Mail Stop 03-06
April 5, 2005
Tamer Husseini
Chief Executive Officer
Celeritek, Inc.
3236 Scott Boulevard
Santa Clara, California 95054
Re: Celeritek, Inc.
Schedule 14A - Preliminary Proxy Statement
Filed March 21, 2005
File No. 000-23576
Dear Mr. Husseini:
We have monitored selected issues in your filing and have
the
following comments. Where indicated, we think you should revise
your
document 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 filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
General
1. Please clarify whether any of your proposals are conditioned
upon
the approval of any of your other proposals.
2. Please file a form of your intended proxy card with your next
amendment to your proxy statement.
3. Where you mention your estimated range of the potential
distribution throughout your document, please make clear, in the
same
context and with equal prominence, that the distribution could be
as
little as nothing.
Questions and Answers about the Special Meeting - Page 1
Q: What vote is required to approve each of the proposals... -
Page
2
4. Please disclose the percentage of your outstanding shares of
common stock, as of the record date for the special meeting,
represented by the shares subject to the voting agreement.
Proposal One
5. Although we do not intend to conduct a full review of the
financial statements in your filings at this time, it is unclear
why
you have not provided the financial information required by
Schedule
14A Item 14. Please revise as appropriate.
6. Provide the information required by Schedule 14A Item 14(c)(1)
or
demonstrate that financing is assured.
Summary Term Sheet - Page 5
Description of the Proposed Asset Sale - Page 5
7. We note that the purchase price will be approximately $2.8
million
in cash (subject to a purchase price adjustment). In an
appropriate
place in your proxy statement, please include a brief description
of
the adjustment mechanism to the purchase price.
Background of The Proposed Asset Sale - Page 7
8. Please expand your discussion of the background of the proposed
asset sale to include:
* a brief discussion of the efforts the Board and your financial
advisors or investment bankers, if any, made in identifying and
pursuing other strategic alternatives available to your company;
* a brief discussion of the alternative proposal from the other
company considered by the Board and why the proposed transaction
was
a more favorable offer. Tell us the name of the other company and
any relationships it or Mimix has or had with Celeritek or its
affiliates.
* a brief discussion of the material differences between the
revised
letter of intent signed on February 28, 2005 and the memorandum of
understanding sent by JMS to your Board on February 12, 2005, and
the
material differences, if any, between the revised letter of intent
and the asset purchase agreement signed on March 14, 2005.
9. We note from page 10 that Mr. Husseini recused himself from
this
transaction due to discussions regarding his role. Disclose when
those negotiations began, the terms being discussed, and the
current
status of the discussions.
Our reasons for the Proposed Asset Sale - Page 9
10. Substantially expand this section to summarize the analyses
conducted by the Board in determining the value of the assets to
be
sold. Show how these analyses support the Board`s recommendation.
11. Balance your disclosure with a discussion of the negative
implications of the transaction considered by the board.
12. Expand this section to include all material factors considered
by
the Board, and revise the last paragraph to remove any implication
that you have omitted material factors.
Interests of Our Directors and Executive Officers in the Proposed
Asset Sale - Page 10
13. Please quantify the amounts that each director and officer
could
receive as a result of the transactions, including any amounts to
be
received as a result of lump sum payments or related to options,
etc.
14. Disclose the terms of the non-competition agreement mentioned
in
the last paragraph.
Accounting Treatment - Page 11
15. Please expand your disclosure to explain why the sales price
is
less than the book value of the assets to be sold.
Proposal Three
Liquidating Distributions; Nature; Amount; Timing - Page 25
16. Please disclose the amount of the currently contemplated
initial
distribution.
Estimated Distributions to Shareholders - Page 26
17. Please identify what your "strategic investment" represents
(e.g., clarify whether or not the strategic investment represents
your interest in NewGen Telecom Co., Ltd). In an appropriate
place
in your proxy statement, please describe the efforts you have made
in, and your anticipated plans regarding, liquidating this
investment.
Sales of our Assets - Page 27
18. Please provide us a legal analysis demonstrating whether
applicable law permits you to sell your remaining assets without
additional shareholder vote.
Final Record Date - Page 29
19. Clearly distinguish between the record date for your
shareholders` meeting and the "final record date" for the purposes
of
this subsection.
Share Ownership - Page 32
20. Given the irrevocable proxy mentioned in the third bullet
point
under "Voting Agreements" on page 20, it appears that Mimix should
be
included in the table. Please revise or advise.
Closing Comments
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the company and its management are in
possession of all facts relating to a company`s disclosure, they
are
responsible for the accuracy and adequacy of the disclosures they
have made.
In connection with responding to our comments, please
provide,
in writing, a statement from the company acknowledging that:
* the company 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
respect to the filing; and
* the company 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.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
As appropriate, please revise your proxy statement in
response
to these comments and to update your disclosure. Please clearly
and
precisely mark the changes to the preliminary proxy statement
effected by the revision, as required by Rule 14a-6(h) and Rule
310
of Regulation S-T. Please furnish a cover letter with your
revised
proxy statement that keys your responses to our comments and
provides
any requested supplemental information. Detailed cover letters
greatly facilitate our review. In the event that you believe that
compliance with any of the above comments is inappropriate,
provide a
basis for such belief to the staff in the response letter. Please
understand that we may have additional comments after reviewing
your
revised proxy statement and responses to our comments; therefore,
please allow adequate time after the filing of the revised proxy
statement for further staff review.
Please direct any questions to Tim Buchmiller at (202) 824-
5354
or to me at (202) 824-5697.
Sincerely,
Russell Mancuso
Branch Chief
cc: Carolynn J. Levy, Esq.
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Tamer Husseini
Celeritek, Inc.
April 5, 2005
Page 5