Mail Stop 4561
June 22, 2006
Robert L. Howard-Anderson
President and Chief Executive Officer
Occam Networks, Inc.
77 Robbin Hill Road
Santa Barbara, CA 93117
Re: Occam Networks, Inc.
Preliminary Proxy Statement
Filed on June 13, 2006
File No. 0-30741
Dear Mr. Howard-Anderson:
We have limited our review of your filing to matters
relating
to proposals one, specifically the increase in the number of
authorized shares and the re-adoption of the supermajority voting
provisions in the certificate of incorporation. Based on this
limited review, we have the following 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. Below, 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 comment or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
General
1. We note that the Form 10-K will be delivered with the proxy
statement. As there are outstanding comments relating to the
disclosure controls and procedures in the Form 10-K that were
issued in our letter dated June 14, 2006, you should resolve all
comments concerning the Exchange Act filing prior to mailing the
proxy materials and Form 10-K.
2. Please eliminate the phrase that appears frequently throughout
the
proxy statement that the summary you provide is "qualified in its
entirety" by reference to the more detailed information contained
in
the attached appendices. The information you provide in the
prospectus must be materially complete and the words "in its
entirety" suggest that the prospectus summary may not be
materially
complete.
Proposal 3: Amendment and Restatement of Certificate of
Incorporation
3. We note that under this one proposal you discuss what appear to
be
three distinct proposals, i.e., decrease the number of authorized
shares of common stock, increase the number of shares of preferred
stock and "update certain other provisions of our certificate of
incorporation." These three issues are separate issues that
should
be presented separately. In addition, note that you must include a
separate line item on the proxy card for the revised proposal.
See
SEC Release No. 34-31326. To the extent that the reasons for the
proposals are linked, you may wish to include a single
introduction
that addresses the reasons for the proposals followed by a
separate
presentation of each proposal.
4. Regarding the proposals to modify the capital stock, we are
unable
to discern your existing capital structure based on the
information
provided. Please disclose in a table or similar format for both
your
existing and proposed capital structure, the number of shares your
common stock that will be: (i) issued and outstanding; (ii)
authorized and reserved for issuance; and (iii) authorized but
unreserved. For example, while you indicate that a reason for the
decrease in the number of authorized shares of common stock is
because of the excessive number of authorized but issued shares
resulting from the 1-for-40 reverse stock split, it does not
appear
that you are decreasing the number of authorized shares by a
factor
of 40.
5. We note further that the company has outstanding convertible
preferred stock the terms of which are not provided in the proxy
statement. We note further that you intend to cancel and convert
all
of the outstanding preferred to common stock. Please provide a
materially complete description of the transaction in which the
preferred shares were issued, the terms of the preferred and the
terms on which they will be converted to common. We may have
further
comments.
6. In light of your intent to convert all of the outstanding
preferred stock to common stock, thus resulting in no shares of
preferred stock outstanding, please explain in better detail why
you
are seeking approval to increase the number of authorized shares
of
preferred stock.
7. Regarding your proposal to "update certain other provisions of
our
certificate of incorporation," it is unclear from your discussion
which terms of the specified provisions are being updated.
Moreoever, Appendix B, which relates to this proposal, is not
marked
to show the proposed changes. Please revise the discussion to
specifically identify the text of each provision you propose to
update. In addition, please ensure that you address in the
discussion why the provisions require updating at this time. Are
the
provisions being updated to comply with changes in the governing
laws
of Delaware or California or for some other reason?
Proposal 4: Readoption of Supermajority Voting Provisions
8. Please revise the introduction to this proposal to clarify that
to
the extent you wish to retain supermajority voting requirements
you
are required, under the California Corporations Code, to obtain
stockholder approval for such provisions every two years.
9. We note your disclosure that companies listing on the Nasdaq
Nation Market are generally exempt from Section 2115 of the
California Corporations Code and that you applied for relisting on
June 13, 2006. Please identify the reasons for delisting in 2002
and
discuss briefly the basis for your belief that the company now
meets
the criteria for relisting.
10. You make references in several places to "the key provisions"
of
California corporate law to which you are subject and "certain
provisions" of the law that limit the effectiveness of
supermajority
voting provisions to two years. Where you refer to provisions of
the
California Corporations Code to which you are subject and which
relate to the proposal, please eliminate these vague references
and
substitute them with specific references to the relevant sections
of
the code.
Proposal 7: Approval of Indemnification Agreement
11. As with the proposal to update certain provisions of the
certificate of incorporation, please revise the disclosure here to
clarify how the new form of indemnification agreement differs from
the existing indemnification agreement you currently have with
directors and officers. While the proposal summarizes the
material
terms of the agreement, it does not describe in what ways the
agreement is being updated to comply with applicable law or
expanded
to provide broader coverage than currently exists.
In view of our limited review, all persons who are by statute
responsible for the adequacy and accuracy of the filing are urged
to
be certain that all information required pursuant to the
Securities
Act of 1933 has been included.
As appropriate, please amend your filing and respond to
these
comments within 10 business days or tell us when you will provide
us
with a response. 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 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 you may have to Maryse Mills-
Apenteng at 202-551-3457 or, in her absence, to Anne Nguyen at
202-
551-3611. If you need further assistance, please contact the
undersigned at 202-551-3730.
Sincerely,
Barbara C. Jacobs
Assistant Director
cc: Via facsimile: 650-493-6811
Rob Kornegay, Esq.
Wilson Sonsini Goodrich & Rosati, PC
Robert L. Howard-Anderson
Occam Networks, Inc.
June 22, 2006
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