Room 4561
July 27, 2005
Micromem Technologies Inc.
c/o Scott A. Ziegler, Esq.
Ziegler, Ziegler & Associates LLP
570 Lexington Avenue, 44th Floor
New York, New York 10022
Re: Micromem Technologies Inc.
Form F-3 filed June 27, 2005
File No. 333-126132
Form 20-F for the year ended October 31, 2004, as amended
File No. 0-26005
Dear Mr. Ziegler:
This is to advise you that we have limited our review of the
above filings to the matters addressed in the comments below. No
further review of the filings has been or will be made. Please
respond to our comments that pertain to the periodic filings
within
10 business days of the date of this letter. All persons who are
by
statute responsible for the adequacy and accuracy of the
registration
statement are urged to be certain that all information required
under
the Securities Act has been included.
Where indicated, we think you should revise your document in
response to these comments. If you disagree, we will consider
your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Form F-3 filed June 27, 2005
General
1. You seek to register resales of 2,342,334 common shares
underlying
Series B warrants that are not outstanding and will only become
outstanding if Series A warrants are exercised. Please tell us
the
exemption from registration relied upon with respect to the offer
and
sale of the Series A warrants, Series B warrants and the
underlying
common shares to the selling security holders. Also, explain the
factual basis for your view that the exemption relied upon was
available for these issuance transactions to the selling security
holders. We note that at page 23 of the prospectus, you indicate
that the sales of the Series A warrants were part of a "private
placement." Since the offer and sale of the Series B warrants to
the
selling security holders was completed when you filed the resale
registration statement relating to the common shares underlying
the
Series B warrants, tell us why you believe the offering you
commenced
without registration does not involve a public offering.
2. Please refer to Interpretation 3S of the Securities Act
Sections
portion of the March 1999 supplement to our Manual of Publicly
Available Telephone Interpretations, which sets forth our views
with
respect to registration of shares underlying convertible or
exercisable securities. It appears that for registration of
shares
underlying convertible or exercisable securities to be
appropriate,
the registrant must complete the offer and sale of the convertible
securities before the filing of the resale registration statement.
We note that the selling security holders who received Series A
warrants have not yet purchased the Series B warrants, and that
any
receipt of those Series B warrants would occur only if those
warrant
holders exercise their discretion to exercise the Series A
warrants.
Because the selling security holders are not irrevocably committed
to
purchase the Series B warrants, it appears that Rule 152 under the
Securities Act is not available to separate the issuance and
resale
transactions. Although the offer and sale of the Series A
warrants
was commenced without registration, in filing the resale
registration
statement for the public offer and sale of the shares underlying
the
Series B warrants it appears that the offer of the Series B
warrants
and the underlying shares to the selling security holders involves
a
public offering. Please provide us with a detailed analysis
addressing this matter and provide appropriate disclosure in the
prospectus.
Risk Factors
Our auditors have identified significant deficiencies in our
internal
accounting controls, page 16
3. We note your risk factor discussion with respect to the
deficiencies identified by your auditors as well as the remedial
actions you intend to take. Such disclosure, however, appears to
be
similar to the disclosure made in your Form 20-F filed February
28,
2005. Please revise to discuss any measures that have been made
to
address your deficiencies and what steps remain to be taken in
order
to resolve your deficiencies.
Selling Shareholders
4. Please ensure that disclosure required by Item 9.D. of Form 20-
F
is provided with respect to each selling security holder. For
example, we note that the registration statement includes the
registration of 800,000 common shares underlying Series B warrants
that were issued to selling security holders in connection with
ongoing services per your disclosure on page 23. Please provide
disclosure with respect to the nature of the services provided and
describe the relationship and arrangements regarding the provision
of
those services by the selling security holders.
5. Please disclose the individual or individuals who exercise the
voting and/or dispositive powers with respect to the securities to
be
offered for resale by your selling security holders that are non-
public entities. Please see Interpretation I.60 of our July 1997
Manual of Publicly Available Telephone Interpretations and
Interpretation 4S of the Regulation S-K portion of the March 1999
Supplement to our July 1997 Manual of Publicly Available Telephone
Interpretations.
Form 20-F for the year ended October 31, 2004
Item 15. Controls and Procedures
6. We note that you evaluated the effectiveness of your disclosure
controls and procedures as of a date within 90 days prior to the
filing of your report. The evaluation of your disclosure controls
and procedures pursuant to Item 15(a) of Form 20-F is to be made
as
of the end of the period covered by the report. Your disclosure
also
does not appear to provide the conclusion from such evaluation.
Please tell us whether the applicable executives concluded that
your
disclosure controls and procedures were effective as of the end of
the period covered by the report. Additionally, please confirm to
us
that you will consider this comment in preparing future periodic
reports.
7. It does not appear that you have made the necessary disclosure
under Item 15(d) of Form 20-F. Item 15(d) requires the disclosure
of
any change that occurred during the period covered by the annual
report that has materially affected, or is reasonably likely to
materially affect, your internal control over financial reporting.
Please tell us whether there were any changes of the type
specified
in Item 15(d) and confirm that in preparing future filings you
will
consider this comment.
Form 20-F/A filed June 22, 2005
8. The certifications pursuant to Rule 13a-14(b) under the
Exchange
Act filed with your amended Form 20-F do not meet the requirements
of
Instruction 12 of the Instructions as to Exhibits under Form 20-F.
Please refile in order to provide the necessary certifications
with
respect to the items that you amended in your Form 20-F/A filed
June
22, 2005.
Forms 6-K
9. The signature line of your Forms 6-K contain the phrase
"signed"
rather than evidence of a conforming signature. Pursuant to Rule
302
of Regulation S-T, signatures in electronic filings must consist
of
"letters or characters comprising a name, executed, adopted or
authorized as a signature." As a result, it appears that your
Forms
6-K have been filed unexecuted. Please confirm that all Forms 6-K
which are the subject of this comment have been manually executed
and
that you are in compliance with Rule 302(b) of Regulation S-T.
* * * *
As appropriate, please amend your filings in response to
these
comments. You may wish to provide us with marked copies of the
amendment to expedite our review. Please furnish a cover letter
with
your amendment that keys your responses to our comments and
provides
any requested supplemental information. Detailed cover letters
greatly facilitate our review. Please understand that we may have
additional comments after reviewing your amendment and responses
to
our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the company and its management are in
possession of all facts related to your disclosure, they are
responsible for the accuracy and adequacy of the disclosures they
have made.
Prior to our declaration of the effective date of the
pending
post-effective amendment pursuant to Section 8(c) of the
Securities
Act, the company should furnish a letter acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert the staff comments and the
declaration
of effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
You may contact Daniel Lee at (202) 551-3477 with any
questions. If you need further assistance, you may contact me at
(202) 551-3462.
Sincerely,
Mark P. Shuman
Branch Chief - Legal
cc: Via Facsimile
Scott A. Ziegler, Esq.
George E. Boychuk, Esq.
Ziegler, Ziegler & Associates LLP
570 Lexington Avenue, 44th Floor
New York, New York 10022
Telephone: (212) 319-7600
Facsimile: (212) 319-7605