JULIE M. KAUFER
310.728.3313/fax:
310.728.2313
jkaufer@akingump
November 4, 2004
VIA EDGAR AND OVERNIGHT DELIVERY
Jay S. Mumford, Esq.
Securities and Exchange Commission
450 Fifth Street
Washington, D.C. 20549-0306
Re: Universal Detection Technology
Amendment No. 1 to Registration Statement
on Form SB-2 filed September 23, 2004
File No. 333-117859
Dear Mr. Mumford:
On behalf of Universal Detection Technology, a California corporation, we
hereby respond to the comment letter of the Securities and Exchange Commission
dated October 8, 2004. In our letter, we refer to Universal Detection Technology
as the "COMPANY," to Amendment No. 2 to the Registration Statement as the
"REGISTRATION STATEMENT," to the Securities and Exchange Commission as the
"COMMISSION," to the Staff of the Securities and Exchange Commission as the
"STAFF," and to the Securities Act of 1933, as amended, as the "ACT." Paragraph
numbering used for each response set forth below corresponds to the paragraph
numbering used in the Staff's letter. The references to page numbers of the
Registration Statement are references to the pages of the marked version of the
Registration Statement, a copy of which we have enclosed.
SUMMARY
1. YOU STATE THAT IN MAY 2004, YOU UNVEILED YOUR FIRST FUNCTIONAL PROTOTYPE OF
YOUR ANTHRAX SMOKE DETECTOR "AVAILABLE FOR SALE." UNLESS YOU ARE SELLING
YOUR PRODUCT AT THIS TIME, PLEASE REVISE THIS DISCLOSURE.
The Company entered into its first purchase order for the Anthrax Smoke
Detector in the third quarter of fiscal 2004. Please refer to page 1 of the
Registration Statement.
Jay S. Mumford, Esq.
Securities and Exchange Commission
November 4, 2004
Page 2
2. WE NOTE YOUR RESPONSE TO COMMENT 8 REGARDING THE STATUS OF YOUR AGREEMENT
WITH JPL. PLEASE PROVIDE DISCLOSURE IN THE SUMMARY THAT THE JPL AGREEMENT
HAS EXPIRED, THAT THE PROJECT IS NOT COMPLETED AND JPL HAS ORALLY AGREED TO
WORK UNTIL THE REMAINING FUNDS ARE USED, AND ESTIMATE WHEN YOU BELIEVE THE
PROJECT WILL BE COMPLETED.
The Company has complied with the Staff's comment. Please refer to page 1
of the Registration Statement.
RISK FACTORS
MANAGEMENT HAS NO EXPERIENCE IN PRODUCT MANUFACTURING - PAGE 4
3. PLEASE MORE SPECIFICALLY EXPLAIN WHAT SERVICES KAL CONSULTANTS WILL BE
PROVIDING YOU, AND FILE YOUR AGREEMENT WITH KAL.
The Company has complied with the Staff's comment. Please refer to page 4
of the Registration Statement. Also, as disclosed, please note that
the agreement with KAL is an oral agreement.
WE USE A SIGNIFICANT PORTION OF OUR CASH ON HAND AND STOCK TO PAY CONSULTING
FEES - PAGE 6
4. REVISE TO CLARIFY HOW MUCH WAS PAID FOR EACH OF THE VARIOUS SERVICES.
The Company has complied with the Staff's comment. Please refer to page 6
of the Registration Statement.
PLAN OF OPERATION - PAGE 11
5. WE NOTE YOUR RESPONSE TO COMMENT 29. IN THE BUSINESS SECTION, PROVIDE A
SUMMARY DESCRIPTION OF CORPORATE DEVELOPMENTS, INCLUDING THE DEVELOPMENT OF
PAST PRODUCTS AND THE REVENUES GENERATED FROM THEM. YOU CAN ALSO DISCUSS
THE CHANGES IN MANAGEMENT AND OTHER CHANGES YOU DEEM RELEVANT OVER THE PAST
SEVERAL YEARS.
The Company has complied with the Staff's comment. Please refer to page 16
of the Registration Statement.
6. WE NOTE THAT YOU ARE TESTING WITH BENIGN BACTERIAL SPORES. EXPLAIN, IF
TRUE, THAT YOUR PRODUCT CANNOT DIFFERENTIATE BETWEEN DIFFERENT TYPES OF
BACTERIAL SPORES. DISCUSS THE LIKELIHOOD THAT YOUR PRODUCT WILL PRODUCE
FALSE POSITIVES FOR ANTHRAX WHENEVER CONCENTRATIONS OF OTHER TYPES OF
BACTERIAL SPORES, INCLUDING BENIGN ONES, ARE DETECTED IN THE AIR. DISCUSS
WHETHER THERE WILL NEED TO BE SOME OTHER TESTING DEVICE IN PLACE TO
DETERMINE WHETHER THE BACTERIAL SPORES ARE ACTUALLY ANTHRAX.
The Company has complied with the Staff's comment. Please refer to page 19
of the Registration Statement.
Jay S. Mumford, Esq.
Securities and Exchange Commission
November 4, 2004
Page 3
7. REVISE TO EXPLAIN WHETHER YOU WILL MARKET AND SELL YOUR PRODUCT WHILE YOU
ARE ENGAGING IN FIELD TESTING.
The Company has complied with the Staff's comment. Please refer to page 12
of the Registration Statement.
8. WE NOTE YOUR RESPONSE TO COMMENT 37. PLEASE QUANTIFY THE NUMBER OF
CONSULTANTS HIRED, THE AMOUNTS PAID TO THEM FOR THE TYPES OF SERVICES
PROVIDED. PLEASE EXPLAIN THE ABSENCE OF R&D EXPENDITURES FOR THE SIX MONTHS
ENDED JUNE 30, 2004.
The Company has complied with the Staff's comment. Please refer to pages 12
and 20 of the Registration Statement.
9. DISCLOSE HOW MUCH OF SG&A EXPENSE IS ALLOCATED TO EACH OF THE USES LISTED
IN THE PENULTIMATE PARAGRAPH.
The Company has complied with the Staff's comment. Please refer to page 12
of the Registration Statement.
LIQUIDITY AND CAPITAL RESOURCES - PAGE 13
10. WE NOTE YOUR RESPONSE TO COMMENT 39. PLEASE IDENTIFY WHICH OF THESE LOANS
ARE IN DEFAULT, AND BY HOW MUCH. ALSO DISCLOSE THE AMOUNT OF ACCRUED BUT
UNPAID SALARY CURRENTLY DUE YOUR CEO.
The Company has complied with the Staff's comment. Please refer to pages 13
and 14 of the Registration Statement.
BUSINESS - PAGE 16
11. WE NOTE YOUR DISCLOSURE ABOUT YOUR BELIEF THAT YOUR PRODUCT WILL PROVIDE
ACCURATE RESULTS IN A TIMELY FASHION. PLEASE EXPAND TO DISCUSS POTENTIAL
PROBLEMS YOU MAY ENCOUNTER WITH THE TECHNOLOGY, INCLUDING THE FALSE
POSITIVES AND NON-DETECTION. ALSO QUANTIFY WHAT YOU MEAN BY A "TIMELY
FASHION."
The Company has complied with the Staff's comment. Please refer to page 18
of the Registration Statement.
MARKETING AND SALES - PAGE 19
12. PLEASE UPDATE THIS SECTION WITH A DISCUSSION OF YOUR ENGAGEMENT OF KAL
CONSULTANTS.
The Company has complied with the Staff's comment. Please refer to page 19
of the Registration Statement.
Jay S. Mumford, Esq.
Securities and Exchange Commission
November 4, 2004
Page 4
MANUFACTURING - PAGE 19
13. PLEASE UPDATE THIS SECTION WITH A DISCUSSION OF THE THIRD PARTY
MANUFACTURER YOU HAVE ENGAGED TO CREATE YOUR PROTOTYPE AND POTENTIAL
PRODUCTS.
The Company has complied with the Staff's comment. Please refer to page 20
of the Registration Statement.
RESEARCH AND DEVELOPMENT - PAGE 19
14. PLEASE REVISE THIS SECTION TO MORE CLEARLY IDENTIFY WHERE YOUR R&D DOLLARS
ARE SPENT. IT APPEARS THAT ONLY A PORTION OF THIS WAS SPENT WITH JPL. ALSO,
EXPAND TO STATE THE AMOUNT SPENT ON R&D TO DATE FOR 2004.
The Company has complied with the Staff's comment. Please refer to page 20
of the Registration Statement.
