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September 27, 2024
Michael Sutcliff
Chief Executive Officer and President
Thoughtworks Holding, Inc.
200 East Randolph Street, 25th Floor
Chicago, Illinois 60611
Re: Thoughtworks Holding, Inc.
Schedule 13E-3 filed September 3, 2024
File No. 5-93398
Preliminary Information Statement filed September 3, 2024
File No. 1-40812
Filed by Thoughtworks Holding, Inc., et al.
Dear Michael Sutcliff:
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; PREM14C filed September 3, 2024
General
1. We note the Schedule 13D filed on August 7, 2024, by Turing Equity Co.
II, LLP and
Apax IX G.P. Co, Ltd. The box on the cover page is checked to indicate
that the filers
previously filed a Schedule 13G and are filing a Schedule 13D under
Rules 13d-1(e), 13d-
1(f) or 13d-1(g). Since Apax submitted proposals to acquire the Company
as early
as March 16, 2023, please advise in your response letter why the
Schedule 13D was not
filed until August 2024.
2. Item 8 of Schedule 13E-3 and Item 1014(a) of Regulation M-A require the
Company to
state whether it believes that the Rule 13e-3 transaction is fair or
unfair to "unaffiliated
security holders," as defined in Exchange Act Rule 13e-3(a)(4). We note
your disclosure
in the introduction to Schedule 13E-3 and throughout the information
statement that the
September 27, 2024
Page 2
Company Board "determined that the Merger Agreement and the
Transactions, including
the Merger, are advisable, fair to and in the best interests of the
Company and the
Company s stockholders, including the Unaffiliated Stockholders"
(emphasis added). It
appears that the term "Unaffiliated Stockholders," as defined on page 26
of the
information statement, may include directors and officers of the Company
who are not
otherwise affiliated with Topco, Parent, Merger Sub, the Significant
Stockholder, the
Apax Entities, and the Management Rollover Stockholders, even though
those individuals
are considered affiliates of the Company under Rule 13e-3(a)(1). To the
extent the phrase
"Unaffiliated Stockholders" applies to such persons, disclosure
regarding the fairness
determination of the Company Board and other filing persons with respect
to the phrase
"Unaffiliated Stockholders" may not necessarily satisfy Item 8 of
Schedule 13E-3, and the
disclosure must speak strictly to fairness of the Merger to unaffiliated
security holders.
Please revise the introduction to Schedule 13E-3 and throughout the
information
statement to articulate whether the filing persons believe that the
Merger is fair to
unaffiliated security holders, or advise. In addition, to the extent you
continue to use
defined terms, please include their definition where first used in the
information
statement.
3. See comment above. We also note the use of the terms "Unaffiliated
Stockholders" and
"unaffiliated security holders," which seem to have different
definitions, in the
introduction to Schedule 13E-3 and throughout the information statement,
possibly
interchangeably while, in other parts, only one of them is used without
the other. In
addition, on page 6 of the information statement, you state the
following: "In its
evaluation of the fairness of the Transactions to the Unaffiliated
Stockholders, the Special
Committee considered the fairness of the Transactions to the Company s
'unaffiliated
security holders,' as such term is defined under Rule 13e-3 under the
Exchange Act, that
are also Unaffiliated Stockholders" (emphasis added). While
"unaffiliated security
holders," as defined under Rule 13e-3, may also be "Unaffiliated
Stockholders," the
opposite does not seem to be true. In this regard, to avoid confusion,
please revise
throughout the filings to clarify that the definitions of the two terms
are not identical and
remove the implication that they are comprised of the same persons,
and/or consider
consolidating the two terms for consistency.
4. We note your disclosure in Schedule 13E-3 that Item 12(d) is "[n]ot
applicable." In this
respect, please revise to disclose, to the extent not already discussed,
whether or not any
executive officer, director or affiliate of the Company (or any person
specified in
Instruction C to the schedule) currently intends to sell in the merger
subject
securities owned or held by that person. Refer to Item 1012(d) of
Regulation M-A.
5. We note the first use of the term "TSR" on page 4, and the first use of
the terms "Antitrust
Laws" and "FDI Laws" on page 7 of the information statement. Please
define the terms or
refer the shareholders to where the definitions of such terms are
located earlier in the
filing.
Special Factors, page 16
6. We note that a presentation by Lazard dated "June 4, 2024" is described
as one of the
attached exhibits on page 39. However, no summary is provided under this
section on
page 21 as to Lazard's presentation on that date. Please revise to
provide a reasonably
September 27, 2024
Page 3
detailed description of such presentation that satisfies the
requirements of Item 1015 of
Regulation M-A.
7. We note the following disclosure on page 25 and similar disclosure
throughout the
information statement: "The Lazard representatives then orally rendered
Lazard s opinion,
which was subsequently confirmed by delivery of its written opinion
dated August 4,
2024, that, as of such date, based upon and subject to the assumptions,
procedures,
factors, qualifications and limitations set forth in Lazard s written
opinion, the Per Share
Price to be paid to holders of Company Common Stock that is issued and
outstanding as of
immediately prior to the Effective Time (other than the Excluded
Holders) was fair, from
a financial point of view, to such holders of Company Common Stock"
(emphasis added).
We also note that, according to your disclosure on page 6, "Excluded
holders"
comprise of "holders of Owned Company Shares or Dissenting Company
Shares" and
"any direct or indirect securityholder, partner or member of Parent or
Merger Sub as of
the Effective Time." Thus, it appears that "holders of Company Common
Stock"
include certain affiliated security holders. Please address how any
filing person relying on
the Lazard opinion was able to reach the fairness determination as to
the unaffiliated
security holders given that the fairness opinion addressed fairness with
respect to
unaffiliated and certain affiliated security holders together, rather
than all security holders
unaffiliated with the Company. See also comments above regarding the
definitions of
"Unaffiliated Stockholders" and "unaffiliated security holders."
