January 5, 2005
Martin G. Klein, CEO
Electro Energy Inc.
30 Shelter Rock Road
Danbury Connecticut 06810
Re: Electro Energy Inc.
Form SB-2
File No. 333-121026
Filed December 6, 2004
Dear Mr. Klein:
We have reviewed your filing and have the following
comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
Fee Table
1. In footnotes 3 and 6 to the table you have registered under
Rule
416 "an indeterminate number" of common shares that may become
issuable pursuant to anti-dilution provisions of the Series A
Convertible Preferred Stock and warrants. A price protection
provision, such as found in the Series A stock, does not qualify
for
Rule 416 treatment which applies only to stock splits, stock
dividends and similar transactions. Please revise to make a good
faith estimate of the number of shares you believe may be so
issued,
and register that quantity. If in the future that amount should
prove insufficient, you will need to file another registration
statement.
Prospectus Summary - Page 1
Electro Energy Inc.
2. Explain briefly how your bipolar nickel-metal hydride
technology
differs from conventional nickel-metal hydride battery technology.
Briefly explain why there is currently no commercial market for
your
products and what steps you are taking to overcome barriers to
entry.
3. You are encouraged to provide the company`s website address.
See
Reg. S-B Item 101(c)(3).
The Offering - Page 2
4. Revise the second paragraph to clarify the number of shares
outstanding that are being offered by this prospectus. Also
disclose
the number of shares in this offering that is not included in the
total outstanding amount.
Risks Relating to our Company - Page 3
5. Expand the second risk factor to also discuss your dependence
upon
Eagle Picher as a principal customer. We note you derived
approximately 52% of your revenues for the nine months ended
September 30, 2004, pursuant to the supply agreement with this
party.
6. Revise the third risk factor to concisely summarize the nature
of
the risk. Different risks combined under this caption should be
disclosed and discussed under separate captions.
Management`s Discussion and Analysis - Page 9
7. Please provide a discussion of the MEP transaction and its
impact
on your financial statements. You also should discuss why you
acquired that entity, and present some discussion of its
historical
operations and your plans for that business. If you expect that
MEP`s historical operations and revenues will not be indicative of
its post acquisition operations and revenues, please expand to
describe and to describe the bases for your expectations. Also
make
more detailed disclosure about the nature and terms of the supply
agreement. The existing disclosure about that arrangement is not
sufficiently detailed.
8. We see that you incur both product and administrative costs
with
related parties. Please expand MD&A to present discussion of the
nature and extent of related party transactions and arrangements.
Make reasonably specific disclosure about the products and
services
you obtain from related parties and identify the parties involved.
If
not apparent, make disclosure about the business purpose of the
arrangements. Also make disclosure about any continuing
commitments
to transact with related parties.
Results of Operations - Pages 9, 12
9. Please expand to provide more detailed and specific discussion
of
the underlying government contracts responsible for the services
revenue. At a minimum for each significant arrangement, provide
some
discussion of the significant terms and provisions, performance
periods and conditions, revenues recognized and deliverables.
Also
address any contingencies related to that revenue. For instance,
does the government have audit rights? Are there any
circumstances
where the government may request a refund or reduction of amounts
previously paid? A tabular presentation may be helpful in
conveying
some of this information. Apply for each annual and interim
period
presented.
10. Under gross profit, please expand to separately disclose gross
profit margin (that is, as a percentage of revenues) for services
and
products. Describe reasons for changes in these important ratios
from period to period. Apply for each annual and interim period
presented.
11. As a related matter, please also make disclosure about the
components of costs of revenues for both products and services.
Describe how you identify those costs, including a description of
the
nature and extent of estimates and judgmental allocations, if any.
12. Under SG&A please disclose why you incurred increased legal,
accounting and investor relations expenses in 2004. Please also
make
disclosure about the extent of new hires in 2004, including more
detail about their related functions. In general, MD&A should
identify, quantify and explain reasons for significant changes in
financial statement items. As an example, disclosure that you
incurred increased legal fees is not complete without explanation
of
the underlying reasons for increased costs. Apply the general
guidance throughout MD&A for all periods.
