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[BAKER
DONELSON, BEARMAN CALDWELL & BERKOWITZ, PC
LOGO]
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COMMERCE
CENTER
SUITE
1000
211
COMMERCE STREET
NASHVILLE,
TENNESSEE 37201
PHONE:
615.726.5600
FAX:
615.726.0464
MAILING
ADDRESS:
P.O.
BOX 190613
NASHVILLE,
TENNESSEE 37219
www.bakerdonelson.com
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Laureen
K. Kuzur
Direct
Dial:
(615)
726-5768
Direct
Fax:
(615)
744-5768
E-Mail
Address:
lkuzur@bakerdonelson.com
January
3, 2007
Ms.
Celeste M. Murphy
Special
Counsel
Office
of
Mergers and Acquisitions
United
States Securities and Exchange Commission
100
F.
Street NE
Washington,
DC 20549-3628
VIA
EDGAR
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Re:
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CBRL
Group, Inc. Schedule TO-I Filed on December 13, 2006 (the “CBRL
TO”)
SEC
File No. 005-60679
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Dear
Ms.
Murphy:
As
counsel for CBRL Group, Inc. (the “Company”) I acknowledge receipt of the letter
dated December 21, 2006 (the “Comment Letter”). For your convenience, we have
reproduced in their entirety the comments from the Comment Letter; the Company’s
responses immediately follow the applicable comment.
Schedule
TO-I
Exhibit
(a)(1)(I)
1. COMMENT:
The
press release included in this exhibit appears to have been a preliminary
communication. Please confirm that you understand your preliminary communication
should have been filed under cover of Schedule TO-C and that communications
subsequent to or that otherwise amend the offer to purchase will appear under
cover of Schedule TO-T/A.
RESPONSE:
Exhibit
(a)(1)(I) to the CBRL TO, which was filed as Exhibit 99.1 to the Current Report
on Form 8-K filed by the Company with the Commission on December 6, 2006 (the
“Form 8-K”), may have been a preliminary communication. When filed as an exhibit
to the Form 8-K, the box on the front of the Form 8-K indicating that a
preliminary communication was being filed inadvertanty was not checked. We
hereby confirm, on behalf of the Company, that Exhibit (a)(1)(I), to the extent
that it constituted a preliminary communication, should either have been filed
under cover of Schedule TO-
C,
or, in
the alternative, the box for pre-commencement communications on the Form 8-K
should have been checked. Any communications subsequent to the Schedule TO-I
filing or that otherwise amend the offer to purchase will appear under cover
of
TO-I/A.
Exhibit
(a)(1)(J)
2. COMMENT:
You
stated in this press release that all forward-looking information was provided
pursuant to the safe harbor established under the Private Securities Litigation
Reform Act of 1995. Note 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. Sec 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 confirm that you will avoid making
reference to that Act in all future communications in connection with the tender
offer.
RESPONSE:
We
confirm that the Company will avoid making reference to the Private Securities
Litigation Reform Act of 1995 in all future communications in connection with
the tender offer.
Offer
to Purchase
Summary
Term Sheet, page 1
3. COMMENT:
Refer
to the question “Are there any conditions to the tender offer?” and the related
answer. It appears that the disclosure in (sic) describes conditions to the
offer. If so, please revise here, and throughout the offer document, as
necessary, the condition described in the sixth bullet point. Note that
conditions may not be subject to your sole discretion and that you should
include a reasonableness standard. The ability of the issuer to determine,
in
its sole discretion, whether a condition has occurred may render the offer
illusory.
RESPONSE:
The
Company is filing herewith an amendment to the CBRL TO to amend Item 4(a) as
follows:
| · |
In
the Summary Term Sheet, the sixth bullet point in the answer to the
question “Are there any conditions to the tender offer”, which begins on
page 4 of the Offer to Purchase, is hereby amended and restated to
read as
follows:
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“In
our
reasonable judgment, no material adverse change in our business, condition
(financial or otherwise), assets, income, operations or stock ownership has
occurred.”
Conditions
of the Offer, page 31
4. COMMENT:
See our
comment above. A tender offer may be conditioned on a variety of events and
circumstances, provided that they are not within the direct or indirect control
of the bidder, and are drafted with sufficient specificity to allow for
objective verification that the conditions have been
satisfied.
With this in mind, please revise the conditions that relate to a material
impairment of the contemplated benefits the bidder may enjoy from the offer.
Please revise to specify or generally describe the benefits of the offer to
you
so that security holders will have the ability to objectively determine whether
the condition has been triggered.
RESPONSE:
The
Company is filing herewith an amendment to the CBRL TO to amend Item 4(a) as
follows:
| · |
The
phrase “, or otherwise materially impair the contemplated benefits of the
tender offer as described in Section 2” is deleted from the second
sub-bullet point on page 32 of the Offer to
Purchase.
