SEC Comment Letter for CIMAREX ENERGY CO (CIK 0001168054) — Jul 26, 2005
CIMAREX ENERGY CO (CIK 0001168054)
Date: July 26, 2005 · CIK: 0001168054 · Accession: 0000000000-05-038413
AI Filing Summary & Sentiment
Letter
Mail Stop 3628 July 19, 2005 By Facsimile (303) 866-0200 and U.S. Mail Paul Korus Cimarex Energy Co. 1700 Lincoln Street, Suite 1800 Denver, Colorado 80203
Re: Cimarex Energy Co. Schedule TO-I Filed on July 6, 2005 File No. 005-78712
Dear Mr. Korus:
We have the following comments on the above referenced filing. 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 numbers listed at the end of this letter.
Change in Control Notice and Offer to Purchase Summary Term Sheet, page 1
1. We note that a security holder may only withdraw tendered notes at any time on or before expiration. Please revise your disclosure to disclose the additional withdrawal rights under Rule 13e- 4(f)(2)(ii).
Incorporation by Reference, page 7
2. We note that you are attempting to incorporate by reference all future documents and reports filed after the date of your offer to purchase and at or prior to the expiration time of your offer. However, Schedule TO does not permit "forward" incorporation by reference. If the information provided to note holders in the offering document materially changes, you are under an obligation to amend the Schedule TO and to disseminate the new information to unit holders in a manner reasonably calculated to inform them about the change. Please revise the disclosure accordingly.
The Offer, page 10
Terms of the Offer, page 10
3. We note that you expressly reserve the right, in your sole discretion, to terminate the offer. The retention of a unilateral right to terminate the offer appears to render the offer illusory and should be deleted. Alternatively, revise your offer to set forth only objective criteria by which you may terminate the offer. Please revise your document where similar disclosure is presented.
Condition to the Offer, page 22
4. We refer you to the disclosure that you may delay the acceptance for payment of, or payment for, any tendered notes, if at the Expiration Time, or at any time after the Expiration Time, an Event of Default is continuing. Other than those conditions dependent upon the receipt of government approvals, all conditions must be satisfied or waived prior to expiration of the offer. Similarly, we note the disclosure that you may terminate the offer after the Expiration Time and prior to the payment of the Repurchase Price. In this regard, termination of the offer as a result of the occurrence of an offer condition must take place prior to expiration. Please revise your disclosure.
Closing 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 issuer is 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 Cimarex acknowledging that:
* the company is 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 company 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 Schedule TO 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 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. In addition, depending upon your response to these comments, a supplement may need to be sent to security holders.
Please direct any questions to me at (202) 551-3456. You may also contact me via facsimile at (202) 772-9203.
Very truly yours,
Jeffrey B.Werbitt
Attorney-Advisor
Office of Mergers & Acquisitions
Show Raw Text
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Mail Stop 3628
July 19, 2005
By Facsimile (303) 866-0200 and U.S. Mail
Paul Korus
Cimarex Energy Co.
1700 Lincoln Street, Suite 1800
Denver, Colorado 80203
Re: Cimarex Energy Co.
Schedule TO-I
Filed on July 6, 2005
File No. 005-78712
Dear Mr. Korus:
We have the following comments on the above referenced
filing. 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 numbers listed
at the end of this letter.
Change in Control Notice and Offer to Purchase
Summary Term Sheet, page 1
1. We note that a security holder may only withdraw tendered notes
at any time on or before expiration. Please revise your disclosure
to disclose the additional withdrawal rights under Rule 13e-
4(f)(2)(ii).
Incorporation by Reference, page 7
2. We note that you are attempting to incorporate by reference all
future documents and reports filed after the date of your offer to
purchase and at or prior to the expiration time of your offer.
However, Schedule TO does not permit "forward" incorporation by
reference. If the information provided to note holders in the
offering document materially changes, you are under an obligation
to amend the Schedule TO and to disseminate the new information to
unit holders in a manner reasonably calculated to inform them
about the change. Please revise the disclosure accordingly.
The Offer, page 10
Terms of the Offer, page 10
3. We note that you expressly reserve the right, in your sole
discretion, to terminate the offer. The retention of a unilateral
right to terminate the offer appears to render the offer illusory
and should be deleted. Alternatively, revise your offer to set forth
only objective criteria by which you may terminate the offer.
Please revise your document where similar disclosure is presented.
Condition to the Offer, page 22
4. We refer you to the disclosure that you may delay the
acceptance for payment of, or payment for, any tendered notes, if
at the Expiration Time, or at any time after the Expiration Time, an
Event of Default is continuing. Other than those conditions
dependent upon the receipt of government approvals, all conditions
must be satisfied or waived prior to expiration of the offer. Similarly,
we note the disclosure that you may terminate the offer after the
Expiration Time and prior to the payment of the Repurchase Price. In
this regard, termination of the offer as a result of the occurrence of
an offer condition must take place prior to expiration. Please revise
your disclosure.
Closing 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 issuer is 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 Cimarex acknowledging that:
* the company is 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 company 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 Schedule TO 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 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. In addition, depending upon your
response to these comments, a supplement may need to be sent to
security holders.
Please direct any questions to me at (202) 551-3456. You
may also contact me via facsimile at (202) 772-9203.
Very truly yours,
Jeffrey B.Werbitt
Attorney-Advisor
Office of Mergers & Acquisitions
cc: Thomas A. Richardson, Esquire
J. Gregory Holloway, Esquire
Paul G. Thompson, Esquire
Holme Roberts & Owen LLP
1700 Lincoln Street, Suite 4100
Denver, Colorado 80203
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