SEC Comment Letter for Inuvo, Inc. (INUV) (CIK 0000829323) (INUV) — Jul 31, 2007
Inuvo, Inc. (INUV) (CIK 0000829323)
Date: July 31, 2007 · CIK: 0000829323 · Accession: 0000000000-07-037142
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 333-121761, 333-134823, 333-143299
Letter
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 DIVISION OF CORPORATION FINANCE Mail Stop 3720 July 12, 2007 Scott P. Mitchell President and Chief Executive Officer Think Partnership Inc. 28050 US 19 North, Suite 509 Clearwater, Florida 33761
Re: Think Partnership Inc. Registration Statement on Form S-3 Amendment 1 Filed June 27, 2007 File No. 333-143299
Dear Mr. Mitchell:
We have limited our review of your Form S-3 to consideration of your disclosure concerning the shares being registered on this registration statement and have the following comments. Where indicated, we think you should revise your documents 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 necess ary in your explanation. In some of our comments, we may ask you to pr ovide us with information so we may better understand your disclosure. After reviewing this information, we may or may not raise additional comments. We welcome any questions you may have about our comments or any other aspect of our review. Feel free to call us at the tele phone numbers listed at th e end of th is letter.
General 1. We note your response to comment one from our letter of July 21, 2007. While an integration analysis is not entirely relevant to a determination as to whether the offerings in question should be considered primary or sec ondary, we have noted th e factual assertions contained in your response. We direct your attention to the Di vision of Corporation Finance’s Manual of Publicly Available Telepho ne Interpretations. In particular, please refer to Section D Item 29, available at http://www.sec.gov/interps/tele phone/cftelinterps_rule415.pdf , which discusses the possibility that secondary offerings may be c onsidered primary offerings when taking into account the totality of the circumstances. To fu rther assist us in our consideration of this issue, please provide us with the following information regarding your transactions with,
Scott P. Mitchell Think Partnership Inc. July 12, 2007 Page 2 and securities holdings of, Magnetar Capital Ma ster Fund, Ltd. and entities affiliated with Karl Brewer (separately for each of the eight entities listed on the Form S-3):
• The number of issued and outstanding shares each currently holds;
• The number of shares that may be issu ed pursuant to conve rtible securities;
• The number of shares that have been regi stered on other registration statements, specifically identifying each tranche;
• The number of shares registered on prior regi stration statements that have been sold;
• The date on which and the manner in whic h each of these entit ies received the shares and/or the underlying securities registered on such prior registration statements. In your response, please address why the company agreed to register the shares sold by the Roberti Jacobs Family Trust by the three purchasers, including Magnetar, and to what extent the comp any was involved in Trust’s decision to exercise the warrants and sell the underlying shares.
• A more detailed analys is of whether either Magnetar or Mr. Brewer is in the business of buying and selling securities.
Selling Shareholders, page 4 2. The disclosure in this secti on continues to be confusing. Please continue to revise your disclosure to address the following points:
• As requested previously, please disclose in the footnotes to the selling stockholders table the number of shares included in each selling shareholder’s beneficial ownership amount that are outstanding and the amount that the selling shareholder has the right to acquire (i.e., the number of shares issuable upon exercise of warrants and options, etc.)
• As requested previously, please avoid disclo sure in terms of sh ares that are being “excluded.” In this regard, it is not necessary to disclose the number of shares that are not being offered. Instead, simply provide di sclosure about the nature and number of the shares that are being offered (e.g., the number of shares being offered that are outstanding, issuable upon exercise of warrants, etc.).
• Please continue to review your footnote disclosure to ensure that the numbers are consistent and/or add up. For example, you state that the shares beneficially held by Calhoun & Co FFC City of Dearborn Poli cemen and Firemen Revised Retirement Systems (“Calhoun Policemen and Firemen”) amount to 63,000 and that you are
Scott P. Mitchell Think Partnership Inc. July 12, 2007 Page 3 offering 9,922 under the instant Registrati on Statement (333-143299), to leave 53,078 shares remaining after the pr esent offering. However, you di sclose in footnote 5 that Calhoun Policemen and Firemen are offeri ng 63,000 shares pursuant to Registration Statement 333-134823. As a result, we do not understand how Calhoun Policemen and Firemen beneficially owns only 63,000 shares.
