Mail Stop 6010
October 31, 2005
VIA U.S. MAIL AND FACSIMILE (763) 553-0052
John R. Judd
Chief Financial Officer
ATS Medical, Inc.
3905 Annapolis Lane
Minneapolis, Minnesota 55447
Re: ATS Medical, Inc.
Form 10-K for the year ended December 31, 2004
Filed March 14, 2005
Form 10-Q for the quarterly period ended March 31, 2005 and
June 30, 2005
File No. 000-18602
Dear Mr. Judd:
We have reviewed your filing and have the following
comments.
We have limited our review of your filing to those issues we have
addressed in our comments. Where indicated, we think you should
revise future filings 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 filing.
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.
Form 10-K for the year ended December 31, 2004
Results of Operations, page 16
Cost of Goods Sold, page 17
1. We note that your MD&A discussion includes Non-GAAP measures
called "Adjusted cost of goods sold" and "Adjusted cost of goods
sold
as a percentage of net sales." Please tell us how these measures
comply with the guidance provided in SEC Rule 34-47226 -
Conditions
for Use of Non-GAAP Financial measures or the Staff`s FAQ
Regarding
the use of Non-GAAP Financial Measures since they clearly exclude
recurring items. Please refer to Questions 8 and 9 of the FAQ.
Liquidity and Capital Resources, page 19
Cash Management, page 20
2. We see that you are required to resume purchasing carbon
components from Carbomedics under the supply agreement in 2007
through 2011. We also note that the supply agreement was
previously
suspended in 2002 due to the accumulation of the high priced
inventory acquired from Carbomedics. You disclose that as of
December
31, 2004 you had not yet sold the entire inventory acquired prior
to
2002 and that the purchase commitments in 2007 will remain at the
same pricing level. In your response and in future filings,
please
discuss how the minimum purchase commitments of the supply
agreement
will affect future cash flows and inventory levels. Specifically,
please address how you intend to avoid the build up of inventory
that
occurred under the supply agreement in 2002.
Form 10-Q for the quarterly period ended March 31, 2005
Item 4. Controls and Procedures, page 19
3. We note that you had a material weakness in your disclosure
controls and procedures as of December 31, 2004 related to your
inventory cycle counting methods, as disclosed in your Form 10-K.
As
of March 31, 2005, you disclose that your disclosure controls and
procedures are effective. Please tell us and revise future
filings
to clarify the changes made to correct the material weaknesses in
your disclosure controls and procedures as of March 31, 2005.
Your
filing should disclose any changes made to your disclosure
controls
and procedures or to your internal control over financial
reporting
in response to a significant deficiency or material weakness.
Please
refer to Question 11 of the Frequently Asked Questions for
Management`s Report on Internal Control over Financial Reporting
and
Certification of Disclosure in Exchange Act Periodic Reports
located
on the SEC website.
Form 10-Q for the quarterly period ended June 30, 2005
Consolidated Financial Statements
Note 6. Licensing Fee Payments, page 8
4. We reference your disclosure of the $1.6 million licensing fee
payment made to CryoCath Technologies during the quarter ended
June
30, 2005. Please tell us and disclose in future filings your
accounting for the licensing fee payment, including the
amortization
period. Please consider the disclosure requirements of paragraph
44
of SFAS 142 in future filings.
Results of Operations, page 10
5. We see from your table on page 10 that your gross profit
percentage increased from 28.4% for the six months ended June 30,
2004 to 40.3% for the six months ended June 30, 2005. We also
note
from the table on page 11 that the six months year to date
increase
in average sales price was 0.6% while the increase in unit sales
was
7.4%. Please tell us and revise future filings to clarify the
specific factors that resulted in material changes in gross profit
margin.
As appropriate, please respond to these comments within 10
business days or tell us when you will provide us with a response.
Please furnish a cover letter with your response 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
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
Exchange Act of 1934 and 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.
You may contact Kristin Lochhead at (202) 551-3664 or me at
(202) 551-3676 if you have questions. In this regard, please do
not
hesitate to contact Martin James, Senior Assistant Chief
Accountant,
at (202) 551-3671 with any other questions.
Sincerely,
Brian Cascio
Accounting Branch Chief
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John R. Judd
ATS Medical, Inc.
October 31, 2005
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