SEC Company Response from Antelope Enterprise Holdings Ltd (AEHL) (CIK 0001470683) (AEHL) — Nov 4, 2009
Antelope Enterprise Holdings Ltd (AEHL) (CIK 0001470683)
Date: Nov. 4, 2009 · CIK: 0001470683 · Accession: 0001144204-09-056650
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 333-161557
Referenced dates: November 3, 2009, October 22, 2009, October 22, 2009
Letter
Securities and Exchange Commission China Ceramics Co., Ltd. Amendment No. 2 to Registration Statement on Form F-4 Filed October 27, 2009 File No. 333-161557
Dear Ms. Long:
On behalf of our client, China Ceramics Co., Ltd., a company organized under the laws of the British Virgin Islands (the “Company”), we transmit herewith for filing with the Securities and Exchange Commission (the “Commission”) one complete electronic version of Amendment No. 3 to the Company’s Registration Statement on Form F-4 (the “Registration Statement”).
By Federal Express, the Company is furnishing the Commission’s staff (the “Staff”) with six marked courtesy copies of the Registration Statement and all annexes filed therewith.
The Registration Statement responds to the comments set forth in the Staff letter dated November 3, 2009 (the “Staff’s Letter”). In addition, the Company has determined not to present to stockholders the proposals previously referred to as the “CHAC Charter Amendment Proposal” and the “CHAC Trust Agreement Amendment Proposal.” Therefore, reference to such proposals has been deleted from the Registration Statement. We note below when we have not responded to a comment because it relates to one of those two proposals.
In order to facilitate your review of the Registration Statement, we have responded, on behalf of the Company, to each of the comments set forth in the Staff’s Letter, on a point-by-point basis. The numbered paragraphs set forth below respond to the Staff’s comments and correspond to the numbered paragraphs in the Staff’s Letter. Page numbers refer to the Registration Statement as filed.
General
1.
It appears that you have bundled two separate proposals for the CHAC Charter Amendment Proposal. Please unbundle.
Ms. Pamela Long
Securities and Exchange Commission
November 4, 2009
The Company has deleted the CHAC Charter Amendment Proposal from the Registration Statement.
2.
Please revise your disclosure throughout the filing to reflect the new proposals (the CHAC Charter Amendment and CHAC Trust Agreement Amendment Proposals). For example:
·
Revise the prospectus cover page to reflect the new proposals.
·
In the last paragraph on page 3, discuss how the new proposals affect the vote of CHAC’ s initial stockholders. Explain whether the initial stockholders must vote with the majority based on the votes for each separate proposal. Clarify in the last sentence whether they can vote for the proposals if the majority of the votes cast by stockholders vote against each of the other proposals. Disclose whether any shares have been purchased by the initial stockholders after the IPO.
·
Clarify the maximum amount of shares that may be redeemed. For example, disclose whether up to 80% of stockholders may exercise their redemption rights since insiders hold 20% of the outstanding shares. Also tell us what consideration you gave to reflecting the maximum redemption of 80% instead of 75% in the pro forma information provided on pages 23, 83, and elsewhere throughout the filing in light of the new proposals.
·
Update numbers and amounts reflecting maximum redemption, such as:
o
under “What happens to the funds deposited in the Trust Account following the Business Combination?” on page 5; and
o
the impact of the ownership of the company on page 9.
Note that this is not meant to represent an all-inclusive list of where you need to address the new proposals.
The Company has deleted the CHAC Charter Amendment Proposal and the CHAC Trust Agreement Proposal from the Registration Statement.
3.
We note your disclosure in the IPO registration statement that the 80% threshold vote to amend your articles of incorporation for certain matters may not be valid under Delaware law. Since you have now added the new proposals, please disclose whether you have received an opinion from Delaware counsel on this issue and whether the adoption of the new proposals would be valid and effective under Delaware law. If so, please attach the legal opinion as an annex to the Registration Statement, and also provide counsel’s consent under Rule 436 of Regulation C. If not, please provide appropriate risk factor disclosure throughout the filing.
