Mail Stop 3561
August 17, 2005
Kambiz Mahdi
Probe Manufacturing, Inc.
3050 Pullman Street
Costa Mesa, CA 92626
Re: Probe Manufacturing, Inc.
Registration Statement on Form SB-2
File No. 333-125678
Filed June 9, 2005, as amended on June 10, 2005 and
July 18, 2005
Dear Mr. Mahdi:
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.
* * * * *
1. We note that under the terms of the Investment Agreement with
BTF,
LLC, the company will issue common shares to BTF, and BTF will be
required to purchase these shares, only if the common stock is
quoted
on the OTC Bulletin Board. We further note that the purchase
price
for the shares will be 93% of the average of the two lowest bid
prices of the stock during the five-day period following the
notice
of exercise of the put.
As stated in our March 31, 2001 Update to the Current Issues and
Rule-Making Projects Outline, the registration of the resale of
the
shares issuable under an equity line of credit is permissible only
if
the private placement portion of the equity line (i.e., the
issuance
of the shares to the equity line investor) is completed prior to
the
filing of the resale registration statement. Given that the
equity
line`s purchase price is based on the trading price of common
stock
in an non-existent public market, it does not appear the terms for
the purchase price have actually been set. Accordingly, the
private
placement portion of the equity line does not appear to be
complete.
Please remove from the registration statement the common shares
issuable pursuant to the Investment Agreement. Please ensure to
update all sections of the amended registration statement to
reflect
the removal of the shares issuable under the Investment Agreement
(e.g., the risk factors on page 18 and "Dilution" section on page
22).
Alternatively, if you wish, you may withdraw the registration
statement, complete the private placement of common stock to BTF,
LLC, and file a new registration statement for the resale of the
common stock by BTF, LLC.
2. Similarly, we believe that the private placement of the shares
of
Series B Convertible Preferred Stock, which have a conversion rate
tied to the market price, cannot be completed until the terms of
the
transaction are fixed. In this regard, we believe that the
absence
of an existing public market for the common shares means that
there
has been no meeting of the minds as to the conversion price.
Accordingly, please remove from the registration statement the
shares
issuable upon conversion of the preferred stock.
3. Please update the financial statements and MD&A section to
include
the interim period of June 30, 2005, as required by Item 310(g) of
Regulation S-B.
4. Include currently dated and signed consents of the independent
accountants in each amendment to the Form SB-2. Refer to Item 302
of
Regulation S-T.
5. Please revise the prospectus to eliminate all redundant
disclosure. We note, for example, that the legal proceeding
discussion is repeated at least three times in the prospectus.
The
names of the selling shareholders are also repeated numerous times
in
the prospectus. Your "Description of Property" section repeats
the
information already provided on page 42.
6. Please avoid capitalizing commonly-understood terms such as
"Directors," "Executive Officers," "Company," and "Common Stock."
Outside Front Cover Page
7. Please include on the cover page only the information required
by
Item 501 of Regulation S-B or that is otherwise material. All
other
information should be removed from the cover page. For example,
please delete from the cover page the names of the warrant holders
and the holders of common stock. Given that much of the
information
provided on the cover page is repeated in the prospectus summary,
please revise both the cover page and the summary to eliminate
redundant information. Also note that Item 501 of Regulation S-B
requires that you limit the cover page to one page only.
8. Please clarify if the common shares underlying the warrants are
being registered for resale. Your introductory paragraph states
that
the 12,078,125 shares currently registered are outstanding common
stock, common stock underlying Series B Convertible Preferred
Stock,
and stock issuable pursuant to the put right held by BTF, LLC.
Based
on this language, it does not appear that any shares underlying
the
warrants are being registered. In addition, in the appropriate
section, please provide a description of the terms of the warrants
and file the warrant agreements as exhibits. In particular,
please
tell us whether or not the warrants have a fixed exercise price.
We
note that there are two classes of warrants.
Prospectus Summary, page 6
9. Please provide a clearer and more concrete description of your
business, particularly the services your company provides. To
that
end, avoid using vague statements or phrases, such as "we take
responsibility for new product introduction and implementation,"
"logistic management," "we can assume supply chain
responsibility,"
and "end-to-end services." Instead, provide clear descriptions of
your services and the duties you perform for your customers. Your
revised discussion should give readers a better understanding of
your
customer base, such as the size of your typical customer and the
finished products they sell. Corresponding revisions should be
made
to the "Description of Business" section on page 36.
10. Indicate whether you commenced business operations or
generated
revenues from your operations. The fact that your business has
traditionally suffered net losses should also be disclosed.
11. Item 501(a)(8) of Regulation S-B requires that you include the
price range or the formula or method to be used to calculate the
offering price. While you may state that selling shareholders
will
sell at prevailing market prices or privately-negotiated prices
once
the shares are quoted on the OTC Bulletin Board, they may not sell
at
privately negotiated prices other than $0.80 per share before the
shares begin trading on a market. Revise the disclosure under
"Trading Market" on page 8 accordingly.
Our Capital Structure and Shares Eligible for Future Sale, page 9
12. In your response letter, please list all classes of the
company`s
securities held by BTF, LLC, such as warrants, notes, or preferred
securities. Describe in detail any conversion or exercise feature
of
these securities. We note, for example, that there are 440 shares
of
Series A Convertible Preferred Stock; indicate whether BTF, LLC
owns
any of these shares. Finally, please tell us if there are any
relationships between BTF, LLC and the other selling shareholders.
Summary Financial Information, page 10
13. The net loss, net loss per share and weighted average number
of
common stock outstanding presented on page 10 for fiscal year 2004
does not agree with the information presented in the financial
statements on pages F-2 and F-3. Please revise as necessary.
Risk Factors, page 11
14. Please revise your subheadings so that they better summarize
the
risks discussed. Currently, many of your subheadings do not
summarize the actual or all risks discussed. Examples include "We
have an accumulated deficit..." and "If we lose key senior
management
personnel...."
Our independent accountants have issued a going concern
opinion...,
page 11
15. The second paragraph largely repeats the information provided
in
the first paragraph. Please revise to eliminate any redundancy.
16. The MD&A section indicates that the auditor concluded your
ability to continue as a going concern is conditioned on the
receipt
of additional funding "and/or" the reduction of operating costs.
Your risk factor mentions only the receipt of additional funding.
Please revise to reconcile this inconsistency.
We have an accumulated deficit..., page 12
17. Please quantify your debt service requirements and the cash
needed to meet those requirements.
We depend on a limited number of suppliers..., page 12
18. If you do not have any long-term supply agreements with your
suppliers, please disclose that fact in the risk factor
discussion.
Our principal shareholders, directors and executive officers...,
page
12
19. We note the reference to "any shares issued to [your principal
shareholders, directors, and executive officers] under various
revolving credit facilities." In your response letter, please
describe the nature and terms of these revolving credit
facilities,
particularly with respect to the possible issuance of "shares."
We depend on low to medium volume..., page 13
20. Please discuss with more specificity how the listed factors
could
harm your customers and, in turn, your business. The current
discussion is generic and could apply to any company in any
industry.
Intellectual property infringement claims against us..., page 14
21. We note that your ODM products may compete with the products
of
OEMs. Given that your business provides advanced electronics
manufacturing services to OEMs, as noted in the summary, consider
including a separate risk factor discussing the risks created by
the
fact that your ODM products may compete with the products of your
OEM
customers. We note, for example, disclosure on page 42 that you
already compete with current and prospective customers.
The majority of our sales come from..., page 15
22. Because your business appears to depend substantially on sales
to
your five largest customers, please file all material agreements
with
these customers as exhibits to the registration statement and
disclose the material terms of the agreements later in your
document,
including the identities of the customers. See Item
601(b)(10)(i)(B)
of Regulation S-B.
23. In the appropriate section, please disclose the termination
and
renewal provisions in any contracts with your principal customers.
If these contracts are expected to terminate in the near future,
please disclose the expected termination dates. If you do not
have
any long-term agreements with your principal customers, please
disclose this fact in the risk factor discussion.
We are exposed to fluctuations..., page 15
24. The latter half of the discussion appears to mitigate the
risks
stemming from currency fluctuations. Please revise to focus on
the
risks, not the mitigating factors.
Litigation could harm our business..., page 16
25. Please delete the mitigating disclosure regarding the Pro-
Source
litigation.
We may be adversely affected by shortages of required electronics
components, page 17
26. This risk factor discussion appears to repeat information
provided in the risk factor "We depend on a limited number of
suppliers..." on page 12. Please combine the risk factors and
eliminate any redundant information.
Our customers may be adversely affected by rapid technological
change..., page 18
27. This risk factor discussion appears to repeat information
already
provided in the risk factor "We depend on low to medium volume
high
mix technology products...." Please combine the risk factors and
eliminate any redundant information.
We depend on the continuing trends..., page 18
28. Please expand your discussion of any known factors that
management currently believes may affect the "new outsourcing
opportunities." Readers should get a better sense of the
likelihood
of the occurrence of the described risks.
Any market that develops in shares of our common stock..., page 20
29. Please explain in a clearer manner how the penny stock
restrictions will limit shareholders` ability to resell the common
stock. For example, you should explain in a clearer manner why
shareholders may find it "more difficult" to resell the shares.
If and when our securities become quoted..., page 20
30. Please delete any language that suggests your securities are
currently traded in a public market (e.g., "Even though our
securities are quoted on the Over-the-Counter Bulletin Board...").
Use of Proceeds, page 21
31. Please describe in greater detail each planned use of
proceeds.
For example, with respect to the "repayment of debt," please
identify
the specific indebtedness that will be repaid with the proceeds.
With respect to "Expansion of Internal Operations," you should
describe the nature of the business expansion that will be funded
with the proceeds. Furthermore, quantify the proceeds you will
receive upon exercise of the warrants.
Selling Security Holders, page 22
32. We note your statement "the selling stockholders may have
sold,
transferred, or otherwise disposed of, or may sell, transfer, or
otherwise dispose of, at any time or from time to time since the
date
on which they provided the information regarding the shares
beneficially owned...." Note that Item 507 of Regulation S-B
requires the disclosure of the "amount to be offered for the
security
holder`s account." Therefore, please ensure that the selling
stockholder table reflects the exact amount of shares offered for
resale by each identified shareholder. Delete the statement
quoted
above; such statement suggests that the table does not necessarily
reflect the correct amounts of securities offered.
33. Please refer to the paragraph right before the selling
shareholder table ("In some cases..."). Note that, pursuant to
Rule
13d-3 of the Exchange Act, a person is deemed to beneficially own
any
securities that may be received within 60 days, including those
received upon the exercise or conversion of another security.
Therefore, please revise the "Number of Shares Beneficially Owned
Before the Offering" column to include any shares issuable
pursuant
to the conversion or exercise of another security, such as the
Series
B stock and the warrants. Also delete the paragraph in question.
Similarly revise the beneficial ownership table appearing on page
33.
34. Please refer to footnote (2). In your response letter, please
describe in greater detail the terms of the assignment agreement
with
eFund Capital Partners. Explain the business purpose of the
assignment and cancellation of the 750,000 shares.
35. We note that section 1 of the engagement agreement with eFund
Capital Partners, which is filed as exhibit 10.11, refers to an
"equity line of credit agreement" with eFund Capital Partners for
$2
million. In your response letter, please tell us whether this
equity
line of credit was ever created and utilized. Clarify whether any
of
the shares offered for resale by eFund Capital Partners were
issued
pursuant to this equity line of credit.
36. We note that Mr. Imbassanhy did not have any relationship with
the company within the past three years. In your response
letter,
please tell us if he had any prior relationship with the company.