13. With respect to 2003 versus 2002 you attribute the increase in
SG&A, in part, to legal and accounting expenses related to the MEP
transaction. Please quantify the amounts involved. In a
supplemental narrative, tell us why these costs are not
acquisition
costs under FAS 141. Please also make disclosure clarifying the
difference between these costs and those included in purchase
accounting.
14. Please present a separate discussion of R&D expenses,
explaining
why you had none in 2003 and the nature and types you incurred in
2002 and 2004.
15. With respect to the employee stock compensation recorded and
deferred for the grants in 2004, tell us why none of that cost has
been allocated to cost of revenues. Support that allocation
solely
to SG&A is appropriate.
16. With respect to the beneficial conversion feature for the
private
placement, please expand to describe or to refer to a description
of
how this very material amount was measured.
17. It appears that you refer to your "services" and "products"
revenues (as shown in your financial statements) are referred to
as
"base business" and "MEP" in this discussion. Please revise to
clarify the terminology.
18. Please discuss the results of each of your services and
products
segments separately.
Financial Condition - Liquidity and Capital Resources - Page
11
19. We see you have discussed your financing activities. Please
expand to also discuss cash flows from operating activities and
from
investing activities. The discussion of cash flows from
operations
should focus on the primary drivers of that cash flow, such as
cash
receipts from revenues and cash outflows for purchases and
operating
expenses. Also discuss your investments in acquisitions and in
plant
and equipment. For guidance, please see Release No. 33-8350 -
Commission Guidance Regarding Management`s Discussion and Analysis
of
Financial Condition and Results of Operations.
20. With respect to the previous comment, please note that the
form
of the cash flow statement should not limit the substance of the
discussion of cash flows from operations. In that light,
discussions driven by the indirect method cash flow statement
often
provide insufficient analysis.
21. Please discuss any obligations under your government contracts
and grants, such as required expenditures or limitations on types
and
amounts. Clarify whether you have any obligation to return
unspent
funds. Clarify whether you have any obligations for royalties in
addition to CII.
22. You disclose that you plan to make significant investments in
capital equipment. Please disclose what you plan to spend on
capital
acquisitions in 2005.
23. Please revise to discuss the company`s cash flow from
operations
by appropriate operating periods. For example, we note net cash
(used) in 9 months ended 9/30/04 of $(1,061,819).
Critical Accounting Policies and Estimates
24. Please present a discussion of critical accounting policies.
Please note that this disclosure should address the nature and
extent
of complex judgments and estimates inherent to your accounting
practices, including discussion about how you arrive at the
related
amounts presented in the financial statements. You should also
address the susceptibility of those estimates to revision. The
disclosure should not be a recitation of your basic accounting
policies. For guidance refer to FR-60 and FR-72.
Change in and Disagreements with Accountants on Accounting and
Financial Disclosures - Page 42
25. Please present the complete disclosures required by Item 304
of
Regulation S-B.
Our Business Following the Merger - Page 14
26. Throughout the business discussion, limit the use of acronyms,
for example, "EV," "HEV," "PNGV," and "SLI," or define them when
you
believe it is necessary to use them.
27. Please revise this section to provide a more balanced
presentation of the opportunities versus competitive, technical,
marketing, patent protection and other risks associated with your
potential market, as described in your own risk factors section.
28. Please revise to discuss whether you have developed
manufacturing
processes and equipment necessary to produce your products in
commercial quantities. Are these patent protected? Can you
license
the processes and equipment?
29. Please revise to discuss the business reasons for acquiring
MEP.
It is not clear whether MEP has customers other than Eagle Picher.
How are you now using the leased facility and equipment?
30. Discuss the material terms of the Eagle Picher supply
agreement.
31. Discuss the suitability of the equipment and facility in
Colorado
for conversion to manufacture of bipolar NiMH batteries.
32. Discuss the licenses you acquired from Eagle Picher.
33. It is not clear why you have listed prior customers of MEP.
Were
prior purchases by these customers material? Are these current
customers? Do you believe they may become customers again? Is
the
previously purchased technology still attractive to these
entities?
Does the acquisition provide any special status relative to these
entities, such as pre-qualified vendor? Please revise the
disclosure
to explain.
34. Please summarize the government research contracts by dollar
value and the expected earned revenue in future fiscal year
operating
periods.
35. Please revise to address the potential that others may develop
similar or superior battery technologies that erode any
competitive
advantage you presently believe you enjoy. For example, are you
aware of others developing similar technologies, through
government-
sponsored research or otherwise?
The Battery Market - Page 18
36. In the table "World Battery Market" it is unclear what the
first
three ([SLL], Primary and Consular) market categories are intended
to
represent. Please revise to clarify. Throughout the business
section, where you include industry and product data, provide
supplemental support for the data, clearly marking the relevant
sections to support the disclosure. We may have further comments.
37. Please identify the source of the data presented in the table
Electro Energy Projected Markets in 2008. Explain in reasonable
detail the bases for these projections.
38. In the Price and Performance Comparison table please revise
to:
* Correct missing "-" characters
* Define "Principal Balance-Acid," "Ni-Zn," and "Li-Ion."
Established High Performance Markets - Page 19
39. Please explain why you present data from 2001 rather than more
recent information. Do you believe this is reasonably
representative
of current circumstances?
40. In connection with the table Projected Battery Market Share by
Chemistry please revise to explain the bases for your projected
market share. Explain how a variety of uncertainties, such as
production limits, market adoption of your technology,
establishing
distribution channels, improved performance of competing products,
etc., could significantly impact these projections.
41. Supplementally furnish the Santa Clara Group forecast and any
reports prepared by other parties named in the registration
statement. Confirm that Santa Clara and other named parties have
consented to being named in this filing.
Specialty High Performance Markets - Page 20
42. Please explain the terms "part 135 and 91 aircraft," "UPS
systems," and "OEM5."
Director, Executive Officers, Promoters and Control Persons - Page
29
43. Please revise each person`s business experience description to
clarify his or her position(s) specifically during the most
recent 5
years. In several instances it is not clear from the description
given.
Executive Compensation - Page 31
44. Update the executive compensation information throughout this
section to include your most recently completed fiscal year.
Certain Relationships - Page 33
45. Quantify the amounts guaranteed by each of the two officers.
If
material, disclose any compensation received by them for extending
the guarantees. Disclose any plans to release them from their
guarantees.
Selling Security Holders - Page 35
46. Please identify the natural person beneficial owner(s) of each
non-public entity.
47. Please advise which selling security holders are broker-
dealers
or affiliates of broker-dealers. We may have further comment.
Description of Securities - Page 39
48. It is unclear whether any of the shares subject to the lock-up
agreement are registered in this offering. Please advise.
Financial Statements
49. Please update the filing when required by Item 310(g) of
Regulation S-B. Please also note the requirements of Item
310(g)(2)
to the Regulation. That item may require accelerated updating in
any
amendment filed after February 14, 2005.
Consolidated Balance Sheets - Page F-2
50. Confirm supplementally that the item "accounts receivable"
contains only trade receivables from the sales of goods and
services.
If the item contains other types of receivables, supplementally
describe and quantify those items. Unless the amounts involved
are
not significant, please also make footnote disclosure about the
nature of any non-trade receivables included in this caption.
Consolidated Statements of Operations - Page F-4
51. We see that your technology is under development. Tell us why
there is no research and development expense in 2003. Please
explain supplementally and clarify in the filing.
52. Since you are the accounting acquirer in the reverse merger
you
should present earnings per share on the face of the statement of
operations for all periods. Please note that weighted average
shares
should reflect the impact of the reverse merger.
Note 1, The Company - Page F-8
53. Please expand to provide a more specific description of the
products produced by the Colorado Springs business. That is, more
specifically describe the "commercially viable products" produced
by
that business.
Note 2, Summary of Significant Accounting Policies
54. Please tell us supplementally whether you provide a warranty
for
your products. If so, please disclose your accounting policy and
here, or in another Note. Please also present all disclosures
necessary under FIN 45. If you believe that disclosure is not
necessary, explain supplementally.
- -- Inventory - Page F-9
55. Please expand to describe how you identify and account for
inventory impairment. Also supplementally describe your policies
and
practices. Show us that your practices are SAB Topic 5-BB
compliant.
