Correspondence 0001493152-24-004362 from CITIUS ONCOLOGY, INC. (CTOR)
CITIUS ONCOLOGY, INC.
Date: Jan. 30, 2024 · CIK: 0001851484 · Accession: 0001493152-24-004362
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 333-275506
Referenced dates: December 13, 2023
Letter
Mark Crone
Managing Partner
mcrone@cronelawgroup.com
VIA EDGAR
January 30, 2024
THE UNITED STATES SECURITIES
AND EXCHANGE COMMISSION
Division of Corporation Finance
Washington, D.C. 20549
Attn: Division of Corporation Finance Office of Life Sciences
Re: TenX Keane Acquisition
Registration Statement on Form S-4
Filed November 13, 2023
File No. 333-275506
Ladies and Gentlemen:
On behalf of our client, TenX Keane Acquisition, a Cayman Islands exempted company (the “Company”), we are responding to the comments of the staff (the “Staff”) of the Securities and Exchange Commission (the “Commission”) contained in the letter dated December 13, 2023 (the “Comment Letter”), relating to the above referenced Registration Statement on Form S-4, filed November 13, 2023 (the “Registration Statement”). Concurrently with the submission of this letter, the Company is filing Amendment No. 1 to the Registration Statement (“Amendment No. 1”).
Set forth below are the Company’s responses to the Staff’s comments. The Staff’s comments are repeated below in bold and are followed by the Company’s responses. Page references in the text of this response letter correspond to the page numbers of the Registration Statement.
Registration Statement on Form S-4
Cover Page
1. We note your disclosure that after the completion of the Business Combination, Citius Pharma will control a majority of the voting power and therefore New Citius Oncology will be a controlled company. Please also revise the cover page to include Citius Pharma’s ownership percentage.
Response: In response to the Staff’s comment, the disclosure on the cover page of Amendment No. 1 has been revised to include Citius Pharma’s ownership percentage after the completion of the Business Combination.
United States Securities and Exchange Commission
January 30, 2024
Page
Questions and Answers
Q: What equity stake will current TenX Shareholders and SpinCo stockholders hold in New Citius Oncology immediately after..., page 16
2. Please revise to disclose all possible sources and extent of dilution that shareholders who elect not to redeem their shares may experience in connection with the Business Combination. Provide disclosure of the impact of each significant source of dilution, including the amount of equity held by founders and convertible securities retained by redeeming shareholders at each of the redemption levels detailed in your sensitivity analysis, including any needed assumptions.
Response: The Company acknowledges the Staff’s comment and has included the additional requested disclosure on page 16 of Amendment No. 1.
How does the Sponsor intend to vote its shares?, page 26
3. We note the disclosure on page 26 indicating that the Sponsor may purchase TenX Ordinary Shares, TenX Units or TenX Rights in privately negotiated transactions or in the open market either prior to or following the Business Combination and that the Sponsor intends to vote such shares in favor of the Business Combination. Please provide your analysis on how such purchases will comply with Rule 14e-5. To the extent that you are relying on Tender Offer Compliance and Disclosure Interpretation 166.01 (March 22, 2022), please provide an analysis regarding how it applies to your circumstances.
Response: The Company acknowledges the Staff’s comment and advises that, to the extent that Rule 14e-5 applies, any such purchases by the Sponsor or its affiliates will comply with the conditions set forth in Tender Offer Compliance and Disclosure Interpretation 166.01, as follows:
● the Registration Statement filed for the business combination discloses the possibility that the Sponsor or its affiliates may purchase the Company’s securities outside the redemption process, along with the purpose of such purchases;
● the Sponsor or its affiliates will purchase such securities at a price no higher than the price offered through the Company’s redemption process;
● the Registration Statement filed for the Business Combination includes a representation that any such securities purchased by the Sponsor or its affiliates would not be voted in favor of approving the Business Combination;
● the Sponsor and its affiliates do not possess any redemption rights with respect to the Company’s securities or, if they possess redemption rights, they have waived such rights; and
● the Company will disclose in a Form 8-K, before to the Company’s security holder meeting to approve the Business Combination, the following material items:
○ the amount of the Company’s securities purchased outside of the redemption offer by the Sponsor or its affiliates, along with the purchase price;
○ the purpose of the purchases by the Sponsor or its affiliates;
United States Securities and Exchange Commission
January 30, 2024
Page
○ the impact, if any, of the purchases by the Sponsor or its affiliates on the likelihood that the Business Combination will be approved;
○ the identities of Company security holders who sold to the Sponsor or its affiliates (if not purchased on the open market) or the nature of Company security holders (e.g., 5% security holders) who sold to the Sponsor or its affiliates; and
○ the number of Company securities for which the Company has received redemption requests pursuant to its redemption offer.
