November 28, 2005
Via Facsimile (312) 993-9767 and U.S. Mail
Mark D. Gerstein, Esq.
Latham & Watkins LLP
233 South Wacker Street, Suite 5800
Chicago, IL 60606
Re: Georgia-Pacific Corporation
Schedules TO-C filed November 14 and 16, 2005; Schedule TO-T
filed
November 17, 2005; Schedules TO-T/A filed November 21 and
25,
2005 27, 2005, each filed by Koch Industries, Inc. and
Koch
Forest
Products, Inc.
SEC File No. 005-30246
Dear Mr. Gerstein:
We have reviewed your filing and have the following
comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
information so we may better understand your disclosure. After
reviewing this information, we may raise additional comments.
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 any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Schedule TO-C filed November 14, 2005
Forward-Looking Statements
1. We note in the joint press release dated November 13 you refer
to
the definition of forward-looking statements included in the
Private
Securities Litigation Reform Act of 1995. Note that the safe
harbor
protections for forward-looking statements contained in the
federal
securities laws do not apply to statements made in connection with
a
tender offer. See Section 21E(b)(2)(C) of the Securities Exchange
Act of 1934 and Regulation M-A telephone interpretation M.2
available
at www.sec.gov in the July 2001 Supplement to the Division of
Corporation Finance`s Manual of Publicly Available Telephone
Interpretations. Please confirm that you will avoid making
reference
to that Act in all future communications in connection with the
tender offer.
2. We note the disclaimer that you do not undertake any obligation
to
update any forward-looking statements to reflect any changes in
events, new information or otherwise. This disclaimer is
inconsistent with the requirements of General Instruction F of
Schedule TO and your obligations under Rule 14d-6(c) to amend the
Schedule to reflect a material change in the information
previously
disclosed. Please confirm that the bidders will avoid using this
statement in all future communications.
Schedule TO-T filed November 17, 2005
Offer to Purchase
Acceptance for Payment and Payment for Shares, page 16
3. Please revise the language on page 17 that states that you will
return any securities which are not accepted for tender "as
promptly
as practicable after the expiration or termination of the Offer"
to
state that you will make such returns "promptly" as required by
Rule
14e-1(c).
Certain U.S. Federal Income Tax Consequences, page 22
4. We note the subheading of your disclosure and the first
sentence
of this section that sets forth "certain" federal income tax
consequences of the tender offer. Please ensure that you discuss
all
such material consequences.
Certain Information Concerning Georgia-Pacific - Certain
Projections,
page 27
5. Please clarify on page 29 that, as stated in our comment above,
any provisions of the Private Securities Litigation Reform Act of
1995 that may be set forth in the annual and quarterly reports
listed
in your offer document are not applicable to the tender offer.
Certain Information Concerning Koch Industries and the Purchaser,
page 30
6. With respect to your disclosure in the fifth and sixth
paragraphs
on page 30, please tell us why you need to qualify your disclosure
"to the knowledge" of the bidders. What prevents you from knowing
and disclosing this information? Please explain or delete the
qualifier.
The Merger Agreement - Representations and Warranties, page 50
7. We note your disclosure in the first paragraph of this section
that some of the representations and warranties may not be
accurate
or complete as of any particular date. Please be advised that,
notwithstanding the inclusion of a general disclaimer, you are
responsible for considering whether additional specific
disclosures
of material information regarding material contractual provisions
are
required to make the statements included in the offer document not
misleading.
Fees and Expenses, page 75
8. Expand to quantify the fees paid to Citigroup in connection
with
the transaction. See Item 1009(a) of Regulation M-A.
Certain Conditions of the Offer, page 69
9. We note the subheading of this section that sets forth
"certain"
conditions of the tender offer. Please ensure that you discuss
all
conditions of the offer.
10. Refer to the last paragraph of this section relating to your
failure to exercise any of the rights described in this section.
This language suggests that once an offer condition is triggered,
the
bidders must decide whether or not to waive the condition. Note
that
when a condition is triggered and you decide to proceed with the
offer anyway, we believe that this constitutes a waiver of the
triggered condition(s). Depending on the materiality of the
waived
condition and the number of days remaining in the offer, you may
be
required to extend the offer and recirculate new disclosure to
security holders. You may not, as this language seems to imply,
simply fail to assert a triggered offer condition and thus
effectively waive it without officially doing so. Please confirm
your understanding supplementally.
Letter of Transmittal
11. We note that beginning on page 5 of the Letter of Transmittal
you
require tendering security holders to improperly certify that they
"understand" and "recognize" the effect of the terms of the offer.
Please revise to delete that requirement. Alternatively, amend
the
form to include a legend in bold typeface that indicates the
bidders
do not view the certification made by security holders that they
understand or recognize the offer materials as a waiver of
liability
and that the bidders promise not to assert that this provision
constitutes a waiver of liability.
Closing Comments
As appropriate, please amend your filing and respond to
these
comments within 10 business days or tell us when you will provide
us
with a response. You may wish to provide us with marked copies of
the amendment 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 understand that we may have
additional
comments after reviewing your amendment and responses to our
comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing to be certain that the
filing includes all information required under the Securities
Exchange Act of 1934 and that they have provided all information
investors require for an informed investment decision. Since the
bidders are in possession of all facts relating to their
disclosure,
they are responsible for the accuracy and adequacy of the
disclosures
they have made.
In connection with responding to our comments, please
provide,
in writing, a statement from each of the bidders acknowledging
that:
* the bidder is responsible for the adequacy and accuracy of the
disclosure in the filing;
* 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
* the bidder 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.
Please direct any questions to me at (202) 551-3619 or, in
my
absence, to Pam Carmody, Special Counsel, at (202) 551-3265. You
may
also contact me via facsimile at (202) 772-9203. Please send all
correspondence to us at the following ZIP code: 20549-3628.
Sincerely,
Daniel F. Duchovny
Attorney-Advisor
Office of Mergers and Acquisitions
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Mark D. Gerstein, Esq.
Latham & Watkins LLP
November 28, 2005
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE