March 10, 2021
Via E-Mail
David Johansen,
White & Case L.L.P.
1221 Avenue of the Americas
New York, New York 10020
Re: Brookfield Infrastructure Corp. and Brookfield Infrastructure
Partners L.P.
Registration Statement on Form F-4
Filed February 22, 2021
File No. 333-253365
Dear Mr. Johansen:
The Office of Mergers and Acquisitions has conducted a limited review
of the filing
listed above for compliance with the tender offer rules. Our comments follow.
All defined terms
have the same meaning as in the prospectus for this exchange offer.
Please respond to this letter by revising 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.
Form F-4 filed February 22, 2021
Cover Page
1. Refer to the following language in the legend on the cover page of the
prospectus: The
information contained in this prospectus/offer to exchange is not
complete This
language is inappropriate, since you have chosen to commence this offer
upon filing of
your registration, as permitted by Rule 162. Please revise. Refer to
Section E, Q&A No. 2
in the Third Supplement to the Division of Corporation Finance s Manual
of Publicly
Available Telephone Interpretations (July 2001) available on our website
at www.sec.gov
for an example of how the red herring legend should be modified in
an exchange offer
that commences early under Rule 162.
David Johansen, Esq.
White & Case L.L.P.
March 10, 2021
Page 2
General
2. In order to rely on Rule 162 to commence this exchange offer early, you
must provide
withdrawal rights to the same extent as would be required if this Offer
were subject to the
requirements of Regulation 14D. See Rule 162(a)(2). This includes the
requirement to
provide back-end withdrawal rights 60 days after commencement of
the offer, pursuant
to Section 14(d)(5) of the Exchange Act. See footnote 281 on page 88 of
Exchange Act
Release 58597 (2008) (expanding the availability of early commencement
for exchange
offers not subject to Regulation 14D with certain conditions). Rule
162(a)(2) also
requires you to disseminate notice of material changes and keep the offer
open for certain
minimum periods after such notice (with withdrawal rights). Given these
requirements
for an early commencement offer, we are unclear how you can include
multiple take-up
dates on which you would purchase tendered Common Shares while the
Offer remains
open. Please revise or advise.
3. See our last comment above. Your revised prospectus disclosure should
clarify the
withdrawal rights in this Offer, including those provided pursuant to
Exchange Act
Section 14(d)(5).
4. To the extent that you intend an Offer extension to function as a
subsequent offering
period after a take up of tendered Common Shares, please confirm
that it will comply
with all of the provisions of Rule 14d-11(a) (f) and revise the
disclosure to clarify this.
5. This Offer includes a cash/stock election feature with a cap on both
forms of
consideration, and proration to the extent shareholder elections cannot
be satisfied.
Tendering shareholders elections will be offset against one another,
so that they may be
satisfied, to the greatest extent possible. However, the Offer materials
are unclear as to
how offsets of cash or stock elections will work with multiple
take-ups of tendered
Common Shares. For example, if Common Shares are tendered during the
initial deposit
period versus during an extension period, it is unclear what the
offset pools would be in
order to satisfy the elections of tendering holders. Please revise or
advise.
6. Throughout the prospectus, you refer to the June 7, 2021 expiration date,
but note that the
Offer period could be shortened. See for example, the disclosure in the
first full
paragraph on page 4. Changing the expiration date of a tender offer is
itself a material
change that would require prior notice to subject security holders
(including withdrawal
rights); an offer period cannot be terminated immediately simply because
all offer
conditions have been satisfied. See however, the guidance in Section
II.C.6 of Exchange
Act Release 58597 (2008) permitting early termination subject to certain
conditions.
Please revise or advise.
David Johansen, Esq.
White & Case L.L.P.
March 10, 2021
Page 3
7. Your disclosure states that even with a minimum tender condition above
50%, bidders
ability to eliminate remaining target security holders remains uncertain
below 90%.
Given this reality, which is considerably different than normal for a
U.S. target, revise the
prospectus generally to describe your plans for the combined entity at
levels below 90%
ownership, including where you are unable to squeeze out remaining
target security
holders in a second-step acquisition.
Acceptance of the Offer, page iii
8. We note the language here that the Offeror and its affiliates may make
purchases of
Common Shares outside the Offer during the Offer period. Please advise
how they may
do so, consistent with Rule 14e-5. We note that you have not checked the
box on the
facing page of the registration statement to indicate you are relying on
the cross-border
exemptions in connection with this Offer. If you believe you qualify for
an exemption
from Rule 14e-5 s prohibition on purchases outside of a tender offer,
please identify the
exemption claimed and describe the facts supporting your reliance on it.