The Company has made conforming revisions on pages 27, 45, 85 and 149 of Amendment No. 1.
Summary of the Proxy Statement/Prospectus, page 30
4. Please revise the Summary to include an organizational chart depicting the parties to the transaction both prior to and after the Domestication and Business Combination.
Response: In response to the Staff’s comment, the Company has added an organizational chart on pages 32 and 33 of Amendment No. 1 depicting the parties to the transaction, both prior to and after the Domestication and Business Combination.
SpinCo, page 31
5. We note your disclosure that on July 28, 2023, the FDA issued a complete response letter regarding your BLA. We also note your disclosure that “[t]he FDA has required SpinCo to incorporate enhanced product testing, and additional controls agreed to with the FDA during the market application review.” Please provide further details regarding the underlying issues outlined in the FDA’s complete response letter. Additionally, please provide further details about the “enhanced product testing” and “additional controls” that were agreed to with the FDA.
Response: The Company acknowledges the Staff’s comment and has revised the disclosure on page 32 of Amendment No. 1 accordingly.
Amended & Restated Shared Services Agreement, page 35
6. We note your disclosure that “the fees for each of the services are set forth in the A&R Shared Services Agreement as a quarterly fee[.]” Please disclose the quarterly fee here.
Response: The Company acknowledges the Staff’s comment and advises that the quarterly fee is $941,267.58, which is for services related for personnel and office space.
Interests of TenX’s Directors and Executive Officers in the Business Combination, page 40
7. Please disclose the Sponsor and its affiliates’ total potential ownership interest in the combined company, assuming the exercise and conversion of all securities.
Response: In response to the Staff’s comment, the Company has revised the disclosure on page 44 of Amendment No. 1 to include the Sponsor and its affiliates’ total potential ownership interest in the combined company, assuming the exercise and conversion of all securities.
United States Securities and Exchange Commission
January 30, 2024
Page
Unaudited Pro Forma Condensed Combined Financial Information
General, page 49
8. Please revise to clarify the financial statement periods included in your pro forma Statements of Operations and how such information was derived. In this respect, it appears that given the difference in fiscal year-ends between the registrant and SpinCo, certain adjustments were made to the historical financial statements of SpinCo to conform to the annual and interim periods presented by the registrant. Refer to Article 11-02(c)(3) of Regulation S-X. Please also clarify whether the combined company will adopt December 31st as its new fiscal year-end.
Response: The Company acknowledges the Staff’s comment and advises that the Company has amended the disclosure set forth on pages 50 through 58 to include the following information:
The pro forma statement of operations for SpinCo for the nine months ended September 30, 2023 was prepared by subtracting the results of operations for SpinCo for the three months ended December 31, 2022 from the statement of operations for SpinCo for the year ended September 30, 2023. The pro forma statement of operations for SpinCo for the year ended December 31, 2022 was prepared by adding the results of operations for the three months ended December 31, 2022 to the statement of operations for SpinCo for the year ended September 30, 2022 (SpinCo did not begin operations until April 1, 2022.)
The Combined Company will adopt September 30 as its fiscal year-end.
Risk Factors
Risks Related to SpinCo’s Business and its Industry
SpinCo relies exclusively on third parties to formulate and manufacture its product candidates, page 70
9. We note your disclosure that one of the contract manufacturers for LYMPHIR is foreign. Please disclose where this manufacturer is located.
Response: The Company acknowledges the Staff’s comment and has revised the disclosure on page 72 of Amendment No. 1 to include that the manufacturer for the finished drug product is located in Italy.
The Combined Company’s Proposed Certificate of Incorporation will provide that the Court..., page 98
10. Please revise your risk factor to disclose that there is also a risk that your exclusive forum provision may result in increased costs for investors to bring a claim in the chosen forum.
Response: The Company acknowledges the Staff’s comment and has revised the risk factor on page 99 of Amendment No. 1 to include the risk that the exclusive forum provision may result in increased costs for investors to bring a claim in the chosen forum.
