MABEY & COOMBS, L.C.
Attorneys at Law
3098 South Highland Drive, Suite 323
Salt Lake City, Utah 84106-6001
Phone (801) 467-2021
Fax (801) 467-3256
JOHN MICHAEL COOMBS writer's direct line 467-2779
writer's e-mail: jmcoombs@sisna.com
June 12, 2006
VIA EXPRESS MAIL
Pamela Howell
S. Thomas Kluck, II, Staff Attorney
SECURITIES AND EXCHANGE COMMISSION
Division of Corporation Finance
100 F Street, N.E.
Washington, D.C. 20549-0405
Mail Stop 3561
Re: Tintic Gold Mining Company's response to November 14, 2005
Commission comment letter relative to Tintic Gold's October 3, 2005
third amended Form SB-2/A-3, File No. 333-119742 and which applies to
our fifth amended Form SB-2/A-5 filed herewith
Dear Ms. Howell and Mr. Kluck:
Tintic Gold is in receipt of a Commission comment letter dated November
14, 2005 containing 69 comments to Tintic Gold Mining Company's ("Tintic Gold"
or "Company") Third Amended Form SB-2/A-3 filing referenced above. As you
know, on March 28, 2006, we filed a fourth amended registration statement
(along with this letter) that responded to those 69 comments. (For your
information, we also filed the document twice that day because we mistakenly
neglected to include the appropriate Sarbanes-Oxley certifications as exhibits
to the first March 28 filing.) On March 30, we received a letter from the
Commission advising that our financial statements were stale and that
therefore, the Commission was unable to review the March 28 filing.
Based on the foregoing, our fifth amended Form SB-2/A-5 filed
simultaneously on Edgar with this letter has been revised in accordance with
such November 14 comment letter. It includes audited financial information
for the Company's fiscal year ended December 31, 2005 and additional financial
information for the first quarter ended March 31, 2006. Our separate and
supplementary comments or responses, in addition to the changes we have made
in our Fifth Amended Registration Statement, are set forth and explained
below.
RESPONSE TO EACH OF THE COMMISSION'S 69 COMMENTS
General Comments to Form SB-2/A-3
1. In response to this comment, I wrote a letter to the Commission on
November 17, 2005, respectfully requesting that the Commission waive this
comment. Paragraph 1 of that letter starting on p. 2 thereof directly
responds to this comment, the contents of which are incorporated herein by
reference. On November 23, 2005, the day before Thanksgiving, I was able to
speak with Mr. John Reynolds, the Assistant Director, about this comment. (As
per instructions from Mr. Reynolds, a copy of that Nov. 17 letter is now filed
on Edgar.) Mr. Reynolds communicated that the Commission was of the opinion
that we had inconsistent disclosures in our registration materials concerning
whether a "distribution" of the shares subject of our SB-2/A has already been
made in some fashion. Let us make clear that no "distribution" of any
securities has been made. In fact, we don't know where the Commission got
this idea. Mr. Reynolds specifically asked us to clarify whether the
stockholders of Tintic-Utah on March 5, 2004, have a "legal right" to the
shares held by our transfer agent for distribution. Our position is clear:
we have simply "declared" a stock dividend and we are waiting for our
registration statement to be deemed "effective" before we have a legal
obligation to distribute any shares, all as contemplated in our Distribution
Agreement with our former parent. The fact is that because our registration
statement is NOT now effective, the stock dividend has NOT been undertaken,
effectuated or carried out in any manner. In fact, the Board of Directors of
the Company has the right and other power to "undeclare" the stock dividend if
it so chooses. Accordingly, the shareholders of Tintic-Utah on March 5, 2004,
the record date for the stock dividend, do NOT presently have a "legal right"
to receive the shares. Once our SB-2/A is declared effective by the
Commission, those shareholders of record of Tintic-Utah on the record date
would indeed have a "legal right" to the shares but not yet. In short, the
way we have set it up since March 5, 2004, is this: the shareholders' legal
right to receive their pro rata portion of the shares is subject to the
effectiveness of a federal registration statement covering the shares.
2. Since November 14, 2005, we have had discussions with Mr. George
"Ken" Schuler, a mining engineer with the Commission, and we believe that
based on the helpful direction we have received from him, we have complied
with this comment. Specifically, in addition to provided a much more detailed
Plan of Operation with figures and estimates on drilling targets and costs, we
have gone through our revised document and beefed up or supplemented
disclosure covering these various Industry Guide 7 items in a section titled
"Description of Our Mineral Assets and Property Acquired as a Result of the
Merger" and which in turn refers the reader to similar information in our
revised Plan of Operation section.
