September 9, 2005
Mail Stop 7010
By U.S. Mail and facsimile to (303) 468-4266
Ronald R. Snyder
President and Chief Executive Officer
Crocs, Inc.
6273 Monarch Park Place
Niwot, Colorado 80503
Re: Crocs, Inc.
Registration Statement on Form S-1
Filed August 15, 2005
File No. 333-127526
Dear Mr. Snyder:
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 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.
General
1. We note that you have omitted the price range and number of
shares
for this offering. To assist you in planning your offering,
please
be advised that we will need to review the registration statement
with this information included prior to effectiveness. We ask
that
you provide this information and any other non-430A information,
including information regarding your capital structure, as soon as
practicable to allow for our review. In addition, note that any
preliminary prospectus that is circulated must include all non-
430A
information, including a bona fide estimated price range.
2. We may have further comment once items that are currently
blank,
such as portions of summary and selected financial data, and the
capitalization and dilution tables, are completed.
Prospectus Summary, page 1
3. Please balance your disclosure concerning your revenues by
disclosing your net loss for 2004.
4. Please balance information in the discussions of your business
and
growth strategies to describe risks that are related to these
strategies. For example, you say that you will continue to
highlight
the "unique" characteristics of Crocs footwear as a part of your
business strategy, yet you have a risk factor that states that
some
of your competitors make products that are substantially similar,
in
design and materials, to your footwear.
Risk Factors, page 7
5. Please ensure that each risk factor describes a specific
material
risk. Several risk factors, including those entitled "We are
subject
to various environmental laws . . .", "We are required to comply
with
government regulation . . . ," "We may face product liability
claims," and "We do not anticipate paying cash dividends . . ."
provide a statement of facts but do not clearly explain why these
factors are a particular risk to you or investors. Risks that
could
apply to any company or that are themselves speculative are vague
and
should be revised or removed.
6. To ensure that each risk factor describes the magnitude of each
risk, provide quantitative information where possible. For
example,
your risks entitled "Future sales of our common stock . . ." and
"If
you purchase shares of common stock in this offering . . ." could
be
enhanced by stating the number of shares eligible for resale under
Rule 144 and the amount of dilution shareholders will experience,
respectively.
Risks Related to Crocs, Inc., page 7
We have a limited operating history . . . ., page 7
7. Please expand your discussion to clarify how your recent rapid
growth has made your current operations and expected future
operations substantially different from your past operating
history,
as well as how this constitutes a risk to investors.
If we do not accurately forecast consumer demand . . . ., page 18
8. Please specify your lead times for design and production in
order
to give investors a better sense of the magnitude of this risk.
Use of Proceeds, page 26
9. We note your statement on page 40 that you intend to use a
portion
of the proceeds of this offering "to increase[e] our manufacturing
capacity of approximately $7 million," while no mention of such
use
is disclosed in this section. If you have specific plans to use a
portion of the offering proceeds in this manner, please revise
your
discussion to include this use, as contemplated by Item 504 of
Regulation S-K and Instruction 2 thereunder.
10. We note that you have registered $145 million of common stock.
However, this section only contemplates the specific use of $7
million. As required by Item 504 of Regulation S-K, please
specify
an approximate amount intended to be used for each purpose that
you
identify in this section, including developing your international
operations and increasing your marketing activities. If you have
no
specific plans for any significant portion of the proceeds of this
offering, please disclose this. Finally, while you may reserve
the
right to change the use of proceeds, this reservation must be due
to
contingencies that you specifically discuss. You must also
discuss
alternatives to such uses if the contingencies take place. See
Instruction 7 to Item 504.
Management`s Discussion and Analysis . . . ., page 32
Seasonality, page 36
11. We note your statement that although you cannot assess the
effect
of seasonality on your operations, seasonal variation in results
occurs within your industry and that you expect your business to
be
similarly affected. Please expand your discussion to disclose how
seasonality affects your industry and, given this disclosure,
whether
investors can expect your results to be similarly affected.
