United States securities and exchange commission logo
January 5, 2022
Paul Weibel
Chief Financial Officer
5E Advanced Materials, Inc.
19500 State Highway 249, Suite 125
Houston, TX 77070
Re: 5E Advanced
Materials, Inc.
Draft Registration
Statement on Form 10-12B
Submitted December
8, 2021
CIK No. 0001888654
Dear Mr. Weibel:
We have reviewed your draft registration statement and have the
following comments. In
some of our comments, we may ask you to provide us with information so
we may better
understand your disclosure.
Please respond to this letter by providing the requested
information and either submitting
an amended draft registration statement or publicly filing your
registration statement on
EDGAR. If you do not believe our comments apply to your facts and
circumstances or do not
believe an amendment is appropriate, please tell us why in your
response.
After reviewing the information you provide in response to these
comments and your
amended draft registration statement or filed registration statement, we
may have additional
comments.
Draft Registration Statement on Form 10-12B, submitted December 8, 2021
Exhibit 96.1
Initial Assessment Report, page 1
1. We have reviewed the
content of the Initial Assessment Report relative to the
requirements of Item
601(b)(96) of Regulation S-K and have listed below various
apparent deficiencies
that will need to be addressed. Please discuss the following points
with the third party
engineer. We expect that you will need to obtain and file a revised
engineering report to
resolve these concerns.
Executive Summary
page, 1-1: Unless you are able to show how the enhanced
Definitive
Feasibility Study (eDFS) meets the definition of a feasibility study in Item
Paul Weibel
FirstName LastNamePaul Weibel
5E Advanced Materials, Inc.
Comapany
January Name5E Advanced Materials, Inc.
5, 2022
January
Page 2 5, 2022 Page 2
FirstName LastName
1300 of Regulation S-K, please remove or rename all references to
this study
throughout the report, and remove the associated economic
metrics.
Executive Summary, page 1-10: Graphs should be utilized to
indicate the trend of the
average prices for your marketed commodities over the last 5
years.
APBL Drilling, page 7-6: Given your planned method of
extraction, a discussion of
hydrogeology would be responsive to Item
601(b)(96)(iii)(B)(7)(iii) of Regulation S-
K.
Mineral Resource Estimation, page 11-8: Explain how the cutoff
grade was
calculated and provide the parameters used, consistent with the
guidance in Items
601(b)(96)(iii)(B)(11)(ii) and (iii) of Regulation S-K.
Mineral Reserve Estimates, page 12-1: If the historical reserve
information in this
section does not comply with the definitions in Item 1300 of
Regulation S-K, this
content should be removed as indicated in Item 1304(h) of
Regulation S-K.
Market Studies, page 16-1: Include the product specifications
and prices for materials
that you plan to market or sell, such as Sulfate of Potash (SOP),
Muriate of Potash
(MOP), Gypsum, Lithium Carbonate, and Boric Acid, to adhere to
Item
601(b)(96)(iii)(B)(16) of Regulation S-K.
2. We understand that information about the properties is available from
previous studies
and therefore it appears that the following sections of the technical
report should be
expanded to provide context or to identify changes relative to the
content associated with
current plans. Please expand the following sections to address the
requirements applicable
to the section as indicated.
Mineral Processing and Metallurgical Testing, page 10-1: Item
601(b)(96)(iii)(B)(10)
of Regulation S-K
Mining Methods, page 13-1: Item 601(b)(96)(iii)(B)(13) of
Regulation S-K
Processing and Recovery Methods, page 14-1: Item
601(b)(96)(iii)(B)(14) of
Regulation S-K
Infrastructure, page 15-1: Item 601(b)(96)(iii)(B)(15) of
Regulation S-K
Explanatory Note, page 2
3. We note your disclosure that pursuant to the Reorganization, the
Company will issue to
the shareholders of ABR either one share of your Common Stock for
every ten ordinary
shares of ABR or one CHESS Depositary Interest over the Company s
Common Stock (a
CDI ) for every one ordinary share of ABR held on the Scheme
record date. Please
Paul Weibel
FirstName LastNamePaul Weibel
5E Advanced Materials, Inc.
Comapany
January Name5E Advanced Materials, Inc.
5, 2022
January
Page 3 5, 2022 Page 3
FirstName LastName
revise to clarify how you will determine to issue shares of your
Common Stock to a
shareholder of ABR, or to instead issue CDIs to such shareholder.
Description of Business
Business Strengths and Key Highlights
Expected Low Cost Operations with Plans and Capabilities to Significantly
Expand Capacity,
page 22
4. We note your statements concerning an enhanced Definitive Feasibility
Study (eDFS) in
this section and elsewhere in your filing. Terms such as full, final,
comprehensive,
bankable, or definitive feasibility study are regarded as equivalent
to a feasibility study
which is defined in Item 1300 of Regulation S-K.
Unless your eDFS is fully compliant with this definition, please
rename or remove
references to this study throughout your filing and remove all
economic metrics associated
with the eDFS. Please refer to Items 1300 and 1302(e) of Regulation
S-K if you require
further clarification or guidance.
Risk Factors
Risks Relating to Our Business, page 28
5. We note your disclosure in the fourth paragraph on page 30, explaining
that your resource
estimate includes some land which is the subject of a mineral lease
agreement with
Elementis Specialties plc. Please file this agreement as an exbibit to
comply with Item
601(b)(10) of Regulation S-K.