• Please clarify in footnotes 2 and 3 to the selling shareholder tabl e that you have not included shares underlying particular warra nts in Magnetar Capital Master Fund’s beneficial ownership amounts due to the beneficial ownership limitations contained in the warrant agreements (i.e., what you refer to as blocker provisions). Clarify that these beneficial ownership limitations do not prevent Magnetar from ultimately exercising and selling the full amount issuable upon exerci se of the warrants. In this regard, state that, even though Magnetar may not receive more than 4.90% or 4.99% of the then- outstanding common stock, this restriction does not preven t Magnetar from selling some of its holdings and then receiving additional shares. In this way, Magnetar could sell more than these limits while never holding more than those limits. In addition, disclose that Magnetar is currently offering all 9,019,573 shares that it beneficially owns and could obtain upon exercise of warrants th rough the offer of 5,499,645 shares on this registration statement and the concur rent offer of 3,519,928 shares on a prior registration statement on Form S-3 (file number 333-134823).
• Please explain why, in footnotes 18, 19 and 21, you refer to options awarded to Messrs. Brown, Geras and Mellon on dates in 2007 that have not occurred yet.
• In your response to prior comment 5, you state that Jody Brown is carrying forward 41,431 shares from registration statement number 333-121761 and Patrick Walsh is carrying forward 225,000 shares from regist ration statement number 333-121761. We are unable to locate Ms. Brown in the selling shareholder table of registration statement number 333-121761 at the time of effectivenes s. We also note that Mr. Walsh was disclosed as offering 200,000 shares in registration statement number 333-121761. Please explain these apparent discrepancies.
Please revise the table and footnote disclosu re to reconcile these and other similar discrepancies.
Along with your response, you may wish to cons ider providing a time line of holdings for each selling shareholder in order to clarify ma tters to us and reconcile the disclosure contained in your next amendment.
3. Please fix the formatting error for the footnotes currently contained on page 8, as the single column does not allow a reader to differentiate between individua l entries.
Scott P. Mitchell Think Partnership Inc. July 12, 2007 Page 4 Exhibits
4. We note that you furnished on EDGAR a blackli ned version of exhibit 10.1, “Conversion of Series A Convertible Preferred Stock.” Please explain why you provided a blacklined version and what the blacklined informati on represents (e.g., that the agreement was amended, etc.).
5. We reissue comment six from our letter of June 21, 2007. Please file or incorporate by reference as exhibits the material agreem ents between the company and the selling shareholders, any affiliates of the selling shareh olders, or any person with whom any selling shareholder has a contractual relationship rega rding the transactions behind the shares being registered. If you choose to file an agreem ent as an exhibit through incorporation by reference, the appropriate method to do so is to list the agreement in the exhibit index and disclose from what document you are incorpora ting the exhibit by reference. Additionally, we note that Exhibits A and B to the Letter Agre ements are not filed. Please file the entire agreement.
* * *
As appropriate, please amend your filing in resp onse 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 res ponses to our comments a nd provides any requested information. Detailed cover lette rs greatly facilitate our review . Please understand that we may have additional comments afte r reviewing your amendments a nd 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 al l 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 a ll facts relating to a company’s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made.
We will consider a written request for acceleration of the effective date of the registration statement as confirmation of the f act that those requesting accelera tion 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 offeri ng of the securities sp ecified in the above registration statement. We will act on the request and, pursuant to delegate d authority, grant acceleration of the effective date. We direct your attention to Rules 460 and 461 regarding requesting acceleration of a registration statement. Please a llow adequate time after the fili ng of any amendment for further
Scott P. Mitchell Think Partnership Inc. July 12, 2007 Page 5 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 John Zitko, Sta ff Attorney, at (202) 551-3399, or Kathleen Krebs, Special Counsel, at (202) 551-3350, with any questions.
S i n c e r e l y ,
L a r r y S p i r g e l A s s i s t a n t D i r e c t o r
cc: Vaughn Duff, Esq. Fax: (727) 324-0063
Show Raw Text
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
Mail Stop 3720
July 12, 2007
Scott P. Mitchell
President and Chief Executive Officer
Think Partnership Inc.
28050 US 19 North, Suite 509
Clearwater, Florida 33761
Re: Think Partnership Inc.
Registration Statement on Form S-3
Amendment 1 Filed June 27, 2007
File No. 333-143299
Dear Mr. Mitchell:
We have limited our review of your Form S-3 to consideration of your disclosure
concerning the shares being registered on this registration statement and have the following comments. Where indicated, we think you should revise your documents 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 necess ary in your explanation.
In some of our comments, we may ask you to pr ovide us with information so we may better
understand your disclosure. After reviewing this information, we may or may not raise additional comments. We welcome any questions you may have about our comments or any other aspect of
our review. Feel free to call us at the tele phone numbers listed at th e end of th is letter.
General
1. We note your response to comment one from our letter of July 21, 2007. While an integration analysis is not entirely relevant to a determination as to whether the offerings in
question should be considered primary or sec ondary, we have noted th e factual assertions
contained in your response. We direct your attention to the Di vision of Corporation
Finance’s Manual of Publicly Available Telepho ne Interpretations. In particular, please
refer to Section D Item 29, available at
http://www.sec.gov/interps/tele phone/cftelinterps_rule415.pdf , which discusses the
possibility that secondary offerings may be c onsidered primary offerings when taking into
account the totality of the circumstances. To fu rther assist us in our consideration of this
issue, please provide us with the following information regarding your transactions with,
Scott P. Mitchell
Think Partnership Inc.
July 12, 2007 Page 2
and securities holdings of, Magnetar Capital Ma ster Fund, Ltd. and entities affiliated with
Karl Brewer (separately for each of the eight entities listed on the Form S-3):
• The number of issued and outstanding shares each currently holds;
• The number of shares that may be issu ed pursuant to conve rtible securities;
• The number of shares that have been regi stered on other registration statements,
specifically identifying each tranche;
• The number of shares registered on prior regi stration statements that have been sold;
• The date on which and the manner in whic h each of these entit ies received the
shares and/or the underlying securities registered on such prior registration
statements. In your response, please address why the company agreed to register the
shares sold by the Roberti Jacobs Family Trust by the three purchasers, including
Magnetar, and to what extent the comp any was involved in Trust’s decision to
exercise the warrants and sell the underlying shares.
• A more detailed analys is of whether either Magnetar or Mr. Brewer is in the
business of buying and selling securities.
Selling Shareholders, page 4
2. The disclosure in this secti on continues to be confusing. Please continue to revise your
disclosure to address the following points:
• As requested previously, please disclose in the footnotes to the selling stockholders
table the number of shares included in each selling shareholder’s beneficial ownership amount that are outstanding and the amount that the selling shareholder has the right to
acquire (i.e., the number of shares issuable upon exercise of warrants and options, etc.)
• As requested previously, please avoid disclo sure in terms of sh ares that are being
“excluded.” In this regard, it is not necessary to disclose the number of shares that are
not being offered. Instead, simply provide di sclosure about the nature and number of
the shares that are being offered (e.g., the number of shares being offered that are
outstanding, issuable upon exercise of warrants, etc.).
• Please continue to review your footnote disclosure to ensure that the numbers are
consistent and/or add up. For example, you state that the shares beneficially held by
Calhoun & Co FFC City of Dearborn Poli cemen and Firemen Revised Retirement
Systems (“Calhoun Policemen and Firemen”) amount to 63,000 and that you are
Scott P. Mitchell
Think Partnership Inc.
July 12, 2007 Page 3
offering 9,922 under the instant Registrati on Statement (333-143299), to leave 53,078
shares remaining after the pr esent offering. However, you di sclose in footnote 5 that
Calhoun Policemen and Firemen are offeri ng 63,000 shares pursuant to Registration
Statement 333-134823. As a result, we do not understand how Calhoun Policemen and
Firemen beneficially owns only 63,000 shares.
