CUTLER LAW GROUP
Attorneys at Law M. Richard Cutler, Esq.*
9814 Crystal Blvd M Gregory Cutler, Esq.**
Baytown, Texas 77521
(281) 918-0040 Tel (800) 836-0714 Fax *Admitted in California & Texas
www.cutlerlaw.com **Admitted in Florida
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September 18, 2009
Kevin Dougherty, Division of Corporate Finance
Barbara C. Jacobs, Assistant Director
Securities and Exchange Commission
100 F Street, NE
Washington, D.C. 20549-4561
Re: Competitive Technologies, Inc.
Amendment No. 1 to Registration Statement on Form S-1
Filed August 10, 2009
File No. 333-161216
Gentlemen and Ladies:
This letter accompanies Amendment No. 1 filed on September 18, 2009 to the
Registration Statement on Form S-1 originally filed by Competitive Technologies,
Inc. (the "Company") on August 10, 2009. We are in receipt of your
correspondence dated September 9, 2009, and addressed to John B. Nano, President
and Chief Executive Officer of the Company. This letter includes responsive
comments to your letter. As a courtesy, we have attached to this letter a copy
of the filing marked to show changes from the original filing.
The responses contained herein correspond in Part and Number to the
comments in your letter of September 9, 2009. The page numbers reflect the page
numbers in the courtesy copies of the Amended Registration Statement on Form S-1
sent to your office.
INCORPORATION BY REFERENCE, PAGE 13
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1. You have incorporated by reference not only the previously filed documents
listed in this section, but also future filings made under Exchange Act
sections you reference, until the offering is complete or terminated. Form
S-l does not permit incorporation by reference of future filings.
Consistent with Rule 411, information required in your prospectus may only
be incorporated by reference to the extent permitted or required by an item
of the applicable form. See Section V.B.3 of the Securities Offering
Reform, SEC Release No, 33-8591. For further information, see also
Questions 113.02 and 113.05 of the Division of Corporation Finance's
Compliance and Disclosure Initiatives for the Securities Act Forms.
- We have deleted all references throughout the amended registration
statement to incorporation by reference of any future filing or document.
See, e.g., page 13 of the amended registration statement.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES, PAGE II-3
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EXHIBIT 5.1
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2. The reference to the jurisdictions where Mr. Cutler is admitted to practice
may be read to imply that the opinion is provided as to matters of Texas
and California or is limited to such matters. To clarify that the opinions
expressed are provided with respect to the law of Delaware, please expand
to so indicate. Also, revise the penultimate paragraph of the legality
opinion to state that the shares of common stock covered by the
registration statement will be legally "issued."
- We have revised the opinion to reflect Delaware and United States law and
corrected the typographical error in the penultimate paragraph.
EXHIBIT 10.21
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3. This exhibit, as incorporated by reference from Exhibit 10.1 to a Form S-K
filed on July 30, 2009, has portions redacted, marked as "confidential
pricing information omitted." However, you have not indicated in the filing
that the confidential portions have been so omitted and filed separately
with the Commission. See Securities Act Rule 406(b). Moreover, you have not
marked the exhibit index of either the Form 8-K or this Form S-l to
indicate that portions of the exhibit have been omitted and filed
separately pursuant to a request for confidential treatment. At this time,
we are also unable to locate an application for confidential treatment that
you have submitted for this exhibit. Please advise.
- We have revised the reference in the exhibit index to indicate that
information relative to wholesale pricing has been omitted and filed
separately with the commission. We have also filed the request for
confidential treatment.
EXHIBIT 23.1
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4. We note the consent of your independent auditor to the incorporation by
reference of its audit report, as included in your Form 10-K for the fiscal
year ended July 31, 2008. The consent is dated August 10, 2009 and signed
by Mahoney Cohen & Company, CPA (Mahoney Cohen). However, in a Form 8-K
filed on January 15, 2009 you had previously disclosed that your auditor,
Mahoney Cohen, had been acquired by the New York practice of Mayer Hoffman
McCann P.C (MHM). Following its acquisition of Mahoney Cohen, you disclose
that MHM changed its name to MHM Mahoney Cohen
CPAs (MHM Mahoney Cohen). It is our understanding that Mahoney Cohen no
longer exists. Please have your auditor revise its audit report and consent
to indicate a signature of MHM Mahoney Cohen, CPAs (New York practice of
Mayer Hoffman McCann P.C.).
- As discussed with the Staff, to clarify the SEC's understanding of the
transaction that occurred between Mahoney Cohen & Company, CPA, P.C. and
Mayer Hoffman McCann P.C., effective December 31, 2008, the shareholders of
Mahoney Cohen & Company, CPA, P.C. became shareholders of Mayer Hoffman
McCann P.C., pursuant to an asset purchase agreement. The New York practice
of Mayer Hoffman McCann P.C. now operates under the name MHM Mahoney Cohen
CPAs. The corporate entity of Mahoney Cohen & Company, CPA, P.C. still
exists and is obligated to consent to opinions previously issued under
their name since they had provided the service. See Exhibit 23.1.
As requested by the Staff, we are confirming the foregoing by providing a
representation letter from Mahoney Cohen which will be filed as
"correspondence" separately confirming that the legal entity Mahoney Cohen
& Company, CPA continues to exist and retains legal liability for the
financial statements subject to the consent. That representation letter
reads as follows:
"September 18, 2008
Kevin Dougherty, Division of Corporate Finance
Barbara C. Jacobs, Assistant Director
Securities and Exchange Commission
100 F Street, NE
Washington, D.C. 20549-4561
Re: Competitive Technologies
Amendment No. 1 to Registration Statement on Form S-1 Filed August 10,
2009 File
No. 333-161216
Gentlemen and Ladies:
This is to confirm that Mahoney Cohen & Company, CPA, P.C.is still
incorporated in the State of New York and has legally changed its name
to 25 MAD LIQUIDATION, CPA, P.C. effective December 31, 2008 and is
responsible for its report dated October 28, 2008 relating to the
consolidated financial statements of Competitive Technologies, Inc.
and subsidiaries.
Stephen Schaefer
Shareholder of MHM Mahoney Cohen CPAs
The New York Practice of Mayer Hoffman McCann P.C.
An Independent CPA Firm"
ITEM 17. UNDERTAKINGS, PAGE II-6
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5. We note that you have included the undertaking required by Item 512(b) of
Regulation S-K, which is to be included if a registration statement
incorporates by reference any exchange act documents filed subsequent to
the effective date. As noted in prior comment 1, Form S-l does not provide
for incorporation by reference of subsequent periodic reports. All
documents must be specifically incorporated. Please remove this undertaking
as it does not appear appropriate.
- We have deleted the referenced undertaking.
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The staff is further advised that subsequent to the initial filing of the
Registration Statement, a private placement of common stock to the directors and
legal counsel of the issuer referenced in the "recent issuances of unregistered
securities" was unwound (with the shares physically returned to treasury)
pursuant to requirements of the NYSE Amex Equities Market. As a consequence,
many of the share numbers throughout the amendment to the registration statement
slightly changed in order to comply with their 19.99% limitation.
We will provide an appropriate request for acceleration upon completion of
your review and further discussions with you. Please feel free to call me at
any of the numbers listed on this letter if you have further questions or
comments.
Very truly yours,
/s/ M. Richard Cutler
M. Richard Cutler