April 11, 2005
Julia A. Davis
General Counsel
DSW Inc.
3241 Westerville Road
Columbus, Ohio 43224
Re: DSW Inc.
Form S-1 filed March 14, 2005
File No. 333-123289
Dear Ms. Davis:
We have reviewed your filing and have the following
comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
General
On March 15, 2005, Retail Ventures, Inc. issued a press release
regarding your initial public offering that you have posted on
your
website. The press release included information in addition to
that
permitted by Rule 134 under the Securities Act. Please advise us
how
this press release is consistent with Section 5 of the Securities
Act
and how you intend to address this situation. 1.
In connection with the separation of DSW from Retail Ventures, you
disclose that the Value City Term Loan Facility will be amended by
changing the terms of the warrants to grant holders either the
right
to acquire Retail Ventures shares or DSW shares. Also, in
connection
with the amendment of the Value City Senior Subordinated
Convertible
Facility, Retail Ventures has agreed to issue convertible warrants
giving the holders the right either to acquire Retail Ventures
shares
or DSW shares. Please advise us of the exemption from
registration
that will be relied upon to amend the terms of the warrants and to
issue new warrants following the filing of this registration
statement.2.
3. We note a number of blank spaces throughout your registration
statement for information that you are not entitled to omit under
Rule 430A, such as the anticipated price range and beneficial
ownership information. Please note that we may have additional
comments once you have provided this disclosure. Therefore,
please
allow us sufficient time to review your complete disclosure prior
to
any distribution of preliminary prospectuses.
4. Provide us with copies of any artwork you intend to use as soon
as
possible for our review and comment. Please keep in mind that we
may
have comments on these materials and you should consider waiting
for
these comments before printing and circulating any artwork.
Summary, page 1
5. Revise the first paragraph to clarify this summary highlights
the
"material" information regarding the offering.
6. The summary is intended to provide a brief overview of the key
aspects of the offering. Your summary is too long and repeats
much
of the information fully discussed in your business section.
Please
revise to eliminate the competitive strengths and growth strategy
sections since that information is more appropriately discussed in
the complete business section. The summary is only intended to
provide a brief snapshot of the offering. See Instruction to Item
503 (a) of Regulation S-K.
7. Please avoid reliance on defined terms like those in the second
introductory paragraph to your summary. The meanings of the terms
you use should be clear from context. If they are, you do not
need
the definitions. If they are not, you should revise to use terms
that are clear. Please see Updated Staff Legal Bulletin No. 7
(June
7, 1999) sample comment 5.
Risk Factors, page 10
8. Please revise your risk factors to eliminate language like "we
cannot predict with certainty" or "we cannot assure you." For
example, we note the risk factor on page 10, "We may be unable to
open all the stores contemplated by our growth . . .," and the
risk
factor on page 12, "We rely on a single distribution center . . .
.."
The real risk is the circumstances you describe, not your
inability
to give assurances or predict with certainty.
In order for investors to better understand the magnitude of the
risk
involved, please quantify to the extent practicable the cost
associated with the opening of each new store ("We intend to open
new
DSW stores at an increased rate . . .," page 10) and your reliance
on
foreign sources of production ("We rely on foreign sources of
production for our merchandise . . .," page 14).9.
Please remove from your risk factors language that mitigates the
risk
you describe. For example, on page 12 in your discussion of the
risks of relying on a single distribution center, you indicate
"[a]lthough [you] believe that [y]our receiving and distribution
process and infrastructure will support [y]our anticipated growth
in
2005," you may need to increase distribution capacity. Please
review
your risk factors to eliminate mitigating language.10.
We face significant security risks . . ., page 15
Please revise this risk factor caption to refer specifically to
the
March 2005 theft of credit card and other purchase information.11.
After this offering, Retail Ventures and SSC . . ., page 16
12. Please revise the risk factor caption to indicate that Retail
Ventures and SSC may compete directly against you following the
initial public offering.
Some of our directors and officers may also serve as directors or
officers . . ., page 17
13. Please revise to identify any DSW officer or director who
currently serves as an officer or director of Retail Ventures.
