Mail Stop 4561
June 1, 2006
R. Jordan Greenhall
Chief Executive Officer and Chairman
DivX, Inc.
4780 Eastgate Mall
San Diego, California 92121
Re: DivX, Inc.
Registration Statement on Form S-1
Filed on May 5, 2006
File No. 333-133855
Dear Mr. Greenhall:
We have reviewed your Form S-1 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
additional
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 welcome any questions you may have about our comments or on any
other aspect of our review and look forward to working with you.
Feel free to call us at the telephone numbers listed at the end of
this letter.
General
1. We will process your amendments with price ranges. Since the
price
range triggers a number of disclosure matters, we will need
sufficient time to process the amendment when it is included.
Please
understand that its effect on disclosure throughout the document
may
cause us to raise issues on areas not previously commented upon.
In
addition, we remind you that Rule 430A does not allow for the
omission prior to effectiveness of the number of shares to be
offered
or the number of shares to be sold by selling stockholders. See
Section II.A.7 of Release No. 33-6714.
2. We note that you have filed an application for confidential
treatment of exhibits to the registration statement. We will
provide
comments on the confidential treatment request, if any, in a
separate
letter. Please note that the confidential treatment request must
be
processed before effectiveness of the registration statement.
3. We note that you intend to file certain exhibits by amendment.
Please allow the staff sufficient time to review the exhibits by
filing them as soon as possible.
4. Please update the financial statements in your next amendment
pursuant to Rule 3-12 of Regulation S-X.
5. Avoid the use of acronyms throughout the prospectus where
possible. Your use of such terms as DSCs, PMPs, ODMs, IC
manufacturers, DMDs, DVRs, OVSs, SDKs, OVSs, and ISVs forces the
reader to learn a new vocabulary to read through the document.
Where
appropriate, eliminate these abbreviations and use words or
phrases
that can be understood by their plain meaning.
Inside Cover Page
6. Consider relocating the paragraph following the table of
contents
to an appropriate section of the prospectus, for example, under
the
Prospectus Summary subheading Corporate Information.
Summary
7. Please eliminate the phrase from the introductory paragraph
that
the summary information "is qualified in its entirety" by
reference
to other more detailed sections of the prospectus. The
information
you provide in the prospectus must be materially complete and the
words "in its entirety" suggest that the prospectus may not be
materially complete.
8. You state that you distribute the DivX Player software from
your
website, which averaged over five million visitors per month
during
the first quarter of 2006. For balanced disclosure, disclose the
number of distributions made during that period.
9. Please disclose the criteria you used in selecting the two
customers you identified by name. For example, you should
identify
Philips and Samsung as material customers and quantify the portion
of
your revenues they have contributed in the last year and the most
recent interim period.
10. We note your discussion of revenues during the last three
fiscal
years. For balanced discussion, you should note your history of
operating losses and accumulated deficit.
The Offering, page 4
11. We note your statement that you may affect a reverse stock
split
of your common stock prior to the effectiveness of the
registration
statement. If you do so, please ensure that you update your
filing
to retroactively give effect to the reverse stock split in your
balance sheet and throughout your filing. See SAB Topic 4(C).
12. We note further that the certificate of incorporation and
bylaws
will be amended and that such amendment may occur after the
effective
date of the registration statement. Please provide a succinct
discussion in the prospectus of the material differences between
the
current and the proposed amended articles and bylaws and the
provisions thereof.
Risk Factors, page 7
13. Avoid the generic conclusion you make in some of your risk
factors that the risk discussed "could adversely affect our
operating
results," "our business will suffer" or "our business will be
materially harmed." Instead, replace this language with specific
disclosure on how your business or financial results could be
affected. On page 12, for example, you state that if the royalty
reports you receive from licensees are inaccurate, your "operating
results could be materially and adversely affected." As a further
example, you state in risk factor heading on page 14 that if
digital
video technologies are treated as a commodity in the future, your
business, operating results and prospects could be adversely
affected. Revise the generic references to how the risks you
identify could harm your business and replace these phrases with
more
specific disclosure regarding the potential harm that could
result.
We are dependent on the sale by our licensees of consumer hardware
and software products that incorporate our technologies. . . page
9
14. Please revise the risk factor to describe separately your
reliance on your greater than 10% customer Philips. Consider also
whether you should provide a single risk factor disclosing your
reliance on the two greater than 10% customers Philips and Google.
Your reliance on licensees of consumer hardware and software
products
that incorporate your technologies appears to be a distinct and
separate risk. Identify the significant customer(s) and disclose
the
percentage of revenue generated by each in the subheading.
