Mail Stop 4561
September 13, 2005
Mr. Frank Mandelbaum
Chief Executive Officer
Intelli-Check, Inc.
246 Crossways Park West
Woodbury, NY 11797
Re: Intelli-Check, Inc.
Registration Statement on Form S-3
Filed August 18, 2005
File No. 333-127663
Form 10-K for the fiscal year ended December 31, 2004
Form 10-Q for the quarter ended March 31, 2005
Form 10-Q for the quarter ended June 30, 2005
File No. 0-50296
Dear Mr. Mandelbaum:
We have limited our review of your filings to those issues we
have addressed in our comments below. Please respond to our
comments
on your periodic filings within ten business days from the date of
this letter. Where indicated, we think you should revise your
registration statement 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 S-3
General
1. An issuer is eligible to use Form S-3 only if it has timely
filed
its Exchange Act materials for the twelve months preceding the
filing
of the Form S-3. See Form S-3 General Instruction I(A)(3). It
appears you do not meet this requirement, as a Form 8-K announcing
the resignation on or before July 28, 2005, of one of your
directors,
Thomas A. Prendergast, was not filed as required by Item 5.02 of
Form
8-K. Please file your registration statement on an appropriate
Form
or advise as to why you believe this is not necessary.
Selling Shareholder, page 9
2. Please expand the filing to describe the material transactions
and
relationships between you and each of the selling shareholders
during
the past three years. See Item 507 of Regulation S-K. The
transactions whereby the shares to be resold were issued and the
warrants relating to shares to be resold were issued should be
described in materially complete terms. Please revise to disclose
the basic terms of the August 8th and 9th private placements,
including the dates the transactions took place, the material
terms
of the transactions, the parties who participated in the
transactions
and the number of shares received by them.
3. Please disclose the names of the four senior officers who
exercise
the voting and dispositive powers with respect to the shares to be
offered for resale by JMP Securities LLC. 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. You state that certain named selling shareholders are
affiliated
with member firms of the NASD. Revise your prospectus to clarify
that these selling shareholders are affiliates of a registered
broker-dealer. In addition, expand the prospectus to indicate
whether selling shareholders affiliated with a registered broker-
dealer acquired the securities to be resold in the ordinary course
of
business. Also indicate whether at the time of the acquisition
they
had any agreements, understandings or arrangements with any other
persons, either directly or indirectly, to dispose of the
securities.
Signatures
5. Please revise to indicate the person signing the registration
statement in the capacity of your controller or principal
accounting
officer.
Exhibits
6. We note that the documents filed as exhibits 4.1 and 10.1 were
filed as "form of" and do not include the date of the
transaction(s),
the name of each investor, the amount of investment, or the
numbers
of shares and/or warrants received. Please ensure that your next
amendment attaches as exhibits the final versions of all
instruments
that define the rights of holders of securities for which you are
registering underlying shares. See Item 601(b)(4)(i) of
Regulation
S-K. If two or more of these documents are substantially
identical
in all material respects except as to the parties thereto, the
dates
of execution or other details, you need file a copy of only one of
such documents, with a schedule identifying the other documents
omitted and setting forth the material details in which such
documents differ from the document that is filed.
Form 10-K for the fiscal year ended December 31, 2004
Item 9A. Disclosure Controls and Procedures, page 23
7. We note your disclosure that "there were no significant changes
in
[y]our internal controls or in other factors that could
significantly
affect these controls subsequent to the end of the period covered
by
this report" (emphasis added). However, Item 308(c) of Regulation
S-
K requires you to disclose any change in your internal control
over
financial reporting that occurred during your last fiscal quarter
(the fourth quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect,
your internal control over financial reporting. Please confirm
that
you had no change in your internal control over financial
reporting
that occurred in the quarter ended December 31, 2004, that
materially
affected, or is reasonably likely to materially affect, your
internal
control over financial reporting. This comment also applies to
your
Item 4 disclosure in your Forms 10-Q for the quarters ended March
31
and June 30, 2005. Please note this comment in preparing your
future
Item 308(c) disclosure.
* * * * *
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendments 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 Rebekah Toton at (202) 551-3857 or me at (202) 551-3462.
Sincerely,
Mark P. Shuman
Branch Chief - Legal
cc: Via Facsimile (212) 407-4990
Mitchell S. Nussbaum, Esq.
Loeb & Loeb LLP
Telephone: (212) 407-4000
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Frank Mandelbaum
Intelli-Check, Inc.
September 13, 2005
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