SEC Comment Letter for MICROMED CARDIOVASCULAR INC (CIK 0001269515) — Mar 1, 2005
MICROMED CARDIOVASCULAR INC (CIK 0001269515)
Date: March 1, 2005 · CIK: 0001269515 · Accession: 0000000000-05-009770
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File numbers found in text: 333-111996
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Mail Stop 0308
March 1, 2005
Pete Smith
President and Director
Salmon Express, Inc.
6604 Topaz Drive
Vernon, BC, Canada V1H 1NS
Re: Salmon Express, Inc.
Preliminary Information Statement on Schedule 14C
Filed February 1, 2005
Form 10-KSB for the period ended November 30, 2004
Form 8-K filed September 22, 2004
File No. 333-111996
Dear Mr. Smith:
We have reviewed your filings 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 necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your
filings.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
General
1. We note that a condition of proposed merger is that MicroMed
simultaneously secures a private placement of at least $5 million.
Likewise, as conveyed in the letter to stockholders, you "will
issue
additional shares of [y]our common stock on a one-for-one basis in
exchange for any shares so issued by MicroMed prior to the closing
of
the Merger." Additionally, "if the Private Placement is not
completed prior to the closing of the Merger, it is anticipated
that
any securities issued further to this Private Placement would be
effected by Salmon."
We also note this publicly-available preliminary information
statement identifies Rodman & Renshaw LLC as the private placement
agent. We further note, however, that the preliminary information
statement does not contain any legend cautioning readers that the
securities offered will not be registered under the Securities Act
of
1933 and may not be offered or sold in the United States absent
registration or an application exemption from registration
requirements.
Given these factors, it does not appear that Rule 135c or even
Rules
134 or 135 under the Securities Act are available. Page 10 of the
preliminary information statement discloses that you and MicroMed
will rely on Rule 506 to conduct the private placement. In light
of
the notations listed above, the factual basis for Rule 506 -
particularly the absence of any general solicitation - is unclear.
Please provide us with a well-reasoned and suitably-detailed
analysis
of the Securities Act section or rule you and MicroMed intend to
rely
upon for the proposed private placement and related exchange, and
the
facts you will rely upon to make the exemption available.
Additionally, please tell us the current status of the private
placement.
2. Please be aware that it appears you no longer are required to
file
reports under Section 15(d) of the Exchange Act. As of December
1,
2004 - the first day of your current fiscal year - it appears you
had
less than 300 shareholders of record. Item 5 of your Annual
Report
on Form 10-K for the fiscal year ended November 30, 2004 discloses
that you had 45 registered shareholders. Also, you have not had
any
Securities Act registration statement declared effective or
updated
this current fiscal year. As a result, your reporting
requirements
under Section 15(d) automatically suspended at the beginning of
this
current fiscal year.
3. In this regard, please revise the document throughout to
disclose
that you are not required to file reports under the Exchange Act
of
1934 and that, as a result, you could cease filing information
publicly with the Securities and Exchange Commission at any time.
Proper disclosure should alert shareholders and prospective
investors
to that risk.
4. Also in this regard, it is unclear whether your shares are
eligible to be traded on the OTC Bulletin Board. Specifically,
Rule
6530 of the OTC Bulletin Board rules states that members only are
eligible to trade securities if "the issuer of the security is
required to file reports pursuant to Section 13 or 15(d) of the
[Exchange] Act[.]" Given the preceding comment and the fact that
you
have never registered a class of securities under Section 12,
which
would trigger Section 13 reporting, it appears that your common
shares do not satisfy the OTC Bulletin Board trading requirements.
Please tell us whether you have considered and discussed this
matter
with the OTC Bulletin Board or any market maker in your shares,
and
if not, why not. Please also provide appropriate disclosure about
the potential risks to shareholders of having your shares ceasing
trading on the OTC Bulleting Board.
5. Please disclose if you intend to report after the merger based
on
your previous fiscal year-end or are you adopting the fiscal year-
end
of MicroMed Technology, Inc.
Schedule 14C
Information Statement Regarding Action Taken by Written Consent
Stockholder Vote Required to Effectuate a Merger, page 5
6. Please clarify whether both Messrs. Smith and Weitzman are the
interested parties to the merger. In addition, revise to state
whether those directors also were the stockholders who provided
the
written consent to the merger.
