ACCESS PHARMACEUTICALS, INC.
2600 Stemmons Freeway
Suite 176
Dallas, TX 75207
Via EDGAR and Federal Express
July 26, 2006
Office of the Chief Counsel
Division of Corporation Finance
100 F Street, NE
Washington, DC 20549
Attn: Ms. Song Brandon
Re: Access Pharmaceuticals, Inc. - File No. 333-135734
Statement of Reasons for Eligibility of Registration
Pursuant to Rule 415(a)(1)(i)
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Dear Ms. Brandon:
On behalf of our client, Access Pharmaceuticals,
Inc., a Delaware corporation (the "Company"), set
forth below is the Company's response to the comment
of the staff (the "Staff") of the Securities and
Exchange Commission (the "Commission") contained in
your letter dated July 19, 2006. For ease of
reference, the comment is printed below in bold
print, followed by the Company's response.
Eligibility for Shelf Registration Pursuant to Rule 415(a)(1)(i)
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1. We note that the securities you are registering on your Form S-1 are
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being made on a shelf basis under Rule 415. Given the nature and size of
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the transaction being registered, advise the staff of the company's basis
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for determining that the transaction is appropriately characterized as a
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transaction that is eligible to be made on a shelf basis under
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Rule 415(a)(1)(i).
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The Company respectfully submits that the securities
being registered under Form S-1, filed with the
Commission on July 13, 2006, are eligible to be made
on a shelf basis under Rule 415(a)(1)(i), as such
securities are currently held by, or are issuable
to, entities other than the Company, none or which
are subsidiaries of the Company, and to none of
which the Company is a subsidiary.
The Company wishes to register 9,298,170 shares of
common stock representing shares currently held, and
shares underlying convertible promissory notes and
warrants held, by the
Office of the Cheif Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
July 26, 2006
Page 2
following three separate entities or their affiliates, none of which is
either a subsidiary, or the parent of the Company:
1. Cornell Capital Partners, L.P.
2. Oracle Partners and affiliates
3. SCO Capital Partners and affiliates
Cornell Capital Partners, L.P.
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Of the 9,298,170 shares being registered, 86,083
shares are being registered on behalf of Cornell
Capital Partners, L.P. ("Cornell"). Cornell
acquired all 86,083 shares under a Standby Equity
Distribution Agreement ("SEDA"), executed on March
30, 2005 between the Company and Cornell. The
Company is advised that Cornell has held all such
shares for at least 10 months The Company currently
wishes to register the shares issued to Cornell as
required under the SEDA. The Company submits that
the registration of such shares is in compliance
with Rule 415(a)(1)(i).
Oracle Partners and affiliates
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Of the 9,298,170 shares being registered, 803,000
shares are being registered on behalf of Oracle
Partners, L.P. and its affiliates ("Oracle"). These
803,000 shares represent common stock underlying
convertible promissory notes held by Oracle. Oracle
holds convertible notes which, as amended, have a
maturity date of April 28, 2007. These notes were
first issued by the Company in favor of Oracle in
September, 2000. The Company sold such convertible
promissory notes to Oracle over six years ago,
received payment for the notes, and now wishes to
register the securities underlying such notes.
Though Oracle has the right to convert its notes
into shares of the Company, the Company, under
certain circumstances may make payment in cash to
Oracle to retire the notes, rather than by means of
issuance of Company shares. As at the time of this
offering we cannot ascertain whether the notes held
by Oracle will ever be converted into securities of
the Company, the Company submits that the
registration of such shares is in compliance with
Rule 415(a)(1)(i).
SCO Capital Partners and affiliates
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Of the 9,298,170 shares being registered, 8,409,087
are being registered on behalf of SCO Capital
Partners and its affiliates ("SCO"). 4,545,453 of
such shares represent shares of common stock
underlying convertible promissory notes held by SCO,
and 3,863,634 of such shares represent securities
underlying warrants held by SCO. The convertible
promissory notes and warrants held by SCO were
issued on February 16, 2006 pursuant to a Note and
Warrant Purchase Agreement (the "Agreement"). The
Company received payment under the Agreement on
February 16, 2006 and now wishes to register the
securities underlying such notes and warrants as
required under the terms of the Agreement. As we
cannot ascertain whether the notes held by SCO will
ever be converted into securities of the Company, or
whether the warrants held by SCO will ever be
exercised for securities
Office of the Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
July 26, 2006
Page 3
of the Company, the Company submits that the registration of
such shares is in compliance with Rule 415(a)(1)(i).
The issuances of the notes, and notes and warrants
to Oracle and SCO respectively date back
approximately six years in the first instance and
six months in the latter. And, the Company has
previously received proceeds in connection with the
issuance of such securities. Under Rule
415(a)(1)(i), securities may be registered for an
offering to be made on a continuous or delayed basis
in the future, as long as the registration statement
pertains only to "securities which are to be offered
or sold solely by or on behalf of a person or
persons other than the registrant, a subsidiary of
the registrant or a person of which the registrant
is a subsidiary." The shares being registered are
not on behalf of the Company, but rather on behalf
of Cornell, Oracle and SCO - none of which are a
subsidiary of the Company, or of which the Company
is a subsidiary. Therefore, the Company
respectfully submits that its registration of the
9,298,170 shares on Form S-1 is in compliance with
Rule 415(a)(1)(i).
[the remainder of this page is left blank intentionally]
If you have any questions regarding this matter or
require any additional information, please contact
the undersigned at (617) 951-8874. If the Staff
disagrees with any of the conclusions set forth
above, please contact the undersigned prior to the
issuance of a written response.
Very truly yours,
/s/ John J. Concannon, III.
John J. Concannon, III., Esq.
Bingham McCutchen LLP
cc: Dr. Rosemary Mazanet
Mr. Stephen B. Thompson