CORRESP: A correspondence can be sent as a document with another submission type or can be sent as a separate submission.
Published on October 8, 2008
Direct
Phone: 617.951.8874
Direct
Fax: 617.951.8736
jack.concannon@bingham.com
Via
Federal Express
October
7, 2008
Office of
the Chief Counsel
Division
of Corporation Finance
100 F
Street, NE
Washington,
DC 20549
Attn: Ms.
Rose Zukin
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Re:
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Access
Pharmaceuticals, Inc. – File No.
333-149633
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Statement
of Reasons for Eligibility of Registration
Pursuant to Rule
415(a)(1)(i)
Dear Ms.
Zukin:
On behalf of our client, Access
Pharmaceuticals, Inc., a Delaware corporation (the "Company"), set forth
below is the Company's response to your request for additional information
regarding the Company’s request for registration pursuant to Rule
415. For ease of reference, the requests included in your letter
dated July 12, 2008 are printed below in bold print, followed by the Company's
responses.
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1.
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Please
refile your response letter to include all tables provided in the
hard-copy of your letter. Please include in your next amendment all
tabular and qualitative disclosure you include in your response
letter.
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As
requested the tables provided in hard copy were filed as correspondence on July
23, 2008.
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2.
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We
note that you have disclosure in your supplemental response regarding
Tables 1 through 5, and Exhibits A and B. However, these tables and
exhibits are not attached to your public filing. Please amend your filing
to include these tables and
exhibits.
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As
requested the tables and exhibits provided in hard copy were filed as
correspondence on July 23, 2008.
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3.
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We
note your response to Comment 2 and reissue the comment in part. Please
expand Table 2 to include in your tabular disclosure the dollar amount of
liquidated damages and dividends to be paid to selling shareholders that
you describe in your response to Comment 2. Please provide footnote
disclosure of the terms of each such payment. If you are unable to
quantify the dollar amounts of dividends to be paid to selling
shareholders, please describe the terms of the dividend near the tabular
disclosure.
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Please
see Table 2 included in the Company’s Form S-1/A under the heading “Selling
Stockholders.” This Table 2 has been amended to include a note
regarding how liquidated damages and dividends are calculated.
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4.
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We
note your response to Comment 3 and reissue the comment in part. Please
read the heading in the last column to read profit (loss) on
conversion.
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Please
see Table 1 included in the Company’s Form S-1/A under the heading “Selling
Stockholders.” This Table 1 has been amended to revise the last
column heading to read “Profit (loss) on Conversion”.
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5.
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We
note your response to Comment 5. It does not appear that all the requested
information has been presented. For
example:
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· the
resulting net proceeds to the issuer; and
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·
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the
total amount of all possible payments and total discount presented as a
percentage of the net proceeds to the
issuer.
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Additionally,
you have responded by directing us to your responses to comments 1 and 2 and
Table 1. Please include tabular disclosure presenting the information requested
in comment 5.
Please
see Table 1.A included in the Company’s Form S-1/A under the heading “Selling
Stockholders.”. This new Table 1.A includes, in tabular format, the
information requested in this Comment 5 in the Comment Letter dated March 19,
2008.
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6.
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We
note your response to Comment 6 and reissue the comment. It is not
sufficient to refer to previous registration statements to provide
information regarding all prior securities transactions between the issuer
and the selling shareholders, instead of providing the requested tabular
disclosure.