37. Please disclose the natural persons who exercise the voting
and/or dispositive powers with respect to the securities to be
offered for resale by your selling stockholders that are non-
reporting entities. For example, disclose the natural persons who
have such powers over the shares held by the various trusts
identified in footnote (7). Please see Interpretation I.60 of our
July 1997 Manual of Publicly Available Telephone Interpretations
and
Interpretation 4S of the Regulation S-K portion of the March 1999
Supplement to our July 1997 Manual of Publicly Available Telephone
Interpretations.
38. In your response letter, please indicate whether any of the
selling shareholders is a broker-dealer or affiliate, as defined
by
Rule 405 of Regulation C, of a broker-dealer.
Plan of Distribution, page 28
39. We note your reference to "pledges, assignees, and successors-
in-
interest" of the selling shareholders. Please note that your
registration statement must identify all selling shareholders and
provide Item 507 of Regulation S-B information with respect to all
selling shareholders. If you are currently aware of any "pledges,
assignees, and successors-in-interest" who intend to use this
registration statement, they must be identified and Item 507
information must be provided. In your response letter, confirm
your
understanding of this obligation. You may add or substitute
selling
shareholders through the use of Rule 424(b) prospectus supplements
only if certain conditions are satisfied. For additional
guidance,
refer to the July 1997 Telephone Interpretations B.81 and H.3.
40. Please revise to eliminate any redundant language in the
bullet-
pointed sentences. For example, the first and third bullet-
pointed
sentences on page 29 appear to be substantially similar, as do the
second and fourth bullet-pointed sentences.
41. We note the discussion on page 29 regarding possible short
sales
by the selling shareholders. In your response letter, please tell
us
whether any of the selling shareholders have taken, or plan to
take,
a short position or other forms of hedges in the company`s common
stock prior to this resale registration statement`s effectiveness.
Please note that creating short positions or similar hedges, with
the
intent of delivering registered shares before the resale
registration
statement`s effectiveness, is inappropriate under Section 5 of the
Securities Act because the shares underlying the short sales or
hedges are deemed to be sold at the time such sales or hedges are
made or created.
42. Please discuss the impact of short selling on the company`s
stock.
Legal Proceedings, page 30
43. For each of the legal proceedings described here, please
provide
all information required by Item 103 of Regulation S-B. For
example,
identify the courts in these proceedings are pending, the nature
of
relief sought, and the relevant dates for the proceedings.
Directors, Executive Officers..., page 31
44. Please disclose the specific positions, and corresponding
dates,
held by Mr. Benner during the past five years.
Interest of Named Experts and Counsel, page 35
45. Please revise this section to name Michael Johnson & Co., LLC,
as
an expert who audited the company`s financial statements for the
year
ended December 31, 2003.
46. We note that you have not included the required consent of
Jaspers & Hall, PC. Please include the consent in the amended
filing. Refer to Item 601 of Regulation S-B.
Description of Business, page 36
47. As noted in our comment above, the "Description of Business"
section should give readers a clearer idea of the services or
products that the company sells. To that end, using clear and more
detailed language, please describe the nature of the services
listed
on pages 37-39. Similar revisions should be made to the
description
of services on pages 40-41. Business jargon, vaguely-phrased
concepts, and marketing language, such as following examples,
should
be replaced with clearer descriptions: "Box Build," "full process
audit," "high quality innovative solutions," and "highest positive
outcome and lowest total cost."
Industry Background, page 37
48. Please provide support for the claims regarding the OEM`s
increasing reliance on EMS companies for the manufacture of their
products and the competitive advantages offered by EMS companies.
Copies of any industry publications should be sent, with the
relevant
portions highlighted. If no independent support exists for the
claims, please disclose the claims as your beliefs, along with the
bases for these beliefs.
Strategic Relationships and Alliances, page 39
49. Provide support for the characterization of your customers as
"high quality," "leading OEMs in Southern California," "world
leader," and other similar descriptions. Otherwise, revise the
statements as your beliefs.
