SEC Comment Letter for Intrepid I B.V. (CIK 0001795342) — Jan 17, 2020
Intrepid I B.V. (CIK 0001795342)
Date: Jan. 17, 2020 · CIK: 0001795342 · Accession: 0000000000-20-000470
AI Filing Summary & Sentiment
File numbers found in text: 333-235380
Letter
January 17, 2020 Via E -mail Julian T.H. Kleindorfer , Esq. Latham & Watkins LLP 355 South Grand Avenue, Suite 100 Los Angeles, California 90071 -1560
Re: Digital Realty Trust, Inc. Amendment No. 1 to Registration Statement on Form S -4 Filed January 7, 2020 File No. 333-235380
Dear M r. Kleindorfer :
We have reviewed the amended registration statement and your response letter an d have the following comments.
1. Refer to your response “1(d)” and the disclosure revised in response to prior comment 1. The d isclosure indicates that “if Buyer reduces the minimum condition, Buyer will disseminate add itional offer materials and extend the offer by five business days as required by Rule 14d -4(d)(2)(i) under the Exchange Act .” While the Buyer may choose to extend the offer by five business days, the rule only r equires that the offer must remain open five business days from the date that material changes to the tender offer materials are disseminated to security holders.
2. We note your response to prior comment 4 that DLR believes that payment on the fourth business day following the expiration of the initial offering period constitutes prompt payment in accordance with Exchange Act Rule 14e -1(c). Please expand upon your response regarding “certain Dutch law considerations in closing the post -offer reorganization transactions ” and why such considerations leads DLR to its conclusion. While Exchange Act Rule 14e -1(c) does not define “promptly,” the Commission has stated that this standard may be determined by the practices of the financial community, including current settlem ent practices and that in most cases, the current settlement practice is for the payment of funds and delivery of securities no later than the third business day after the date of the transaction. Refer to the guidance in Exchange Act Release No. 43069, se ction II.D.
3. In addition, your response to prior comment 4 indicates that with respect to shares tendered in the subsequent offering period, Buyer undertakes to deliver the offer consideration “as promptly as practicable following the expiration of such subsequent offering period. ” Please refer to Exchange Act 14d -11(e), which requires that the bidder
Julian T.H. Kleindorfer , Esq. Latham & Watkins LLP January 17, 2020 Page 2
immediately accept and promptly pay for all securities as they are tendered during the subsequent offering period . Given your response, please advise how the Buyer’s undertaking is consistent with its obligations under Exchange Act 14d -11(e).
4. The response to prior comment 9 indicates that if the purchase agreement were to be terminated following the expiration time but prior to the acceptance time (which s ection 2.01(b) of the Purchase Agreement defines as any time with in three business days following the expiration time) , and that all the offer conditions had been satisfied or waived at the expiration time, Buyer would have the obligation to consummate the offer. Your response to prior comment 13 indicate s that there are no circumstances pursuant to which the tender offer would be consummated and INXN would not become a wholly owned subsidiary of DLR and its affiliates , provided that the required resolutions were adopted at the EGM of INXN. Please confirm and disclose, if true, that under no circumstances, wil l the condition to the offer regarding adoption of the EGM resolutions be waived. Alternatively, disclose the risk that the offer could be consummated even though the purchase agreement is terminated, resulting in the Buyer only acquiring eighty percent (80%) of the outst anding INXN shares on a fully -diluted and as -converted basi s (or less to the extent the minimum condition was reduced). I nclude in such disclosure a discussion of the impact this may have on DLR’s ability to integrate INXN after the offer, given any poten tial restrictions under Dutch law , including restrictions on DLR’s ability to eliminate remaining shareholders of INXN .
5. We note your response to prior comment 14. If Buyer is required to commence a compulsory acquisition and the Enterprise Chamber of the Amsterdam Court of Appeals determines the cash price to be paid for the non -tender ed shares, please advise how such cash price is assured to be equal to at least the highest consideration offered in the exchange offer.
