Correspondence 0001213900-23-019635 from PodcastOne, Inc. (PODC)
PodcastOne, Inc.
Date: March 13, 2023 · CIK: 0001940177 · Accession: 0001213900-23-019635
AI Filing Summary & Sentiment
File numbers found in text: 333-269028
Referenced dates: January 31, 2023
Show Raw Text
CORRESP
1
filename1.htm
Attorneys at Law
1180 Avenue of the Americas | 8th Floor
New York, New York 10036
Dial: 212.335.0466
Fax: 917.688.4092
info@foleyshechter.com
www.foleyshechter.com
March 13, 2023
Via EDGAR
United States Securities and Exchange Commission
Division of Corporation Finance
Office of Technology
Mail Stop 3561
Washington, D.C. 20549
Attn:
Kyle
Wiley, Staff Attorney
Re:
Courtside Group, Inc.
Registration Statement
on Form S-1
Filed December 27, 2022
File No. 333-269028
Dear Mr. Wiley:
This firm is outside corporate
and securities counsel to Courtside Group, Inc. (the “Company”). We are submitting this letter on behalf of
the Company in response to comments from the staff (the “Staff”) of the U.S. Securities and Exchange Commission
(the “Commission”) issued to the Company in the Staff’s letter, dated January 31, 2023 (the “Letter”),
relating to the Company’s Registration Statement on Form S-1 (File No. 333-269028) filed with the Commission on December 27,
2022 (the “Registration Statement”).
The numbered paragraphs below
correspond to the numbered comments in the Letter and for convenience the Staff’s comments are included and presented in bold italics
directly above the Company’s response. In addition to addressing the comments raised by the Staff in the Letter, the Company has
revised the Registration Statement accordingly and concurrently herewith is filing Amendment No. 1 to the Registration Statement (“Amendment
No. 1”).
{continued on following
page}
Registration Statement on Form S-1
Cover Page
1.
We note that you
will be a majority owned subsidiary of LiveOne. As such, please prominently disclose that you will be a “controlled company”
under Nasdaq rules. Please include appropriate disclosure on the prospectus cover page and in the prospectus summary, provide risk
factor disclosure of this status, and disclose the corporate governance exemptions available to a controlled company and whether
you intend to utilize them.
The Company respectfully
acknowledges the Staff’s comment and has disclosed on the prospectus cover page of Amendment No. 1, as well as included appropriate
disclosure in the prospectus summary of and throughout Amendment No. 1, and provided risk factor disclosure of this status in the Risk
Factors section of Amendment No. 1 accordingly. The Company has also disclosed in Amendment No. 1 the corporate governance exemptions
available to a controlled company under the rules of The Nasdaq Capital Market, and that the Company does not currently intend to rely
on such corporate governance exemptions.
2.
Clarify why LiveOne
will be distributing only 6.2% of outstanding shares of common stock held by LiveOne on a pro rata basis to holders of record of
LiveOne’s common stock.
The Company respectfully
acknowledges the Staff’s comment and has revised the disclosure on the cover page and on page 16 of Amendment No. 1 accordingly.
The Company has further clarified that 8.7% of the outstanding shares of the Company’s common stock is being distributed on a pro
rata basis to holders of record of LiveOne’s common stock.
Questions and Answers about the Spin-Out,
page 15
3.
Please include a
question and answer addressing the rationale for the Bridge Notes financing and explaining the mechanics of the financing, including
the planned conversion of the Bridge Notes.
The Company respectfully
acknowledges the Staff’s comment and has revised the disclosure on page 19 of Amendment No. 1 accordingly.
Why is the separation of our Company structured
as a Spin-Out?, page 16
4.
We note your assertion
that LiveOne believes that the Distribution of a portion of your common stock and the Direct Listing is the best way to separate
your business from LiveOne. Please explain why the Distribution and Direct Listing is the best way to achieve the separation. Disclose
the potential detriments associated with this structure and whether any alternative structures were considered.
The Company respectfully
acknowledges the Staff’s comment and believes there are two main reasons as to why the Distribution and Direct Listing is the best
way to achieve the separation, of which LiveOne and the Company believe is in the best interests of LiveOne’s and the Company’s shareholders.
