Correspondence 0001493152-24-042292 from Aspire Biopharma Holdings, Inc. (ASBP)
Aspire Biopharma Holdings, Inc.
Date: Oct. 23, 2024 · CIK: 0001847345 · Accession: 0001493152-24-042292
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 333-281991
Letter
Division of Corporate Finance Office of Life Sciences Attention: Tyler Howes, Tim Buchmiller, Eric Atallah, and Lynn Dicker Re: PowerUp Acquisition Corp. Registration Statement on Form S-4 Filed September 6, 2024 File No. 333-281991
Dear Mr. Howes, Mr. Buchmiller, Mr. Atallah and Ms. Dicker:
This response letter (this “Response”) is submitted on behalf of PowerUp Acquisition Corp. (the “Company”) in response to the comments that the Company received from the staff of the Division of Corporation Finance (the “Staff”) of the U.S. Securities and Exchange Commission (the “SEC”) in a letter addressed to Mr. Ajjarapu, dated October 8, 2024 (the “Comment Letter”), with respect to the Company’s registration statement on Form S-4 (the “Registration Statement”), filed with the SEC on September 6, 2024. The Company is concurrently submitting a first amendment to the Registration Statement (“Amendment No. 1”), which reflects the changes discussed in this Response that the Company made to address the Staff’s comments and other updates.
For reference purposes, each of the Staff’s numbered comments from the Comment Letter is set forth in bold text below, followed by the Company’s response to each comment. All capitalized terms used but not defined in this Response have the meanings ascribed to them in Amendment No. 1.
The responses below are based on information provided to Dykema Gossett PLLC by the Company.
Registration Statement on Form S-4
Cover Page
1. Please revise your cover page to state the determination of the board of directors disclosed in response to Item 1606(a) of Regulation S-K. Refer to Item 1604(a)(1) of Regulation S-K for guidance.
Response: In response the Staff’s comments, the Company has revised its disclosures on the cover page of Amendment No. 1.
California | Illinois | Michigan | Minnesota | Texas | Washington, D.C. | Wisconsin
U.S. Securities and Exchange Commission
Division of Corporate Finance
October 24, 2024
Page 2
2. Please revise your cover page to provide the disclosures required by Regulation S-K Item 1604(a)(3) and (4).
Response: In response the Staff’s comments, the Company has revised its disclosures on the cover page of Amendment No. 1.
3. We note your disclosure that the implied enterprise value of Aspire at the time of signing the Business Combination Agreement was in the range between $744 million to $822 million. Please update to disclose the final valuation attributed to Aspire Biopharma, Inc. in connection with the business combination on your cover page or explain why there is a range.
Response: In response the Staff’s comments, the Company has revised its disclosures on the cover page of Amendment No. 1.
4. Please identify the “original sponsor” upon your first use of this term.
Response: In response the Staff’s comments, the Company has revised its disclosures on the cover page of Amendment No. 1.
5. We note that you are registering 14,375,000 Public Warrants to purchase New Aspire Common Stock and that those warrants will be exercisable commencing 30 days following the Closing and that you must complete the initial business combination by February 17, 2025 (or by the end of any Extension Period if you further extend the period of time to consummate an initial business combination). To the extent that the Public Warrants are exercisable within one year of the registration of those securities, please also register the underlying shares of common stock in accordance with Securities Act Sections C&DI Question 103.04 and indicate the offering of the shares underlying the Public Warrants in the headings on the cover page and elsewhere in your disclosure.
Response: In response the Staff’s comments, the Company has revised its disclosures on the cover page of Amendment No. 1.
6. We note from the third paragraph on the second page of your cover page that you are registering 45,937,500 shares of New Aspire Class A Common Stock and that in connection with the PowerUp Domestication, prior to the Closing Date, each issued and outstanding Class A ordinary share of PowerUp will convert, on a one-for-one basis, into a share of Class A common stock of New Aspire. Please also register the 577,644 shares of New Aspire Class A Common Stock that may be issued upon conversion of the Class A ordinary shares of PowerUp that are currently held by the public shareholders and revise your disclosure as appropriate.
Response: In response the Staff’s comments, the Company has revised its disclosures on the cover page of Amendment No. 1.