COMPETITION - PAGE 20
15. PLEASE UPDATE THIS SECTION REGARDING CEPHEID'S PROGRESS IN YOUR POTENTIAL
MARKET AS YOU DESCRIBE IN YOUR RISK FACTORS.
The Company has complied with the Staff's comment. Please refer to page 21
of the Registration Statement.
DIRECTORS AND EXECUTIVE OFFICERS - PAGE 23
16. WE NOTE YOUR RESPONSE TO COMMENT 49. STATE THE AVERAGE NUMBER OF HOURS PER
WEEK MR. TIZABI DEVOTES TO RUNNING YOUR COMPANY.
The Company has complied with the Staff's comment. Please refer to page 23
of the Registration Statement.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS - PAGE 27
17. WE NOTE YOUR RESPONSE TO COMMENT 58. PLEASE CONFIRM THAT NONE OF THE
WARRANTS THAT WERE REPRICED WERE HELD BY AFFILIATES.
The Company confirms that none of the repriced warrants were held by
affiliates of the Company.
DESCRIPTION OF SECURITIES - PAGE 36
18. PLEASE PROVIDE A DESCRIPTION OF THE TERMS OF THE WARRANTS IN THIS SECTION.
The Company has complied with the Staff's comment. Please refer to pages 35
through 36 of the Registration Statement.
Jay S. Mumford, Esq.
Securities and Exchange Commission
November 4, 2004
Page 5
EXHIBITS
19. PLEASE FILE THE 2003 STOCK INCENTIVE PLAN AS AN EXHIBIT.
The Company has complied with the Staff's comment. Please refer to page
II-6 of the Registration Statement, the Exhibit Index, and Exhibit 4.1.
ACCOUNTING COMMENTS
GENERAL
20. WE REFER TO PRIOR COMMENT 3. WE SEE THAT YOUR SOLE PRODUCT IS NOT YET READY
FOR MARKET, THAT YOU DO NOT APPEAR TO HAVE MARKETING OR MANUFACTURING
SYSTEMS OR INFRASTRUCTURE IN PLACE AND, BASED ON YOUR FINANCIAL STATEMENTS,
YOUR PRIMARY ACTIVITIES APPEAR TO BE FUND RAISING/INVESTOR RELATIONS
RELATED. DISCLOSURES THROUGHOUT THE FILING (FOR INSTANCE, THE PLAN OF
OPERATION BEGINNING ON PAGE 11) STRONGLY SUGGEST THAT YOU ARE IN FACT
DEVELOPING A NEW BUSINESS. IN LIGHT OF THE EXTENSIVE DISCLOSURES ABOUT THE
STATUS OF YOUR BUSINESS, EXPLAIN TO US IN MORE THOROUGH DETAIL WHY
DEVELOPMENT STAGE REPORTING IS NOT REQUIRED. ALSO, EXPLAIN HOW YOU
CONSIDERED EACH OF THE FACTORS IDENTIFIED IN PARAGRAPH 9 TO FAS 7. THE
INFORMATION PROVIDED IN THE EXISTING RESPONSE IS TOO GENERAL FOR US TO
AGREE OR DISAGREE WITH YOUR POSITION.
The Company notes the Staff's comment. Management of the Company does not
believe that the Company has entered the development stage. As previously
discussed, paragraph 8 of FAS 7 states:
"an enterprise will be considered to be in the development stage if it is
devoting substantially all of its efforts to establishing a new business and
either of the following conditions exists:
a. Planned principal operations have not commenced.
b. Planned principal operations have commenced, but there have been no
significant revenue therefrom."
The Company continues to operate in substantially the same business as it
had prior to the sale of its wholly owned subsidiary, Dasibi Environmental
Corp., which we refer to as Dasibi, the air monitoring equipment business.
Management has chosen to retool the same equipment previously manufactured
and sold by Dasibi for a specific purpose, with certain software and hardware
added. In fact, the initial testing by JPL was done using Dasibi Model 7001s
from existing inventory. This process is a natural progression of the Company's
business. Rather than continue to manufacture and sell the Model 7001, expending
significant resources, the Company has chosen to focus efforts on the next
generation product, an air monitoring device, commonly referred to as its
Anthrax Smoke Detector.
Jay S. Mumford, Esq.
