Correspondence 0001104659-23-108776 from Cannaisseur Group Inc. (CIK 0001879270) (TCRG)
Cannaisseur Group Inc. (CIK 0001879270)
Date: Oct. 12, 2023 · CIK: 0001879270 · Accession: 0001104659-23-108776
AI Filing Summary & Sentiment
File numbers found in text: 333-262710
Referenced dates: August 10, 2023, March 18, 2022
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filename1.htm
The
Norman Law Firm PLLC
-ATTORNEYS
AND COUNSELORS AT LAW-
A
PROFESSIONAL LIMITED LIABILITY COMPANY
8720
Georgia avenue, suite 1000
SILVER
SPRING, MD 20910
tel: (301)588-4888; FAX: (301)576-3544
Elton
F. Norman
admitted
in
DC, GA
MD, NY
October 12, 2023
United States Securities and Exchange Commission
Division of Corporation Finance
Office of Life Sciences
450 Fifth Street, N.W
Washington, D.C. 20549
Attn: Alan Campbell / Suzanne Hayes
Re: Cannaisseur Group Inc.
Registration Statement on Form S-1
Filed February 14, 2022
File No. 333-262710
Dear Mr. Campbell and Ms. Hayes:
This letter is in response to comments
of the staff (“Staff”) of the Division of Corporation Finance of the Securities and Exchange Commission on the filing made
by The Cannaisseur Group, Inc.(the “Company”) contained in your letter dated August 10, 2023 (“Comment Letter”).
The headings and numbers below refer to similar headings and numbers contained in the Comment Letter. Capitalized terms used
herein not otherwise defined in this letter shall have the meaning given to them in the Form S-1.
Attached to this letter is a red-lined
version of the amended Form S-1, indicating the amendments made to the Form S-1.
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Registration Statement on Form S-1
Cover Page
1.
We refer to prior comment 1. Please revise the prospectus cover page (as opposed to the registration statement cover page) to clearly
state the offering price of the shares to be offered by you and the offering price of the shares to be offered by the Selling Shareholders.
RESPONSE: The Form S-1 has been
revised in accordance with the Staff’s comment.
2.
We note your response to prior comment 1 and your revised disclosure indicating that the Selling Shareholders may offer shares of common
stock "from time to time through public or private transactions at prevailing market prices or privately negotiated prices."
We further note your disclosure that your shares will not be listed on any exchange before the offering is consummated. Accordingly,
the price at which the shares will be offered must be fixed until a market develops. Please revise your disclosure accordingly.
RESPONSE: The Form S-1 has been
revised in accordance with the Staff’s comment.
3.
We note your response to prior comment 5 and note that you have filed the Atlanta CBD Operating Agreement. However, neither this agreement
nor any of the others that have been filed appear to provide the governing terms of the Atlanta CBD preferred stock. Therefore, we re-issue
comment 5. Please file the certificate of incorporation or other equivalent document of Atlanta CBD Inc. that contains the terms of the
preferred stock. Please also revise your disclosure on page 4 to reflect your statements to us that the preferred stock is not convertible
into common stock of your Company and that profit distributions have not been paid to preferred shareholders. Please clarify if there
is any cap on profit distributions that could be paid to preferred shareholders. Please also revise here, on page 6 and in the Use
of Proceeds section to disclose that proceeds from the offering could be used to pay redemption amounts of up to $37,875 if the holders
of preferred stock redeem their shares.
RESPONSE: The Form S-1 has been
revised in accordance with the Staff’s comment. In addition, Atlanta CBD has filed an amendment to its articles of incorporation
designating the terms of the preferred shares. The amendment is filed as an Exhibit to the Form S-1.
4.
We note your disclosure on page 18 that you plan to use the funds raised in this offering to purchase assets to grow your business
and that if you do not receive sufficient funds in the offering, you will have to rely on other sources of funds to grow your business.
This disclosure is inconsistent with the disclosure in the Use of Proceeds table on page 19 indicating that the proceeds will be
used for operational costs, marketing, product development and new hires. We further note your disclosure on page 26 that the funds
from the offering and other sources, if necessary, will be used to acquire additional assets to support and grow Atlanta CBD's operations.
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Please revise your
disclosure here and throughout to clarify whether the funds from the offering will be used to purchase assets you will use to grow your
business, develop and market your own products or make further investments in Atlanta CBD's business. To the extent the funds will be
used to grow Atlanta CBD's business, rather than your business, please revise prominently through the prospectus to disclose this fact
and include appropriate risk factor disclosure. If you anticipate transferring funds raised in this offering to Atlanta CBD, please also
revise your disclosure accordingly.
RESPONSE: The Form S-1 has been
revised to disclose that the Company will be using the funds raised to purchase assets for its own business and nor for Atlanta CBD’s.