Use of Proceeds, page 23
14. Revise to quantify the approximate amount of proceeds intended
to
be used for each purpose articulated. See Item 504 of Regulation
S-
K. Also, disclose the current rate of interest related to the
note.
Unaudited Pro Forma Condensed Consolidated Statement of Income,
pages
28 and 29
15. Supplementally tell us in greater detail how you factually
support the estimate of incremental costs associated with the
operation of DSW as a separate entity. Unless your estimate is
based
on firm contractual employment agreements, shared services
agreement,
etc. for all costs included in your assumptions we believe that
disclosure would more appropriately be reflected in a note to the
pro-forma financial statements as forward-looking information for
the
reader rather than as a pro forma adjustment. Please advise or
revise.
Management`s Discussion and Analysis of Financial Condition and
Results of Operations, page 33
Please discuss whether you expect revenues, operating expenses,
etc.
to increase, decrease, or remain constant, and explain why.
Similarly, please identify and discuss any industry trends or
uncertainties that will impact your revenues, costs, etc. For
example, we note that net sales per average gross square foot have
declined since 2002. Please discuss the reasons for the decreases
and whether you expect these decreases to have a negative effect
on
revenues.16.
17. When citing multiple reasons for an increase or decrease in
your
results of operations, please quantify each to the extent
practicable. For instance, when explaining the increase in net
sales
for the thirty-nine weeks ended October 30, 2004, please
separately
quantify the amount of the increase associated with the increased
number of stores.
Separation Agreements, page 35
Here or in your full discussion of these agreements, clarify which
of
the shared services you expect to be provided for a longer or
shorter
period than the initial term of the Shared Services Agreement.18.
19. You state that you intend to enter into a new secured
revolving
credit facility, and your disclosure discusses the expected terms
of
the proposed credit facility. Please provide updated and detailed
disclosure to provide more certainty about the credit facility
once
more information is available, and file the corresponding
documents
once the terms have been finalized. In that description, include
disclosure of the covenants with which you must comply. Include
prominent risk factor disclosure regarding any remaining
uncertainty.
Similarly, please continue to update the disclosure regarding your
board composition and the separation agreements.
Liquidity and Capital Resources, page 42
20. Please revise your filing to discuss, with specificity, the
total
amount of store expansion costs anticipated for 2005-2009 and how
the
company intends to finance the costs associated with the planned
opening of 150 stores. Based on disclosures elsewhere in your
filing, it appears that the total cost of your proposed expansion
would be $255 million on the basis of $1.7 million for each store
opening. Our estimate does not contemplate the additional capital
requirements likely required to expand distribution capacity to
service the additional stores you plan to open. Please refer to
Item
303 of Regulation S-K for guidance.
Contractual Obligations, page 46
21. We note in Footnote 3 that store lease terms generally require
additional payments to the landlord covering real estate taxes,
maintenance, and insurance. We also note that you have excluded
these items from the table of contractual obligations. Please
include a note to the table to specify that the operating lease
obligations figure does not include these amounts, if material.
Provide a context for the reader to understand the impact of these
charges on your total operating lease obligations. See Item
303(a)(5) of Regulation S-K.
Business, page 49
22. Please provide support for your statements of leadership. For
example, we note the statement on page 49 that you are a "leading
specialty brand footwear retailer" and on page 50 in the "The
Breadth
of Our Product Offerings" section that you "believe that [y]our
typical store offers the largest selection of brand name and
designer
merchandise."
Industry Overview and Competition, page 57
23. Please provide brief background information regarding NPD
Fashionworld. Also, provide support for the industry statistics
cited in this section. Tell us whether the information you cite
from
these reports is publicly available? If not, you should obtain
appropriate consent to cite these reports in your filing.
Intellectual Property, page 58
24. Please list the duration of your material trademarks and
service
marks.
Legal Proceedings, page 59
25. Please include all of the information required by Item 103 of
Regulation S-K when describing material legal proceedings. For
example, with respect to the class action, you should identify the
name of the court in which the proceedings are pending, the date
instituted and the parties to the litigation.
Summary Compensation Table, page 65
26. Please tell us why you believe it is appropriate to include
one
year of compensation disclosure for DSW`s executive officers under
Item 402 of Regulation S-K. Please address each of the items
considered in Item 402 interpretation 3S in the First Supplement
to
the Manual of Publicly Available Telephone Interpretations (March
1999).
Employment Agreements, page 72
27. Please discuss the full terms of the employment agreements
with
your officers. We note, for example, that the employment with Ms.
Ferree does not specify the minimum annual increases to her base
salary. Please specify the "certain personal benefits" that Ms.
Ferree will receive.
Certain Relationships and Related Party Transactions, page 76
28. Please discuss the dollar amount of the various related-party
transactions you have disclosed. For instance, we note the
agreement
with Filene`s basement for atrium space and Union Station store
guaranty discussed on page 83.
Tax Separation Agreement, page 78
29. Please disclose the circumstances under which you will have to
right to review and comment on pro forma tax returns.
30. We note that DSW will be responsible for 50% of the costs
associated with maintaining the Retail Ventures tax department.
Please disclose the amount of Retail Ventures` business that DSW
represents relative to the amount of tax costs for which it will
be
responsible.
Principal Shareholders, page 87
Please identify the beneficial owners that have the ultimate
voting
or investment control over the shares of Schottenstein Stores
Corporation, Cerberus Partners L.P. and Back Bay Capital Funding
LLC
listed in the beneficial ownership table. 31.
Certain U.S. Federal Income and Estate Tax Considerations, page 98
32. Please revise the heading "Certain U.S. Federal Income and
Estate
Tax Considerations" and the first paragraph on page 98 to indicate
that you have described the material U.S. federal income tax
consequences.
33. We note that you intend to file an opinion of counsel
regarding
"certain tax matters." Please identify counsel in this disclosure
and provide this opinion at your earliest convenience.
Underwriting, page 100
34. Please tell us about the underwriters` electronic distribution
procedures and discuss how the underwriters ensure that the
distribution complies with Section 5 of the Securities Act. In
particular, address:
* the communication used;
* the availability of the preliminary prospectus;
* the manner of conducting the distribution and sale, such as the
use
of indications of interest or conditional offers; and
* the funding of an account and payment of the purchase price.
Finally, tell us whether you or the underwriters have any
arrangements with a third party to host or access your preliminary
prospectus on the Internet. If so, identify the party and the
website, describe the material terms of your agreement and provide
us
with a copy of any written agreement. Provide us also with copies
of
all information concerning your company or prospectus that has
appeared on their website or on the underwriters` website,
including
screen shots. Also, please provide us with any email messages
that
the underwriters intend to use. Again, if you subsequently enter
into any such arrangements, promptly supplement your response. We
may have further comment.
35. Please explain whether you plan to have a directed share
program
for employees and others. If so, please supplementally tell us
the
mechanics of how and when these shares will be offered and sold to
persons in the directed share program. For example, please
explain
for us how you will determine the prospective recipients of
reserved
shares. Tell us when and how they will indicate their interest in
purchasing shares. Also, please tell us how and when the issuer
and
underwriters will contact the direct share investors, including
the
types of communications used. Will any electronic communications
or
procedures be used by the underwriter or company, such as e-mail?
When will the shares and money be exchanged? When do purchasers
become committed to purchase their shares? How and when will the
number of shares offered be determined? Will the procedures for
the
directed share program differ from the procedures for the general
offering to the public?
Lock-Up Agreements, page 101
Please tell us what factors Lehman Brothers Inc. would take into
consideration in deciding whether to consent to a disposition of
securities prior to the expiration of the lock-up. What is
Lehman`s
past experience in this regard? Also, briefly describe the
"exceptions" you mention that you and the other entities listed
agreed upon relating to the transfer of disposition of the common
shares and related securities. 36.
Legal Matters, page 104
37. Specify the "certain legal matters" that will be passed upon
by
the entities mentioned under this section.
Where You Can Find More Information, page 104
38. We note your statement that disclosure in this document is
"not
necessarily complete." Please be sure that you discuss in the
body
of the prospectus the material provisions of the material
contracts
or documents filed and revise to clarify that such descriptions
are
materially complete.
Financial Statements
General
39. Please update your financial statements in accordance with the
requirements of Rule 3-12 of Regulation S-X.
Report of Independent Registered Public Accounting Firm, page F-2
40. Please obtain and file a signed copy of the audit report, with
the city and state from which the report was issued.
41. It appears that the scope paragraph to the audit report has
been
revised to include the suggested language from AU Section 9508.17.
To further clarify this matter, please revise to also include the
following sentence from AU 9508.18 "The Company is not required to
have, nor were we engaged to perform, an audit of its internal
control over financial reporting." This sentence should precede
the
suggested language from AU Section 9508.17.
Consolidated Statements of Operations, page F-4
42. Please revise your statements of income, here and throughout
your
filing, to clarify that costs of sales exclude depreciation and
amortization. Please refer to SAB Topic 11:B.
General
43. We note that you have disclosed one reportable segment in your
financial statements. We assume that your DSW store operations and
leased store operations both meet the definition of an operating
segment as defined by paragraph 10 of SFAS 131, but that for
reporting purposes you have aggregated them into one reportable
segment. Based on your disclosure in Management`s Discussion and
Analysis and the Business section, the manner in which you earn
revenues displays dissimilarity among the two businesses. Based
on
the nature of the two operations we assume that they may also
generate dissimilar gross margins. Although in both cases you are
selling shoes in a leased store, it appears that you are providing
a
service in the leased store operations for which you receive a
percentage of sales, whereas in the DSW retail stores you assume
all
the risks and rewards of store operations. We understand that the
leased store operations may not meet the quantitative thresholds
in
paragraph 18 of SFAS 131. Please note that for purposes of
applying
paragraph 19 of SFAS 131 you may only combine operating segments
that
do not meet the quantitative thresholds with other operating
segments
that do not meet the quantitative thresholds to produce a
reportable
segment if the operating segments share a majority of the
aggregation
criteria in paragraph 17. Operating segments that are not
reportable
segments may be combined and disclosed in an "All Other" category.
Please help us better understand your determination to report in
one
reportable segment or revise your filing accordingly.
Notes to Consolidated Financial Statements
Significant Accounting Policies
Sales and Revenue Recognition, page F-10
44. Please revise the footnote to clarify the difference between
revenue recognition from DSW retail operations and leased store
operations. In addition, discuss, for each agreement, how and
when
sales data from leased stores are provided to DSW Inc. management
in
order to calculate the amount of revenue earned for any given
period.
Part II
Item 14. Indemnification of Directors and Officers
45. Rather than simply citing to statutes, charter provisions or
by-
laws or copying specific provisions and including those provisions
in
this document, you should revise your disclosure to describe the
general effect of the statutes, by-laws, contract or other
arrangements listed in this section. For example, we note that
you
include the full text of specific statutes but that the statutes
do
not explain other sections to which they refer, including section
1701.95.
Exhibits
46. Please file all required exhibits with enough time for us to
review them before requesting effectiveness. We note your plan to
enter into various agreements related to the separation from
Retail
Ventures and that you intend to enter into a new credit facility
before consummation of this offering.
****
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review. Please
understand that we may have additional comments after reviewing
your
amendment and responses to our comments.
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
for
an informed decision. 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.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert staff comments and the declaration of
effectiveness 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 connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as a confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
You may contact Ta Tanisha Henderson at (202) 942-2958 or
George Ohsiek, Accounting Branch Chief, at (202) 942-2905 if you
have
questions regarding comments on the financial statements and
related
matters. Please direct any other questions to Howard M. Baik at
(202) 942-1963 or to Ellie Quarles, Special Counsel, at (202) 942-
1859.
Sincerely,
H. Christopher Owings
Assistant Director
cc (via fax): Robert M. Chilstrom, Esq.
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Julia A. Davis
DSW Inc.
April 11, 2005
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