corresp
|
|
|
|
|
ROPES & GRAY LLP
PRUDENTIAL TOWER
800 BOYLSTON STREET
BOSTON, MA 02199-3600
WWW.ROPESGRAY.COM |
|
|
|
October 19, 2010
|
|
Paul M. Kinsella |
|
|
617-951-7000 |
|
|
617-951-7050 fax |
|
|
paul.kinsella@ropesgray.com |
VIA EDGAR
David L. Orlic
Special Counsel
Office of Mergers and Acquisitions
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549-3628
|
|
|
Re:
|
|
Genzyme Corporation |
|
|
Schedule 14D-9 |
|
|
Filed on October 7, 2019 |
|
|
File No. 005-37205 |
Dear Mr. Orlic,
On behalf of Genzyme Corporation, a Massachusetts corporation (the Company), we are writing
in response to the comment letter, dated October 14, 2010 (the Comment Letter), of the staff of
the Office of Mergers and Acquisitions (the Staff) of the Securities and Exchange Commission (the
Commission) to the Companys above-referenced Solicitation/Recommendation Statement on Schedule
14D-9, filed on October 7, 2010 (as amended, the Schedule 14D-9), under the Securities Exchange
Act of 1934, as amended (the Exchange Act).
For the convenience of the Staffs review, we have set forth the comments contained in the
Comment Letter in italics, followed by the responses of the Company. Page numbers and other
similar references used in the Staffs comments below refer to
the original Schedule
14D-9.
Capitalized terms used in this letter but not otherwise defined have the meanings assigned to them
in the Schedule 14D-9.
Interest in Securities of the Subject Company, page 33
1. |
|
We note disclosure regarding your $1 billion accelerated share repurchase program, with
Goldman Sachs as counterparty. Please confirm that there have been no transactions associated
with this program during the past 60 days, or provide the disclosure required by Item 1008(b)
of Regulation M-A. |
Company Response: As disclosed in the Companys Current Report on Form 8-K filed on June 23, 2010,
on June 17, 2010, the Company entered into agreements (ASR Agreements) with Goldman, Sachs & Co.
(Goldman Sachs) to effect an accelerated repurchase of shares of the Companys common stock
(Shares). Pursuant to the ASR Agreements, on June 22, 2010, the Company paid $1 billion to
Goldman Sachs to purchase all of the Shares contemplated under the ASR Agreements. On June 22,
2010, Goldman Sachs delivered to the Company approximately 15.5 million Shares. On October 18,
2010, the calculation period for the accelerated share repurchase program ended, and, in connection
with final settlement under the ASR Agreements, Goldman Sachs is expected to deliver to the
Company approximately 100,000 additional Shares. No additional payment will be made by the Company
to Goldman Sachs for those additional Shares. The Company committed to purchasing the Shares under the
ASR Agreements on June 17, 2010, and paid for those Shares on June 22, 2010.
Accordingly,
there were no transactions associated with the accelerated share repurchase program during the 60
days prior to the filing date of the original Schedule 14D-9 that are required to be disclosed
pursuant to Item 1008(b) of Regulation M-A.
2. |
|
Please provide us with your analysis under Rule 13e-1 with respect to this program. |
Company Response: Please refer to the Companys response to Comment #1. As the Company
committed to purchasing the Shares under its accelerated share repurchase program
on June 17, 2010, and paid in full for the Shares on June 22, 2010, the
Company, does not believe Rule 13e-1 of the Exchange Act
is applicable to this program.
The Solicitation or Recommendation
Reasons for the Recommendation of the Company Board, page 29
3. |
|
The disclosure in this section refers to a variety of factors considered by the board of
directors in reaching its recommendation that security holders reject the offer. However,
Item 4 of Schedule 14D-9 and corresponding Item 1012(b) of Regulation M-A require that actual
reasons be cited to explain why an unfavorable recommendation is being made. Please revise
this section to expressly state reasons that in fact support the board of directors decision
to recommend that security holders reject the offer. |
Company Response: The items disclosed as factors in Item 4 of the Schedule 14D-9 were the
material reasons considered by the Companys board of directors in making its recommendation to the
Companys shareholders. The Company used the words reasons and factors interchangeably and
does not believe that the disclosure needs to be modified. In Item 4 of the Schedule 14D-9, there
are multiple references to the reasons for the recommendation of the Companys board of
directors, and the list of factors is set forth under the sub-heading Reasons for the
Recommendation of the Company Board. Although the Company
believes that, in common parlance,
reasons and factors are understood to have similar meanings, the Company undertakes to not use
the term factors when referring to reasons in future filings.
4. |
|
We note your references to presentations by your financial advisors. Notwithstanding the
absence of a specific item requirement in Schedule 14D-9, please advise what consideration has
been given to summarizing the advisors bases for and methods of arriving at their findings
and attaching as an exhibit any written analyses or presentation materials used in issuing
their advisory opinions. Refer to Item 8 of Schedule 14D-9 and Item 1011(b) of Regulation
M-A. |
Company Response: The Company has given consideration to the appropriateness of summarizing in the
Schedule 14D-9 the bases for and methods of arriving at the inadequacy opinions rendered by the
Companys financial advisors, Credit Suisse Securities LLC (USA) and Goldman Sachs (the Financial
Advisors), to the Companys board of directors, as well as whether it would be appropriate to
attach to the Schedule 14D-9 any written analyses or presentation materials used by the Financial
Advisors in connection with rendering their inadequacy opinions. After consulting with the
Companys outside counsel and counsel to the Companys independent directors, as well as engaging
in discussions with the Companys Financial Advisors and their counsel, the Company has concluded
that it is not appropriate to provide such summaries or to attach analyses or presentation
materials to the Schedule 14D-9.
The Company believes that the description of the inadequacy opinions in the Schedule 14D-9
satisfies all relevant legal requirements and is consistent with past practice in the context of
unsolicited (hostile) tender offers. The Company does not
believe that additional disclosures
are necessary to make the statements made in the Schedule 14D-9, in light of the circumstances
under which they are made, not materially misleading. The Company believes the Schedule 14D-9 is
complete and includes extensive disclosure regarding the reasons for the recommendation of the
Companys board of directors. Moreover, complete copies of the inadequacy opinions provided to the
Companys board of directors by the Financial Advisors were attached to the Schedule 14D-9 mailed
to Company shareholders. The Company respectfully submits that no
additional disclosure in this
regard is necessary to make the included disclosure materially complete.
Based on a review of relevant precedent, the Company is not aware of any Schedule 14D-9 filed by a
target company subject to a non-Schedule 13E-3 hostile tender offer where disclosure was included
in a Schedule 14D-9 regarding the bases for and the methods of arriving at the inadequacy opinions
of the target companys financial advisors (or where written analyses or presentation materials
used by the financial advisors were attached to the Schedule 14D-9) while the offer remained
hostile. See, for example, the Schedules 14D-9 and amendments filed by (1)
Airgas Inc. in connection with the tender offer made by Air Products & Chemicals Inc., (2) Caseys
General Stores in connection with the tender offer by Alimentation Couche-Tard, and (3) Facet
Biotech Corporation in connection with the tender offer by Biogen Idec Inc.
* * *
Please be advised that, in connection with the Comment Letter and the Companys responses
thereto, the Company hereby acknowledges the Staffs position that (i) the Company is responsible
for the adequacy and accuracy of the disclosure in the above-referenced filing, (ii) the Staffs
comments or changes to disclosure in response to the Staffs comments do not foreclose the
Commission from taking any action with respect to the above-referenced filing, and (iii) the
Company may not assert the Staff comments as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the United States.
We hope that the foregoing has been responsive to the Staffs comments. Should you have any
questions relating to the foregoing, please feel free to contact the undersigned at (617) 951-7921.
Best regards,
/s/ Paul M. Kinsella
Paul M. Kinsella
Ropes & Gray LLP