SEC Company Response from Bimergen Energy (BESS) — Sep 3, 2024
Bimergen Energy Corp
Date: Sept. 3, 2024 · CIK: 0001066764 · Accession: 0001493152-24-034774
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 333-280668
Referenced dates: July 30, 2024
Letter
VIA EDGAR
September 3, 2024
U.S. Securities & Exchange Commission
Division of Corporation Finance
Office of Energy & Transportation
F Street, NE
Washington, D.C. 20549
Attn: Claudia Rios
Liz Packebusch
Re:
Bitech Technologies Corp
Registration Statement on Form S-1 Filed
July 3, 2024
File No. 333-280668
To Whom It May Concern:
Bitech Technologies Corp. (the “Company” or “we”) hereby transmits its response to the comment letter received from the staff (the “Staff”) of the U.S. Securities and Exchange Commission, dated July 30, 2024 regarding the Company’s Registration Statement on Form S-1 filed on July 3, 2024 (the “Registration Statement”). For the Staff’s convenience, we have repeated below the Staff’s comments in bold, and have followed each comment with the Company’s response.
Registration Statement on Form S-1 Cover Page
1. Disclosure elsewhere in your filing appears to indicate an intention to apply for the listing of your common stock on Nasdaq. If so, please disclose on the cover page, and as appropriate throughout the registration statement, if your offering is contingent on receipt of certification to list on Nasdaq.
Response: The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on the cover page and pages 53, 61 and elsewhere of the Registration Statement to provide that the offering is not contingent upon the Company’s listing on a national securities exchange, but the listing is likely contingent upon consummation of the offering.
Table of Contents, page i
2. We note you disclose that the prospectus is “accurate only as of its date, regardless of its time of delivery or the time of any sale of common stock and Pre-Funded warrants.” Please remove the phrase “regardless of its time of delivery.” See Rule 159(a) under the Securities Act. Also, we remind you that you have an obligation to update the prospectus if there has been a material change in your operations, financial condition, etc.
Response: The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page i to include the requested information.
Bitech Technologies Corp.
September 3, 2024
Page
The Offering, page 6
3. We note your disclosure that the Pre-Funded Warrants will have an exercise price of $0.0001 per share and will expire five years from the date of issuance. However, we note your disclosure on the Cover Page that the purchase price of the Pre-Funded Warrants is equal to the price per common share being sold to the public in this offering, minus $0.001. Please clarify whether the purchase price and the exercise price of the Pre- Funded Warrants as currently disclosed are accurate, and if not please revise as appropriate.
Response: The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on the cover page and elsewhere of the Registration Statement to revise the exercise price of $0.0001.
Risk Factors, page 9
4. We note your disclosures of risk factors on pages 10-11, regarding various concerns that are unclear as to the association with your company. For example, you refer to
● “The interruption of the flow of components and materials from international vendors could disrupt our supply chain”
● “We purchase some of our components and materials outside of the United States through arrangements with various vendors and have experienced delays”
● “Failure by our vendors or our component or raw material suppliers to use ethical business practices and comply with applicable laws and regulations may adversely affect our business”
● “We may not achieve the intended benefits of our recent acquisition of Emergen Energy LLC, and the acquisition may disrupt our current plans or operations”
● “If we fail to manage our recent and future growth effectively, we may be unable to execute our business plan, maintain high levels of customer service, or adequately address competitive challenges”
● “We have experienced significant growth in recent periods. We intend to continue to expand our business significantly within existing and new market segments”
● “We rely on third-party general contractors to install energy storage products at our sites. We currently work with a limited number of general contractors”
Bitech Technologies Corp.
September 3, 2024
Page
Given that you have not reported operations that would correlate with these concerns, please clarify each disclosure as to the nature of each concern. For example, identify the nature of any actual arrangements with suppliers and contractors, or clarify if there are none; and explain how you have experienced growth in recent periods, or clarify if this has not occurred.
Also explain to us how the concern over “integrating the business of Emergen” reconciles with your description of the Emergen transaction elsewhere in the filing, e.g. pages 30 and 37, indicating you acquired only rights to develop projects, rather than a business.
Response: The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on pages 11, 12, and elsewhere of the Registration Statement to revise these disclosures and reflect, where appropriate that certain of these risks refer to the Company’s future plans to acquire supplies and materials for its projects and whether such risks may be applicable at that time.
Risks related to the Offering and Ownership of our Common Stock
Certain provisions of Delaware law and antitakeover provisions in our organizational documents could delay or prevent a change of control, page
5. You refer in this section to “the consent rights of the Continuing Equity Owners in the Stockholders Agreement as described in “Certain Relationships and Related Party Transactions — Stockholders Agreement.” However, we could not locate a discussion, in your related party transactions section or elsewhere, regarding such agreement or such continuing equity owners. Please revise or advise.
Response: The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended the Registration Statement to remove this disclosure.
Risk Factors
If you purchase shares in this offering, you will suffer immediate dilution of your investment, page 24
6. You disclose that based on an assumed initial public offering price of $2.25 per share, investors in this offering will experience immediate dilution of $1.61 per share and that purchasers in this offering will have contributed approximately 38.6% of the aggregate price paid by all purchasers of your common stock but will own only 18.7% of common stock outstanding after the offering. Given that you have not disclosed the number of shares to be issued or the price or price range for such shares, please explain how you determined this information, and provide calculations supporting your response.
Response: The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page 25 and elsewhere of the Registration Statement to remove this information.
Bitech Technologies Corp.
September 3, 2024
Page
Use of Proceeds, page 25
7. Please expand your disclosures under this heading to identify any projects that will be constructed with the offering proceeds, and to quantify the funds that will be required to complete those projects and separately all other projects for which proceeds are not expected to be utilized.
Please also quantify the amounts that will be required to satisfy the BESS Initial Fee and the Solar Initial Fee under your Project Management Services Agreement, as well as the aggregate of the incremental fees that are presently disclosed elsewhere in the filing on a per unit basis.
Response: The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page 26 and elsewhere of the Registration Statement to provide that none of the proceeds of the offering will be used to satisfy the BESS Initial Fee and the Solar Initial Fee under the PMSA, as amended, and to include the requested information.
Market for Common Equity and Price Range of Common Stock, page 26
8. Revise to state the range of high and low bid information for any subsequent interim period for which you include financial statements. See Item 201 of Regulation S-K.
Response: The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page 27 and elsewhere of the Registration Statement to include the requested information.
Capitalization, page 27
9. We note your disclosure that the number of shares of common stock to be outstanding after this offering excludes various shares as described in the four bullet points that follow.
With regard to the second bullet point, we note that the 222,222,000 shares of common stock issued on April 24, 2024 in connection with the acquisition of Emergen LLC were outstanding as of the date of the prospectus and should not be excluded.
With regard to the remaining three bullet points, explain your reasons for exclusions. Exclusions of the shares described in the third and fourth bullet points appear inconsistent with your disclosure in the second bullet point “On a pro forma basis.” at the top of the Capitalization table.
Please revise your disclosures as appropriate.
Response: The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page 28 and elsewhere of the Registration Statement to include the requested information.
Bitech Technologies Corp.
September 3, 2024
Page
Dilution, page 28
10. Please explain your reasons for exclusions of the various shares as described in the four bullet points or revise as appropriate, similar to our comment raised in Capitalization above.
Add tables showing calculations of how you determined the net tangible book value amount and per share, and the pro forma (as adjusted) net tangible book value amount and per share after the offering. Additionally, explain your reason(s) for presenting both the pro forma net tangible book value per share and the pro forma as adjusted net tangible book value per share, clarifying the meaning of the former, currently presented as $0.02 per share, which appears to include the $10 million estimated offering proceeds however exclude the corresponding offering shares.
Response: The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page 29 and elsewhere of the Registration Statement to include the requested information.
Management’s Discussion and Analysis, page 29 Liquidity and Capital Resources, page 33
11. We note that in your discussion of liquidity and capital resources as of December 31, 2023 you disclose that one of your primary needs for liquidity is to fund the development projects you expect to pursue following the completion of the business combination with Bridgelink, while your discussion of liquidity as of March 31, 2024 describes the need to fund the development and construct your planned BESS and solar projects that are part of the development project rights you acquired upon completion of the acquisition of Emergen. As you do not appear to have acquired Bridgelink, please revise your disclosure as appropriate.
Response: The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page 35 and elsewhere of the Registration Statement to include the requested information.
12. Please expand your disclosures under this heading to discuss the capital requirements to complete all your BESS and Solar projects, to pay fees under the Project Management Services Agreement, including the BESS Initial Fee, Solar Energy Initial Fee, the aggregate of the various unit-based fees, and the nature of the $50 million financing commitment mentioned on page F-14.
Response: The Company respectfully acknowledges the Staff’s comment and advises the Staff that the $50 million financing commitment referred to on page F-14 was a preliminary, discussed term of the Project Management Services Agreement (“PMSA”) prior to its execution. The Company negotiated this provision out of the PMSA and accordingly did not disclose it within the prospectus.
Bitech Technologies Corp.
September 3, 2024
Page
Please expand your disclosure to discuss the implications of the Project Sale Agreement that you have filed at Exhibit 10.28, indicating that on May 30, 2024 you agreed to sell projects to a third party in exchange for $19.4 million, and explain how this reconciles with disclosures identifying you or your subsidiaries as the company acquiring the projects.
Response: The right to these projects were held by
Show Raw Text
CORRESP
1
filename1.htm
VIA
EDGAR
September 3, 2024
U.S.
Securities & Exchange Commission
Division
of Corporation Finance
Office
of Energy & Transportation
100
F Street, NE
Washington,
D.C. 20549
Attn:
Claudia Rios
Liz
Packebusch
Re:
Bitech
Technologies Corp
Registration
Statement on Form S-1 Filed
July
3, 2024
File
No. 333-280668
To
Whom It May Concern:
Bitech
Technologies Corp. (the “Company” or “we”) hereby transmits its response to the comment letter
received from the staff (the “Staff”) of the U.S. Securities and Exchange Commission, dated July 30, 2024 regarding
the Company’s Registration Statement on Form S-1 filed on July 3, 2024 (the “Registration Statement”). For the
Staff’s convenience, we have repeated below the Staff’s comments in bold, and have followed each comment with the Company’s
response.
Registration
Statement on Form S-1 Cover Page
1. Disclosure
elsewhere in your filing appears to indicate an intention to apply for the listing of your
common stock on Nasdaq. If so, please disclose on the cover page, and as appropriate throughout
the registration statement, if your offering is contingent on receipt of certification to
list on Nasdaq.
Response:
The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on the cover
page and pages 53, 61 and elsewhere of the Registration Statement to provide that the offering is
not contingent upon the Company’s listing on a national securities exchange, but the listing is likely contingent upon consummation
of the offering.
Table
of Contents, page i
2. We
note you disclose that the prospectus is “accurate only as of its date, regardless
of its time of delivery or the time of any sale of common stock and Pre-Funded warrants.”
Please remove the phrase “regardless of its time of delivery.” See Rule 159(a)
under the Securities Act. Also, we remind you that you have an obligation to update the prospectus
if there has been a material change in your operations, financial condition, etc.
Response:
The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page i to
include the requested information.
Bitech
Technologies Corp.