In addition,
indicate in your response letter whether any such outside purchases have
occurred to date.
Glossary, page 10
9. Revise the definition of initial deposit period, which is very
unclear as worded. In
addition to revising for clarity, your amended definition should confirm
that this period
will extend for at least 20 U.S. business days, as defined in Rule
14d-1(g)(3).
Conditions of the Offer, page 28
10. When an offer condition is judged in the sole discretion or
sole judgment of the
bidders, the offer may be illusory and therefore in violation of
Regulation 14E. We do not
believe the language in the second to last paragraph of this section on
page 32
ameliorates these concerns. Revise each Offer condition that includes
such a standard.
11. Clarify what percentage of Common Shares must be tendered for the
Minimum Tender
Condition to be satisfied (due to the percentage held by Offeror Group
that you include in
the percentage that will make up the required 66 and 2/3%).
12. On page 31, clarify what you mean by a limitation on prices for
securities on the TSX.
13. On page 31, clarify what would constitute an extraordinary change
in the financial,
banking or capital markets for purposes of this condition. Quantify
what would
constitute such a change in the major stock exchange indices and
specify the reference
dates for measuring such a change.
14. Condition (i)(v) refers to any material change in currency exchange
rates or a
David Johansen, Esq.
White & Case L.L.P.
March 10, 2021
Page 4
suspension or limitation on the markets therefor. As worded, the
condition appears to be
triggered by fluctuations in ANY world currency and the change is
not quantified by
percentage or otherwise tied to the target s or Offeror s
operations. Please revise to avoid
raising illusory offer concerns under Regulation 14E.
15. Refer to the second sentence in the second to last paragraph in this
section on page 32.
Revise the language in the parenthetical which refers to action or
inaction by the Offeror.
All Offer conditions must be outside the control of bidders.
16. Condition (i)(vi) refers to any international calamity involving the
United States or
Canada, and condition (i)(vii) refers to any material worsening of a
pre-existing calamity.
Revise to clarify how the COVID pandemic would be treated under these
Offer
conditions.
17. Clarify what is meant by the following sentence on page 32: Each of
the foregoing
conditions is independent of and in addition to each other of such
conditions and may be
asserted irrespective of whether any other of such conditions may be
asserted in
connection with any particular event, occurrence or state of facts or
otherwise.
18. The language in the second to last paragraph in this section regarding
the Offeror s ability
to assert any of the Offer conditions at any time and from time
to time should be
revised to clarify that if an event triggers a listed Offer
condition, the Offeror must
promptly waive the condition and proceed with the Offer, or assert it to
terminate. It may
not wait until the end of the Offer period to do so, unless permitted by
the specific
language of the Offer condition itself.
Extension, Variation or Change in the Offer, page 32
19. See our comment above regarding your ability to abridge the length
of the Offer.
Please clarify what you mean, and how you would do so. We are aware that
in some
jurisdictions, a bidder may terminate withdrawal rights and begin
purchasing tendered
shares immediately upon satisfaction or waiver of all offer conditions.
We believe that
may be inconsistent with your obligations under U.S. law for an early
commencement
offer such as this one, where you are not relying on cross-border
exemptions. Please
revise or advise.
Take-Up and Payment for Deposited Common Shares, page 34
20. See our comments above. Clarify how tendered Shares would be paid for
during the
mandatory extension period (and the Optional Extension Period if there
is one), and
whether this period would function as a subsequent offering period.
Withdrawal of Deposited Common Shares, page 35
David Johansen, Esq.
White & Case L.L.P.
March 10, 2021
Page 5
21. See our comment above. Revise to note that you will additionally provide
the withdrawal
rights required by Section 14(d)(5) of the Exchange Act.
22. See our last comment above. Discuss whether tendering holders will have
withdrawal
rights pending receipt of any required regulatory approvals needed to
complete this Offer.
We remind you that the issuer is responsible for the accuracy and
adequacy of its
disclosures, notwithstanding any review, comments, action or absence of action
by the staff.
Please contact me at (202) 551-3263 with any questions about these comments.
Sincerely,
/s/ Christina Chalk
Christina Chalk
Senior Special Counsel
Office of Mergers and
Acquisitions