3. We have complied with this comment and inserted two maps in our
Fourth Amended Registration Statement by means of attaching the same in a PDF
or Adobe Acrobat file format. We have also labeled them in our revised
Exhibit List as Exs. 99.1 and 99.2. We have also created a new category near
the end of our Plan of Operation titled "Maps."
Prospectus Cover Page
4. We have complied with this comment.
5. I have spoken with Assistant Director John Reynolds directly about
this comment. As a result of these discussions, we have revised our Fourth
Amended Registration Statement in conformity with this comment. Where
applicable, we have added that our former parent corporation, Tintic-Utah, now
Kiwa Bio-Tech Products, is also an "underwriter."
6. We believe that it is abundantly clear to anyone reading the
prospectus portion of our SB-2/A-3 that the distribution is pro rata as of
March 5, 2004. We have stated this several times. However, in the interests
of completing this process, we have complied with this comment and on the
cover page of the prospectus inserted this clarification.
Outside Back Cover Page
7. We do not believe that it is the least likely that we would be
able to obtain an OTCBB symbol within 90 days of the effective date of this
registration statement and therefore, we believe this comment is irrelevant
and unnecessary. In fact, subsection (b) specifically starts out by saying:
"If applicable to your offering, . . .." Put another way, if no OTCBB symbol
is obtained within 90 days of the distribution, there would be no reason or
other ability for "a dealer" to provide a prospectus within 90 days of such
date. However, based on my Nov. 23 conversation with Mr. Reynolds, Mr.
Reynolds disagrees. Accordingly, as per Mr. Reynolds' instructions, we have
taken the subject language out of Item 502(b) and inserted this on the back
page of the prospectus after the financial statements.
Prospectus Summary, page 1
8. We have complied with this comment by doing a search of the
subject words and removing them.
9. Based on my November 23, 2005, telephone conversation with Mr.
Reynolds, this comment has been waived by the Commission. We would also like
to point out for the Commission that there is, and has been, an entire section
in the prospectus portion of the document devoted to this comment titled
"Reasons for the Merger [with Kiwa]" which answers or responds to this
question in any event.
10. Though we disagree with this comment, there being no
significant
or meaningful difference between the phrases "mineral properties" and "mineral
claims," we have nonetheless complied with this comment. The reason we
disagree with this comment is because owning the subsurface rights of real
property are in fact "mineral properties" or "mineral property rights." The
word "claim" simply designates the legal nature of that ownership. That's
what all the mining literature we have seen calls such property rights in
spite of this comment.
Summary Financial Data, page 3
11. We have complied with this comment.
Risk Factors, page 3
12. We have complied with this comment and removed the two paragraphs.
13. We have complied with the comment.
Risk Factors, page 2
14. We disagree with this comment because we believe that stating the
Risk Factors the way we have stated them is self-explanatory as to why each is
a risk factor at all. The consequences or downsides are obvious. To comply
with this comment simply makes each such risk factor more wordy, complicated,
unreadable and difficult to understand, nor do we believe that stating a risk
factor the way the Commission suggests is a requirement under any rules that
we are aware of. Nonetheless, in the interest of getting through this process
with the Commission after 14 or 15 months of doing so, we have complied with
this comment.
15. We have complied with this comment and broken former Risk Factor
No. 1 into two Risk Factors, thus creating a new Risk Factor No. 2. At the
same time, since this new risk factor is the same as former Risk Factor No.
19, we have taken the substance of former Risk Factor No. 19 and combined it
with this new Risk Factor No. 2.
16. We have complied with this comment and because of No. 15 above,
renamed it Risk Factor No. 3. Also, because of our modifications to our Plan
of Operation, specifically, our creation of a program that includes drilling
targets and the costs thereof, we have further modified this risk factor to
relate solely to exploratory drilling activity, the only activity for which we
currently lack the necessary ability to implement because we lack a mining
partner/joint venturer with experience and know-how in this regard.
17. We have complied with this comment by, among other things,
confining the context of the risk factor to actual physical drilling
exploration activity on our mineral claims, which, considering our revised
Plan of Operation (see comment nos. 25 through 36 below), makes sense to us.
18. We have complied with this comment and combined the two risk
factors into one. In doing so, and to make it more readable, however, we have
done a little rearranging of the former two risk factor paragraphs.
19. We have deleted the subject language and clarified that the
"financing" we need we expect to get from an experienced mineral exploration
partner or joint venturer, which is the substance of our business plan, and
therefore, the comment is now moot. See our modifications to our Plan of
Operation.
20. We have complied with this comment and removed the subject risk
factors and the "penny stock" reference portion of former Risk Factor No. 13,
now Risk Factor No. 9.
21. We have complied with this comment.
22. We have complied with this comment and created a new, inclusive
Risk Factor No. 8.
Risk Factors Related to Our Mining Claim Assets, page 11
23. We have complied with this comment.
The Distribution, page 14
Manner of Effecting the Distribution, page 14
24. Based on my November 23, 2005, telephone conversation with Mr.
Reynolds, this comment has been waived by the Commission. See also response
to Comment no. 1 above.
Management's Plan of Operation for the Next Twelve to Eighteen Months,
page 18
25. We have fortunately had the opportunity to engage in discussions
with Mr. George "Ken" Schuler, the Commission's mining engineer, who has been
reviewing our filings in that capacity and we believe that we have now finally
complied with this comment. We have added substantial additional disclosure
in order to satisfy this comment in a new heading titled "The Phased Nature of
Our Planned or Proposed Exploration Program." We have faxed this revised
portion of our Plan of Operation to Mr. Schuler and it is our understanding
that this newly added discussion addresses this comment and also Comment No.
34 below.
26. In an effort to address this comment, we have taken out previous
discussion addressing this comment in our previous registration statement and
moved it to the end of the section with a new heading titled "Locating an
Exploration Program Joint Venturer or Partner and Plan to Contract with such
Joint Venturer or Partner." We believe this new discussion and its new
location at the end of the Plan of Operation section more adequately addresses
this comment. See also our response to Comment No. 33 below which asks this
same question in reverse.
27. We have complied with this comment by, among other things,
deleting references to certain identified fissures that had been mentioned
before and which had no meaning unless they were specifically defined. We
have also complied with this comment by, for example, removing the discussion
subject of paragraph 32 below.
28. We have added a sentence in the end of the first paragraph of the
section titled "Plan of Operation for the Next Twelve to Eighteen Months"
which complies with this comment.
29. We have discussed this comment with Mr. Schuler, your mining
engineer. Because we have no employees or significant operations as yet, we
have no specific or realistic "day-to-day" operations or activities in the
traditional sense. As a result, Mr. Schuler indicated that we may address
this comment in terms of what we will do on less than a daily basis, such as
on a monthly or weekly basis. In accordance therewith, we have complied with
this comment and added a paragraph titled "Our 'Day-to-Day Operations" which
we have inserted after the new paragraph titled "Locating an Exploration
Program Joint Venturer or Partner and Plan to Contract with such Joint
Venturer or Partner."
30. We have complied with this comment and added discussion or
explanation about this third work sequence.
31. We have complied with this comment by inserting a sentence in the
very beginning of this section under the heading "Management's Plan of
Operation, General." There is currently $6,500 in cash on hand.
32. This was language supplied by our consulting geologist and because
it is difficult to explain or understand for the layman, we have removed the
subject language, thereby making the comment moot as indicated.
33. We have complied with this comment by adding a new paragraph,
which is now the second paragraph under the heading, "Plan of Operation for
the Next Twelve to Eighteen Months." Reference is also made to our response
to Comment No. 26 above which asks this same question in reverse.
34. We have already disclosed the costs involved in pursuing our seven
work sequences. This was done in the last registration statement we filed.
In fact, now that we have obtained a final geology report, those costs are
minimal and we can easily afford them. Nonetheless, in complying with Comment
No. 25 above, we have added a new paragraph in this Plan of Operation section
that specifically addresses this comment titled "The Phased Nature of Our
Planned or Proposed Exploration Program." We have NOT included time frames in
this discussion simply because the financing involved would come from a joint
venture partner, not us, and the time frames involved necessary to achieve the
intended results would be up to them, not us. To thus require us to insert
any such time frames would not only be beyond our expertise or knowledge but
it would require us to engage in speculation. We do not feel comfortable
doing that. See also our response to Comment No. 25 above.
35. We have complied with this comment. We will investigate and
negotiate any contract with a mining company ourselves.
Specific Ore Targets Of the Tintic Mining Claims, Page 22
36. Since the assay results subject of this comment were undertaken by
Mr. Crane of U.S. Smelting and Refining before 1933 and since we lack the
specific information to further disclose "the weighted-average sample
associated with a measured length or substantial volume" (all as stated in the
comment), we have deleted references to actual assay results in the entire
paragraph now titled "3. Specific Exploration Targets on the Tintic Gold
Mining Claims." By eliminating such assay results altogether, we believe that
we now fairly present what we are dealing with and we have thus otherwise
complied with this comment.
Summary of Our Plan of Operation, page 22
37. This paragraph was mistakenly kept in from earlier registration
statements we had filed and it discussed things that were to be completed
before Mr. Yeomans, our consulting geologist, completed his final April 2005
geology report. Accordingly, the discussion is moot. We also see no reason
to further summarize our Plan of Operation when it is already fairly simple
and straightforward. We have therefore deleted this entire paragraph.
Business Corporate History, page 23
38. We believe the Commission means comment no. 44, not 45. Having
said this, Tintic-Utah received whatever cash and assets Kiwa had in
connection with the business combination, it being the survivor, as Kiwa, in
such transaction, but we, as Tintic-Nevada, the pre-March 12, 2004 subsidiary,
did not. If the Commission wants to know what money Kiwa additionally raised
or obtained after its merger with Tintic-Utah was consummated, reference is
made to Kiwa's Edgar filings. We cannot speak for Kiwa and, more importantly,
we do not know the answer to the question. The only thing we know is that in
merging with Kiwa, Tintic-Utah obtained all of Kiwa's assets and liabilities,
including all fertilizer and other executory sales contracts it had at the
time and which, at that time, had resulted in revenue of some-$50,000. Based
on the foregoing, we have modified the paragraph to say, among other things,
that Tintic-Utah received what assets and cash that Kiwa had at the time of
the merger and in doing so, it was able to operate and continue in existence
profitably. The last time we looked at Kiwa's Edgar filings, the company was
making a profit.
The March 12, 2004 Merger or Reorganization with Kiwa, page 24
39. We have complied with this comment.
40. We have complied with this comment. See the five (5) new exhibits
attached to our fourth amended registration statement, namely, the stock sales
agreements requested in this comment and which identify the April 2004 buyers.
These are the only agreements in issue. We have clarified in the revised
document that these transactions were not part of the merger transaction.
Effect of the Merger, page 26
41. Though earlier discussion in this paragraph answers this question,
we have complied with this comment by clarifying when the spin-off will occur.
Specifically, the spin-off will physically or actually occur at such time as
our SB-2/A registration statement is deemed effective. At that point, we will
instruct our transfer agent to distribute the shares to those persons entitled
to receive them. See also response to Comment Nos. 1 and 24 above.
Type of Property/Exploration, Development and Production History, page 27
42. We have deleted paragraph four in this section. Having deleted
this one paragraph, we otherwise strongly disagree with this comment in that
we have only referred to other, adjacent mines and mineral properties for
location purposes, that is, so that the reader can understand where our
properties are located and not for the purpose of giving an impression that
our properties have value they don't have. In the former paragraph 7 we
referred to mineralization in adjacent mineral properties only in order to
indicate, from a geologic perspective, that these structures are similarly
found on, or trend into, our properties. It would make no sense to have an
exploration program (which the Commission is requiring us to come up with)
without our explaining why we intend to drill or spend money in a certain area
or on a certain "target." Having said this, the Commission can point to no
reference in any of these paragraphs subject of this comment in which we imply
specific mineral production on neighboring properties. To be sure, on the one
hand the Commission has consistently wanted more disclosure about the precise
location of our properties but when that is provided, that disclosure has
often been deemed insufficient. The Commission cannot have it both ways: One
cannot expect us to better describe where our property is located and, at the
same time, not allow us to describe exactly where our property is located.
One can also not expect us to come up with an exploration program containing
specific targets without being able to explain, geologically, why we have
determined they are in fact "targets." This is not to ignore that our
properties are in all likelihood more valuable and more promising that any
neighboring properties and so referring to neighboring properties for an
improper purpose would make no sense and achieve no benefit. Having said
this, in the interests of getting through this process after 14 or 15 months,
we have done our best to modify our disclosures to comply with the spirit of
this comment.
43. We have complied with this comment.
44. We have complied with this comment.
45. We have complied with this comment by removing the subject
disclosure and also doing so in the section "Future Plans for Exploration."
Management and Principal Shareholders of Tintic Gold Mining Company,
page 34
Directors, Executive Officers, Promoters and Control Persons, page 34
46 through 49. We have complied with these comments.
Restricted Stock, page 37
50. We have complied with this comment. We have done so by taking the
exact same disclosure in the paragraph subject of Comment No. 52 below,
namely, the paragraph titled "Shares Eligible for Future Sale" and reinserting
what is relevant there under this heading.
Certain Relationships and Related Transactions, page 38
51. On November 23, 2005, I had a conversation with Assistant Director
John Reynolds about this comment. I informed him that the officers and
directors and possibly myself (because of my over 10% stock position) are the
only persons who could conceivably come under or within the definition of a
"promoter." I indicated that it seems ridiculously repetitive to repeat all
the disclosure about all 4 of us in the context of being so-called
"promoters." In light of this, Mr. Reynolds was kind enough to compromise on
this issue and he indicated that if we add a paragraph stating that all 3
officers and directors and myself (because of my individual stock position)
would be deemed "promoters" (given that there is already ample disclosure
about the 4 of us and our holdings) that that would satisfy this comment. We
have done so in a new paragraph added to this section at the end and which
also refers the reader to the discussion about all four of us in the earlier
section titled "Directors, Executive Officers, Promoters and Control Persons."