United States Securities and Exchange Commission
January 30, 2024
Page
Proposal No. 1 - The Business Combination Proposal Summary of the Merger Agreement
Fees and Expenses, page 129
11. We note your disclosure that the Sponsor has agreed to pay any transaction expenses of “Parent” in excess of $500,000. Please revise your disclosure here to clarify, if true, that “Parent” refers to Citius Pharma.
Response: The Company acknowledges the Staff’s comment and has revised the disclosure on page 130 of Amendment No. 1 to clarify that the Sponsor has agreed to pay any transaction expenses of TenX Keane Acquisition in excess of $500,000.
Amended &Restated Registration Rights Agreement, page 130
12. Please revise here and throughout, as appropriate, to disclose how many shares will be covered by the Amended & Restated Registration Rights Agreement.
Response: In response to the Staff’s comment, the Company has revised the disclosure on pages 36 and 131 of Amendment No.1 to disclose the number of shares of New Citius Oncology that will be covered by the Amended & Restated Registration Rights Agreement.
Sponsor Support Agreement, page 130
13. We note that the Sponsor agreed to waive its redemption rights. Please describe any consideration provided in exchange for this agreement.
Response: The Company acknowledges the Staff’s comment and advises that the Sponsor received no consideration in connection with its agreement to waive its redemption rights. The decision to waive its redemption rights was made by the Sponsor to demonstrate its commitment to the Business Combination and is consistent with market practices.
Background of the Business Combination, page 131
14. Please disclose here whether the Sponsor, management, or any affiliates of TenX have a track record with SPACs. If so, please provide disclosure about this record and the outcomes of those prior transactions.
Response: The Company acknowledges the Staff’s comment and advises that, although the Sponsor and the Company’s management and board members collectively have experience in mergers and acquisitions, capital markets and securities laws, they do not have a specific track record with SPACs.
15. We note that you reviewed approximately 15 potential targets, eight of which were eliminated, leading you to engage in detailed discussions with seven potential combination targets. Furth
Show Raw Text
CORRESP
1
filename1.htm
Mark
Crone
Managing
Partner
mcrone@cronelawgroup.com
VIA
EDGAR
January
30, 2024
THE
UNITED STATES SECURITIES
AND
EXCHANGE COMMISSION
Division
of Corporation Finance
Washington,
D.C. 20549
Attn:
Division of Corporation Finance Office of Life Sciences
Re:
TenX
Keane Acquisition
Registration
Statement on Form S-4
Filed
November 13, 2023
File
No. 333-275506
Ladies
and Gentlemen:
On
behalf of our client, TenX Keane Acquisition, a Cayman Islands exempted company (the “Company”), we are responding
to the comments of the staff (the “Staff”) of the Securities and Exchange Commission (the “Commission”)
contained in the letter dated December 13, 2023 (the “Comment Letter”), relating to the above referenced Registration Statement
on Form S-4, filed November 13, 2023 (the “Registration Statement”). Concurrently with the submission of this letter, the
Company is filing Amendment No. 1 to the Registration Statement (“Amendment No. 1”).
Set
forth below are the Company’s responses to the Staff’s comments. The Staff’s comments are repeated below in bold and
are followed by the Company’s responses. Page references in the text of this response letter correspond to the page numbers of
the Registration Statement.
Registration
Statement on Form S-4
Cover
Page
1. We
note your disclosure that after the completion of the Business Combination, Citius Pharma
will control a majority of the voting power and therefore New Citius Oncology will be a controlled
company. Please also revise the cover page to include Citius Pharma’s ownership percentage.
Response:
In response to the Staff’s comment, the disclosure on the cover page of Amendment No. 1 has been revised to include Citius
Pharma’s ownership percentage after the completion of the Business Combination.
United
States Securities and Exchange Commission
January
30, 2024
Page
2
Questions
and Answers
Q:
What equity stake will current TenX Shareholders and SpinCo stockholders hold in New Citius Oncology immediately after..., page 16
2. Please
revise to disclose all possible sources and extent of dilution that shareholders who elect
not to redeem their shares may experience in connection with the Business Combination. Provide
disclosure of the impact of each significant source of dilution, including the amount of
equity held by founders and convertible securities retained by redeeming shareholders at
each of the redemption levels detailed in your sensitivity analysis, including any needed
assumptions.
