SEC Company Response from DIVERSINET CORP (CIK 0000918387) — Nov 3, 2005
DIVERSINET CORP (CIK 0000918387)
Date: Nov. 3, 2005 · CIK: 0000918387 · Accession: 0000918387-05-000046
AI Filing Summary & Sentiment
File numbers found in text: 333-128975
Referenced dates: November 1, 2005
Letter
United States Securities and Exchange Commission Division of Corporation Finance Washington, D.C. 20549 ATTN: Barbara C. Jacobs Assistant Director
Dear Ms. Jacobs:
Re:
Diversinet Corp.
Registration Statement on Form F-1 filed on October 13, 2005 Registration no. 333-128975
This letter is in response to comments of the staff (“Staff”) of the Division of Corporation Finance of the Securities and Exchange Commission on the filings made by Diversinet Corp. contained in your letter dated November 1, 2005 (“Comment Letter”). The headings and numbers below refer to similar headings and numbers contained in the Comment Letter. Capitalized terms used herein not otherwise defined in this letter shall have the meaning given to them in the Form F-1 (the “F-1”).
Attached to this letter is a black-lined version of the amended 20-F and F-1, indicating the amendments made to the F-1.
Selling Shareholders, page 15
Q1
Please disclose whether any of the selling shareholders are registered broker-dealers or affiliates of a registered broker-dealer. If any selling shareholders are a registered broker-dealer, please disclose how the broker-dealer obtained the securities (e.g. compensation for investment banking services). If any are affiliated with a registered broker-dealer, state whether the selling shareholder acquired the securities to be resold in the ordinary course of business and whether they had any agreements, understandings or arrangements, either directly or indirectly, with any person to distribute the securities at the time of purchase. Please ensure that you file or incorporate by reference all executed copies of agreements relating to the purchase of these securities. You appear to have filed “form of” agreements relating to prior transactions. See, for example, Exhibit 4.5.
A1
Michael Bucheit of W.R. Hambrecht + Co., LLC and David Beck of RBC Dominion Securities are affiliates of a broker-dealer. W.R. Hambrecht + Co. acquired their warrants as compensation for services relating to the September 2005 financing. RBC Dominion Securities acquired their shares in the ordinary course of business and that they have no agreements, plans or understanding, directly or indirectly, with any person to distribute the securities.
Other than disclosed above, to the knowledge of the Company, none of the Selling Stockholders is an affiliate of a broker-dealer or is a broker-dealer thereof.
We have included the following paragraph to page 15 in the section “Selling Shareholders” of the F-1:
“The selling shareholders may be deemed to be “underwriters” within the meaning of the Securities Act and any profits realized by them may be deemed to be underwriting commissions. Any broker-dealers that participate in the distribution of ordinary shares also may be deemed to be “underwriters”, as defined in the Securities Act, and any commissions or discounts paid to them, or any profits realized by them upon the resale of any securities purchased by them as principals, may be deemed to be underwriting commissions or discounts under the Securities Act. The sale of the ordinary shares is subject to the prospectus delivery requirements of the Securities Act. Shares issued in connection with the September 26, 2005 private placement to shareholders in Canada will be subject to resale restrictions in Canada until January 27, 2006, notwithstanding the effectiveness of this registration statement.”
We have updated Exhibit 4.5 and 4.6 and filed the executed copy of the subscription agreement and the form of warrant certificate relating to the purchase of these securities.
Signatures
Q2
Please identify the person signing in the capacity of the Controller or the Principal Accounting Officer. Please see Instruction 1 to “Signatures” to Form F-1.
A2
We have updated the amended Form F-1 to include the Principal Accounting Officer.
Legality Opinion
Q3
Please file an updated and executed legality opinion.
A3
We have filed an updated and executed legality opinion.
I trust that with this response, your comments have been satisfied. As indicated above, the amended F-1 to include the above information will be filed on Egdar. In the meantime, if you have any further questions or require any further information, please do not hesitate to contact the undersigned.
Yours very truly,
/s/ David Hackett
David Hackett
Chief Financial Officer
c.c. Hugh Fuller, SEC
Alex Gordon, Esq., Heller, Ehrman et al.