Purpose of the Stock Split, page 5
7. Please disclose the reason for undertaking the reverse stock
split
prior to the merger.
Effect of the Stock Split, page 5
8. Please disclose the number of shares that are currently
authorized, the number of shares that will be issued and reserved
before the reverse stock split, and the number of shares that will
be
issued and reserved after the split.
The Companies, page 9
9. We note you refer to an "analysis of operations to date..." As
you have not had any operations since inception, please explain
the
"operations" to which you refer, and discuss the nature and timing
of
the analysis you have undertaken. Please revise similarly where
you
cite your "operations" in the subsection, Salmon`s Reasons for the
Merger, on page 12.
Pre-Existing Relationships, page 9
10. Please provide a discussion in reasonable detail on the
background of the merger. You must describe any negotiations,
transactions, or material contracts you may have had during the
past
two years with MicroMed. Please refer to Item 1005(b) of
Regulation
M-A.
Structure of the Merger, page 9
11. Please identify the third parties who are paying Mr. Pete
Smith
cash for the shares he owns. Also, disclose whether these parties
are affiliated with MicroMed, and what benefits, if any, those
third
parties are obtaining. In addition, please discuss the background
and reason of the payout. Finally disclose the material terms of
any
agreement between Mr. Smith and these parties and include the
agreement as an appendix.
12. We note that Salmon Express will distribute its assets and
related liabilities held prior to the merger to Mr. Smith. Please
state the dollar value of this distribution and explain whether it
is
aggregated with the cash consideration he is receiving in exchange
of
the stock he holds. Finally, compare the total dollar value of
the
consideration Mr. Smith is receiving with any consideration to be
received by the other current shareholders of Salmon Express.
13. We note on page 30 that the 2004 bridge loan facility reflects
a
$40 million pre-merger valuation of MicroMed. Assuming the pre-
merger valuation is correct, please state the equivalent dollar
value
per share that existing Salmon Express shareholders will hold in
MicroMed.
14. We note that you will issue an additional 1.5 million post-
split
shares into escrow to cover any indemnification obligations to
MicroMed and its shareholders. Please discuss the material terms
of
the escrow agreement, including the contemplated mechanism of the
holding and distribution of shares under the agreement.
Description of the MicroMed Technology, Inc. 1997 Stock Option
Plan,
page 10
15. Please discuss clearly whether the merger with Salmon Express
will trigger the "change of control" provision as defined in
MicroMed`s 1997 stock option plan, thereby accelerating the
vesting
of options under that plan.
Risk Factors
"There is no assurance of an established public trading
market...,"
page 21
16. This risk factor is unduly vague. Please revise to include
sufficient, specific information for readers to assess the risk,
including, what you or market makers must do to create a trading
market for your securities, and how long that process may take.
Directors and Senior Management, page 23
17. Please provide the information related to MicroMed`s executive
compensation as required by Item 402 of Regulation S-B.
Security Ownership of Certain Beneficial Owners and Management,
page
27
18. Please identify the person who exercises voting and investment
powers over the securities held of record by Mitsui & Co. Venture
Partners.
Market Opportunity, page 31
19. In order to present a balanced disclosure, please describe any
advantages that heart transplantation and other late-stage heart-
failure therapies have over ventricular assist devices,
particularly
your DeBakey VAD.
VAD Market Opportunity, page 32
20. Please consider providing the full form or explain the
significance of the acronyms you use, for example, DELTA DT, CMS,
CE,
and BSA.
Product, page 33
21. Please discuss in reasonable detail the risks of use of
DeBakey
VAD by patients, including, but not limited to, the adverse
effects
observed during the clinical trials to which you refer on page 15.
22. Please explain the following scientific terms clearly or
substitute them with everyday language for better understanding of
your readers:
* axial flow pump
* apical sewing ring
* outflow conduit graft
* inflow cannula
* hemolysis minimizing design
* pump-life limiting valves
* percutaneous cable
Business Direction, page 35
23. Please explain the time, expenses, and processes a Phase III
trial in the U.S. involves. Also, disclose in brief the material
results of Phase I and Phase II trials under the FDA that your
DeBakey VAD has undergone. Finally, discuss when you expect to
complete your clinical trials, and if successful, market your
product
in the U.S.
Results of European Clinical Trial, page 37
24. Please provide quantitative disclosure where you discuss the
following:
* the variance of clinical results from site to site;
* the incidence of failure of your device;
* and changes in end-organ function in patients enrolled in your
trials.
