OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
PARK AVENUE TOWER
65 EAST 55TH STREET
NEW YORK, NEW YORK 10022
May 5, 2005
DIRECT DIAL: 212.451.2232
EMAIL:JATKINS@OLSHANLAW.COM
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549-0404
Attention: Mr. Craig Slivka
Re: WATER CHEF, INC. AMENDMENT NO. 1 TO
FORM SB-2 (SEC FILE NO. 333-122252)
Ladies and Gentlemen:
On behalf of Water Chef, Inc., a Delaware corporation (the "COMPANY"),
transmitted herewith for filing is Amendment No. 1 to Form SB-2 ("AMENDMENT NO.
1"), marked to show changes from the Form SB-2 filed on January 24, 2005. We
acknowledge receipt of the letter of comment dated February 14, 2005 from the
Securities and Exchange Commission (the "COMMISSION LETTER") with regard to the
above referenced matter. We have reviewed the letter with the Company and the
Company's auditors and the following are the Company's responses to the
Commission Letter. The paragraph references below are to those in Amendment No.
1. The responses are numbered to coincide with the numbering of the comments in
the Commission Letter.
COVER PAGE
1. It appears that the warrants were immediately exercisable when issued and
that the Series F preferred shares were convertible with one year of their
issuance. It is the Division's position that, for the purposes of Section
5, the offer of convertible securities is also an ongoing offering of the
underlying security if the securities are convertible at any time within
one year. As a result, the holders of the warrants and Series F preferred
shares cannot receive shares registered in this offering. However, you may
register the resale of the underlying securities. In addition, please tell
us the conversion terms of the Series C preferred shares, we may have
further comment.
With respect to the Series C and Series F convertible preferred stock, the
Company is only registering the resale of the underlying securities. The
description of the securities being registered has been amended throughout the
registration statement for clarification.
May 5, 2005
Page 2
The Company has amended the description of the Series C convertible
preferred stock on page 34 to include a description of the conversion terms of
the Series C convertible preferred stock.
2. Please clarify here and throughout the prospectus whether you are
registering the resale of the common stock issuable upon exercise of the
warrants and conversion of the Series C and F convertible preferred stock
or whether you are registering the conversion of these securities. If you
are registering the resale of this common stock, please amend your
registration statement accordingly. Please clarify when the warrants and
convertible preferred series C and F were exercisable at the time of their
sale.
As set forth in our response to Question 1, the Company is registering the
resale of the common stock issuable upon exercise of the warrants, upon
conversion of the Series C and Series F convertible preferred stock and upon
exercise of certain rights to acquire shares of common stock. The Company has
amended the description of the securities being registered throughout the
registration statement for clarification. The Company has amended the
description of the warrants and Series C and Series F convertible preferred
stock on page 34 to clarify the time at which the shares of Series C and Series
F convertible preferred stock became convertible and the warrants and the rights
to acquire common stock became exercisable.
SELLING SECURITYHOLDERS
3. Please revise the selling shareholder table to include a "total" line at
the end of the table.
The Company has made the requested revision by addition a "total" line at
the end of the selling securityholders table on page 15.
4. For any selling securityholders that are not natural persons and not a
reporting company under the Exchange Act, a majority owned subsidiary of a
reporting company under the Exchange Act, or a registered investment fund
under the 1940 Act, you must identify by footnote or otherwise the natural
person or persons having sole or shared voting and investment control over
the securities held by the beneficial owner.
The Company has made the requested revision by identifying by footnote for
any selling securityholders that are not natural persons and not a reporting
company under the Exchange Act, a majority owned subsidiary of a reporting
company under the Exchange Act, or a registered investment fund under the 1940
Act, the natural person or persons having sole or shared voting and investment
control over the securities held by the beneficial owner in the selling
securityholders table beginning on page 12.
5. Please tell us whether any of the selling shareholders listed in the
selling shareholder table are broker-dealers or affiliates of
broker-dealers. We note the disclosure at the bottom of page 19; however a
search of our records indicates that Canaccord Capital Corporation may be a
registered broker-dealer. Please advise.
May 5, 2005
Page 3
The Company has amended the "Plan of Distribution" by adding a paragraph
beginning on page 21 identifying the selling shareholders who are broker-dealers
or affiliates of broker-dealers.
6. To the extent that any successor(s) to the named selling securityholders
wish to sell under this prospectus, please be advised that you must file a
prospectus supplement identifying such successors as selling
securityholders. Material changes to this information will require the
filing of a post-effective amendment. Please revise the disclosure to state
that changes to the selling shareholder information will be made via a
prospectus supplement or a post-effective amendment.
The Company has amended the "Plan of Distribution" by adding a seventh
paragraph beginning on page 19 stating that changes to the selling shareholder
information will be made via a prospectus supplement or a post-effective
amendment.
SIGNATURE PAGE
7. Please sign this registration statement in the manner called for by Form
SB-2 and refer to the Instructions for the signatures. Please have your
company's controller or principal accounting officer sign in this capacity
and reconcile the positions listed for Mr. Conway on the signature page
with those listed under the Directors, Executive Officers section on page
24.
The Company has amended the signature page of the registration statement to
correctly identify Mr. Conway's positions with the Company.
For your review, we have included both a clean and marked draft of the
Amendment No. 1 to the Form SB-2. Please direct any questions or comments
concerning Amendment No. 1 or this response to Robert H. Friedman at (212)
451-2220 or to the undersigned at (212) 451-2232.
Very truly yours,
/s/ Jessica Atkins
---------------------------
Jessica L. Atkins
cc: David A. Conway
Robert H. Friedman