September 3, 2024
Page
2
The
Offering, page 6
3. We
note your disclosure that the Pre-Funded Warrants will have an exercise price of $0.0001 per share and will expire five years from
the date of issuance. However, we note your disclosure on the Cover Page that the purchase price of the Pre-Funded Warrants is equal
to the price per common share being sold to the public in this offering, minus $0.001.
Please clarify whether the purchase price and the exercise price of the Pre- Funded Warrants as currently disclosed are accurate, and
if not please revise as appropriate.
Response:
The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on the
cover page and elsewhere of the Registration Statement to revise the exercise price of $0.0001.
Risk
Factors, page 9
4. We
note your disclosures of risk factors on pages 10-11, regarding various concerns that are
unclear as to the association with your company. For example, you refer to
● “The
interruption of the flow of components and materials from international vendors could disrupt
our supply chain”
● “We
purchase some of our components and materials outside of the United States through arrangements
with various vendors and have experienced delays”
● “Failure
by our vendors or our component or raw material suppliers to use ethical business practices
and comply with applicable laws and regulations may adversely affect our business”
● “We
may not achieve the intended benefits of our recent acquisition of Emergen Energy LLC, and
the acquisition may disrupt our current plans or operations”
● “If
we fail to manage our recent and future growth effectively, we may be unable to execute our
business plan, maintain high levels of customer service, or adequately address competitive
challenges”
● “We
have experienced significant growth in recent periods. We intend to continue to expand our
business significantly within existing and new market segments”
● “We
rely on third-party general contractors to install energy storage products at our sites.
We currently work with a limited number of general contractors”
Bitech
Technologies Corp.
September 3, 2024
Page
3
Given
that you have not reported operations that would correlate with these concerns, please clarify each disclosure as to the nature of each
concern. For example, identify the nature of any actual arrangements with suppliers and contractors, or clarify if there are none; and
explain how you have experienced growth in recent periods, or clarify if this has not occurred.
Also
explain to us how the concern over “integrating the business of Emergen” reconciles with your description of the Emergen
transaction elsewhere in the filing, e.g. pages 30 and 37, indicating you acquired only rights to develop projects, rather than a business.
Response:
The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on pages 11, 12, and elsewhere of the Registration Statement to revise these disclosures and reflect, where appropriate that
certain of these risks refer to the Company’s future plans to acquire supplies and materials for its projects and whether
such risks may be applicable at that time.
Risks
related to the Offering and Ownership of our Common Stock
Certain
provisions of Delaware law and antitakeover provisions in our organizational documents could delay or prevent a change of control, page
17
5. You
refer in this section to “the consent rights of the Continuing Equity Owners in the
Stockholders Agreement as described in “Certain Relationships and Related Party Transactions
— Stockholders Agreement.” However, we could not locate a discussion, in your
related party transactions section or elsewhere, regarding such agreement or such continuing
equity owners. Please revise or advise.
Response:
The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended the Registration Statement
to remove this disclosure.
Risk
Factors
If
you purchase shares in this offering, you will suffer immediate dilution of your investment, page 24
6. You
disclose that based on an assumed initial public offering price of $2.25 per share, investors
in this offering will experience immediate dilution of $1.61 per share and that purchasers
in this offering will have contributed approximately 38.6% of the aggregate price paid by
all purchasers of your common stock but will own only 18.7% of common stock outstanding after
the offering. Given that you have not disclosed the number of shares to be issued or the
price or price range for such shares, please explain how you determined this information,
and provide calculations supporting your response.
Response:
The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page 25 and
elsewhere of the Registration Statement to remove this information.
Bitech
Technologies Corp.
September 3, 2024
Page
4
Use
of Proceeds, page 25
7. Please
expand your disclosures under this heading to identify any projects that will be constructed
with the offering proceeds, and to quantify the funds that will be required to complete those
projects and separately all other projects for which proceeds are not expected to be utilized.
Please
also quantify the amounts that will be required to satisfy the BESS Initial Fee and the Solar Initial Fee under your Project Management
Services Agreement, as well as the aggregate of the incremental fees that are presently disclosed elsewhere in the filing on a per unit
basis.