Contractual Obligations and Commercial Commitments, page 42
12. Please revise your table of contractual cash obligations to
include estimated interest payments on your debt. Because the
table
is aimed at increasing transparency of cash flow, we believe these
payments should be included in the table. Please also disclose
any
assumptions you made to derive these amounts.
Business, page 47
13. Please provide additional disclosure regarding the extent of
your
international operations. For instance, we note disclosure on
page
47 and elsewhere that your products are offered internationally in
more than 20 countries, while on page 37 you state that your
revenues
from international sales through March 31, 2005 were immaterial.
Product overview, page 49
14. Disclosure in your MD&A cites the "year-round appeal" of your
products as the reason for few returns. However, the products
that
you discuss in the Business section appear to be more suitable for
warm weather. For example, most of the shoes have ports on the
sides, and two are open-toe. None appears to be insulated against
cold temperatures. Please explain how you will market your
products
during cold weather seasons and what seasonal impact on your
operations, if any, you expect to experience.
Sales and Distribution, page 52
Distribution and Logistics, page 54
15. Please elaborate on the services that Expeditors International
of
Washington, Inc., provides to you. Disclosure in the risk factor
entitled "We rely on a single third party for a significant
portion
of our warehouse, distribution and fulfillment operations . . ."
on
page 14 suggests that you engaged Expeditors to operate all of
these
processes. However, your discussion on page 54 sounds as if
Expeditors just makes warehouse space available to you. Please
clarify the nature of any services that Expeditors provides, and
whether you have any formal agreement with them, including for a
short or unspecified term.
Raw Materials, page 54
16. Please elaborate on and clarify the availability of alternate
sources of elastomer resins. We note that your risk factor
entitled
"We depend on a limited number of suppliers . . ." on page 13 says
that if your supplier of elastomer resins were to cease production
of
these materials, there is a risk that you would be unable to
obtain
suitable substitute materials in a timely manner. However, your
risk
entitled "We face significant competition . . ." on page 15 says
that
most of the raw materials you require are readily available for
purchase.
Manufacturing and Sourcing, page 54
17. Please clarify whether you have any contract with your 51%
supplier in China. We note your statement in the risk factors
that
you have "arrangements" with suppliers in China, Italy, and
Florida.
Further, if you do not have any contract with the Chinese supplier
to
continue manufacturing your products, please clarify this in your
risk factor entitled "Because we depend on third party
manufacturers
.. . ." on page 12.
18. Since, according to several of your risk factors, you appear
to
be substantially dependent on a limited number of manufacturers,
please discuss the availability of other manufacturing resources
that
you could rely upon if any of your existing manufacturers had
insufficient capacity to increase production to meet demand for
your
products, terminated their contracts with you, or your product
supply
was otherwise interrupted.
Marketing, page 55
19. Please clarify whether the advertising firm you recently
engaged
is Source Solutions, discussed on page 68. If Source Solutions
continues to provide sales and marketing services to you, please
disclose this here, as well as in the
Certain Relationships" section on page 68.
Intellectual Property and Trademarks, page 56
20. We note disclosure that you consider the formulation of the
closed-cell resin used to produce your products to be a trade
secret
and that you believe this formulation is not generally available
elsewhere. We also note your statement that you "employ various
means to protect this trade secret." Please expand your
discussion
to state the basis for your belief that this information is not
available elsewhere and why you feel that such information is
"proprietary." In addition, please disclose the means by which
you
protect this trade secret, including whether you have sought or
will
seek patent protection. We may have additional comment upon
review
of your response.
21. We note disclosure on page 35 that your products were
initially
designed and manufactured by Foam Creations, which you
subsequently
acquired in 2004, and that in the acquisition, you acquired the
"rights to the proprietary closed-cell resin . . . ." Revise your
disclosure in this section to specify the rights regarding the
"proprietary closed-cell resin" that you acquired in 2004. Please
state whether you are the sole holder of these rights.
Legal Proceedings, page 57
22. Revise your disclosure to state the name of the court in which
you filed suit against Holey Soles Holdings Ltd. in January 2005.
