Mail Stop 3561
October 7, 2005
Robert E. Bernard, Chief Executive Officer
dELiA*s, Inc.
435 Hudson Street
New York, New York 10014
Re: dELiA*s, Inc.
Registration Statement on Form S-1
Filed September 7, 2005
File No. 333-128153
Dear Mr. Bernard:
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.
General
1. Please review your disclosure and ensure that you identify the
source for the statements you provide. Currently, you include
many
factual statements, but you have not indicated whether the source
of
this information is based upon management`s belief, industry data,
reports/articles, or any other source. If the statements are
based
upon management`s belief, please indicate that this is the case
and
include an explanation for the basis of that belief.
Alternatively,
if the information is based upon reports or articles, please
provide
these documents to us, appropriately marked and dated. The
following
are examples only of the statements for which you need sources:
* "We are...targeting the approximately 33 million consumers
between
the ages of 12 and 19, a demographic that is among the fastest
growing in the United States." Our Company, page 11.
* "We operate three brands - dELiA*s, Alloy and CCS - each of
which
are well-established, differentiated, lifestyle brands."
Overview,
page 88.
* "We have established a market niche as a leading direct
marketing
company targeting teenagers...." Our Business Strategy, page 90.
We may have further comments once we examine your revisions.
Outside Front Cover Page of Prospectus
2. We note a number of blank spaces throughout your registration
statement for information that you are not entitled to omit under
Rule 430A, such as the anticipated price. Please allow us
sufficient
time to review your complete disclosure prior to any distribution
of
preliminary prospectuses.
3. Please provide us with copies of any artwork you intend to use
as
soon as possible for our review and comment. Please keep in mind
that we may have comments on these materials and you should
consider
waiting for these comments before printing and circulating any
artwork.
4. Please clarify on the cover page that there is no guarantee
that
MLF Investments, LLC will purchase the common stock that is
subject
to the backstop agreement.
Table of Contents, page i
5. The forepart of your document should consist of the cover page,
summary, and risk factors. Please move the paragraphs beneath the
table of contents to a more appropriate location in the
prospectus.
Questions and Answers about the Spinoff and Rights Offering, page
1
6. We note that counsel has indicated that the spin off "should
be"
tax free. It is unclear why counsel is unable to opine that the
spin
off will be tax free. Please revise the disclosure to specify why
uncertainty exists, or file an opinion of counsel and revise the
related disclosure to indicate that the spin off will be tax free.
Prospectus Summary, page 11
7. Please remove the second paragraph of your Prospectus Summary
section. All defined entities should be clear from their context.
8. The summary is intended to provide a brief overview of the key
aspects of your offering. Currently, your summary is too long and
repeats much of the information fully discussed in other sections
of
your document. For example, you should remove the discussion of
your
direct marketing properties, your accomplishments and your
business
strategy. The summary is only intended to provide a brief
snapshot
of the offering. See Instruction to Item 503(a) of Regulation S-
K.
9. Please revise your document to discuss your business operations
without relying on the use of jargon. Specifically, please
eliminate
jargon entirely in your summary, and avoid using jargon in other
sections unless you explain its meaning in a clear and concise
manner. For example, we note in your Prospectus Summary section
descriptions and phrases, including "brand name merchandise at a
more
affordable price point, while permitting improved gross profit
margins," "[w]e generated synergies and eliminated operational
duplication by consolidating dELiA*s`, Alloy`s and CCS`
operations,
which has enabled us to leverage a common infrastructure for our
three core brands," and "[w]e currently plan to continue to expand
and leverage our databases via cross-catalog title marketing,
customer file response modeling and improving our email marketing
program, which we believe should drive profitable revenue growth
in
our direct marketing businesses." As another example in your Our
Business section, we note these descriptions and phrases, "expand
and
leverage our databases via cross catalog title marketing,"
"minimize
our exposure to trend risk and facilitate speed to market and
product
assortment flexibility," and "maximize profitability with a
continuing testing and monitoring program aimed at creating an
optimum contact/promotional strategy across communication
channels."
Our Company, page 11
10. In this subsection and in your Our Business Strategy
subsection,
you state that you have a comprehensive database regarding
approximately 14 million persons who have either purchased
merchandise or requested catalogs from you. Also, you state that
there may be duplication of names contained in the databases,
because
the information is collected separately by brand. Please disclose
the number of persons you believe to be duplicative in your
database.
Risk Factors That May Affect Future Results, page 25
11. Your Risk Factors section should be a discussion of the most
significant factors that make your offering speculative or risky.
