December 20, 2019
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.
Registration Statement on Form S-4
Filed December 6, 2019
File No. 333-235380
Dear Mr. Kleindorfer:
We have limited our review of the above registration statement to those
issues we have
addressed in our comments. In some of our comments, we may ask you to provide
us with
information so we may better understand the disclosure.
Please respond to this letter by amending the registration statement and
providing the
requested information. If you do not believe our comments apply to the
registrants' facts and
circumstances or do not believe an amendment is appropriate, please tell us why
in your
response.
After reviewing any amendment to the registration statement and the
information you
provide in response to these comments, we may have additional comments. All
defined terms
used in this letter have the same meaning as in the proxy statement/prospectus,
unless otherwise
indicated.
Cover Page of the Proxy Statement Prospectus
1. With a view towards disclosure, please advise us as to the circumstances
pursuant to
which the minimum condition would be reduced to sixty-six and two-thirds
percent.
While the Buyer may amend the minimum condition at any time during the
initial
offering period, changing it requires that Buyer amend the offer
materials, disseminate
information about the change and ensure that enough time remains in the
initial offering
period for INXN shareholders to receive and react to the new
information. In addition, as
it relates to the ownership percentage that DLR may own after the offer,
Buyer may be
required to disseminate revised disclosure explaining the impact of this
change. For
example, in certain non-US jurisdictions, where a bidder cannot
eliminate remaining
target shareholders simply by acquiring a majority of the target's
shares, lowering the
minimum condition may require an explanation of the impact on a bidder's
ability to
Julian T.H. Kleindorfer, Esq.
Latham & Watkins LLP
December 20, 2019
Page 2
integrate the target company after the offer. Please revise the
disclosure to affirm that
registrants will provide shareholders with additional disclosure after
any change in the
minimum condition and that the registrants will ensure that the offer
remains open for an
adequate time to allow shareholders to react to that new disclosure. In
this regard, we
understand from our conversation with Latham & Watkins that the
registrants will not be
relying on the Tier II cross-border exemptions. Please confirm the
registrants' and
Buyer's understanding.
2. Disclosure indicates that "if INXN elects to hold a subsequent EGM,
Buyer will extend
the offer for six business days after the date of that subsequent EGM."
Please revise the
disclosure to explain the phrase "subsequent EGM" and describe the
circumstances
pursuant to which a subsequent EGM would be held. Please disclose the
impact, if any,
the holding of a subsequent EGM would have on Buyer's plans to provide a
subsequent
offering period.
3. Disclosure indicates that "[f]ollowing the time of acceptance for
payment in connection
with the offer, which we refer to as the acceptance time, Buyer shall
provide a subsequent
offering period, which we refer to as a subsequent offering period, in
accordance with
Rule 14d-11...of not less than three business days..." Please reconcile
this disclosure
with disclosure on page 81 that "[p]arties do not anticipate commencing
any subsequent
offering period following the expiration time."
4. Refer to the disclosure described in the preceding comment. Disclosure
on the last Q &
A on page ALT-12 indicates that "[a]s promptly as practicable following
the expiration
time (but in any event within three business days thereafter), Buyer
will accept for
exchange and, at or as promptly as practicable (but in any event within
four business
days...thereafter), deliver the offer consideration...for all INXN
shares validly tendered
and not properly withdrawn pursuant to the offer as of the expiration
time." Please
advise whether such disclosure is suggesting that payment for tendered
shares may occur
four or seven business days after the expiration time and tell us why
the registrants and
Buyer believe this complies with the prompt payment requirement in
Exchange Act Rule
14e-1(c). In addition, if shares tendered in the initial offering period
will not be accepted
for up to three business days after expiration, please advise how the
Buyer intends to
comply with the time periods for announcing the results of the offer and
beginning the
subsequent offering period immediately after expiration of the initial
offer period. Refer
to Exchange Act Rule 14d-11(c) and (d) and contrast such requirements
with that of
Exchange Act Rule 14d-1(d)(2)(v).
Notice of Special Meeting
5. Disclosure regarding the proposal to approve the issuance of shares of
DLR common
stock to be paid by Buyer to INXN shareholders indicates that a
shareholder's abstention
will have the same effect as a vote against the approval of such
proposal. Please advise
Julian T.H. Kleindorfer, Esq.
Latham & Watkins LLP
December 20, 2019
Page 3
with a view towards disclosure whether abstentions have the same effect
on the proposal
to approve one or more adjournments.
