SEC Comment Letter for HORIZON BANCORP (HBNC) — Apr 4, 2016
HORIZON BANCORP INC /IN/ (HBNC) (CIK 0000706129)
Date: April 4, 2016 · CIK: 0000706129 · Accession: 0000000000-16-070788
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 333-210244
Letter
Mail Stop 4720 April 1, 2016 Via E -mail Craig M. Dwight Chairman and Chief Executive Officer Horizon Bancorp 515 Franklin Square Michigan City, IN 46360
Re: Horizon Bancorp Registration Statement on Form S-4 Filed March 16, 2016 File No. 333-210244
Dear Mr. Dwight :
We have limited our review of your registration statement to those issues we have addressed in our 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 amending your registration statement and providing the requested information . If you do not believe our com ments apply to your facts and circumstances or do not believe an amendment is appropriate, please tell us why in your response.
After reviewing any amendment to your registration statement and the information you provide in response to these comments, w e may have additional comments.
Prospectus Cover Page
1. Please disclose that the merger is subject to a floor price as set forth on page 53 of your “Termination ” disclosure . In addition, please also disclose that if the price falls below the floor and KFI elects to exercise its termination rights, Horizon may prevent termination by increasing the exchange ratio pursuant to a formula set forth in the Merger Agreement. Please add footnote disclosure to the calculation of the registration fee table to the extent that additional stock consideration may be issued to accommodate the increase in the exchange ratio, noting that Horizon will file a registration statement to cover the issuance of the additional shares of Horizon common stock. For guidance, please refer to Securities Act Rule 413 and Securities Act Rules Compliance and Disclosure Interpretation 610.01.
Craig M. Dwight Horizon Bancorp April 1, 2016 Page 2
Risk Factors
KFI’s shareholders who receive the stock con sideration will have a reduced ownership and voting interest after the merger and will exercise less influence over management, page 15
2. In light of your agreement to acquire La Porte Bancorp, Inc., which you disclose under “Recent Developments of Horizon” heading on page 12, please discuss whether the LaPorte acquisition will be further dilutive to the KFI shareholders, as well as disclose the anticipated ownership percentage of the combined company by current KFI shareholders, assuming the completion of y our merger with LaPorte.
The Merger
Certain Financial Projections Utilized by the KFI Board of Directors and KFI’s Financial Advisors, page 36
3. We note disclosure in the penultimate paragraph on page 37 stating that the unaudited prospective financial information has not been included “to influence your decision whether to vote for the merger … but is being provided solely because it was made available to the parties and KFI’s financial advisors…” [emphasis added] We note similar disclosure a t the end of the first paragraph of your disclosure under this heading. Please remove or revise these disclaimers so they do not constitute undue limitation s on reliance.
Exhibit Index
Exhibit 5.1
4. Please have counsel delete the limitation on reliance a s to a person in the final sentence of its opinion . Please refer to Section II.B.3.d. of Staff Legal Bulletin No. 19 for guidance.
We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filing to be certain that th e filing includes the information the Securities Act of 193 3 and all applicable Securities Act rules require. Since the company and its management are in possession of all facts relating to a company’s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made.
Notwithstanding our comments, in the event you request acceleration of the effective date of the pending registration statement , please provide a written statement from the company 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;
Craig M. Dwight Horizon Bancorp April 1, 2016 Page 3
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 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.
Please refer to Rules 460 and 461 regarding requests for acceleration . We will consider a written request for acceleration of the effective date of the registration statement as confirmation of the fact that those requesting acceleration are aware of their respective responsibilities under the Securities Act o f 1933 and the Securities Exchange Act of 1934 as they relate to the proposed public offering of the securities specified in the above registration statement. Please allow adequate time for us to review any amendment prior to the requested effective date of the registration statement.
Please contact Christopher Dunham, Staff Attorney, at (202) 551 -3783 or, in his absence, me at (202) 551 -3369 with any questions.
Sincerely,
/s/ Era Anagnosti
Show Raw Text
Mail Stop 4720 April 1, 2016 Via E -mail Craig M. Dwight Chairman and Chief Executive Officer Horizon Bancorp 515 Franklin Square Michigan City, IN 46360 Re: Horizon Bancorp Registration Statement on Form S-4 Filed March 16, 2016 File No. 333-210244 Dear Mr. Dwight : We have limited our review of your registration statement to those issues we have addressed in our 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 amending your registration statement and providing the requested information . If you do not believe our com ments apply to your facts and circumstances or do not believe an amendment is appropriate, please tell us why in your response. After reviewing any amendment to your registration statement and the information you provide in response to these comments, w e may have additional comments. Prospectus Cover Page 1. Please disclose that the merger is subject to a floor price as set forth on page 53 of your “Termination ” disclosure . In addition, please also disclose that if the price falls below the floor and KFI elects to exercise its termination rights, Horizon may prevent termination by increasing the exchange ratio pursuant to a formula set forth in the Merger Agreement. Please add footnote disclosure to the calculation of the registration fee table to the extent that additional stock consideration may be issued to accommodate the increase in the exchange ratio, noting that Horizon will file a registration statement to cover the issuance of the additional shares of Horizon common stock. For guidance, please refer to Securities Act Rule 413 and Securities Act Rules Compliance and Disclosure Interpretation 610.01. Craig M. Dwight Horizon Bancorp April 1, 2016 Page 2 Risk Factors KFI’s shareholders who receive the stock con sideration will have a reduced ownership and voting interest after the merger and will exercise less influence over management, page 15 2. In light of your agreement to acquire La Porte Bancorp, Inc., which you disclose under “Recent Developments of Horizon” heading on page 12, please discuss whether the LaPorte acquisition will be further dilutive to the KFI shareholders, as well as disclose the anticipated ownership percentage of the combined company by current KFI shareholders, assuming the completion of y our merger with LaPorte. The Merger Certain Financial Projections Utilized by the KFI Board of Directors and KFI’s Financial Advisors, page 36 3. We note disclosure in the penultimate paragraph on page 37 stating that the unaudited prospective financial information has not been included “to influence your decision whether to vote for the merger … but is being provided solely because it was made available to the parties and KFI’s financial advisors…” [emphasis added] We note similar disclosure a t the end of the first paragraph of your disclosure under this heading. Please remove or revise these disclaimers so they do not constitute undue limitation s on reliance. Exhibit Index Exhibit 5.1 4. Please have counsel delete the limitation on reliance a s to a person in the final sentence of its opinion . Please refer to Section II.B.3.d. of Staff Legal Bulletin No. 19 for guidance. We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filing to be certain that th e filing includes the information the Securities Act of 193 3 and all applicable Securities Act rules require. Since the company and its management are in possession of all facts relating to a company’s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made. Notwithstanding our comments, in the event you request acceleration of the effective date of the pending registration statement , please provide a written statement from the company 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; Craig M. Dwight Horizon Bancorp April 1, 2016 Page 3 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 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. Please refer to Rules 460 and 461 regarding requests for acceleration . We will consider a written request for acceleration of the effective date of the registration statement as confirmation of the fact that those requesting acceleration are aware of their respective responsibilities under the Securities Act o f 1933 and the Securities Exchange Act of 1934 as they relate to the proposed public offering of the securities specified in the above registration statement. Please allow adequate time for us to review any amendment prior to the requested effective date of the registration statement. Please contact Christopher Dunham, Staff Attorney, at (202) 551 -3783 or, in his absence, me at (202) 551 -3369 with any questions. Sincerely, /s/ Era Anagnosti Era Anagnosti Legal Branch Chief Office of Financial Services cc: David P. Hooper, Esq.