Response:
The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page 26 and
elsewhere of the Registration Statement to provide that none of the proceeds of the offering will be used to satisfy the BESS
Initial Fee and the Solar Initial Fee under the PMSA, as amended, and to include the requested information.
Market
for Common Equity and Price Range of Common Stock, page 26
8. Revise
to state the range of high and low bid information for any subsequent interim period for
which you include financial statements. See Item 201 of Regulation S-K.
Response:
The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page 27 and
elsewhere of the Registration Statement to include the requested information.
Capitalization,
page 27
9. We
note your disclosure that the number of shares of common stock to be outstanding after this
offering excludes various shares as described in the four bullet points that follow.
With
regard to the second bullet point, we note that the 222,222,000 shares of common stock issued on April 24, 2024 in connection with the
acquisition of Emergen LLC were outstanding as of the date of the prospectus and should not be excluded.
With
regard to the remaining three bullet points, explain your reasons for exclusions. Exclusions of the shares described in the third and
fourth bullet points appear inconsistent with your disclosure in the second bullet point “On a pro forma basis.” at
the top of the Capitalization table.
Please
revise your disclosures as appropriate.
Response:
The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page 28 and
elsewhere of the Registration Statement to include the requested information.
Bitech
Technologies Corp.
September 3, 2024
Page
5
Dilution,
page 28
10. Please
explain your reasons for exclusions of the various shares as described in the four bullet
points or revise as appropriate, similar to our comment raised in Capitalization above.
Add
tables showing calculations of how you determined the net tangible book value amount and per share, and the pro forma (as adjusted) net
tangible book value amount and per share after the offering. Additionally, explain your reason(s) for presenting both the pro forma net
tangible book value per share and the pro forma as adjusted net tangible book value per share, clarifying the meaning of the former,
currently presented as $0.02 per share, which appears to include the $10 million estimated offering proceeds however exclude the corresponding
offering shares.
Response:
The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page 29 and
elsewhere of the Registration Statement to include the requested information.
Management’s
Discussion and Analysis, page 29 Liquidity and Capital Resources, page 33
11. We
note that in your discussion of liquidity and capital resources as of December 31, 2023 you
disclose that one of your primary needs for liquidity is to fund the development projects
you expect to pursue following the completion of the business combination with Bridgelink,
while your discussion of liquidity as of March 31, 2024 describes the need to fund the development
and construct your planned BESS and solar projects that are part of the development project
rights you acquired upon completion of the acquisition of Emergen. As you do not appear to
have acquired Bridgelink, please revise your disclosure as appropriate.
Response:
The Company respectfully acknowledges the Staff’s comment and advises the Staff that it has amended its disclosure on page 35 and
elsewhere of the Registration Statement to include the requested information.
12. Please
expand your disclosures under this heading to discuss the capital requirements to complete
all your BESS and Solar projects, to pay fees under the Project Management Services Agreement,
including the BESS Initial Fee, Solar Energy Initial Fee, the aggregate of the various unit-based
fees, and the nature of the $50 million financing commitment mentioned on page F-14.
Response:
The Company respectfully acknowledges the Staff’s comment and advises the Staff that the $50 million financing commitment referred to
on page F-14 was a preliminary, discussed term of the Project Management Services Agreement (“PMSA”) prior to its execution.
The Company negotiated this provision out of the PMSA and accordingly did not disclose it within the prospectus.
Bitech
Technologies Corp.
September 3, 2024
Page
6
Please
expand your disclosure to discuss the implications of the Project Sale Agreement that you have filed at Exhibit 10.28, indicating that
on May 30, 2024 you agreed to sell projects to a third party in exchange for $19.4 million, and explain how this reconciles with disclosures
identifying you or your subsidiaries as the company acquiring the projects.
Response:
The right to these projects were held by