Questions and Answers for Shareholders of PowerUp
Q: Why is PowerUp proposing the Business Combination?, page 13
7. Revise to clarify if “oral consumption” means sublingual absorption as indicated elsewhere in the filing. We also note your references to a “patented formulation” and the disclosure on page 212 that Aspire’s new “patent pending” formulation is a significant improvement on the previously patented formulation. Revise your disclosure here and throughout to clarify whether you have patent protection on your current formulation or on any prior inventions on which your formulation is based.
Response: In response the Staff’s comments, the Company has revised its disclosures on page 13 and has updated the intellectual property disclosures throughout Amendment No. 1.
U.S. Securities and Exchange Commission
Division of Corporate Finance
October 24, 2024
Page 3
Q: What conditions must be satisfied to complete the Business Combination?, page 26
8. Please disclose which of these conditions can be waived and the parties may still proceed with closing the business combination.
Response: In response the Staff’s comments, the Company has revised its disclosures on page 26 and elsewhere throughout Amendment No. 1.
Q: What interests do PowerUp’s current officers and directors, Initial Shareholders, and Aspire’s..., page 30
9. Please disclose if any consideration was received by the shareholders who have agreed not to redeem their shares and to vote in favor of the merger agreement.
Response: In response the Staff’s comments, the Company has revised its disclosures on pages 30, 50, 84, and 152 of Amendment No. 1 to clarify that the Initial Shareholders agreed not to redeem their shares and vote in favor of the Business Combination pursuant to the terms of the Letter Agreement, not in exchange for any consideration.
Summary of the Proxy Statement/Prospectus
Aspire, page 36
10. Please revise to define the term “do no harm” drugs at first use in this section.
Response: In response the Staff’s comments, the Company has revised its disclosures on page 36 of Amendment No. 1 and elsewhere as appropriate to define the term “do no harm.”
11. Please clearly disclose the current developmental and regulatory status of your Instaprin candidate. For example, we note disclosure on page 67 states that Instaprin is currently in the “early stages of preclinical development.” We also note disclosure on page 211 indicates that you have already completed a Phase 1 clinical trial for this product candidate and your reference to “additional clinical trials” here and throughout. Please revise to clarify the current development status of your Instaprin candidate and reconcile these inconsistencies, or advise.
Response: In response the Staff’s comments, the Company has revised its disclosures on page 211 of Amendment No. 1 and elsewhere as appropriate for consistency.
12. We note your statement that Instaprin will be able to deliver large doses with no dilution through absorption in the bloodstream and that it will have “no harmful impact on the gastric system” or its mucous membrane. Please revise to clarify, if true, that this is an aspirational statement that represents the belief of management or present the material data that supports this statement and identify the source of the data.
Response: In response the Staff’s comments, the Company has revised its disclosures on page 36 of Amendment No. 1 and elsewhere as appropriate for consistency.
U.S. Securities and Exchange Commission
Division of Corporate Finance
October 24, 2024
Page 4
13. We note disclosure stating you intend to apply for Fast Track designation for the prescription strength formulation of Instaprin given the “history of safety” observed in “Q4 2024.” Please explain what is meant by the phrase “history of safety” in this context. To the extent you are referring to the results of a clinical trial, revise to instead present the objective results observed while conducting said trial. Alternatively, please remove this statement.
Response: In response the Staff’s comments, the Company has revised its disclosures on page 36 of Amendment No. 1 and elsewhere as appropriate to clarify the statements referenced in this comment 13.
PowerUp Sponsor, page 37
14. Please identify the individual or individuals that control SRIRAMA Associates, LLC. In your revisions, please also disclose any individuals that have direct or indirect material interests in SRIRAMA Associates, LLC, as well as quantifying the nature and amount of their interests. Refer to Item 1603(a)(7) of Regulation S-K for guidance.
Response: In response the Staff’s comments, the Company has revised its disclosures on page 37 of Amendment No. 1.
