Mail Stop 6010
September 21, 2005
Jan Stahl
Chief Executive Officer
APO Health NV, Inc.
3590 Oceanside Road
Oceanside, NY 11572
Re: Proxy Statement on Schedule 14A
File No. 0-30074
Filed September 2, 2005
Dear Mr. Stahl:
We have reviewed your filing and have the following
comments.
Where indicated, we think you should amend your proxy statement.
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.
Letter to Song Brandon Faxed on September 8, 2005
1. Please file the letter correspondence addressed to Song Brandon
and dated September 8, 2005 on EDGAR. Please ensure that this
letter
contains an affirmative representation that you will invalidate
all
previously received proxies you have received in connection with
the
spin-off transaction and that further you will re-solicit the
spin-
off proposal by sending out the proxy statement filed with us on
September 2, 2005, as amended, upon completion of our review and
comment process of the proxy statement. If you cannot provide us
with these representations, please provide us with a detailed
explanation as to why you cannot.
Draft Letter to Shareholders Faxed to Us on September 8, 2005
2. Please file the draft letter to shareholders you provided to us
on
September 8, 2005 on EDGAR. Per your earlier telephone discussions
with Song Brandon, we continue to believe you should revise the
first
two paragraphs of that letter to better reflect the purpose of the
re-solicitation. More specifically, we believe you should revise
the
first two paragraphs to disclose that the sole reason for the re-
solicitation is because you did not file a preliminary version of
the
proxy statement prior to mailing the proxy statement on July 29,
2005
and subsequently used the proxy statement for solicitation
purposes
without giving us an opportunity to review and comment on it.
Additionally, please revise the letter to indicate that you will
re-
mail the proxy statement, as revised, and that votes on the spin-
off
transaction will be re-solicited using a revised proxy statement.
If
you cannot provide us with these revisions, please give us a
detailed
explanation as to why you cannot and why these revisions are
unnecessarily.
Proxy Statement
General
3. You indicate that in connection with the spin-off transaction
of
APO Health NV`s sole asset, APO Health NY, the ownership of APO
Health NY will be distributed to the shareholders of APO Health NV
on
a pro rata basis. In that regard, it appears that Items 11 and 13
to
Schedule 14A applies and that therefore, the proxy statement
should
include the financial and other related information required by
Item
13(a). Please revise your proxy statement to provide this
information.
4. We note your disclosure indicating your sole asset is APO
Health
NY. However, it appears you have another subsidiary, University
Medical Distributors. Please revise your document to provide for
this
disclosure. Please also provide a brief business description of
this
subsidiary.
5. Since it appears the proxy statement will have to be re-mailed
and
votes re-solicited, please revise the entire proxy statement as
appropriate to update for a new meeting date, record date and mail
date.
6. Please provide page numbers in your amended proxy statement.
Voting Rights
7. You indicate that as of July 29, 2005, which we understand was
your previous mailing date, 60% of the outstanding common stock
indicated to you that such shares would vote in favor of the
proposal
articulated in your proxy statement. Please explain to us how such
voting disposition was communicated to you and when such
communication was made to you? Please also tell us if they
entered
into any voting agreements with you regarding your spin off
proposal?
Additionally, please indicate to us approximately how many holders
such 60% of the votes represent.
Dissenter`s Rights
8. Please expand this section to include a more detailed
description
of dissenter`s rights under current Nevada law, including any
statutory procedure required to be followed by dissenting security
holders in order to perfect such rights. Additionally, please
indicate whether a shareholder`s failure to vote against a
proposal
will constitute a waiver of his appraisal or similar rights and
whether a vote against the spin-off proposal will be deemed to
satisfy any notice requirements under Nevada law with respect to
dissenter`s rights. If it is unclear under Nevada law, please
state
what position will be taken in regard to those matters. Please
also
file as an appendix the applicable provisions of Nevada law that
sets
forth dissenter`s rights.
Compartmentalizing Risk
9. Please disclose the nature of the litigation involving Alcoa
Corp.
and Proctor & Gamble Inc., including a brief description of the
lawsuits pending against you by these entities, the date of the
lawsuits, the amount of the damages sought and the current status
of
the litigation.
10. You also indicate that the litigation with Alcoa and Proctor
and
Gamble is "a costly endeavor and has associated risks, as well as
a
potential contingent liability." Please quantify what you mean by
"costly endeavor." More specifically, how much have you expended
so
far in connection with these litigation matters. Please also
clarify
what you mean by "associated risks."
11. You indicate in this section that the spin-off transaction is
to
afford some level of protection in connection with the current
litigation with Alcoa and Proctor & Gamble. Please explain what
"level of protection" you are referring to in your discussion.
Please
also explain to us with a view for disclosure how the spin-off
transaction would serve to insulate your sole asset against you if
any resulting liability would have been incurred while APO Health
NV
was operating APO Health NY? We may have further comments.
Principal Expected Effects of Proposal
12. You indicate that you intend to make the spun-off entity a
publicly traded company and further that the shares may not be
immediately distributed to the holders in order to facilitate
proper
filings with the Securities and Exchange Commission. What filings
are
you referring to? More specifically, do you intend to register the
spun off shares under the Securities Act? If so, please disclose
when
you expect to do so. If you do not expect to register the spun-off
shares, please provide a detailed analysis explaining why you are
not
required to do so under the guidelines set forth in Staff Legal
Bulletin No. 4. Your analysis should discuss all five factors set
forth in the guidelines.
Some Known Risks, Disclaimers, and Understandings
13. We note the various risk factors you have set forth in this
section. Please expand each of your risk factors to better explain
why each of the risks you have described might occur with the
particular consequence you have provided for in this section. For
example:
* With respect to the risk factor that the spin-off of APO NY may
not
afford any protection on any assets within APO NY, or currently
within APO NV, please explain the reasons why not.
* Please explain why APO NV`s share price may substantially
decline
as a result of the proposal, and include the current market price
per
share of the common stock.
* Please explain why APO NY`s shares may be illiquid or
functionally
illiquid for an indeterminable amount of time.
* * *
As appropriate, please amend your filing 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 supplemental 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 filings reviewed by the staff to
be
certain that they have provided all information investors require.
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 filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff 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
proceedings 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.
Please contact Song P. Brandon at (202) 551-3621, John Krug
at
(202) 551-3862or me at (202) 551-3710 with any questions.
Sincerely,
Jeffrey P. Riedler
Assistant Director
cc: Marshal Shichtman, Esq.
Marshal Shichtman and Associates, P.C.
1 Old Country Road
Suite 120
Carle Place, NY 11514
??
??
??
??
Jan Stahl
APO Health NV, Inc.
September 21, 2005
Page 1