You should place risk factors in context so your readers can
understand the specific risk as it applies to you. See SEC
Release
No. 33-7497. Also, you should not present risks that are generic
or
contain boilerplate language that could apply to any issuer or any
offering. We believe a discussion of risks in generic terms does
not
tell your readers how the risk may affect their investment in you.
Please revise your Risk Factors section generally to write each
risk
factor in plain English and avoid using boilerplate or generic
risk
factors. See Item 503(c) of Regulation S-K. As examples, please
consider the following risk factors:
* "Our future profitability is uncertain."
* "Closing stores or curtailing certain operations could result in
significant impairments and costs to us."
* "Terrorist attacks and other acts of wider armed conflict may
have
an adverse effect on the United States and world economies and may
adversely affect our business."
Further, some of your risk factor discussions do not clearly and
concisely convey the actual risk, such as the second full risk
factor
on page 33 and the first full risk factor on page 41. Some of
your
risk factors should be separated into multiple risk factors, such
as
the last risk factor on page 25, the last risk factor on page 27,
and
the last risk factor on page 40. Also, please consider whether
other
subsections or elements of a discussion within a subsection are
necessary for this section and whether certain risk factors can be
revised or combined so they are not repetitive. Accordingly,
please
thoroughly revise this section to more precisely articulate the
risks
to your offering from each risk factor. We may have additional
comments based upon your revisions.
You Should Not Rely on Forward-Looking Statements . . ., page 44
12. Because this document relates to your initial public offering,
you may not refer to Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. Please remove
the references to those sections and make corresponding changes on
page 87.
Information Technology and Intellectual Property Agreements, page
54
13. Please disclose the length of time that you will enter into
these
agreements. Specifically, please disclose whether these
agreements
will be temporary, lasting only until you are able to enter into
your
own agreements with professional service providers, or whether you
intend the agreements to be indefinite.
14. You state that you will receive certain percentages of the
revenue that Alloy, Inc. will receive from the catalog
advertisement
pages and sampling inventory slots you will make available to
Alloy,
Inc. for free. Please disclose how you will determine the revenue
Alloy, Inc. will collect from these activities.
OCM Call Center Agreement, page 55
15. Please tell us whether the terms of this agreement are similar
to
terms that you would have entered into with an unaffiliated third
party.
Use of Proceeds, page 67
16. You state that you intend to use a substantial portion of your
offering`s $20 million net proceeds to fund your retail store
expansion. Please furnish a brief outline of your retail store
expansion program. See Item 504 of Regulation S-K.
Capitalization, page 69
17. Please be advised that you should only present the application
of
proceeds from your rights offering if exercise is likely in view
of
the current market price.
18. Since you believe, based on footnote 14 on page F-28, that the
charges and allocations included in your financial statements for
services from Alloy, Inc. are not indicative of the amounts that
would be recorded on a stand-alone basis, please provide pro-forma
information that reflects your operations and financial position
as
an autonomous entity. See Article 11 of Regulation S-X and SAB
Topic
1B2.
Management`s Discussion and Analysis of Financial Condition and
Results..., page 72
19. Please expand this section to discuss known material trends,
demands, commitments, events, or uncertainties that will have, or
are
reasonably likely to have, a material impact on your financial
condition, operating performance, revenues, and/or income, or
results
in your liquidity decreasing or increasing in any material way.
Please provide additional information about the quality and
variability of your earnings and cash flows so that investors can
ascertain the likelihood of the extent past performance is
indicative
of future performance. Please discuss whether you expect your
financial position to remain its current level or to increase or
decrease. Please discuss any key performance indicators that are
used to manage the business and would be material to investors.
Also,
you should consider discussing the impact of any changes on your
earnings. Further, please discuss in reasonable detail:
* economic or industry-wide factors relevant to your company, and
* material opportunities, challenges, and risks in the short and
long
term and the actions you are taking to address them.
See Item 303 of Regulation S-K and SEC Release No. 33-8350.
Executive Summary and Outlook, page 72
20. Please revise this subsection to provide a balanced,
executive-
level discussion of the most important matters on which you focus
in
evaluating your financial condition and operating performance.
Please discuss your mix of apparel versus non-apparel sales and
your
focus on reducing the percentage of non-apparel sales, the reasons
for closing certain outlet stores, your expectations regarding
catalog response rates and your expectations regarding revenues to
be
received under the JLP Daisy licensing agreement. Consider
discussing the key operating indicators on which management
focuses
in assessing the business. See Item 303 of Regulation S-K and SEC
Release No. 33-8350.
21. Please provide a more detailed discussion of the expansion and
development of your retail specialty store segment and your
possible
brand extensions, and please discuss why you believe this strategy
has positioned you to deliver profitable growth in the future.
Results of Operations and Financial Condition, page 75
22. This section explains the types of expenses that are included
in
each operating expense category. However, the dollar amounts
mostly
repeat information that is available from the face of the income
statement. Please expand this information to explain the reasons
for
period-to-period changes. For example, please discuss the reason
that, as you state in your Retail Store Revenues subsection,
comparable retail store sales increased by 1.4% in fiscal 2004.
23. Please revise the discussion of your results of operations to
indicate whether the changes represent trends expected to continue
into the future.
24. Where you identify intermediate causes of changes in your
operating results, also describe the reasons underlying the
intermediate causes. For example, where you indicate that the
increase in direct marketing revenues for the three months ended
April 30, 2005 is due to increased demand generated per book,
please
expand your explanations to describe how you achieved the
increased
demand. See Item 303(a) of Regulation S-K and SEC Release No. 33-
8350.
25. Please present and discuss gross profit as a percentage of
segment revenues.
Our Business, page 88
26. Please provide the form of your organization and any other
material disclosure regarding the general development of your
business over the last five years as required by Item 101(a) of
Regulation S-K.
Business Strength, page 88
dELiA*s, page 88
27. Please disclose how you are able to focus your marketing on
teenage girls who are juniors in high school.
CCS, page 89
28. You state that you "promote" CCS as "The World`s Largest
Skateboard Shop." Please disclose whether CCS is actually the
world`s largest skateboard shop, and discuss the basis for that
conclusion.
Experienced Management Team, page 90
29. You state that since your current management team assumed
responsibility for your brands in October 2003, you believe you
have
increased the level of brand awareness for your three core brands
and
improved your financial results. Please provide quantifiable
support
for this statement.
Our Business Strategy, page 90
30. Please discuss the five key elements of your business strategy
in
greater detail. For example, in your first element, Maintain Our
Competitive Position In Direct Marketing, please explain how you
plan
to maintain a strong competitive position. As another example, in
your Improve Store Metrics element, please disclose how you plan
to
improve field management and increase your focus on the selling
culture.
Revenue Segments, page 91
31. Please disclose whether you believe alternate sources of
merchandise for both your revenue segments are available at
comparable prices should you change your suppliers. Further,
please
discuss any other factors that may disrupt the availability of
your
products, and your alternatives should a disruption occur. See
Item
101(c)(1)(iii) of Regulation S-K.
Direct Marketing Segment, page 91
Direct Marketing Strategy, page 91
32. We note your attempt to bring your products to market quickly
by
using domestic suppliers and your attempt to limit initial
merchandise orders to reduce your risk of excess inventory. In
this
regard, please discuss industry practices in handling working
capital
items and disclose how you compare with others in your industry in
carrying the proper amount of inventory and assure yourself of a
continuous allotment of goods from your suppliers. Also, please
discuss how your policies regarding your customers` rights to
return
merchandise compare with industry practice. Further, please
describe
the possible trade-offs and potential problems of utilizing your
supply practices. See Item 101(c)(1)(vi) of Regulation S-K.
33. In the last paragraph of this subsection, on page 92, you
state
that your suppliers often grant you online and catalog exclusivity
for the products you develop and select. Please discuss how your
suppliers grant you this type of exclusivity.
Existing Stores, page 94
34. You state that you will close and replace underperforming
stores
as opportunities arise. As of the most recent practicable date,
please disclose your definition of and criteria for evaluating an
"underperforming" store, how many of your stores are
underperforming
and which you have closed or will close, and when these closings
will
occur.
Competition, page 96
35. Please disclose your catalog competitors as you do your retail
store competitors.
36. You state that you compete in retail store sales with
companies
of various sizes and scales, many of which are significantly
larger
and have greater resources than you. Further, you list companies
with whom you compete directly. Please disclose your competitive
position relative to these companies. If you are significantly
smaller than these companies, please disclose competitors that are
similar to your size. You list your competitive advantages over
other companies. In addition, please state the negative factors
pertaining to your competitive practices. See Item 101(c)(1)(x)
of
Regulation S-K.
Management, page 102
37. Please describe the business experience of Matthew L. Feshbach
for the past five years without any gaps or ambiguities. See Item
401(e)(1) of Regulation S-K.
Certain Relationships and Related Party Transactions, page 113
38. In your second and third paragraphs on page 116, you discuss
your
registration rights agreement with MLF Investments, LLC. Also, in
The Private Placement section on page 56, you state that you have
a
registration rights agreement with Robert E. Bernard, Walter
Killough, David Desjardins, Cathy McNeal, and Andrew L. Firestone,
each of whom will be your executives. Please provide this
disclosure
in your Certain Relationships and Related Party Transactions
section.
39. In this section, please disclose the relationship between
Matthew
L. Feshbach, your chairman, and MLF Offshore Portfolio Company,
LP,
which owns 16.06% of your common stock.
Principal Stockholders, page 117
40. Please furnish the information regarding your principal
stockholders as of the most recent practicable date. See Item
403(a)
of Regulation S-K.
41. Please identify the natural person or persons or public
company
that has the ultimate voting or investment control over the shares
of
Fletcher Asset Management, Inc., Kern Capital Management, LLC, and
MLF Offshore Portfolio Company, LP and related entities that are
listed in your table.
Certain United States Federal Income Tax Considerations, page 126
42. Please file a tax opinion as an exhibit because the tax
consequences of this transaction are material to investors. See
Item
601(b)(8) of Regulation S-K. We may have further comments once we
review the opinion. Also, the disclosure in this section should
not
assume that the spin off will be treated as tax free and then list
the resulting tax effects to investors. Instead, you should
include
counsel`s opinion that the spin off will be tax free and then
identify the effects to investors.
Financial Statements, page F-1
43. Please update the financial statements and related financial
information included in the filing as required by Rule 3-12 of
Regulation S-X.
44. We note that your reported amounts for total assets and
operating
loss/income differs from the amounts reported in the segment note
to
Alloy, Inc.`s Form 10-K for the year ended January 31, 2005.
Please
provide a reconciliation as of and for the year ended January 31,
2005 for total assets and operating loss/income as reported in the
segment disclosure of Alloy, Inc.`s Form 10-K for the year ended
January 31, 2005, to the amounts reported on your balance sheet
and
consolidated statements of operations. Please list the allocated
expenses and revenues that are disclosed on page F-28 as a
separate
reconciling item.
14. Related Party Transactions, page F-28
45. For all services-related costs incurred by Alloy, Inc. that
were
not specifically identified to your operations, please describe
the
allocation method used to allocate these common expenses. See SAB
Topic 1B1.
46. For each year an income statement is provided, please disclose
your estimate of what your expenses would have been on a stand
alone
basis. See SAB Topic 1B1.
15. Commitments and Contingencies, page F-30
Litigation, page F-32
47. To the extent it is reasonably possible that you will incur
losses related to your alleged failure to collect and remit sales
tax
in Illinois and/or any other state, please provide the applicable
disclosures in accordance with SFAS 5, including the amount or
range
of reasonably possible losses. Alternatively, if no losses are
believed to be reasonably possible, please state this in your
disclosure. See also the guidance provided in SAB Topic 5:Y and
SOP
96-1.
Information Not Required in Prospectus, page II-1
Item 15. Recent Sales of Unregistered Securities, page II-1
48. For the private placement you described in this section,
please
indicate the section of the Securities Act or the rule under which
you are claiming exemption from registration, and please state
briefly the facts that you relied upon for the exemption. See
Item
701(d) of Regulation S-K.
Item 16. Exhibits and Financial Statement Schedules, page II-2
49. Please file all required exhibits in a timely manner so that
we
may have sufficient time to review them before you request
effectiveness of your registration statement. See Item 601 of
Regulation S-K.
Item 17. Undertakings, page II-4
50. Please provide the entire text of the undertaking in Item
512(a)(1)(ii) of Regulation S-K.
* * * * * *
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 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 Yong Kim, Staff Accountant, at (202) 551-
3323
or William Choi, Accounting Branch Chief, at (202) 551-3716, if
you
have questions regarding comments on the financial statements and
related matters. Please contact John Fieldsend, Staff Attorney,
at
(202) 551-3343, Ellie Quarles, Special Counsel, at (202) 551-3238,
or
me at (202) 551-3720 with any other questions.
Sincerely,
H. Christopher Owings
Assistant Director
cc: Richard M. Graf, Esq.
Katten Muchin Rosenman LLP
Via Fax: (202) 339-6058
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Robert E. Bernard, Chief Executive Officer
dELiA*s, Inc.
October 7, 2005
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