Correspondence 0001140361-24-027616 from Trump Media & Technology Group Corp. (DJT)
Trump Media & Technology Group Corp.
Date: May 28, 2024 · CIK: 0001849635 · Accession: 0001140361-24-027616
AI Filing Summary & Sentiment
File numbers found in text: 333-278678
Referenced dates: May 21, 2024
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CORRESP
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NELSON MULLINS RILEY & SCARBOROUGH LLP
ATTORNEYS AND COUNSELORS AT LAW
Jonathan H. Talcott
T 202.689.2806
jon.talcott@nelsonmullins.com
101 Constitution Avenue, NW | Suite 900
Washington, DC 20001
T 202.689.2800 F 202.689.2860
nelsonmullins.com
May 28, 2024
Via Electronic Transmission
Lauren Pierce
Jeffrey Kauten
Office of Technology
Division of Corporation Finance
U.S. Securities and Exchange Commission
100 F Street, NE
Washington, D.C. 20549
Re:
Trump Media & Technology Group Corp.
Registration Statement on Form S-1
Filed April 15, 2024
File No. 333-278678
Dear Lauren Pierce and Jeffrey Kauten:
On behalf of Trump Media & Technology Group Corp., a Delaware corporation (“we” or “Company”), we submit to the staff (the “Staff”) of the Securities and Exchange Commission (the “Commission”) this letter setting forth the
Company’s responses to the comments contained in the Staff’s letter dated May 21, 2024, regarding the Company’s Registration Statement on Form S-1 filed with the Commission on April 15, 2024 (the “Registration Statement”). For the Staff’s convenience, we have repeated below each of the Staff’s comments in bold, and have followed such comment with the Company’s response. We also
respectfully advise the Staff that, once the Company’s new auditor completes its audit of the financial statements for the fiscal years ended December 31, 2023 and 2022, the Company intends to file Amendment No. 1 to the Company’s Registration
Statement on Form S-1 with the Commission through EDGAR (the “Amended Registration Statement”), which, to the extent the Company’s response to a comment
below includes proposed revisions to disclosure, such proposals relate to the proposed revisions to the Registration Statement to be reflected in the Amended Registration Statement. All page references in the responses set forth below refer to page
numbers in the Registration Statement.
California | Colorado | District of Columbia | Florida | Georgia | Illinois | Maryland | Massachusetts |
Minnesota
New York | North Carolina | Ohio | Pennsylvania | South Carolina | Tennessee | Texas | Virginia | West
Virginia
Lauren Pierce
Jeffrey Kauten
Office of Technology
Division of Corporation Finance
U.S. Securities and Exchange Commission
May 28, 2024
Page 2
Registration Statement on Form S-1
Cover page
1.
Please disclose that the shares issued as compensation were issued without the payment of any additional consideration or advise.
Response:
The Company acknowledges the Staff’s comment and respectfully advises the Staff that, in response to the Staff’s comment, it
intends to revise the disclosure contained on the cover page of the Amended Registration Statement as shown in numerals (iv) and (v) of the “Cover Page” section set forth in Annex A.
Risk Factors
If TMTG fails to maintain an effective system of disclosure controls..., page 35
2.
We note your statement that you may not be able to timely file reports required by the Exchange Act. We also note that you did not
timely file Forms 10-Q for the quarters ended March 31, June 30, or September 30, 2023. Update and revise your risk factor to state that you did not timely file reports and that you may not be able to file timely in the future.
Response:
The Company acknowledges the Staff’s comment and respectfully advises the Staff that, in response to the Staff’s comment, it
intends to revise the disclosure contained on pages 36 and 59 as set forth in Annex A. In addition, the Company respectfully directs the Staff’s attention to the text of the Staff’s Compliance and Disclosure Interpretations No. 135.03, which states
in relevant part that:
“Rule 12b-25 provides that an annual or quarterly report shall be deemed timely filed if a Form 12b-25 making certain specified
representations is filed no later than one business day after the due date of the annual or quarterly report, and the report itself is filed no later than fifteen or five calendar days, respectively, after the due date.”
As the Company timely filed a Form 12b-25 and filed its Form 10-Q for the period ending March 31, 2024 within the prescribed five
calendar day deadline after the initial due date of the Form 10-Q, the Form 10-Q is deemed to be timely filed. As such, the Company respectfully advises the Staff that it did not list such Form 10-Q in the revised disclosure shown on pages 36 and 56
in Annex A as no such disclosure is necessary.
