SEC Comment Letter for TuHURA Biosciences, (HURA) — Oct 6, 2010
TuHURA Biosciences, Inc./NV (HURA) (CIK 0001498382)
Date: Oct. 6, 2010 · CIK: 0001498382 · Accession: 0000000000-10-059127
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 333-168897
Referenced dates: September 10, 2010
Letter
October 6, 2010 David Guest Chief Executive Officer Berry Only Inc. 722B Kingston Road Toronto, Ontario M4E 1R7 Canada Re: Berry Only Inc. Amendment No. 1 to Registrati on Statement on Form S-1 Filed September 23, 2010 File No. 333-168897
Dear Mr. Guest:
We have reviewed your registration statement and have the following comments. General
1. We note your response to comment two in our letter dated September 10, 2010. In view of the facts and circumstan ces surrounding your offering as we understand them and the fact that you are registering for resale 49.6% of your outstanding shares, it appears that the transaction might not be a secondary offe ring eligible to be made on a delayed or continuous basis pursuant to Ru le 415(a)(1)(i) and instead may be a primary offering. Please advise us of your basis for determin ing that the transaction is appropriately characterized as a transa ction that is eligible to be ma de under Rule 415(a)(1)(i). Please provide a detailed response. To assist you in preparing your response, you may wish to refer to Question 612.09 of the Division’s Co mpliance & Disclosure Interpretations for Securities Act Rules, which can be found on our website. 2. As revised, your filing indicates that you are a development stage company involved primarily in organizational activities to date with nominal assets and working capital, no revenues, no firm commitments for rais ing additional financing, no operations, no manufactured products, and no employees (other than your president). These and other facts suggest that your proposed business is commensurate in scope with the uncertainty ordinarily associated with a blank check company and should comply with Rule 419 of Regulation C under the Securities Act of 1933, as amended. Please provide us with your analysis as to why you believe Rule 419 does not apply to your offering or revise the registration statement to comply with Ru le 419 and confirm that you will file post- effective amendments as required by Rule 419(d) and (e). Please note that the offer must contain the terms set fort h in Rule 419(e)(2).
David Guest Berry Only Inc. October 6, 2010 Page 2
3. We have reviewed your response to commen t 26 in our letter dated September 10, 2010. It appears that you have only identified your statement of operations and statement of cash flows as those of a development stage en terprise. As previously requested, please also identify your balance sheet, statement of stockholders’ equity (d eficit) and notes to the financial statements as those of a devel opment stage enterprise. Refer to FASB ASC 915-205-45-4. 4. We have reviewed your response to commen t 27 in our letter dated September 10, 2010. As we previously requested, please revise your presentations of net income (loss) per share throughout the filing to round only to th e nearest cent. For example, you continue to present a loss per shar e of $0.002 for the year ended June 30, 2010 on page 35. Selling Shareholders, page 9
5. We note your response to comment nine in our letter dated September 10, 2010, particularly your statement that “each Selli ng Shareholder represented in writing to the Company that the Shares would be purchased solely for the account of the shareholder and not with a view to, or for resale in connection with, any distribution in any jurisdiction where such sale or distribution would be preclude d.” On the basis of this statement, in your response you conclude th at “each Selling Shar eholder purchased the Shares to be resold in the or dinary course of business, and did not have any agreements or understandings, directly nor indirectly, with any person to distribut e the securities after purchase.” The prior statement does not appe ar to us to support this conclusion. Specifically, in our view the last clause of the statement (“in any jurisdiction where such sale or distribution would be precluded”) re nders the statement vague. As previously requested, please tell us whethe r the selling shareholders pu rchased the securities to be resold in the ordinary course of business a nd, at the time of purchase, please tell us whether the selling shareholders had any agreements or understandings, directly or indirectly, with any person to distribute the securities.
6. We note on page 10 that none of your selling sh areholders has had a material relationship with you other than as a share holder at any time within the past three years. Please confirm whether any of the selling shareholders has had a material relationship with any of your affiliates during the past three years. If such relationships existed, please disclose them. See Item 507 of Regulation S-K.
Advertising, page 20
7. We note your response to comment 20 in our letter dated September 10, 2010. Please describe in more detail how you plan to implement your search engine optimization strategy.
David Guest Berry Only Inc. October 6, 2010 Page 3
Note 2 – Summary of Significan t Accounting Policies, page 33
Recent Accounting Pronouncements, page 35
8. We have reviewed your response to commen t 29 in our letter dated September 10, 2010. It appears that you still disclose that you do not anticipate the adop tion of “ACS 165” will have an impact on your consolidated results of operations or financial position. Since this pronouncement is already effective for you, please revise your disclosure to clearly state that you adopted FASB ASC 855 and it did not have an imp act on your financial position, results of operations or cash flows, if true.
Plan of Operations, page 38
Phase I – Initial Launch (cont’d), page 38
9. We note your response to comment 33 in our letter dated September 10, 2010. In the fourth bullet point, please explain what you mean by “list development.” Liquidity and Capital Resources, page 40
10. We have reviewed your response to commen t 36 in our letter dated September 10, 2010. You disclose on page 40 that you used cash in operating activities in the amount of $863 during the three month period ended June 30, 2010. Based on your statement of cash flows, it appears that you actua lly used cash in operating ac tivities in the amount of $211 during the three month period en ded June 30, 2010. Please revise. Directors, Executive Officers, Promoters and Control Persons, page 41
11. We note your response to comment 37 in our letter dated September 10, 2010; however, we reissue the comment. For Mr. Guest, please specifically discuss the specific experience, qualifications, attributes or skills that led to the conc lusion that he should serve as a director for you in light of your business and structure. If material, this disclosure should cover more th an the past five years, in cluding information about his particular areas of expertise or other re levant qualifications. See Item 401(e) of Regulation S-K. Recent Sales of Unregistered Securities, page 47
12. We note your response to comment 39 in our letter dated September 10, 2010; however, we reissue the comment in part. Please di sclose the section of Rule 903 you relied upon since Section (C)(3) does not appear in Rule 903.
David Guest Berry Only Inc. October 6, 2010 Page 4
You may contact Jeff Gordon at (202) 551-3866 or Rufus Decker at (202) 551-3769 if you have questions regarding comments on the fina ncial statements and related matters. Please contact Jessica Kane at (202) 551-3235 or Dieter King at (202) 551-3338 with any other questions. Sincerely,
Pamela A. Long Assistant Director cc: Karen A. Batcher, Esq. Synergen Law Group, APC 819 Anchorage Place, Suite 28 Chula Vista, CA 91914
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October 6, 2010 David Guest Chief Executive Officer Berry Only Inc. 722B Kingston Road Toronto, Ontario M4E 1R7 Canada Re: Berry Only Inc. Amendment No. 1 to Registrati on Statement on Form S-1 Filed September 23, 2010 File No. 333-168897 Dear Mr. Guest: We have reviewed your registration statement and have the following comments. General 1. We note your response to comment two in our letter dated September 10, 2010. In view of the facts and circumstan ces surrounding your offering as we understand them and the fact that you are registering for resale 49.6% of your outstanding shares, it appears that the transaction might not be a secondary offe ring eligible to be made on a delayed or continuous basis pursuant to Ru le 415(a)(1)(i) and instead may be a primary offering. Please advise us of your basis for determin ing that the transaction is appropriately characterized as a transa ction that is eligible to be ma de under Rule 415(a)(1)(i). Please provide a detailed response. To assist you in preparing your response, you may wish to refer to Question 612.09 of the Division’s Co mpliance & Disclosure Interpretations for Securities Act Rules, which can be found on our website. 2. As revised, your filing indicates that you are a development stage company involved primarily in organizational activities to date with nominal assets and working capital, no revenues, no firm commitments for rais ing additional financing, no operations, no manufactured products, and no employees (other than your president). These and other facts suggest that your proposed business is commensurate in scope with the uncertainty ordinarily associated with a blank check company and should comply with Rule 419 of Regulation C under the Securities Act of 1933, as amended. Please provide us with your analysis as to why you believe Rule 419 does not apply to your offering or revise the registration statement to comply with Ru le 419 and confirm that you will file post- effective amendments as required by Rule 419(d) and (e). Please note that the offer must contain the terms set fort h in Rule 419(e)(2). David Guest Berry Only Inc. October 6, 2010 Page 2 3. We have reviewed your response to commen t 26 in our letter dated September 10, 2010. It appears that you have only identified your statement of operations and statement of cash flows as those of a development stage en terprise. As previously requested, please also identify your balance sheet, statement of stockholders’ equity (d eficit) and notes to the financial statements as those of a devel opment stage enterprise. Refer to FASB ASC 915-205-45-4. 