Response:
The Company acknowledges the Staff’s comment and has included the additional requested disclosure on page 16 of Amendment No.
1.
How
does the Sponsor intend to vote its shares?, page 26
3. We
note the disclosure on page 26 indicating that the Sponsor may purchase TenX Ordinary Shares,
TenX Units or TenX Rights in privately negotiated transactions or in the open market either
prior to or following the Business Combination and that the Sponsor intends to vote such
shares in favor of the Business Combination. Please provide your analysis on how such purchases
will comply with Rule 14e-5. To the extent that you are relying on Tender Offer Compliance
and Disclosure Interpretation 166.01 (March 22, 2022), please provide an analysis regarding
how it applies to your circumstances.
Response:
The Company acknowledges the Staff’s comment and advises that, to the extent that Rule 14e-5 applies, any such purchases by
the Sponsor or its affiliates will comply with the conditions set forth in Tender Offer Compliance and Disclosure Interpretation 166.01,
as follows:
● the
Registration Statement filed for the business combination discloses the possibility that
the Sponsor or its affiliates may purchase the Company’s securities outside the redemption
process, along with the purpose of such purchases;
● the
Sponsor or its affiliates will purchase such securities at a price no higher than the price
offered through the Company’s redemption process;
● the
Registration Statement filed for the Business Combination includes a representation that
any such securities purchased by the Sponsor or its affiliates would not be voted in favor
of approving the Business Combination;
● the
Sponsor and its affiliates do not possess any redemption rights with respect to the Company’s
securities or, if they possess redemption rights, they have waived such rights; and
● the
Company will disclose in a Form 8-K, before to the Company’s security holder meeting
to approve the Business Combination, the following material items:
○ the
amount of the Company’s securities purchased outside of the redemption offer by the
Sponsor or its affiliates, along with the purchase price;
○ the
purpose of the purchases by the Sponsor or its affiliates;
United
States Securities and Exchange Commission
January
30, 2024
Page
3
○ the
impact, if any, of the purchases by the Sponsor or its affiliates on the likelihood that
the Business Combination will be approved;
○ the
identities of Company security holders who sold to the Sponsor or its affiliates (if not
purchased on the open market) or the nature of Company security holders (e.g., 5% security
holders) who sold to the Sponsor or its affiliates; and
○ the
number of Company securities for which the Company has received redemption requests pursuant
to its redemption offer.
The
Company has made conforming revisions on pages 27, 45, 85 and 149 of Amendment No. 1.
Summary
of the Proxy Statement/Prospectus, page 30
4. Please
revise the Summary to include an organizational chart depicting the parties to the transaction
both prior to and after the Domestication and Business Combination.
Response:
In response to the Staff’s comment, the Company has added an organizational chart on pages 32 and 33 of Amendment
No. 1 depicting the parties to the transaction, both prior to and after the Domestication and Business Combination.
SpinCo,
page 31
5. We
note your disclosure that on July 28, 2023, the FDA issued a complete response letter regarding
your BLA. We also note your disclosure that “[t]he FDA has required SpinCo to incorporate
enhanced product testing, and additional controls agreed to with the FDA during the market
application review.” Please provide further details regarding the underlying issues
outlined in the FDA’s complete response letter. Additionally, please provide further
details about the “enhanced product testing” and “additional controls”
that were agreed to with the FDA.
Response:
The Company acknowledges the Staff’s comment and has revised the disclosure on page 32 of Amendment No. 1 accordingly.
Amended
& Restated Shared Services Agreement, page 35
6. We
note your disclosure that “the fees for each of the services are set forth in the A&R
Shared Services Agreement as a quarterly fee[.]” Please disclose the quarterly fee
here.
Response:
The Company acknowledges the Staff’s comment and advises that the quarterly fee is $941,267.58, which is for services related
for personnel and office space.
Interests
of TenX’s Directors and Executive Officers in the Business Combination, page 40
7. Please
disclose the Sponsor and its affiliates’ total potential ownership interest in the
combined company, assuming the exercise and conversion of all securities.
Response:
In response to the Staff’s comment, the Company has revised the disclosure on page 44 of Amendment No. 1 to include
the Sponsor and its affiliates’ total potential ownership interest in the combined company, assuming the exercise and conversion
of all securities.