Our business is dependent in part on technologies we license from
third parties . . . page 11
15. You refer to third parties on whom you are dependent. Are
there
third parties other than MPEG LA on whom you are dependent for
technology licenses? If so, include a discussion of the licenses
on
which you are dependent in the business section and file the
agreements as exhibits to the registration statement.
We face risks with respect to conducting business in China . . .
page
13
16. Quantify the "significant number" of consumer hardware devices
manufactured by companies in China on which you rely.
It is not yet clear how laws designed to protect children . . .
page
18
17. Please tell us whether you have ever been charged with non-
compliance of either of the Acts your reference or with any laws
relating to providing services via the Internet or Internet use in
general.
Forward-looking Statements, page 30
18. Please eliminate references to the Private Securities
Litigation
Reform Act. As you know, the safe harbors of this Act are not
available to initial public offerings, such as yours. See Section
27A
of the Securities Act.
Use of Proceeds page 31
19. You state that you intend to use the proceeds for working
capital
and general corporate purposes as well as to acquire or license
products, technologies or businesses, but that you have no current
plans relating to acquisitions or licenses. It appears from the
rest
of your prospectus disclosure that an investor could reasonably
assume you have performed studies and made preliminary decisions
with
respect to the best use of capital resources. Please revise
accordingly.
Management`s Discussion and Analysis of Financial Condition and
Results of Operations, page 37
20. Please supplement your discussion, particularly in the Results
of
Operations and Liquidity and Capital Resources sections, to
provide
insight into material opportunities, challenges and risks, such as
those presented by known material trends, commitments and
uncertainties, on which the company`s executives are most focused
for
both the short and long term, as well as the steps you are taking
to
address them. See Section III.A of SEC Release 33-8350. For
example, we note that the percentage of net revenues from
technology
licensing has increased, while the percentage of net revenues from
media and other distribution and services has decreased in the
last
three years. What are the reasons for this trend, what is the
company`s business strategy, and how is this strategy expected to
impact this trend?
21. Throughout this section, you refer to two or more factors that
contributed to the reported financial result or material changes
over
the reported periods. Revise to quantify the amount of the
financial
result or changes contributed by each of the factors or events
that
you identify as they relate to revenues, cost of revenues and
gross
profit, sales and marketing, research and development and general
and
administrative. Rather than simply using the term "primarily" in
describing changes, quantify the amount of the financial result or
change that is attributable to the primary source you identify.
As
one example only, quantify the amount of revenue derived
"primarily"
from per-unit royalties received from OEMs. See Section III.D of
SEC
Release 33-6835. In addition to quantifying the dollar effect of
the
various contributing factors, ensure that you describe the
significant developments in the marketplace or at your company
that
led to the changes.
22. We note your statement here and in other places in the
prospectus
that your codec has been downloaded over 180 million times during
the
last four years, including over 50 million times during the last
twelve months. Please advise us as to whether this number
includes
only downloads for which you received revenue, or if it also
includes
free downloads, such as your 15-day trial versions, and whether
this
number includes upgrades and support, which are included in your
license to consumers. In addition, please disclose whether the
downloads are generally made by individuals, by OEMs who license
your
software or by other entities. Finally, please revise to discuss
how
the number of downloads impacts your financial condition and
results
of operations, either directly or indirectly.
23. Discuss the extent to which the changes in revenues from one
period to the next for each of the revenue streams were
attributable
to changes in volumes sold or to changes in prices charged.
Currently, the text provides little information to investors about
the pricing environment for your products over the three most
recent
years and how any changes for the prices of the goods and services
you sell affected your revenues over the three-year period. In
addition, we note your disclosure that your strategy is to have
your
digital media technologies adopted as the industry standard, which
limits the royalty rates you may charge. Please discuss in
further
detail how this strategy has impacted your revenues, if at all.
24. Where you refer to increases in headcount, please expand to
quantify these increases from period to period. Also, please
expand
briefly to discuss the outside contractor expense that totaled
nearly
$300,000. Are the hiring of new employees and contractor fees
expenses that management expects will continue?
25. Given that your disclosure that your distribution agreement
with
Google, which generated 15% of revenues in the last fiscal year,
will
terminate on December 31, 2006, a matter which you discuss in risk
factors on pages 9-10, a discussion of the expected impact of this
on
the company from management`s vantage point appears to be
warranted.
