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United States securities and exchange commission logo
July 27, 2022
Veronica Lah
Partner
Manatt, Phelps & Phillips, LLP
2049 Century Park East
Suite 1700
Los Angeles, CA 90067
Re: Impac Mortgage
Holdings, Inc.
Form S-4
Filed July 15, 2022
File No. 333-266167
Dear Ms. Lah:
We have conducted a targeted review of your filing. Our review
was limited to the
matters identified in our comments below. 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 used here have the same meaning as in your prospectus.
Form S-4 filed on July 15, 2022
General
1. You state that
tendering security holders will receive cash, except if the issuance of cash
would violate the Cash
Consideration Restrictions, which you state later in the offer
materials is likely to
be the case. We have concerns about an offer structure in which
tendering security
holders will not know the form of consideration they will receive when
making their tender
decision. We note that this is not a cash/stock election offer, where
tendering holders can
opt to receive one form of consideration versus another. Even
where where their
ability to receive either form of offer consideration will be pro rated
based on the elections
of other tendering holders, a cash/stock election offer provides
some ability for
tendering holders to influence what they will receive. We have concerns
that the structure of
your offer is inconsistent with your basic disclosure obligations under
Veronica Lah
FirstName LastNameVeronica
Manatt, Phelps & Phillips, LLPLah
Comapany
July NameManatt, Phelps & Phillips, LLP
27, 2022
July 27,
Page 2 2022 Page 2
FirstName LastName
Item 4 of Schedule TO and Item 1004(a) of Regulation M-A. Please
revise or advise.
Your analysis should explain why you are including the possibility of
receiving cash in
the offer, when you state in the prospectus that you believe the
Company will be
prevented from issuing cash due to the Cash Consideration
Restrictions.
2. We note that motions for class certification are currently pending
before a court and if
granted, will result in an award of attorneys fees and costs. The
consideration to be paid
for tendered shares would be reduced by the amount of any attorneys
fees and costs
awarded. You state that where a motion has been filed but is not
decided before the
closing of the Exchange Offers, you may pay a portion of the Series B
Consideration and
Series B Remainder Consideration into an escrow account until all
claims relating to the
fees and costs motion have been adjudicated, at which point the
amounts in escrow will be
released on a pro rata basis to tendering security holders. Please
provide your analysis as
to how such a delay of payment for tendered shares is consistent with
your prompt
payment obligation under Rule 14e-1(c).
The Exchange Offers may be Terminated, Cancelled, or Delayed, page 31
3. We note the following statement that appears here and elsewhere in the
prospectus: "We
also reserve the right, notwithstanding the satisfaction of any
conditions to the Exchange
Offers, to terminate or amend the Exchange Offers." Reserving the
right to cancel or
terminate the Exchange Offers even if all offer conditions have been
satisfied raises
concerns that they are illusory offers in violation of the prohibition
on manipulative tender
offer practices in Exchange Act 14(e). Please revise.
Conditions of the Offers, page 82
4. Refer to the following assertion in this section of the prospectus:
"The failure by us to
exercise any of the foregoing rights will not be deemed a waiver of
any such right, and
each such right will be deemed a continuing right which may be
asserted at any time and
from time to time on or before the Expiration Date." Please revise. If
an offer condition
is "triggered" by events that occur on or before the Expiration Date,
you must promptly
advise security holders whether you will terminate the Exchange
Offers, or waive the
condition and proceed with them. You may not, as implied by this
disclosure, wait to
make that determination.
Veronica Lah
Manatt, Phelps & Phillips, LLP
July 27, 2022
Page 3
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 Michael Killoy at 202-551-7576 or
Christina Chalk at 202-
551-3263.
FirstName LastNameVeronica Lah Sincerely,
Comapany NameManatt, Phelps & Phillips, LLP
Division of
Corporation Finance
July 27, 2022 Page 3 Office of Mergers &
Acquisitions
FirstName LastName