September 2, 2005
By Facsimile ((617) 542-2241) and U.S. Mail
Richard R. Kelly, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Re: Fastclick, Inc.
Schedule 14D-9 filed August 24, 2005
File No. 005-80942
Dear Mr. Kelly:
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
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 filing.
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 14D-9
General
1. Refer to the filing made pursuant to Rule 425 on August 24,
2005.
We note your reference to Private Securities Litigation Reform Act
of
1995. Note that the safe harbor protections for forward-looking
statements contained in that federal act do not apply to
statements
made in connection with a tender offer. See Section 21E(b)(2)(C)
of
the Securities Exchange Act of 1934 and Regulation M-A telephone
interpretation M.2 available at www.sec.gov in the July 2001
Supplement to the Division of Corporation Finance`s Manual of
Publicly Available Telephone Interpretations. Please confirm
that
the company will avoid using this statement in all future tender
offer materials.
2. We also note the statement that Fastclick disclaims any
obligation
to update or revise the information contained in any forward-
looking
statements. This disclaimer is inconsistent with the requirements
of
General Instruction F of Schedule 14D-9 and your obligations under
Rule 14d-6(c) to amend the Schedule to reflect a material change
in
the information previously disclosed. Please confirm that the
company will avoid using this statement in all future tender offer
materials.
Past Contacts, Transactions - Company Stock Options, page 4
3. Please revise the sections "Company Stock Options" and "Other
Change of Control Arrangements" to quantify the value to be
realized
by your officers and directors as a result of the acceleration of
the
vesting of options and the value of any change of control payments
that your officers may receive as a result of the change of
control
that the current transaction will effect.
The Solicitation or Recommendation - Background of the Offer, page
8
4. Please disclose the possible exchange ratio discussed during
the
July 1, 2005 discussion described in the second full paragraph of
page 12.
5. Refer to the preliminary contacts with six other potential
merger
partners described in the penultimate paragraph on page 11.
Please
explain why none of those six parties chose to proceed with a
transaction with you. Similarly, explain why the sixth potential
merger partner was unable to consider a transaction "anytime
soon,"
as disclosed in the last paragraph of page 12.
6. Refer to the penultimate paragraph on page 12. Please revise
to
expand your disclosure with respect to the discussions described
rather than simply state that discussions took place.
7. Please revise your disclosure to explain the reference to Rule
145
affiliate letters on page 15.
8. Expand your disclosure to describe the negotiation of the
shareholder exchange agreements first drafted on July 25, 2005.
The Solicitation or Recommendation - Reasons for the
Recommendation,
page 7
9. We note that the exchange agreements with your two largest
security holders provides for a termination fee of $6.5 million
payable by those security holders if the exchange agreements are
terminated (page 3 of your Schedule 14D-9). We also note that
three
of your directors appear to be affiliated with those large
security
holders. Please disclose the effect on the board`s consideration
of
the transaction of this agreement. Did your board consider this a
positive factor in its determination to recommend that security
holders tender their securities?
Reasons for the Board`s Recommendation, page 17
10. The disclosure in this section refers to a wide variety of
factors considered by the Board and its advisors in connection
with
their evaluation of the offer. Item 4 of Schedule 14D-9 and the
corresponding Item 1012(b) of Regulation M-A, however, require
that
actual reasons be cited to explain why a favorable recommendation
is
being made. Please revise this section to clarify which of the
enumerated factors are in fact reasons in support of the Board`s
decision to recommend that the security holders accept the offer.
11. Each person making a solicitation or recommendation must
discuss
in reasonable detail the reasons upon which their position is
based.
Conclusory statements or the listing of generalized areas of
consideration are not considered sufficient disclosure. See Item
1012(b) of Regulation M-A. Fastclick must, at a minimum, amend
their
unqualified identification of the information considered to
describe
the import or the utility of the statements made.
Opinion of the Company`s Financial Advisor
12. Please disclose whether Thomas Weisel Partners provided a
report
to your board of directors. If so, please provide us a copy
supplementally.
Publicly Traded Comparable Company Analysis, page 20
13. Please disclose the data underlying the analysis results for
all
analyses conducted by Thomas Weisel Partners and described in this
statement. Similarly, explain the meaning and significance of
using
the first and third quartile in the financial advisor`s analyses.
14. We note that the majority of the results of this analysis and
the
comparable transaction analysis and all of the results in the
contribution analysis reflect an exchange ratio higher than the
exchange ratio agreed upon with Valueclick. Explain how the
financial advisor was able to make its fairness determination in
light of those analysis results.
Closing Information
As appropriate, please amend your filing 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 filing to be certain that the
filing includes 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
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.
In connection with responding to our comments, please
provide,
in writing, a statement from the company acknowledging that:
* the company is responsible for the adequacy and accuracy of the
disclosure in the filing;
* staff comments or changes to disclosure in response to staff
comments do not foreclose the Commission from taking any action
with
respect to the filing; and
* the company 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 filing or in
response to our comments on your filing.
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 & Acquisitions
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Richard R. Kelly, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
September 2, 2005
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE