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U.S. Securities and Exchange Commission

Securities Exchange Act of 1934
Rules 13e-4(d)(1), 13e-4(e)(3), 13e-4(f)(1)(ii) and 14e-1(b)

May 13, 2015

Response of the Office of Mergers and Acquisitions
Division of Corporation Finance


Danaher Corporation
Incoming letter dated May 13, 2015

Via E-mail
Thomas W. Greenberg
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522

Re: Danaher Corporation - Exchange Offer

Dear Mr. Greenberg:

We are responding to your letter dated May 13, 2015, addressed to Michele M. Anderson, Perry J. Hindin and Tiffany Piland Posil, as supplemented by telephone conversations with us, in regard to Danaher's request for no-action relief. To avoid having to recite or summarize the facts set forth in your letter, our response letter is attached to the enclosed copy of your letter. Unless otherwise noted, capitalized terms in this response letter have the same meaning as in your letter.

On the basis of the representations and the facts presented in your letter, the staff of the Division of Corporation Finance will not recommend that the Commission take enforcement action under Rules 13e-4(d)(1), 13e-4(e)(3), 13e-4(f)(1)(ii) or 14e-1(b) under the Securities Exchange Act of 1934 if Danaher conducts the Exchange Offer in the manner described in your letter. In issuing this no-action position, we considered the following facts, among others:

  • Danaher will be disclosing a specified dollar value of Newco Common Units (which will be converted into the right to receive NetScout Common Stock in the First Merger based on a one for one merger conversion ratio) that tendering Danaher security holders will receive in exchange for a fixed dollar value of tendered Danaher Common Stock;
  • The formula for determining the number of Newco Common Units to be received in exchange for shares of Danaher Common Stock will be disclosed in the tender offer materials disseminated to security holders, the formula will remain fixed throughout the duration of the Exchange Offer and, if there is a change in the formula, the Exchange Offer will remain open for at least 10 business days thereafter;
  • The Exchange Offer will be extended for two business days if the final exchange ratio is fixed at the upper limit (as described in your letter) thereby providing Danaher security holders with up to two additional business days during which to tender or withdraw their shares;
  • Danaher will publish on a website maintained for the Exchange Offer the daily indicative calculated per-share values and exchange ratios and will provide a toll-free number that Danaher security holders can use to obtain Exchange Offer pricing-related information;
  • Danaher Common Stock is listed on the New York Stock Exchange and NetScout Common Stock is listed on the NASDAQ Global Market, thereby providing security holders with readily observable trading prices and Danaher with trading information to be used in calculating indicative exchange ratios;
  • Danaher will publish the final exchange ratio on the Exchange Offer website and in a press release no later than 4:30 p.m., New York City time, on the expiration date of the Exchange Offer and Danaher will file an amendment to its Schedule TO on the same date setting forth the same information; and
  • Danaher will make available forms of notice of guaranteed delivery and notice of withdrawal both in printed materials and on the Exchange Offer website, will permit tenders and withdrawals to be made until 12:00 midnight, New York City time, on the expiration date of the Exchange Offer, and will disclose the procedures for making tenders and withdrawals, including the times and methods by which tenders and withdrawals must be made, in the tender offer materials.

The foregoing no-action positions are based solely on the representations and the facts presented in your letter dated May 13, 2015, as supplemented by telephone conversations with the Commission staff. This relief is strictly limited to the application of the rules listed above to the Exchange Offer. Danaher should discontinue the Exchange Offer pending further consultations with the staff if any of the facts or representations set forth in your letter change.

We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Sections 9(a), 10(b) and 14(e) of the Exchange Act and Rules 10b-5 and 14e-3 thereunder. Responsibility for compliance with these and any other applicable provisions of the federal securities laws rests with the participants in the Exchange Offer. The Division of Corporation Finance expresses no view with respect to any other questions that the Exchange Offer may raise, including, but not limited to, the adequacy of the disclosure concerning, and the applicability of any other federal or state laws to, the Exchange Offer.


For the Division of Corporation Finance,

/s/ Michele M. Anderson

Michele M. Anderson
Chief, Office of Mergers and Acquisitions

Incoming Letter:

The Incoming Letter is in Acrobat format.


Modified: 05/15/2015