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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

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File numbers found in text: 333-278678

Referenced dates: May 21, 2024

Date
May 28, 2024
Author
/s/ Jonathan H. Talcott
Form
CORRESP
Company
Trump Media & Technology Group Corp.

Letter

Office of Technology Division of Corporation Finance 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

Show Raw Text
CORRESP
1
filename1.htm

              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