25. Please disclose briefly how the adverse effects experienced
during the clinical trials have affected your progress in those
clinical trials in Europe and the U.S., including any preventive
or
remedial measures you have been obliged to undertake as a result.
Suppliers, page 40
26. To the extent that you depend for acquisition of key materials
on
individual suppliers, identify them. Please refer to Item
101(a)(5)
of Regulation S-B.
Intellectual Property, page 41
27. For every patent you have obtained or in-licensed, please
provide
the duration, effects, and importance to your business.
Legal Proceedings, page 44
28. As required by Item 103 of Regulation S-B, please provide the
following information related to the case against Thoratec
Corporation:
* in which court the proceeding is pending,
* a brief description of facts underlying the proceedings, and
* the actual relief sought at law and in equity.
Financial and Other Information, page 46
29. It is not sufficient to attach your Form 10-KSB with the
Schedule
14C. You also must include in the Schedule 14C or incorporate by
reference the information set forth in Item 14 of Form S-4.
Please
refer to Item 14(c) and (e) of Schedule 14A.
Pro Forma Financial Information, page 48
30. Please revise to include the balance sheet of MicroMed
Technology, Inc. as of December 31, 2004, as if the acquisition
was
consummated on that date. Additionally, revise your Pro forma
Statement of Operations to include the twelve months ended
December
31, 2004 for MicroMed Technology. See Rule 310(d)(2)(ii) of
Regulation S-B.
31. Please tell us the nature of the differences in the amounts
used
for the November 30, 2004 pro forma balance sheet information and
your Form 10-KSB as of November 30, 2004. Please advise or
revise.
32. Please tell us why you have not recorded an adjustment to
remove
the remaining deficit accumulated during the development stage of
the
accounting acquiree and to record an offsetting adjustment to
additional paid in capital. Please advise or revise.
33. Please tell us why you have not recorded any amounts as common
stock, since we assume your stock will have a par value of $0.001
per
share after the transaction consistent with the provisions of your
certificate of incorporation in Exhibit E. Please advise or
revise.
34. Please disclose your historical loss per share and weighted
average shares information for the year ended December 31, 2004.
Please also disclose your assumptions for each Series of preferred
stock in a footnote, along with a reconciliation of the numerator
and
denominator between the historical and pro forma loss per share
amounts. The impact of each Series of preferred stock and debt
converted into common stock should be shown separately in this
reconciliation. Please also supplementally provide us with your
computations.
35. Please revise your pro forma statements of operations to
include
an adjustment to eliminate the historical interest expense
associated
with redeemable preferred stock converted to common stock as if
such
conversion occurred on the first day of each period for which a
statement of operations has been presented.
36. Please include a note, not an adjustment, to the pro forma
financial statements to explain the impact of known transactions
subsequent to the merger that may impact results of operations.
For
example, you disclose on page 54 that the company intends to issue
stock options under the 2005 Stock Incentive Plan for which you
anticipate recognizing quarterly charges to earnings of
approximately
$0.2 million beginning with the quarter ended March 31, 2005 and
ending March 31, 2010.
Management`s Discussion and Analysis of MicroMed`s Financial
Condition
Overview, page 52
37. We note that you discuss certain trends and uncertainties that
may affect your business or operations, factors such as the rise
in
research and development expenses, risks related to clinical
trials,
and the lengthy process of regulatory approval. Expand this
section
to discuss any other known material trends and uncertainties that
will have or are reasonably likely to have a material impact on
your
revenues or income or result in your liquidity decreasing or
increasing in any material way. For example, if relevant, you may
discuss the evolving trends in the technology of your field, the
competition you face from similar products and therapies, and so
on.
In doing so, provide additional information about the quality and
variability of your earnings and cash flows so that investors can
ascertain the likelihood of the extent past performance is
indicative
of future performance. In addition, discuss in reasonable detail:
* economic or industry-wide factors relevant to your company, and
* material opportunities, challenges and risks in short and long
term
and the actions you are taking to address them.
Please refer to SEC Release No. 33-8350.
Related Party Transactions, page 54
38. Please identify the stockholders from whom you have contracted
the December 2004 loan.
MicroMed`s Operations
Results of Operations, page 55
39. Your discussion of other income/expense does not appear to
address the