50. Revise the list of customers to distinguish in a clearer
manner
the services or products offered by your customers and the
services
or products you provide to your customers.
Sales and Marketing, page 41
51. Please disclose the typical duration and renewal provisions of
your "supply arrangements."
52. Provide a clearer indication of the geographic scope of your
markets. For example, indicate whether you sell your services and
products to only customers in certain areas, such as Southern
California.
Suppliers, page 42
53. Please describe in greater detail the nature of your
arrangements
with your suppliers. For example, indicate, if true, that you
have
no long-term supply agreements. To the extent your business is
substantially dependent upon any principal suppliers, please file
any
contracts with them as exhibits to the registration statement
pursuant to Item 601(b)(10)(i)(B) of Regulation S-B.
Regulatory Restrictions on our Business, page 43
54. Please describe in greater detail the effect that government
regulations have on your business. Clarify the nature of the
"material costs and liabilities" that may arise from the current
and
future requirements.
Management`s Discussion and Analysis, page 42
55. Please revise the MD&A section to provide all information
required by Item 303(b) of Regulation S-B. For example, rather
than
simply stating that net sales "stabilized and stayed flat," please
provide quantified disclosure regarding the net sales from 2002
through 2004. Similarly, provide quantified disclosure regarding
the
financial results for 2004 described on page 43. Disclose the
factors that contributed to the "severe contraction in [your]
business" from 2001 to 2002 and indicate whether management
expects
these factors to affect the business in the near-future.
Disclosure
about known trends that are expected to affect financial results,
such as your focus on the more capital-intensive ODM services,
should
be included. The historical impact of inventory losses, which
appears to be significant, should also be discussed in greater
detail, with quantified disclosure. For additional guidance
regarding the MD&A section in general, please refer to Release No.
33-8350, which is available on our website (www.sec.gov).
56. Please expand your discussion of the basis for management`s
expectation of "additional growth" and "profitability" in the last
three quarters of 2005. Note that management`s projections of
future
economic performance must have a reasonable basis. Refer to Item
10(d) of Regulation S-B for guidance on proper disclosure of
management`s projections.
57. Please provide a liquidity discussion, as required by Item 303
of
Regulation S-B, with the information recommended by Release No.
33-
8350. The discussion should provide historical information
regarding
sources of cash and capital expenditures, an evaluation of the
amounts and certainty of cash flows, the existence and timing of
commitments for capital expenditures and other known and
reasonably
likely cash requirements, and discussion and analysis of known
trends
and uncertainties. For example, the discussion should explain,
with
quantified disclosure, how your expansion plans will affect your
need
for liquidity. Similarly, explain how becoming a public company,
with the increased expenses, will affect your cash requirements.
58. Please revise this section to discuss the results of the
interim
period ended March 31, 2005 or later, as applicable. Your present
discussion under this section has been limited to the fiscal year
ended December 31, 2004. Refer to Item 303 of Regulation S-B.
59. You disclose under the caption "Overview" that in the fourth
quarter 2004 you realized one time inventory revaluation
adjustment
of $155,000. Please explain to us the nature of the inventory
adjustment.
60. We note on pages 46 to 53 that your entire disclosure is
identical to the information presented under the Notes to the
financial statements presented on page F-6 to F-14. Please revise
the entire section to provide the disclosure required by Item 303
of
Regulation S-B.
61. Your present disclosures does not discuss your critical
accounting policies, which would provide the investors with an
understanding of those estimates and assumptions that are both
important to the portrayal of your financial condition and results
of
operations and require your most difficult, subjective or complex
judgments.
Revise your disclosures to include sensitivity analysis and other
quantitative information when it is reasonably available. You
should
address the questions that arise once the critical accounting
estimate or assumption has been identified, by analyzing, to the
extent material, such factors as how they arrived at the estimate,
how accurate the estimate/assumption has been in the past, how
much
the estimate/assumption has changed in the past, and whether the
estimate/assumption is reasonably likely to change in the future.
For additional guidance, refer to Items 303(b) and (c) of
Regulation
S-B as well as section five of the Commission`s Interpretive
Release
on Management`s Discussion and Analysis of Financial Condition and
Results of Operation, which is located on our website at
http://www.sec.gov/rules/interp/33-8350.htm.
Going Concern, page 45
62. We note that management is addressing the going concern
opinion
by "reducing operating costs." Please include disclosure
reconciling
the fact that management intends to reduce operating costs while,
at
the same time, it is seeking to expand its operations, as
discussed
on page 13 ("...we expect to incur new fixed operating expenses
associated with our expansion efforts...").
63. Indicate the status of management`s efforts to replace the
existing line of credit. State when management expects a new
borrowing facility will be in place.
Capital Stock Transactions, page 51
64. Please describe in greater detail the nature of the "strategic
assistance" provided by eFund Capital Partners. Explain why
1,750,000 common shares were subsequently cancelled and returned
to
the company.
Results of Operations, page 54
65. Please describe in greater detail the nature of the
"restructuring of certain notes payable and capital leases" that
resulted in a gain of $275,000.
Contractual Obligations, page 54
66. Identify the "financial institution" with which the company
has
the $1,100,000 revolving line of credit.
67. Please disclose the number of common shares issued to eFund
Capital Partners as interest payment under the $150,000 credit
line
agreement. Indicate whether eFund Capital Partners has any
discretion in deciding whether to accept interest payments in the
form of cash or common stock. In your response letter, indicate
whether any of the shares offered for resale by eFund Capital
Partners were issued as interest payment. Provide similar
information for the $150,000 credit line agreement with Ashford
Capital, LLC, $200,000 credit line agreement with Benner Exemption
Trust, $100,000 credit line agreement with Edward Lassiter, and
$75,000 credit line agreement with Rufina V. Paniego.
Certain Relationships and Related party transactions, page 58
68. Please provide disclosures in the notes to the financial
statements for the related party transactions described on pages
58
to 60. Your disclosure should include all applicable information
required by paragraph 2 to SFAS no. 57.
Additional Information, page 62
69. Please revise to state the SEC`s new address: 100 F Street,
NE,
Washington, DC 20549.
Item 22. Financial Statements, page 62
70. Please make a reference under this caption to the location of
the
financial statements. Please note that the required financial
statements should be included in the prospectus and not in
Exhibit
99.5 to the registration statement.
Recent Sales of Unregistered Securities, page 64
71. Please state the applicable exemption, with the necessary
factual
support, for each of the unregistered sales described on pages 64-
65.
See Item 701 of Regulation S-B.
Undertakings, page 67
72. Please delete the undertaking relating to Rule 430A; your
offering is not relying on such rule.
Signatures
73. Please ensure that your principal accounting officer or
controller, or person acting in such capacity, signs the
registration
statement, as required by Form SB-2.
Exhibit 5.1
74. We note that the opinion is dated as of June 3, 2005 and that
counsel "disclaims any obligation to advise...of any change in any
of
these sources of law or subsequent legal or factual developments
which might affect any matters or opinions set forth herein."
Prior
to effectiveness, please provide an updated legality opinion.
Financial Statements
Independent Auditors` Report, Page F-1
75. Please request your auditors to revise their report for the
following:
* to make reference to the Standards of the Public Company
Accounting
Oversight Board in accordance with auditing standard no. 1 of the
PCAOB; and,
* to include a signed audit report.
76. We note that the auditor`s report refers to the statements of
operations and stockholder`s deficit; however, you have included
the
income statement and statement of stockholders equity. Please
revise
the auditor`s report or the titles to the financial statements
presented on pages F-3 and F-4.
77. We note in fourth paragraph that your current auditors, Jasper
&
Hall, make reference to the report of "Other accountants" for the
fiscal year 2003. Based on the information appearing in Exhibit
23.3, please include in the amended filing the audit report of
Michael Johnson & Company., LLC, who audited the financial
statements
for the fiscal year ended December 31, 2003. Refer to Rule 2-05
of
Regulation S-X.
Balance Sheet
Stockholders` Deficit, page F-2
78. It appears to us that the number of Preferred B stock issued
and
outstanding on page F-2 and page F-17 should be 12,500 instead of
1,250. Also, you indicate that the number of common stock issued
and
outstanding were 2,613,125, while you indicate that the authorized
common stock was 10,000. Please revise the disclosure presented
under this caption to agree with the information presented in Note
9-
Capital Stock transactions, on page F-12.
Income Statement, page F-3
79. Please explain to us how you determined the weighted average
number of common shares outstanding disclosed on page F-3.
Statements of Cash Flows, page F-5
80. It is unclear to us why you have shown the stock issued for
debt
as cash flows from operating activities. It appears to us it
should
be treated as the cash flows from financing activity. Refer to
paragraph 32 to SFAS no. 95.
81. Please disclose under the caption "Supplemental Information,"
or
in the notes to the financial statements, the information about
non-
cash issuance of equity securities during the fiscal years ended
December 31, 2004 and December 31, 2003. Refer to paragraph 32 to
SFAS no. 95.
Statement of Shareholders Equity, page F-4
82. We note under the caption "Federal Income Taxes" on page F-8
that
during the year ended December 31, 2004, the company changed from
a
"S" corporation to a "C" corporation. All undistributed earnings
or
deficit until the date of termination of "S" election should be
transferred to additional paid-in capital in the amended filing.
Refer to Topic 4B of the Staff Accounting Bulletins.
Notes to Financial Statements
83. Please disclose your accounting policies for the inventory as
required by paragraphs 8 and 13 of APB Opinion no. 22.
Property and Equipment, page 7
84. You indicate in the last sentence of the first paragraph that
the
estimated lives of the related assets range from three to ten
year;
however the Leasehold Improvements are being amortized over 20
years.
Please revise as necessary and disclose if the Leasehold
Improvements
are being amortized over the estimated life of the lease.
Revenue Recognition, page F-8
85. You disclose that the revenue is recognized at the time goods
are
shipped or services are provided to the customers. Please tell
us,
and disclose in your revenue recognition policy, whether your
stated
shipping terms are FOB shipping point or FOB destination pursuant
to
your sales agreements with customers. In addition, please also
tell
us and disclose whether your sales agreements contain right of
inspection or acceptance provisions. Also, if your sales
agreements
are silent as to when title passes, please tell us and disclose
why
sales recognition is appropriate upon shipment, rather than upon
delivery to and acceptance by the customer. Even if your sales
agreements state that title passes upon shipment, customer
acceptance
provisions or a history of your replacing goods damaged or lost in
transit may also make the recognition of revenue upon delivery to
and
acceptance by the customer more appropriate. Revise or advise.
See
the Interpretive Response to Question 3 of SAB Topic 13:A.
Financial Statements for the three months period ended March 31,
2005
General
86. Please revise to address the comments above, as appropriate.
Note 1. General
Going Concern, page F-20
87. Please discuss in MD&A, under the caption "Plan of
operations,"
management`s viable plans to overcome Probe`s financial
difficulties
and include a reasonable detailed discussion of your ability to
generate sufficient cash to support operations during the twelve
months following the date of the financial statements presented in
the filing. Refer to the guidance in Section 607.02 of the
Financial
Reporting Codification.
* * * * *
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 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 Gopal Dharia at (202) 551-3353 or Terry
French
at (202) 551-3828 if you have questions regarding comments on the
financial statements and related matters. Please contact Ted Yu
at
(202) 551-3372, Michele M. Anderson, Legal Branch Chief, at (202)
551-3833, or me at (202) 551-3810 with any other questions.
Sincerely,
Assistant Director
Larry Spirgel
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Kambiz Mahdi
Probe Manufacturing, Inc.
August 17, 2005
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