- -- Revenue Recognition and Significant Customers - Page F-9
56. With respect to research and development services, please
expand
to make more and detailed and specific disclosure about your
revenue
practices. Clarify what you mean when you state that revenue is
recognized "as the work is performed." What factors do you
consider
in concluding that contracted work has been appropriately
completed
in recognizing revenue? For example, are there milestones? How
do
you identify and account for contract losses? Are there timing
differences between billings and revenues? If so, how do you
account
for and present such differences? Contract accounting, especially
government contact accounting, can be complex and this disclosure
is
too brief.
57. As a related matter, tell us more about the underlying
contracts
during 2003 and 2004. For significant contracts, tell us how much
revenue was recognized in 2003 and 2004 and describe the principal
terms, requirements and deliverables for each significant
arrangement. With respect to these arrangements show us that your
revenue practices are appropriate under SAB Topic 13 and the
government contract audit guide. To the extent that key terms and
provisions vary, your response should be contract specific.
58. Please expand to clarify how product revenue recognized "at
shipment" meets the criteria for revenue recognition in Topic 13
of
the Staff Accounting Bulletins. That expanded disclosure should
explain how you apply the requirements of the SAB. A generic
recitation of the general factors cited in the SAB is not
sufficient.
59. In a supplemental narrative describe the principal terms of
the
product supply arrangement with Eagle Picher. Also, provide us a
copy of the agreement(s) and any related documents outlining the
terms and conditions of these sales. The supplemental narrative
should show us that your accounting practices for this revenue are
appropriate. That is, show us that it is appropriate to recognize
this revenue at shipment. Refer to SAB Topic 13 for guidance in
preparing your response.
60. We see you report Net Revenue in the statements of operations.
Please disclose what revenue is "net" of. Also provide a
supplemental description of any significant items.
- --Depreciation and Amortization - Page F-9
61. Please expand to identify the accelerated method in use. If
not
otherwise apparent, clarify the pattern of depreciation under that
method. If you are using a tax method, explain to us why that
method
and its related statutory lives are appropriate for financial
reporting purposes.
- -- Stock-Based Compensation - Page F-10
62. Here or in Note 7, please identify which option-pricing model
you
have used for pricing options at fair value. Clarify if the model
or
assumptions are different for your warrants.
Note 6, Long-term Debt - Page F-13
63. Tell us how you selected the 5% discount rate applied to the
Eagle Picher note. Show us that the rate and your considerations
are
consistent with the guidance from APB 21. Between here and Note
8,
we see that the majority of your borrowings bear interest at 10%.
Why
should the discount rate not be higher?
64. With respect to the CII debt, tell us how you applied the
requirements of EITF 86-15. Please also make clarifying
disclosure
and disclose the effective rate of interest for each borrowing
where
materially different from the stated rate.
Note 7, Shareholders` Deficiency - Page F-14
65. With respect to the 240,000 warrants, please expand to
identify
the valuation model and to disclose the related assumptions. You
should also expand Note 11 to disclose the effective rate of
interest
for the related borrowings.
Note 8, Acquisition - Page F-16
66. We see that the MEP acquisition was significant under the
computational rules set forth in Item 310(c) to Regulation S-B.
Please expand to provide audited financial statements for the
acquired business for the periods required under that Item.
67. We see that acquisition expenses (totaling nearly $159,000)
are
unusually material to the purchase price. In a supplemental
schedule
show us the components of these costs. Identify the parties
involved
and, where not apparent, describe the nature of the related
service/product obtained. Show us that the amounts captured as
acquisition costs are appropriate under FAS 141.
68. We see that you assumed an obligation to operate a ground
water
remediation effort. Tell us about the terms and conditions of
this
obligation and the period of performance. Tell us how this
obligation was valued in purchase accounting. Describe the
evidence
you considered in determining the accounting and show us that
you`ve
appropriately applied the requirements of FAS 141. Also make
detailed and specific footnote disclosure about this obligation.
Significant environmental matters should also be described in
MD&A.
For further guidance about environmental matters and related
disclosures refer to SAB Topic 5-Y.
69. We see that you also acquired a supply agreement, a technology
license and a sub-lease. We don`t see any purchase allocation for
these items. In a supplemental analysis tell us how your purchase
allocation considers these items and why that allocation is
appropriate under FAS 141. With respect to these items, show us
how
you interpreted and applied the literature.