Shares Eligible for Future Sale, page 39
52. We have complied with this comment by disclosing that there is not
now "a public trading market for the company's stock." While we already
disclosed in this paragraph last time that there would be 356 "beneficial
owners" after the distribution, we have clarified this to say that there will
be 356 stockholders "of record." These minor changes satisfy that which this
comment seeks.
Unclaimed or Abandoned Stock Resulting from the Distribution, page 39
53. We have complied with this comment.
Where You Can Find More Information, page 40
54. We have complied with this comment.
Financial Statements for the Years Ended December 31, 2004 and 2003
General
55. We have updated Footnote No. 1 to the financial statements to
include additional disclosure about the former parent's operations. Included
in this disclosure is detail of the Parent's Quasi-Reorganization that was
effective on December 31, 1997. Parent's accumulated deficit of $191,797 was
eliminated as a result of the quasi-reorganization.
Report of Independent Registered Public Accounting Firm, F-1
56. We have included the report of the Parent's former auditors
covering the period from December 31, 1997 through December 31, 2002.
Balance Sheet, F-2
57. We have revised our balance sheet to indicate the restatement.
Statement of Operations, F-3
58. We have removed the earnings per share information for the
cumulative periods.
Statements of Cash Flows, F-5
59. We have updated our statement of cash flows to remove any non-cash
financing activities.
60. We have updated our statement of cash flows to disaggregate the
related party loans.
Notes to Financial Statements
Note 1 Summary of Significant Accounting Policies
General
61. We have updated Footnote No. 1 to include our policy for stock
based compensation.
Note 8 Commitments and Contingencies, F-10
62. We have updated Footnote No. 8 to include contingency disclosure
about the liquidation of the mining claims in the event the spin off cannot be
lawfully accomplished.
Note 10 Restatement, F-11
63. We have updated Footnote No. 10 to remove the reference to the SEC
comment letter.
Financial Statements for the Period Ended June 30, 2005
General
64. We have also updated the interim unaudited financial statements in
a manner consistent with the audited financial statements.
Condensed Statements of Operations, F-3
65. As you requested, we have removed the extra information for the
three month interim periods that is not specifically required.
Other
66. We have included updated financial statements and a currently
dated consent as required.
Part II
Recent Sales of Unregistered Securities
67. We have complied with this comment.
Exhibits
68. Based on my conversation with Mr. Reynolds on November 23, 2005,
the Commission is satisfied with what I have relied on in rendering this
opinion and it has therefore waived this comment.
69. I have complied with this comment in my revised opinion which is
again attached as an exhibit to our fourth amended registration statement.
Closing Information
We have attempted in good faith to address and incorporate each the
Commission's comments. We believe that our fifth amended Form SB-2/A-5 is a
substantial improvement over our October 3 version and we would hope that the
Commission would agree with us and tell us that our fifth amended registration
statement can "go effective." This process has gone on since October 2004 now
and we believe that, considering that the recipients of the to-be-distributed
shares are not parting with any money and are therefore not "at risk," there
comes a point when this review process becomes over-kill. A good example is
requiring us to have financial statements on our former predecessor or former
parent going back to 1997 or nine years ago, that is, back to a time when we
didn't even exist as a separate or new corporation. With all due respect and
considering that there are other "spin-off" registrants that the Commission
has very recently let breeze right through on Forms 10-SB, we believe that
that point has been more than achieved in this case.
As per the end the Commission's November 14 comment letter, this
response letter is also being filed on EDGAR. Finally, along with a hard,
signed copy of this letter that we are mailing to you via Express Mail, we
will also be enclosing a red-lined version of the fifth amended registration
statement changes. On March 28, 2006, we Express Mailed you a red-lined
version of our fourth amended registration statement that contains the
overwhelming majority of revisions in compliance with the Commission's Nov.
14, 2005, comment letter. Please therefore look at the redlined versions of
both our fourth and fifth amended registration statements.
If you have any additional questions or comments after receiving these
documents, please don't hesitate to let us know at your earliest convenience.
We look forward to completing this process.
Very truly yours,
MABEY & COOMBS, L.C.
/s/John Michael Coombs
John Michael Coombs
Attorneys for Tintic Gold Mining Co.
Enclosures