October 2, 2006
Via facsimile to ((215) 413-8808) and U.S. Mail
Bart J. Colli, Esq.
Aramark Corporation
1101 Market Street
Philadelphia, PA 19107
Re: Aramark Corporation
Preliminary Schedule 14A
Filed September 7, 2006
File No. 001-16807
Schedule 13E-3
Filed September 7, 2006
File No. 005-62375
Dear Mr. Colli:
We have reviewed the above filings and have the following
comments. Where indicated, we think you should revise your
documents
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 supplemental information so we may better understand your
disclosure. After reviewing this information, we may or may not
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
filings.
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 13E-3
1. We note that RMK Acquisition is owned by GS Capital Partners V
Fund, L.P., J.P. Morgan Partners (BHCA), L.P., CCMP Capital
Investors
II, L.P., Thomas H. Lee Equity Fund VI, L.P., and Warburg Pincus
Private Equity IX, L.P. We believe these entities are also
engaged
in the going private transaction. Please add them as filing
persons
on the Schedule 13E-3 or explain why they should not be so
included.
See Section II.D.3 of the Division of Corporation Finance "Current
Issues and Rulemaking Projects" outline, dated November 14, 2000
and
available on the SEC website at www.sec.gov.
2. Each filing person must individually comply with the filing,
dissemination, disclosure and signature requirements of Schedule
13E-
3. Therefore, you will need to include all of the information
required by Schedule 13E-3 and its instructions for all filing
persons, including those added in response to the preceding
comment.
For example, include a statement as to whether each person
believes
the Rule 13e-3 transaction to be fair to unaffiliated security
holders and an analysis of the material factors upon which he
relied
in reaching such a conclusion. See Item 8 of Schedule 13E-3, Item
1014 of Regulation M-A and Question and Answer No. 5 of Exchange
Act
Release No. 34-17719 (April 13, 1981). In this regard, the
reasons
for the transaction and the alternatives considered by these
affiliates may be different than those of the company, and this
fact
should be reflected in the disclosure. In addition, be sure that
each new filer signs the Schedule 13E-3.
3. General Instruction C to Schedule 13E-3 requires you to provide
information about control persons where named filers are corporate
entities. Please revise to ensure that you have provided all
disclosure required by Items 3, 5, 6, 10 and 11 for all filing
persons, including those added in response to the preceding
comments.
Provide also the disclosure required by Item 2(f) of Schedule 13E-
3.
Item 11. Interest in Securities of the Subject Company
4. Refer to the preceding comments. Please disclose the
information
included in this Item and in Schedules I-VII in the document to be
delivered to security holders. Refer to Rule 13e-3(e)(1).
Item 16. Exhibits
5. We note that the debt commitment letter filed as an exhibit to
this Schedule does not include the exhibits to that letter.
Please
refile this letter with all related exhibits.
Preliminary Schedule 14A
General
6. Please fill in the blanks in the proxy statement.
Cover page
7. Please revise the cover page of your proxy statement and the
form
of proxy to clearly identify it as being preliminary. See Rule
14a-
6(e)(1) of Regulation 14A.
8. We note that L. Frederick Sutherland and other members of
management may become investors in RMK Acquisition. Please
disclose
when Mr. Sutherland and management members will make their
decision
and whether the merger agreement provides a deadline for such
decision. Also, provide us with your detailed legal analysis of
whether Mr. Sutherland and management members who invest in RMK
Acquisition would become filing persons of the Schedule 13E-3.
Refer
to our preceding comments.
Summary Term Sheet
9. We note your disclosure here and elsewhere in the proxy
statement
that the board of directors determined that "the merger agreement
is
advisable, fair to and in the best interests of the Company and
its
stockholders (other than the stockholders who invest in MergerCo
or
Parent)." Please revise here and throughout the filing to more
clearly and consistently articulate whether the going private
transaction is substantively and procedurally fair to unaffiliated
security holders. See Item 1014(a) of Regulation M-A. Note also
that the staff, as stated in the Current Issues Outline publicly
available on our website, views officers and directors of the
issuer
as affiliates of that issuer. Also, please revise to specifically
state that the board of directors` determination addresses both
substantial and procedural fairness.
The Special Meeting - Required Vote, page 10
10. If either of the required votes is assured by virtue of the
execution of the voting agreement, please state so.
Special Factors, page 14
11. The information required by Items 7, 8 and 9 of Schedule 13E-3
must appear in a "Special Factors" section at the beginning of the
proxy statement, immediately following the Summary section. See
Rule
13e-3(e)(1)(ii). Please revise the proxy statement to include
this
information in a "Special Factors" section in the beginning of the
document.
Background of the Merger, page 14
12. With respect to the February 7, 2006 board meeting, please
describe the "various competitive and industry developments
reported
by Mr. Neubauer.
13. Refer to your May 3, 2006 entry. Please explain who is
Eminence
Capital and its relevance to your transaction.
14. Please tell us, with a view toward disclosure, whether Company
A
provided any reason for its decision not to submit a proposal
following the June 25, 2006 communications between that company
and
your financial advisor.
