Correspondence 0001903596-25-000067 from Expion360 Inc. (XPON) (CIK 0001894954) (XPON)
Expion360 Inc. (XPON) (CIK 0001894954)
Date: Feb. 6, 2025 · CIK: 0001894954 · Accession: 0001903596-25-000067
AI Filing Summary & Sentiment
File numbers found in text: 333-284354
Referenced dates: January 30, 2025
Letter
Securities and Exchange Commission Division of Corporation Finance Office of Manufacturing Attention: Jenny O’Shanick and Evan Ewing Registration Statement on Form S-1 Filed January 17, 2025 File No. 333-284354 Response to Staff Comments Made by Letter Dated January 30, 2025
Dear Ms. O’Shanick and Mr. Ewing:
Set forth below are the responses of Expion360 Inc., a Delaware corporation (the “Company”), to comments made by the staff (the “Staff”) of the Securities and Exchange Commission (the “Commission”) by letter dated January 30, 2025 (the “Comment Letter”), in connection with the Company’s Registration Statement on Form S-1 that the Company filed on January 17, 2025 (the “Resale Registration Statement”).
The Company’s responses are preceded by a reproduction of the corresponding Staff comment as set forth in the Comment Letter.
Registration Statement on Form S-1
Cover Page
1. We note your disclosures here and on page 76 that the selling stockholders may be deemed to be “underwriters” within the meaning of the Securities Act. Please revise to clarify that the selling stockholders are underwriters within the meaning of Section 2(a)(11) of the Securities Act.
Company Response:
The Company acknowledges the Staff’s comment and respectfully disagrees with the Staff’s position that the selling stockholders are “underwriters” within the meaning of Section 2(a)(11) of the Securities Act of 1933, as amended (the “Securities Act”). The transaction in which the selling stockholders acquired the securities closed and was fully paid for (and the selling stockholders were at market risk) on January 3, 2025 (the “Closing Date”), two weeks prior to the filing of the Resale Registration Statement. The only shares purchased and sold in the transaction that were not issued on such date are those shares of the Company’s common stock, par value $0.001 per share, issuable pursuant to the exercise of common stock purchase warrants, which are being registered for resale under the Resale Registration Statement pursuant to Rule 415(a)(1)(iii) of the Securities Act. Additionally, each selling stockholder represented to the Company as of the Closing Date that it (a) does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities and (b) purchased the securities for its own account and not for the account of others. As such, the transaction meets the conditions under which a company may file a registration statement for the resale of privately placed securities before their issuance (commonly known as a “PIPE,” or private-investment, public-equity transaction). Under Question 139.11 of the Staff’s Compliance and Disclosure Interpretations, the requirement that a selling stockholder be identified as an “underwriter” is not applicable to this transaction because the transaction is a valid secondary offering, not a primary offering. Accordingly, the Company respectfully submits that the Resale Registration Statement may use the phrase “may be an underwriter” with respect to the selling stockholders on the cover page and page 76 thereof.
Should the Staff have additional questions or comments regarding any of the foregoing, please do not hesitate to contact the undersigned via telephone at (949) 725-4115 or via email at rwilkins@stradlinglaw.com, or in his absence, Amanda McFall via telephone at (949) 725-4029 or via email at amcfall@stradlinglaw.com.
Sincerely,
/s/ Ryan C. Wilkins
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CORRESP
1
filename1.htm
February
6, 2025
SUBMITTED VIA EDGAR
Securities and Exchange Commission
Division of Corporation Finance
Office of Manufacturing
100 F Street, N.E.
Washington, D.C. 20549-3628
Attention: Jenny O’Shanick and Evan Ewing
Re: Expion360
Inc.
Registration Statement on Form S-1
Filed January 17, 2025
File No. 333-284354
Response to Staff Comments Made by Letter Dated January 30, 2025
Dear Ms. O’Shanick and Mr.
Ewing:
Set forth below are the responses
of Expion360 Inc., a Delaware corporation (the “Company”), to comments made by the staff (the “Staff”)
of the Securities and Exchange Commission (the “Commission”) by letter dated January 30, 2025 (the “Comment
Letter”), in connection with the Company’s Registration Statement on Form S-1 that the Company filed on January 17,
2025 (the “Resale Registration Statement”).
The Company’s responses
are preceded by a reproduction of the corresponding Staff comment as set forth in the Comment Letter.
Registration Statement on Form S-1
Cover Page
1.
We note your disclosures here and on page 76 that the selling stockholders may be deemed to be “underwriters” within the meaning of the Securities Act. Please revise to clarify that the selling stockholders are underwriters within the meaning of Section 2(a)(11) of the Securities Act.
Company Response:
The Company acknowledges the Staff’s
comment and respectfully disagrees with the Staff’s position that the selling stockholders are “underwriters” within
the meaning of Section 2(a)(11) of the Securities Act of 1933, as amended (the “Securities Act”). The transaction
in which the selling stockholders acquired the securities closed and was fully paid for (and the selling stockholders were at market
risk) on January 3, 2025 (the “Closing Date”), two weeks prior to the filing of the Resale Registration Statement.
The only shares purchased and sold in the transaction that were not issued on such date are those shares of the Company’s common
stock, par value $0.001 per share, issuable pursuant to the exercise of common stock purchase warrants, which are being registered for
resale under the Resale Registration Statement pursuant to Rule 415(a)(1)(iii) of the Securities Act. Additionally, each selling stockholder
represented to the Company as of the Closing Date that it (a) does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the securities and (b) purchased the securities for its own account and not for the account
of others. As such, the transaction meets the conditions under which a company may file a registration statement for the resale of privately
placed securities before their issuance (commonly known as a “PIPE,” or private-investment, public-equity transaction).
Under Question 139.11 of the Staff’s Compliance and Disclosure Interpretations, the requirement that a selling stockholder be identified
as an “underwriter” is not applicable to this transaction because the transaction is a valid secondary offering, not a primary
offering. Accordingly, the Company respectfully submits that the Resale Registration Statement may use the phrase “may be an underwriter”
with respect to the selling stockholders on the cover page and page 76 thereof.
Should
the Staff have additional questions or comments regarding any of the foregoing, please do not hesitate to contact the undersigned via
telephone at (949) 725-4115 or via email at rwilkins@stradlinglaw.com, or in his absence, Amanda McFall via telephone at (949) 725-4029
or via email at amcfall@stradlinglaw.com.
Sincerely,
/s/ Ryan C. Wilkins
Ryan C. Wilkins, Esq.
Partner
Chair, Corporate & Securities Practice
STRADLING YOCCA CARLSON & RAUTH LLP
cc:
Expion360 Inc.
Brian Schaffner, Chief Executive Officer
Stradling Yocca Carlson & Rauth LLP
Amanda McFall, Esq.