#
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CORRESP 1 filename1.htm Converted by FileMerlin Diversinet Corp. 2225 Sheppard Avenue East, Suite 1801 Toronto, ON Canada M2J 5C2 Tel. 416-756-2324 Fax 416-756-7346 www.diversinet.com November 3, 2005 United States Securities and Exchange Commission Division of Corporation Finance 450 Fifth Street, N.W., Mail Stop 4561 Washington, D.C. 20549 ATTN: Barbara C. Jacobs Assistant Director Dear Ms. Jacobs: Re: Diversinet Corp. Registration Statement on Form F-1 filed on October 13, 2005 Registration no. 333-128975 This letter is in response to comments of the staff (“Staff”) of the Division of Corporation Finance of the Securities and Exchange Commission on the filings made by Diversinet Corp. contained in your letter dated November 1, 2005 (“Comment Letter”). The headings and numbers below refer to similar headings and numbers contained in the Comment Letter. Capitalized terms used herein not otherwise defined in this letter shall have the meaning given to them in the Form F-1 (the “F-1”). Attached to this letter is a black-lined version of the amended 20-F and F-1, indicating the amendments made to the F-1. Selling Shareholders, page 15 Q1 Please disclose whether any of the selling shareholders are registered broker-dealers or affiliates of a registered broker-dealer. If any selling shareholders are a registered broker-dealer, please disclose how the broker-dealer obtained the securities (e.g. compensation for investment banking services). If any are affiliated with a registered broker-dealer, state whether the selling shareholder acquired the securities to be resold in the ordinary course of business and whether they had any agreements, understandings or arrangements, either directly or indirectly, with any person to distribute the securities at the time of purchase. Please ensure that you file or incorporate by reference all executed copies of agreements relating to the purchase of these securities. You appear to have filed “form of” agreements relating to prior transactions. See, for example, Exhibit 4.5. A1 Michael Bucheit of W.R. Hambrecht + Co., LLC and David Beck of RBC Dominion Securities are affiliates of a broker-dealer. W.R. Hambrecht + Co. acquired their warrants as compensation for services relating to the September 2005 financing. RBC Dominion Securities acquired their shares in the ordinary course of business and that they have no agreements, plans or understanding, directly or indirectly, with any person to distribute the securities. Other than disclosed above, to the knowledge of the Company, none of the Selling Stockholders is an affiliate of a broker-dealer or is a broker-dealer thereof. We have included the following paragraph to page 15 in the section “Selling Shareholders” of the F-1: “The selling shareholders may be deemed to be “underwriters” within the meaning of the Securities Act and any profits realized by them may be deemed to be underwriting commissions. Any broker-dealers that participate in the distribution of ordinary shares also may be deemed to be “underwriters”, as defined in the Securities Act, and any commissions or discounts paid to them, or any profits realized by them upon the resale of any securities purchased by them as principals, may be deemed to be underwriting commissions or discounts under the Securities Act. The sale of the ordinary shares is subject to the prospectus delivery requirements of the Securities Act. Shares issued in connection with the September 26, 2005 private placement to shareholders in Canada will be subject to resale restrictions in Canada until January 27, 2006, notwithstanding the effectiveness of this registration statement.” We have updated Exhibit 4.5 and 4.6 and filed the executed copy of the subscription agreement and the form of warrant certificate relating to the purchase of these securities. Signatures Q2 Please identify the person signing in the capacity of the Controller or the Principal Accounting Officer. Please see Instruction 1 to “Signatures” to Form F-1. A2 We have updated the amended Form F-1 to include the Principal Accounting Officer. Legality Opinion Q3 Please file an updated and executed legality opinion. A3 We have filed an updated and executed legality opinion. I trust that with this response, your comments have been satisfied. As indicated above, the amended F-1 to include the above information will be filed on Egdar. In the meantime, if you have any further questions or require any further information, please do not hesitate to contact the undersigned. Yours very truly, /s/ David Hackett David Hackett Chief Financial Officer c.c. Hugh Fuller, SEC Alex Gordon, Esq., Heller, Ehrman et al. #