SEC Company Response from ENABLE IPC CORP (CIK 0001326068) — Dec 7, 2005
ENABLE IPC CORP (CIK 0001326068)
Date: Dec. 7, 2005 · CIK: 0001326068 · Accession: 0001091818-05-000397
AI Filing Summary & Sentiment
File numbers found in text: 333-125504
Referenced dates: June 29, 2005, October 27, 2005
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[LETTERHEAD]
Silicon Valley Law Group
December 7, 2005
VIA FEDERAL EXPRESS; FILED VIA EDGAR - CORRESPONDENCE
Securities and Exchange Commission
100 F Street, NE
Washington, D.C. 20549
Attn: John L. Krug, Esq.
Division of Corporate Finance
Mail Stop 0610
Re: Enable IPC Corporation
Registration Statement on Form SB-2
File No. 333-125504
Dear Mr. Krug:
On behalf of Enable IPC Corporation, a Delaware corporation (the "Company"), we
have been authorized to present the following responses to that certain letter
from the Staff dated October 27, 2005 (the "Comment Letter"), relating to
Amendment No. 1 to the Company's Registration Statement on Form SB-2 (File No.
333-125504) (the "Registration Statement") and our letter of October 3, 2005
(the "October 3rd Letter") responding to the earlier letter from the Staff dated
June 29, 2005 (the "June 29th Letter").
The Staff's comments have been set forth below in italics, and the following
paragraphs have been numbered to correspond to the numeration of the Comment
Letter.
"If we do not raise additional capital. . . . ," page 5
1. We note your response to comments 16-18 and the related
revisions in the prospectus and Item 26 of the registration statement.
Please provide a detailed analysis concerning why the unregistered sales
of securities should not be integrated with the registrant's proposed
public offering. Please include a description of the facts and
circumstances of each respective sale. We may have additional comments.
The Company was only formed in March of 2005, and received its initial funding,
technology and other assets (including assets as mundane as office supplies)
through the issuance of shares of common stock. With respect to this initial
funding, the Company issued an aggregate of 2,546,215 shares of its common stock
to an aggregate of 19 individuals (the "Initial Investors" at a price of $0.005
per share, receiving total proceeds of $12,731 in cash. The Initial Investors
are all close personal and business associates of David A. Walker, the Company's
Chief Executive Officer and a member of the Board of Directors. With respect to
the referenced technology, in March 2005 the Company issued an aggregate of
2,000,000 shares of common stock to Dr. Sung H. Choi in consideration for the
transfer of technology pursuant to that certain Technology and Patent
Assignment. Finally, with respect to the Company's acquisition of its other
assets, in March 2005 the Company issued an aggregate of 750,000 shares of
common stock to Rastiff Business Ventures, Inc., in consideration for equipment,
other fixed assets and office supplies with an aggregate valuation of $3,750.
A detailed schedule of these investments is enclosed with our response to
Comment 4 below. The Initial Investors, Dr. Choi and Rastiff Business Ventures,
Inc. all signed subscription documents containing representations regarding
their intent to hold the common stock for investment.
<page>1
The initial $12,371 in cash received by the Company was intended to provide its
funding for the incorporation process. However, shortly after the Company's
formation, management of the Company realized that additional funding would be
required to set up its initial operations and build an infrastructure sufficient
to support the goal of becoming a publicly traded company. Therefore,
management immediately began to raise additional capital to fund these basic
operations. In July 2005, the Company issued a series of seven warrants to
Reuven Zfat, an accredited private investor and a long-time personal and
business associate of Mr. Walker. The warrants are to purchase an aggregate of
1,050,000 shares of common stock (150,000 shares per warrant) at an exercise
price of $0.10 per share. To date, Mr. Zfat has exercised one warrant per
month, for an aggregate issuance of 450,000 shares of common stock and cash
proceeds to the Company of $45,000. Additional funds for continuing operations
have been raised through the issuance of an aggregate of 1,287,000 shares of
common stock to an aggregate of 20 investors (again, personal and business
colleagues of the Company) for aggregate proceeds of $130,500.
In the past few months, the Company has been modestly successful in obtaining
initial operating capital through the private placement of its securities.