United
States Securities and Exchange Commission
January
30, 2024
Page
4
Unaudited
Pro Forma Condensed Combined Financial Information
General,
page 49
8. Please
revise to clarify the financial statement periods included in your pro forma Statements of
Operations and how such information was derived. In this respect, it appears that given the
difference in fiscal year-ends between the registrant and SpinCo, certain adjustments were
made to the historical financial statements of SpinCo to conform to the annual and interim
periods presented by the registrant. Refer to Article 11-02(c)(3) of Regulation S-X. Please
also clarify whether the combined company will adopt December 31st as its new fiscal year-end.
Response:
The Company acknowledges the Staff’s comment and advises that the Company has amended the disclosure set forth on pages 50
through 58 to include the following information:
The
pro forma statement of operations for SpinCo for the nine months ended September 30, 2023 was prepared by subtracting the results of
operations for SpinCo for the three months ended December 31, 2022 from the statement of operations for SpinCo for the year ended September
30, 2023. The pro forma statement of operations for SpinCo for the year ended December 31, 2022 was prepared by adding the results of
operations for the three months ended December 31, 2022 to the statement of operations for SpinCo for the year ended September 30, 2022
(SpinCo did not begin operations until April 1, 2022.)
The
Combined Company will adopt September 30 as its fiscal year-end.
Risk
Factors
Risks
Related to SpinCo’s Business and its Industry
SpinCo
relies exclusively on third parties to formulate and manufacture its product candidates, page 70
9. We
note your disclosure that one of the contract manufacturers for LYMPHIR is foreign. Please
disclose where this manufacturer is located.
Response:
The Company acknowledges the Staff’s comment and has revised the disclosure on page 72 of Amendment No. 1 to include
that the manufacturer for the finished drug product is located in Italy.
The
Combined Company’s Proposed Certificate of Incorporation will provide that the Court..., page 98
10. Please
revise your risk factor to disclose that there is also a risk that your exclusive forum provision
may result in increased costs for investors to bring a claim in the chosen forum.
Response:
The Company acknowledges the Staff’s comment and has revised the risk factor on page 99 of Amendment No. 1 to include
the risk that the exclusive forum provision may result in increased costs for investors to bring a claim in the chosen forum.
United
States Securities and Exchange Commission
January
30, 2024
Page
5
Proposal
No. 1 - The Business Combination Proposal Summary of the Merger Agreement
Fees
and Expenses, page 129
11. We
note your disclosure that the Sponsor has agreed to pay any transaction expenses of “Parent”
in excess of $500,000. Please revise your disclosure here to clarify, if true, that “Parent”
refers to Citius Pharma.
Response:
The Company acknowledges the Staff’s comment and has revised the disclosure on page 130 of Amendment No. 1 to clarify
that the Sponsor has agreed to pay any transaction expenses of TenX Keane Acquisition in excess of $500,000.
Amended
&Restated Registration Rights Agreement, page 130
12. Please
revise here and throughout, as appropriate, to disclose how many shares will be covered by
the Amended & Restated Registration Rights Agreement.
Response:
In response to the Staff’s comment, the Company has revised the disclosure on pages 36 and 131 of Amendment No.1 to
disclose the number of shares of New Citius Oncology that will be covered by the Amended & Restated Registration Rights
Agreement.
Sponsor
Support Agreement, page 130
13. We
note that the Sponsor agreed to waive its redemption rights. Please describe any consideration
provided in exchange for this agreement.
Response:
The Company acknowledges the Staff’s comment and advises that the Sponsor received no consideration in connection with its
agreement to waive its redemption rights. The decision to waive its redemption rights was made by the Sponsor to demonstrate its commitment
to the Business Combination and is consistent with market practices.
Background
of the Business Combination, page 131
14. Please
disclose here whether the Sponsor, management, or any affiliates of TenX have a track record
with SPACs. If so, please provide disclosure about this record and the outcomes of those
prior transactions.
Response:
The Company acknowledges the Staff’s comment and advises that, although the Sponsor and the Company’s management and
board members collectively have experience in mergers and acquisitions, capital markets and securities laws, they do not have a specific
track record with SPACs.
15. We
note that you reviewed approximately 15 potential targets, eight of which were eliminated,
leading you to engage in detailed discussions with seven potential combination targets. Furth