Dolgenos Newman & Cronin LLP
1001 Avenue of the Americas, 12th Floor
New York, NY 10018
December 13, 2005
BY EDGAR CORRESPONDENCE
Securities and Exchange Commission
Division of Corporation Finance, Mail Stop 6010
Washington, D.C. 20549
Attention: Russell Mancuso
Branch Chief
Re: Avitar, Inc.
Preliminary Proxy Materials
Filed October 18, November 14,
November 22, December 5 and
December 13, 2005
File No. 1-15695
Letter dated December 6, 2005
Gentlemen:
On behalf of our client, Avitar, Inc. ("Avitar" or the "Company"), we are
responding to the comment contained in the staff's letter dated December 6, 2005
(the "Comment Letter") and the telephone conference we had with the staff
yesterday, and we are also providing disclosure for the revised Preliminary
Proxy Statement with a view toward facilitating your review.
Terms of September 2005 Private Placement
As mentioned in our letter dated December 7, 2005, in response to the comments
received, the Company withdrew its Registration Statement on Form S-3 (File No.
333-128549) by filing its application pursuant to Rule 477. In addition, the
Company is also renegotiating the terms of the transaction with the investors,
but these renegotiations do not extend to the basic economic terms of the
transaction. Specifically, the parties are renegotiating so that shareholder
approval will not be a condition to funding of the final $1 million of the
transaction and the rights of the investors will not be assignable until after
the required Registration Statement has been declared effective by the SEC.
In addition, the Company amended its Preliminary Proxy Materials by inserting in
Proposal No. 2 the following revised first paragraph under the heading "Terms of
September 2005 Private Placement":
"Terms of September 2005 Private Placement. The Company entered into the
September 2005 $3 million private placement of convertible notes and
warrants based upon a Securities Purchase Agreement with accredited
investors. The securities to be issued in the private placement are $3
million of 8% Secured Convertible Notes and Warrants to purchase 6,000,000
shares of the Company's Common Stock in exchange for gross proceeds of $3
million, of which $1 million was paid in the first closing on September 23,
2005. A second tranche of $1 million was paid after we filed a registration
statement with respect to the shares issuable upon conversion of the Notes
and exercise of the Warrants. On December 2, 2005, the Company applied to
the SEC to withdraw this registration statement. In addition, the Company
and the investors are renegotiating certain terms of the transaction so
that shareholder approval will not be a condition to funding of the final
$1 million of the transaction and assignability of the rights of the
investors will be further restricted. However, the Company and the
investors do not expect any change in the basic economic terms of the
transaction. The Company will file another registration statement with
respect to the shares issuable upon conversion of the Notes and exercise of
the Warrants (the "Registration Statement"). The third tranche of $1
million is to be paid when the Registration Statement is effective. The
Notes are convertible into Common Stock at 65% of the average of the three
(3) lowest intraday trading prices for the twenty (20) trading days
immediately prior to the notice of conversion and the Warrants are
exercisable at $0.25 per share."
In addition, the Company amended the Table in Proposal No. 2 by deleting the
following:
"Number of Shares underlying Notes for
September 2005 Private Placement
based on closing price on November 10, 2005 467,550,000 9,351,000
In lieu of such deletion, the Company substituted the following in the Table in
Proposal No. 2:
"Number of Shares underlying previously
Funded Notes in principal amount of
$2 million for September 2005 Private Placement
based on closing price on November 23, 2005 311,700,000 6,234,000
Number of Shares underlying Note to be funded
in future in principal amount of $1 million
for September 2005 Private Placement
based on closing price on November 23, 2005 155,850,000 3,117,000"
The Company understands and acknowledges that the review of its Preliminary
Proxy Materials does not affect or limit the review, or the scope or level of
review, of any or all subsequent filings of Registration Statements for
securities of the Company, whether on Form S-3, Form SB-2, Form S-1 or
otherwise. In addition, the Company delivered the attached letter.
It is important for the shareholders to receive the Proxy Statement well in
advance of the Annual Meeting, now re-scheduled for January 18, 2006.
Accordingly, the Company respectfully requests review so that it may mail and
file its Definitive Proxy Statement. Please call the undersigned at (212)
925-2800 if you have any questions.
Sincerely,
/s/Eugene M. Cronin
Eugene M. Cronin
cc: (via fax) Tom Jones, Examiner
AVITAR, INC.
65 Dan Road
Canton, MA 02021
December 13, 2005
BY EDGAR CORRESPONDENCE
Securities and Exchange Commission
Division of Corporation Finance, Mail Stop 6010
Washington, D.C. 20549
Attention: Russell Mancuso
Branch Chief
Re: Avitar, Inc.
Preliminary Proxy Materials
Filed October 18, November 14,
November 22, December 5 and
December 13, 2005
File No. 1-15695
Letter dated December 6, 2005
Gentlemen:
In connection with the above-referenced materials, the Company acknowledges
that:
o the Company is responsible for the adequacy and accuracy of the disclosure
in the filing;
o 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
o 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.
Sincerely,
Avitar, Inc.
By: /s/Peter P. Phildius
Peter P. Phildius,
Chairman & CEO
cc: Tom Jones, Examiner (By Fax)