Ms. Pamela Long
Securities and Exchange Commission
November 4, 2009
The Company has deleted the CHAC Charter Amendment Proposal and the CHAC Trust Agreement Proposal from the Registration Statement.
4.
Please clarify and describe the relationship among all the proposals. Include the following in your disclosure:
·
Identify clearly for each separate proposal whether it is related to or conditioned on the approval of the other proposals.
The disclosure on the Notice of Special Meeting, pages 2, 8, 44, 45, 51, 71 and the preliminary proxy card has been revised in accordance with the Staff’s comment.
·
Describe the timing of the proposals and explain what will occur if each of the separate proposals does not receive the necessary vote to approve that proposal.
The disclosure on Notice of Special Meeting, pages 2, 8, 44, 45, 51, 71 and the preliminary proxy card has been revised in accordance with the Staff’s comment.
·
It appears that stockholders will not be able to provide proxies to vote in favor of the business combination and be certain that they will still be able to exercise their redemption rights. On page 4 you state that if a stockholder votes in favor of the Redomestication, the Business Combination, the CHAC Charter Amendment and the CHAC Trust Agreement Amendment Proposals and properly exercise its redemption rights, but the CHAC Charter Amendment Proposal is not approved, the stockholder will be treated as having voted against the Business Combination Proposal and elected redemption of its shares. Please explain whether:
o
this is a waiver of the requirement that stockholders must vote against the Business Combination Proposal in order to exercise their redemption rights;
o
this would conflict with provisions in your certificate of incorporation; and
o
this action would be valid and effective under Delaware law.
The Company has deleted the CHAC Charter Amendment Proposal and the CHAC Trust Agreement Proposal from the Registration Statement.
5.
Under a separate heading in the Summary section and as elsewhere in the filing as applicable, please describe the rescission rights stockholders may have as a result of the new proposals.
The Company has deleted the CHAC Charter Amendment Proposal and the CHAC Trust Agreement Proposal from the Registration Statement.
Ms. Pamela Long
Securities and Exchange Commission
November 4, 2009
6.
We note your disclosure that one of the closing conditions in the Acquisition Agreement requires that holders of less than 33.33% of CHAC s public shares of common stock vote against the business combination and exercise their rights to redeem. Please disclose whether you have received a waiver for this closing condition or amended the Acquisition Agreement to reflect the new proposals.
The Company has deleted the CHAC Charter Amendment Proposal and the CHAC Trust Agreement Proposal from the Registration Statement.
7.
Please update your disclosure regarding the conditions to the closing listed on page 68, and describe any conditions that have not been satisfied. If a definitive purchase agreement for the Gaoan production facility has not been executed, explain what you will do if the agreement is not entered into prior to November 21, 2009, and what rights stockholders have in the event they do not exercise their redemption rights and the Gaoan transaction is not consummated. We note that Hengda’s projections, beginning on page 55, assume the acquisition of the Gaoan production facility. If no definitive purchase agreement has been executed, please disclose whether the board of CHAC believes that Hengda’s value will exceed 80% of the balance in the Trust Account if Hengda does not consummate the Gaoan transaction.
The disclosure on pages 62 and 68 has been revised in accordance with the Staff’s comment.
Redomestication, Business Combination and the Acquisition Agreement, page 8
8.
We note your response to comment 21 in our letter dated October 22, 2009 and your disclosure on page 9. Please discuss the Authorized Capital Proposal under a separate heading in the Summary. Clarify whether the increase in authorized shares is set forth in the Acquisition Agreement or was otherwise agreed to by the parties in connection with the business combination. We note your disclosure that following the Redomestication and Business Combination, it is expected that the company will have approximately 35.6 million shares outstanding and issuable upon exercise of warrants. However, this does not appear to include the Contingent Shares. Please explain. Also disclose whether you will use any of these shares to secure stockholder approval of the business combination. Make similar disclosure throughout the filing as applicable, such as under the Authorized Capital Proposal section on page 78.
