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FOIA Confidential Treatment Request November 11, 2008 |
Securities and Exchange Commission
100 F Street, N.E.
Washington D.C. 20549
Attn: Kevin Vaughn, Accounting Branch Chief, Division of Corporation Finance
Re: | PhotoMedex, Inc. |
Preliminary Proxy Statement on Schedule 14A - Filed October 2, 2008 | |
File No. 0-11635 | |
Request for Confidential Treatment Pursuant to Rule 83 |
Dear Mr. Vaughn:
This letter requests confidential treatment pursuant to Rule 83 promulgated under the Freedom of Information Act (“FOIA”) for the Confidential Table (as defined below) being submitted in connection with, but under separate cover from, PhotoMedex, Inc.’s letter to you dated November 7, 2008 (the “Response Letter”). The Response Letter responds to the requests you made with respect to our Preliminary Proxy Statement on Schedule 14A filed on October 2, 2008.
The Confidential Table includes information that is confidential within the applicable provisions of FOIA, particularly Section 552(b)(4) of FOIA and the Commission’s rules (17 CFR 200.80 and .83) implementing FOIA, which provide that the Commission will generally not publish or make available to any person matters that are trade secrets or privileged or confidential commercial or financial information.
The portion of our response for which we seek confidential treatment is the estimated 2008 financial results set forth in a table (the “Confidential Table”) presenting the Rule 3-05 of Regulation S-X significance tests with respect to the proposed acquisition of Photo Therapeutics Group Limited calculated using results for the fiscal year ended December 31, 2007 (as specified by the rule), as well as the significance tests calculated using estimated results for the fiscal year ended December 31, 2008. The Confidential Table is being submitted in connection with, but under separate cover from, the Response Letter and has been clearly marked with an identifying number and code in accordance with Rule 83(c)(2). That identifying number and code is CTR1OF1/RL11.11.2008.
Securities and Exchange Commission
November 11, 2008
Page 2
Please note that the EDGAR filing of the Confidential Table redacts the portion of the response for which we are seeking confidential treatment. The redaction has been marked with the same identifying number and code as that set forth above.
If substantiation of this request is required or if there are questions concerning this request, please contact me using the following contact information:
Davis Woodward
Corporate Counsel
PhotoMedex, Inc.
147 Keystone Drive
Montgomeryville, PA 18936
(215) 619-3600
In accordance with Rule 83(c)(3), we have sent a copy of this request for confidential treatment to the Commission’s Office of Freedom of Information and Privacy Act Operations in Alexandria, VA.
Sincerely,
/s/ Davis Woodward
Davis Woodward
Corporate Counsel
cc: | Office of Freedom of Information and Privacy Act Operations Brian C. Miner, Esq. Linda L. Griggs, Esq. |
PhotoMedex, Inc | ||||||||||
PhotoTherapeutics | ||||||||||
Significant Subsidiary Test Rule 3-05 | ||||||||||
Thursday, November 06, 2008 | ||||||||||
Actual | Actual | Forecast | ||||||||
FYE 2007 | YTD - 9mos | FYE 2008 e | ||||||||
Income Statement | ||||||||||
PHMD | ||||||||||
Revenue | $ | 38,713,617 | $ | 26,517,739 | CTR1OF1/RL11.11.2008 | |||||
Income (Loss) from Continuing Operations | ($6,354,246 | ) | ($5,806,940 | ) | CTR1OF1/RL11.11.2008 | |||||
PhotoTherapeutics (Note 1) | ||||||||||
Revenue | $ | 6,260,699 | $ | 6,855,884 | CTR1OF1/RL11.11.2008 | |||||
% of PHMD | 16.2 | % | 25.9 | % | 26.0 | % | ||||
Income (Loss) from Continuing Operations | ($2,358,994 | ) | $ | (472,589 | ) | CTR1OF1/RL11.11.2008 | ||||
% of PHMD | 37.1 | % | 8.1 | % | 3.2 | % | ||||
Balance Sheet | ||||||||||
PHMD | ||||||||||
Total Assets | $ | 56,686,703 | $ | 53,529,362 | CTR1OF1/RL11.11.2008 | |||||
PhotoTherapeutics (Note 1) | ||||||||||
Total Assets | $ | 4,391,006 | $ | 4,160,617 | CTR1OF1/RL11.11.2008 | |||||
% of PHMD | 7.7 | % | 7.8 | % | 7.3 | % | ||||
Investment (Purchase Price) | ||||||||||
PHMD | ||||||||||
Total Assets | $ | 56,686,703 | $ | 53,529,362 | CTR1OF1/RL11.11.2008 | |||||
PhotoTherapeutics Purchase Price (Note 2) | $ | 14,400,000 | $ | 14,400,000 | CTR1OF1/RL11.11.2008 | |||||
% of PHMD | 25.4 | % | 26.9 | % | 26.8 | % |
Note 1: PTL figures were converted from pounds to dollars under Rule 3-20. Avg exchange rate for 3Q08 equals $1.94894; avg exchange rate for 311 days, 1-1-08 through 11-6-08, equals $1.917550. Exchange rate at 9-30-08 equals $1.81750. |
Note 2: It is probable that closing will be in 2009. FAS 141R will require expensing of acquisition costs and recording of an estimate of any earn-out. It is remote that any earn-out greater than $1,400,000 will be paid. |
Note 3: Comparative pre-tax loss results from continuing operations, in functional currencies and local GAAP, for last 5 years were: |
Year | PHMD Loss | PTL Loss |
(USD$, US GAAP) | (GBP£, UK GAAP) | |
2007 | 2,358,994 | 1,266,324 |
2006 | 7,492,397 | 166,082 |
2005 | 3,936,044 | 510,027 |
2004 | 4,984,196 | 820,747 |
2003 | 7,442,849 | 127,446 |
Subtotal 2003-2006 | 1,624,302 | |
Sverage of subtotal | 406,076 |