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Mail Stop 6010
October 4, 2005
Joseph V. Gulfo, M.D.
President and Chief Financial Officer
Electro-Optical Sciences, Inc.
3 West Main Street, Suite 201
Irvington, NY 10533
Re: Electro-Optical Sciences, Inc.
Amendment No. 4 to Registration Statement on Form S-1
Filed September 27, 2005
File No. 333-125517
Dear Dr. Gulfo:
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
information so we may better understand your disclosure. After
reviewing this information, we may 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 any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Form S-1
General
1. Tell us your plans to recirculate the prospectus so investors
receive the changes since Amendment 3 to your registration
statement.
Special Suitability for California Residents, page i
2. Tell us the reason for this requirement. Also tell us why
purchasers would not have a resale exemption under Section 4(1) of
the Securities Act.
Summary, page 1
3. If financial results for the quarter ended September 30, 2005
are
available, please update your prospectus. If only partial results
are known, disclose any material recent developments and ensure
that
corresponding updates are made throughout the prospectus. We
note,
for example, that your accumulated deficit disclosure on page 10
is
as of June 30, 2005.
Management`s discussion and analysis of financial condition and
results of operations, page 36
Liquidity and Capital Resources, page 41
4. We refer you to your disclosure in the last paragraph of this
section. Please clarify what you mean by the proceeds of this
offering might not be available in amounts or on terms acceptable
to
you.
Business, page 44
Manufacturing, page 56
5. Please update us as to the status of your contract negotiation
with Carl Zeiss Jena. We refer you to your disclosure in the
first
full paragraph on page 56.
Underwriting, page 87
6. Please identify any members of the underwriting syndicate that
will engage in any electronic offer, sale or distribution of the
shares and describe their procedures to us supplementally. If you
become aware of any additional members of the underwriting
syndicate
that may engage in electronic offers, sales or distributions after
you respond to this comment, promptly supplement your response to
identify those members and provide us with a description of their
procedures.
In your discussion of the procedures, tell us how your procedures
ensure that the distribution complies with Section 5 of the
Securities Act. In particular:
* The communications used;
* The availability of the preliminary prospectus;
* The manner of conducting the distribution and sale, like the use
of
indications of interest or conditional offers; and
* The funding of an account and payment of the purchase price.
Finally, tell us whether you or the underwriters have any
arrangements with a third party to host or access your preliminary
prospectus on the Internet. If so, identify the party and the
website, describe the material terms of your agreement and provide
us
with a copy of any written agreement. Provide us also with copies
of
all information concerning your company or prospectus that has
appeared on their website. Again, if you subsequently enter into
any
arrangements like this, promptly supplement your response.
Exhibit 5.1
7. Please ask your counsel to confirm to us in writing that it
concurs with our understanding that the reference and limitation
to
the Delaware General Corporate Law includes the statutory
provisions
and also all applicable provisions of the Delaware Constitution.
Counsel should file this written confirmation as correspondence on
the EDGAR system.
8. We note the fact that counsel will undertake no obligation to
update the opinion. Given that limitation, please file an opinion
dated as of the effective date of the registration statement as an
exhibit to a final pre-effective amendment to your registration
statement.
9. Given the assumption in the penultimate paragraph regarding the
shares being issued and sold as described in the registration
statement, it is unclear why the remaining assumptions in that
paragraph are necessary and appropriate. Please tell us what
board
resolutions are not and will not be reflected in the registration
statement.
* * *
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 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 urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing to be certain that the
filing includes all information required under the Securities Act
of
1933 and that they have provided all information investors require
for an informed investment decision. Since the company and its
management are in possession of all facts relating to a company`s
disclosure, they are responsible for the accuracy and adequacy of
the
disclosures they have made.
You may contact Kevin Kuhar at (202) 551-3662 or Jay Webb at
(202) 551-3603 if you have questions regarding comments on the
financial statements and related matters. Please contact Adelaja
Heyliger at (202) 551-3636 or me at (202) 551-3800 with any other
questions.
Sincerely,
Russell Mancuso
Branch Chief
cc (via fax): Valerie A. Price, Esq., Dreir LLP 212.652.3789
Joseph V. Gulfo, M.D.
Electro-Optical Sciences, Inc.
October 4, 2005
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