First, after the Direct Listing, LiveOne will continue to maintain a control interest and still benefit from synergies of an audio creator
first platform while the Distribution and Direct Listing will provide a vehicle for access by the Company to additional capital and shareholder
liquidity for what LiveOne and the Company believe to be an under-valued asset. Second, the Distribution and the Direct Listing provide
a mechanism to grant current shareholders of LiveOne a direct shareholder interest in the Company. Despite the positive attributes listed
above, potential detriments may include, but are not limited to the following: dilution of LiveOne’s ownership of the Company, dilution
of the Company’s ownership among its shareholders and potential tax obligation for the Company’s shareholders. While LiveOne and
the Company also considered an underwritten public offering and/or a sale of the Company, the Company and LiveOne currently believe that
the Direct Listing is in the best interests of LiveOne’s and the Company’s shareholders by providing the greatest value to them as a
result of the Direct Listing for the reasons stated above.
The Company has also revised
the disclosure on page 16 of Amendment No. 1 accordingly.
2
If I sell my shares of LiveOne common stock
on or before the Distribution Date..., page 18
5.
We note your disclosure
that if an investor holds shares of LiveOne common stock on the Record Date and decides to sell those shares on or before the Distribution
Date, such investor “may lose” their entitlement to receive a pro rate portion of your common stock in the Distribution.
Prominently disclose, if true, that if a holder of LiveOne common stock as of the Record Date sells their common stock before the
Distribution Date, such holder will not receive the special dividend, or explain the reason for the uncertainty.
The Company respectfully
acknowledges the Staff’s comment and has revised the disclosure on page 18 of Amendment No. 1 to clarify that if a holder of LiveOne
common stock as of the Record Date sells their common stock before the Distribution Date, such holder will not receive the special dividend.
What are the U.S. federal income tax consequences
to me of the Distribution?, page 18
6.
We
note your disclosure that no gain or loss should be recognized by, or be includible in the income of, U.S. Holders as a result of
the Distribution. Therefore, please provide a tax opinion covering the material federal tax consequences of the Distribution to the
holders of LiveOne’s common stock and revise your disclosure accordingly. Refer to Item 601(b)(8) of Regulation S-K and, for guidance,
Section III.A.2 of Staff Legal Bulletin No. 19.
The Company respectfully
acknowledges the Staff’s comment and has revised the disclosure on page 18 of and throughout Amendment No. 1 to clarify that the
Distribution will not be determined to qualify for non-recognition of gain and loss, and therefore, U.S. Holders will be subject to tax.
Accordingly, we note that Item 601(b)(8) of Regulation S-K and Section III.A.2 of Staff Legal Bulletin No. 19 do not require the Company
to provide a tax opinion under such circumstances.
How will our common stock trade?, page 19
7.
Your
disclosure here indicates that trading in your common stock may begin on a “when- issued” basis as early as two trading
days prior to the Distribution Date. However, the disclosure on the cover page suggests that the distribution will occur concurrently
with the direct listing. Please revise here and on the cover page to clearly explain the precise order and mechanics of the events
that will occur to effect the contemplated transactions.
The Company respectfully
acknowledges the Staff’s comment and has revised the disclosure on the cover page and throughout Amendment No. 1 to clarify that
trading in the Common Stock may begin on a “when-issued” basis as early as two trading days prior to the Record Date for
the Distribution and will continue up to and including the Distribution Date, as well as provided an explanation of the precise order
and mechanics of the events that will occur to effect the contemplated transactions. The Company has further revised Amendment No. 1
to state that at such time that Nasdaq approves the Company’s common stock to be listed on The Nasdaq Capital Market, the Company
will seek clarification from Nasdaq if trading in the Company’s common stock will begin on a “when-issued” basis, and
that the Company will announce if “when-issued” trading will begin and its “when-issued” trading symbol when
and if it becomes available.
Summary Consolidated Financial and Operating
Information Consolidated Statements of Operations Information, page 20
8.
Revise
to present pro forma net income (loss) per share information only for the year ended March 31, 2022 and for the six months ended
September 30, 2022. Refer to Article 11-02(c)(2) of Regulation S-X.
The Company respectfully
acknowledges the Staff’s comment and has revised the disclosure on page 21 of Amendment No. 1 accordingly to present pro forma
net income (loss) per share information only for the year ended March 31, 2022 and for the nine months ended December 31, 2022.
3
Consolidated Balance Sheet Information, page
22
9.
In
the pro forma balance sheet data you give effect to the Bridge Notes conversion into common stock. However, we note the Optional
Redemption feature described on page F- 38, where certain note holders may require the company to redeem a portion of such holder’s
notes. Revise to discuss the terms of this feature and quantify the potential impact this may have on the various pro forma financial
statement line items if the holders do redeem.
The Company respectfully
acknowledges the Staff’s comment and has revised the disclosure on page 22 of Amendment No. 1 accordingly.
10.
