SEC Comment Letter for DIGITAL IMPACT — Jun 16, 2005
DIGITAL IMPACT INC /DE/ (CIK 0001095105)
Date: June 16, 2005 · CIK: 0001095105 · Accession: 0000000000-05-030556
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By Facsimile: (501) 975-3001
John P. Fletcher, Esq. April 14, 2005
Kutak Rock LLP
425 W. Capitol Avenue
Suite 1100
Little Rock, Arkansas 72201
(501) 975-3000
Re: Digital Impact, Inc.
Schedule TO-T filed on April 1, 2005 by Acxiom Corporation
and Adam Merger Corporation
File No. 005- 57265
Dear Mr. Fletcher:
We have limited our review of the above referenced filing to
only the matters addressed herein. 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 on any other aspect of our review. Feel
free to call us at the telephone number listed at the end of this
letter.
Acceptance for Payment and Payment for Shares, page 10
1. We note, in the last paragraph of this section, you state that
you may return share certificates evidencing unpurchased shares as
promptly as practicable following the expiration or termination of
the offer. Please revise this section to state that you will
promptly return such certificates, as required by Rule 14e-1(c).
Certain Information Concerning the Company, page 16
2. Please note that the only public reference facility now
maintained by the SEC is located in Washington, D.C. You should
revise your disclosure accordingly.
Certain Information Concerning Acxiom and the Purchaser, page 17
3. In a supplemental response, please confirm that you have no
securities ownership interest to report pursuant to Item 1008 of
Regulation M-A.
Conditions to the Offer, page 35
4. You state that you may decide to terminate the exchange offer
if one of the listed offer conditions occurs and you make the
secondary determination that it is "inadvisable to proceed with
the offer..." If a listed offer condition is implicated by events
that occur during the exchange offer such that the offer condition
is deemed satisfied and may be asserted, however, the purchaser must
disclose that it has made a decision to either waive the offer
condition in order to properly continue the offer or assert the
condition and terminate the offer. As you are aware, waiver of a
material offer condition may require an extension of the offer
and/or dissemination of additional offering material. Please
confirm your understanding in a supplemental response.
5. We note the offerors have reserved the right to assert the
occurrence of any of the conditions to the offer "at any time from
time to time." Defining the conditions as "an ongoing right
which may be asserted at any time from time to time" suggests that
conditions to the offer may be raised or asserted after expiration
of the offer. Please be advised that all conditions to the offer,
other than those subject to applicable law, must be satisfied or
waived before the expiration of the offer. Revise the disclosure
in the closing paragraph of this section to make clear that all
conditions, other than those subject to government approvals,
will be satisfied or waived on or before expiration of the offer.
Fees and Expenses, page 39
6. Please provide a summary of all material terms of employment,
including retainer or other arrangement for compensation for
Stephens Inc. Please see Item 1009 of Regulation M-A.
Closing Comment
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 offerors are in possession of
all facts relating to its disclosure, it is responsible for the
accuracy and adequacy of the disclosures it has made.
In connection with responding to our comments, please
provide, in writing, a statement from the offerors acknowledging
that:
* the offerors are responsible for the adequacy and accuracy of
the disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the offerors may not assert staff comments 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 our review of your filing
or in response to our comments on your filing.
As appropriate, please amend your document in response to
these comments. You may wish to provide us with marked copies of
the amendment, if required, 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 file
your cover letter on EDGAR. Please understand that we may have
additional comments after reviewing your amendment and responses
to our comments.
Please direct any questions to me at (202) 942-2903. You
may also contact me via facsimile at (202) 942-9638. Please send all
correspondence to us at the following ZIP code: 20549-0303.
Very truly yours,
Celeste M. Murphy
Special Counsel
Office of Mergers and
Acquisitions
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