Mail Stop 3561
September 23, 2005
David Micek
Chief Executive Officer
Eagle Broadband, Inc.
101 Courageous Drive
League City, TX 77573-3925
Re: Eagle Broadband, Inc.
Form S-1, filed August 26, 2005
Amendment No. 1 to Form S-1, filed September 1, 2005
File No. 333-127895
Dear Mr. Micek:
We have limited our review of your filings to the plan of
distribution, terms of the sales to the selling shareholders and
other issues we have addressed below and we have the following
comments. Please amend the registration statement 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
filings.
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.
Form S-1
General
1. We encourage you to file all exhibits with your next amendment
or
otherwise furnish us a draft of your legality opinion. We must
review this document before the registration statement is declared
effective, and we may have additional comments.
2. Please advise us in your response letter why it is not
premature
to register resales of the shares that have not yet been issued
pursuant to your August 2005 financing. In this regard, we note
that
you state in your filings that you have "completed" a private
placement in connection with your August 2005 financing. See, for
example, the Letter to Shareholders in your Definitive Additional
Materials filed September 8, 2005. However, that transaction does
not seem to be completed for purposes of section 4(2) of the
Securities Act, since you also disclose in that Letter that "we
have
sold 15,125,000 shares for gross proceeds of $2,041,875. However,
in
order to complete the financing, the American Stock Exchange is
now
requiring us to obtain shareholder approval in order to permit us
to
issue and sell the remaining 14,875,000 shares which will allow us
to
raise additional gross proceeds of $2,008,125."
In your response, provide your analysis whether or not the
purchasers
in your August 2005 financing are at market risk with respect to
all
of the securities you are registering for resale and whether they
are
irrevocably bound to purchase a set number of securities, all of
those that you are registering for resale, for a set purchase
price.
Tell us whether there has been a closing under the Securities
Purchase Agreement and, if so, when and whether there will be any
future closings. Also explain whether there are any conditions to
closing the private placement of the securities being registered
that
are within the purchasers` control. In this regard, explain in
your
response letter whether or not the selling shareholders will be
able
to vote on the proposal to authorize the issuance of shares in
connection with the August 2005 financing. The Definitive
Additional
Materials filed September 8, 2005, at page 2 of the Proxy
Statement
Supplement, indicate that you sold a significant number of shares
to
some of these selling shareholders in offerings in February and
April
2005.
See Interpretation No. 3S in Division of Corporation Finance:
Manual
of Publicly Available Telephone Interpretations (March 1999
supplement), which is available on our web site at
http://www.sec.gov/interps/telephone/phonesupplement1.htm.
3. A condition to relying upon Section 4(2) of the Securities Act
of
1933 is the absence of a public distribution in connection with
the
private sale of securities. Since it appears that conditions to
the
private sale of securities to the selling shareholders are not
complete or are still within the control of the selling
shareholders
(e.g. shareholder approval), tell us in your response letter why
the
filing of the registration statement does not undermine your
reliance
on Section 4(2).
Prospectus Summary, page 1
4. Please generally revise the disclosure in your registration
statement regarding your August 2005 financing to clarify the
number
of shares you have sold, the amount of proceeds you have received
and
the dates on which those sales and payments occurred. Also
clarify
whether, and if so when, the warrant was issued to the Keystone
Group
and whether the number of shares into which it may be converted
depends on the pending shareholder vote.
Risk Factors, page 6
We have a history of operating losses and may never achieve
profitability., page 6
5. We note your statement that "In August 2005, the Company
privately
placed the sale of up to 30 million shares of its common stock for
net proceeds of up to $3,766,500." Since you disclose elsewhere
that
you have not sold all of those shares, it does not seem
appropriate
to refer to that transaction as completed. See, for example, the
Letter to Shareholders in your Definitive Additional Materials
filed
September 8, 2005. Revise here and elsewhere as appropriate to
clarify the status of that transaction.
Experts, page 48
6. We note your statements that you have incorporated your
financial
statements by reference to your periodic reports. Please revise
to
remove those statements since you may not use incorporation by
reference for this purpose on Form S-1.
7. Similarly, we note your references to "the report of Malone &
Bailey, P.L.L.C" and your disclosure that Malone & Bailey audited
your financial statements for the year ended August 31, 2003.
However, Lopez & Associates reaudited your financial statements
for
the year ended August 31, 2003. Revise the registration statement
to
delete the reference to Malone & Bailey in your experts section.
Where You Can Find More Information, page 48
8. You may revise your reference to the SEC`s public reference
room
to include the current address of our public reference room at 100
F
Street, N.E., Washington, DC 20549.
Part II - Information not Required in the Prospectus, page II-1
Item 15. Recent Sales of Unregistered Securities, page II-2
9. Please revise to disclose the consideration in each of these
sales
and name the directors and members of senior management to whom
you
sold securities. See Item 701(b) and (c) of Regulation S-K. For
example, what amount of debt was satisfied by your December 2005
issuance to Jango? Similarly disclose the consideration for your
October and September 2003 transactions.
Item 16. Exhibits, page II-4
10. Please revise to list the securities purchase agreements and
other material agreements related to your financings in February,
April and August, 2005. File those agreements as exhibits, if
they
have not yet been filed. See Item 601(b)(10) of Regulation S-K.
11. Also, please revise to remove your exhibits from the body of
the
registration statement. The exhibits should be separately filed
and
tagged on EDGAR as exhibits, and not appended to the body of the
registration statement.
* * * * *
Please amend your registration statement in response to
these
comments. You may wish to provide us with marked copies of the
amendment to expedite our review. Please furnish a response
letter
with your amendment that keys your responses to our comments and
provides any requested supplemental information. Please submit
the
response letter on EDGAR as correspondence. Detailed response
letters greatly facilitate our review. Please understand that we
may
have additional comments after reviewing your amendment and
responses
to our comments.
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 staff comments and the declaration of
effectiveness as a 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.
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 contact Daniel Zimmerman, Staff Attorney, at (202)
551-
3367 or me at (202) 551-3810 with any questions.
Sincerely,
Larry Spirgel
Assistant Director