The Post-Offer Reorganization, page 18
6. Disclosure in this section and elsewhere in the proxy
statement/prospectus indicates that
"Intrepid I, as the sole shareholder of Intrepid II, will allot shares
to INXN shareholders
at the time the legal merger is effectuated, as further described in the
purchase
agreement." Please revise the disclosure to explain the meaning of
"allotment" and
include a description of the allotment process.
7. Disclosure in this section also indicates that "Buyer will continue to
be a shareholder of
Intrepid I as a result of the exchange of any INXN shares it accepted
for exchange in the
offer for Intrepid I shares." Disclosure throughout the proxy
statement/prospectus refers
to the exchange offer of DLR shares for shares of INXN shares, not
Intrepid I shares.
With a view towards disclosure, please advise why Buyer would be issuing
Intrepid I
shares in exchange for INXN shares.
8. Page 19 refers to a "compulsory acquisition threshold." Please revise
the disclosure to
define this term.
Termination of the Purchase Agreement, page 21
9. Disclosure indicates that "The purchase agreement may be terminated at
any time prior to
the acceptance time by the mutual consent of INXN, DLR and Buyer in a
written
instrument." If the purchase agreement were to be terminated following
expiration of the
exchange offer in accordance with the offer's terms and with all of the
offer conditions
having been satisfied or waived, but prior to the acceptance time,
please advise us as to
the Buyer's and the registrants' understanding regarding Buyer's
obligation to
consummate the offer following termination of the purchase agreement.
Cautionary Statement Concerning Forward-Looking Statements, page 43
10. Refer to the first sentence of this section. We remind you 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
27A(b)(2)(C) of the
Securities Act, Section 21E(b)(2)(C) of the Exchange Act and Question
117.05 of the
Going Private Transactions, Exchange Act Rule 13e-3 and Schedule 13E-3
Compliance
and Disclosure Interpretations (January 26, 2009) available at
www.sec.gov. Please
revise and refrain from referring to such safe harbor provisions in the
exchange offer,
future press releases or other communications relating to the exchange
offer.
Julian T.H. Kleindorfer, Esq.
Latham & Watkins LLP
December 20, 2019
Page 4
Voting by INXN's Directors..., page 76
11. Please expand the disclosure in the first paragraph of this section to
specify "certain of
these resolutions" that require the affirmative vote of at least
two-thirds of the votes cast.
No Guaranteed Delivery, page 80
12. Given that the Buyer is not providing for guaranteed delivery
procedures, please specify
the "normal business hours of DTC and the exchange agent" within which
INXN
shareholders must complete the necessary tender procedures.
The Post-Offer Reorganization, page 82
13. Refer to the first paragraph of this section. With a view towards
disclosure, please advise
whether there are any circumstances pursuant to which the tender offer
would be
consummated but INXN would not become a wholly owned subsidiary of DLR
and its
affiliates.
14. Provide an analysis in your response letter as to whether Exchange Act
Rule 13e-3 will
apply to any second-step squeeze out transaction following consummation
of the
exchange offer.
Withdrawal Rights, page 83
15. Refer to the first two sentences. Revise to define the meaning of
"closing date" and how
it is different than "expiration time."
Conditions to Closing of the Offer, page 120
16. The first sentence of this section indicates that "[i]n addition to
DLR's and Buyer's right
and obligation to extend, terminate, amend or modify the offer pursuant
to the provisions
of the purchase agreement agreement...neither DLR nor Buyer shall be
required to
accept for payment or pay for any INXN share validly tendered and not
properly
withdrawn pursuant to the offer unless, as of the scheduled expiration
time the following
conditions are satisfied..." All offer conditions should be described in
this section.
Please revise to describe any conditions to the offer not already
included in this section.
Please also advise us, with a view towards additional disclosure, what
other rights to
terminate the offer DLR and Buyer may have beyond those relating to the
offer
conditions disclosed in this section.
17. While the offer may be conditioned on any number of objective and
clearly-described
conditions, reserving the right to terminate the offer "regardless of
the circumstances
giving rise to any such conditions..." potentially renders the offer
illusory because the
Julian T.H. Kleindorfer, Esq.
Latham & Watkins LLP
December 20, 2019
Page 5
action or inaction of DLR or Buyer could serve as justification for
terminating it. Please
revise the disclosure here accordingly.
* * *
We remind you that the registrants are responsible for the accuracy and
adequacy of their
disclosures, notwithstanding any review, comments, action or absence of action
by the staff.
Refer to Securities Act Rules 460 and 461 regarding requests for
acceleration. Please
allow adequate time for us to review any amendment prior to the requested
effective date of the
registration statement.
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