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October 18, 2004
Via Facsimile (212) 450-3800 and U.S. Mail
Dennis S. Hersch, Esq.
David L. Caplan, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Re: Limited Brands, Inc.
Schedule TO-C filed October 7, 2004
Schedule TO-I filed October 7, 2004
Schedule TO-I/A filed October 12, 2004
File No. 5-33912
Dear Messrs. Hersch & Caplan:
We have the following comments on the above-referenced
filings.
Schedule TO-C
1. We note the company`s references to the safe harbor "under the
Private Securities Litigation Reform Act of 1995" in the various
materials filed under cover of Schedule TO-C, including the press
release dated October 6, 2004, and the transcript of the September
sales call. We remind you that the safe harbor protections for
forward-looking statements contained in the federal securities
laws do not apply to statements made in connection with a tender offer.
See Section 21E(b)(2)(C) of the Securities Exchange Act of 1934
and Regulation M-A telephone interpretation M.2 available at
www.sec.gov in the July 2001 Supplement to the Division of Corporation
Finance`s Manual of Publicly Available Telephone Interpretations. Please do
not refer to the safe harbor provisions in any future press
releases or other communications relating to this tender offer.
Schedule TO-I
Offer to Purchase
2. Wherever you recommend that security holders check the box
captioned "Shares Tendered at Price Determined Pursuant to the
Tender Offer" to maximize the chance that their shares will be purchased,
revise to include disclosure which explains that this feature may
have the effect of decreasing the offer price because such
tendered shares will effectively be considered available for purchase at
the minimum price within the range you have set.
3. We reference your discussion of the $500 million special
dividend you intend to declare following the completion of the tender
offer. Disclose the estimated per share amount or range of amounts of the
special dividend assuming maximum participation in the tender
offer, to the extent practicable, so that security holders may be better
able to evaluate their alternatives.
Forward-Looking Statements, page 7
4. You indicate that you undertake no obligation to update or
revise the forward-looking statements contained in or incorporated by
reference in your offer document. This statement seems
inconsistent with your obligations to revise the offer materials to reflect any
material changes in the information disseminated to security
holders. See Rule 13e-4(e)(3). Please revise or delete.
Purpose of the Tender Offer; Certain Effects of the Tender Offer,
page 13
5. We note that the offer is subject to the condition that the
company will remain listed on the NYSE and not be eligible for
deregistration under the Exchange Act. However, we also note
under "Certain Effects of the Tender Offer" that the company may engage
in possible future purchases of additional shares of common stock.
Please be advised that this tender offer and any of the additional
transactions may constitute the first steps in a future going
private transaction. See Rule 13e-3(a)(3).
Conditions of the Tender Offer, page 22
6. The first paragraph of this section contains language
suggesting that once a condition is triggered, the offeror may decide in its
reasonable judgment whether it is advisable to proceed with the
offer. Please note that when a condition is triggered and an
offeror decides to proceed with the offer anyway, we believe that this
constitutes a waiver of the triggered condition. The company may
not rely on this language to tacitly waive a condition of the offer by
failing to expressly assert it. Please confirm your understanding
on a supplemental basis.
7. We note that the financing condition remains unsatisfied.
Please confirm your understanding that at least five business days must
remain in the offer after the financing condition has been waived
or satisfied, and the Schedule TO must be appropriately amended to
disclose the material change. Refer to Exchange Act Release No.
34-24296 (April 3, 1987) for guidance.
Certain Information Concerning Us, page 25
8. Despite your attempt to incorporate by reference any additional
documents filed with the Commission from the date of this offer
until it expires, Schedule TO does not permit such "forward"
incorporation by reference. If the information provided to security holders in
the Offer to Purchase materially changes, you are under an obligation
to amend the Schedule TO to update it and to disseminate the new
information to holders in a manner reasonably calculated to inform
them about the change. Please revise the disclosure accordingly.
Extension of the Tender Offer; Termination; Amendment, page 39
9. Your disclosure indicates that you will make a public
announcement by issuing a press release to PR Newswire or another comparable
service. Please be aware that depending on the materiality of the
change in the terms of the offer, a public announcement by issuing
a press release through PR Newswire may not by itself satisfy your
obligations under Rule 13e-4(e)(3).
10. Refer to your discussion relating to material changes and your
obligation to extend the exchange offer. Revise to state that you
are generally required to extend the offering period for any
material change, including the waiver of a material condition, so at least
five business days remain in the offer after the change.
Closing Information
Please amend your filing promptly to comply with our
comments. If you do not agree with a comment, then tell us why in your
response. If the information you provide in response to our
comments materially changes the information that you have already provided
to security holders, disseminate the revised materials in a manner
reasonably calculated to inform them of the new information.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be certain that they have provided all information investors require.
Since the company and its management are in possession of all
facts relating to a company`s disclosure, they are responsible for the
accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please
provide, in writing, a statement from the company acknowledging that:
* the company is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the company may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement has access to all information you provide to the staff of the
Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
Direct any questions to me at (202) 942-1797. You may also
contact me via facsimile at (202) 942-9638. Please send all
correspondence to us at the following ZIP code: 20549-0303.
Sincerely,
Michele M. Anderson
Special Counsel
Office of Mergers and
Acquisitions