Critical Accounting Policies - Stock-Based Compensation, page 43
26. We note that the Company obtained retroactive valuation by
unrelated specialist for equity awards granted between October 1,
2004 and December 31, 2005. We further note that the Company
performed the reassessment analysis consistent with the guidance
provided by the AICPA Practice Aid "Valuation of Privately-Held-
Company Equity Securities Issued as Compensation." Tell us how
you
considered the guidance in paragraphs 179-182 of the AICPA
Practice
Aid to disclose the following:
- - Discuss each significant factor contributing to the difference
between the fair value as of the date of each grant and the
estimated
IPO price and;
- - Complete your disclosure on the intrinsic value of outstanding
vested and unvested options based on estimated IPO price and the
options outstanding as of the most recent balance sheet date
presented in the registration statement.
27. On pages 44, F-14 and F-16, we note that you refer to a third-
party specialist to determine the fair value of your common stock.
When you refer to an independent valuation disclose the name of
expert and include the expert`s consent with the filing. Refer to
Section 436(b) of Regulation C. Alternatively, you may remove
this
reference. Please revise.
Liquidity and Capital Resources, page 49
28. You state that you believe you have sufficient cash resources
to
satisfy your cash requirements through at least December 31, 2006.
Please revise the disclosure to indicate whether management
believes
it has sufficient cash resources to satisfy financial obligations
for
a 12-month period from the date of filing.
29. Please update the disclosure regarding the credit facility
with
Silicon Valley Bank to state whether you are compliant with the
financial covenants as of the most recent practicable date. Also,
consistent with our general comment above, please remove the
abbreviated reference SVB. To facilitate investor understanding,
refer instead simply to Silicon Valley Bank, or the Bank.
Internal Controls Over Financial Reporting, page 51
30. We note that the Company is reviewing and documenting its
internal controls over financial reporting in anticipation of
complying with Section 404 of the Sarbanes-Oxley Act. If the cost
of
becoming compliant or maintaining compliance with Section 404 is
expected to be significant, discuss the impact of compliance on
results of operations and liquidity. We refer you to Item 303 of
Regulation S-K.
Business, page 56
31. Please provide us with marked copies of each of the reports
you
cite in the business section in providing statistics about
cameras,
compact discs and DVDs and other products and services you
discuss.
Tell us whether these reports are publicly available at a nominal
or
no fee.
32. Please disclose how the list of customers disclosed on page 67
are considered "representative" of your customers overall. Given
that you have only one customer with regard to third-party
software
application distribution, how can Google be considered a
representative customer? Are any of the customers among the 10
you
reference who generated revenues on a combined basis of some 40
percent?
33. Please include a discussion of the international reach of your
business. We note from Note 9 to the financial statements that
for
the last two fiscal years a majority of your revenues is derived
from
Asia and for the year ended December 31, 2005, revenues generated
from North America and Europe are nearly equal. The shift away
from
North America as the dominant market and the changing dynamics
leading to this shift should be discussed in this section as well
as
in Management`s Discussion and Analysis. What are the forces
causing
your revenues derived from Asia, and Europe in the last year, to
multiply exponentially as compared to the relatively flat growth
in
North America?
Competition, page 70
34. Tell us how you compare to your competitors in quantitative or
qualitative terms and consider appropriate disclosure in this
respect.
Management, page 74
35. For each person identified as "CXO" please provide the
complete
title in the table of officers and directors and in the
biographies,
as applicable.
Principal and Selling Stockholders, page 94
36. Identify the natural person or persons who have voting and/or
investment control over Zone Venture Fund, WI Harper Group and
Insight Holdings. See Instruction 2 to Item 403 of Regulation S-
K.
Financial Statements
Note 1. Organization and Summary of Significant Accounting
Policies
Revenue Recognition, page F-9
37. We note from disclosures throughout your filing that the
Company
derives revenues from advertising and third-party product
distribution. Tell us the timing of recognizing advertising and
distribution revenues. In this regard explain the nature of
performance targets established by Google and how these targets
impact timing of revenue recognition. Revise you revenue
recognition
policy, if necessary.
38. We note from disclosures throughout the filing that the
Company
receives royalties for licensing its technology and software,
among
other transactions. We also note from your risk factors disclosed
on
page 12 that you rely on your licensees to accurately prepare
royalty
reports for the determination of licensing revenues and if these
reports are inaccurate, operating results could be materially and
adversely affected. Considering this risk factor tell us how you
determined that revenue recognition criteria have been met as they
relate to royalty revenues. In your response tell us whether you
have been required to adjust royalty revenues in subsequent
periods
due to inaccuracies originally reported by licensees in prior
periods
and the amounts of those adjustments for fiscal 2003, 2004 and
2005.