15. We note your statement that Surendra Ajjarapu, the manager of SRIRAMA Associates, LLC, has “extensive experience” with other SPACs. Please revise to provide additional and balanced disclosure about Mr. Ajjarapu’s, the Sponsor’s or the Original Sponsor’s experience with other SPACs including any completed business combinations, liquidated SPACs, pending business combinations and any other SPACs the Sponsor or Original Sponsor or any of their affiliates or promoters are affiliated with that are still searching for a target. Your revisions should also address, as applicable, extensions of prior SPACs and redemption levels experienced by prior SPACs in connection with any extension request or business combination. Refer to Item 1603(a)(3) of Regulation S-K.
Response: In response the Staff’s comments, the Company has revised its disclosures on page 37 of Amendment No. 1.
Compensation Received by the Sponsor, the Original Sponsor, and Their Affiliates, page 45
16. Please revise this section to also include any compensation received by the directors and officers of PowerUp Acquisition Corp.
Response: In response the Staff’s comments, the Company has revised its disclosures on page 47 of Amendment No. 1.
17. Please revise here to disclose the nature and amounts of any reimbursements that will be paid to the Original Sponsor, the Sponsor, any of their respective affiliates, or promoters upon completion of the business combination. Refer to Regulation S-K Item 1603(a)(6) for guidance.
Response: In response the Staff’s comments, the Company has revised its disclosures on page 47 of Amendment No. 1.
U.S. Securities and Exchange Commission
Division of Corporate Finance
October 24, 2024
Page 5
18. Please define and quantify the term “Sponsor Advisory Fee” as used in footnote 5 and elsewhere and ensure that such fee is indicated under the heading “Compensation Received by the Sponsor, the Original Sponsor, and Their Affiliates” on page 45 and in the section titled “Interests of PowerUp’s Directors and Executive Officers, the Initial Shareholders, and Aspire’s Directors and Executive Officers in the Business Combination.”
Response: In response the Staff’s comments, the Company has revised its disclosures on pages 46 and 47 of Amendment No. 1 to remove the term “Sponsor Advisory Fee,” as it was included in error.
Risk Factors
19. Please i
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CORRESP
1
filename1.htm
Dykema
Gossett PLLC
111
E. Kilbourn Ave.
Suite
1050
Milwaukee,
WI 53202
www.dykema.com
Tel:
414-488-7300
Kate
Bechen
Direct
Dial: (414) 488-7333
Email:
KBechen@dykema.com
October
24, 2024
U.S.
Securities and Exchange Commission
Division
of Corporate Finance
Office
of Life Sciences
100
F Street, N.E.
Washington,
D.C. 20549
Attention:
Tyler Howes, Tim Buchmiller, Eric Atallah, and Lynn Dicker
Re: PowerUp
Acquisition Corp.
Registration
Statement on Form S-4
Filed
September 6, 2024
File
No. 333-281991
Dear
Mr. Howes, Mr. Buchmiller, Mr. Atallah and Ms. Dicker:
This
response letter (this “Response”) is submitted on behalf of PowerUp Acquisition Corp. (the “Company”)
in response to the comments that the Company received from the staff of the Division of Corporation Finance (the “Staff”)
of the U.S. Securities and Exchange Commission (the “SEC”) in a letter addressed to Mr. Ajjarapu, dated October 8,
2024 (the “Comment Letter”), with respect to the Company’s registration statement on Form S-4 (the “Registration
Statement”), filed with the SEC on September 6, 2024. The Company is concurrently submitting a first amendment to the Registration
Statement (“Amendment No. 1”), which reflects the changes discussed in this Response that the Company made to address
the Staff’s comments and other updates.
For
reference purposes, each of the Staff’s numbered comments from the Comment Letter is set forth in bold text below, followed by
the Company’s response to each comment. All capitalized terms used but not defined in this Response have the meanings ascribed
to them in Amendment No. 1.
The
responses below are based on information provided to Dykema Gossett PLLC by the Company.
Registration
Statement on Form S-4
Cover
Page
1. Please
revise your cover page to state the determination of the board of directors disclosed in
response to Item 1606(a) of Regulation S-K. Refer to Item 1604(a)(1) of Regulation S-K for
guidance.
Response:
In response the Staff’s comments, the Company has revised its disclosures on the cover page of Amendment No. 1.
California | Illinois | Michigan | Minnesota | Texas | Washington, D.C.
| Wisconsin
U.S. Securities and Exchange Commission
Division of Corporate Finance
October
24, 2024
Page 2
2. Please
revise your cover page to provide the disclosures required by Regulation S-K Item 1604(a)(3)
and (4).