4. We have reviewed your response to commen t 27 in our letter dated September 10, 2010. As we previously requested, please revise your presentations of net income (loss) per share throughout the filing to round only to th e nearest cent. For example, you continue to present a loss per shar e of $0.002 for the year ended June 30, 2010 on page 35. Selling Shareholders, page 9 5. We note your response to comment nine in our letter dated September 10, 2010, particularly your statement that “each Selli ng Shareholder represented in writing to the Company that the Shares would be purchased solely for the account of the shareholder and not with a view to, or for resale in connection with, any distribution in any jurisdiction where such sale or distribution would be preclude d.” On the basis of this statement, in your response you conclude th at “each Selling Shar eholder purchased the Shares to be resold in the or dinary course of business, and did not have any agreements or understandings, directly nor indirectly, with any person to distribut e the securities after purchase.” The prior statement does not appe ar to us to support this conclusion. Specifically, in our view the last clause of the statement (“in any jurisdiction where such sale or distribution would be precluded”) re nders the statement vague. As previously requested, please tell us whethe r the selling shareholders pu rchased the securities to be resold in the ordinary course of business a nd, at the time of purchase, please tell us whether the selling shareholders had any agreements or understandings, directly or indirectly, with any person to distribute the securities. 6. We note on page 10 that none of your selling sh areholders has had a material relationship with you other than as a share holder at any time within the past three years. Please confirm whether any of the selling shareholders has had a material relationship with any of your affiliates during the past three years. If such relationships existed, please disclose them. See Item 507 of Regulation S-K. Advertising, page 20 7. We note your response to comment 20 in our letter dated September 10, 2010. Please describe in more detail how you plan to implement your search engine optimization strategy. David Guest Berry Only Inc. October 6, 2010 Page 3 Note 2 – Summary of Significan t Accounting Policies, page 33 Recent Accounting Pronouncements, page 35 8. We have reviewed your response to commen t 29 in our letter dated September 10, 2010. It appears that you still disclose that you do not anticipate the adop tion of “ACS 165” will have an impact on your consolidated results of operations or financial position. Since this pronouncement is already effective for you, please revise your disclosure to clearly state that you adopted FASB ASC 855 and it did not have an imp act on your financial position, results of operations or cash flows, if true. Plan of Operations, page 38 Phase I – Initial Launch (cont’d), page 38 9. We note your response to comment 33 in our letter dated September 10, 2010. In the fourth bullet point, please explain what you mean by “list development.” Liquidity and Capital Resources, page 40 10. We have reviewed your response to commen t 36 in our letter dated September 10, 2010. You disclose on page 40 that you used cash in operating activities in the amount of $863 during the three month period ended June 30, 2010. Based on your statement of cash flows, it appears that you actua lly used cash in operating ac tivities in the amount of $211 during the three month period en ded June 30, 2010. Please revise. Directors, Executive Officers, Promoters and Control Persons, page 41 11. We note your response to comment 37 in our letter dated September 10, 2010; however, we reissue the comment. For Mr. Guest, please specifically discuss the specific experience, qualifications, attributes or skills that led to the conc lusion that he should serve as a director for you in light of your business and structure. If material, this disclosure should cover more th an the past five years, in cluding information about his particular areas of expertise or other re levant qualifications. See Item 401(e) of Regulation S-K. Recent Sales of Unregistered Securities, page 47 12. We note your response to comment 39 in our letter dated September 10, 2010; however, we reissue the comment in part. Please di sclose the section of Rule 903 you relied upon since Section (C)(3) does not appear in Rule 903. David Guest Berry Only Inc. October 6, 2010 Page 4 You may contact Jeff Gordon at (202) 551-3866 or Rufus Decker at (202) 551-3769 if you have questions regarding comments on the fina ncial statements and related matters. Please contact Jessica Kane at (202) 551-3235 or Dieter King at (202) 551-3338 with any other questions. Sincerely, Pamela A. Long Assistant Director cc: Karen A. Batcher, Esq. Synergen Law Group, APC 819 Anchorage Place, Suite 28 Chula Vista, CA 91914