United States securities and exchange commission logo
October 19, 2023
Jeanette L. Knudsen
Chief Legal Officer and Secretary
Hostess Brands, Inc.
The J.M Smucker Company, Inc.
One Strawberry Lane
Orrville, OH 46667
Re: Hostess Brands,
Inc.
Schedule TO-T filed
by The J.M. Smucker Company
Filed October 10,
2023
SEC File No.
5-88982
Dear Jeanette L. Knudsen:
We have conducted a review of your filings and have the
following comments. The
comments below reference disclosure appearing in the Form S-4 filed by
The J.M. Smucker
Company. 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.
All defined terms have the same meaning as in the prospectus.
Schedule TO-T filed 10-10-2023
Cover Page
1. The cover page of your
Schedule TO includes a check box for offsetting filing fees and
related captions. This
is not included in the current version of Schedule TO and should be
removed in future
filings.
Background of the Offer and Merger
2. On page 36 of the
prospectus/offer to purchase, you reference a report provided by
Smucker's financial
advisor, RBCCM, on September 10, 2023 in which RBCMM
provided an update on
the status of negotiations and discussed "certain financial aspects"
of the proposed
transaction: "Later in the afternoon of September 10, 2023, the Smucker
Jeanette L. Knudsen
FirstName LastNameJeanette L. Knudsen
Hostess Brands, Inc.
Comapany
October 19,NameHostess
2023 Brands, Inc.
October
Page 2 19, 2023 Page 2
FirstName LastName
board held a meeting at which the Smucker ELT, representatives of
RBCCM and
representatives of Wachtell Lipton provided an update on the status of
discussions with
Hostess Brands and its advisors with respect to the proposed
acquisition. The Smucker
board reviewed the material terms and conditions of the proposed
transaction. RBCCM
discussed with the Smucker board certain financial aspects of the
proposed transaction..."
Please provide the disclosure required by Item 1015(b) of Regulation
M-A with respect to
RBCMM and its report or opinion. See Item 4(b) of Form S-4.
Conditions to the Offer
3. The first sentence of this section on page 64 refers to Smucker s
and the Offeror s rights
to extend, amend or terminate the offer in accordance with the terms
and conditions of the
merger agreement All offer conditions should be expressly
described here. Please
revise or advise.
4. Refer to the disclosure in the last paragraph in this section on page
65. All offer
conditions must be objective and outside the control of the bidder to
avoid implicating
Regulation 14E s prohibition on illusory offers. Please revise the
following language
which implies that Smucker or the Offeror may assert an offer
condition to terminate the
offer due to their own action or inaction: regardless of the
circumstances giving rise to
any such condition. See Q&A 101.02 in the Compliance and Disclosure
Interpretations
under Tender Offer Rules and Schedules (March 17, 2023)
available on our website at
www.sec.gov.
Source and Amount of Funds or Other Consideration
5. We note your reference to commitments obtained pursuant to a bridge
loan facility and a
$800 million three-year unsecured term loan agreement. Neither the
bridge loan facility
nor the unsecured term loan agreement appears to be described in the
prospectus/offer to
purchase. Please revise your disclosure to include the information
required by Item 7 of
Schedule TO and Item 1007(d) of Regulation M-A.
6. Disclose the existence of any alternative financing plans or
arrangements in the event
Smucker does not have the necessary funds to pay the offer
consideration and related fees
and expenses. If there are none, so state. Refer to Item 1007(b) of
Regulation M-A.
7. The second paragraph under the section Source and Amount of Funds
on p. 67 of
Smucker s prospectus/offer to exchange states: Hostess Brands
anticipates the funds
needed to complete the transactions will be derived from (i) available
cash on hand, (ii)
proceeds from the sales of marketable securities on hand, and (iii)
new third-party debt
financing. Please revise to clarify that Smucker is the party that
expects to provide this
financing, or advise.
Opinion of Financial Advisor to the Hostess Brands Board
8. We note the disclosure here that Morgan Stanley found that the offer
is fair from a
Jeanette L. Knudsen
Hostess Brands, Inc.
October 19, 2023
Page 3
financial point of view to the holders of Hostess Brands common stock.
Since some of the
consideration offered consists of Smuckers common stock, clarify what
dollar value
Morgan Stanley ascribed to the share consideration component of the
offer in making its
fairness determination. If it did not ascribe a specific dollar value
to the share
consideration portion of the offer, so state.
Certain Hostess Brands Management Projections
9. Expand to summarize with additional specificity the assumptions and
limitations
underlying the projections disclosed. Current disclosure is vague:
The Projections,
while presented with numerical specificity, necessarily were based on
numerous variables,
assumptions and judgments, including, but not limited to, those
relating to general
business, economic, competitive, market and financial conditions and
other future events,
as well as matters specific to Hostess Brands business, all of
which are difficult to predict
and many of which are beyond Hostess Brands control.
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 Laura McKenzie at 202-551-6001 or
Christina Chalk at
202-551-3263.
FirstName LastNameJeanette L. Knudsen Sincerely,
Comapany NameHostess Brands, Inc.
Division of
Corporation Finance
October 19, 2023 Page 3 Office of
Mergers & Acquisitions
FirstName LastName