* * *
Please contact me at (202) 551 -3444 with any questions.
Sincerely,
/s/ Perry J. Hindin
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January 17, 2020 Via E -mail Julian T.H. Kleindorfer , Esq. Latham & Watkins LLP 355 South Grand Avenue, Suite 100 Los Angeles, California 90071 -1560 Re: Digital Realty Trust, Inc. Amendment No. 1 to Registration Statement on Form S -4 Filed January 7, 2020 File No. 333-235380 Dear M r. Kleindorfer : We have reviewed the amended registration statement and your response letter an d have the following comments. 1. Refer to your response “1(d)” and the disclosure revised in response to prior comment 1. The d isclosure indicates that “if Buyer reduces the minimum condition, Buyer will disseminate add itional offer materials and extend the offer by five business days as required by Rule 14d -4(d)(2)(i) under the Exchange Act .” While the Buyer may choose to extend the offer by five business days, the rule only r equires that the offer must remain open five business days from the date that material changes to the tender offer materials are disseminated to security holders. 2. We note your response to prior comment 4 that DLR believes that payment on the fourth business day following the expiration of the initial offering period constitutes prompt payment in accordance with Exchange Act Rule 14e -1(c). Please expand upon your response regarding “certain Dutch law considerations in closing the post -offer reorganization transactions ” and why such considerations leads DLR to its conclusion. While Exchange Act Rule 14e -1(c) does not define “promptly,” the Commission has stated that this standard may be determined by the practices of the financial community, including current settlem ent practices and that in most cases, the current settlement practice is for the payment of funds and delivery of securities no later than the third business day after the date of the transaction. Refer to the guidance in Exchange Act Release No. 43069, se ction II.D. 3. In addition, your response to prior comment 4 indicates that with respect to shares tendered in the subsequent offering period, Buyer undertakes to deliver the offer consideration “as promptly as practicable following the expiration of such subsequent offering period. ” Please refer to Exchange Act 14d -11(e), which requires that the bidder Julian T.H. Kleindorfer , Esq. Latham & Watkins LLP January 17, 2020 Page 2 immediately accept and promptly pay for all securities as they are tendered during the subsequent offering period . Given your response, please advise how the Buyer’s undertaking is consistent with its obligations under Exchange Act 14d -11(e). 4. The response to prior comment 9 indicates that if the purchase agreement were to be terminated following the expiration time but prior to the acceptance time (which s ection 2.01(b) of the Purchase Agreement defines as any time with in three business days following the expiration time) , and that all the offer conditions had been satisfied or waived at the expiration time, Buyer would have the obligation to consummate the offer. Your response to prior comment 13 indicate s that there are no circumstances pursuant to which the tender offer would be consummated and INXN would not become a wholly owned subsidiary of DLR and its affiliates , provided that the required resolutions were adopted at the EGM of INXN. Please confirm and disclose, if true, that under no circumstances, wil l the condition to the offer regarding adoption of the EGM resolutions be waived. Alternatively, disclose the risk that the offer could be consummated even though the purchase agreement is terminated, resulting in the Buyer only acquiring eighty percent (80%) of the outst anding INXN shares on a fully -diluted and as -converted basi s (or less to the extent the minimum condition was reduced). I nclude in such disclosure a discussion of the impact this may have on DLR’s ability to integrate INXN after the offer, given any poten tial restrictions under Dutch law , including restrictions on DLR’s ability to eliminate remaining shareholders of INXN . 5. We note your response to prior comment 14. If Buyer is required to commence a compulsory acquisition and the Enterprise Chamber of the Amsterdam Court of Appeals determines the cash price to be paid for the non -tender ed shares, please advise how such cash price is assured to be equal to at least the highest consideration offered in the exchange offer. * * * Please contact me at (202) 551 -3444 with any questions. Sincerely, /s/ Perry J. Hindin Perry J. Hindin Special Counsel Office of Mergers and Acquisitions