August 19, 2005
Room 4561
Mr. Patrick C. Condo
President and CEO
Convera Corporation
1921 Gallows Road, Suite 200
Vienna, VA 22182
Re: Convera Corporation
Registration Statement on Form S-3
Filed August 5, 2005
File No. 333-127222
Form 10-K for the fiscal year ended January 31, 2005
Form 10-Q for the quarter ended April 30, 2005
File No. 0-31989
Dear Mr. Condo:
We have limited our review of your filings to those issues we
have addressed in our 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 information so we may better understand
your
disclosure. After reviewing this information, we may 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.
Registration Statement on Form S-3
Where You Can Find More Information, page 1
1. Please update this section to include your Form 8-K filed March
2,
2005. Additionally, ensure that this section is updated to
include
any filings that are made prior to effectiveness and are required
to
be incorporated by reference. See H.69 of the July 1997 CF Manual
of
Publicly Available Telephone Interpretations.
Selling Stockholder, page 10
2. All material transactions between the company and the selling
stockholder should be disclosed in this section, including the
material terms of the transaction by which the selling stockholder
received the shares being offered for resale. See Item 507 of
Regulation S-K. Please revise this section accordingly to provide
information similar to that provided in your plan of distribution
regarding the transaction by which the selling stockholder
received
its shares.
3. Please disclose the individual or individuals who exercise the
voting and dispositive powers with respect to the shares to be
offered for resale by the selling stockholder. If the selling
stockholder is controlled by a widely-held public company, you may
revise to identify the public company as the entity that exercises
such voting and dispositive powers. See Interpretation I.60 of
the
July 1997 manual of publicly available CF telephone
interpretations,
as well as interpretation 4S of the Regulation S-K portion of the
March 1999 supplement to the CF telephone interpretation manual.
4. It does not appear that the selling stockholder is a registered
broker-dealer. Please confirm. Additionally, if the selling
stockholder is an affiliate of a broker-dealer, please disclose,
and
tell us whether the selling stockholder received its shares in the
ordinary course of business and whether, at the time of
acquisition,
it had any understandings or arrangements with any other person,
either directly or indirectly, to distribute the shares.
Legal Opinion
5. Please confirm that the reference and limitation to the
"General
Corporation Law of the State of Delaware" includes the statutory
provisions and also all applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting these
laws.
See Section VIII A.14 of the CF Current Issues Outline.
6. We note that in rendering the legal opinion, your counsel has
assumed that "appropriate stock certificates evidencing the Shares
[will be] executed and delivered." As the shares being registered
appear to be issued and outstanding, this assumption seems
unnecessary, as counsel should be able to determine whether the
share
certificates were executed and delivered. Additionally, it is
unclear why your counsel`s assumption that all applicable
securities
laws will be complied with, is necessary in rendering the legal
opinion required by Item 601(b)(5) of Regulation S-K. In this
regard, we note that securities law issues should not affect a
determination of whether, under Delaware law, the company`s shares
are legally issued, fully paid and non-assessable. Please ensure
that your next amendment includes a legal opinion revised in
accordance with the issues noted above or advise.
Form 10-K for the fiscal year ended January 31, 2005
Controls and Procedures, page 32
7. We note that as of the end of the period covered by your Form
10-
K, the company`s management, including your Chief Executive
Officer,
evaluated the effectiveness of the company`s disclosure controls
and
procedures, and your Chief Executive Officer concluded that the
company`s disclosure controls and procedures were effective.
However, Item 307 of Regulation S-K requires the company to
disclose
the conclusions of the company`s principal executive and principal
financial officers, or persons performing similar functions.
Please
tell us whether your chief financial officer, or the person
performing the functions of the chief financial officer, was
involved
in the evaluation of the company`s controls and procedures as of
the
end of the period covered by your Form 10-K and tell us what his
or
her conclusions were regarding the effectiveness of the company`s
disclosure controls and procedures. This comment also applies to
your first quarter 10-Q, which indicates that your CFO was
involved
in the evaluation of disclosure controls and procedures, but did
not
provide a conclusion regarding disclosure controls and procedures.
8. We note that your determination regarding the effectiveness of
the
company`s disclosure controls and procedures appears to be
narrower
than that required by Rule 13a-15. In this regard, we note that
your
CEO concluded that your disclosure controls and procedures were
effective in "making known to [the company] on a timely basis,
material information required to be disclosed in the company`s
reports filed or submitted under the Exchange Act," while Rule
13a-
15(e) defines disclosure controls and procedures as controls and
other procedures of an issuer that are designed to ensure that
information required to be disclosed by the issuer is "recorded,
processed, summarized and reported, within the time periods
specified
in the Commission`s rules and forms," and that they include
controls
and procedures designed to ensure that information required to be
disclosed by an issuer is "accumulated and communicated to the
issuer`s management, including its principal executive and
principal
financial officers, or persons performing similar functions, as
appropriate to allow timely decisions regarding the required
disclosure." Please confirm that the evaluation of your
disclosure
controls and procedures was made in accordance with the terms of
Rule
13a-15(e) and ensure that your future filings include language
that
more closely conforms with the language of Rule 13a-15(e). This
comment also applies to your Form 10-Q for the quarter ended April
30, 2005.
9. As a follow-up to the comment above, we note that the language
regarding changes in internal controls in both your Form 10-K and
first quarter Form 10-Q, indicates that there were no
"significant"
changes in the company`s internal controls that could
"significantly"
affect the internal controls subsequent to the date the company
completed its evaluation. However, the standard set forth in Item
308(c) of Regulation S-K requires that you disclose any change in
internal control over financial reporting that occurred during
your
last fiscal quarter that has "materially" affected, or is
reasonably
likely to "materially" affect, your internal control over
financial
reporting. Please confirm that there were no changes that
materially
affected or were reasonably likely to materially affect your
internal
control over financial reporting during the fourth quarter of your
last fiscal year or during the first quarter of the current fiscal
year. Additionally, ensure that your future filings include
language
consistent with Item 308(c) of Regulation S-K.
* * * * *
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested information. Detailed cover
letters greatly facilitate our review. Please understand that we
may
have additional comments after reviewing your amendment and
responses
to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing to be certain that the
filing includes all information required under the Securities Act
of
1933 and that they have provided all information investors require
for an informed investment decision. Since the company and its
management are in possession of all the facts relating to a
company`s
disclosure, they are responsible for the accuracy and adequately
of
the disclosures they have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert staff comments and the declaration of
effectiveness 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 connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as a confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rule 461 regarding requesting
acceleration of a registration statement. Please allow adequate
time
after the filing of any amendment for further review before
submitting a request for acceleration. Please provide this
request
at least two business days in advance of the requested effective
date.
If you have any questions regarding these comments, you may
contact Sara Kalin at (202) 551-3454. If you need further
assistance, you may contact me at (202) 551-3730.
Sincerely,
Mark P. Shuman
Branch Chief-Legal
cc: Via Facsimile (212) 763-7600
Mr. Stephen M. Davis, Esq.
Heller Ehrman LLP
Telephone: (212) 847-8798
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Mr. Patrick Condo
Convera Corporation
August 19, 2005
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