70. Please disclose how you determined the fair values of the
assets
acquired and liabilities assumed. You should not attribute those
valuations to an appraisal unless you identify the expert and
include
their consent in any amended filing. Regardless, your
disclosures
should describe how fair values were determined.
Interim Financial Statements
Consolidated Balance Sheets - Page F-20
71. We see the more than $350,000 increase in prepaid expenses
from
December 2003 to September 2004. Supplementally identify and
describe the factors responsible for this significant variance.
72. With respect to the preferred shares issued in the private
placement, supplementally describe any circumstances where you
could
be required to redeem those shares. For instance, preferred
shares
are often redeemable at the option of the holder upon a change in
control or upon a material change in an entity`s business. Provide
us
a supplemental copy of the preferred stock agreement, including
any
related agreements addressing the terms and conditions of those
shares.
73. As a related matter, supplementally and in detail describe
your
consideration of the classification requirements of EITF Topic D-
98
and FAS 150. Provide an analysis of the literature and terms of
securities to support that the classification of these securities
as
equity complies with GAAP.
Note 2, Significant Accounting Policies - Page F-26
74. Under Stock-Based Compensation, please expand to clarify why
you
changed from the minimum value method to the fair value method.
Also
clarify how the computations are different. Non-accountants will
likely be unfamiliar with reasons for the change and the
differences
between the methods.
Note 6, Long-Term Debt - Page F-30
75. We see that CII has waived its rights only through February
2005.
Tell us how you have classified this debt as of September 30,
2004.
Since the waiver only extends into February 2005, if the debt is
not
classified as current, support in GAAP that classification as
long-
term is appropriate.
Note 7, Stockholders` Equity
- -- Preferred Stock - Page F-31
76. Please disclose how you measured the fair value attributed to
the
common shares issued for the EEI Series A preferred stock.
- -- Private Placement - Page F-32
77. In a supplemental response, show us how you measured the
beneficial conversion feature attributed to the private placement.
Show us that your method conforms to the requirements of EITF 98-5
and EITF 00-27. In light of the significance of the amount
involved,
you should also make some disclosure about how the amount was
measured.
- -- Stock Options - Page F-32
78. With respect to the deferred compensation recorded in 2004,
please expand to disclose the amortization method and period. In
a
supplemental response, tell us the date(s) of grant and show us
that
the $1.6 million was appropriately measured under the provisions
of
APB 25.
Accounting Firm Consent - Exhibit 23
79. Please include a currently dated accountants` consent in any
amendment.
Exhibits
80. Please file all material contracts regarding the acquisition
of
MEP and other agreements with Eagle Picher.
81. Please revise Exhibit 5.1 to specify the state of
incorporation
(Florida). Also, in view of the first paragraph on page 2 of the
opinion, please note that you will need to file an updated opinion
on
the date the registrant expects to have the registration statement
declared effective.
Signatures
82. Please revise to specifically identify the controller or chief
accounting officer.
* * * * * * * * *
As appropriate, please amend your registration statement and
periodic reports in response to these comments. You may wish to
provide us with marked copies of the amendment to expedite our
review. File amendment(s) to your 1934 Act reports within 10
business days of this letter`s date. Please furnish a cover
letter
with your amendments 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 amendments 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.
Please file any required exhibits not previously filed and
complete any blank spaces with the next amendment for further
staff
review before requesting acceleration.
Update information in the registration statement to the
latest
practicable date.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the company and its management are in
possession of all facts relating to a company`s disclosure, they
are
responsible for the accuracy and adequacy of the disclosures they
have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert this action as defense in any
proceeding
initiated by the Commission or any person under the federal
securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as a confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
You may contact Jeanne Bennett at (202) 942-1915 or Gary
Todd
at (202) 942-2852 if you have questions regarding comments on the
financial statements and related matters. Please contact Alan
Morris
at (202) 942-1980 or me at (202) 942-1880 with any other
questions.
Sincerely,
Peggy Fisher
Assistant Director
cc. Duane Berlin (Lev & Berlin)
VIA TELEFAX 203-854-1652
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Martin G. Klein, CEO
Electro Energy Inc.
January 5, 2005
Page 14