The disclosure on pages 8 and 78 has been revised in accordance with the Staff’s comments. The disclosure with respect to the number of shares outstanding and issuable upon exercise of warrants has been revised to include the Contingent Shares and, accordingly, the discussion of the Authorized Capital Proposal has been revised to indicate that the Business Combination and Redomestication Proposals are conditioned upon the approval of the Authorized Capital Proposal.
Ms. Pamela Long
Securities and Exchange Commission
November 4, 2009
9.
On page 9, you disclose that the transactions comply with the terms set forth in the IPO registration statement. Since you have now added proposals that no longer comply with the terms described in the IPO registration statement, please revise the last paragraph to explain that shareholders may be entitled to rescission rights. Please revise your disclosure throughout the filing, as applicable.
The Company has deleted the CHAC Charter Amendment Proposal and the CHAC Trust Agreement Proposal from the Registration Statement.
Material U.S. Federal Income Tax Consequences, page 18
10.
We note your response to comment 33 in our letter dated October 22, 2009. Please clarify in the first two sentences of the first paragraph that there is some doubt relating to the material tax consequences of the Redomestication to investors.
The disclosure on page 16 has been revised in accordance with the Staff’s comment.
Material PRC Tax Consequences to Investors, page 19
11.
We note your response to comment 34 in our letter dated October 22, 2009 and the reference to the income tax treaty between the United States and the PRC. Please identify this tax treaty.
The disclosure on page 17 has been revised to identify the income tax treaty between the United States and the PRC.
12.
Please include a more detailed discussion regarding the material PRC tax consequences later in the filing.
The disclosure on pages 156-160 has been revised to include a more detailed discussion regarding the material PRC tax consequences, and a reference to the detailed discussion has been added to pages 17 and 40.
Selected Unaudited Pro Forma Consolidated Financial Information, page 22
13.
We have read your response to comment 37 from our letter dated October 22, 2009. We note that you have revised your disclosure to remove the statement that the escrowed shares will be recorded as an adjustment to the accounting acquiree’s basis in the reverse recapitalization at fair value. Please still tell us your basis for recording these as an adjustment to the accounting acquiree’s basis in, the reverse recapitalization at fair value.
The post transaction company does not intend to record the escrowed shares as an adjustment to the accounting acquiree's basis in the reverse capitalization at fair value. Rather, as disclosed on page 22, the post transaction company will record such escrowed shares as outstanding for all periods subsequent to the release of such shares from escrow, and such shares will be included in the calculations of earnings per share from that date in accordance with the guidance provided in SFAS No. 141R paragraphs A110 and A111.
Ms. Pamela Long
Securities and Exchange Commission
November 4, 2009
Comparative Per Share Information, page 24
14.
We have read your response to comment 38 from our letter dated October 22, 2009. It is still not clear where you have presented equivalent pro forma per share amounts or the exchange ratio used to calculate equivalent pro forma per share amounts for Success Winner. Please note that the equivalent pro forma per share amount for Success Winner is the combined pro forma earnings per share multiplied by the exchange ratio. In accordance with Item 3(f) of Part I.A of the Form F-4, please address the following:
·
Please clearly indicate which amounts represent the equivalent pro forma per share amounts. We remind you that you should present equivalent pro forma book value per share, equivalent pro forma cash dividends per share, and equivalent pro forma income (loss) per share from continuing operations for Success Winner; and
·
Please clearly disclose how you are calculating the equivalent pro forma per share amounts, including the exchange ratios used.
Please refer to Instruction 1 to Item 3(f) of Part I.A of the Form F-4.
The disclosure on pages 24-26 has been revised in accordance with the Staff’s comment.
Risk Factors, page
The working capital of the surviving company will be reduced…, page 37
15.
Please
Show Raw Text
CORRESP
1
filename1.htm
Unassociated Document
Giovanni
Caruso
of
Loeb & Loeb LLP
345
Park Avenue
New
York, NY 10154-1895
Direct 212.407.4866
Main
212.407.4000
Fax
212.937.3943
gcaruso@loeb.com
November
4, 2009
Pamela
Long
Assistant
Director
Securities
and Exchange Commission
100 F
Street, N.E.