The Use of Proceeds section has also been revised to reflect this plan. The Company intends to work closely with Atlanta CBD to grow
the Company’s hemp cultivation and extraction business.
5. We
note your statement on page 24 that you have succeeded in securing investments of up to $20,000. Please revise the material terms
of these investments.
RESPONSE: The Form S-1 has been
revised in accordance with the Staff’s comment to disclose the terms of the investment.
6.
We refer to prior comment 9. We further note that you continue to use "the Company", "we" and "our" to
refer to Atlanta CBD. For example:
·
On pages 4 and 26, "Our mission is to grow one of the best hemp plants and produce high-quality
infused products to provide customers with products and services they trust."
·
On pages 4 and 28, "we do not ship such products to those states, and we disclose this and warn
consumers of the restrictions on the INNO Medicinals website."
·
On page 25, "The Company periodically reviews the value of items in inventory and provides write-downs
or write-offs of inventory based on its assessment of market conditions."
·
On page 25, "The Company sells CBD related products in a retail location in Atlanta, Georgia
and through e-commerce."
·
On page 25, "The Company sells products at their one retail location and via web site sales."
·
On page 26, "We do not believe that our hemp-derived CBD products..."
·
On page 27, "All the full Spectrum Hemp CBD Infused products the Company sells..."
·
On page 28, "Our Name, our reputation, and our unique branded products promote a positive shopping
experience for customers." as well as the sentence at the end of this paragraph.
Please revise further to clearly distinguish
between your operations and Atlanta CBD's operations.
RESPONSE: The Form S-1 has been
revised in accordance with the Staff’s comment to avoid any confusion between references to the Company and or Atlanta CBD.
3
7.
Your disclosure on page 24 states that you are working with a manufacturer to develop a time-release product which you believe
is unique to the market and has potential to generate substantial revenue. Please revise your Business section to describe the material
terms of this arrangement.
RESPONSE: The Form S-1 has been
revised to remove this disclosure, because the manufacturer has discontinued the plan to develop this product.
8.
We note your response to comment 17. Despite your response, the Selling Shares section has not been revised to provide the
information required by Item 507 of Regulation S-K. Please update the section to provide all required information, including the
nature of any position, office, or other material relationship the selling shareholder has had within the past three years and
clarify the number of securities held by the security holder prior to the offering, the amount offered by each security holder and
the amount and percentage of the class to be held by each security holder after completion of the offering.
RESPONSE: The Form S-1 has been
revised in response to the Staff’s comment to provide the required disclosure.
9.
Please file Exhibit 107 to include filing fees and associated information. Refer to SEC Release No. 33-10997 for additional
guidance.
COMMENT 10: The Form S-1 has
been revised in response to the Staff’s comment. Exhibit 107 has been attached.
10. We
note your response to comment 7 of our letter dated March 18, 2022. Please provide a detailed legal analysis regarding whether
The Cannaisseur Group, Inc. (the “Company”) and its subsidiaries meet the definition of an “investment
company” under Section 3(a)(1)(C) of the Investment Company Act of 1940 (“Investment Company Act”). In
your response, please include all relevant calculations under Section 3(a)(1)(C), identifying each constituent part of the
numerators and denominators. In your response, please also describe and discuss: your proposed treatment of the Company’s
interest in Atlanta CBD Inc. (“Atlanta CBD”);
whether and how Atlanta CBD meets the definition of a
“majority-owned subsidiary” as defined in section 2(a)(24) of the Investment Company Act, including whether the Company
owns 50% or more of the “voting securities” of the Company, as that term is defined in section 2(a)(42) of the
Investment Company Act;
whether preferred stock
issued by Atlanta CBD are “voting securities” as defined in section 2(a)(42) of the Investment Company Act;
whether the minority shareholders of Atlanta CBD are able to, in practice, control Atlanta
CBD and appoint the majority of the members of its board of directors by virtue of these shareholders’ interests in the
Company; and any other substantive determinations and/or characterizations of assets that are material to your
calculations.
4
RESPONSE TO COMMENT 10:
THE COMPANY IS NOT AN INVESTMENT
COMPANY UNDER SECTION 3(a)(1)(C) BECAUSE IT HOLDS SECURITIES ISSUED BY A MAJORITY-OWNED SUBSIDIARY AND IS ENGAGED IN BUSINESS
OTHER THAN INVESTING, REINVESTING, OWNING, HOLDING OR TRADING IN SECURITIES.
The Company respectfully advises
the Staff that it is not an investment company as defined under Section 3(a)(1)(C) of the Investment Act of 1940, as amended,
(“The Investment Company Act”). Rather, the Company is an operating company.
