MAIL STOP 03-06
December 7, 2004
Elias Vamvakas, Chief Executive Officer
OccuLogix, Inc.
2600 Skymark Drive, Unit 9, Suite 201
Mississauga, Ontario
Canada L4W 5B2
RE: OccuLogix, Inc.
Registration Statement on Form S-1, Amendment No. 4
Commission File No. 333-118204
Filed on December 6, 2004
Dear Mr. Vamvakas:
We have reviewed your filing and have the following comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
General
1. We note that the price range of the offered stock has been
revised
from between $8 and $10 to between $10 and $12. We also note that
you disclosed for the first time that John Cornish has been your
vice
president of operations since September 2004 and a director from
April 1997 until September 2004. Please explain in writing why
you
failed to disclose this information regarding Mr. Cornish in
previous
filings with us. Where your disclosure refers to Mr. Cornish (in
the
"Use of Proceeds" and "Certain Relationships" sections, for
example),
identify him as a former director. We note that you also disclose
for the first time the extent to which the proceeds will be used
to
pay related parties. Confirm that you will recirculate given
these
material changes to the disclosure and the changes required by the
comments below. Since we have issued a number of comments
throughout
the examination process in this area, we remind you to fully and
accurately disclose transactions regarding all affiliates and
interested parties.
2. We note in the "Use of Proceeds" section you state that
Apheresis
Technologies receives "a 5% surcharge, based on cost of commercial
products sold, on all products we sell." In the "Certain
Relationships" section, you state that you have agreed to "pay 5%
of
our cost of components of the RHEO System." Revise to reconcile
the
disclosure, and expand the "Certain Relationships" disclosure to
state how much you have paid to Apheresis Technologies pursuant to
this agreement since 2002. Also expand the "Certain
Relationships"
section to discuss in that section all related party transactions
and
amounts paid to Mr. Cornish and/or Apheresis for all purposes and
pursuant to all agreements over the past three years.
Summary Historical and Pro Forma Consolidated Financial Data -
Page
8.
3. We are unable to reconcile to the amounts presented for cash,
working capital, long-term debt and total liabilities in the pro
forma as adjusted column. Please include footnotes to the table
to
disclose all transactions reflected in the pro forma as adjusted
balance sheet amounts.
Business - Page 46
4. We note that Apheresis Technologies was spun off from you and
has
been managed by Mr. Cornish. Please describe the terms of the
spin-
off transaction and its business purpose. Describe the main
assets
Apheresis had when it was spun off. Disclose any liabilities you
assumed during this transaction and any arrangements you made with
respect to its operations and/or cost sharing with the company.
Facilities - Page 66
5. Expand to disclose whether TLC Vision continues to have any
ownership interest in the property described in the first
paragraph
and, if so, explain.
6. Expand to identify the "clinical trial personnel" that are
housed
in Florida. Briefly describe the facility.
Management - Page 71
7. We note that Mr. Cornish is currently working as the president
of
Apheresis Technology and as your Vice President of Operations.
Please disclose the amount of time he spends on Apheresis
Technology`s business and yours.
Employment Agreements - Page 77
8. Please describe your employment agreement with John Cornish and
file it as an exhibit. In addition, describe in detail any other
compensation arrangements with Mr. Cornish. We note that Mr.
Cornish, through Apheresis Technology, collects a 5% surcharge on
all
products you sell; that he receives from you, as reimbursement,
80%
of the salary and benefits he is supposed to get from Apheresis
Technology, which amount to $100,000; and that he received 80,000
options for unspecified services.
9. Disclose the material terms of consulting agreements you
entered
into with other parties. We note, for example, agreements with
Richard Davis and Sue Howard.
Certain Relationships and Related Party Transactions - Page 84
10. Please describe in much more detail the arrangement you made
with
Rheogenx Biosciences Corporation. Disclose the role Rheogenx and
you
will undertake in developing non-ophthalmic use of RHEO System,
the
ownership of any newly developed technology, and how the costs and
profits will be shared. File any agreements as exhibits.
Principal and Selling Stockholders - Page 85
11. We note your response to prior comment 7. Please state in the
prospectus that none of the selling stockholders are registered
broker-dealers or affiliates of registered broker-dealers.
12. Given that Mr. Cornish is an officer and was a director for
years, the shares beneficially owned by him and his family members
should be included under the "Directors, Officers and 5%
Stockholders" section, rather than the "Other Selling
Stockholders."
Unaudited Pro Forma Consolidated Financial Statements - Page F-52
13. Your use of the terms "future income taxes recoverable",
"future
tax liability" and "future tax income" are not consistent with
SFAS
109 and may be confusing to investors. Do these amounts represent
an
income tax benefit and a deferred tax liability? Please revise to
use terms that are consistent with SFAS 109.
14. In addition, please address the following relating to your
income
tax adjustments:
* As it appears that you are recording a deferred tax liability at
the date the Reorganization is consummated, please explain why the
company would reflect a tax benefit in its pro forma statements of
operations. Cite the guidance in SFAS 109 on which you based your
accounting.
* Explain why the offset to the tax liability described on page F-
58
has been allocated to goodwill on the pro forma balance sheet.
15. Notwithstanding the previous comment, tell us why given the
company`s history of losses you believe it would be appropriate to
reflect any tax benefit on the pro forma statements of operations.
Address why such an adjustment would be factually supportable.
16. As applicable, revise the appropriate sections of the filing
to
address these comments, including the summary historical and pro
forma consolidated financial data on page 8.
* * *
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review. Please
understand that we may have additional comments after reviewing
your
amendment and responses to our comments.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
You may contact Dennis Hult at (202) 942-2812 or Martin
James,
Senior Assistant Chief Accountant, at (202) 942-1984 if you have
questions regarding comments on the financial statements and
related
matters. Please contact S. Richard Lee at (202) 942-2854 or the
undersigned at (202) 942-1880 with any other questions.
Sincerely,
Peggy Fisher
Assistant Director
cc: Andrew J. Beck, Esq.
Torys LLP
(fax: 212-682-0200)
Marjorie Sybul Adams, Esq.
Piper Rudnick LLP
(fax: 212-884-8517)
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OccuLogix, Inc.
December 7, 2004
Page 5