In
addition, please expand your discussion to disclose the factual
basis
for your trademark and copyright infringement claims. If these
claims relate to your closed-cell resin, so state.
Principal and Selling Stockholders, page 73
23. Please tell us whether any of the selling shareholders are
broker-dealers or affiliates of broker-dealers. Revise the
prospectus to name the selling shareholders who are broker-dealers
and state that they are underwriters with respect to the shares
that
they are offering for resale.
24. For the selling shareholders who are affiliates of broker-
dealers, disclose the following:
* that the selling shareholders purchased in the ordinary course
of
business; and
* that, at the time of purchase of the securities to be resold,
the
seller had no agreements or understandings, directly or
indirectly,
with any person to distribute the securities.
If these selling shareholders are unable to make these
representations, please state that they are underwriters.
25. Disclose when each of the selling security holders acquired
the
shares of common stock and the nature of the transaction.
Underwriting, page 83
26. Please expand your disclosure regarding short positions to
discuss all of the items noted in Section VIII.A.3. of the staff`s
Current Issues Outline dated November 2000. The Current Issues
Outline is available on our website at www.sec.gov.
27. 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, or
confirm
that the Division`s Office of Chief Counsel has reviewed and
approved
these procedures. 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.
28. 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. Please also provide us with copies of all
information concerning your company or prospectus that has
appeared
on their website. Again, if you subsequently enter into any such
arrangements, promptly supplement your response.
29. Supplementally confirm regarding your directed share program
that:
* Except for the underwriting commission, the offers and sales are
on
the same terms as those offered to the general public;
* No offers were made prior to the filing of the registration
statement;
* Offers were made only with the prospectus; and
* No funds have been or will be committed or paid prior to
effectiveness of the registration statement.
Please provide us with copies of the materials that you sent to
the
directed share program participants.
30. Please disclose the specified circumstances under which the
underwriters will determine whether to extend the lock-up period
for
up to 35 additional days. Similarly, please disclose whether
securities may be released from the lock-up agreement through the
consent of the underwriters and, if so, the criteria that they
will
use in determining whether to consent to releasing the securities
subject to the lock-up agreement. Specifically, disclose whether
they will consider their own positions in the securities as a
factor.
Financial Statements of Crocs, Inc.
General
31. Page 4 indicates that a stock split will occur immediately
prior
to this offering. Please revise your financial statements and
your
disclosures throughout the filing to give retroactive effect to
the
expected stock split. Doing this in the next amendment will save
us
substantial review time in future amendments. If your auditors
believe that only a "draft" report can be presented due to a
pending
future event such as the stock split, they must include in the
filing
a signed and dated preface to their "draft" report stating the
reason
for the "draft" report and that they expect to be in a position to
issue the report in the form presented prior to effectiveness.
The
signed, dated, and unrestricted auditor`s report must be included
in
the filing prior to effectiveness. See Rule 2-02 of Regulation S-
X.
32. Please update the financial statements and corresponding
financial information included to comply with Rule 3-12 of
Regulation
S-X.
Report of Independent Registered Public Accounting Firm, page F-2
33. Please make arrangements with Deloitte & Touche LLP to have
them
provide a signed report. We will not be able to perform a review
of
any amendments until a signed report is provided. Refer to Rule
2-
02(a) of Regulation S-X.
Statements of Operations, page F-4
34. Please provide pro forma tax and EPS financial information on
the
face of the statement of operations for at least the year ended
December 31, 2004 and prior year interim comparable period. The
pro
forma financial information should assume that you were taxed as a
regular corporation for the entire period. Refer to SAB Topic
1:B:1.
Statements of Stockholders` Deficit, page F-5
35. Please revise your financial statements to reclassify to
additional paid-in capital your retained earnings as of the date
you
converted from a limited liability company to a C corporation.
Refer
to SAB Topic 4:B.
36. Please present a separate column which shows the changes in
the
number of shares of common stock.
Note 2. Summary of Significant Accounting Policies, page F-7
37. For each period presented, please disclose the amount of
research
and development costs recorded in accordance with paragraph 13 of
SFAS 2.
