September 1, 2005
Via Facsimile (213) 229-6765 and U.S. Mail
Bradford P. Weirick, Esq.
Gibson Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Re: Valueclick, Inc.
File No. 333-127804
Form S-4, filed August 24, 2005
Fastclick, Inc.
Schedule TO-T filed August 24, 2005 filed by Valueclick, Inc.
SEC File No. 005-80942
Dear Mr. Weirick:
We have reviewed your filings and have the following
comments.
Where indicated, we think you should revise your documents in
response to these comments. If you disagree, we will consider
your
explanation as to why a 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
information so we may better understand your disclosure. After
reviewing this information, we may 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
filings.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Schedule TO-T
Item 10. Financial Statements
1. Please tell us where you have provided the ratio of earnings to
fixed charges required by Item 1010(a)(3) of Regulation M-A.
Alternatively, since you have chosen to satisfy Item 10 of
Schedule
TO by incorporating financial information by reference, please
include this disclosure in an appropriate place of the prospectus,
as
required by Item 1010(c)(4) of Regulation M-A. Also, disclose the
effect of the transaction on that ratio as required by Item
1010(b)(2) of Regulation M-A.
Form S-4
Prospectus Cover Page
2. We note on page 64 that Fastclick`s underwriters agreed to
waive
the provisions of the lock-up agreements relating to Fastclick`s
initial public offering. Please clarify that this condition has
been
satisfied in this cover page and in the summary section.
Summary, page 1
3. Please revise the expiration date of your offer as set forth in
the section "Timing of the Offer" (September 21, 2005) to
correspond
with the expiration date elsewhere in your filing (September 22,
2005).
Background of the Offer, page 36
4. Refer to the second paragraph on page 37. Please revise to
expand
your disclosure with respect to the discussions described rather
than
simply state that discussions took place. Also apply this comment
to
the seventh paragraph on this page and any other similar
disclosure.
5. Please disclose the possible exchange ratio discussed during
the
July 1, 2005 discussion described in the last paragraph of page
37.
6. Please revise your disclosure to explain the reference to Rule
145
affiliate letters on page 39.
7. Expand your disclosure to describe the negotiation of the
shareholder exchange agreements first drafted on July 25, 2005.
Conditions of the Offer - Additional Conditions, page 50
8. Refer to the conditions in clauses (2) and (3) in the first
bullet
point in this section. Each condition appears to be subject to
your
determination of materiality based on your sole judgment. Please
revise your offer materials to include a reasonableness standard.
The ability of the issuer to determine, in its sole discretion,
whether a condition has occurred may render the offer illusory.
Conditions of the Offer - General, page 52
9. Refer to the first and third clause in the last sentence in the
first paragraph of this section. Note that when a condition is
triggered and you decide to proceed with the offer anyway, we
believe
that this decision constitutes a waiver of the triggered
condition(s). Depending on the materiality of the waived
condition
and the number of days remaining in the offer, you may be required
to
extend the offer and circulate new disclosure to security holders.
You may not rely on this language to tacitly waive a condition of
the
offer by failing to assert it. Please confirm that Valueclick
will
not tacitly waive a condition by failing to assert it.
Interests of Certain Persons in the Offer, page 60
10. Please revise the sections "Stock Options" and "Other Change
of
Control Arrangements" to quantify the value to be realized by
Fastclick officers and directors as a result of the acceleration
of
the option vesting periods and the value of any change of control
payments that Fastclick officers may receive as a result of the
change of control that the current transaction will effect.
Additional Information - Where You Can Find Additional
Information,
page 103
11. While we recognize that any documents you files pursuant to
Section 13(a), 13(c), 14, or 15(d) of the Exchange Act after the
date
the prospectus is declared effective may be deemed incorporated by
reference into the Form S-4, Schedule TO-T does not permit
forward-
incorporation by reference. Please confirm that the Schedule TO-T
will be amended to specifically include any information that is
deemed to be forward-incorporated by reference into the Form S-4,
or
advise.
Exhibits 5.1, 8.1 and 8.2
12. Please file the legal and tax opinions.
Exhibit 99.7
13. We note your statement in the last paragraph of page 2 that
you
disclaim any obligation to update or revise any forward-looking
statements. This statement is inconsistent with your obligation
to
amend and promptly disseminate revised information in the event
that
your existing disclosure materially changes. Please confirm that
you
will avoid using this statement in all future communications.
Closing Comments
As appropriate, please amend your filings and respond to
these
comments within 10 business days or tell us when you will provide
us
with a response. 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 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 to be certain that the
filings include all information required under the Securities
Exchange Act of 1934 and that they have provided all information
investors require for an informed investment decision. Since the
bidder and its management are in possession of all facts relating
to
the company`s RC: Without a definition for "company," we should be
cautious about using the term. disclosure, they are responsible
for
the accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please
provide,
in writing, a statement from the bidder acknowledging that:
* the bidder is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments do not foreclose the Commission from taking any action
with
respect to the filings; and
* the bidder may not assert staff comments 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 our review of your filings or
in
response to our comments on your filings.
Please direct any questions to me at (202) 551-3619 or, in
my
absence, to Nicholas Panos, Special Counsel, at (202) 551-3266.
You
may also contact me via facsimile at (202) 772-9203. Please send
all
correspondence to us at the following ZIP code: 20549-3628.
Sincerely,
Daniel F. Duchovny
Attorney-Advisor
Office of Mergers and Acquisitions
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Bradford P. Weirick
Gibson Dunn & Crutcher LLP
September 1, 2005
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE