Mail Stop 4561
December 22, 2005
John Lai
President
Viper Powersports, Inc.
5733 International Parkway
New Hope, Minnesota 55428
Re: Viper Powersports, Inc.
Registration Statement on Form 10-SB
Filed November 22, 2005
File No. 0-51632
Dear Mr. Lai:
We have reviewed your filing and have the following
comments.
Please note that under Section 12(g) of the Exchange Act your
registration statement will go effective by lapse of time on
January
23, 2006. 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.
General
1. It does not appear that you have a completed private placement
with respect to the Standby Equity Distribution Agreement with
Cornell Capital Partners. In this regard, we note that the
purchase
price under the equity line is 96% of the market price. However,
as
you disclose under Market Information, the company is currently
traded on the "pink sheets," which is not considered to be an
established market for these purposes. Because there is no
established trading market for your securities, the purchase
price-a
material term-has not been determined and the investor will not be
considered irrevocably bound. An investor must be irrevocably
bound
to purchase all shares of common stock underlying an equity line
for
the equity line to constitute a viable financing arrangement.
Please
revise throughout to inform stockholders about the foregoing
impediments to your use of the equity line as a means to obtain
capital. It appears inappropriate to suggest that this
arrangement
affords you with a viable means to obtain capital.
2. Update the financial statements pursuant to Item 310(g) of
Regulation S-B, as needed.
Description of Business, page 1
3. Please expand the discussion relating to your 2005
reorganization
to better explain the background to and reasons for the
reorganization. Specifically discuss the initial public offering
undertaken in 2004 that was subsequently withdrawn (Form SB-2,
File
no. 333-116396) including the reasons for the withdrawal. Provide
a
clear explanation of the reverse acquisition and include the name
of
the company prior to the merger, the amounts involved, why you
engaged in the reverse acquisition rather than an initial public
offering, and why you believe the reverse merger resulted in your
being a "publicly traded company."
4. Revise to eliminate redundant disclosure and to provide a clear
and materially complete discussion of each of the matters
discussed.
For example, you discuss different and sometimes apparently
overlapping aspects of the acquisition of proprietary engine
technology in several places in the business section on pages 1, 2
and 5. You may wish to consider including a section on the
chronological development of your company, including the various
names used since your inception.
5. You state in various places that you expect to begin commercial
production of Viper cruisers by spring 2006 with sales beginning
in
summer 2006 and sales of a second model in late 2006. You also
state
that you currently have written agreements with 17 authorized
dealers. State whether or not you have approved financing under
the
dealer floor plan with any of these authorized dealers and provide
a
timeline of when you expect to have the required financing in
place.
To the extent you are aware of conditions that may cause you to
modify your production and sales schedule, please ensure that the
disclosure is updated accordingly.
6. Clarify the relationship between Melling Consultancy Design and
you. We note that you filed as an exhibit the asset purchase
agreement between you and Thor Performance, which includes the
contract rights to development production contracts with Melling,
but
have not filed the Melling contract agreement. Have you entered
into
any separate agreements directly with Melling? Any agreements
between you and Melling Consultancy Design would appear to be
material contracts that should be filed pursuant to Item 601 of
Regulation S-B.
7. Regarding the fair market appraisal for the assets obtained
from
Thor Performance, a related party, please provide us with a copy
of
the appraisal and disclose the name of the firm.
8. Please describe more specifically what the "leading" motorcycle
trade shows and conventions and "popular" motorcycle rallies are.
We
note your disclosure in Plan of Operations that you will attend at
least eight shows or rallies. Also describe in greater detail
what
you mean by "material public relations efforts" directed at
"industry
media sources as well as the general investment community."
9. We note that in the withdrawn SB-2, file no. 333-116396, you
indicated you depended on a limited number of suppliers, Patrick
Racing in particular. Tell us and disclose whether you continue
to
be dependent on any suppliers.
10. Please provide us with marked copies of the data you cite in
support of your assertions that the market for your products is
large
and growing, including the Motorcycle Industry Council and Harley-
Davidson annual report. Confirm, if true, that the information
from
the Motorcycle Industry Council, which is presented in the
business
section, is readily available at nominal or no charge.
11. Please clarify whether all of your current employees are full-
time employees.
Manufacturing and Supplies, page 6
12. Clarify whether you are outsourcing key components of your
motorcycles from sources outside the United States. Please
discuss
the extent to which you are reliant on outsourcing, if material,
and
any risks associated with such reliance.
Plan of Operations and Management Analysis of Financial Condition,
page 8
13. Please note that the safe harbors of the Securities Litigation
Reform Act of 1995 are unavailable to non-reporting issuers, such
as
Viper Powersports, Inc. Please eliminate this reference or make
it
clear each time you reference the statute that it is unavailable
to
you.
14. Revise to discuss your results of operations pursuant to Item
303(b) of Regulation S-B.
15. What will be your anticipated general and administrative costs
after effectiveness of this filing? What will be the effect of
known
changes as a result of becoming a reporting company? Are these
anticipated expenses included in your projections for the next
twelve
months as shown on page 10? To the extent that these are trends
known to management, they should be discussed.
16. Confirm whether the line item "general and administrative
expenses including management compensation" in the 12-month
expense
table on page 10 is directly comparable to the "selling, general
and
administrative" line item in the income statement. If not,
consider
revising the table for consistent disclosure.
17. We note from your disclosure on page 10 that you anticipate
having sufficient cash to support operating expenses until the
summer
and thereafter you intend to obtain additional working capital
through SEDA financing from Cornell Capital Partners. In
addition,
we note that SEDA financing is contingent upon effective
registration
of common stock with the Securities and Exchange Commission. In
light of the above comment regarding the viability of the SEDA,
tell
us, and revise your discussion to explain how you will fund
working
capital requirements if your common stock is not registered. Also
revise Note 2 to your financial statements as necessary to address
the how you plan to address your "short fall" if common stock is
not
registered.
18. The SEDA agreement discloses that Monitor Capital served as
the
placement and David Gonzalez will serve as the escrow agent.
Please
tell us and disclose whether there are any affiliations between or
among David Gonzalez, Monitor Capital, Inc,. and Cornell Capital
Partners. It appears that Cornell Capital Partners West Coast
office
and Monitor Capital share the same suite in San Diego. Please
tell
us whether Cornell Capital or any equity owners, officers or
directors of Cornell Capital hold equity interests in Monitor
Capital. Please describe any such ownership interests in Monitor
Capital.
19. Please disclose the fees associated with the with Monitor
Capital
private placement agreement that is referenced in the SEDA with
Cornell Capital. One you have a viable equity line, please file
the
private placement agreement as an exhibit. Other agreements
referenced in the equity line agreement but not discussed in the
filing nor filed as an exhibit include a registration rights
agreement and escrow agreement. Please revise or advise.
Further,
it appears inappropriate for David Gonzalez to serve as escrow
agent.
20. We note that section 4.3 of the Standby Equity Distribution
Agreement refers to a "PIPE transaction being conducted by
Bathgate,"
which includes a registration rights agreement pursuant to which
the
company is obligated to register the sale of its securities under
the
Securities Act. Please provide us with copies of the executed
Bathgate transaction agreements and provide appropriate and
materially complete disclosure regarding this transaction.
21. We note you have not disclosed or discussed your critical
accounting policies within your filing. Revise to discuss your
critical accounting policies which are meant to supplement, not
duplicate, the description of accounting policies in the
footnotes.
We refer you to SEC Release 33-8040.
22. Tell us what consideration you gave to the accounting and
disclosure provisions of the AICPA Practice Aid "Valuation of
Privately-Held-Company Equity Securities Issued as Compensation"
(the
"Practice Aid").
23. Tell us and disclose whether you obtained a contemporaneous
valuation performed by an unrelated valuation specialist as
defined
by the Practice Aid. If not, please revise to disclose the
following
information related to issuances of equity instruments:
* Discuss the significant factors, assumptions, and methodologies
used in determining the fair value of the underlying common stock;
and
* Disclose the valuation alternative selected and the reason
management chose not to obtain a contemporaneous valuation by an
unrelated valuation specialist.
24. Please confirm whether or not you have any off-balance sheet
arrangements pursuant to Item 303(c) of Regulation S-B.
Risk Factors, page 11
25. "Because of our development status ..." page 11. This risk
factor begins with a statement regarding whether you will ever
emerge
from the development stage. Similar statements appear elsewhere
in
the document although you state on page 2 that you believe your
development stage has ended. Please clarify whether or not
management believes the company to be in a development stage and
revise accordingly.
Description of Property, page 17
26. State what your plans are for extending your current lease,
which
expires in June 2006. State whether the facilities will
accommodate
the additional staff you expect to hire and your anticipated
commercial production and sales efforts in connection with rolling
out the model 1 and model 2 versions of the Viper cruiser in mid
and
late 2006, respectively.
Share Ownership of Certain Beneficial Owners and Management, page
18
27. The information provided in the table should be as of the most
recent practicable date. Please disclose the date as of which the
information is provided.
Directors and Executive Officers, Promoters and Control Persons,
page
19
28. Please indicate the number of years Mr. Nesbitt served as
president of Viper Motorcycles. Ensure that you have disclosed
his
business experience during the past five years.
Executive Compensation, page 19
29. The summary compensation table lists under "other" a fuel
allowance. As this is a cash payment, it should be reported in
the
salary or bonus column and described in a footnote.
30. Disclose whether there is any proposal, understanding or
arrangement concerning accrued earnings to be paid in the future.
If
there are no such arrangements, affirmatively acknowledge that
there
are none. Note that Item 402 of Regulation S-B requires
disclosure
of compensation awarded to, earned by, or paid to executive
officers.
It is unclear from the 12-month expense table on page 10 how much
of
the line item "general and administrative expenses, including
management compensation" constitutes total management
compensation.
Certain Relationships and Related Transactions, page 20
31. For the private placements, loans from related parties,
options
and warrants and other agreements listed in this section, please
provide all of the information required by Item 404 of Regulation
S-
B, including the names of the related parties, their relationships
to
Viper Powersports, and the amounts involved. Where options and
warrants were issued in connection with financing services, please
include the amount and terms of the grants in the discussion
relating
to the financing services to facilitate understanding of the
entire
transaction.
32. Please file copies of all of the contract agreements to which
directors, officers, promoters or named securityholders are
parties
that are listed in this section, including but not limited to the
$150,000 Series A convertible secured note with Mr. Palmlund and
the
consulting agreement with Racing Partners Management, Inc.
33. Describe the services rendered by Mr. Lowenthal that were
valued
at $62,000 and by Mr. Nesbitt. State the total value of the
shares
granted to Mr. Nesbitt and file copies of the consulting
agreements.
34. Please confirm whether the $36,000 to be paid to Mr. Palmlund
is
included in your anticipated expenses for the next twelve months
as
disclosed in your plan of operations on page 10.
Purchase of motorcycle engine technology, page 22
35. We note your disclosure on page 2 of the business section
regarding how this transaction was valued in comparison to the
independent fair market value appraisal obtained from a business
appraisal firm. Please include all of the information regarding
the
value of the transaction in the related transactions section. You
may include a cross-reference in the business section to the more
detailed discussion that should be disclosed here.
Part II
Recent Sales of Unregistered Securities, page 24
36. Please separately identify the transactions you believe were
exempt from registration pursuant to Rule 701.
37. For transactions listed where you rely on Section 4(2), please
disclose whether the purchasers were accredited or sophisticated,
and
if the latter, outline the access to information afforded to them.
38. For all transactions relating to services rendered, outline
the
services provided.
39. For the debt conversion plan, you state that the creditors
were
"almost all accredited investors." Please clarify and disclose
whether the non-accredited investors were sophisticated with
access
to information.
Exhibits
40. Please file copies of all material contracts, such as the
production inventory financing agreement and Mr. Nesbitt`s
employment
agreement, required to be filed pursuant to Item 601(b)(10) of
Regulation S-B. Ensure that descriptions of all of the material
terms of the agreements are included in the document as
appropriate.
Signatures
41. Pursuant to General Instruction B.2. to Form 10-SB, please
ensure
that the form bears the typed signature of Mr. Lai on the
signature
line.
Consolidated Financial Statements
Consolidated Statements of Stockholders` Equity (Deficit), page F-
5
42. We note from your Consolidated Statements of Stockholders`
Equity
(Deficit) that you have common stock and preferred stock
outstanding.
Revise to disclose within your financial statement notes the
pertinent rights of your securities outstanding, such as voting
rights, liquidation preferences, conversion rights, etc. If your
preferred stock has a preference in involuntary liquidation in
excess
of the par or stated value, disclose the liquidation preference in
the equity section of your Consolidated Balance Sheets. We refer
you
to SFAS 129.
43. Tell us how you considered ASR 268 as it relates to your
classification of preferred stock in Stockholders` Equity. In
addition tell us how you considered paragraphs 6 through 12 of
SFAS
133 and EITF 00-19 in accounting for the conversion feature of
your
preferred stock and for your outstanding warrants.
Notes to Consolidated Financial Statements
Note 1. Nature of Business and Summary of Significant Accounting
Polices, page F-7
44. We note that Viper Powersports, Inc. was incorporated in
Nevada
in 1980 under a different name, and was inactive for years. Tell
us
the name under which the Company filed its periodic reports
pursuant
to the 1934 Exchange Act.
Revenue Recognition
45. Revise to disclose your revenue recognition policy when
dealers
take advantage of financing through CDF. Tell us how you have
considered FIN 45 in accounting for your continuing obligation to
the
financing company when dealers do not perform under dealer
financing
arrangements. Revise your notes to disclose this information as
necessary.
46. Tell us how you have considered your obligation to pay the
finance company the higher of the dealer loan balance or original
invoice, in determining your guarantee liability. Also, revise
your
notes to include disclosures pursuant to paragraph 13 of FIN 45.
Warranty
47. We note your warranty accounting policy disclosure. Tell us
the
costs incurred as it relates to your warranty of motorcycles sold
in
fiscal 2004 and 2003 and disclose the warranty reserve as of
August
31, 2005 and December 31, 2004. We refer you to paragraph 14 of
FIN
45.
Note 3. Purchase of Engine Development Technology, page F-12
48. We note you acquired engine technology and related assets from
Thor Performance, Inc. in March 31, 2005. Tell us the following
as
it relates to this transaction:
* The nature of the Company`s relationship prior to and after this
transaction, such as the ownership percentages of common
shareholders
before and after the transaction, the identity of those
shareholders
and whether your Company and Thor Performance were under common
control prior to the transaction;
* How you considered SAB topic 5 G in accounting for this
transaction;
* The assets acquired in this transaction such as research and
development, intangible assets, fixed assets, working capital;
* How you considered the criteria in EITF 98-3 as it relates to
classifying this as an asset acquisition as opposed to a business
combination;
* Your basis for not expensing engine development costs pursuant
to
paragraph 12 of SFAS 2 and footnote 11 to paragraph 12 of SFAS
142;
* Your basis for assigning a ten-year life to engine development
costs; and
* Why, it appears, engine development costs have not been
amortized
since the date of acquisition, i.e., the amount recorded on the
balance sheet as of August 31, 2005 ($7,341,438) equals the amount
assigned to engine development costs on March 31, 2005.
We may have additional comments based on your response.
Note 5. Related Party Transactions, page F-13
49. Revise to disclose the nature of the relationships involved
for
all related party transactions and the amounts due to and from
related parties at each balance sheet date, in addition to
shareholder loans currently recorded, if applicable. We refer you
to
SFAS 57.
Note 6. Common Stock Warrants and Options, page F-16
50. Please provide us with the following information in
chronological
order for stock option grants and other equity related
transactions
for the one-year period preceding the most recent balance sheet
date
and through the date of your response:
* The nature and type of stock option or other equity related
transaction;
* The date of grant/issuance;
* Description/name of option or equity holder;
* The reason for the grant or equity related issuance;
* The number of options or equity instruments granted or issued;
* The exercise price or conversion price;
* The fair value of underlying shares of common stock;
* The total amount of deferred compensation or value assigned to
beneficial conversion feature reconciled to your financial
statement
disclosures; and
* The amount and timing of expense recognition.
Continue to provide us with updates to the requested information
for
all equity related transactions subsequent to this request through
the effective date of the registration statement.
51. Please provide us with objective evidence that supports your
determination of the fair value of the underlying shares of common
stock at each grant or issue date. This objective evidence could
be
based on valuation reports that rely on methodologies discussed in
the AICPA Practice Aid or on current cash sales of the same or a
similar company security to a willing unrelated party other than
under terms and conditions arising from a previous transaction.
Where you have obtained a third-party valuation, tell us what
level
of assurance the appraiser gave in the fair value assessment.
52. Reconcile and explain the differences between the fair values
of
the underlying common stock at each valuation date. This
reconciliation should describe significant intervening events
within
the company and changes in assumptions as well as weighting and
selection of valuation methodologies employed that explain the
changes in the fair value of your common stock up to the filing of
the registration statement.
53. Tell us what consideration you gave to the Practice Aid`s
disclosure guidance in paragraph 179. As applicable, consider
revising to include the following disclosures for options granted
during the 12 months prior to the date of the most recent balance
sheet included in the filing:
* For each grant date, the number of options or shares granted,
the
exercise price, the fair value of the common stock, and the fair
value, per option (the number of options may be aggregated by
month
or quarter and the information presented as weighted-average per
share amounts);
* Whether the valuation used to determine the fair value of the
equity instruments was contemporaneous or retrospective; and
* Whether the valuation was performed by a related party.
54. Tell us how you valued your stock options and warrants issued
for
services (i.e., did you use the Black-Scholes model or other
method)
and how you determined the assumptions used in the valuation
regarding expected volatility and expected term of the options.
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 your questions or comments concerning matters
related to the financial statements to Thomas Ferraro at 202-551-
3225. Please address all other comments to Maryse Mills-Apenteng
at
202-551-3457 or the undersigned at 202-551-3730.
Sincerely,
Barbara C. Jacobs
Assistant Director
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John Lai
Viper Powersports, Inc.
December 22, 2005
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