GIBSON, DUNN & CRUTCHER LLP
LAWYERS
A REGISTERED LIMITED LIABILITY PARTNERSHIP
INCLUDING PROFESSIONAL CORPORATIONS
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200 Park Avenue, New York, New York 10166-0193
(212) 351-4000
www.gibsondunn.com
bbecker@gibsondunn.com
April 4, 2006
Direct Dial Client Matter No.
212-351-4062 43450-00001
Fax No.
212-351-6202
VIA FACSIMILE AND
EDGAR TRANSMISSION
Division of Corporation Finance
United States Securities and Exchange Commission
100 F Street, N.E.
Mail Stop 4561
Washington, D.C. 20549
Attn: Mark P. Shuman and Rebekah Toton
Re: Infocrossing, Inc.
Amendment No. 1 to the Registration Statement on Form S-3
Filed February 16, 2006
File No. 333-130705
Dear Mr. Shuman and Ms. Toton:
Reference is made to your letter, dated March 7, 2006 (the "Comment
Letter") setting forth the comments of the staff of the Division of Corporation
Finance (the "Staff") of the Securities and Exchange Commission (the
"Commission"), concerning the above-referenced registration statement. On behalf
of our client, Infocrossing, Inc. (the "Company"), we hereby submit the
Company's responses to the Comment Letter on the Company's registration
statement on Form S-3 (the "Registration Statement"), originally filed with the
Commission on December 27, 2005, as amended by Amendment No. 1 filed on February
16, 2006 ("Amendment No. 1").
The headings and numbered paragraphs in this response letter correspond
to the original headings and numbered paragraphs in the Comment Letter. For ease
of reference, we have repeated the Staff's comments in bold text preceding each
of the responses.
We have enclosed with this letter a marked copy of Amendment No. 2 to
the Form S-3 ("Amendment No. 2"), which was filed today by the Company via
EDGAR, reflecting all changes to Amendment No. 1.
FORM S 3/A
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GENERAL
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1. WE NOTE TO DISCLOSURE ON PAGE 27 AND IN YOUR CURRENT REPORT ON FORM
8-K, FILED JANUARY 6, 2006, INDICATING THAT YOU ISSUED 216,241 SHARES
TO SOFT LINK SOLUTIONS, INC. ON JANUARY 5, 2006, PURSUANT TO AN ASSET
PURCHASE AGREEMENT ENTERED INTO ON DECEMBER 16, 2005. WITH THIS
AMENDMENT, YOU SEEK TO REGISTER THE RESALE OF SUCH COMMON STOCK IN
ACCORDANCE WITH THE TERMS OF THE ASSET PURCHASE AGREEMENT. PLEASE
DESCRIBE THE MATERIAL STEPS TAKEN IN NEGOTIATING AND AGREEING TO THE
REGISTRATION RIGHTS PROVISIONS IN THAT AGREEMENT. DESCRIBE THE
RELATIONSHIP BETWEEN THE NEGOTIATIONS FOR THE REGISTRATION RIGHTS AND
THE INCLUSION OF THE ADDITIONAL SHARES IN THIS REGISTRATION STATEMENT.
PLEASE FILE THE REGISTRATION RIGHTS AGREEMENT AS AN EXHIBIT TO THE
REGISTRATION STATEMENT, AS IT APPEARS THAT IT DEFINES RIGHTS OF
HOLDERS OF SECURITIES BEING REGISTERED IN THE FILING. SEE PARAGRAPH
(B)(4) OF ITEM 601 OF REGULATION S-K.
The definitive asset purchase agreement entered into by the Company and
Soft Link Solutions, Inc. on December 16, 2005 (the "Purchase
Agreement") contained covenants requiring the Company to register for
resale the shares of Company common stock that were to be issued to
Soft Link upon consummation of the acquisition. Negotiation of such
registration rights was part of the overall discussions that took place
between the Company and Soft Link leading to the execution of the
Purchase Agreement on December 16, 2005.
Following consummation of the Soft Link acquisition on January 5, 2006,
for administrative convenience, Infocrossing decided to include the
shares issued to Soft Link pursuant to the Purchase Agreement in the
Registration Statement it had originally filed on December 27, 2005 in
connection with a separate business combination transaction.
In response to the Staff's comment, the Purchase Agreement (which
contains the registration rights provisions negotiated by Soft Link) is
attached as Exhibit 4.1 to Amendment No. 2.
2. WE NOTE THAT SHARES ISSUED IN THE UNREGISTERED BUSINESS COMBINATION
TRANSACTION OF JANUARY 2006 WERE INCLUDED IN THE MOST RECENT AMENDMENT
OF THE REGISTRATION STATEMENT. PLEASE ALSO PROVIDE US WITH YOUR
ANALYSIS AS TO WHY THE JANUARY 2006 ISSUANCE TRANSACTION SHOULD NOT BE
INTEGRATED WITH THE RESALE OFFERING THAT IS THE SUBJECT OF YOUR
REGISTRATION STATEMENT. WE NOTE THAT RULE 152 UNDER THE SECURITIES ACT
DOES NOT APPEAR TO BE AVAILABLE AS IT CONTEMPLATES THE FILING OF A
REGISTRATION STATEMENT SUBSEQUENT TO A PRIVATE PLACEMENT.
As discussed above, the shares issued to Soft Link in January 2006 were
issued pursuant to the Purchase Agreement executed by Infocrossing and
Soft Link on December 16, 2005. Therefore, Soft Link was committed to
the transaction with Infocrossing prior to the time that the original
Registration Statement was filed with the Commission on December 27,
2005.
SELLING STOCKHOLDERS, PAGE 25
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3. PLEASE REFER TO PRIOR COMMENT 2 FROM OUR LETTER DATED JANUARY 20, 2006.
PLEASE REVISE TO DISCLOSE THE NATURAL PERSON(S) WHO EXERCISE VOTING
AND/OR DISPOSITIVE POWERS OVER THE SHARES BEING OFFERED BY SOFT LINK
SOLUTIONS, INC. WE NOTE YOUR DISCLOSURE THAT SANDLER INVESTMENTS
PARTNERS, LP, SANDLER CAPITAL MANAGEMENT AND MICHAEL MAROCCO MAY EACH
BE DEEMED TO BENEFICIALLY OWN THE SHARES HELD BY SOFT LINK. HOWEVER,
THIS DISCLOSURE DOES NOT IDENTIFY THE NATURAL PERSON(S) WHO EXERCISE
VOTING AND/OR DISPOSITIVE POWERS OVER THESE SHARES.
The Registration Statement has been revised in response to the Staff's
comment to clarify that Michael Marocco is the natural person that
exercises voting and dispositive power over the shares issued to Soft
Link. Please see the revised disclosure under the heading "Selling
Stockholders" beginning on page 15 of Amendment No. 2.
* * * * *
Please address all notices and orders regarding this letter and
enclosed materials to me, as counsel for the Company. My contact information is
provided above.
Sincerely,
/s/ Barbara L. Becker
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Barbara L. Becker
cc: Nicholas J. Letizia,
Infocrossing, Inc.