United States securities and exchange commission logo
March 1, 2022
Andris Vizbaras
Carter, Ledyard & Millburn LLP
Optibase Ltd
2 Wall Street
NY, NY 10005
Re: Optibase Ltd.
Schedule 13E-3 and
Schedule TO-T filed February 23, 2022
Schedule TO-T/A
filed February 18, 2022
Schedule TO-T filed
February 15, 2022
Filed by The Capri
Foundation and Shlomo Wyler
Dear Mr. Vizbaras:
We have reviewed your filing and have the following comments. In
some of our
comments, we may ask you to provide us with information so we may better
understand your
disclosure.
Please respond to these comments by providing the requested
information or advise us as
soon as possible when you will respond. If you do not believe our
comments apply to your facts
and circumstances, please tell us why in your response.
After reviewing your
response to these comments, we may have additional comments.
Schedule 13E-3 and TO-T/A filed February 23, 2022
Evaluation and Financial Analysis of Capri's Financial Advisor, page 16
1. If MNS Consulting's fee
was increased as a result of its second evaluation of the
revised offer
consideration, please revise here to describe. See Item 1015(b)(4) of
Regulation M-A.
Summary of Financial Analysis, page 18
2. In the first paragraph
of this section, you state that the discussion that follows "does not
purport to be a
complete description of the financial analyses performed by MNS
Consulting." Revise
this language (and the subsequent discussion if applicable) to make
clear that all material
analyses are described in considerable detail. In this regard, expand
this section to
describe the analyses performed by MNS Consulting, and the results
yielded, including the
per share valuations that resulted from each analysis. See Item
Andris Vizbaras
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Optibase Ltd
Comapany
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1015(b)(6) of Regulation M-A.
3. See our last comment. With respect to the analysis of the market
capitalization of
Optibase, revise to specify the dates or ranges of dates for Optibase
shares considered and
to explain how MNS concluded that the company's market capitalization
over the relevant
time period was consistent with its net asset valuation for Optibase
(see page 19).
4. The Property Valuations by Wuest Partner AG that formed part of the
basis for MNS
Consulting's analysis should be filed as exhibits to the Schedule
13E-3. See Item 1016(c)
of Regulation M-A.
5. Refer to page 19. Quantify Optibase's tax liabilities and tax loss
carry-forwards and
describe how MNS Consulting considered them in its fairness analysis.
6. On page 19, explain why MNS Consulting applied a discount rate of 4.5%
to general and
administrative expenses of Optibase.
Withdrawal Rights, page 25
7. Under Section 14(d)(5) of the Exchange Act, tendered shares may be
withdrawn if not
accepted for payment by the 60th day from commencement of the offer.
Please revise to
note the existence of such "back end" withdrawal rights in this offer.
Price Range of the Shares, page 31
8. We note the disclosure here that Optibase has announced it intends to
delist its shares
from trading on the TASE in April 2022. If delisting will trigger a
mandatory tender offer
or otherwise allow remaining Optibase shareholders to "put" their
shares to the company
for repurchase, this fact should be prominently disclosed at the
forepart of the offer to
purchase. Such disclosure should note how the price per share to be
paid upon repurchase
would be calculated. In addition, if such right exists, describe how
the filing persons on
the Schedule 13E-3 considered it in opining on the fairness of the
offer to unaffiliated
shareholders of Optibase.
Conditions of the Offer, page 39
9. Refer to paragraph (b) on page 40. The disclosure here states that you
may terminate the
offer if an event occurs "and such 'event' would cause the terms of
the offer as a result of
such 'event' to become materially different from the terms which a
reasonable person in
the offeror's position would have proposed had it known of such
'event' on the date of this
offer to purchase." While a bidder may condition its offer on any
conditions it chooses,
those conditions must be objective and outside the control of the
bidder. We believe this
offer condition, which requires a shareholder to speculate about what
the offeror would
have proposed and might have known, may render this offer illusory. It
is also unclear
how an event could change the terms of the offer. Please revise.
10. Under paragraph (b) on page 40, there appears to be some words missing
from the third
Andris Vizbaras
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Optibase Ltd
Comapany
March NameOptibase Ltd
1, 2022
March3 1, 2022 Page 3
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bullet point. In addition, an offer condition triggered by any change,
whether positive or
negative, in the "business, assets, liabilities, conditions (financial
or otherwise), prospects
or results of operations of Optibase" is so broad that it raises
concerns of an illusory offer
in contravention of Regulation 14E. Please revise.
11. Refer to the disclosure on page 41 and the statement that "[o]ur
failure at any time to
exercise any of the foregoing rights shall not be deemed a waiver of
such right and each
such right shall be deemed an ongoing right that may be asserted at
any time and from
time to time..." If a listed offer condition is "triggered," the
bidder must promptly advise
shareholders whether it will assert the condition and terminate the
offer, or waive the
condition and continue or consummate it. The quoted language also
appears to be
inconsistent with the following sentence in the same paragraph: "If we
proceed with the
offer after failing to exercise any of the foregoing rights, this will
be deemed a waiver of
such rights..." Bidder may not ignore the condition when triggered and
then assert it
later. Please revise the quoted language accordingly.
Schedule I, page I-1
12. In the body of the offer to purchase and this schedule, expand the
description of the
consulting services provided to Optibase by Mr. Schwarz, including the
compensation he
receives. See Item 1005 of Regulation M-A.
General
13. Please explain why you have not included Rouven Schwartz as a filing
person on the
Schedule 13E-3. We note that Mr. Schwartz is a member of the board of
trustees of The
Capri Foundation, and also a member of the board of directors of
Optibase. He is also the
son-in-law of filing person and control person of Optibase Shlomo
(Tom) Wyler. The
Capri Foundation is a foundation for the benefit of Mr. Wyler's
children, one of whom
appears to be married to Mr. Schwartz.
14. In several places in the offer to purchase, you note that shareholders
who do not tender
into the offer may have their shares purchased in a subsequent
compulsory acquisition, if
the offer is consummated. Expand the description of the compulsory
acquisition process,
including the approximate time frame and the procedure by which the
price paid in such a
second-step acquisition would be calculated (and by whom).
15. If the offerors are restricted under Israeli law in their ability to
acquire additional Optibase
shares except through an offer for all outstanding shares if this
offer fails (as suggested in
the Schedule 14D-9 filed by the company), these restrictions should be
described in
the offer to purchase.
16. In an appropriate section of the offer to purchase, describe the
material terms of the bidder
group's Indemnification Agreement with officers and directors of
Optibase.
Andris Vizbaras
Optibase Ltd
March 1, 2022
Page 4
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 Christina Chalk at (202) 551-3263.
FirstName LastNameAndris Vizbaras Sincerely,
Comapany NameOptibase Ltd
Division of
Corporation Finance
March 1, 2022 Page 4 Office of Mergers
& Acquisitions
FirstName LastName