Correspondence 0000921895-24-001322 from ETFS Capital Limited. (CIK 0001520619)
ETFS Capital Limited. (CIK 0001520619)
Date: May 28, 2024 · CIK: 0001520619 · Accession: 0000921895-24-001322
AI Filing Summary & Sentiment
File numbers found in text: 001-10932
Referenced dates: May 24, 2024
Letter
VIA EDGAR AND ELECTRONIC MAIL United States Securities and Exchange Commission Division of Corporation Finance Office of Mergers & Acquisitions Re: ETFS Capital Limited (“ETFS Capital”) WisdomTree, Inc. (“WisdomTree” or the “Company”) DFAN filed May 21, 2024 (the “DFAN”) by ETFS Capital Limited and Graham Tuckwell (collectively, “ETFS”) File No. 001-10932
Dear Ms. McKenzie and Ms. Chalk:
We acknowledge receipt of the comment letter of the Staff (the “Staff”) of the U.S. Securities and Exchange Commission (the “SEC”), dated May 24, 2024 (the “Staff Letter”), with regard to the above-referenced matters. We have reviewed the Staff Letter with ETFS and provide the following responses on ETFS’ behalf. For ease of reference, the comments in the Staff Letter are reproduced in italicized form below. Terms that are not otherwise defined have the meanings ascribed to them in the DFAN.
DFAN filed on May 21, 2024
Investor Presentation attached as Exhibit 1
1. We note your statement on slide 10 that "[a]ccording to publicly available information, WisdomTree has spent $10 million over the last two years by its own calculations on proxy fights.” Please supplementally provide more specific supporting data to allow stockholders to identify supporting source materials. In future soliciting materials, provide such support where these statements are made.
ETFS acknowledges the Staff’s comment and hereby provides the Staff, on a supplemental basis, with more specific supporting data and source materials. ETFS respectfully refers the Staff to the table below for information regarding the Company’s “expenses incurred in response to an activist campaign” since 1Q2022, which was copied from the Company’s press releases announcing the Company’s quarterly results.
O L S H A N F R O M E W O L O S K Y L L P WWW.OLSHANLAW.COM
May 28, 2024
Page 2
WisdomTree’s Expenses Incurred in Response to an Activist Campaign
(in thousands)
1Q241 4Q231 3Q231 2Q231 1Q231 4Q222 3Q222 2Q222 1Q222 TOTAL
$695 - - $4,913 $967 - - $2,024 $2,435 $11,034
In addition, ETFS hereby confirms that it will provide support where these statements are made in future soliciting materials.
2. We note that slide 17 compares revenue and adjusted operating margin but does not disclose the applicable adjustments and includes "ETFS estimates" as a source for the information. Please clarify the adjustments made and, consistent with previous comments, ensure that you provide specific cites supporting disclosure of all figures and assertions of value.
ETFS acknowledges the Staff’s comment and hereby provides the Staff, on a supplemental basis, with the requested information. In order to calculate the disclosed adjusted operating margin for a given quarter, ETFS began with the Company’s reported operating income, and then added back the reported expenses/costs incurred in response to activist campaigns and contractual gold payments, as applicable, and then divided this number by total revenue, in each case, as disclosed in the Company’s SEC filings and press releases announcing the Company’s quarterly results.
ETFS respectfully advises the Staff that ETFS’ use of the word “estimates” was meant to communicate to the reader that ETFS was calculating these percentages internally using the above referenced formula. Notwithstanding the foregoing, however, the Company calculates the same adjusted operating margin for a given quarter as does ETFS. For example, both ETFS and the Company calculate that the Company’s adjusted operating margin for 1Q24 and 1Q23 per the above formula was 29.6% and 26.8%, respectively, as shown below.
1 https://ir.wisdomtree.com/news-events/press-releases/detail/681/wisdomtree-announces-first-quarter-2024-results
2 https://ir.wisdomtree.com/news-events/press-releases/detail/614/wisdomtree-announces-fourth-quarter-2022-results-record
May 28, 2024
Page 3
WisdomTree
Source: https://d1io3yog0oux5.cloudfront.net/_c52e3d7b119e34f11f6f0c9bbd18e7d6/wisdomtree/db/2713/24696/pdf/Presentation+-+Earnings+Release+%28Q1+2024%29.pdf (See slide 4)
ETFS
Source: https://www.sec.gov/Archives/edgar/data/880631/000092189524001286/ex1dfan14a13246002_052124.pdf (See slide 17)
May 28, 2024
Page 4
In addition, ETFS hereby confirms that it will provide specific cites supporting disclosure of all figures and assertions of value in future soliciting materials.
* * * * *
The Staff is invited to contact the undersigned with any comments or questions it may have. Thank you for your assistance.