39. You disclose throughout your filing that the Company pays
royalties to third parties for the use of their software. Tell us
the timing of recognizing royalty payments in cost of goods sold.
40. You disclose that under certain guaranteed minimum-royalty
licenses revenue is recognizable upon delivery of the technology
license and that for certain arrangements the Company enters into
extended payment programs. Tell us the nature and terms of the
arrangements that provide for guaranteed minimum-royalty payments
and
the extended payment terms you offer to your customers under these
arrangements Further tell us the Company`s normal payment terms
and
how the timing of revenue recognition is impacted when extend
payment
terms are offered.
41. You indicate that "Consulting revenues from these arrangements
were accounted for separately from software license revenues
because
the arrangement qualify as service transactions as defined in SOP
97-
2." Please explain the basis of your statement. Also, clarify
for
us if your consulting service is essential to the functionality of
your software.
Net Income (Loss) per Share Date, page F-12
42. We note that you include the common stock equivalent shares of
redeemable convertible preferred stock and convertible preferred
stock in the calculation of diluted net income per share when
their
effective is dilutive. Please expand your disclosure to discuss
how
you considered EITF 03-06 in determining whether the Company`s
redeemable convertible preferred stock and convertible preferred
stock should be considered a participating security for the
purpose
of computing earnings per share.
43. We note from disclosures throughout the filing that preferred
stock issuances will be converted to common stock upon the
offering.
Revise your financial statements to include pro forma EPS on the
face
of the historical income statements for the latest year and
interim
period giving effect to the conversion (but not the offering).
Stock-based Compensation, F-13
44. 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 type of security;
- - 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; and
- - The total amount of compensation deferred and expense recognized
and reconciled to your financial statement disclosures and the
magnitude and timing of the amortization expense.
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.
45. We note that the Company reassessed the fair value of the
Company`s common stock for the equity awards granted on or after
October 1, 2004 and obtained a retroactive valuation by an
unrelated
valuation specialist. For fair value of common stock determined
for
each grant date, please address following:
- - Explain the significant factors, assumptions, methodologies used
in
determining fair value for each grant date;
- - Reconcile and explain the differences between the fair values of
your common stock, including the difference between the most
recent
grant date fair value and the midpoint of your offering range.
This
reconciliation should describe significant intervening events
within
the company and changes in assumptions within the valuation
methodologies employed that explain the changes in fair value of
your
common stock up to the filing of the registration statement.
Note 3. Redeemable Series D Convertible Preferred Stock and
Stockholders` Equity, page F-19
Convertible Preferred Stock - Series A, B, and C
46. Tell us how you considered whether the conversion features in
the
convertible preferred stock Series A, B and C represent an
embedded
derivative. In this regard, tell us how you considered the
criteria
in paragraph 12(a) - 12(c) of SFAS 133 and specifically tell us
how
you applied the guidance in paragraph 61(l) in your analysis.
Also,
tell us how you considered the scope exception of paragraph 11(a)
of
SFAS 133 in your analysis. Specifically, we note that these
issuances
are subject to include anti-dilution adjustments. Tell us how you
considered these provisions in determining whether the embedded
derivative qualified as a conventional convertible instrument and
met
the scope exception of paragraph 4 of EITF 00-19. Also, include
in
your response your analysis of EITF 00-19 paragraphs 12 to 32, as
necessary. If the scope exception of paragraph 11(a) is not met,
tell us whether you have considered the conversion feature to be
an
embedded derivative that is subject to classification and
measurement
at fair value.
47. Tell us how you considered EITF 98-5 and EITF 00-27 in
determining whether such instruments included a beneficial
conversion
feature.
Redeemable Series D convertible preferred stock
48. Tell us how you considered whether the conversion right in the
cumulative redeemable convertible preferred stock Series D
represents
an embedded derivative. In this regard, tell us how you
considered
the criteria in paragraph 12(a) - 12(c) of SFAS 133 and
specifically
tell us how you applied the guidance in paragraph 61(l) in your
analysis. If the instrument meets the definition of an embedded
derivative, that derivative must be analyzed to determine whether
it
is an equity instrument or a liability. Include in your response
your analysis of EITF 00-19 paragraphs 12 to 32, as necessary. We
refer you to Section II.B of our website at
http://www.sec.gov/divisions/corpfin/acctdis120105.pdf for
guidance.
