October 26, 2005
Mr. Murray D. Bradley, Jr.
Secretary-Treasurer and Chief Financial Officer
Ruby Mining Company
3318 Highway 5, No. 504
Douglasville, Georgia 30135-2308
Re: Ruby Mining Company
Registration Statement on Form SB-2
Filed September 26, 2005
File No. 333-128584
Dear Mr. Bradley:
We have limited our review of the above filings to only the
areas upon which we have issued comments. Where indicated, we
think
you should revise your documents in response to these comments.
If
you disagree, we will consider your explanation as to why our
comment
is inapplicable or a revision is unnecessary. Please be as
detailed
as necessary in your explanation. In some of our comments, we may
ask
you to provide us with supplemental information so we may better
understand your disclosure. After reviewing this information, we
may
raise additional comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your
filings.
We look forward to working with you in these respects. We welcome
any
questions you may have about our comments or on any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Form SB-2
General
1. We note that your authorized capital stock consists of
100,000,000
shares of common stock of which 44,507,810 are unissued.
However,
you may have up to 127,707,575 shares of common stock outstanding
after this offering. Thus, it appears that you have registered
27,607,575 shares which are not yet authorized. We note that you
anticipate your stockholders to approve an increase of the number
of
shares of authorized common stock to 350,000,000 at your 2005
Annual
Meeting scheduled for October 31, 2005. However, it is the
staff`s
position that the filing of a registration constitutes an offer to
sell, even though the registration statement is not yet effective.
Tell us why you believe that it is appropriate to register an
offering
of shares that have not yet been authorized. We may have
additional
comments.
2. You indicate that the opinion of counsel will be filed by
amendment. Please note that we will need time to review this
document. We may have additional comments.
3. Where appropriate, provide further disclosure regarding the
terms
and provisions of the callable secured convertible notes and
warrants.
For example, please further emphasize how such a large number of
shares with such steep discounts may (1) lead to the sale of
potentially controlling amounts of shares; and (2) significantly
deflate the market price of your common stock in a few years.
4. Please eliminate all unnecessary redundancy throughout your
filing.
For example, you repeat much of your discussion of the terms and
provisions of the callable secured convertible notes and warrants
in
the Prospectus Summary and again on pages 37 - 41.
5. Please ensure that your disclosure is consistent throughout
your
filing. For example, on page 4, you state that the callable
secured
convertible notes are convertible into your common stock "at the
lower
of (i) $.15 or (ii) 50% of the average of the three lowest
intraday
trading prices...." However, on page 37, you state that the notes
are
convertible "at the lower of (i) $.15 or (ii) 60% of the average
of
the three lowest intraday trading prices...." Please revise to
reconcile this discrepancy and any others you may identify in your
filing.
Risk Factors, page 8
There are a large number of shares...,page 9
6. Tell us to whom and why you "have an obligation to sell
additional
Notes."
Business, page 22
Shipwreck Search and Recovery Permits, page 23
7. You state that you currently hold an exclusive permit from the
Government of Jamaica to conduct search and recovery operations on
the
Pedro Bank. Please file such permit as an exhibit pursuant to
Item
601(10) of Regulation S-K.
Selling Securityholders, page 35
8. Is any selling shareholder a registered broker-dealer or
affiliate
of a registered broker-dealer? If a registered broker-dealer,
please
identify the selling shareholder as an underwriter unless the
securities you are registering on its behalf compensated the
shareholder for investment banking services. If any selling
shareholder is an affiliate of a registered broker-dealer, please
confirm to us that the shareholder purchased the securities you
are
registering on its behalf in the ordinary course of business, and
that
at the time of the purchase of the securities to be resold, the
shareholder had no agreements or understandings, directly or
indirectly, with any party to distribute the securities.
Otherwise,
identify the selling shareholder as an underwriter. We may have
additional comments.
9. Please disclose in your table the natural persons who exercise
voting and/or dispositive powers with respect to the securities to
be
offered for resale by each of the selling shareholders. See
Exchange
Act Rule 13d-3; Interpretation I.60 of the July 1997 manual of
publicly available CF telephone interpretations, as well as
interpretation 4S of the Regulation S-K portion of the March 1999
supplement to the CF telephone interpretation manual.
Plan of Distribution, page 42
10. We note that the selling shareholders may engage in short
sales of
your common stock. Please see Corporation Finance Telephone
Interpretation A.65 in that regard.
Closing Comments
As appropriate, please amend the above filings in response
to
these comments. You may wish to provide us with a marked copy of
the
amendment to expedite our review. Please furnish a cover letter
with
your amendment that keys your responses to our comments and
provides
any requested information. Detailed cover letters greatly
facilitate
our review. Please understand that we may have additional
comments
after reviewing your amendment and responses to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing to be certain that the
filing
includes all information required under the Securities Act of 1933
and
that they have provided all information investors require for an
informed investment decision. Since the company and its
management
are in possession of all facts relating to a company`s disclosure,
they are responsible for the accuracy and adequacy of the
disclosures
they have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert staff comments and the declaration of
effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division
of Corporation Finance in connection with our review of your
filing or
in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering of
the securities specified in the above registration statement. We
will
act on the request and, pursuant to delegated authority, grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
Please contact Jason Wynn at (202) 551-3756 or me at (202)
551-
3740 with any questions. Direct all correspondence to the
following
ZIP code: 20549-7010.
Sincerely,
H. Roger Schwall
Assistant Director
cc: J. Wynn
via facsimile
Steven A. Cunningham, Esq.
Steven A. Cunningham, P.C.
(770) 442-2365
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Mr. Murray D. Bradley, Jr.
Ruby Mining Company
October 26, 2005
page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
MAIL STOP 7010