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Re:
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Oculus
Innovative Sciences, Inc.
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Comment
1:
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Please
tell us how the definition of related person in the Instructions to Item
404(a) that includes a person who is a director; an immediate family
member of a director, including a child regardless of whether the child
shares the same household; or a security holder covered by Item 403(a) at
any time during the specified period for which disclosure is required
would affect your responses to prior comments 3, 4, and
5.
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Response
1:
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In
our response letter dated December 17, 2010, we grouped Staff comments 3
and 5 together as they addressed the same subject matter. In
that response letter, in the first paragraph written in response to
comments 3 and 5, we specifically mention that we considered Item 404 of
Regulation S-K and the disclosure necessary when the Company enters into a
transaction with a related party. That paragraph includes the
following sentence, “Additionally, the Company considered its disclosure
obligations under Item 404 of Regulation S-K when entering into a
transaction with a related party or an entity controlled by a related
party as further discussed below.” We then included an
additional three pages of analysis on that point. It is unclear
from the Staff’s comment how the analysis provided in the Company’s letter
dated December 17, 2010 was not responsive to the Staff’s concern
regarding Item 403(a) when the response specifically analyzes the
disclosures the Company has made regarding related party transactions in
detail.
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Furthermore,
the applicability of Item 403 and Item 404 of Regulation S-K does not
appear to relate to most of the prior Staff Comment 4 other than the final
bulleted question regarding Seamus Burlingame. The Company
addressed this question in its response to Comment 4 in its prior
letter.
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Furthermore,
in our response letter to the Staff dated December 17, 2010, we included a
lengthy analysis of the disclosure of the one transaction the Company had
with Seamus Burlingame almost two years ago including the analysis again
requested in this comment regarding Items 403 and 404 of Regulation
S-K. Please refer to the Company’s response to Comment 2 in its
letter dated December 17, 2010.
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We
believe our response letter dated December 17, 2010 addresses the most
recent Staff Comment 1 in detail including the Company’s response to Staff
Comment 2 in its prior response letter. If the Staff has
further questions, the Company respectfully requests a conference call to
understand the Staff’s concerns.
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Comment
2:
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We
note your response to prior comments 3 and 5 relating to your Revenue
Sharing and Distribution Agreement with Vetericyn, Inc. (formerly VetCure,
Inc.) on pages 8 and 9:
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·
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We
note your disclosure of this related person transaction, such as on page
12 of your definitive proxy statement. With a view towards
disclosure, please tell us the amounts involved in the transaction,
including the amounts outstanding as of the latest practicable date and
any amounts paid during the periods for which disclosure is
required.
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·
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Please
tell us why you did not file your September 1, 2010 amendment, mentioned
on page 10 of your Form 10-Q for the fiscal quarter ended September 30,
2010.
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Response
2:
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In
the Company’s response to Comments 3 and 5 in its letter dated December
17, 2010, the Company provided the information requested by the
Staff. The remainder of the information is already included in
the Company’s SEC filings. On page 9 of the December 17, 2010
letter, the Company stated that on February 24, 2009, the date of
Amendment 1 to the Revenue Sharing and Distribution Agreement with
Vetericyn, Inc. (the “RSPDA”), “the Company had earned nominal revenue
from the RSPDA of approximately $5,000.” The Company went on to
state that on July 24, 2009, “the Company was still earning only nominal
revenue.”
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Additionally,
the Company has disclosed the information requested by the Staff in its
SEC filings. On page 10 of the 10-Q for the quarter ended
September 30, 2010, the Company provided the aggregated figures for both
the Vetericyn and the Microcyn contracts. Such disclosure
provides:
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Additionally,
all of these disclosures were identified, disclosed and discussed as
Related Party Transactions repeatedly in the Company’s SEC
filings. The Company also notes that, as discussed in the
Company’s prior response letter dated December 17, 2010, the Company has
disclosed these transactions as Related Party Transactions even when it
was not required to disclose them pursuant to Item 404 of Regulation S-K
because the dollar value of the contracts did not exceed $120,000 at the
time of those disclosures. Thus, the Company has not only
disclosed and discussed these agreements pursuant to Item 404 of
Regulation S-K, at times it has exceeded the requirements of Regulation
S-K. Finally, we note that the Staff has asked for information
that is readily available in the Company’s SEC filings and thus, analysis
“with a view to disclosure” is not appropriate because such information
has already been disclosed.
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The
Company respectfully notes that is has filed the September 1, 2010
amendment that the Staff references as “mentioned on page 10 of your Form
10-Q for the fiscal quarter ended September 30, 2010.” This
amendment was filed as Exhibit 10.46 to the Company’s 10-Q for the period
ended September 30, 2010. The Staff even acknowledged this
Exhibit in its Comment 6 in its letter dated November 8, 2010 and, as
such, it is unclear why the Staff is asking at this point why this
amendment was not filed when, in its last comment letter, the Staff
acknowledged such amendment had been filed. If further
confusion remains, we request a conference call with the Staff on this
matter.
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Comment
3:
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We
note your response to prior comments 3 and 5 related to your Revenue
Sharing and Distribution Agreement with Innovacyn, Inc. (formerly V&M
Industries) on pages 9 and 10. Please tell us, with a view
towards disclosure, the amounts involved in the transaction, including the
amounts outstanding as of the latest practicable date and any amounts paid
during the periods for which disclosure is
required.
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Response
3:
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We
respectfully note that the Company has provided this information, in
detail, in its response to Comments 3 and 5 in its letter dated December
17, 2010. Furthermore, we have provided additional information
from the Company’s SEC filings in our response to the Staff’s comment 2
above.
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