Risk Factors
Our Bylaws will designate the Court of Chancery of the State of Delaware as the
sole and
exclusive forum..., page 50
6. We note your disclosure that the forum selection provision in your
bylaws will provide
that the Court of Chancery of the State of Delaware will, "to the
fullest extent permitted
by applicable law," be the sole and exclusive forum for certain
litigation, including any
derivative action. However, Section 7.06 of your bylaws states that
"the Court of
Chancery of the State of Delaware (or, if the Court of Chancery does
not have jurisdiction,
the federal district court for the District of Delaware) shall be the
sole and exclusive
forum" for any derivative action. Please reconcile or advise. In
addition, please disclose
whether the provision applies to actions arising under the Exchange
Act. In that regard,
we note that Section 27 of the Exchange Act creates exclusive federal
jurisdiction over all
suits brought to enforce any duty or liability created by the Exchange
Act or the rules and
regulations thereunder. If the provision does not apply to actions
arising under the
Exchange Act, please ensure that the exclusive forum provision in your
bylaws states this
clearly, or tell us how you will inform investors in future filings
that the provision does
not apply to any actions arising under the Exchange Act.
Paul Weibel
FirstName LastNamePaul Weibel
5E Advanced Materials, Inc.
Comapany
January Name5E Advanced Materials, Inc.
5, 2022
January
Page 4 5, 2022 Page 4
FirstName LastName
7. We note your disclosure that your Bylaws provide that, unless you
consent in writing to
the selection of an alternative forum, the federal district courts of
the United States will, to
the fullest extent permitted by law, be the sole and exclusive forum
for the resolution of
any complaint asserting a cause of action arising under the Securities
Act. Please also
revise your prospectus to state that there is uncertainty as to
whether a court would
enforce such provision.
Management's Discussion and Analysis of Financial Condition and Results of
Operations
Critical Accounting Policies and Estimates
Impact of the COVID-19 Pandemic, page 55
8. You disclose that you received a one-off loan from the U.S. Department
of Treasury in
respect of the COVID-19 pandemic, and this loan was subsequently
forgiven and "is
captured under Other income in the amount of $73,115 for the year
ended June 30, 2021."
Per review of the table on page 56 and the consolidated statements of
operations on page
F-4, this amount is reported as other income for the year ended June
30, 2020. Please
refer to the guidance in FASB ASC 405-20-40, and revise your
disclosure or financial
statements accordingly.
Properties
Fort Cady Integrated Boron Facility, page 63
9. Please expand your project location descriptions regarding Fort Cady
on page 63 and Salt
Wells on page 69 to comply with Item 1304(b)(1)(i) of Regulation S-K.
Mineral Resource Estimate
Methodology, page 67
10. Please expand your disclosures of resources using a cutoff grade to
include the commodity
prices, metallurgical recovery, and estimated operating costs used to
estimate your cutoff
grade to comply with Item 1304(d) and Item 1304(f) of Regulation S-K.
Shares Owned by Certain Beneficial Holders, page 71
11. Please revise the footnotes to your tabular disclosure to identify the
natural persons who
are the beneficial owners of the shares held by Virtova Capital
Management Limited,
Atlas Precious Metals Inc., and Mayfair Ventures Pte Ltd. Refer to
Item 403 of Regulation
S-K and Exchange Act Rule 13d-3.
Description of Registrant's Securities to Be Registered
CDIs, page 88
12. Please expand your discussion in this section to provide additional
disclosure regarding
the CDIs. For guidance, you may consider Item 202(f) of Regulation
S-K. As examples,
please include additional disclosures related to the conversion of the
CDIs to common
stock and vice versa (if applicable), voting procedures for the
benefit of the CDI holders,
Paul Weibel
5E Advanced Materials, Inc.
January 5, 2022
Page 5
and the transmission of proxy soliciting material. In addition, please
revise your Exhibits
Index and file the applicable documents pertaining to these securities,
such as any
depositary agreement and any document which describes the governing rules
for the CDIs,
as exhibits to this registration statement. In that regard, we note your
disclosure on page
50 regarding choice-of-forum provisions in the depositary agreement
pursuant to which
your CDIs will be issued.
General
13. We note that you intend to list your common stock on the Nasdaq Stock
Market LLC
under Section 12(b) of the Exchange Act. Tell us the listing standard you
intend to rely
upon in listing your common stock and specifically confirm whether and
how you meet
NASDAQ s quantitative listing standards. In this regard, it does not
appear that you are
relying upon the direct listing standards, considering you have not filed
a registration
statement under the Securities Act of 1933.
You may contact Mark Wojciechowski, Staff Accountant, at (202) 551-3759
or Jenifer
Gallagher, Staff Accountant, at (202) 551-3706 if you have questions regarding
comments on the
financial statements and related matters. For questions regarding engineering
comments, you
may contact Ken Schuler, Mining Engineer, at (202) 551-3718. Please contact Liz
Packebusch,
Staff Attorney, at (202) 551-8749 or Laura Nicholson, Special Counsel, at (202)
551-3584 with
any other questions.
Sincerely,
FirstName LastNamePaul Weibel
Division of
Corporation Finance
Comapany Name5E Advanced Materials, Inc.
Office of Energy &
Transportation
January 5, 2022 Page 5
cc: Craig A. Roeder
FirstName LastName