Special Factors, page 16
8. We note that Goldman Sachs served as the financial advisor to Apax
concerning this
transaction and participated in the negotiations leading up to this
going-private
transaction. Note that any reports (whether oral or written) provided by
Goldman to any
filing party that are materially related to this going-private
transaction must be
summarized in considerable detail in the Information Statement. See Item
9 of Schedule
13E-3. Any written materials should be filed as an exhibit to the
Schedule 13E-3. Finally,
the information required by Item 1015(b) of Regulation M-A should be
provided as to
Goldman. Please revise or advise.
Recommendation of the Company Board; Reasons for the Merger, page 29
9. Refer to the disclosure at the bottom of page 29. Revise to clarify that
the factors listed
include all material factors considered by the Board in reaching its
fairness determination.
The current disclosure indicates that "the Company Board considered a
number of factors,
including the following material factors that weighed in favor of the
Merger, which are
not intended to be exhaustive . . . ."
10. Refer to the following disclosure at the bottom of page 30: "The Company
Board, on
behalf of the Company, believes, based on the factors described in this
Information
Statement, that the Merger is fair to the Company's 'unaffiliated
security holders.' as such
term is defined in Rule 13e-3 under the Exchange Act." See our comment
above regarding
the need to standardize the use of the term "unaffiliated security
holders" as used
throughout the information statement. In addition, revise the vague
reference "the factors
described in this Information Statement" to specify which factors are
referenced.
Summary of Lazard Financial Analysis, page 33
September 27, 2024
Page 4
11. Many of the analyses performed by Lazard and described in this section
yielded a per
share value for the Shares in excess of the Per Share Price of $4.40
being paid in the
Merger. For example, the discounted cash flow analyses performed using
both the April
and June Forecasts provided by management resulted in an imputed value
range in excess
of $4.40, as did the minority squeeze-out premiums paid analysis and the
technology and
IT services premia paid analysis. Please expand the discussion here to
explain how Lazard
arrived at its fairness determination by weighting certain analyses over
others.
Other Presentations by Lazard, page 38
12. Please confirm whether or not Lazard has expressly provided written
permission for their
presentations to be provided in the information statement and Schedule
13E-3, given the
disclaimer language in the presentations stating, among other things,
that "[t]hese
materials and the information contained herein are confidential and may
not be disclosed
publicly or made available to third parties without the prior written
consent of Lazard."
13. Please confirm in your response letter whether the bullet points on
pages 39 and 40
includes details as to all of the presentations presented to the Special
Committee by
Lazard with the correct respective dates. For example, the last four
bullet points on page
39 reflects four dates in June 2024 when materials were presented to the
Special
Committee: June 4, 2024, June 10, 2024, June 18, 2024, and June 19,
2024. However, we
note that total of five presentations dated "June 2024" have been
attached as Exhibits
(c)(12)-(16). Similarly, while one date of August 1, 2024, is provided
in the second bullet
point on page 40, we note that two presentations dated "August 2024"
have been attached
as Exhibits (c)(18)-(19).
14. For each of the presentations listed, please include any per share
valuations yielded by
Lazard's analyses.
Certain Company Financial Forecasts, page 40
15. Revise to describe the "other relevant factors relating to the Company's
strategic plan"
that form the basis of the assumptions underlying the forecasts. In
addition, summarize
the assumptions and limitations which form the basis for the forecasts.
See, for example,
the list of factors that appear on page 10 of the Lazard presentation
materials included as
Exhibit (c)(vii) to the Schedule 13E-3.
Position of the Apax Entities and Designated Executives in Connection with the
Merger, page 44
16. We note your disclosure on page 44 and elsewhere, including pages 48-49,
that the Apax
Entities and Designated Executives "may be deemed to be affiliates of
the Company."
Given the filing persons' determination to file a Schedule 13E-3, it is
inappropriate to
disclaim the underlying conclusions reached by each such filing person
in making the
filing. Please revise.
Position of the Company in Connection with the Merger, page 44
17. We note the following disclosure: "The Company did not receive any firm
offers relating
to a potential transaction other than the proposed Merger." On page 31,
however, you
state that "The Special Committee and the Company Board are not aware of
any firm
offer by any other person apart from affiliates of Apax during the prior
two years for a
September 27, 2024
Page 5
merger or consolidation of the Company with another company, . . ."
(emphasis added).
Please revise.
Purposes and Reasons for the Apax Entities in Connection with the Merger, page
49
18. Refer to the following sentence in the second paragraph: "The Apax
Entities believe that,
as a private company, the Company will be able to improve its ability
to execute
initiatives that it cannot execute as a public company, which, over
time, will create
additional enterprise value for the Company." Please revise to describe
such "initiatives
that [the Company] cannot execute as a public company."
19. Refer to the last sentence under this section. Please revise to specify
the Apax Entities'
reasons for undertaking the transaction at this time, as opposed to any
other time. Refer to
Item 1013(c) of Regulation M-A.
Other Arrangements, page 56
20. We note the following disclosure: "As of the date of this Information
Statement,
preliminary discussions with respect to certain such new agreements,
arrangements or
understandings have occurred." Note that entering into agreements with
existing affiliates,
such as Company directors, regarding future compensation may render
such affiliates
parties engaged in this going private transaction. Please confirm your
understanding in
your response letter.
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 Eddie Kim at 202-679-6943 or Christina
Chalk at 202-551-
3263.
Sincerely,
Division of
Corporation Finance
Office of Mergers
& Acquisitions