corresp
[IRIDEX LETTERHEAD]
February 21, 2008
Via EDGAR and Overnight Courier
Mr. Jay Webb
Reviewing Accountant
Ms. Julie Sherman
Staff Accountant
Division of Corporation Finance
United States Securities and Exchange Commission
450 Fifth Street, N.W.
Mail Stop 6010
Washington, D.C. 20549
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Re:
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IRIDEX Corporation
Form 10-Q for the period ended September 29, 2007
Filed November 19, 2007
File No. 000-27598 |
Dear Mr. Webb and Ms. Sherman:
On behalf of IRIDEX Corporation (we, the Company, or IRIDEX), we submit this letter in
response to comments from the staff of the Securities and Exchange Commission (the Staff)
received by letter dated January 11, 2008, relating to the Companys Form 10-Q for the quarterly
period ended September 29, 2007 (the Form 10-Q).
In this letter, we have recited the comments from the Staff in italicized type and have
followed each comment with the Companys response. Capitalized terms used but not defined herein
shall have the meanings ascribed thereto in the Form 10-Q.
Form 10-Q for the period ending September 29, 2007
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Refer to prior comment 5 from our letter dated October 17, 2007. We note that you still
include $2.5 million related to a legal settlement as a component of other income (expense) in
the nine month period ended September 29, 2007. Your response to our prior comment did not
clearly support how your classification of this item as non-operating income complies with
GAAP. We do not believe the fact you wish to prominently disclose the item on your income
statement or that it is not non-recurring item supports your current classification. Please
provide us with references to the GAAP that support your presentation of this item as
non-operating in your income statement. |
United States Securities and Exchange Commission
February 21, 2008
Page 2
Response:
In response to the Staffs comment, the Company notes:
In a recent SEC speech, the SEC commented that they had been consulted by many registrants on the
accounting for litigation settlements. In the speech, the SEC referenced EITF 02-16, Accounting
by a Customer (Including a Reseller) for Certain Consideration Received from a Vendor as the
relevant guidance for litigation settlements received by customers from vendors. The SEC commented
that EITF 02-16, in most cases, requires payments received by a customer to be recorded as a
reduction of cost of goods sold. The exception was noted that if the settlement payment received
was clearly unrelated to the vendor/customer relationship, the SEC would be willing to consider
classification of the settlement as a gain.
The Company concluded that the settlement payment was clearly unrelated to the vendor/customer
relationship based on the following facts:
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Iridex is a medical device manufacturer that is in the business of selling laser systems
and delivery devices as products to the medical community. |
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Iridex is not in the business of granting licenses to its intellectual property to other
medical device manufacturers for the purpose of other medical device manufacturers
manufacturing competitive products. |
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Synergetics is a medical device manufacturer who manufactured a competitive product that
infringed on the Companys patents. |
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The settlement resulted in Iridex receiving payment from Synergetics for past patent
infringement. To effect the settlement Synergetics was granted licenses to the patents to
cover the period during which it had infringed. |
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The total monetary settlement was for $6.5 million with payment to occur over 5 years.
The first payment of $2.5 million was received and recorded in our second fiscal quarter
which was the three month period ended June 30th 2007 reported on Form 10-Q.
Five additional annual payments of $800,000 are anticipated to be received and recorded in
our second fiscal quarter for fiscal years ending 2008, 2009, 2010, 2011 and 2012. |
The Company then considered Statement of Financial Accounting Concepts No. 6, Elements of
Financial Statements, paragraph 86, 87, 88 and 89. Paragraph 86 states Gains and losses may also
be described or classified as operating or non-operating, depending on their relation to an
entitys major ongoing or central operations. For example, losses on writing down inventory from
cost to market are usually considered to be operating losses, while major casualty losses are usually considered
non-operating losses.
United States Securities and Exchange Commission
February 21, 2008
Page 3
The Company concluded that the settlement payment is a gain that should be classified as
non-operating based on the following reasons:
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The Company is in the business of manufacturing medical devices .... not in the business
of granting licenses to its intellectual property to other medical
device companies. |
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This is evidenced by the fact that historically the Company has not recorded similar
types of settlements. |
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As such the settlement should be considered incidental to the primary revenue generating
activities of the Company. |
Paragraph 89 indicates that a primary purpose of distinguishing gains... is to make displays of
information about an enterprises sources of comprehensive income as useful as possible.
The
Company believes that:
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The settlement is very unusual and material in nature and the Company does not
expect that it will record a similar settlement again. |
And therefore treating the settlement as a gain from operations would improperly distort the
current operating losses the Company experienced in the second and third quarters, and would
improperly distort the year-end operating results.
We believe the settlement is properly disclosed to highlight the fact that the settlement is
unusual, infrequent and non-operating in nature and that our disclosure and classification of the
transaction provides the readers and users of our financial statements the most informative
information regarding the Companys sources of comprehensive income.
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We see from disclosures in Note 3 that on January 16, 2007 you completed the acquisition of
the aesthetics business for approximately $26 million in cash and $2 million in stock. Please
tell us how your cash flow statement discloses the cash and non-cash portions of this
transaction and how your presentation of these items complies with SFAS Statement 95. |
Response:
In our presentation of cash flow statements on Form 10-Q for the periods ending March
31st 2007 and June 30th 2007 the Company aggregated the components of the
business acquisition (of which the purchase of intangibles and the purchase of goodwill represented
greater than 90% of the total purchase price) and disclosed as a single line item in the Cash flows
from investing activities with the descriptor Acquisition of business. In addition in
accordance with SFAS Statement 95 the non cash component was disclosed by way of narrative in Note
3.
In our presentation of cash flow statement on Form 10-Q for the period ending September
29th 2007 we disaggregated the components of the business and disclosed the two major
components of the acquisition
United States Securities and Exchange Commission
February 21, 2008
Page 4
separately with the descriptors Purchase of intangible and
Goodwill. These items represent greater than 90% of the total purchase price. In addition in
accordance with SFAS Statement 95 the non cash component was disclosed by way of narrative in Note
3.
It is our intention to revert to the disclosure presentation adopted for the periods ending March
31st 2007 and June 30th 2007 for our next filing which will be for the period
ending December 29th 2007 and will be on Form 10-K.
In connection with IRIDEXs responses to the Staffs comments, we acknowledge that we are
responsible for the adequacy and accuracy of the disclosure in our filings with the Securities and
Exchange Commission, Staff comments or changes to disclosure in response to Staff comments do not
foreclose the Securities and Exchange Commission from taking any action with respect to such
filings, and we may not assert Staff comments as a defense in any proceeding initiated by the
Securities and Exchange Commission or any person under the federal securities laws of the United
States.
Please acknowledge receipt of this letter by stamping the enclosed duplicate of this letter
and returning it to the undersigned in the envelope provided.
We would like to discuss these comments and responses at your earliest convenience. James H.
Mackaness the Companys recently appointed Chief Financial Officer can be reached at (650) 962-8848
ext 3016. David J. Segre, Esq. and Jonathan W. Tanner, Esq. of Wilson Sonsini Goodrich & Rosati,
Professional Corporation can be reached at (650) 493-9300, and I may be reached at (650) 962-8848
ext. 3001.
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Sincerely, |
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/s/Theodore A. Boutacoff |
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Theodore A. Boutacoff
IRIDEX Corporation
President and Chief Executive Officer |
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cc:
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David J. Segre
Jonathan W. Tanner
James H. Mackaness |