SEC Comment Letter for CIMAREX ENERGY CO (CIK 0001168054) — Jun 6, 2005
CIMAREX ENERGY CO (CIK 0001168054)
Date: June 6, 2005 · CIK: 0001168054 · Accession: 0000000000-05-027883
AI Filing Summary & Sentiment
File numbers found in text: 333-123019
Letter
March 24, 2005 via U.S. mail Mr. F.H. Merelli Chairman, President, and Chief Executive Officer Cimarex Energy Co. 1700 Lincoln Street, Suite 1800 Denver, Colorado 80203
RE: Cimarex Energy Co. Form S-4 filed February 25, 2005 File No. 333-123019
Dear Mr. Merelli:
We have limited our review of the above-referenced filings to the tax opinion and have the following comments. Where indicated, we think you should revise your documents 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 filings. 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 numbers listed at the end of this letter.
Material United States Federal Income Tax Consequences of the Merger, page 98
1. Because the income tax consequences of the merger would be material to stockholders, you must file as exhibits to the registration statement the appropriate tax opinions - prior to effectiveness. We note that the receipt of the opinions is a waivable condition. We may have additional comments after reviewing the exhibits as filed and the revised disclosure.
2. We also note your disclosure on page 101 relating to "informing" stockholders regarding materially different consequences in the event of a waiver. If the condition relating to the closing tax opinions is waived and the tax consequences differ materially from the consequences you describe in the registration statement and that appear in the tax opinions filed as exhibits prior to effectiveness, you must recirculate a revised proxy statement / prospectus describing the material consequences and resolicit the vote. Disclose explicitly that you will follow that course of action in those circumstances.
3. Revise your opening paragraph to remove the disclaimer relating to the summary being included "for general information purposes only." Stockholders are entitled to rely on the disclosure that appears in your registration statement, including disclosure relating to tax consequences. Similarly, throughout this section, you include statements that stockholders "should consult" their own tax advisors. You may replace the admonition with language to the effect that you recommend or encourage that consultation.
4. We note your disclosure on page 102 that your tax opinion assumes that the merger will "qualify as a reorganization within the meaning of Section 368(a) of the Code." That is an inappropriate assumption. Rather, if you intend to file a short form merger opinion, this section must state a firm conclusion as to the tax consequences of the transaction. Further, this section must state that the discussion constitutes the opinion of counsel. In the alternative, revise to make clear that you are summarizing the opinion(s) of counsel filed separately as exhibits. Revise this section accordingly. We may have additional comments.
Closing Comments
As appropriate, please amend your filings in response to these comments. You may wish to provide us with marked copies of the amendments 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 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 the company requests acceleration of the effective date of the pending registration statement, it should furnish a letter, at the time of such request, 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 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.
We will consider a written request for acceleration of the effective date of the registration statement as a confirmation of the fact that those requesting acceleration are aware of their respective responsibilities under the Securities Act of 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. We will act on the request and, pursuant to delegated authority, grant acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding requesting acceleration of a registration statement. Please allow adequate time after the filing of any amendment for further review before submitting a request for acceleration. Please provide this request at least two business days in advance of the requested effective date.
Please direct any questions to Melinda Kramer at (202) 942- 1938, or in her absence to Timothy Levenberg, Special Counsel, at (202) 942-1896.
Sincerely,
H. Roger Schwall
Assistant Director
Show Raw Text
<DOCUMENT>
<TYPE>LETTER
<SEQUENCE>1
<FILENAME>filename1.txt
<TEXT>
March 24, 2005
via U.S. mail
Mr. F.H. Merelli
Chairman, President, and Chief Executive Officer
Cimarex Energy Co.
1700 Lincoln Street, Suite 1800
Denver, Colorado 80203
RE: Cimarex Energy Co.
Form S-4 filed February 25, 2005
File No. 333-123019
Dear Mr. Merelli:
We have limited our review of the above-referenced
filings
to the tax opinion and have the following comments. Where
indicated,
we think you should revise your documents 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
filings.
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 numbers
listed
at the end of this letter.
Material United States Federal Income Tax Consequences of the
Merger,
page 98
1. Because the income tax consequences of the merger would be
material to stockholders, you must file as exhibits to the
registration statement the appropriate tax opinions - prior to
effectiveness. We note that the receipt of the opinions is a
waivable condition. We may have additional comments after
reviewing
the exhibits as filed and the revised disclosure.
2. We also note your disclosure on page 101 relating to
"informing"
stockholders regarding materially different consequences in the
event
of a waiver. If the condition relating to the closing tax
opinions
is waived and the tax consequences differ materially from the
consequences you describe in the registration statement and that
appear in the tax opinions filed as exhibits prior to
effectiveness,
you must recirculate a revised proxy statement / prospectus
describing the material consequences and resolicit the vote.
Disclose explicitly that you will follow that course of action in
those circumstances.
3. Revise your opening paragraph to remove the disclaimer relating
to
the summary being included "for general information purposes
only."
Stockholders are entitled to rely on the disclosure that appears
in
your registration statement, including disclosure relating to tax
consequences. Similarly, throughout this section, you include
statements that stockholders "should consult" their own tax
advisors.
You may replace the admonition with language to the effect that
you
recommend or encourage that consultation.
4. We note your disclosure on page 102 that your tax opinion
assumes
that the merger will "qualify as a reorganization within the
meaning
of Section 368(a) of the Code." That is an inappropriate
assumption.
Rather, if you intend to file a short form merger opinion, this
section must state a firm conclusion as to the tax consequences of
the transaction. Further, this section must state that the
discussion constitutes the opinion of counsel. In the
alternative,
revise to make clear that you are summarizing the opinion(s) of
counsel filed separately as exhibits. Revise this section
accordingly. We may have additional comments.
Closing Comments
As appropriate, please amend your filings in response to
these
comments. You may wish to provide us with marked copies of the
amendments 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 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 the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
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 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.
We will consider a written request for acceleration of the
effective date of the registration statement as a confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 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.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
Please direct any questions to Melinda Kramer at (202) 942-
1938, or in her absence to Timothy Levenberg, Special Counsel, at
(202) 942-1896.
Sincerely,
H. Roger Schwall
Assistant Director
M. Kramer
T. Levenberg
??
??
??
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Cimarex Energy Co.
March 24, 2005
page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0405
DIVISION OF
CORPORATION FINANCE
</TEXT>
</DOCUMENT>