38. Please provide the disclosures required by paragraph 49 of SOP
93-7, including the total amount charged to advertising expense
for
each period presented.
39. If you pay slotting fees, engage in cooperative advertising
programs, have buydown programs, or make other payments to
resellers,
please disclose your accounting policy for each of these types of
arrangements, including the statement of operations line item in
which each type of arrangement is included. For each expense line
item that includes these types of arrangements, please disclose
the
related amounts included in that line item. Refer to EITF 01-9.
Please also discuss in MD&A any significant estimates resulting
from
these arrangements.
Variable Interest Entities, page F-7
40. Please provide the disclosures required by paragraphs 23
through
26 of FIN 46(R), including those required for variable interest
entities for which you are the primary beneficiary.
Income (Loss) per Share, page F-8
41. Please tell us how the redeemable common shares are reflected
in
your calculation of basic and diluted EPS. Tell us how your
treatment of these shares complies with SFAS 128 and paragraph 25
of
SFAS 150.
42. Please tell us more about the rights of each class of common
stock and the redeemable convertible preferred shares and how you
determined the two-class method of computing EPS was not required.
Refer to EITF 03-6.
43. For each period presented, please disclose separately for each
type of security the number of shares that were not included in
diluted EPS because they were antidilutive.
Foreign Currency Translation and Foreign Currency Transactions,
page
F-9
44. Please disclose the total transaction gain or loss recorded
for
each period presented as required by paragraph 30 of SFAS 52.
Please
also disclose how you determine which line items should include
these
amounts. Given you discussion of other expense on page 39, it
appears that certain transaction gains or losses are reported in
other expense whereas you say here these amounts are reported in
selling, general, and administrative expense.
45. The disclosures on page F-41 state that you have entered into
various foreign exchange contracts. Please disclose how you
account
for these contracts, with reference to the applicable accounting
literature.
Unaudited Pro Forma Information, page F-12
46. Please also provide similar pro forma information here and on
the
face of your statements of operations for the year ended December
31,
2004. Please also present pro forma net income (loss) on the face
of
your statements of operations. Similarly revise your summary and
selected financial data sections as well.
Note 12. Commitments and Contingencies, page F-21
47. Please disclose how you account for (a) step rent provisions
and
escalation clauses and (b) capital improvement funding and other
lease concessions, which may be present in your leases. In
addition,
paragraph 5.n. of SFAS 13, as amended by SFAS 29, discusses how
lease
revenues that depend on an existing index or rate, such as the
consumer price index or the prime interest rate, should be
initially
included in your minimum lease revenues. If, as we assume, each
of
these items is included in computing your minimum lease revenues
and
the minimum lease revenues are recognized on a straight-line basis
over the minimum lease term, the note should so state. If our
assumption is incorrect, please tell us how you considered the
provisions in SFAS 13 and FTB 88-1 in reaching the conclusions you
did regarding your accounting treatment.
Note 13. Related Parties, page F-22
48. Given the pricing under the exclusive distribution agreement
is
set at a discount off the current wholesale pricing, please tell
us
how this agreement with your former chief executive officer is
reflected in your financial statements. Please tell us what
considerations were given regarding the accounting of this
agreement,
including any applicable accounting literature considered. Please
tell us how you determined your current accounting treatment is
appropriate.
Note 14. Equity, page F-23
49. Provide us an analysis of all equity issuances, repurchases,
grants by significant shareholders to others, and conversions from
one equity security to another since July 1, 2004. For each
transaction:
* Identify the parties, including any related parties;
* The nature of the consideration; and
* The fair value and your basis for determining the fair value.
o Indicate whether the fair value was contemporaneous or
retrospective.
o To the extent applicable, reconcile the fair values you used for
equity transactions to the fair value indicated by the anticipated
IPO price.
* For equity transactions in which your Board of Directors
estimated
the fair value, please provide us with a detailed explanation of
the
significant factors, assumptions, and methodologies used in
determining fair value.
We will not be able to complete our evaluation of your response
until
the IPO range has been disclosed.
