[Letterhead of Eilenberg & Krause LLP]
April 15, 2005
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
Attention: Mr. Daniel Gordon, Branch Chief
Mr. Martin James, Senior Assistant Chief Accountant
Mr. Tom Dyer, Staff Accountant
Re: Life Medical Sciences, Inc.
Form 10-KSB for the year ended December 31, 2004 File
No. 000-20580
Gentlemen:
We are counsel to the above-referenced registrant (the "Company"). Set
forth below are the Company's responses to the comments contained in the letter
from the Staff dated March 24, 2005 (the "Staff Letter"). For your convenience,
the captions and numbers of the responses correspond to the captions and numbers
of the comments contained in the Staff Letter.
As discussed, following the Staff's review of this letter and resolution
of all comments, the Company will file an amendment to its annual report on Form
10-KSB for the year ended December 31, 2004 (the "Amendment") reflecting the
revised disclosure.
Form 10-KSB for the Fiscal Year Ended December 31, 2004
Item 8A. Controls and Procedures
1. The disclosure will be revised in the Amendment to (i) refer to the
correct Exchange Act rules governing disclosure controls and
procedures, which are Rules 13a-15(e) and 15d-15(e), (ii) address
the certifying officer's conclusions regarding the effectiveness of
the Company's disclosure controls and procedures and (iii) to
substitute after the word "effective" language similar in all
material respects to the language contained in the two-sentence Rule
13a-15(e) definition of "disclosure controls and procedures". A new
paragraph describing inherent limitations in the design and
operation of control systems will be included as well. Attached as
Exhibit 1 is revised disclosure that the Company intends to include
in the Amendment in response to the Staff's comment.
Securities and Exchange Commission
April 15, 2005
Page 2
2. As required by Item 308(c) of Regulation S-B, the disclosure will be
revised in the Amendment to indicate that there was no change in the
Company's internal control over financial reporting that occurred
during the quarter ended December 31, 2004 that has materially
affected or is reasonably likely to materially affect the Company's
internal control over financial reporting.
Statements of Operations and Statements of Cash Flows - Pages F-4 and F-6
3. As indicated in NOTE G, the Company has participated in a program
established by the State of New Jersey entitled Tax Benefit Transfer
Program under which accumulated loss carryforwards may be sold with
the proceeds used to fund operating expenses. Cash flows from these
transactions do not represent either an investment in or financing
provided to the Company. Under SFAS 95, as amended, cash flows from
investing activities include making and collecting loans and
acquiring of debt or equity instruments and property, plant and
equipment and other productive assets, that is, assets held for or
used in production of goods or services by the enterprise. Cash
flows from financing activities include obtaining resources from
owners and providing them with a return on, and a return of, their
investment; receiving restricted resources that by donor stipulation
must be used for long-term purposes; borrowing money and repaying
amounts borrowed, or otherwise settling the obligation and obtaining
and paying for the resources obtained from creditors on long-term
contracts. Cash flows from operations include all transactions and
other events that are not defined as investing or financing
activities. The Company believes that the sale of the State tax
NOL's is analogous to a tax refund which arose from prior years'
operations of the Company and is occasioned by the reduction in both
the NOL and the valuation allowance against the deferred tax
benefit. Therefore the impact of the sale of the State tax NOL's is
appropriately presented as a benefit for income taxes in the
Statement of Operations. The treatment as a benefit for income taxes
on the Statement of Operations is consistent with the Company's
prior filings. Although the Company is not aware of specific
accounting guidance addressing this type of transaction, it has
observed other New Jersey company filings, which have reflected the
sale of the NJ State tax NOL's in the same fashion.
Note C. Acquired Technology - Page F-9
4. As described in NOTE F (1), the Acquired Technology was purchased
for approximately 6,896,000 shares of the Company's restricted
common stock. The fair value of the technology of $344,000 includes
(i) $330,000, representing the estimated fair value of the shares
(the estimated fair value is derived from a contemporaneous private
placement of Series C Convertible Preferred Stock and related
warrants described in NOTE F (2)), (ii) $11,000 in
transaction-related costs and (iii) $3,000 representing the fair
value of the options issued as a finder's fee to Dr. Gere diZerega
as described in the referenced footnote.
Securities and Exchange Commission
April 15, 2005
Page 3
Prior to the acquisition of the technology and the Series C
financing, the then $.20 per share market value of the Company's
common stock was considered along with recognizing that the
Company's stock was thinly traded (averaging 9,800 shares per day
from January 1, 2003 through April 1, 2003). The Company believed
that the Series C financing was a true indicator of the underlying
fair values. As more fully discussed in Note F[2], the Company
completed the Series C financing at approximately the same time.