Washington,
DC 20549
RE:
China
Ceramics Co., Ltd.
Amendment
No. 2 to Registration Statement on Form F-4
Filed
October 27, 2009
File
No. 333-161557
Dear Ms.
Long:
On behalf
of our client, China Ceramics Co., Ltd., a company organized under the laws of
the British Virgin Islands (the “Company”), we transmit herewith for filing with
the Securities and Exchange Commission (the “Commission”) one complete
electronic version of Amendment No. 3 to the Company’s Registration Statement on
Form F-4 (the “Registration Statement”).
By
Federal Express, the Company is furnishing the Commission’s staff (the “Staff”)
with six marked courtesy copies of the Registration Statement and all annexes
filed therewith.
The
Registration Statement responds to the comments set forth in the Staff letter
dated November 3, 2009 (the “Staff’s Letter”). In addition, the
Company has determined not to present to stockholders the proposals previously
referred to as the “CHAC Charter Amendment Proposal” and the “CHAC Trust
Agreement Amendment Proposal.” Therefore, reference to such proposals
has been deleted from the Registration Statement. We note below when
we have not responded to a comment because it relates to one of those two
proposals.
In order
to facilitate your review of the Registration Statement, we have responded, on
behalf of the Company, to each of the comments set forth in the Staff’s Letter,
on a point-by-point basis. The numbered paragraphs set forth below
respond to the Staff’s comments and correspond to the numbered paragraphs in the
Staff’s Letter. Page numbers refer to the Registration Statement as
filed.
General
1.
It
appears that you have bundled two separate proposals for the CHAC Charter
Amendment Proposal. Please
unbundle.
Ms.
Pamela Long
Securities
and Exchange Commission
November
4, 2009
The
Company has deleted the CHAC Charter Amendment Proposal from the Registration
Statement.
2.
Please
revise your disclosure throughout the filing to reflect the new proposals
(the CHAC Charter Amendment and CHAC Trust Agreement Amendment Proposals).
For example:
·
Revise the prospectus cover
page to reflect the new
proposals.
·
In the last paragraph on page
3, discuss how the new proposals affect the vote of CHAC’ s initial
stockholders. Explain whether the initial stockholders must vote with the
majority based on the votes for each separate proposal. Clarify in the
last sentence whether they can vote for the proposals if the majority of
the votes cast by stockholders vote against each of the other proposals.
Disclose whether any shares have been purchased by the initial
stockholders after the IPO.
·
Clarify the maximum amount of
shares that may be redeemed. For example, disclose whether up to 80% of
stockholders may exercise their redemption rights since insiders hold 20%
of the outstanding shares. Also tell us what consideration you gave to
reflecting the maximum redemption of 80% instead of 75% in the pro forma
information provided on pages 23, 83, and elsewhere throughout the filing
in light of the new
proposals.
·
Update numbers and amounts
reflecting maximum redemption, such
as:
o
under “What happens to the
funds deposited in the Trust Account following the Business Combination?”
on page 5; and
o
the impact of the ownership of
the company on page 9.
Note
that this is not meant to represent an all-inclusive list of where you need to
address the new proposals.
The
Company has deleted the CHAC Charter Amendment Proposal and the CHAC Trust
Agreement Proposal from the Registration Statement.
3.
We
note your disclosure in the IPO registration statement that the 80%
threshold vote to amend your articles of incorporation for certain matters
may not be valid under Delaware law. Since you have now added the new
proposals, please disclose whether you have received an opinion from
Delaware counsel on this issue and whether the adoption of the new
proposals would be valid and effective under Delaware law. If so, please
attach the legal opinion as an annex to the
Registration Statement, and also provide counsel’s consent under Rule 436
of Regulation C. If not, please provide appropriate risk factor disclosure
throughout the filing.
Ms.