Response:
In response the Staff’s comments, the Company has revised its disclosures on the cover page of Amendment No. 1.
3. We
note your disclosure that the implied enterprise value of Aspire at the time of signing the
Business Combination Agreement was in the range between $744 million to $822 million. Please
update to disclose the final valuation attributed to Aspire Biopharma, Inc. in connection
with the business combination on your cover page or explain why there is a range.
Response:
In response the Staff’s comments, the Company has revised its disclosures on the cover page of Amendment No. 1.
4. Please
identify the “original sponsor” upon your first use of this term.
Response:
In response the Staff’s comments, the Company has revised its disclosures on the cover page of Amendment No. 1.
5. We
note that you are registering 14,375,000 Public Warrants to purchase New Aspire Common Stock
and that those warrants will be exercisable commencing 30 days following the Closing and
that you must complete the initial business combination by February 17, 2025 (or by the end
of any Extension Period if you further extend the period of time to consummate an initial
business combination). To the extent that the Public Warrants are exercisable within one
year of the registration of those securities, please also register the underlying shares
of common stock in accordance with Securities Act Sections C&DI Question 103.04 and indicate
the offering of the shares underlying the Public Warrants in the headings on the cover page
and elsewhere in your disclosure.
Response:
In response the Staff’s comments, the Company has revised its disclosures on the cover page of Amendment No. 1.
6. We
note from the third paragraph on the second page of your cover page that you are registering
45,937,500 shares of New Aspire Class A Common Stock and that in connection with the PowerUp
Domestication, prior to the Closing Date, each issued and outstanding Class A ordinary share
of PowerUp will convert, on a one-for-one basis, into a share of Class A common stock of
New Aspire. Please also register the 577,644 shares of New Aspire Class A Common Stock that
may be issued upon conversion of the Class A ordinary shares of PowerUp that are currently
held by the public shareholders and revise your disclosure as appropriate.
Response:
In response the Staff’s comments, the Company has revised its disclosures on the cover page of Amendment No. 1.
Questions
and Answers for Shareholders of PowerUp
Q:
Why is PowerUp proposing the Business Combination?, page 13
7. Revise
to clarify if “oral consumption” means sublingual absorption as indicated elsewhere
in the filing. We also note your references to a “patented formulation” and the
disclosure on page 212 that Aspire’s new “patent pending” formulation is
a significant improvement on the previously patented formulation. Revise your disclosure
here and throughout to clarify whether you have patent protection on your current formulation
or on any prior inventions on which your formulation is based.
Response:
In response the Staff’s comments, the Company has revised its disclosures on page 13 and has updated the intellectual
property disclosures throughout Amendment No. 1.
U.S. Securities and Exchange Commission
Division of Corporate Finance
October
24, 2024
Page 3
Q:
What conditions must be satisfied to complete the Business Combination?, page 26
8. Please
disclose which of these conditions can be waived and the parties may still proceed with closing
the business combination.
Response:
In response the Staff’s comments, the Company has revised its disclosures on page 26 and elsewhere throughout Amendment No.
1.
Q:
What interests do PowerUp’s current officers and directors, Initial Shareholders, and Aspire’s..., page 30
9. Please
disclose if any consideration was received by the shareholders who have agreed not to redeem
their shares and to vote in favor of the merger agreement.
Response:
In response the Staff’s comments, the Company has revised its disclosures on pages 30, 50, 84, and 152 of
Amendment No. 1 to clarify that the Initial Shareholders agreed not to redeem their shares and vote in favor of the Business Combination
pursuant to the terms of the Letter Agreement, not in exchange for any consideration.
Summary
of the Proxy Statement/Prospectus
Aspire,
page 36
10. Please
revise to define the term “do no harm” drugs at first use in this section.
Response:
In response the Staff’s comments, the Company has revised its disclosures on page 36 of Amendment No. 1 and elsewhere
as appropriate to define the term “do no harm.”
11. Please
clearly disclose the current developmental and regulatory status of your Instaprin candidate.