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Please
provide us, with a view toward disclosure in the prospectus, with tabular
disclosure of all prior securities transactions between the issuer (or any of
its predecessors) and the selling shareholders, any affiliates of the selling
shareholders, or any person with whom any selling shareholder has a contractual
relationship regarding the transaction (or any predecessors of those persons),
with the table including the following information disclosed separately for each
transaction:
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·
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the
number of shares of the class of securities subject to the transaction
that were outstanding prior to the
transaction;
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·
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the
number of shares of the class of securities subject to the transaction
that were outstanding prior to the transaction and held by persons other
than the selling shareholder, affiliates of the company, or affiliates of
the selling shareholder;
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·
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Revise
the 2nd
column heading titled “Date Acquired/Amount Due” to delete the reference
to “Amount Due” as this does not appear to be presented in the
column;
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·
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Revise
the 4th
column to include the number of shares issuable on the conversion of
convertible notes at the time of the
transaction;
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·
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the
percentage of total issued and outstanding securities that were issued or
issuable in the transaction (assuming full issuance), with the percentage
calculated by taking the number of shares issued and outstanding prior to
the applicable transaction and held by persons other than the selling
shareholders, affiliates of the company, or affiliates of the selling
shareholders, and dividing that number by the number of shares issued or
issuable in connection with the applicable
transaction;
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·
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Revise
the fifth column heading to clarify that this was the market price;
and
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·
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the
current market price per share of the class of securities subject to the
transaction (reverse split adjusted, if
necessary).
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Please
see Table 4 included in the Company’s Form S-1/A under the heading “Selling
Stockholders.”. This Table 4 has been amended to include the
information requested by this Comment 6 above.
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7.
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Please
refer to your response to Comment 7. Please disclose supplementally how
you propose to present your response in your amended registration
statement.
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In
response to this Comment 7, we note that the Company has disclosed the
information requested by Comment 7 in the SEC Comment Letter dated March 19,
2008, in its Form S-1/A under the Section heading “Selling
Stockholders.”
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8.
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Please
confirm that your amended registration statement will include the
information provided in response to Comments 8, 9, and
11.
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In
response to this Comment 8, we confirm that the Company’s Form S-1/A includes
the responses provided to Comments 8, 9, and 11 in the SEC Comment Letter dated
March 19, 2008.
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9.
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We
note your response to Comment 12. Given the size relative to the number of
shares outstanding held by non-affiliates, the nature of the offering and
the selling security holders, the transaction appears to be a primary
offering. Because you are not eligible to conduct a primary offering on
Form S-3 you are not eligible to conduct a primary at-the-market offering
under Rule 415(a)(4).
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·
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Please
file a registration statement for the “resale” offering at the time of
each conversion because you are not eligible to conduct the offering on a
delayed or continuous basis under Rule
415(a)(1)(x);
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·
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Please
identify the selling shareholders as underwriters in the registration
statement; and
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·
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Please
include the price at which the underwriters will sell the
securities.
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Alternatively,
reduce the size of your offering.
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In
response to this Comment 9, we respectfully refer you to our response letter
dated and filed as correspondence on August 12, 2008.
In
addition, we note that pursuant to our telephone conversation on September 5,
2008, with Ms. Hayes of the Securities and Exchange Commission, the Company has
reduced the number of shares it seeks to register from 18,170,747 to
9,160,228. In accordance with your oral instructions, the Company has
limited the amount of shares it seeks to register to the number of shares of
common stock underlying the convertible notes previously issued to the selling
stockholders and exchanged for shares of Series A Preferred Stock (7,577,868)
plus the number of shares equal to one-third of the public float. As
of September 1, 2008 the public float of the Company was 4,532,271.1 The Company seeks to
register additional 1,582,360 shares which represents shares that may be issued
as paid in kind dividends over the next two years (assuming a fixed market price
of $2.00 per share) and is approximately one-third of the public
float.
1 The
public float is calculated as the number of common shares outstanding
(5,808,781) less director and officer shares (45,092) less 5% holders
(1,231,418).
A/72639900.1
If you
have any questions regarding this matter or require any additional information,
please contact me at (617) 951-8874. If the Staff disagrees with any
of the conclusions set forth above, please contact the undersigned prior to the
issuance of a written response.
Very truly yours,
/s/ John J. Concannon
John J. Concannon III,
Esq.
Bingham McCutchen, LLP
cc: Mr.
Jeffrey B. Davis
Mr. Stephen B. Thompson