604,000 units were sold at $1.20 per unit in the Series C financing.
Each unit consisting of one share of Series C preferred stock
convertible into 10 shares of common stock and two warrants
exercisable for common stock.
The Company computed the fair value of the two warrants issued in
the Series C financing using the $0.38 quoted market price of the
common stock on March 31, 2003. The warrants had a strike price of
$.12 per warrant. The fair values of the warrants (approximately
$0.30 and $0.26) were computed using the Black Scholes pricing model
and the fair value of the preferred stock was based on the
underlying common stock into which it was convertible representing
40% of the allocated proceeds.
In accounting for the Series C financing, the Company allocated the
relative fair values to the preferred stock and warrants. The amount
ascribed to the preferred stock (based on the underlying common
stock into which it was convertible) was approximately $.0478 per
share. The Company concluded that the amount recorded of $330,000
(6,895,561 restricted shares issued multiplied by $.0478) was the
fair value of the polymer technology based upon the underlying fair
value of the common stock in an arms length transaction with third
parties and based upon management's assessment of the fair value of
the technology.
In selecting a useful life of 5 years, the Company considered the
stage of development, the estimated period during which patent
protection could be enforced, which would go well beyond five years
from the acquisition date, the development cycle time for medical
devices of the type envisioned by the Company based on such
technology, as well as potential technology obsolescence over time.
The Company notes the Staff's request to revise future filings and
will incorporate appropriate disclosure on how the Company
determined the fair value of the acquired technology and the useful
life of the polymer technology beginning with the first quarter
ended March 31, 2005 10-QSB filing.
5. The fair value of the options to purchase 100,000 shares of common
stock issued to Dr. diZerega as a finder's fee was determined to be
$3,000 at the time of the transaction using the Black Scholes
pricing model. As indicated above, this amount was included in the
calculation of the fair value of the Acquired Technology.
Securities and Exchange Commission
April 15, 2005
Page 4
The Company notes the Staff's request to revise future filings and
will incorporate appropriate disclosure on how the Company accounted
for the grant of the options to Dr. diZerega beginning with the fist
quarter ended March 31, 2005 10-QSB filing.
Note F. Stockholders' Equity
(4) Options - Page F-11
6. The Company did not record compensation expense in connection with
the issuance on April 23, 2004 of the referenced option to purchase
50,000 shares of common stock for the following reasons: 1) the
grant was in recognition of past services rendered by the director
while serving as a director; 2) the recipient was a member of the
Company's Board of Directors on the date of the grant; and 3) the
exercise price for the shares covered by the grant was equal to the
market price on the date of the grant.
Exhibit 31.1
7. In accordance with the Staff's comment, the Amendment will include
the entire filing together with the certification of the Company's
CEO/CFO in the form currently set forth in Item 601(b)(31) of
Regulation S-B, as adjusted in accordance with Section III. E. of
SEC Release No. 33-8238 regarding the omission of certain
information relating to internal control over financial reporting.
Attached as Exhibit 2 is the form of exhibit 31 certification that
will be included in the Amendment.
Attached as Exhibit 3 is an Explanatory Note that the Company intends to
include in the Amendment immediately prior to Item 1. Business Description. The
Explanatory Note describes the changes effected by the Amendment, which includes
some non-substantive changes in addition to those requested by the Staff.
Please contact the undersigned at (212) 986-9700 should you have any
comments on the information provided herein or if we can furnish any additional
information or otherwise be of assistance.
Very truly yours,
/s/ Keith Moskowitz
Keith Moskowitz
cc: Robert Hickey, CEO
Life Medical Sciences, Inc.
Michael Gawley, CPA
Eisner LLP
EXHIBIT 1
Item 8A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
The chief executive officer who is also the chief financial officer, after
evaluating the effectiveness of the Company's "disclosure controls and
procedures" (as defined in the Securities Exchange Act of 1934 Rules 13a-15(e)
and 15d-15(e); collectively, "Disclosure Controls") as of the end of the period
covered by this annual report (the "Evaluation Date") has concluded that as of
the Evaluation Date, our Disclosure Controls were effective to provide
reasonable assurance that information required to be disclosed in our reports
filed or submitted under the Securities Exchange Act of 1934 is recorded,
processed, summarized and reported within the time periods specified by the SEC,
and that material information relating to our company and any consolidated
subsidiaries is made known to management, including the chief executive officer
and chief financial officer, particularly during the period when our periodic
reports are being prepared to allow timely decisions regarding required
disclosure.