For example, we note disclosure on page 67 states that Instaprin is currently in the “early
stages of preclinical development.” We also note disclosure on page 211 indicates that
you have already completed a Phase 1 clinical trial for this product candidate and your reference
to “additional clinical trials” here and throughout. Please revise to clarify
the current development status of your Instaprin candidate and reconcile these inconsistencies,
or advise.
Response:
In response the Staff’s comments, the Company has revised its disclosures on page 211 of Amendment No. 1 and elsewhere
as appropriate for consistency.
12. We
note your statement that Instaprin will be able to deliver large doses with no dilution through
absorption in the bloodstream and that it will have “no harmful impact on the gastric
system” or its mucous membrane. Please revise to clarify, if true, that this is an
aspirational statement that represents the belief of management or present the material data
that supports this statement and identify the source of the data.
Response:
In response the Staff’s comments, the Company has revised its disclosures on page 36 of Amendment No. 1 and elsewhere
as appropriate for consistency.
U.S. Securities and Exchange Commission
Division of Corporate Finance
October
24, 2024
Page 4
13. We
note disclosure stating you intend to apply for Fast Track designation for the prescription
strength formulation of Instaprin given the “history of safety” observed in “Q4
2024.” Please explain what is meant by the phrase “history of safety” in
this context. To the extent you are referring to the results of a clinical trial, revise
to instead present the objective results observed while conducting said trial. Alternatively,
please remove this statement.
Response:
In response the Staff’s comments, the Company has revised its disclosures on page 36 of Amendment No. 1 and elsewhere
as appropriate to clarify the statements referenced in this comment 13.
PowerUp
Sponsor, page 37
14. Please
identify the individual or individuals that control SRIRAMA Associates, LLC. In your revisions,
please also disclose any individuals that have direct or indirect material interests in SRIRAMA
Associates, LLC, as well as quantifying the nature and amount of their interests. Refer to
Item 1603(a)(7) of Regulation S-K for guidance.
Response:
In response the Staff’s comments, the Company has revised its disclosures on page 37 of Amendment No. 1.
15. We
note your statement that Surendra Ajjarapu, the manager of SRIRAMA Associates, LLC, has “extensive
experience” with other SPACs. Please revise to provide additional and balanced disclosure
about Mr. Ajjarapu’s, the Sponsor’s or the Original Sponsor’s experience
with other SPACs including any completed business combinations, liquidated SPACs, pending
business combinations and any other SPACs the Sponsor or Original Sponsor or any of their
affiliates or promoters are affiliated with that are still searching for a target. Your revisions
should also address, as applicable, extensions of prior SPACs and redemption levels experienced
by prior SPACs in connection with any extension request or business combination. Refer to
Item 1603(a)(3) of Regulation S-K.
Response:
In response the Staff’s comments, the Company has revised its disclosures on page 37 of Amendment No. 1.
Compensation
Received by the Sponsor, the Original Sponsor, and Their Affiliates, page 45
16. Please
revise this section to also include any compensation received by the directors and officers
of PowerUp Acquisition Corp.
Response:
In response the Staff’s comments, the Company has revised its disclosures on page 47 of Amendment No. 1.
17. Please
revise here to disclose the nature and amounts of any reimbursements that will be paid to
the Original Sponsor, the Sponsor, any of their respective affiliates, or promoters upon
completion of the business combination. Refer to Regulation S-K Item 1603(a)(6) for guidance.
Response:
In response the Staff’s comments, the Company has revised its disclosures on page 47 of Amendment No. 1.
U.S. Securities and Exchange Commission
Division of Corporate Finance
October
24, 2024
Page 5
18. Please
define and quantify the term “Sponsor Advisory Fee” as used in footnote 5 and
elsewhere and ensure that such fee is indicated under the heading “Compensation Received
by the Sponsor, the Original Sponsor, and Their Affiliates” on page 45 and in the section
titled “Interests of PowerUp’s Directors and Executive Officers, the Initial
Shareholders, and Aspire’s Directors and Executive Officers in the Business Combination.”
Response:
In response the Staff’s comments, the Company has revised its disclosures on pages 46 and 47 of Amendment No. 1 to
remove the term “Sponsor Advisory Fee,” as it was included in error.
Risk
Factors
19. Please
i