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MAIL STOP 3561
February 2, 2006
V. Randy White, Ph.D
Chief Executive Officer
Xenomics, Inc.
420 Lexington Avenue, Suite 1701
New York, New York 10170
Re: Xenomics, Inc.
Amendment No. 2 to Registration Statement on Form SB-2
File No. 333-127071
Filed January 9, 2006
Dear Dr. White:
We have reviewed your amended filing and have the following
comments. Where indicated, we think you should revise your
document
in response to these comments.
General
1. Please clarify throughout what "cGMP" means and who or what
authority the guidelines come from.
2. The company`s preferred dividend obligation should be discussed
in
MD&A under Liquidity and Capital Resources. Any arrearages should
be
indicated.
3. Please remove what appear to be tags of some sort (<R>)
throughout the unmarked EDGAR version of the filing.
Risk Factors, page 5
4. The first risk factor refers to an inception date of April 26,
2002, which appears to be in error; it should reconcile with that
used in the financial statements.
Executive Compensation, page 27
5. As previously requested, since none of the persons listed
annual
salary and bonus exceeded $100,000, clarify the reference to
compensation of "$100,000 or more" in the first paragraph. Refer
to
Item 402(a)(2) of Regulation S-B for the persons required to be
listed.
6. In addition, please update all disclosure hereunder for the
most
recent fiscal year.
Plan of Distribution
7. The references to "donees, pledgees, transferees or other
successors-in-interest" should be removed or a statement added
that
the identities of such persons will be added by post effective
amendment.
Financial Statements, page F-1
Note 2 - Basis of Presentation, page F-9
8. We note your response to prior comment 27. Please expand the
APB
20 disclosures in Note 2 on page F-9 and Note 6 on page F-28 to
show
the amount and nature of each material revision. For example,
expand
the line item, "additional stock-based compensation" to disclose
the
effect of revisions including:
* expense recognition for the Trilogy warrants,
* expense resulting from the use of quoted market price,
* the application of EITF 96-18 to options granted to non-
employees.
For each material revision, describe the original accounting
treatment and the nature of the error correction. Disclose both
amounts recorded in the financial statements prior to correction,
as
well as the revised amounts.
Note 4 - Stockholders` Equity, page F-25
9. We note your response to prior comment 30. While the agreement
may provide that the liquidated damages are required to be paid in
cash, the ability to have the registration statement declared
effective remains outside of the control of the issuer. We note
that
the liquidated damages are material and appear to be potentially
unlimited, which renders the settlement option of providing
unregistered shares to settle the warrants uneconomic.
Accordingly,
we believe the warrants are required to be initially classified as
liabilities under EITF 00-19, and then adjusted to fair value at
each
subsequent balance sheet date, with changes in fair value
reflected
in the statement of operations. See paragraphs 14 - 17 of EITF
00-
19. Please revise your financial statements and related
disclosures
accordingly.
10. We note your response to prior comment 42. Please revise the
statement of stockholders` equity and the calculation of net loss
per
share applicable to common shareholders to reflect the dividend,
or
tell us why you believe that no revisions are required.
Part II
Undertakings
11. In your amended filing, please revise to include the new
undertakings that became effective on December 1, 2005. See
Questions 3 through 6 in Securities Offering Reform Transition
Questions and Answers, which is available on our web site at
http://www.sec.gov/divisions/corpfin/transitionfaq.htm. See new
Item
512(a)(4) and 512(g) of Regulation S-B, which were adopted in
Securities Offering Reform, Release No. 33-8591 (July 19, 2005),
which is available on our web site at
http://www.sec.gov/rules/final/33-8591fr.pdf.
Signatures
12. Please have your Chief Financial Officer and Chief Accounting
Officer sign in those capacities.
1934 Act Periodic Reports
13. We note your response to prior comment 27. We also note that
no
filings were made under Item 4.02 of Form 8-K relating to the
various
restatements. Please file the required disclosures under Item
4.02
of Form 8-K as soon as possible.
14. We note your disclosure under Item 307 of Regulation S-B in
each
amended periodic report concludes your disclosure controls and
procedures were effective. Please tell us the specific factors
you
considered in determining your disclosure controls and procedures
were effective, in light of the restatements to your financial
statements disclosed in Note 2 to the financial statements for the
year ended January 31, 2005, and in Note 6 to the financial
statements for the six months ended July 31, 2005.
Closing Comments
As appropriate, please amend your registration statement in
response to these comments. 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.
Any questions regarding the accounting comments may be
directed
to Carlton Tartar at (202) 551-3387. Questions on other
disclosure
issues may be directed to William Bennett at (202) 551-3389.
Sincerely,
John Reynolds
Assistant Director
cc: Jeffrey J. Fessler
Fax: 212-930-9725
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V. Randy White, Ph.D
Xenomics, Inc.
February 2, 2006
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