50. Please provide more detailed disclosures regarding each equity
transaction during each period presented including, but not
limited
to, the following:
* The reason for the issuance;
* The consideration received by you, if any;
* The fair value of the securities issued;
* Number of options or shares granted;
* Exercise price;
* Fair value of common stock;
* Intrinsic value per option, if any;
* The existence of any conversion or redemption features;
* Whether the valuation used to determine the fair value of the
equity instruments was contemporaneous or retrospective; and
* If the valuation specialist was a related party, indicate as
such.
In MD&A, disclose the aggregate intrinsic value of all outstanding
options at June 30, 2005 based on the estimated IPO price.
51. Please disclose the terms of the conversions of Class A and B
membership units into common stock on January 4, 2005 and whether
these were the terms pursuant to the original agreements entered
into
upon issuance of these equity instruments. If not, tell us how
you
determined the appropriate conversion terms.
Note 15. Redeemable Convertible Preferred Shares and Note 16.
Redeemable Common Shares, page F-25
52. Please disclose the terms of the conversions of Class C
membership units into Series A Stock and whether these were the
terms
pursuant to the original agreements entered into upon issuance of
these equity instruments. If not, tell us how you determined the
appropriate conversion terms.
53. Please tell us about how you will account for the conversion
of
the Series A Stock and redeemable common shares into common
shares,
including how you determined the appropriate treatment for the
deficit of $391,000 associated with the Class B Units. Please
also
tell us the terms of the conversions and whether these were the
terms
pursuant to the original agreements entered into upon issuance of
these equity instruments. If not, tell us how you determined the
appropriate conversion terms.
Financial Statements of Finproject N.A., Inc.
Report of Independent Registered Public Accounting Firm, page F-29
54. Please make arrangements with Samson Belair Deloitte & Touche
s.e.n.c.r.l. to have them provide a signature on their report. We
will not be able to perform a review of any amendments until a
signed
report is provided. Refer to Rule 2-02(a) of Regulation S-X.
Unaudited Pro Forma Condensed Statement of Operations, page F-47
55. For adjustment (b) and (c), please show precisely how you
computed these adjustments.
Part II
Recent Sales of Unregistered Securities, page II-1
56. We note your statements that sale of unregistered securities
in
February 2004 and subsequent equity grants were "deemed" to be
exempt
from registration under various sections of the Securities Act or
rules promulgated thereunder. Please delete this reference or
revise
your disclosure to otherwise indicate that your management,
determined the availability of these exemptions to remove the
implication that the Commission made this determination.
Exhibits
57. We note that you plan to file several exhibits by amendment,
including the underwriting agreement and legality opinion. Please
note that we will review these exhibits when they are filed and
may
have comments on them or on related disclosure in the prospectus.
58. We note that 51% of your products are made by a manufacturer
in
China, that you have long term agreements with manufacturers in
Italy
and Florida, that you obtain all of your elastomer resins from one
supplier, that a single party provides a majority, if not all, of
the
compounded closed-cell resin you use, and that you have recently
engaged Expeditors International of Washington, Inc., to operate
your
warehouse, distribution, and fulfillment processes for a
significant
portion of your domestic sales. Please tell us what consideration
you have given to filing agreements with any of these parties as
exhibits to your registration statement. If you do not believe
these
contracts are material to your business, please explain why
supplementally.
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 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 Act
of
1933 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.
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 Nudrat Salik, Staff Accountant, at (202)
551-
3692 or Rufus Decker, Accounting Branch Chief, at (202) 551-3769
if
you have questions regarding comments on the financial statements
and
related matters. Please contact Matt Franker, Staff Attorney, at
(202) 551-3749 or me at (202) 551-3760 with any other questions.
Sincerely,
Pamela A. Long
Assistant Director
cc: James H. Carroll, Esq. (via facsimile 303/447-7800)
Faegre & Benson LLP
1900 Fifteenth Street
Boulder, Colorado 80302
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Ronald R. Snyder
Crocs, Inc.
September 9, 2005
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-7010
DIVISION OF
CORPORATION FINANCE