Securities and Exchange Commission
November 4, 2004
Page 6
The Company is party to a license agreement with Dasibi allowing it a
worldwide (excluding China) license to (a) make, use, develop, practice and
otherwise exploit all products, inventions, devices, software, methods,
processes, formulas or other technologies owned by Dasibi or which Dasibi has a
license to exploit and all intellectual property rights inherent therein and (b)
to manufacture, market, distribute, sell and license products or services
resulting from the exploitation of the properties. This license allows the
Company to continue to operate in the same business as it had when it owned
Dasibi, creating, modifying, and selling the same products, air monitoring
devices.
Management acknowledges the Staff's comment regarding the factors
identified in paragraph 9 to FAS 7. The Company is focusing on many of the items
described in paragraph 9. However, these processes are not exclusive to
development stage companies, but rather are also part of the everyday operations
of operating companies. Since management does not believe the Company is
devoting its efforts to establishing a new business, the primary criteria for
determining if an entity is a development stage enterprise, the activities
described in paragraph 9 appear to be tangential rather than a determining
factor in the Company's status as a development stage enterprise.
CONSOLIDATED BALANCE SHEET
21. WE REFER TO PRIOR COMMENT 62. PLEASE EXPAND THE SUPPLEMENTAL SCHEDULE TO
INDICATE THE METHOD OF PREPAYMENT FOR EACH ITEM (FOR INSTANCE, CASH OR
COMMENT STOCK). IF FOR OTHER THAN CASH, TELL US HOW THE AMOUNT DEFERRED WAS
DETERMINED.
The Company has complied with the Staff's comment. The Company has enclosed
supplemental schedules of prepaid expenses, which indicate the method of
prepayment for each item. Stock issued for services is valued at the fair market
of the stock on the date issuable, unless otherwise indicated. Warrants issued
for services are valued at the fair value of the warrants using the
Black-Scholes model for American options. The fair value is amortized over the
term of the service period.
NOTE 1 - BUSINESS ACTIVITY
GOING CONCERN AND MANAGEMENT'S PLANS
22. WE REFER TO PRIOR COMMENT 67. WE NOTE MANAGEMENT BELIEVES SUFFICIENT FUNDS
ARE AVAILABLE TO FUND OPERATING EXPENSES, BUT THAT RESOURCES ARE NOT
ADEQUATE TO REPAY DEBT CURRENTLY DUE AND BECOMING DUE IN THE NEXT TWELVE
MONTHS. EXPAND THIS AREA TO ADDRESS MANAGEMENT'S INTENTIONS TOWARD THE DEBT
REPAYMENT OBLIGATIONS AND ANY ARRANGEMENTS MADE WITH THE PARTIES INVOLVED.
The Company has complied with the Staff's comments. Please refer to page
F-11 of the Registration Statement.
Jay S. Mumford, Esq.
Securities and Exchange Commission
November 4, 2004
Page 7
NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
VALUATION OF THE COMPANY'S COMMON STOCK
23. WE REFER TO PRIOR COMMENT 71. THE EUROPEAN MODEL ASSUMES THAT OPTIONS CAN
ONLY BE EXERCISED ON THE EXPIRATION DATE. YOU APPEAR TO JUSTIFY USE OF THAT
MODEL BASED ON AN ASSUMPTION THAT GRANTEES WILL EXERCISE THEIR OPTIONS AT
EXPIRATION, IF AT ALL. UNLESS YOUR OPTION AGREEMENTS CONTAIN A PROVISION
RESTRICTING EXERCISE TO THE EXPIRATION DATE, IT IS NOT CLEAR WHY THE
EUROPEAN MODEL IS APPROPRIATE IN YOUR CIRCUMSTANCE. EITHER PROVIDE MORE
SPECIFIC AND DETAILED SUPPORT DEMONSTRATING THAT THE EUROPEAN MODEL IS
APPROPRIATE OR REVISE TO USE A MODEL THAT ENCOMPASSES ASSUMPTIONS THAT ARE
NOT INCONSISTENT WITH THE UNDERLYING TERMS OF YOUR OUTSTANDING OPTIONS.
Management notes the Staff's comment and has revised its policy and
disclosures to state that the Company uses the Black-Scholes model for American
options, which calculates the value of an early exercise "option" and adds it to
the value calculated by the Black-Scholes Modified European model to generate
the value of an American option. Please refer to pages F-13, F-25, F-26, F-29
and F-31 of the Registration Statement. This change does not result in a
material difference in the value of the Company's outstanding options and
warrants and no adjustment has been made to the value of those options and
warrants.
