Correspondence 0001193125-22-291169 from Triumph Financial, Inc. (TFIN)
Triumph Financial, Inc.
Date: Nov. 22, 2022 · CIK: 0001539638 · Accession: 0001193125-22-291169
AI Filing Summary & Sentiment
Reasoning
Referenced dates: November 16, 2022
Letter
VIA EDGAR Division of Corporation Finance Attention: Michael Killoy; Christina Chalk Re: Triumph Bancorp, Inc. Schedule TO-I Filed November 7, 2022 File No. 005-88643
Dear Mr. Killoy and Ms. Chalk:
On behalf of our client, Triumph Bancorp, Inc. (the “Company”), set forth below are responses to comments of the Staff of the Division of Corporation Finance (the “Staff”) of the U.S. Securities and Exchange Commission set forth in its letter dated November 16, 2022 with respect to the Schedule TO-I filed by the Company on November 7, 2022 (File No. 005-88643) (the “Schedule TO”).
For the Staff’s convenience, the text of the Staff’s comment is set forth below in bold, followed by the Company’s response. Concurrently with filing this letter, the Company is filing Amendment No. 1 to the Schedule TO (“Amendment No. 1”), which includes revisions to the Schedule TO in response to the Staff’s comments.
Michael Killoy; Christina Chalk
U.S. Securities and Exchange Commission
November 22, 2022
Page 2
Schedule TO-I filed November 7, 2022
Cautionary Note on Forward Looking Statements, page 10
1. We note the disclaimer that you do not undertake any obligation to update any forward looking statements. This disclaimer is inconsistent with the requirements of General Instruction F of Schedule TO and your obligations under Rule 13e-4(c)(3) to amend the Schedule to reflect a material change in the information previously disclosed. Please revise the offer to purchase to delete this statement.
Response: The Company acknowledges the Staff’s comment and has deleted the statement.
Conditions of the Tender Offer, page 26
2. We note the following statement in the last paragraph on page 27 “Our failure at any time to exercise any of the foregoing rights will not be deemed a waiver of any right, and each such right will be deemed an ongoing right that may be asserted at any time prior to the Expiration Date.” This language suggests that if a condition is “triggered” and the Company fails to assert the condition, it will not lose the right to assert the condition at a later time. Please note that when a condition is triggered and the offeror wishes to proceed with the offer anyway, we believe that this decision constitutes a waiver of the triggered condition(s). Also, please note that when an offer condition is triggered by events that occur during the offer period and before expiration of the offer, the offeror should inform holders how it intends to proceed immediately, rather than waiting until the end of the offer period, unless the condition is one where satisfaction of the condition may be determined only upon expiration. Please revise the cited language accordingly.
Response: In response to the Staff’s comment, the Company has amended the quoted paragraph to provide that the Company will promptly inform holders of how the Company intends to proceed in response to the triggering of an offer condition.
3. While the Offer may be conditioned on any number of objective and clearly-described conditions, reserving the right to assert such conditions and by implication terminate the Offer “regardless of the circumstances giving rise to any such conditions” potentially renders the Offer illusory because the action or inaction of the Company or its affiliates could serve as justification for terminating the Offer. To avoid the Offer potentially constituting an illusory offer in contravention of Section 14(e) of the Exchange Act, please revise to remove the implication that the Offer conditions may be triggered by action or inaction of the Company or any of its affiliates.
Response: In response to the Staff’s comment, the Company has amended the first paragraph of the Conditions of the Tender Offer in Section 7 of the Offer to Purchase by inserting the following immediately after the words “regardless of the circumstances giving rise to such event”: “(other than any action or omission to act by us or our affiliates)”.
* * *
Michael Killoy; Christina Chalk
U.S. Securities and Exchange Commission
November 22, 2022
Page 3
If you have any questions regarding the responses to the comments of the Staff, or require additional information, please contact the undersigned at (212) 403-1396.
Very truly yours,
/s/ Mark F. Veblen
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CORRESP
1
filename1.htm
CORRESP
MARTIN LIPTON
HERBERT M. WACHTELL
THEODORE N. MIRVIS
EDWARD D. HERLIHY
DANIEL A. NEFF
ANDREW R. BROWNSTEIN
STEVEN A. ROSENBLUM
JOHN F. SAVARESE
SCOTT K. CHARLES
JODI J. SCHWARTZ
ADAM O. EMMERICH
RALPH M. LEVENE
RICHARD G. MASON
DAVID M. SILK
ROBIN PANOVKA
DAVID A. KATZ
ILENE KNABLE GOTTS
JEFFREY M. WINTNER
TREVOR S. NORWITZ
BEN M. GERMANA
ANDREW J. NUSSBAUM
RACHELLE SILVERBERG
STEVEN A. COHEN
DEBORAH L. PAUL
DAVID C. KARP
RICHARD K. KIM
JOSHUA R. CAMMAKER
MARK GORDON
JEANNEMARIE O’BRIEN
WAYNE M. CARLIN
STEPHEN R. DiPRIMA
NICHOLAS G. DEMMO
IGOR KIRMAN
JONATHAN M. MOSES
T. EIKO STANGE
WILLIAM SAVITT
ERIC M. ROSOF
GREGORY E. OSTLING
DAVID B. ANDERS
ANDREA K. WAHLQUIST
ADAM J. SHAPIRO
NELSON O. FITTS
JOSHUA M. HOLMES
DAVID E. SHAPIRO
DAMIAN G. DIDDEN
IAN BOCZKO
51 WEST 52ND STREET
NEW YORK, N.Y. 10019-6150
TELEPHONE: (212) 403-1000
FACSIMILE: (212) 403-2000
MATTHEW M. GUEST
DAVID E. KAHAN
DAVID K. LAM
BENJAMIN M. ROTH
JOSHUA A. FELTMAN
ELAINE P. GOLIN
EMIL A. KLEINHAUS
KARESSA L. CAIN
RONALD C. CHEN
GORDON S. MOODIE
BRADLEY R. WILSON
GRAHAM W. MELI
GREGORY E. PESSIN
CARRIE M. REILLY
MARK F. VEBLEN
SARAH K. EDDY
VICTOR GOLDFELD
BRANDON C. PRICE
KEVIN S. SCHWARTZ
MICHAEL S. BENN
SABASTIAN V. NILES
ALISON ZIESKE PREISS
TIJANA J. DVORNIC
JENNA E. LEVINE
RYAN A. McLEOD
ANITHA REDDY
JOHN L. ROBINSON
JOHN R. SOBOLEWSKI
STEVEN WINTER
EMILY D. JOHNSON
JACOB A. KLING
RAAJ S. NARAYAN
VIKTOR SAPEZHNIKOV
MICHAEL J. SCHOBEL
ELINA TETELBAUM
ERICA E. BONNETT
LAUREN M. KOFKE
ZACHARY S. PODOLSKY
RACHEL B. REISBERG
MARK A. STAGLIANO
CYNTHIA FERNANDEZ LUMERMANN
CHRISTINA C. MA
NOAH B. YAVITZ
GEORGE A. KATZ (1965–1989)
JAMES H. FOGELSON (1967–1991)
LEONARD M. ROSEN (1965–2014)
OF COUNSEL
MICHAEL H. BYOWITZ
KENNETH B. FORREST
SELWYN B. GOLDBERG
PETER C. HEIN
JB KELLY
MEYER G. KOPLOW
JOSEPH D. LARSON
LAWRENCE S. MAKOW
DOUGLAS K. MAYER
PHILIP MINDLIN
DAVID S. NEILL
HAROLD S. NOVIKOFF
LAWRENCE B. PEDOWITZ
ERIC S. ROBINSON
ERIC M. ROTH
PAUL K. ROWE
DAVID A. SCHWARTZ
MICHAEL J. SEGAL
ROSEMARY SPAZIANI
ELLIOTT V. STEIN
WARREN R. STERN
LEO E. STRINE, JR.*
PAUL VIZCARRONDO, JR.
PATRICIA A. VLAHAKIS
AMY R. WOLF
MARC WOLINSKY
* ADMITTED IN DELAWARE
COUNSEL
DAVID M. ADLERSTEIN
SUMITA AHUJA
AMANDA K. ALLEXON
LOUIS J. BARASH
FRANCO CASTELLI
ANDREW J.H. CHEUNG
PAMELA EHRENKRANZ
KATHRYN GETTLES-ATWA
ADAM M. GOGOLAK
NANCY B. GREENBAUM
MARK A. KOENIG
CARMEN X.W. LU
J. AUSTIN LYONS
ALICIA C. McCARTHY
NEIL M. SNYDER
S. CHRISTOPHER SZCZERBAN
JEFFREY A. WATIKER
VIA EDGAR
U.S.
Securities and Exchange Commission
Division of Corporation Finance
100 F. Street, N.E.
Washington, D.C. 20549
Attention: Michael Killoy; Christina Chalk
Re:
Triumph Bancorp, Inc.
Schedule TO-I
Filed November 7, 2022
File No. 005-88643
Dear Mr. Killoy and Ms. Chalk:
On
behalf of our client, Triumph Bancorp, Inc. (the “Company”), set forth below are responses to comments of the Staff of the Division of Corporation Finance (the “Staff”) of the U.S. Securities and Exchange Commission
set forth in its letter dated November 16, 2022 with respect to the Schedule TO-I filed by the Company on November 7, 2022 (File No. 005-88643) (the
“Schedule TO”).
For the Staff’s convenience, the text of the Staff’s comment is set forth below in bold,
followed by the Company’s response. Concurrently with filing this letter, the Company is filing Amendment No. 1 to the Schedule TO (“Amendment No. 1”), which includes revisions to the Schedule TO in
response to the Staff’s comments.
Michael Killoy; Christina Chalk
U.S. Securities and Exchange Commission
November 22, 2022
Page 2
Schedule TO-I filed November 7, 2022
Cautionary Note on Forward Looking Statements, page 10
1.
We note the disclaimer that you do not undertake any obligation to update any forward looking statements.
This disclaimer is inconsistent with the requirements of General Instruction F of Schedule TO and your obligations under Rule 13e-4(c)(3) to amend the Schedule to reflect a material change in the information
previously disclosed. Please revise the offer to purchase to delete this statement.
Response: The Company
acknowledges the Staff’s comment and has deleted the statement.
Conditions of the Tender Offer, page 26
2.
We note the following statement in the last paragraph on page 27 “Our failure at any time to exercise
any of the foregoing rights will not be deemed a waiver of any right, and each such right will be deemed an ongoing right that may be asserted at any time prior to the Expiration Date.” This language suggests that if a condition is
“triggered” and the Company fails to assert the condition, it will not lose the right to assert the condition at a later time. Please note that when a condition is triggered and the offeror wishes to proceed with the offer anyway, we
believe that this decision constitutes a waiver of the triggered condition(s). Also, please note that when an offer condition is triggered by events that occur during the offer period and before expiration of the offer, the offeror should inform
holders how it intends to proceed immediately, rather than waiting until the end of the offer period, unless the condition is one where satisfaction of the condition may be determined only upon expiration. Please revise the cited language
accordingly.
Response: In response to the Staff’s comment, the Company has amended the quoted paragraph
to provide that the Company will promptly inform holders of how the Company intends to proceed in response to the triggering of an offer condition.
3.
While the Offer may be conditioned on any number of objective and clearly-described conditions, reserving
the right to assert such conditions and by implication terminate the Offer “regardless of the circumstances giving rise to any such conditions” potentially renders the Offer illusory because the action or inaction of the Company or its
affiliates could serve as justification for terminating the Offer. To avoid the Offer potentially constituting an illusory offer in contravention of Section 14(e) of the Exchange Act, please revise to remove the implication that the Offer
conditions may be triggered by action or inaction of the Company or any of its affiliates.
Response: In
response to the Staff’s comment, the Company has amended the first paragraph of the Conditions of the Tender Offer in Section 7 of the Offer to Purchase by inserting the following immediately after the words “regardless of the
circumstances giving rise to such event”: “(other than any action or omission to act by us or our affiliates)”.
* *
*
Michael Killoy; Christina Chalk
U.S. Securities and Exchange Commission
November 22, 2022
Page 3
If you have any questions regarding the responses to the comments of the Staff, or require
additional information, please contact the undersigned at (212) 403-1396.
Very truly yours,
/s/ Mark F. Veblen
Mark F. Veblen
cc:
Adam D. Nelson, Triumph Bancorp, Inc.