However, the capital raised for the Company's initial operations was woefully
insufficient (and in fact, not intended) to fund the research and development
required for the commercialization of the Company's technology. This funding
was the purpose behind the Company's preparation and filing of the subject
Registration Statement. As you can see from the section of the prospectus
captioned "Use of Proceeds", most of the funds to be raised from the Company's
public offering of common stock will be used for research and development of its
technology (see page 16 of the prospectus). The use of the funds raised from
the Company's private placement therefore differs from the use of the funds to
be raised from the proposed public offering.
The factors most commonly used in an analysis of integration are found in Rule
502 of Regulation D, promulgated under the Securities Act of 1933, as amended.
These factors are:
- whether the sales are part of a single plan of financing; - whether the sales
involve issuance of the same class of securities; - whether the sales have been
made at or about the same time; - whether the same type of consideration is
being received; and - whether the sales are made for the same general purpose.
An analysis of these factors indicates that the private placement conducted by
the Company should not be integrated with the proposed public offering. As set
forth above, the Company undertook a private placement of common stock to fund
its incorporation and initial operations. The purpose of the Registration
Statement, however, is primarily to provide funds for research and development
and subsequent commercialization of the Company's technology. Therefore, the
sales are not part of a single plan of financing.
<page>2
The sales also do not involve issuance of the same class of securities. As
indicated above, a significant portion of the private placement involved the
issuance of warrants, most of which have not been exercised to date. The
proposed public offering does not involve the issuance and sale of warrants by
the Company.
A time differential also exists between the private placement and the proposed
public offering. The private placement commenced in March 2005, concurrent with
the formation of the Company, and concluded in September 2005. The proposed
public offering will not occur before the end of 2005, and in fact given the
other duties of the Company's sole employee/manager, it is unlikely that the
Company will commence significant efforts to market the common stock before the
end of Jaunuary 2006.
As set forth above, the type of consideration given in the private placement was
more diverse than the consideration to be expected in the proposed public
offering. The Company received cash, technology, assets and office supplies as
consideration for common stock in the private placement. It anticipates that
common stock will only be sold for cash in the proposed public offering.
Finally, as indicated above, the sales of common stock in the private placement
were for a different purpose than the proposed sales of stock in the public
offering. The Company sold common stock in the private placement to set up its
initial operations, including its incorporation, the acquisition of its core
technology, the purchase of some fixed assets and the provision of office
supplies. The purpose of selling common stock in the proposed public offering
is to fund the Company's research and development and the related
commercialization of its technology.
For these reasons, we respectfully suggest that the Company's private placement
should not be integrated with its proposed public offering.
Financial Statements, page 53
3. Intangible Assets, page F-11
2. Regarding your response to prior comment sixty, please address the
applicability of and your compliance with specific paragraphs of APB
29, SFAS 2, FIN 4, SFAS 5, SFAS 123, SFAS 142, and any other relevant
literature. In so doing:
- Please tell us why your "conservative approach" is appropriate, especially as
you believe that the fair value of the patent application exceeds the amount
your [sic] recognized. In this regard, even if "a conservative approach" was
appropriate, it is unclear how subsequently recognizing less amortization
expense is conservative. In addition, please clarify why you did not appear
to regard the present value of the minimum annual royalty payments as
consideration that could have provide [sic] a basis for determining the fair
value of the patent application.
<page>3
- Please tell us the business reasons for the minimum annual royalty payments,
including the extent to which they served as a financing mechanism, and any
circumstances where you would not have to pay them. In addition, please
justify your belief that they should not have been recognized as a liability.
Furthermore, please tell us whether the present value of the minimum annual
royalty payments should have reduced the amount attributed to the stock and
why.
Please note that pursuant to the Staff's comments, the Company has revised the
year end and subsequent financial statements to reflect the present value of the
future minimum annual royalty payments as a liability. In addition, management
has revised the value of the patent to reflect this amount under "Intangible
Assets".
The minimum annual royalty payment schedule was negotiated in return for the
assignment of the technology covered by the patent application and is not a
license. There are no performance milestone mechanisms associated with the
minimum annual royalty payments. These payments are not the direct result of
any research and development activity and the Company's failure to make any of
these payments would constitute a breach of contract and, in such an
extraordinary case, the agreement provides for the technology to be assigned
back to the original Assignor (Dr. Choi).