In connection with the evaluation referred to in the foregoing paragraph,
we have identified no change in our internal control of financial reporting that
occurred during the quarter ended December 31, 2004 that has materially
affected, or is reasonably likely to materially affect, our internal control
over financial reporting.
Inherent Limitations on Effectiveness of Controls
The Company's management, including the chief executive officer and chief
financial officer, who are the same person, does not expect that our Disclosure
Controls or our internal control over financial reporting will prevent or detect
all error and all fraud. A control system, no matter how well designed and
operated, can provide only reasonable, not absolute, assurance that the control
system's objectives will be met. The design of a control system must reflect the
fact that there are resource constraints, and the benefits of controls must be
considered relative to their costs. Further, because of the inherent limitations
in all control systems, no evaluation of controls can provide absolute assurance
that misstatements due to error or fraud will not occur or that all control
issues and instances of fraud, if any, within the company have been detected.
These inherent limitations include the realities that judgments in
decision-making can be faulty and that breakdowns can occur because of simple
error or mistake. Controls can also be circumvented by the individual acts of
some persons, by collusion of two or more people, or by management override of
the controls. The design of any system of controls is based in part on certain
assumptions about the likelihood of future events, and there can be no assurance
that any design will succeed in achieving its stated goals under all potential
future conditions. Projections of any evaluation of controls effectiveness to
future periods are subject to risks. Over time, controls may become inadequate
because of changes in conditions or deterioration in the degree of compliance
with policies or procedures.
EXHIBIT 2
EXHIBIT 31.1 CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER AND PRINCIPAL
FINANCIAL OFFICER PURSUANT TO EXCHANGE ACT RULE 13a-14(a), as adopted pursuant
to Section 302 of the Sarbanes-Oxley Act of 2002.
I, Robert P. Hickey, certify that:
1. I have reviewed this annual report on Form 10-KSB/A of Life Medical
Sciences, Inc.;
2. Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this annual
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the small business
issuer as of, and for, the periods presented in this report;
4. The small business issuer's other certifying officers and I are
responsible for establishing and maintaining disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the small
business issuer and have:
a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to the small business issuer,
including its consolidated subsidiaries, is made known to us by others
within those entities, particularly during the period in which this report
is being prepared;
b) Evaluated the effectiveness of the small business issuer's
disclosure controls and procedures and presented in this report our
conclusions about effectiveness of the disclosure controls and procedures,
as of the end of the period covered by this report based on such
evaluation; and
c) Disclosed in this report any change in the small business
issuer's internal control over financial reporting that occurred during
the small business issuer's most recent fiscal quarter (the small business
issuer's fourth fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect, the
small business issuer's internal control over financial reporting; and
5. The small business issuer's other certifying officer(s) and I have
disclosed, based on our most recent evaluation of internal control over
financial reporting, to the small business issuer's auditors and the audit
committee of the small business issuer's board of directors (or persons
performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the
design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the small business issuer's ability
to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or
other employees who have a significant role in the small business issuer's
internal control over financial reporting; and
6. The small business issuer's other certifying officers and I have
indicated in this annual report whether or not there were significant changes in
internal controls or in other factors that could significantly affect internal
controls subsequent to the date of our most recent evaluation, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
Dated: April _, 2005
By: /s/ Robert P. Hickey
------------------------
Robert P. Hickey Chief Executive
Officer and Chief Financial Officer
EXHIBIT 3
EXPLANATORY NOTE
Life Medical Sciences, Inc. is filing this amendment to its Form 10-KSB
for the year ended December 31, 2004, filed with the Securities and Exchange
Commission on March 14, 2005 (the "Original Filing") to:
o amend and restate Item 8A. Controls and Procedures;
o revise references to information incorporated by reference from the
Company's definitive proxy statement in Part III to reflect that the
definitive proxy statement has been filed, as well as correct the
captions to Items 13 and 14;
o include as exhibits a revised Certification pursuant to Section 302
of the Sarbanes-Oxley Act of 2002, as well as a re-executed version
of the Certification pursuant to Section 906 of that Act, each dated
as of the date of filing this amendment; and
o include a revised Consent of Independent Registered Public
Accounting Firm required as a result of the revisions discussed
above.
Except for the amendments described above, this Form 10-KSB/A does not
modify or update in any material respect other disclosures in, or exhibits to,
the Original Filing.