Lauren Pierce
Jeffrey Kauten
Office of Technology
Division of Corporation Finance
U.S. Securities and Exchange Commission
May 28, 2024
Page 3
Management’s Discussion and Analysis of Financial Condition and Results of Operations, page 74
3.
Please expand your discussion here to
reflect the fact that this offering involves the potential sale of a substantial portion of shares for resale and discuss how such sales
could impact the market price of the company’s common stock. Your discussion should highlight the fact that your two largest selling stockholders, beneficial owners of over 70% of your outstanding shares, will be able to sell all of
their shares for so long as the registration statement of which this prospectus forms a part is available for use.
Response:
The Company acknowledges the Staff’s comment and respectfully advises the Staff that, in response to the Staff’s comment, it
intends to revise the disclosure contained on page 85 as set forth in Annex A.
4.
Please tell us why you are registering
the shares held by ARC and the Locked-up Shares at this time when they are subject to lock-up restrictions during the Lock-up Period.
Response:
The Company acknowledges the Staff’s comment and respectfully advises the Staff that, unlike an initial public offering where a
180-day lock-up generally expires at a time where Rule 144 is available to affect a transfer by an issuer’s pre-IPO shareholders, Rule 144 will be unavailable to shareholders prior to the one year anniversary of the completion of the Company’s
initial business combination. The applicable lock-ups will expire no later than six months from the closing of the Company’s initial business combination and, as a result of contractual registration requirements as well as from an efficiency
standpoint, the Company is registering for resale shares currently subject to lock-up so that, upon lock-up expiration, the resale of such shares will have been registered pursuant to a then-effective registration statement without needing to file a
separate registration statement. The Company further advises the Staff that, in response to the Staff’s comment, it intends to revise the disclosure contained on page 85 as set forth in Annex A in the second paragraph of the “Other Equity Financing”
section indicated thereunder.
Plan of Distribution, page 146
5.
We note your disclosure on page 147 that your selling securityholders may sell their securities in one or more underwritten offerings
on a firm commitment or best efforts basis. Please confirm your understanding that the retention by a selling stockholder of an underwriter would constitute a material change to your plan of distribution requiring a post-effective
amendment. Refer to your undertaking provided pursuant to Item 512(a)(1)(iii) of Regulation S‑K.
Response:
The Company acknowledges the Staff’s comment and confirms its
understanding that it will file a post-effective amendment to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information. In addition,
the Company respectfully advises the Staff that, in response to the Staff’s comment, it intends to revise the disclosure contained on page 149 as set forth in Annex A.
Lauren Pierce
Jeffrey Kauten
Office of Technology
Division of Corporation Finance
U.S. Securities and Exchange Commission
May 28, 2024
Page 4
General
6.
We note you are attempting to register
the issuance of shares underlying securities that were originally issued in private transactions. Since the issuances of common stock
are derivative of securities that were offered and sold in private transactions, it is not appropriate to register the issuances of common stock. If these securities remain a part of this registration statement, you should revise to
register the resale of the common stock. For guidance, refer to Securities Act Sections Compliance and Disclosure Interpretation 139.09.
Response:
The Company acknowledges the Staff’s comment and respectfully advises the Staff that, in response to the Staff’s comment, it
intends to revise the disclosure contained on the cover page and pages 13-14 and 146 as set forth in Annex A to remove the registration of the issuance of 7,116,251 shares of Common Stock underlying the private placement warrants in response to the
Staff’s comment in accordance with the guidance set forth in Securities Act Compliance and Disclosure Interpretation 139.09 and instead register the offer and resale of such underlying shares of Common Stock.
7.
On May 3, 2024, the Commission entered
into an order instituting settled administrative and cease-and-desist proceedings against BF Borgers CPA PC and its sole audit partner
Benjamin F. Borgers CPA (individually and together “BF Borgers”) (https://www.sec.gov/files/litigation/admin/2024/33-11283.pdf). The Order denies BF Borgers the privilege of appearing or practicing before the Commission as an accountant. As a result, BF Borgers may not participate
in or perform the audit or review of financial information included in Commission filings, issue audit reports included in Commission filings, provide consents with respect to audit reports, or otherwise appear or practice before the
Commission. Any issuer with a pending registration statement that contains or incorporates by reference financial information audited or reviewed by BF Borgers would need to file a pre-effective amendment to include financial
information audited or reviewed, as applicable, by a qualified, independent accountant that is permitted to appear or practice before the Commission.
Response:
The Company acknowledges the Staff’s comment and advises that the Company that Amendment No. 1 to the Registration Statement will
include an audit opinion from the Company’s new audit firm, Semple, Marchal & Cooper, LLP, covering the fiscal years ended December 31, 2023 and 2022.
* * * *
Lauren Pierce
Jeffrey Kauten
Office of Technology
Division of Corporation Finance
U.S. Securities and Exchange Commission
May 28, 2024
Page 5
If you have any questions regarding this submission, please contact Jonathan Talcott at (202) 689-2806.
Thank you for your time and attention.
Sincerely,
/s/ Jonathan H. Talcott
Jonathan H. Talcott
Nelson Mullins Riley & Scarborough LLP
cc: Scott Glabe,
General Counsel
Annex A
Cover Page
TRUMP MEDIA & TECHNOLOGY GROUP CORP.
Up to 21,491,25114,375,000 Shares of Common Stock Issuable Upon the Exercise of Public Warrants
Up to 146,108,680 Shares of Common Stock
Up to 4,061,251 Warrants to Purchase Common Stock
This prospectus relates to the issuance by
us of up to an aggregate of 21,491,25114,375,000 shares of our common stock, $0.0001 par value per share (the “Common Stock”), which consist of (i) 566,742 shares of Common Stock that are issuable upon the exercise of warrants (the “Public Warrants”) originally issued to ARC Global Investments II, LLC (“ARC”) in a private placement in connection within the initial
public offering of Digital World Acquisition Corp. (“DWAC” or “Digital World”) (the “Placement Warrants”), (ii) up to 369,509 shares of Common Stock that are issuable upon the exercise of warrants originally issued in connection with the conversion of Digital World Convertible Notes (as defined below), immediately
prior to the consummation of the Business Combination (as defined below) (the “Convertible Note Post IPO Warrants”), (iii) up to 3,055,000 shares of Common Stock that are issuable upon the exercise of warrants originally issued in connection with Digital World Alternative
Warrants (as defined below), (iv) up to 3,125,000 shares of Common Stock that are issuable upon the exercise of warrants to be issued in connection with the conversion of Digital World Alternative Financing Notes (as defined below) (the “Alternative Financing Notes Post IPO Warrants” and, together with the Convertible Note Post IPO Warrants and the Digital World Alternative Warrants, the “Post IPO Warrants”), and (v) up to 14,375,000 shares of Common Stock that are issuable upon the exercise of
warrants originally issued in the initial public offering of DWAC (the “Public Warrants” and, together with the Placement
Warrants and the Post IPO Warrants, the “Warrants”). We will receive the proceeds from any exercise of the Warrants for cash..
This prospectus also relates to the offer
and sale from time to time by the selling securityholders named in this prospectus or their permitted transferees (the “Selling
Securityholders”) of (a) up to an aggregate of 146,108,680 shares of Common Stock (the “Resale Securities”), consisting of (i) 1,133,484 shares of Common Stock originally issued to ARC (the “Placement Shares”) originally issued to ARC Global Investments II, LLC (“ARC”) in a private
placement in connection with the initial public offering of Digital World at a price of $10.00 per unit, each unit consisting of one share of Common Stock and half a warrant exercisable at $11.50 per share of Common Stock (the “Digital World Convertible Units”), (ii) up
to 14,316,050 shares of Common Stock originally issued as Founder Shares (as defined below) to ARC in connection with the initial public offering of DWAC at a price of $0.0017 per share, which share amount assumes a conversion ratio (2.0:1) pending
litigation and/or out of court agreement between TMTG and ARC and consists of (x) 10,980,000 shares of Common Stock held by ARC (including 3,579,480 shares of Common Stock being held in the escrow pending the litigation); (y) 95,000 shares of
Common Stock transferred to certain Selling Securityholders by ARC for no consideration (including 30,970 shares of Common Stock being held in the escrow pending the litigation) and (z) 3,241,050 shares of Common Stock transferred to certain
Selling Securityholders by ARC for an approximate price of $0.0029 (including 1,056,582 shares of Common Stock being held in the escrow pending the litigation) (collectiv