September 23, 2020
Via E-mail
Patrick Pohlen, Esq.
Latham & Watkins LLP
505 Montgomery Street
Suite 2000
San Francisco, CA 94111
Re: Aimmune Therapeutics, Inc.
Schedule 14D-9 filed September 14, as amended September 21, 2020
Filed September 14, 2020
File No. 005-88972
Schedule 13E-3 filed September 14, 2020, as amended September
21, 2020
Filed by Aimmune Therapeutics, Inc.
File No. 005-88972
Dear Mr. Pohlen:
The staff in the Office of Mergers and Acquisitions has reviewed the
filing listed above,
and we have the comments set forth below. In some of our comments, we may ask
you to
provide us with information so we may better understand your disclosure.
Please respond to this letter by amending your filing, by providing the
requested
information, or by advising us when you will provide the requested response. If
you do not
believe our comments apply to your facts and circumstances or do not believe an
amendment is
appropriate, please tell us why in your response.
After reviewing any amendment to your filing and the information you
provide in
response to these comments, we may have additional comments.
Schedule 14D-9
Tender Offer and Merger, page 1
1. Your disclosure defines Unaffiliated Security Holders to mean the
stockholders of
Aimmune other than Nestl and its affiliates. Please note that the staff
considers officers and
directors of the subject company to be affiliates when considering whether
such reference is
sufficiently specific to satisfy Item 1014(a) of Regulation M-A. Please
refer to the definition
of affiliate in Exchange Act Rule 13e-3(a)(1). Please advise us
whether the term
Unaffiliated Security Holders applies to any other directors and
officers of Aimmune or its
affiliates and revise your disclosure accordingly.
Patrick Pohlen, Esq.
Latham & Watkins LLP
September 23, 2020
Page 2
Item 4. The Solicitation or Recommendation.
Background of the Offer, Page 16
2. We note references on pages 18 and 23 to the financial advisors
preliminary financial
analyses in connection with their respective fairness opinions. Please be
advised that such
materials fall within the scope of Item 1015 of Regulation M-A and must be
summarized in
the disclosure document and filed as an exhibit to the Schedule 13E-3. Each
presentation,
discussion, or report held with or presented by Lazard and J.P. Morgan,
whether oral or
written, preliminary or final, constitutes a separate report that requires a
reasonably detailed
description meeting the requirements of Item 1015 of Regulation M-A. To the
extent not
already disclosed or filed as an exhibit, please revise to summarize all the
presentations made
by Lazard and J.P. Morgan.
Reasons for the Recommendation of the Company Board, page 25
3. We note that the Independent Directors, and not the Board, has rendered a
fairness
determination with respect to the Rule 13e-3 transaction. Please provide the
disclosure
required by Item 1014(a) of Regulation M-A. Refer to Item 8 of Schedule
13E-3.
4. Refer to the preceding comment. The disclosure provided in response to the
preceding
comment should also include a discussion of the material factors relied upon
by the Board to
reach such a conclusion. To the extent applicable, the Board may expressly
adopt the
analysis and conclusions of the Independent Directors. Please refer to Item
8 of Schedule
13E-3, Item 1014 of Regulation M-A and Question and Answer No. 20 of
Exchange Act
Release No. 34-17719 (April 13, 1981).
Supportive Factors Regarding Fairness, page 29
5. The factors listed in paragraphs (c), (d) and (e) and in Instruction 2 to
Item 1014 of
Regulation M-A are generally relevant to a filing person s fairness
determination and should
be discussed in reasonable detail. See Question Nos. 20 and 21 of the
Exchange Act Release
No. 34-17719 (April 13, 1981). If the Board expressly adopts the analyses
and discussion of
the Independent Directors as its own, please revise this section to either
include the factors
described in clauses (vi) of Instruction 2 to Item 1014 and Item 1014(c) or
explain why such
factors were not deemed material or relevant. If the procedural safeguard in
Item 1014(c)
was not considered, please explain why Board believes the Rule 13e-3
transaction is fair in
the absence of such safeguard.
Opinions of the Company s Financial Advisors
Opinion of Lazard Fr res & Co. LLC
Miscellaneous, page 44
6. Please revise to quantify the compensation received by Lazard in the past
two years with
respect to the additional investment banking services described in this
paragraph. Refer to
Item 9 of Schedule 13E-3 and Item 1015(b)(4) of Regulation M-A.
Patrick Pohlen, Esq.
Latham & Watkins LLP
September 23, 2020
Page 3
Company Management s Unaudited Prospective Financial Information
Early Long-Term Projections, page 46
7. We note your disclaimer indicating that management based its projections on
numerous
assumptions. Please revise to disclose such variables and assumptions with
specificity. For
example, disclose the specific assumptions made with respect to the impact
of COVID-19 on
the Company s Palforzia treatment.
* * *
We remind you that the registrant and its management are responsible
for the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Please direct any questions to me at (202) 551-7951. You may also
contact Perry
Hindin, Special Counsel, at (202) 551-3444.
Sincerely,
/s/ Joshua Shainess
Joshua Shainess
Special Counsel
Office of Mergers and
Acquisitions