Pamela Long
Securities
and Exchange Commission
November
4, 2009
The
Company has deleted the CHAC Charter Amendment Proposal and the CHAC Trust
Agreement Proposal from the Registration Statement.
4.
Please
clarify and describe the relationship among all the proposals. Include the
following in your disclosure:
·
Identify clearly for each
separate proposal whether it is related to or conditioned on the approval
of the other proposals.
The
disclosure on the Notice of Special Meeting, pages 2, 8, 44, 45, 51, 71 and the
preliminary proxy card has been revised in accordance with the Staff’s
comment.
·
Describe the timing of the
proposals and explain what will occur if each of the separate proposals
does not receive the necessary vote to approve that
proposal.
The
disclosure on Notice of Special Meeting, pages 2, 8, 44, 45, 51, 71 and the
preliminary proxy card has been revised in accordance with the Staff’s
comment.
·
It appears that stockholders
will not be able to provide proxies to vote in favor of the business
combination and be certain that they will still be able to exercise their
redemption rights. On page 4 you state that if a stockholder votes in
favor of the Redomestication, the Business Combination, the CHAC Charter
Amendment and the CHAC Trust Agreement Amendment Proposals and properly
exercise its redemption rights, but the CHAC Charter Amendment Proposal is
not approved, the stockholder will be treated as having voted against the
Business Combination Proposal and elected redemption of its shares. Please
explain whether:
o
this is a waiver of the
requirement that stockholders must vote against the Business Combination
Proposal in order to exercise their redemption
rights;
o
this would conflict with
provisions in your certificate of incorporation;
and
o
this action would be valid and
effective under Delaware
law.
The
Company has deleted the CHAC Charter Amendment Proposal and the CHAC Trust
Agreement Proposal from the Registration Statement.
5.
Under
a separate heading in the Summary section and as elsewhere in the filing
as applicable, please describe the rescission rights stockholders may have
as a result of the new proposals.
The
Company has deleted the CHAC Charter Amendment Proposal and the CHAC Trust
Agreement Proposal from the Registration Statement.
Ms.
Pamela Long
Securities
and Exchange Commission
November
4, 2009
6.
We
note your disclosure that one of the closing conditions in the Acquisition
Agreement requires that holders of less than 33.33% of CHAC s public
shares of common stock vote against the business combination and exercise
their rights to redeem. Please disclose whether you have received a waiver
for this closing condition or amended the Acquisition Agreement to reflect
the new proposals.
The
Company has deleted the CHAC Charter Amendment Proposal and the CHAC Trust
Agreement Proposal from the Registration Statement.
7.
Please
update your disclosure regarding the conditions to the closing listed on
page 68, and describe any conditions that have not been satisfied. If a
definitive purchase agreement for the Gaoan production facility has not
been executed, explain what you will do if the agreement is not entered
into prior to November 21, 2009, and what rights stockholders have in the
event they do not exercise their redemption rights and the Gaoan
transaction is not consummated. We note that Hengda’s projections,
beginning on page 55, assume the acquisition of the Gaoan production
facility. If no definitive purchase agreement has been executed, please
disclose whether the board of CHAC believes that Hengda’s value will
exceed 80% of the balance in the Trust Account if Hengda does not
consummate the Gaoan transaction.
The
disclosure on pages 62 and 68 has been revised in accordance with the Staff’s
comment.
Redomestication, Business
Combination and the Acquisition Agreement, page 8
8.
We
note your response to comment 21 in our letter dated October 22, 2009 and
your disclosure on page 9. Please discuss the Authorized Capital Proposal
under a separate heading in the Summary. Clarify whether the increase in
authorized shares is set forth in the Acquisition Agreement or was
otherwise agreed to by the parties in connection with the business
combination. We note your disclosure that following the Redomestication
and Business Combination, it is expected that the company will have
approximately 35.6 million shares outstanding and issuable upon exercise
of warrants. However, this does not appear to include the Contingent
Shares. Please explain. Also disclose whether you will use any of these
shares to secure stockholder approval of the business combination. Make
similar disclosure throughout the filing as applicable, such as under the
Authorized Capital Proposal section on page
78.
