SEC Comment Letter 0000000000-24-009614 to Nuburu, Inc. (BURU)
Nuburu, Inc.
Date: Aug. 22, 2024 · CIK: 0001814215 · Accession: 0000000000-24-009614
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 001-39489
Letter
August 22, 2024 Brian Knaley Chief Executive Officer Nuburu, Inc. 7442 S. Tucson Way Suite 130 Centennial, CO 80112 Re:Nuburu, Inc. Form 10-K for the Fiscal Year Ended December 31, 2023 File No. 001-39489 Dear Brian Knaley: We have reviewed your August 8, 2024 response to our comment letter and have the following comments. Please respond to this letter within ten business days by providing the requested information or advise us as soon as possible when you will respond. If you do not believe a comment applies to your facts and circumstances, please tell us why in your response. After reviewing your response to this letter, we may have additional comments. Unless we note otherwise, any references to prior comments are to comments in our July 25, 2024 letter. Form 10-K for the Fiscal Year Ended December 31, 2023 Consolidated Financial Statements Note 9. Convertible Preferred Stock, page F-19 We note your response to prior comment 3; however, it does not appear to us that the facts and circumstances related to the redemption features of your preferred stock are comparable to a change in control of provision that would require an affirmative vote by a company’s Board of Directors. In this regard, we note that on January 31, 2025 (the Test Date), you may be obligated to redeem your preferred stock for cash at the Original Issuance Price if the Conversion Price exceeds the lowest volume-weighted average price per share of your common stock and you may also be required to redeem excess preferred stock for cash if conversions of preferred stock to common stock result in a shareholder owning in excess of 9.99% of your shares. You indicate you believe you control the required redemptions under both the Test Date trigger and the Share Cap trigger because the preferred share agreement provides you "leeway" to determine if you have sufficient 1.
August 22, 2024 Page 2 funds legally available under applicable law to redeem all the then outstanding shares. Your response appears to imply, regardless of the actual facts and circumstances that exist on the Test Date, you may merely conclude you do not have sufficient funds legally available under applicable law to redeem all the then outstanding shares. Please more fully address the following: •Explain how you determined the company "solely controls" any of the provisions that could result in your preferred stock becoming redeemable on the Test Date pursuant to ASC 480-10-S99, including whether the Conversion Price exceeds the lowest volume-weighted average price per share of the company's common stock, whether conversions of preferred stock to common stock result in a shareholder owning in excess of 9.99% of your shares, or whether you have sufficient funds legally available; •Explain what recourse is available to the preferred shareholders if you determine the company does not have sufficient funds legally available; and •Although you have filed several exhibits related to your preferred stock, it does not appear these exhibits include or describe the Test Date trigger, the Share Cap trigger, or any potential redemption features related to your preferred stock. Provide us the relevant descriptions of these terms and provisions in the underlying legal agreements. Form 10-K/A filed August 12, 2024 Exhibits 2.We note you filed updated Section 906 certifications in your Form 10-K/A, which were required since your amended periodic report contains financial statements; however, we also note you did not file updated Section 302 certifications, which are required in all amended periodic reports and, based on the format and information in your Form 10-K/A, would not be permitted to be modified. In addition, we note you misidentified and included the certifications you filed under the wrong exhibit number. Please correctly file and identify all required certifications in your amended periodic filing. Refer to Items 601(b)(31) and (32) of Regulation S-K. Please contact Mindy Hooker at 202-551-3732 or Anne McConnell at 202-551-3709 if you have questions regarding comments on the financial statements and related matters. Sincerely, Division of Corporation Finance Office of Manufacturing
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August 22, 2024
Brian Knaley
Chief Executive Officer
Nuburu, Inc.
7442 S. Tucson Way
Suite 130
Centennial, CO 80112
Re:Nuburu, Inc.
Form 10-K for the Fiscal Year Ended December 31, 2023
File No. 001-39489
Dear Brian Knaley:
We have reviewed your August 8, 2024 response to our comment letter and have the
following comments.
Please respond to this letter within ten business days by providing the requested
information or advise us as soon as possible when you will respond. If you do not believe a
comment applies to your facts and circumstances, please tell us why in your response.
After reviewing your response to this letter, we may have additional comments. Unless we
note otherwise, any references to prior comments are to comments in our July 25, 2024 letter.
Form 10-K for the Fiscal Year Ended December 31, 2023
Consolidated Financial Statements
Note 9. Convertible Preferred Stock, page F-19
We note your response to prior comment 3; however, it does not appear to us that the facts
and circumstances related to the redemption features of your preferred stock are
comparable to a change in control of provision that would require an affirmative vote by a
company’s Board of Directors. In this regard, we note that on January 31, 2025 (the Test
Date), you may be obligated to redeem your preferred stock for cash at the Original
Issuance Price if the Conversion Price exceeds the lowest volume-weighted average price
per share of your common stock and you may also be required to redeem excess preferred
stock for cash if conversions of preferred stock to common stock result in a shareholder
owning in excess of 9.99% of your shares. You indicate you believe you control the
required redemptions under both the Test Date trigger and the Share Cap trigger because
the preferred share agreement provides you "leeway" to determine if you have sufficient 1.
August 22, 2024
Page 2
funds legally available under applicable law to redeem all the then outstanding shares.
Your response appears to imply, regardless of the actual facts and circumstances that exist
on the Test Date, you may merely conclude you do not have sufficient funds legally
available under applicable law to redeem all the then outstanding shares. Please more
fully address the following:
•Explain how you determined the company "solely controls" any of the provisions that
could result in your preferred stock becoming redeemable on the Test Date pursuant
to ASC 480-10-S99, including whether the Conversion Price exceeds the lowest
volume-weighted average price per share of the company's common stock, whether
conversions of preferred stock to common stock result in a shareholder owning in
excess of 9.99% of your shares, or whether you have sufficient funds legally
available;
•Explain what recourse is available to the preferred shareholders if you determine the
company does not have sufficient funds legally available; and
•Although you have filed several exhibits related to your preferred stock, it does not
appear these exhibits include or describe the Test Date trigger, the Share Cap
trigger, or any potential redemption features related to your preferred stock. Provide
us the relevant descriptions of these terms and provisions in the underlying legal
agreements.
Form 10-K/A filed August 12, 2024
Exhibits
2.We note you filed updated Section 906 certifications in your Form 10-K/A, which were
required since your amended periodic report contains financial statements; however, we
also note you did not file updated Section 302 certifications, which are required in all
amended periodic reports and, based on the format and information in your Form 10-K/A,
would not be permitted to be modified. In addition, we note you misidentified and
included the certifications you filed under the wrong exhibit number. Please correctly file
and identify all required certifications in your amended periodic filing. Refer to Items
601(b)(31) and (32) of Regulation S-K.
Please contact Mindy Hooker at 202-551-3732 or Anne McConnell at 202-551-3709 if
you have questions regarding comments on the financial statements and related matters.
Sincerely,
Division of Corporation Finance
Office of Manufacturing