February 22, 2019
Douglas Croxall
Chief Executive Officer
Crown Electrokinetics Corp.
1110 NE Circle Blvd
Corvallis, Oregon 97330
Re: Crown Electrokinetics Corp.
Draft Registration Statement on Form S-1
submitted December 28, 2018
Dear Mr. Croxall:
We have reviewed your draft registration statement and have the
following comments. In
some of our comments, we may ask you to provide us with information so we may
better
understand your disclosure.
Please respond to this letter by providing the requested information and
either submitting
an amended draft registration statement or publicly filing your registration
statement on
EDGAR. If you do not believe our comments apply to your facts and circumstances
or do not
believe an amendment is appropriate, please tell us why in your response.
After reviewing the information you provide in response to these comments
and your
amended draft registration statement or filed registration statement, we may
have additional
comments.
Draft Registration Statement on Form S-1 submitted December 28, 2018
Registration Statement's Facing Page, page 1
1. If any of the securities being registered are to be offered on a delayed
or continuous basis
under Rule 415 under the Securities Act, please check the applicable
box. We note that
you include under "Undertakings" some of the undertakings specified by
subparagraph (a)
of Item 512 of Regulation S-K.
Our certificate of incorporation and bylaws...contain provisions..., page 10
2. We note that the last bullet point statement indicates that the Court of
Chancery will be
the exclusive forum for certain litigation, including any "derivative
action." Revise the
disclosure to make clear whether this statement applies to actions
arising under the
Securities Act or Exchange Act. We note that Section 27 of the Exchange
Act creates
Douglas Croxall
FirstName LastNameDouglas Croxall
Crown Electrokinetics Corp.
Comapany NameCrown Electrokinetics Corp.
February 22, 2019
February 22, 2019 Page 2
Page 2
FirstName LastName
exclusive jurisdiction over all suits brought to enforce any duty or
liability created by the
Exchange Act or the rules and regulations under it, and Section 22 of
the Securities Act
creates concurrent jurisdiction for federal and state courts over all
suits brought to enforce
any duty or liability created by the Securities Act or the Exchange
Act. If this statement
does not apply to actions arising under the Securities Act or Exchange
Act, revise the
disclosure to make that clear. Additionally, ensure that your
governing documents state
this clearly.
Management's Discussion and Analysis of Financial Condition and Results of
Operations
Deferred Revenue, page 15
3. Please expand your disclosures to state: the type of agreement entered
into with Eastman
Chemical Company and Asahi Glass Co., Ltd.; a description of each
performance
obligation under each agreement; and when you anticipate you will
begin performance
under each agreement.
Business
Intellectual Property, page 21
4. We note your statements that you have seven patents protecting your
electrokinetic
technology. Please revise your disclosures regarding these seven
patents to clarify that
Hewlett-Packard owns these patents, and you have the option to
purchase these patents by
January 31, 2020, which you have not exercised, if correct.
Description of Securities
Warrants, page 32
5. Please tell us which transaction included the warrants to purchase
323,985 shares of
common stock that expire on March 31, 2022. Please also tell us why
you have not
included in this list the 633,983 warrants related to the senior
secured convertible notes
issued on March 31, 2018.
Selling Stockholders, page 34
6. Disclose how each of the selling stockholders acquired the securities
being offered and
sold under the registration statement, including the dates of the
transactions and the
consideration paid by each of the selling stockholders.
7. Indicate the nature of any position, office, or other material
relationship which any selling
stockholder has had within the past three years with you or any of
your predecessors or
affiliates as required by Item 507 of Regulation S-K. For example, we
note the disclosure
elsewhere that Mr. Douglas Croxall is your chairman and chief
executive officer.
8. Confirm that none of the selling stockholders is a broker-dealer or an
affiliate of a broker-
dealer. Note that for any selling stockholder who is a broker-dealer,
the prospectus should
Douglas Croxall
FirstName LastNameDouglas Croxall
Crown Electrokinetics Corp.