Sincerely,
/s/ Andrew M. Freedman
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filename1.htm
O L S H A N
1325 AVENUE OF THE AMERICAS ● NEW YORK, NEW YORK 10019
TELEPHONE: 212.451.2300 ● FACSIMILE: 212.451.2222
EMAIL: AFREEDMAN@OLSHANLAW.COM
DIRECT DIAL: 212.451.2250
May 28, 2024
VIA EDGAR AND ELECTRONIC MAIL
Laura McKenzie
Christina Chalk
United States Securities and Exchange Commission
Division of Corporation Finance
Office of Mergers & Acquisitions
Mail Stop 3628
100 F Street, N.E.
Washington, D.C. 20549
Re: ETFS Capital Limited (“ETFS Capital”)
WisdomTree, Inc. (“WisdomTree” or the “Company”)
DFAN filed May 21, 2024 (the “DFAN”) by ETFS Capital Limited
and Graham Tuckwell (collectively, “ETFS”)
File No. 001-10932
Dear Ms. McKenzie and Ms. Chalk:
We acknowledge receipt
of the comment letter of the Staff (the “Staff”) of the U.S. Securities and Exchange Commission (the “SEC”), dated
May 24, 2024 (the “Staff Letter”), with regard to the above-referenced matters. We have reviewed the Staff Letter with ETFS
and provide the following responses on ETFS’ behalf. For ease of reference, the comments in the Staff Letter are reproduced in italicized
form below. Terms that are not otherwise defined have the meanings ascribed to them in the DFAN.
DFAN filed on May 21, 2024
Investor Presentation attached as Exhibit 1
1. We note your statement on slide 10 that "[a]ccording to publicly available information, WisdomTree
has spent $10 million over the last two years by its own calculations on proxy fights.” Please supplementally provide more specific
supporting data to allow stockholders to identify supporting source materials. In future soliciting materials, provide such support where
these statements are made.
ETFS acknowledges the Staff’s
comment and hereby provides the Staff, on a supplemental basis, with more specific supporting data and source materials. ETFS respectfully
refers the Staff to the table below for information regarding the Company’s “expenses incurred in response to an activist
campaign” since 1Q2022, which was copied from the Company’s press releases announcing the Company’s quarterly results.
O L S H A N F R O M E W O L O S K Y L L P
WWW.OLSHANLAW.COM
May 28, 2024
Page 2
WisdomTree’s Expenses
Incurred in Response to an Activist Campaign
(in thousands)
1Q241
4Q231
3Q231
2Q231
1Q231
4Q222
3Q222
2Q222
1Q222
TOTAL
$695
-
-
$4,913
$967
-
-
$2,024
$2,435
$11,034
In addition, ETFS hereby
confirms that it will provide support where these statements are made in future soliciting materials.
2. We note that slide 17 compares revenue and adjusted operating margin but does not disclose the applicable
adjustments and includes "ETFS estimates" as a source for the information. Please clarify the adjustments made and, consistent
with previous comments, ensure that you provide specific cites supporting disclosure of all figures and assertions of value.
ETFS acknowledges the Staff’s
comment and hereby provides the Staff, on a supplemental basis, with the requested information. In order to calculate the disclosed adjusted
operating margin for a given quarter, ETFS began with the Company’s reported operating income, and then added back the reported
expenses/costs incurred in response to activist campaigns and contractual gold payments, as applicable, and then divided this number by
total revenue, in each case, as disclosed in the Company’s SEC filings and press releases announcing the Company’s quarterly
results.
ETFS respectfully advises
the Staff that ETFS’ use of the word “estimates” was meant to communicate to the reader that ETFS was calculating these
percentages internally using the above referenced formula. Notwithstanding the foregoing, however, the Company calculates the same adjusted
operating margin for a given quarter as does ETFS. For example, both ETFS and the Company calculate that the Company’s adjusted
operating margin for 1Q24 and 1Q23 per the above formula was 29.6% and 26.8%, respectively, as shown below.
1 https://ir.wisdomtree.com/news-events/press-releases/detail/681/wisdomtree-announces-first-quarter-2024-results
2 https://ir.wisdomtree.com/news-events/press-releases/detail/614/wisdomtree-announces-fourth-quarter-2022-results-record
May 28, 2024
Page 3
WisdomTree
Source: https://d1io3yog0oux5.cloudfront.net/_c52e3d7b119e34f11f6f0c9bbd18e7d6/wisdomtree/db/2713/24696/pdf/Presentation+-+Earnings+Release+%28Q1+2024%29.pdf
(See slide 4)
ETFS
Source: https://www.sec.gov/Archives/edgar/data/880631/000092189524001286/ex1dfan14a13246002_052124.pdf
(See slide 17)
May 28, 2024
Page 4
In addition, ETFS hereby
confirms that it will provide specific cites supporting disclosure of all figures and assertions of value in future soliciting materials.
* * * * *
The Staff is invited to contact
the undersigned with any comments or questions it may have. Thank you for your assistance.
Sincerely,
/s/ Andrew M. Freedman
Andrew M. Freedman