Reasons for the Merger, page 23
15. We note that the special committee considered the financial
advisor`s presentations and opinions regarding the fairness of the
transaction. We also note that the board of directors adopted the
special committee`s analysis and recommendation. Note that if any
filing person has based its fairness determination on the analysis
of
factors undertaken by others, such person must expressly adopt
this
analysis and discussion as their own in order to satisfy the
disclosure obligation. See Question 20 of Exchange Act Release
No.
34-17719 (April 13, 1981). Please revise to clarify whether the
special committee adopted the financial advisor`s analysis and
opinion. Also, clarify whether MergerCo adopted Mr. Neubauer`s
analysis and opinion (page 34).
16. Refer to our comment in the Summary Term Sheet section.
Please
address how any filing person relying on the Credit Suisse opinion
was able to reach the fairness determination as to unaffiliated
security holders given that the Credit Suisse fairness opinion
addressed fairness with respect to security holders other than the
MergerCo and its affiliates and the stockholders who invest in
MergerCo or its affiliates, rather than all security holders
unaffiliated with the company.
Opinion of Credit Suisse Securities (USA) LLC, page 26
17. Please quantify the fee payable to Credit Suisse rather than
state you will pay a "customary fee."
18. Please tell us, with a view toward disclosure, why you have
not
described the Premium Paid Analysis included on page 27 of the
financial advisor`s presentation to your board on August 7, 2006.
19. Please revise to disclose the data underlying the results
described in this analysis and to show how that information
resulted
in the values disclosed. For example, disclose (i) the company`s
projected results that were used in conducting the Discounted Cash
Flow Analysis, (ii) the equity values, enterprise values, EBITDA
and
other information for each comparable company that is the basis
for
the multiples disclosed on page 31 with respect to the Selected
Companies Analysis, and (iii) the transaction date and data from
each
transaction that resulted in the multiples disclosed on page 32
with
respect to the Selected Precedent Transaction Analysis.
20. Refer to the Discounted Cash Flow Analysis. Please explain
how
Credit Suisse determined that discount rates of 8.5%-10.5% and
9.0%-
11.0% (for the apparel business) and EBITDA multiples of 7.x-9.5x
were the most appropriate indicators of value. Disclose the
industry
averages. Also, explain why Credit Suisse applied separate
discount
rates in the third cash flow analysis but not in first two.
21. Refer to the Discounted Cash Flow Analysis. Please disclose
the
financial projections provided to Credit Suisse here or include a
cross-reference to another location in your proxy statement where
the
projections are included. With respect to the projections
disclosed
on page 79, please include a reference to the more detailed
projections included in the financial advisor`s presentation to
your
board on August 7, 2006, filed as an exhibit to your Schedule 13E-
3.
Certain Effects of the Merger, page 35
22. Refer to your discussion regarding the effect of the merger on
deferred stock units issued under the Stock Unit Retirement Plan,
the
2001 Stock Unit Retirement Plan and the 2005 Stock Unit Retirement
Plan. Please explain here and in the Summary Term Sheet when will
holders of these units be paid.
23. Refer to the table on page 36. Please tell us how you plan to
update this information if any other members of management become
investors in the acquiror.
Interest of the Company`s Directors and Executive Officers in the
Merger, page 41
24. Refer to the first table on page 47. Explain why Mr. Lafferty
and Mr. Neubauer are excepted from the disclosure.
Material U.S. Federal Income Tax Consequences of the Merger, page
44
25. We note your disclosure that this section summarizes "certain"
of
the material federal income tax consequences of the merger.
Please
ensure that you discuss all such material consequences.
26. While you may recommend that security holders consult their
individual tax advisors with respect to their particular tax
consequences, you may not "urge" them to do so. Please revise.
Historical Selected Financial Information, page 76
27. The pro forma data set forth in paragraphs (b) and (c)(6) of
Item
1010 of Regulation M-A is also required. Please provide it or
tell
us your basis for not doing so.
Where You Can Find More Information, page 70
28. Refer to the paragraph preceding the table in this section.
Note
that Schedule 14A does not specifically permit general "forward
incorporation" of documents to be filed in the future. Rather,
you
must specifically amend your document to specifically list any
such
filings. Please revise.
* * * *
As appropriate, please amend your filings in response to
these
comments. You may wish to provide us with marked copies of the
amended filings to expedite our review. Please furnish a cover
letter with your amended filing that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review. Please
understand that we may have additional comments after reviewing
your
amended filings and responses to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all material information to
investors. Since the company and its management are in possession
of
all facts relating to a company`s 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 the filing persons (and any
additional
filing persons you add on the Schedule 13E-3 in response to our
comments above) acknowledging that:
* the filing person is responsible for the adequacy and accuracy
of
the disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments do not foreclose the Commission from taking any action
with
respect to the filings; and
* the filing person 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 filings or
in
response to our comments on your filings.
Please direct any questions to me at (202) 551-3619. 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
Special Counsel
Office of Mergers & Acquisitions
Bart J. Colli, Esq.
Aramark Corporation
October 2, 2006
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-3628
DIVISION OF
CORPORATION FINANCE