September 23, 2020
Via E-mail
David A. Carpenter, Esq.
Mayer Brown LLP
1221 Avenue of the Americas
New York, NY 10020
Re: Aimmune Therapeutics, Inc.
Schedule 13E-3 filed September 14, 2020, as amended September 21,
2020
Filed by Aimmune Therapeutics, Inc.
File No. 005-88972
Schedule TO-T Filed September 14, 2020, as amended September 21,
2020
Filed by SPN MergerSub, Inc. and Soci t des Produits Nestl
S.A.
File No. 005-88972
Dear Mr. Carpenter:
The staff in the Office of Mergers and Acquisitions has reviewed your
filings. 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 filings, 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 amendments to your filings and the information you
provide in
response to these comments, we may have additional comments.
Schedule 13E-3
General
1. We note that as of July 2020, Nestl had entered into preliminary
discussions with Aimmune
regarding the potential acquisition. Please tell us why Nestl S.A. and
Soci t des Produits
Nestl S.A. did not file an amended Schedule 13D to disclose the material
change to the facts
set forth in the previously filed Schedule 13D until August 31, 2020, the
date the Merger
Agreement was executed.
David A. Carpenter, Esq.
Mayer Brown LLP
September 23, 2020
Page 2
2. 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.
Schedule TO-T Exhibit (a)(1)(A) Offer to Purchase for Cash
Summary Term Sheet
Recent Aimmune Trading Prices; Subsequent Trading, page 6
3. Where you reference the premium as measured from the last trading day prior
to execution of
the Merger Agreement, please qualify this disclosure by discussing any
recent decline in the
share price resulting from the ongoing pandemic.
Special Factors
Background, page 12
4. Please supplement your discussion of the events leading up to the Execution
of the Merger
Agreement to address whether or not the FDA approval for Aimmune s
Palforzia treatment
was a factor in the timing of the transaction.
Purpose of and Reasons for the Offer and the Merger, page 17
5. Your disclosure of the purpose of the proposed transaction appears to have
been generally
applicable at any time during the Company s history. Therefore, please
revise to state why
Nestl is pursuing this transaction now as opposed to at any other time.
6. We note your disclosure that Nestl expects to pay off the outstanding
borrowings of
Aimmune under the credit agreement by and among Aimmune, KKR Peanut
Aggregator L.P.
and Cortland Capital Markets Services LLC. Please quantify the expected
payoff amount
here. Refer to Instruction 2 to Item 1013 of Regulation M-A.
Position of Nestl and Purchaser Regarding Fairness of the Offer and the
Merger, page 18
7. The factors listed in Instruction 2 to Item 1014 of Regulation M-A are
generally relevant to
each 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).
Please expand your discussion of the factors upon which the fairness
determination is based
to address factors such as historical market prices, purchase prices paid in
previous
purchases, and future prospects of the Company. Refer to clauses (ii) and
(vi) of Instruction
2 to Item 1014 of Regulation M-A. Alternatively, please disclose why such
factors were not
deemed material or relevant.
David A. Carpenter, Esq.
Mayer Brown LLP
September 23, 2020
Page 3
8. If the Nestl Parties did not consider the procedural safeguards set forth
in Item 1014(c), (d)
and (e), please explain why the Nestl Parties believe that the Rule 13e-3
transaction is fair in
the absence of such safeguards.
9. Please address if and how the Nestl Parties considered the recent decline
of Aimmune s
share price, and any related effect of the pandemic on the share price, in
making its fairness
determination. Refer to Item 1014(b) of Regulation M-A and the Response to
Question 20 in
Exchange Act Release 34-17719 (April 13, 1981).
10. Address whether the Nestl Parties considered as a factor the required
termination fee to be
paid by Aimmune to Nestl in the event the Merger Agreement is terminated.
Conditions of the Offer, page 62
11. You state that the conditions to the offer may be waived by Nestl and
Purchaser in whole
or in part at any time and from time to time in their sole discretion
(other than the Minimum
Tender Condition). We also note your disclosure that the failure by Nestl
to exercise its
rights with respect to such conditions shall not be deemed a waiver of
any such right and
each such right shall be deemed an ongoing right that may be asserted at
any time and from
time to time. This suggests that Nestl may become aware that an offer
condition has been
triggered yet the tender offer may proceed without new disclosure. To the
extent you
become aware of any offer condition becoming operative in a way that would
enable Nestl
to terminate the offer or cancel the obligation to accept tenders, and
Nestl elects to proceed
with the offer anyway, we view that decision as a waiver of the condition.
If a material
condition is waived, a material change has occurred to the offer document
within the
meaning of Rule 14d-6(c). Please revise this section to qualify the
referenced disclosure by
affirming Nestl s understanding of its obligation to disclose material
changes.
* * *
We remind you that the filing persons 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