Emerging Growth Company Pulls Form S-1 to Submit a New Draft Registration Confidentially

Cantor Entertainment Technology, Inc. registered $100 million of Class A common shares on December 22, 2011, for an initial public offering on the Nasdaq Global Market (SEC file no. 333-178721, and Form S-1 Amendment No. 1 filed on 2/14/12).  On May 25, Cantor filed an application on Form RW seeking withdrawal of the Registration Statement because it expects to submit a new draft registration statement pursuant to the confidential submission process available to “emerging growth companies” under Section 106(a) of the JOBS Act, which added new Section 6(e) of the Securities Act.

Cantor Entertainment, an affiliate of Cantor Fitzgerald & Co., which had been designated as the lead underwriter for the withdrawn offering, notes that it may rely on Rule 155(c) under the Securities Act in connection with any private offering undertaken by it following the withdrawal of the Registration Statement. Rule 155(c) provides a non-exclusive safe harbor from integration of private and registered offerings whereby an offering for which the issuer filed a registration statement will not be considered part of a later commenced private offering if, among other things, no securities were sold in the registered offering and the issuer withdraws the registration under Rule 477.

Confidential Submission of Draft Registration Statements

The Jumpstart Our Business Startups (JOBS) Act permits emerging growth companies (EGCs) that have not previously sold securities under the 1933 Act to pre-file confidential registration statements, thereby allowing them to begin the SEC review process without publicly revealing sensitive commercial and financial information to their competitors.  Beginning today, the SEC Division of Corporation Finance has implemented a secure e-mail system that allows confidential submissions under the JOBS Act as well as non-public draft registration statements from foreign private issuers under the pre-existing Division policy.

All eligible issuers submitting draft registration statements confidentially are required to open a secure e-mail account per Division instructions.  Submissions must be text searchable PDF files. Additional information to be shared with the Division must be included in a transmittal letter rather than the e-mail text box. An EGC should confirm its EGC status in the transmittal letter. There should be one file for the transmittal letter, one file for the body of the draft registration statement, and one file for each exhibit to the draft registration. Exhibit numbers should match those used in the draft registration exhibit index. Upon receipt of a draft registration, the secure e-mail system will send the EGC or foreign private issuer a return receipt.

The e-mail system also will be used to send staff comment letters, to receive issuer replies to comments, and to submit amendments to a draft registration statement.  The e-mail address used to register on the secure e-mail system will be the only e-mail address that the Division will use to send comment letters and any other correspondence prior to the public filing of the draft registration statement.

Mining Company Offers Tangible Equity Units

Thompson Creek Metals Co. Inc. (NYSE: TC) has priced an offering of 8.8 million of its 6.5% tangible equity units ("tMEDS", a service mark of J.P. Morgan Securities), each with a stated amount of $25 (Form 424B2 on 5/8/2012, SEC file no. 333-170232).  Each tMEDS is a unit composed of a prepaid stock purchase contract and a senior amortizing note due May 15, 2015.  Of the $220 million aggregate stated amount of tMEDS, approximately $177.5 million will be accounted for as equity and $35.9 million will be accounted for as debt.

Each purchase contract will automatically settle on May 15, 2015 for between 4.5855 and 5.3879  common shares of Thompson Creek, subject to adjustment.  A unitholder may elect to settle a purchase contract early prior to the third scheduled trading day immediately preceding the mandatory settlement date and receive a number of common shares per contract equal to: (i) 95% of the minimum settlement rate for settlement prior to November 10, 2012, and (ii) the minimum settlement rate for settlement commencing on November 11, 2012.  

The amortizing notes will pay equal quarterly installments of $0.406250 per amortizing note, which will constitute a payment of interest and a partial repayment of principal, and which in the aggregate will be equivalent to a 6.5% cash payment per year with respect to each $25 stated amount of tMEDS. The amortizing notes will be senior unsecured obligations of the issuer.  Each tMEDS may be separated into its constituent purchase contract and amortizing note after the initial issuance date of the tMEDS, and the separate components may be combined to recreate a tMEDS.

Thompson intends to use the net proceeds from the tMEDS offering, together with cash and the net proceeds from a concurrent senior notes offering, to complete construction of its Mt. Milligan copper-gold mine.  The validity of the tMEDS was passed upon for the company by Gibson, Dunn & Crutcher and for the underwriters by Simpson Thacher & Bartlett.