SEC Comment Letter for BIO KEY INTERNATIONAL INC (BKYI) (CIK 0001019034) (BKYI) — Nov 3, 2006
BIO KEY INTERNATIONAL INC (BKYI) (CIK 0001019034)
Date: Nov. 3, 2006 · CIK: 0001019034 · Accession: 0000000000-06-053736
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 333-115037, 333-120104, 333-137240
Referenced dates: August 25, 2006
Letter
Mail Stop 4561 October 26, 2006 Michael W. DePasquale Chief Executive Officer BIO-key International, Inc. 3349 Highway 138, Building D, Suite B Wall, NJ 07719 Post-Effective Amendment No. 5 to Regi stration Statement on Form SB-2 Filed September 28, 2006 File No. 333-115037
Re: BIO-key International, Inc. Post-Effective Amendment No. 3 to Registration Statement on Form SB-2 Filed September 28, 2006 File No. 333-120104
Dear Mr. DePasquale:
We have reviewed your res ponses and have the following comments.
Post-Effective Amendment No. 3 to Registration Statement on Form SB-2
General
1. Please refer to prior comment 3 in our letter dated August 25, 2006. We note your response that you are relying on Rule 416 to add the shares in question to this post- effective amendment. Please provide us w ith your analysis as to the basis for your reliance on Rule 416 to add additional sh ares “solely to reflect corresponding adjustments to the conversion prices of th e [notes] that occurred subsequent to the original filing” of the registration statement. It does not appear that share issuances tied to conversion price adjustments fall w ithin the standard anti-dilution provisions contemplated by the rule. Refer to interpretation 3S to the Securities Act Rules portion of the March 1999 supplement to the Corporation Finance Manual of Publicly Available Telephone Interpretations regarding th e scope of Rule 416. In this regard, it appears as though the additiona l shares would need to be registered on a new registration statement.
2. Please recall that the outst anding comments relating to you r periodic reports issued in connection with our separate review of the Form SB-2, File No. 333-137240, must be resolved prior to seeking effectiveness.
Michael W. DePasquale BIO-key International, Inc. October 26, 2006 Page 2
Risk Factors
We have identified material weaknesses in our internal control, page 4 3. You state that the risk of failing to address the material weaknesses in your internal control over financial reports or failing to maintain an effective system of disclosure controls and procedures is that “curren t and potential stockholders could lose confidence in [y]our financial reporting….” Additionally, it appears that a more immediate risk is that your financial statements may not accurately reflect the financial condition of the company and that current and potentia l investors may not be able to rely upon the financial statements. Please revise the risk factor subheading and text accordingly. 4. We are unable to locate the undertaki ngs. Please advise or revise.
Post-Effective Amendment No. 5 to Registration Statement on Form SB-2 General 5. Please review the registration statement to ensure conformity with comments 2 and 3 above. Undertakings 6. Please update the disclosure to include the currently required undertaking outlined in paragraph 512(g)(1) or (2), as applicable . Please ensure that you provide similar disclosure with respect to the above-cited registration statement.
Please direct all questions to Maryse Mills-Apenteng at 202-551-3457, Jeffrey Werbitt at 202-551-3456 or the undersigned at 202-551-3462. If you still require further assistance, please contact Barbara C. Jac obs, Assistant Director, at 202-551-3730.
S i n c e r e l y ,
Mark P. Shuman Branch Chief – Legal
cc: Via facsimile: 617-248-4000 Charles J. Johnson, Esq. Choate, Hall & Stewart LLP
Show Raw Text
Mail Stop 4561
October 26, 2006
Michael W. DePasquale
Chief Executive Officer
BIO-key International, Inc.
3349 Highway 138, Building D, Suite B
Wall, NJ 07719
Re: BIO-key International, Inc.
Post-Effective Amendment No. 3 to Registration Statement on Form SB-2
Filed September 28, 2006
File No. 333-120104
Post-Effective Amendment No. 5 to Regi stration Statement on Form SB-2
Filed September 28, 2006
File No. 333-115037
Dear Mr. DePasquale:
We have reviewed your res ponses and have the following comments.
Post-Effective Amendment No. 3 to Registration Statement on Form SB-2
General
1. Please refer to prior comment 3 in our letter dated August 25, 2006. We note your
response that you are relying on Rule 416 to add the shares in question to this post-
effective amendment. Please provide us w ith your analysis as to the basis for your
reliance on Rule 416 to add additional sh ares “solely to reflect corresponding
adjustments to the conversion prices of th e [notes] that occurred subsequent to the
original filing” of the registration statement. It does not appear that share issuances
tied to conversion price adjustments fall w ithin the standard anti-dilution provisions
contemplated by the rule. Refer to interpretation 3S to the Securities Act Rules
portion of the March 1999 supplement to the Corporation Finance Manual of
Publicly Available Telephone Interpretations regarding th e scope of Rule 416. In
this regard, it appears as though the additiona l shares would need to be registered on
a new registration statement.
2. Please recall that the outst anding comments relating to you r periodic reports issued
in connection with our separate review of the Form SB-2, File No. 333-137240, must be resolved prior to seeking effectiveness.
Michael W. DePasquale
BIO-key International, Inc.
October 26, 2006
Page 2
Risk Factors
We have identified material weaknesses in our internal control, page 4
3. You state that the risk of failing to address the material weaknesses in your internal
control over financial reports or failing to maintain an effective system of disclosure
controls and procedures is that “curren t and potential stockholders could lose
confidence in [y]our financial reporting….” Additionally, it appears that a more
immediate risk is that your financial statements may not accurately reflect the
financial condition of the company and that current and potentia l investors may not
be able to rely upon the financial statements. Please revise the risk factor
subheading and text accordingly.
4. We are unable to locate the undertaki ngs. Please advise or revise.
Post-Effective Amendment No. 5 to Registration Statement on Form SB-2
General
5. Please review the registration statement to ensure conformity with comments 2 and
3 above.
Undertakings
6. Please update the disclosure to include the currently required undertaking outlined in paragraph 512(g)(1) or (2), as applicable . Please ensure that you provide similar
disclosure with respect to the above-cited registration statement.
Please direct all questions to Maryse Mills-Apenteng at 202-551-3457, Jeffrey
Werbitt at 202-551-3456 or the undersigned at 202-551-3462. If you still require further
assistance, please contact Barbara C. Jac obs, Assistant Director, at 202-551-3730.
S i n c e r e l y ,
Mark P. Shuman
Branch Chief – Legal
cc: Via facsimile: 617-248-4000
Charles J. Johnson, Esq. Choate, Hall & Stewart LLP