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| · |
The
phrase “, or on the benefits of the tender offer to us as described in
Section 2” is deleted from the first sub-bullet point on page 33 of the
Offer to Purchase.
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Interests
of Directors and Officers, page 27
5. COMMENT:
With
respect to your disclosure in the second paragraph of this section and in the
first paragraph of page 40 please tell us why you need to qualify your
disclosure “to [your] knowledge.” What prevents you from knowing and disclosing
this information? Please explain or delete the qualifier.
RESPONSE:
Information regarding transactions in Company stock by directors, executive
officers, affiliates and subsidiaries is reported to us by such persons through
filings made pursuant to Section 16 of the Securities Exchange Act of 1934
and/or questionnaires completed in connection with the commencement of the
tender offer. Accordingly, the information disclosed in this section is based
upon information provided to the Company by such persons and the Company must
rely upon the information as provided to it. Because the Company cannot
independently verify this information provided to it by such persons, the
Company believes it is appropriate to include the qualifier “to our knowledge”
when providing this disclosure.
Material
United States Federal Income Tax Consequences, page 42
6. COMMENT:
While
you may recommend that security holders consult their individual tax advisors
with respect to their particular tax consequences, you may not “urge” them to do
so. Please revise.
RESPONSE:
The
Company is filing herewith an amendment to the CBRL TO to amend Item 4(a) as
follows:
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The
fifth paragraph on page 43 of the Offer to Purchase is hereby amended
and
restated to read as follows:
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“We
recommend that shareholders consult their tax advisors to determine the federal,
state, local, foreign and other tax consequences to them of the tender offer
in
light of the shareholder’s particular circumstances.”
Extension
of the Tender Offer, page 45
7. COMMENT:
We note
you have reserved the right to extend the offer “at any time and from time to
time.” Please revise the disclosure in the first paragraph of this section to
make clear that any extension will be made in compliance with Rule
14e-1(d).
RESPONSE:
The
Company is filing herewith an amendment to the CBRL TO to amend Item 4(a) as
follows:
| · |
A
new sentence is added to follow the first sentence in the first paragraph
of Section 14 (“Extension of the Tender Offer; Termination; Amendment)
beginning on page 45 of the Offer to Purchase. The new sentence reads
as
follows:
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“Any
such
extension shall be in compliance with Rule 14e-1(d) under the Exchange
Act.”
Letter
of Transmittal
8. COMMENT:
We note
that on page 10 of the Letter of Transmittal you improperly require tendering
security holders to certify that they (i) have “read and understand” the offer
to purchase and related letter of transmittal, and (ii) have consulted their
tax
advisor and financial advisors with regard to how the tender offer will impact
their personal situation. Please revise to delete the requirement that security
holders make the referenced certifications. Alternatively, amend the form to
include a legend in bold typeface that indicates you do not view the
certifications made by security holders as a waiver of liability and that you
promise not to assert that this provision constitutes a waiver of
liability.
RESPONSE:
The
Company does not view such certifications as a waiver of liability under the
federal securities laws and would not assert them as such. Accordingly, the
Company is filing herewith an amendment to the CBRL TO, revising the Letter
of
Transmittal, filed as Exhibit (A)(1)(B) to the CBRL TO as follows:
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A
legend in bold typeface is added to follow the third full paragraph
on
page 9 of the Letter of Transmittal. The legend reads as
follows:
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“THE
COMPANY DOES NOT VIEW THE FOREGOING CERTIFICATIONS THAT THE UNDERSIGNED HAS
READ
AND UNDERSTANDS THE OFFER TO PURCHASE AND RELATED LETTER OF TRANSMITTAL AND
HAS
CONSULTED TAX AND FINANCIAL ADVISORS AS A WAIVER OF LIABILITY. THE COMPANY
REPRESENTS AND WARRANTS THAT IT WILL NOT ASSERT THAT SUCH CERTIFICATIONS BY
THE
UNDERSIGNED CONSTITUTE A WAIVER OF LIABILITY.”
On
behalf
of the Company, the Company acknowledges that (i) it is responsible for the
adequacy and accuracy of the disclosure in the filings; (ii) 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 (iii) 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.
Please
feel free to contact me with respect to this response to the Comment Letter
and
the Schedule TO-I/A being filed herewith.
Very
truly
yours,
BAKER,
DONELSON,
BEARMAN,
CALDWELL
&
BERKOWITZ, P.C.
/s/
Laureen K.
Kuzur
Laureen
K.
Kuzur
cc: N.B.
Forrest Shoaf, Esq.
Gary
M. Brown,
Esq.