You
also give effect to the cancellation of the derivatives associated with the Bridge Notes. Please revise to describe the nature of
the “derivatives”, which appear to be both the warrant liability and the embedded derivative related to the redemption
option, and explain why they are “cancelled”. As it appears the related warrants will remain outstanding, clarify how
the warrants are reflected in the pro forma information.
The Company respectfully acknowledges the Staff’s comment and
has revised the disclosure on page 23 of Amendment No. 1 accordingly and to reflect the conversion of the redemption derivative liability
only while the warrant derivative liability will remain outstanding.
11.
Please
revise to clarify the adjustment to cancel the 127,984,230 shares of common stock and how the amount was derived.
The Company respectfully acknowledges the Staff’s comment and
has clarified accordingly in the notes to the Summary Unaudited Pro Forma Condensed Consolidated Financial and Operating Data on page
22 of Amendment No. 1, that the pro forma number of shares outstanding accounts for the cancellation of 127,984,230 shares of the Company’s
common stock, and that the amount was derived as follows. Prior to the cancellation of such shares, the Company had 147,984,230 shares
issued and outstanding reflecting the number of shares that LiveXLive PodcastOne, Inc., a wholly owned subsidiary of LiveOne, Inc., originally
acquired from the stockholders of the Company in July 2020. In order to streamline and fix its capital table, the Company’s board
of directors approved for 127,984,230 shares of the Company’s common stock to be cancelled such that the Company would have 20,000,000
shares of its common stock outstanding prior to giving effect to the Direct Listing and the various transactions contemplated in connection
therewith.
Non-GAAP Financial Measures, page 22
12.
You
disclose that contribution margin is reconciled to revenue, the most comparable GAAP financial measure. Please revise to indicate
that gross profit is the most comparable GAAP measure to contribution margin.
The Company respectfully
acknowledges the Staff’s comment and has revised the disclosure on page 24 of Amendment No. 1 accordingly.
Risk Factors, page 23
13.
We
note the Ninth Circuit Court of Appeals decision in Pirani v. Slack Technologies, Inc., No. 20-16419 (9th Cir. 2021) addressing whether
a plaintiff is required to trace their purchase of shares to the shares registered pursuant to the registration statement in a direct
listing. Please tell us what consideration you have given to including a risk factor discussing the differences a tracing requirement
could pose to securities liability challenges brought under Section 11 for a direct listing versus a traditional IPO and the impact
that it would have on the company and potential investors.
The Company respectfully
acknowledges the Staff’s comment and has revised the disclosure on page 61 of Amendment No. 1 to add a corresponding risk factor.
4
For the years ended March 31, 2022 and 2021,
our management concluded that our disclosure controls and procedures..., page 44
14.
We
note these disclosures appear to be consistent with those in the LiveOne, Inc. Form 10-K filed June 29, 2022. We also note that you
refer to Item 9A; however, there is no such item in the Form S-1. Please clarify whether the material weaknesses disclosed are specific
to the company. In this regard, in one material weakness listed, reference is made to controls relating to revenue and inventory
of “[y]our recently acquired subsidiary”, but it does not appear that the company has a recently acquired subsidiary.
Revise to clarify whether and how the material weaknesses listed relate to the company and include any other material weaknesses
noted in the preparation of the company’s financial statements.
The Company respectfully
acknowledges the Staff’s comment and has revised the disclosure on page 46 of Amendment No. 1 accordingly, including to clarify
that the material weaknesses disclosed are specific to the Company.
15.
Please
revise to disclose the remediation plan with respect to the material weaknesses, how long you estimate it will take to complete your
plan and any associated material costs that you have incurred or expect to incur.
The Company respectfully
acknowledges the Staff’s comment and has revised the disclosure on page 47 of Amendment No. 1 accordingly.
Risks Related to the Spin-Out
The Distribution could result in significant
tax liability to LiveOne and its stockholders, page 57
16.
We
note the Distribution will not be determined to qualify for non-recognition of gain and loss, and therefore, U.S. Holders will be
subject to tax. We also note your disclosure on page 18 that no gain or loss should be recognized by U.S. Holders as a result of
the Distribution. Please revise to address this inconsistency.
The Company respectfully
acknowledges the Staff’s comment and has revised the disclosure on page 18 of Amendment No. 1 to clarify that the Distribution
will be determined not to qualify for non-recognition of gain and loss, and therefore, U.S. Holders will be subject to tax.
Risks Related to the Ownership of Our Common
Stock
Our listing differs significantly from an
underwritten initial public offering, page 59
17.
You
state here your intentions to host an investor day on September 14, 2021, and that you are engaging in certain other investor ed