SEC Comment Letter for Electromed, Inc. (ELMD) (CIK 0001488917) (ELMD) — Oct 23, 2012
Electromed, Inc. (ELMD) (CIK 0001488917)
Date: Oct. 23, 2012 · CIK: 0001488917 · Accession: 0000000000-12-058248
AI Filing Summary & Sentiment
Reasoning
Letter
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 DIVISION OF CORPORATION FI NANCE October 22, 2012 Via Email James J. Cassidy , Ph.D. Interim Chief Executive Officer Electromed, Inc. 500 Sixth Avenue NW New Prague MN 56071
Re: Electromed, Inc. Preliminary Proxy Statement on Schedule 14A Filed October 12, 2012 File No. 01-34839
Dear Dr. Cassidy :
We have reviewed the above referenced filing and have the following comments. In some of our comments, we may ask you to provide us with information so we may better understand your disclosure.
Please respond to this letter by a mending your filing, by providing the requested information, or by advising us of when you will provide the requested response. If you do not believe our comments apply to your facts and circumstances or do not believe an amendment is appropriate, please tell us why in your response.
After reviewing any amendment to your filing and the information you provide in response to these comments, we may have additional comments.
Proxy Statement
1. Please revise to indicate that the proxy statement and form of pr oxy card are preliminary copies. See Rule 14a -6(e)(1).
2. Please include information as of the most reasonable practicable date. For example, please provide updated information as of the most reasonable practicable date regarding the possible solicitation in opposition as well as information that is required by Item 4(b)(4) and Item 5 of Schedule 14A.
3. If the meeting is contested, please supplement your disclosure to include a brief background discussion of all material contacts the company has had with the
Dr. James Cassidy Electromed, Inc. October 22, 2012 Page 2
shareholder(s) contesting the meeting in the period leading up to the solicitation .
4. Please clarify all the means you intend to use in the solicitation of proxies. For example, revise to specify whether you intend to use other electronic means such a s email or Internet to solicit proxies. Additionally, please note that all written soliciting materials, including any e -mails or scripts to be used in soliciting proxies must be filed under the cover of Schedule 14A on the date of first use. Refer to Ru le 14a -6(b) and (c). Please confirm your understanding.
5. Further to our comment above. Please inform us of whether you also plan to solicit proxies via internet chat rooms and tell us which websites you plan to utilize. Please advise us of your plans, if any, to comply with Rules 14a -6 and 14a-9 for any such online communications.
Questions and Answers, page 3
What is the effect of broker non -votes…, page 5
6. We note that the company has received notice that the meeting may be contested. It is our un derstanding that in a contested election, a broker does not have discretionary authority to vote on any proposals to be voted on at the meeting, whether routine or n ot. If the shareholder files materials to contest the meeting, p lease revise your disclosu re accordingly.
Election of Directors, page 9
7. You disclose that the company has “no reason to believe the named nominees will be unable o r unwilling to serve if elected…” Please clarify whether each of the current nominees consented to be named in the proxy statement and to serve, if elected. See Rule 14a-4(d).
8. Your disclosure suggests that the participants are reserving the right to vote for unidentified substitute nominees. Please confirm for us that should the participants lawfully identify or nom inate substitute nominees before the meeting, the participants will file an amended proxy statement that (1) identifies the substitute nominees, (2) discloses whether such nominees have consented to being named in the revised proxy statement and to serve i f elected and (3) includes the disclosure required by Items 5(b) and 7 of Schedule 14A with respect to such nominees.
9. Please c larify the eff ect of a failure to pass proposal 1 by the requisite majority. Specifically , please clarify whether your proposa l 2 is contingent on majority approval of your proposal 1.
10. If the meeting is contested and the majority of shares do not approve your proposal 1, advise us of whether the proxy holders still intend to vote with respect to proposal two for
Dr. James Cassidy Electromed, Inc. October 22, 2012 Page 3
their six named nominees. We may have further comment.
11. Please revise the biographical information of the nominees so that it complies with Item 401 of Regulation S -K. Refer to Item 7(b) of Schedule 14A. For example, revise the biographies to ensure that you clarify each individual’s business experience for the past five years and disclose the dates of experience by month and year.
Other Information, page 27
12. You disclose tha t the proxy holders w ould exercise their discretionary authority to vote against a proposal seeking to increase the board’s size. Please supplementally advise us of the basis for the proxy holders’ discretionary authority to vote against any such proposal. Your response should reference your consideration of Rule 14a -4 (c)(2) . We may have furt her comment.
We urge all persons who are responsible for the accuracy and adequacy of the disc losure in the filing to be certain that the filing include s the information the Securities Exchange Act of 1934 and all applicab le Exchange Act rules require. Since the participants are in possession of all facts relating to their disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made.
In responding to our comments, please provide a written statement from each partic ipant acknowledging that :
the participant is responsible for the adequacy and accuracy of the disclosure in the filing ;
staff comments or changes to disclosure in response to staff comments do not foreclose the Commission from taking any action with resp ect to the filing; and
the participant may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States.
Dr. James Cassidy Electromed, Inc. October 22, 2012 Page 4
Please direct any q uestions to me at (202) 551 -3757. You may also contact me via facsimile at (202) 772 -9203. Please send all correspondence to us at the following ZIP code: 20549 -3628.
Sincerely,
/s/ Mellissa Campbell Duru
Show Raw Text
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FI NANCE
October 22, 2012
Via Email
James J. Cassidy , Ph.D.
