Describe and disclose
the material assumptions used in your valuations. Tell us what
consideration you gave to incorporating the valuation for shares
issued in the E.B.O.Z. acquisition into your stock based
compensation
valuations for 2004.
39. Confirm to us that you have not included the 927,624 shares,
which are contingently issuable, in the determination of the
purchase
price. Disclose your intended accounting for these shares.
Additionally, revise your disclosure to disclose the total
purchase
price of the E.B.O.Z acquisition. Also tell us how you considered
the contingently issuable shares when calculating significance
under
the investment test.
Financial Statements - Leads.com Inc.
Note 2. Property and Equipment, page F-39
Intangible Asset
40. We note your response to prior comment number 83. You
indicate
that there are no legal, regulatory or contractual factors which
would limit the life of the asset. Tell us whether you will need
to
renew your domain name. If you will need to renew, when will it
need
to be renewed and at what cost is the renewal. If you will be
required to renew the domain name tell us why you do not believe
this
is a contractual factor which would limit the life since domain
names
meet the contractual-legal criterion for recognition apart from
goodwill. See paragraph A17 of SFAS 141.
Pro Forma Financial Statements, page F-47
41. Your response to prior comment number 84 indicates that your
negotiations were based on the number of shares to be issued and
not
the per share value. Describe in detail how you determined the
number of shares issued in the Leads.com acquisition. We further
note that the value of the Leads.com options was determined by the
Black Scholes model using $1.7569 as the fair value of the
Leads.com
stock. Tell us how you determined the fair value of the Leads.com
stock used in the Black Scholes calculation.
42. In determining the value of the shares issued explain to us
what
consideration you gave to incorporating the Leads.com valuation
into
your stock based compensation valuations for 2003 and 2004.
Part II
Item 15. Recent Sales of Unregistered Securities, pages II-2-II-4
43. Please confirm to us that you have disclosed all private sales
made in connection with the April and May 2005 filing of Form D
notices as referenced in prior comment six from our last letter.
44. We reissue prior comment 89 from our last letter. Item 701(c)
of
Regulation S-K required disclosure of the aggregate "amount" of
consideration received by the registrant even for non-cash sales.
45. In connection with prior comment 90 from our last letter, we
note
your amended disclosure simply refers to Regulation D rather than
the
specific rule promulgated under Regulation D, such as Rule 506.
Please revise.
* * *
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 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 Christine Davis at (202) 551-3408 or Craig
Wilson, Senior Assistant Chief Accountant, at (202) 551-3730 if
you
have questions regarding comments on the financial statements and
related matters. Please contact Neil Miller at (202) 551-3442 or
me
at (202) 551-3730 with any other questions.
Sincerely,
Barbara C. Jacobs
Assistant Director
cc: James F. Fulton, Jr., Esq.(via facsimile)
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306
Facsimile: (650) 849-7400
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Mr. David Brown
Website Pros, Inc.
July 1, 2005
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