FAIR VALUE OF FINANCIAL INSTRUMENTS
24. WE REFER TO COMMENT 73. FOR DEBT, FAIR VALUE IN THE MARKET PLACE WOULD
GENERALLY CONSIDER FACTORS SUCH AS REPAYMENT TERMS/SCHEDULES, INTERESTS
RATES, COLLATERAL VALUE AND BORROWER CREDIT WORTHINESS. YOU HAVE A HISTORY
OF DEFAULTS; APPARENTLY HAVE LITTLE OR NO AVAILABLE BORROWING CAPACITY; AND
HAVE SUBSTANTIAL CURRENT DEBT WHERE THE SOURCE OF REPAYMENT IS NOT CLEAR.
AS WELL, IT APPEARS THAT YOUR LIQUID RESOURCES ARE MOSTLY RESTRICTED IN
THAT THOSE RESOURCES MAY NOT BE USED TO SATISFY MOST (IF NOT ALL) OF YOUR
EXISTING INDEBTEDNESS. YOUR RATIONALE ABOUT THE FAIR MARKET VALUE OF YOUR
DEBT DOES NOT APPEAR TO CONSIDER CREDIT QUALITY OR OTHER NEGATIVE FACTORS
ABOUT YOUR ABILITY TO TIMELY REPAY OUTSTANDING DEBT. FAIR VALUE, AS DEFINED
IN FAS 107, IS THAT AMOUNT AT WHICH AN INSTRUMENT COULD BE EXCHANGED IN A
CURRENT TRANSACTION BETWEEN A WILLING BUYER AND A WILLING SELLER. WITH
RESPECT TO YOUR DEBT, IT APPEARS UNLIKELY THAT YOU HAVE "WILLING BUYERS" -
THAT IS, THIRD PARTIES WILLING TO LEND TO YOU OR OTHERWISE REFINANCE
EXISTING INDEBTEDNESS. ACCORDINGLY, WE CONTINUE TO BELIEVE THAT DISCLOSURE
PURSUANT TO PARAGRAPH 14 TO FAS 107 IS RELEVANT IN YOUR CIRCUMSTANCES.
REVISE OR FURTHER ADVISE.
Management believes that the Company does have "willing buyers" willing to
lend or otherwise refinance existing indebtedness and further believes that its
debt is reported appropriately at fair value.
During the year ended December 31, 2003, the Company raised $450,000 of new
debt financing as well as gross proceeds of $3,319,255 of equity funding,
clearly demonstrating "willing buyers" of debt and equity positions in the
Company. During that time, the Company made payments on its notes payable of
$95,000. It also converted $573,805 of principal and
Jay S. Mumford, Esq.
Securities and Exchange Commission
November 4, 2004
Page 8
interest on notes payable to common stock and was able to negotiate new terms on
$320,000 of outstanding debt, while reaching verbal agreements for extension of
$567,526 of additional debt.
Further, the Company has received gross proceeds of $2,228,601 from
issuance of its common stock during the six months ended June 30, 2004, which is
not restricted as to use, and has made payments on its notes payable of $260,000
during that same period.
During July 2004, the Company completed a private placement, which
generated gross proceeds of $3,000,000. The use of proceeds is restricted as to
payment of then current debts, but provides funding for future operations. This
will allow for payment of the Company's debt obligations from proceeds of other
debt and equity financings.
During the three months ended September 30, 2004, $33,000 of interest
related to outstanding debt was converted to common stock and the Company
entered into extension agreements for $640,000 of debt, extending the terms of
such liabilities. The Company remains subject to verbal extensions for an
additional $407,526 of notes payable.
The Company believes that the aforementioned transactions clearly indicate
that the Company has "willing buyers" willing to lend to it or otherwise
refinance indebtedness. Thus, the Company believes that debt is practicably
estimable and is stated at fair value.
NOTE 13 - RELATED PARTY TRANSACTIONS
25. WE REFER TO PRIOR COMMENT 84. PLEASE CLARIFY IN THIS FOOTNOTE THAT MR.
TIZABI AND MR. MOUSSAVI TOGETHER OWN 100% OF ASTOR.
The Company has complied with the Staff's comment. Please refer to page
F-32 of the Registration Statement.
If you have questions or require any additional information or documents,
please do not hesitate to contact me at (310) 728-3313.
Very truly yours,
/s/ Julie M. Kaufer
-----------------------------
Julie M. Kaufer