49. If you determine, based on your analysis, that the embedded
conversion feature should not be bifurcated, then tell us how you
considered EITF 98-5 and EITF 00-27 in determining whether such
instruments included a beneficial conversion feature.
50. In page 92, you indicate that in April 2004, you issued
warrants
to purchase an aggregate of 70,385 shares of your common stock
with
an exercise price of $2.32 per share to Zone Venture Fund and its
affiliates and WI Harper Group and its affiliates. You further
indicate that these warrants will expire upon the completion of
this
offering if and to the extent not then exercised. Tell us if
these
warrants are issued in conjunction with the convertible notes
issued
in January 2004. If so, tell us how you are accounting for these
warrants. Specifically tell us how you considered the criteria in
paragraph 6 of SFAS 133 and the scope exception of paragraph 11(a)
of
SFAS 133 in your analysis. Provide us with your analysis using
the
conditions outlined in paragraphs 12 to 32 of EITF 00-19 to
determine
whether the warrants should be classified in equity or as a
liability. If the scope exception of paragraph 11(a) has not been
met, tell us why you have not classified the warrants as a
liability,
initially measured at fair value, with changes in fair value
reported
in earnings and disclosed in the financial statements. Also, tell
us
the method and assumptions used to determine the fair value of the
warrants issued.
Note 6. Contingencies, page F-26
51. We note from your risk factor disclosed on page 19 that the
Company may be subject to assessment of sales taxes and other
taxes
for licensing of technology or sale of products. It is not
evident
from this disclosure whether the Company is providing for all
sales
and other tax liabilities. Confirm that if the Company has an
obligation to pay or collect, sales tax or other taxes within a
jurisdiction, it provides for these liabilities within its
financial
statements.
Note 9. Segment Information, page 29
52. We note your disclosure of revenues by geographic region. It
is
not clear from this disclosure whether the Company has determined
that it operates in more than one segment. Tell us the number of
operating segments, the nature of discrete financial information
the
Chief Operating Decision maker reviews on a periodic basis
(operating
results by product, services, geographic region etc.) and how you
considered paragraphs 10 through 17 of SFAS 131 in determining the
number of operating segments.
Note 10. Subsequent Events, page F-30
53. We note that on March 2006, the Company acquired all of the
assets of Corporate Green with cash payment of $351,000 and
208,950
shares of the Company`s common stock. With regards to this
transaction, please explain the following:
- - Tell us the total purchase price determined by the Company.
Specially, tell how you determined the fair value of common stock
issued (69,648 shares vested as of acquisition date and 139,302
contingent shares). Refer to paragraphs 20, 22, and 23 of the
SFAS
141.
- - You indicate the Company will record compensation expense for
the
139,302 shares of common stock issued and the additional cash
payments in accordance with EITF 95-8. Please provide an analysis
supports your conclusion. Specifically address each criteria
considered pursuant to EITF 95-8.
- - Tell us the preliminary allocation of the purchase price.
- - Tell us how you considered the requirements of Rule 3-05 of
Regulation S-X to provide the financial statements of the business
acquired and pro forma financial information showing the effects
of
this acquisition.
Part II
Exhibits
54. Please file the Philips agreement as an exhibit to the
registration statement. See Item 601(b)(10) of Regulation S-B.
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 supplemental information.
Detailed cover letters greatly facilitate our review. We may have
additional comments based on 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 reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed 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 this action 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.
Furnish requests for acceleration on behalf of the company
and
the underwriters at least two days prior to the requested
effective
date. Refer to Rules 460 and 461 of Regulation C of the
Securities
Act of 1933 and Rule 15c2-8 of the Securities and Exchange Act of
1934 regarding distribution of the preliminary prospectus,
requests
for acceleration and notification of NASD review and concurrence.
You may contact Kari Jin at 202-551-3481 or Thomas Ferraro at
202-551-3225, if you have questions regarding comments on the
financial statements and related matters. Please address all
other
comments to Maryse Mills-Apenteng at 202-551-3457. If you require
further assistance you may contact Anne Nguyen, Special Counsel,
at
202-551-3611. If you still require further assistance, please
contact the undersigned at 202-551-3730.
Sincerely,
Barbara C. Jacobs
Assistant Director
cc: Via facsimile: 858-550-6420
Steven M. Przesmicki, Esq.
Jason L. Kent, Esq.
Cooley Godward LLP
R. Jordan Greenhall
DivX, Inc.
June 1, 2006
Page 12
R. Jordan Greenhall
DivX, Inc.
June 1, 2006
Page 13