Section 3(a)(1)(C) of
tthe “Investment Company Act”) defines an investment company as “any issuer that is engaged or proposes to engage in
the business of investing, reinvesting, owning, holding or trading in securities and owns or proposes to acquire investment securities
having a value exceeding 40% of the value of the issuer’s total assets (exclusive of U.S. Government securities and cash items)
on an unconsolidated basis.”
An “investment
security” is defined in Section 3(a)(2) of the Investment Company Act as “all securities except (A) Government
securities, (B) securities issued by employees’ securities companies, and (C) securities issued by majority-owned subsidiaries
of the owner which (i) are not investment companies, and (ii) are not relying on the exception from the definition of investment
company in Section 3(c)(1) or 3(c)(7) of the Investment Company Act.”
Section 2(a)(24)
of the Investment Company Act defines “majority-owned subsidiary” of a person as a company 50% or more of the outstanding
voting securities of which are owned by such person.
A “wholly-owned
subsidiary” of a person is defined in Section 2(a)(43) as a company 95% or more of the outstanding voting securities of which
are owned by such person, or by a company which, within the meaning of such definition, is a wholly-owned subsidiary of such person.
A “voting
security” is defined in Section 2(a)(42) of the Investment Company Act as any security “presently” entitling the
owner or holder thereof to vote for the election of directors of a company.
A “director”
is defined in Section 2(a)(12) of the Investment Company Act as a director of a corporation or any person performing similar functions
with respect to any organization, whether incorporated or unincorporated.
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Notwithstanding
the foregoing, Rule 3a-1 under the Investment Company Act provides that an issuer will not be deemed an investment company under
Section 3(a)(1)(C) if no more than 45% of the value of the issuer's total assets (exclusive of Government securities and cash
items) consists of securities (the “45% Asset Test”). In addition, no more than 45% of the issuer’s net income after
taxes for the last four fiscal quarters combined may be derived from securities (the “45% Income Test”). As relevant here,
“securities” include all securities other than those issued by majority-owned subsidiaries of the issuer which are not investment
companies and are not relying on the exclusion from the definition of investment company in Section 3(b)(3) or Section 3(c)(1) of
the 1940 Act.
The Company
believes it is not an investment company under the Investment Company Act because it falls into two Rule 3a-1(a)(3) exceptions.
The Company through its “majority-owned subsidiary” (as such term is defined in the Investment Act), is and holds itself
out as being engaged primarily, and proposes to engage primarily in the business of owning and controlling Atlanta CBD, and not in the
business of investing, reinvesting, or trading securities. Furthermore, the Company intends to manage and monitor its assets and will
not be an “investment company,” as that term is defined in Section 39(a)(1)(C) of the Investment Company Act, so
long as the Company is able to manage is business in the way it intends.
The Company Is Not An Investment
Company Because It Falls Into Two Exceptions Under the 3a-1 Rule.
The Commission’s Rule 3a-1
relaxes the Investment Company Act’s Section 3(a)(1)(C). 17 C.F.R. § 270.3a-1(a). As relevant to this matter, the rule states
as follows:
Notwithstanding section 3(a)(1)(C) of
the Act (15 U.S.C. 80a–3(a)(1)(c)), an issuer will be deemed not to be an investment company under the Act; Provided, That:
No more than 45 percent of the value
(as defined in section 2(a)(41) of the Act) of such issuer's total assets (exclusive of Government securities and cash items) consists
of, and no more than 45 percent of such issuer's net income after taxes (for the last four fiscal quarters combined) is derived from,
securities other than:
Government securities;
Securities issued by employees' securities
companies;
Securities issued by majority-owned
subsidiaries of the issuer (other than subsidiaries relying on the exclusion from the definition of investment company in section 3(b)(3) or
(c)(1) of the Act) which are not investment companies; and
Securities issued by companies:
Which are controlled primarily by
such issuer;
Through which such issuer engages
in a business other than that of investing, reinvesting, owning, holding or trading in securities; and
Which are not investment companies;
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As detailed below, the Company is
not an investment company because though 45 percent of its assets and income are derived from securities, these securities are (1) issued
by its majority owned operating company – Atlanta CBD; and (2) Atlanta CBD is engaged in a business other than investing and
is not an investment company.
The Company is NOT an investment
company because the securities it owns are derived from its majority owner of Atlanta CBD, a company engaged in the development and sale
of hemp products.
The Company is not covered by the
45 % Asset or Income test. Put simply, under the 45 % Test, a company is an investment company if 45 % of its total assets and 45% of
its net income after taxes are derived from securities, except those excluded. See Rule 3a-1, supra. Nonetheless,
a business – though 45% of its assets and net income are derived from securities - can be excluded from being defined as an investment
company if