SEC Company Response from AVITAR — Dec 5, 2005
AVITAR INC /DE/ (CIK 0000814008)
Date: Dec. 5, 2005 · CIK: 0000814008 · Accession: 0000943763-05-000087
AI Filing Summary & Sentiment
File numbers found in text: 333-128549
Referenced dates: November 29, 2005
Letter
Re: Avitar, Inc. Preliminary Proxy Materials Filed October 18, November 14 and November 22, 2005 File No. 1-15695 Letter dated November 29, 2005
Dolgenos Newman & Cronin LLP 1001 Avenue of the Americas, 12th Floor New York, NY 10018
December 5, 2005
BY EDGAR CORRESPONDENCE
Securities and Exchange Commission Division of Corporation Finance, Mail Stop 6010 Washington, D.C. 20549
Attention: Russell Mancuso Branch Chief
Gentlemen:
On behalf of our client, Avitar, Inc. ("Avitar" or the "Company"), we are responding to the comment contained in the letter dated November 29, 2005 (the "Comment Letter") and we are also providing marked copies of the revised Preliminary Proxy Statement with a view toward facilitating your review. .
Terms of September 2005 Private Placement
The Company applied to withdraw its Registration Statement on Form S-3 (File No. 333-128549) by filing the attached application pursuant to Rule 477. As indicated in the application, a new registration statement on Form SB-2, with 2005 audited financial statements, should be filed with respect to the offering after the shareholders approve the reverse stock split.
In addition, the Company amended its Preliminary Proxy Materials by inserting the following in Proposal No. 2, in the first paragraph under the heading "Terms of September 2005 Private Placement" immediately before "(the `Registration Statement')":
"On December 2, 2005, the Company applied with the SEC to withdraw this registration statement, but, if the reverse stock split is approved by the shareholders, the Company intends to file another registration statement with respect to the same shares promptly after our Annual Meeting."
We understand that as stated in the Comment Letter, "given that a PIPE transaction must close shortly after effectiveness of the resale registration statement, the clauses in your agreement conditioning the transaction on stockholder approval are inconsistent with a PIPE." Under the current circumstances, the shareholder approval condition will not apply at the time the new Registration Statement on Form SB-2 will be filed. However, we note that both the investors and the Company continue to believe that the investors are irrevocably bound pursuant to their Securities Purchase Agreement for the reasons set forth in our earlier response.
It is important for the shareholders to receive the Proxy Statement well in advance of the Annual Meeting, now scheduled for January 10, 2005. Accordingly, the Company respectfully requests review so that it may mail and file its Definitive Proxy Statement. Please call the undersigned at (212) 925-2800 if you have any questions.
Sincerely,
Eugene M. Cronin
cc: (via fax) Tom Jones, Examiner
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Dolgenos Newman & Cronin LLP
1001 Avenue of the Americas, 12th Floor
New York, NY 10018
December 5, 2005
BY EDGAR CORRESPONDENCE
Securities and Exchange Commission
Division of Corporation Finance, Mail Stop 6010
Washington, D.C. 20549
Attention: Russell Mancuso
Branch Chief
Re: Avitar, Inc.
Preliminary Proxy Materials
Filed October 18, November 14 and
November 22, 2005
File No. 1-15695
Letter dated November 29, 2005
Gentlemen:
On behalf of our client, Avitar, Inc. ("Avitar" or the "Company"), we are
responding to the comment contained in the letter dated November 29, 2005 (the
"Comment Letter") and we are also providing marked copies of the revised
Preliminary Proxy Statement with a view toward facilitating your review. .
Terms of September 2005 Private Placement
The Company applied to withdraw its Registration Statement on Form S-3 (File No.
333-128549) by filing the attached application pursuant to Rule 477. As
indicated in the application, a new registration statement on Form SB-2, with
2005 audited financial statements, should be filed with respect to the offering
after the shareholders approve the reverse stock split.
In addition, the Company amended its Preliminary Proxy Materials by inserting
the following in Proposal No. 2, in the first paragraph under the heading "Terms
of September 2005 Private Placement" immediately before "(the `Registration
Statement')":
"On December 2, 2005, the Company applied with the SEC to withdraw this
registration statement, but, if the reverse stock split is approved by the
shareholders, the Company intends to file another registration statement
with respect to the same shares promptly after our Annual Meeting."
We understand that as stated in the Comment Letter, "given that a PIPE
transaction must close shortly after effectiveness of the resale registration
statement, the clauses in your agreement conditioning the transaction on
stockholder approval are inconsistent with a PIPE." Under the current
circumstances, the shareholder approval condition will not apply at the time the
new Registration Statement on Form SB-2 will be filed. However, we note that
both the investors and the Company continue to believe that the investors are
irrevocably bound pursuant to their Securities Purchase Agreement for the
reasons set forth in our earlier response.
It is important for the shareholders to receive the Proxy Statement well in
advance of the Annual Meeting, now scheduled for January 10, 2005. Accordingly,
the Company respectfully requests review so that it may mail and file its
Definitive Proxy Statement. Please call the undersigned at (212) 925-2800 if you
have any questions.
Sincerely,
Eugene M. Cronin
cc: (via fax) Tom Jones, Examiner
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