September 18, 2005
Via Facsimile 646.848.8073 and U.S. Mail
Creighton O`M. Condon, Esq.
Eliza Swann, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
RE: 7-Eleven, Inc.
Schedule TO-T/Schedule 13E-3
Filed by Seven-Eleven Japan Co. Ltd., et al.
Date Filed: September 6, 2005
File No. 5-17916
Ladies and Gentlemen:
We have reviewed your filings, and have the following comments.
Where indicated, we think you should revise your documents in
response to these comments. If you disagree, we will consider
your explanation as to why any 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 number listed
at the end of this letter.
Schedule 13E-3
Cover Page and Signature Page
1. Advise us why Seven & I Holdings Co., Ltd. is not identified
as a filing person on Schedule 13E-3. We note, for example, the
Seven & I Holdings Co., Ltd. has been described as having a wholly
owned subsidiary Seven-Eleven Japan Co. Ltd. Consideration should
also be given as to whether or not Seven & I Holdings Co., Ltd.
should be identified as a bidder on the cover of the Schedule TO-T
for the third-party tender offer.
2. Edgar does not, at present, reflect the receipt of a Schedule
13E-3 for the instant transaction. The checking of the going-private
transaction box on Schedule TO-T by the filing persons does not
obviate the need to properly identify the filing with appropriate
header tags. The filing persons must either jointly file the
original Schedule TO-T and Schedule 13E-3 with appropriate header
tags and request a date adjustment to the original September 6
filing date or file an exclusive Schedule 13E-3 and Schedule TO-T
without such a date adjustment request as soon as possible.
The Company - Selected Financial Information
3. In response to Item 13 of the Schedule 13E-3 cross-reference
sheet, the disclosure indicates that financial information has
been incorporated by reference to satisfy this item requirement.
Revise to include the complete summarized financial information
required by Item 1010(c) of Regulation M-A. In the event that an
affiliate incorporates by reference the information required by
Item 1010(a) and (b), all of the summarized financial information
required by Item 1010(c) must be disclosed in the Schedule 13E-3.
See Instruction 1 to Item 13 of Schedule 13E-3. In addition, refer
to telephone interpretation H.7 in the July 2001 supplement to our
"Manual of Publicly Available Telephone Interpretations" that is
available on the Commission`s website at http://www.sec.gov for
guidance on complying with a similar instruction in the context
of a tender offer. Because all of this information does not appear
to have been included, a supplement may need to be sent that
includes this information plus other disclosures required by this
comment letter.
4. The disclosure under the subheading titled "Available
Information" directs security holders to obtain information from
a public reference room maintained by the SEC that bears two different
street addresses. Please revise or advise.
Background
5. Numerous references are made in this section to unqualified
strategic alternatives. To the extent the affiliated parties
considered alternatives to the proposed tender offer, the
disclosure must briefly identify such alternatives and summarize
the reasons for their rejection. Please revise, and avoid the use
of conclusory statements when drafting the amended disclosure.
See Item 1013(b) of Regulation M-A and Instruction 1 thereto.
Effects of the Offer
6. Advise us, with a view towards revised disclosure, how the
affiliated filing parties fully complied with Item 1013(d) of
Regulation M-A. See Instruction 3 thereto. The disclosure must,
for example, also express the affiliates` increased interest in net
book value and net earnings in dollar amounts.
Schedule TO
Special Factors - Position of Parent and Purchaser Regarding
Fairness of the Offer and Merger
7. Please note the staff, as stated in the Current Issues Outline
publicly available on our website, views officers and directors of
the issuer as affiliates of that issuer. Unless the Parent and
Purchaser are the only affiliates of 7-Eleven, please revise your
disclosure to clarify that the fairness determinations made by
these filing parties are expressly addressed to unaffiliated security
holders of the issuer that is going private. Accordingly, any
references made to "public shareholders" or "Company shareholders
(other than Parent and Purchaser)" in the context of a fairness
discussion would not be sufficiently specific to satisfy Item 1014
of Regulation M-A.
8. All of the factors listed in Instruction 2 to Item 1014 of
Regulation M-A are generally relevant to the fairness
determination and should be discussed in considerable detail in
the Schedule 13E-3. To the extent that the affiliated parties did
not consider going concern value, or deemed such measure irrelevant
in the context of this particular transaction, provide a detailed
explanation of their reasons for so doing. While references have
been made to a going concern value, such references do not meet
the standards set forth to satisfy the disclosure requirements
of this item. See Item 1014(b) of Regulation M-A and Question
and Answer No. 20 in Exchange Act Release 17719 (April 13, 1981).
9. Revise the separate and explicit discussion addressing the
procedural fairness determination so that it is expressly directed
to the unaffiliated security holders. This discussion must also be
revised to specifically acknowledge the absence of any of the
procedural safeguards set out in Item 1014(c)-(e) of Regulation
M-A and address how the procedural fairness determination was reached
in the absence of any of the safeguards. Please follow the guidance
provided in Q & A No. 21 in Exchange Act Release 17719 (April,
1981). The disclosure contained beneath "General" under the section
titled, "Certain Information Concerning the Company" is not responsive
to this item disclosure requirement.
Certain Conditions to the Offer
10. The staff believes that all conditions to the offer, except
those conditions subject to regulatory approvals, must be satisfied
or waived prior to expiration of the offer. Because the language in
the first paragraph of this section suggests that conditions may be
raised or asserted until payment for tendered shares has been
made, it appears the offerors intend for their conditions to survive
offer expiration. Please revise to make clear that all conditions to
the offer, other than those conditions dependent upon the receipt of
government approvals, will be raised or asserted prior to offer
expiration.
11. While the staff does not object when the offerors
independently reserve the right to raise or assert a condition, once
triggered, in their sole discretion or judgment, it remains
inappropriate for offerors to make the determination as to whether
or not an offer condition has been triggered in their sole judgment
or sole discretion. If offerors are able to exclusively make a
determination as to whether or not an offer condition has been triggered,
without being held to a reasonableness standard the offerors could take
a position that an offer condition had been triggered at any time
for any reason. Tender offers that include conditions that may be
triggered at any time for any reason are considered illusory and
therefore in contravention of Section 14(e) of the Exchange Act.
Please revise this section to remove the ability of the offerors
to make wholly subjective determinations as to whether or not an
offer condition has occurred and make clear the offer conditions only
become operative upon the occurrence of objective criteria.
Letter of Transmittal
12. Advise us of the purpose of the language, "Receipt of the
Offer is hereby acknowledged." Alternatively, revise to delete the
language.
Closing Comments
Please file an amended Schedule TO and Schedule 13E-3 in
response to these comments. Mark the amendments so that the
revisions, including those made not in response to staff comment,
are clear and distinguishable from the text of earlier submissions.
See Rule 310 of Regulation S-T. In addition, please furnish a cover
letter that keys your responses to our comments and provides any
supplemental information we requested. This letter should be
filed on EDGAR as correspondence. If you believe complying with a
comment is not appropriate, tell us why in your letter. You should be
aware that we might have additional comments based on your responses.
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 filing persons 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 each of the filing persons
acknowledging that:
* The filing person 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 filing person 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 filings
or in response to our comments on your filing.
Please direct any questions regarding the comments to me in
the Office of Mergers and Acquisitions at (202) 551-3266.
Sincerely,
Nicholas P. Panos
Special Counsel
Office of Mergers & Acquisitions