Interim Chief Executive Officer
Electromed, Inc.
500 Sixth Avenue NW
New Prague MN 56071
Re: Electromed, Inc.
Preliminary Proxy Statement on Schedule 14A
Filed October 12, 2012
File No. 01-34839
Dear Dr. Cassidy :
We have reviewed the above referenced filing and have the following comments. In
some of our comments, we may ask you to provide us with information so we may better
understand your disclosure.
Please respond to this letter by a mending your filing, by providing the requested
information, or by advising us of when you will provide the requested response. If you do not
believe our comments apply to your facts and circumstances or do not believe an amendment is
appropriate, please tell us why in your response.
After reviewing any amendment to your filing and the information you provide in
response to these comments, we may have additional comments.
Proxy Statement
1. Please revise to indicate that the proxy statement and form of pr oxy card are preliminary
copies. See Rule 14a -6(e)(1).
2. Please include information as of the most reasonable practicable date. For example,
please provide updated information as of the most reasonable practicable date regarding
the possible solicitation in opposition as well as information that is required by Item
4(b)(4) and Item 5 of Schedule 14A.
3. If the meeting is contested, please supplement your disclosure to include a brief
background discussion of all material contacts the company has had with the
Dr. James Cassidy
Electromed, Inc.
October 22, 2012
Page 2
shareholder(s) contesting the meeting in the period leading up to the solicitation .
4. Please clarify all the means you intend to use in the solicitation of proxies. For example,
revise to specify whether you intend to use other electronic means such a s email or
Internet to solicit proxies. Additionally, please note that all written soliciting materials,
including any e -mails or scripts to be used in soliciting proxies must be filed under the
cover of Schedule 14A on the date of first use. Refer to Ru le 14a -6(b) and (c). Please
confirm your understanding.
5. Further to our comment above. Please inform us of whether you also plan to solicit
proxies via internet chat rooms and tell us which websites you plan to utilize. Please
advise us of your plans, if any, to comply with Rules 14a -6 and 14a-9 for any such online
communications.
Questions and Answers, page 3
What is the effect of broker non -votes…, page 5
6. We note that the company has received notice that the meeting may be contested. It is
our un derstanding that in a contested election, a broker does not have discretionary
authority to vote on any proposals to be voted on at the meeting, whether routine or n ot.
If the shareholder files materials to contest the meeting, p lease revise your disclosu re
accordingly.
Election of Directors, page 9
7. You disclose that the company has “no reason to believe the named nominees will be
unable o r unwilling to serve if elected…” Please clarify whether each of the current
nominees consented to be named in the proxy statement and to serve, if elected. See Rule
14a-4(d).
8. Your disclosure suggests that the participants are reserving the right to vote for
unidentified substitute nominees. Please confirm for us that should the participants
lawfully identify or nom inate substitute nominees before the meeting, the participants
will file an amended proxy statement that (1) identifies the substitute nominees, (2)
discloses whether such nominees have consented to being named in the revised proxy
statement and to serve i f elected and (3) includes the disclosure required by Items 5(b)
and 7 of Schedule 14A with respect to such nominees.
9. Please c larify the eff ect of a failure to pass proposal 1 by the requisite majority.
Specifically , please clarify whether your proposa l 2 is contingent on majority approval of
your proposal 1.
10. If the meeting is contested and the majority of shares do not approve your proposal 1,
advise us of whether the proxy holders still intend to vote with respect to proposal two for
Dr. James Cassidy
Electromed, Inc.
October 22, 2012
Page 3
their six named nominees. We may have further comment.
11. Please revise the biographical information of the nominees so that it complies with Item
401 of Regulation S -K. Refer to Item 7(b) of Schedule 14A. For example, revise the
biographies to ensure that you clarify each individual’s business experience for the past
five years and disclose the dates of experience by month and year.
Other Information, page 27
12. You disclose tha t the proxy holders w ould exercise their discretionary authority to vote
against a proposal seeking to increase the board’s size. Please supplementally advise us
of the basis for the proxy holders’ discretionary authority to vote against any such
proposal. Your response should reference your consideration of Rule 14a -4 (c)(2) . We
may have furt her comment.
We urge all persons who are responsible for the accuracy and adequacy of the disc losure
in the filing to be certain that the filing include s the information the Securities Exchange Act of
1934 and all applicab le Exchange Act rules require. Since the participants are in possession of
all facts relating to their disclosure, they are responsible for the accuracy and adequacy of the
disclosures they have made.
In responding to our comments, please provide a written statement from each partic ipant
acknowledging that :
the participant is responsible for the adequacy and accuracy of the disclosure in the filing ;
staff comments or changes to disclosure in response to staff comments do not foreclose
the Commission from taking any action with resp ect to the filing; and
the participant may not assert staff comments as a defense in any proceeding initiated by
the Commission or any person under the federal securities laws of the United States.
Dr. James Cassidy
Electromed, Inc.
October 22, 2012
Page 4
Please direct any q uestions to me at (202) 551 -3757. You may also contact me via
facsimile at (202) 772 -9203. Please send all correspondence to us at the following ZIP code:
20549 -3628.
Sincerely,
/s/ Mellissa Campbell Duru
Mellissa Campbell Duru
Special Counsel
Office of Mergers & Acquisitions
Cc (via email): Ryan Brauer , Esq.
Fredrikson & Byron, P.A.