The
disclosure on pages 8 and 78 has been revised in accordance with the Staff’s
comments. The disclosure with respect to the number of shares
outstanding and issuable upon exercise of warrants has been revised to include
the Contingent Shares and, accordingly, the discussion of the Authorized Capital
Proposal has been revised to indicate that the Business Combination and
Redomestication Proposals are conditioned upon the approval of the Authorized
Capital Proposal.
Ms.
Pamela Long
Securities
and Exchange Commission
November
4, 2009
9.
On
page 9, you disclose that the transactions comply with the terms set forth
in the IPO registration statement. Since you have now added proposals that
no longer comply with the terms described in the IPO registration
statement, please revise the last paragraph to explain that shareholders
may be entitled to rescission rights. Please revise your disclosure
throughout the filing, as
applicable.
The
Company has deleted the CHAC Charter Amendment Proposal and the CHAC Trust
Agreement Proposal from the Registration Statement.
Material U.S. Federal Income
Tax Consequences, page 18
10.
We
note your response to comment 33 in our letter dated October 22, 2009.
Please clarify in the first two sentences of the first paragraph that
there is some doubt relating to the material tax consequences of the
Redomestication to investors.
The
disclosure on page 16 has been revised in accordance with the Staff’s
comment.
Material PRC Tax
Consequences to Investors, page 19
11.
We
note your response to comment 34 in our letter dated October 22, 2009 and
the reference to the income tax treaty between the United States and the
PRC. Please identify this tax
treaty.
The
disclosure on page 17 has been revised to identify the income tax treaty between
the United States and the PRC.
12.
Please
include a more detailed discussion regarding the material PRC tax
consequences later in the filing.
The
disclosure on pages 156-160 has been revised to include a more detailed
discussion regarding the material PRC tax consequences, and a reference to the
detailed discussion has been added to pages 17 and 40.
Selected Unaudited Pro Forma
Consolidated Financial Information, page 22
13.
We
have read your response to comment 37 from our letter dated October 22,
2009. We note that you have revised your disclosure to remove the
statement that the escrowed shares will be recorded as an adjustment to
the accounting acquiree’s basis in the reverse recapitalization at fair
value. Please still tell us your basis for recording these as an
adjustment to the accounting acquiree’s basis in, the reverse
recapitalization at fair value.
The post
transaction company does not intend to record the escrowed shares as an
adjustment to the accounting acquiree's basis in the reverse capitalization at
fair value. Rather, as disclosed on page 22, the post transaction company
will record such escrowed shares as outstanding for all periods subsequent to
the release of such shares from escrow, and such shares will be included in the
calculations of earnings per share from that date in accordance with the
guidance provided in SFAS No. 141R paragraphs A110 and A111.
Ms.
Pamela Long
Securities
and Exchange Commission
November
4, 2009
Comparative Per Share
Information, page 24
14.
We
have read your response to comment 38 from our letter dated October 22,
2009. It is still not clear where you have presented equivalent pro forma
per share amounts or the exchange ratio used to calculate equivalent pro
forma per share amounts for Success Winner. Please note that the
equivalent pro forma per share amount for Success Winner is the combined
pro forma earnings per share multiplied by the exchange ratio. In
accordance with Item 3(f) of Part I.A of the Form F-4, please address the
following:
·
Please clearly indicate which
amounts represent the equivalent pro forma per share amounts. We remind
you that you should present equivalent pro forma book value per share,
equivalent pro forma cash dividends per share, and equivalent pro forma
income (loss) per share from continuing operations for Success Winner;
and
·
Please clearly disclose how you
are calculating the equivalent pro forma per share amounts, including the
exchange ratios used.
Please
refer to Instruction 1 to Item 3(f) of Part I.A of the Form F-4.
The
disclosure on pages 24-26 has been revised in accordance with the Staff’s
comment.
Risk Factors, page
28
The working capital of the
surviving company will be reduced…, page 37
15.
Please