Mail Stop 6010
December 13, 2005
Daniel G. Hall, Esq.
General Counsel
Novoste Corporation
4350 International Boulevard
Norcross, Georgia 30093
Re: Novoste Corporation
Schedule 14A - Preliminary Proxy Statement
Filed November 15, 2005
File No. 000-20727
Dear Mr. Hall:
We have reviewed 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
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.
General
1. Revise your proxy statement to include unaudited financial
statements of the business that you are selling to Best Vascular
for
the periods required by Item 14 of Schedule 14A. See Question 6
under Subsection H (Financial Statements) of Section I (Regulation
M-
A) of the Third Supplement (July 2001) to the Manual of Publicly
Available Telephone Interpretations.
2. Please provide the disclosures required by Item 5 of Schedule
14A.
3. We note that Mr. Lichtenstein and Steel Partners filed a
preliminary proxy statement on November 28, 2005 to contest your
liquidation proposal. Please revise your document to adequately
and
accurately address the existence of the contest. Refer to Rule
14a-
9.
4. Please revise the document throughout to indicate the color of
your proxy card. Tell us whether you intend to use telephone or
internet voting, and if so, please revise appropriate sections of
the
document and the form of proxy to describe the Internet and
telephone
voting procedures. In addition, please confirm that you will file
all written soliciting materials, including scripts and outlines
used
to solicit proxies by telephone.
Q: Why has the board of directors authorized, and asked
shareholders
to approve, amendments to reduce the minimum size of the board of
directors?, page 6
5. If currently known, please indicate which of your current
directors will resign and which will continue to serve if the
proposal regarding the minimum size of your board of directors is
approved and effected. If that information is not known, please
indicate what policies or procedures you will follow in adjusting
the
size of your board of directors.
6. To the extent known, please quantify the cost-efficiencies you
expect to achieve by reducing the size of your board. If you are
unable to quantify the cost-efficiencies, please indicate the
source
of the anticipated cost-efficiencies.
If we liquidate and dissolve..., page 18
7. To the extent possible, please revise your disclosure to
specify
with greater clarity the period of time required under the Florida
Business Corporation Act that you will be liable for known and
unknown claims.
We hold an unsecured promissory note of ONI Medical Systems, Inc.
that may not be repaid in full or at all, page 20
8. In an appropriate location in your proxy statement, please
disclose the basis for your belief that the $3 million promissory
note is collectable in full
Approval of Asset Sale Transaction..., page 25
General, page 25
9. We note your disclosure that it was a condition to the sale
agreement that you entered into with Best Vascular on August 25,
2005
that you complete your proposed merger with ONI Medical Systems,
Inc.
because of certain requirements under Florida law. Please revise
your disclosure to briefly clarify why Florida law had the effect
of
requiring the proposed merger with ONI in order to consummate the
transactions contemplated by the original agreement with Best
Vascular and to briefly explain why your current transaction is
not
required to meet those requirements. Briefly discuss the material
differences between and the transactions contemplated by the
agreement entered into on August 25, 2005 and the amended and
restated agreement currently being proposed to your shareholders.
Recommendation of our Board of Directors and Reasons for the Asset
Sale Transaction, page 31
10. Please summarize the analyses conducted by the board in
determining the value of the assets to be sold and the value of
the
consideration to be received. Show how these analyses support the
board`s recommendation in the asset sale transaction.
11. You indicate that your board consulted with your financial
advisor in reaching its decision to approve the asset sale
transaction pursuant to the amended and restated asset sale
transaction. Identify the financial advisor. Did this financial
advisor provide a report, opinion or appraisal relating to the
asset
sale, be it in written form or via an audio-visual or similar
presentation? In the proxy statement, provide appropriate
disclosure
of any such presentation, consistent with Item 14(b)(6) of
Schedule
14A.
12. We note your disclosure that your board identified and
considered
a number of potentially negative factors in its deliberations
concerning the asset purchase agreement and the proposed asset
sale
transaction, and further that the discussion of the factors found
on
page 32 comprises the "material factors considered." We also note
disclosure in Note 11 to your financial statements regarding your
NOL
carryforwards and that the utilization of such NOL carryforwards
could be restricted in future periods as a result of any future
changes in ownership. Please disclose whether the board
considered
the effect of the asset sale on your use of the NOL carryforwards
that you describe in Note 11. Further, given that the company
appears able to utilize NOL carryforwards up to $1.8 million
annually, please disclose why the board did not consider this to
be a
material factor worthy of its consideration.
Consideration , page 33
13. We note your disclosure in the fourth paragraph of this
section
that the aggregate amount of the net economic benefit to you from
the
proposed transaction will be approximately $1.5 to $3.0 million.
Please enhance your disclosure so that it is clear to your
investors
how you determined this range and the assumptions upon which the
range is based. Discuss the events that will determine the actual
economic benefits to be received by you from the proposed
transaction.
Proposal 3, page 41
14. Please balance your disclosure with a discussion of the
negative
factors considered by the board.
Approval of Amendments to Amended and Restated Articles of
Incorporation..., page 57
15. Please discuss any disadvantages to your shareholders that may
result from the reduction in the number of members of your board
of
directors.
Proxy Card
16. The proxy should indicate if the matters to be acted on are
conditioned upon the approval of other matters. Please refer to
Rule
14a-4(a)(3).
17. Please revise your disclosure on the proxy card and in an
appropriate section of the document to clarify that you may only
use
discretionary authority to vote on matters not known a reasonable
time before the special meeting. Refer to Rule 14a-4(c)(3).
18. Tell us whether the company may use discretionary authority to
vote all proxies voted in favor of the sale transaction and/or
plan
of distribution in favor of adjourning the meeting to solicit
additional proxies. Please note that the ability to adjourn a
meeting to solicit additional proxies is not a matter incidental
to
the conduct of the meeting. See Rule 14a-4. To the extent that
you
wish to vote the proxies in this way, you must provide another
voting
box on the proxy card so shareholders may decide whether to grant
a
proxy to vote in favor of adjournment for the solicitation of
additional votes.
* * *
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 information. Detailed cover letters greatly
facilitate
our review. Please understand that we may have additional
comments
after reviewing your revised proxy statement and responses to our
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.
Please direct any questions to Tim Buchmiller at (202) 551-
3635
or to me at (202) 551-3444.
Sincerely,
Perry Hindin
Special Counsel
cc: Joseph G. Connolly, Jr., Esq.
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Daniel G. Hall, Esq.
Novoste Corporation
December 13, 2005
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