The Company has entered into a Technology and Patent Assignment (the
"Agreement"), whereby the technology is assigned to the Company in exchange for
an initial payment of 2,000,000 shares of common stock and subsequent annual
royalties of 5% of net sales, with minimum annual royalties detailed on a
schedule with a net present value (as of March 31, 2005) of $573,857.
In APB Opinion No. 29, Accounting for Nonmonetary Transactions, which discusses
the exchange of nonmonetary assets (such as stocks) for goods and services, the
FASB concluded that accounting for nonmonetary transactions should be based on
the fair values of the assets involved. Based on this Opinion, the transaction
referenced by your comment involves both an initial fee, paid in stock (that is
appropriately valued in accordance with SFAS 123 [see below]) and subsequent
royalty payments with guaranteed minimums that, in management's opinion, and in
the opinion of the Assignor of the technology under the Agreement, reflect the
value of the asset.
<page>4
R&D cost accounting as discussed in paragraphs of SFAS 2, Accounting for
Research and Development Costs and FIN 4, Applicability of FASB Statement No. 2
to Business Combinations Accounted for by the Purchase Method do not apply to
this Agreement under discussion because this transaction was conducted for the
purpose of acquiring the technology - not conducting research in the technology.
Actual research and development costs are accounted for in accordance with this
Statement. However, the Company also notes that this technology has possible
alternative future uses (including super capacitors, solid oxide fuel cells and
other ideas that we may or may not explore). Paragraph 11(c) states that the
costs of intangibles purchased from others that have alternative future uses
"shall be capitalized and amortized as intangible assets in accordance with APB
Opinion No. 17." Therefore, the Company has capitalized and amortized these
costs, including the present value of the minimum annual royalties.
Regarding SFAS 5, Accounting for Contingencies, management determined that,
since this transaction involves the actual ownership of the technology and not a
license or other right to use, it should be considered an asset and the present
value of the minimum annual royalties owed should be accounted for as
liabilities.
SFAS 123, Accounting for Stock Based Compensation, is probably applicable in
this case under paragraphs 8-10, "Accounting for Transactions with Other Than
Employees", which states that the transaction for goods or services shall be
accounted for based on "the fair value of the equity instruments issued." As
stated in our initial response on October 3, 2005 to Item 60, the stock issued
to Dr. Choi, which was granted at the founding of the Company on March 17, 2005,
was valued at the same price as all the stock issued at that time: $0.005 per
share, which was determined by all to be the fair value of the stock. This was
clearly established in that all the stock issued in connection with the
establishment of the Company was valued at the same price.
SFAS 142, Goodwill and Other Intangible Assets, is applicable in this case.
Specifically, paragraph 9 states that an intangible asset (like our patent
application) that is acquired "shall be individually recognized and measured
based on its fair value." With no other factors known to help determine the
fair value, the determination of the fair value was made in the negotiation of
the Technology and Patent Assignment Agreement by discussion with the inventor
and the Company. And, according to paragraph 23, the fair value of the asset is
"the amount at which that asset . . .could be bought (or incurred) or sold (or
settled) in a current transaction between willing parties." Since this amount
includes the minimum annual royalties as well, we determined that the present
value of the minimum annual royalties should, indeed, be included in this
figure. In addition, management has determined the useful life of the
technology as 20 years - the legal length of a US patent (paragraph 11(c)).
<page>5
Therefore, management has revised the year end and subsequent financial
statements to reflect the present value of the future minimum annual royalty
payments as a liability. In addition, the Company has revised the value of the
patent to reflect this amount under "Intangible Assets".
Regarding the business reasons for this arrangement, management recognized that
the value of the technology will increase as it nears commercialization and,
therefore, set up a minimum annual royalty schedule that management believes may
approximate the probable increasing value of the technology as the Company
continues down the commercialization path and gets closer to sales and
profitability.
In making this determination, both parties to the Agreement noted that the
Company's closest competitors have non-exclusively licensed a thin film battery
technology from Oak Ridge National Laboratory (ORNL). In doing so, they have
paid (according to Ashok Choudhury, license coordinator for ORNL, with whom
management spoke about the ORNL technology license terms) an initial fee (in
July 2004, the asking initial fee was $150,000 according to Mr. Choudhury) plus
minimum annual royalty payments that vary depending on the fields of use and the
individual business plans. Oak Ridge Micro Energy, one of the Company's
competitors and a licensee of the ORNL technology, disclos