Comapany NameCrown Electrokinetics Corp.
February 22, 2019
February 22, 2019 Page 3
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FirstName LastName
state that the selling stockholder is an underwriter and not that the
selling stockholder
"may be deemed to be" an underwriter. Notwithstanding the foregoing,
broker-dealers
and their affiliates who received their securities as compensation for
underwriting
activities need not be identified as underwriters.
Report of Independent Registered Public Accounting Firm, page F-2
9. Please include a dated report from your independent registered public
accounting firm,
Marcum LLP in accordance with Article 2-02(a)(1) of Regulation S-X.
Note 14 - Subsequent Events, page F-20
10. Please disclose the specific date through which subsequent events were
evaluated in
accordance with ASC 855-10-50-1.
Exhibit Index, page II-2
11. Disclosure indicates that Exhibit 3.1 is the "Certificate of
Incorporation of the Registrant
filed April 20, 2015 with the Delaware Secretary of State." If you
have filed any
amendment to your certificate of incorporation, file the amendment as
an exhibit to the
registration statement. Alternatively, if you have not filed any
amendment to your
certificate of incorporation, tell us why not. We note disclosure on
page 32 that your
authorized capital stock consists of 200,000,000 shares of common
stock and
50,000,000 shares of preferred stock, whereas the certificate of
incorporation states that
the amount of total stock that you are authorized to issue is 1,000
shares.
Additionally, disclosure on page F-7 states that you changed your name
to Crown
ElectroKinetics Corp. from 3D Nanocolor Corp., effective April 20,
2015.
12. Disclosure indicates that Exhibit 10.1 is the "HP agreement and
amendment." Exhibit
10.1 includes the second amendment to the intellectual property
agreement, effective as of
January 31, 2016. Please file as an exhibit to the registration
statement the first
amendment to the HP agreement.
Recent Sales of Unregistered Securities, page II-2
13. We note your disclosure that you had no sales of securities within the
past three years
which were not registered under the Securities Act. Please reconcile
withdisclosures
under "Note 8 - Notes Payable" on page F-14, "Note 9 - Stockholders'
Equity" on page F-
16, and "Note 10 - Stock-based Compensation, Restricted Stock and
Stock Options" on
page F-17.
Undertakings, page II-3
14. If applicable, include the undertakings specified by subparagraphs
(a)(5)(ii) and (a)(6) of
Item 512 of Regulation S-K
Douglas Croxall
Crown Electrokinetics Corp.
February 22, 2019
Page 4
General
15. Your disclosure implies that you intend to include a price range in
the prospectus at the
time of effectiveness; however, it appears that you intend to conduct
a best efforts, rather
than firm commitment, underwritten offering. As such, it is not clear
why you intend to
set a fixed price after effectiveness. Please revise to include a
fixed price or tell us the
process by which you intend to set a fixed price post-effectively.
16. Please revise your disclosure throughout to clearly reflect the
aspirational nature of your
business. Where you discuss agreements or licenses, please clarify the
nature of those
agreements so an investor can understand how they relate to your
potential for revenue
generation. Also, please make sure that your risk factors and business
discussion address
whether you own all required patents or other intellectual property
and whether your
agreements provide you the rights you need to conduct your business.
Please also
consider revising to clearly state the specific steps you believe you
must take to reach
revenue generation, and the specific capital you believe you will need
to do so, or advise.
You may contact Al Pavot at 202-551-3738 or Tracey Houser at
202-551-3736 if you
have questions regarding comments on the financial statements and related
matters. Please
contact Edward Kelly at 202-551-3728 or Amanda Ravitz at 202-551-3412 with any
other
questions.
Sincerely,
FirstName LastNameDouglas Croxall
Division of
Corporation Finance
Comapany NameCrown Electrokinetics Corp.
Office of
Manufacturing and
February 22, 2019 Page 4 Construction
FirstName LastName