| New York Menlo Park Washington DC São Paulo London | Paris Madrid Tokyo Beijing Hong Kong |
| George R. Bason, Jr. |
Davis Polk & Wardwell LLP | 212 450 4340 tel |
May 18, 2017
| Re: | AdvancePierre FoodsHoldings,Inc. Schedule TO-T filedMay9, 2017 byDVB MergerSub,Inc. andTyson Foods, Inc.FileNo. 005-89867 |
Ms. Christina Chalk
Senior Special Counsel
Office of Mergers and Acquisitions
United States Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549-3628
Dear Ms.Chalk:
This letter responds to comments of the Staff (the “Staff”) of the Securities and Exchange Commission (the “Commission”) contained in the letter from the Staff dated May 17, 2017 (the “Comment Letter”) regarding the above-referenced Schedule TO of Tyson Foods, Inc. (“Parent”) and DVB Merger Sub, Inc. (“Purchaser”) filed on May 9, 2017 (the “Schedule TO”). In conjunction with this letter, Parent and Purchaser are filing via EDGAR, for review by the Staff, Amendment No. 1 to the Schedule TO (“Amendment No. 1”).
Please find enclosed three copies of Amendment No. 1. The changes reflected in Amendment No. 1 include those made in response to the comments of the Staff in the Comment Letter. The responses set forth in this letter are numbered to correspond to the numbered comments in the Comment Letter. For your convenience, we have also included the text of the applicable comment in the Comment Letter in bold immediately before each response. All defined terms in this letter have the same meaning as in the Offer to Purchase filed as an exhibit to the Schedule TO (the “Offer to Purchase”), unless otherwise indicated.
Offer toPurchase for Cash
Source and Amount of Funds,page26
| 1. | We noteyourreferenceto a“$1.8 billionsenior unsecured termloan facility described below.” The seniorunsecured termloan facility does notappear to bedescribed in theOffer toPurchase for Cash.Pleasereviseyour disclosuretoinclude the informationrequiredbyItem 7 of ScheduleTO andItem |
1007(d) ofRegulation M-A.
In response to the Staff’s comment, additional disclosure has been added to the Offer to Purchase under THE OFFER—Section 10 (“Source and amount of Funds”).
Conditions to theOffer, page47
| 2. | Referto thelanguageinthe lastparagraph in thissection onpage50 stating that theOffer Conditions “may be waived byParent or Purchaser, inwhole or inpart, atany time”and that “[t]hefailureordelaybyParent orPurchaser atany time toexercise any of theforegoing rights will not bedeemed awaiver ofany suchright and each suchright will bedeemed an ongoingright whichmay beasserted at any timeand from time to time.”In ourview, ifany of the listedOfferConditionsare triggered, the offeror must promptlyinform securityholders whether it willproceed with theofferby waiving that condition, orassert thecondition toterminate.Itmay notfail toassert such condition until theend of theoffer period, unless thelanguageof the condition itselfsupports that interpretation. Please revise the disclosure hereaccordingly. |
Parent and Purchaser respectfully acknowledge awareness of the Staff's position in this regard without necessarily agreeing with that position, and in response to the Staff's comment, THE OFFER-Section 15 ("Conditions to the Offer") of the Offer to Purchase has been revised as follows: The failure or delay by Parent or Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and each such right will be deemed an ongoing right which may be asserted at any time and from time to time,in each case subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC.
Parent and Purchaser acknowledge that (1) Parent and Purchaser are responsible for the adequacy and accuracy of the disclosure in their filings, (2) Staff comments or changes to disclosure in response to Staff comments do not foreclose the Commission from taking any action with respect to the filing and (3) neither Parent nor Purchaser may 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.
We are grateful for your assistance in this matter. Please do not hesitate to call me at (212) 450-4340 with any questions you may have with respect to the foregoing.
| Very truly yours, | |
| /s/George R. Bason, Jr. | |
| George R. Bason, Jr. |