• Please clarify in footnotes 2 and 3 to the selling shareholder tabl e that you have not
included shares underlying particular warra nts in Magnetar Capital Master Fund’s
beneficial ownership amounts due to the beneficial ownership limitations contained in the warrant agreements (i.e., what you refer to as blocker provisions). Clarify that these
beneficial ownership limitations do not prevent Magnetar from ultimately exercising and selling the full amount issuable upon exerci se of the warrants. In this regard, state
that, even though Magnetar may not receive more than 4.90% or 4.99% of the then-
outstanding common stock, this restriction does not preven t Magnetar from selling some
of its holdings and then receiving additional shares. In this way, Magnetar could sell more than these limits while never holding more than those limits. In addition, disclose that Magnetar is currently offering all 9,019,573 shares that it beneficially owns and
could obtain upon exercise of warrants th rough the offer of 5,499,645 shares on this
registration statement and the concur rent offer of 3,519,928 shares on a prior
registration statement on Form S-3 (file number 333-134823).
• Please explain why, in footnotes 18, 19 and 21, you refer to options awarded to Messrs.
Brown, Geras and Mellon on dates in 2007 that have not occurred yet.
• In your response to prior comment 5, you state that Jody Brown is carrying forward
41,431 shares from registration statement number 333-121761 and Patrick Walsh is
carrying forward 225,000 shares from regist ration statement number 333-121761. We
are unable to locate Ms. Brown in the selling shareholder table of registration statement
number 333-121761 at the time of effectivenes s. We also note that Mr. Walsh was
disclosed as offering 200,000 shares in registration statement number 333-121761.
Please explain these apparent discrepancies.
Please revise the table and footnote disclosu re to reconcile these and other similar
discrepancies.
Along with your response, you may wish to cons ider providing a time line of holdings for
each selling shareholder in order to clarify ma tters to us and reconcile the disclosure
contained in your next amendment.
3. Please fix the formatting error for the footnotes currently contained on page 8, as the single
column does not allow a reader to differentiate between individua l entries.
Scott P. Mitchell
Think Partnership Inc.
July 12, 2007 Page 4
Exhibits
4. We note that you furnished on EDGAR a blackli ned version of exhibit 10.1, “Conversion of
Series A Convertible Preferred Stock.” Please explain why you provided a blacklined
version and what the blacklined informati on represents (e.g., that the agreement was
amended, etc.).
5. We reissue comment six from our letter of June 21, 2007. Please file or incorporate by
reference as exhibits the material agreem ents between the company and the selling
shareholders, any affiliates of the selling shareh olders, or any person with whom any selling
shareholder has a contractual relationship rega rding the transactions behind the shares being
registered. If you choose to file an agreem ent as an exhibit through incorporation by
reference, the appropriate method to do so is to list the agreement in the exhibit index and
disclose from what document you are incorpora ting the exhibit by reference. Additionally,
we note that Exhibits A and B to the Letter Agre ements are not filed. Please file the entire
agreement.
* * *
As appropriate, please amend your filing in resp onse 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 res ponses to our comments a nd provides any requested
information. Detailed cover lette rs greatly facilitate our review . Please understand that we may
have additional comments afte r reviewing your amendments a nd 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 al l 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 a ll facts relating to a
company’s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made.
We will consider a written request for acceleration of the effective date of the registration
statement as confirmation of the f act that those requesting accelera tion 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 offeri ng of the securities sp ecified in the above registration statement.
We will act on the request and, pursuant to delegate d authority, grant acceleration of the effective
date.
We direct your attention to Rules 460 and 461 regarding requesting acceleration of a
registration statement. Please a llow adequate time after the fili ng of any amendment for further
Scott P. Mitchell
Think Partnership Inc.
July 12, 2007 Page 5
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 John Zitko, Sta ff Attorney, at (202) 551-3399, or Kathleen Krebs, Special
Counsel, at (202) 551-3350, with any questions.
S i n c e r e l y ,
L a r r y S p i r g e l
A s s i s t a n t D i r e c t o r
cc: Vaughn Duff, Esq.
Fax: (727) 324-0063