Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan — Form S-8 Filing Table of Contents
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S-8 — Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan
Indicate
by checkmark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
Large
accelerated filer x Accelerated
filer o Non-accelerated
filer o Smaller
reporting company o
(Do
not check is a smaller reporting company)
CALCULATION
OF REGISTRATION FEE
Title
Of Securities To Be Registered
Amount
To Be Registered(1)
Proposed
Maximum Offering Price Per Share(2)
Proposed
Maximum Aggregate Offering Price(1)
Amount
Of
Registration
Fee(1)
Limited
Brand, Inc. Common Stock, $0.50 par value
2,000,000
$15.94
$31,880,000
$1,779
(1)
Includes
an indeterminate number of shares of Common Stock as may be issuable in
the event of stock splits, stock dividends or similar transactions in
accordance with Rule 416 under the Securities Act of 1933, as
amended.
(2)
Estimated
solely for the purpose of computing the amount of the registration fee
pursuant to Rule 457(c) and (h)(1) under the Securities Act of 1933, as
amended (the “1933 Act”), solely for the purpose of computing the
registration fee, based on the average of the high and low prices of
Common Stock being registered hereby on the New York Stock Exchange LLC on
September 9, 2009.
EXPLANATORY
NOTE
Registration
Statements were filed on May 31, 1996 (Registration No. 333-04941), on November13, 2004 (Registration No. 333-110465) and on August 20, 2004 (Registration No.
333-118407) (collectively, the “Prior Registration Statements”) to register
under the 1933 Act, among other things, 10,000,000 shares of Limited Brands,
Inc. common stock, par value $0.50 per share (the “Common Stock”), 37,573,857
shares of Common Stock and 20,000,000 shares of Common Stock, respectively,
issuable under the Limited Brands, Inc. 1993 Stock Option and Performance
Incentive Plan, as amended from time to time (the “Plan”). The
contents of the Prior Registration Statements are incorporated by reference in
this Registration Statement on Form S-8 (this “Registration
Statement”). This Registration Statement has been prepared and filed
pursuant to and in accordance with the requirements of General Instruction E to
Form S-8 for the purpose of effecting the registration under the 1933 Act of an
additional 2,000,000 shares of Common Stock issued pursuant to awards granted,
or to be granted, under the Plan at any time or from time to time.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information specified in Item 1 and Item 2 of Part I of this Registration
Statement is omitted from this filing in accordance with the provisions of Rule
428 under the 1933 Act and the introductory note to Part I of the Registration
Statement on Form S-8. The documents containing the information
specified in Part I will be delivered to the participants in the Plan covered by
this Registration Statement as required by Rule 428(b)(1).
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Limited
Brands, Inc. (the “Company” or the “Registrant”) hereby incorporates herein by
reference the following documents filed with the Securities and Exchange
Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934,
as amended (the “1934 Act”) (1934 Act File No. 1-8344):
(1) The
Registrant’s Annual Report on Form 10-K for the year ended January 31,2009.
(2) All
documents filed with the Commission by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent to the filing of such Form
10-K and prior to the filing of a post-effective amendment (i) which indicates
that all securities offered herein have been sold or (ii) which deregisters all
securities then remaining unsold.
(3) The
description of the Registrant’s Common Stock contained in the Registrant’s Form
8 Amendment to its Form 8-A filed with the Commission on September 1, 1989
pursuant to the 1934 Act, including any amendment thereto or report filed for
the purpose of updating such description.
Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof or of the related prospectus to the extent that a statement
contained herein or in any other subsequently filed document which is also
incorporated or deemed to be incorporated herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
-1-
be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item
4. DESCRIPTION OF SECURITIES
Not
applicable, see Item 3(5) above.
Item
5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The
validity of securities registered hereunder will be passed upon for the
Registrant by Douglas L. Williams, Senior Vice President and General Counsel of
the Registrant. As of the date of this Registration Statement, the
aggregate fair market value of securities of the Registrant, including options,
beneficially owned by Mr. Williams exceeds $50,000.
Item
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section
145 of the Delaware General Corporation Law permits a corporation to indemnify
any of its directors or officers who was or is a party, or is threatened to be
made a party, to any third party action, suit or proceeding by reason of the
fact that such person is or was a director or officer of the corporation,
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reason to believe that such person’s conduct was unlawful. In
a derivative action, i.e., one by or in the right of a corporation, the
corporation is permitted to indemnify directors and officers against expenses
(including attorneys’ fees) actually and reasonably incurred by them in
connection with the defense or settlement of an action or suit if they acted in
good faith and in a manner that they reasonably believed to be in or not opposed
to the best interests of the corporation, except that no indemnification shall
be made if such person shall have been adjudged liable to the corporation,
unless and only to the extent that the court in which the action or suit was
brought shall determine upon application that the defendant directors or
officers are fairly and reasonably entitled to indemnity for such expenses
despite such adjudication of liability.
Expenses,
including attorneys’ fees, incurred by any such person in defending any such
action, suit or proceeding may be paid or reimbursed by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
by it of an undertaking of such person to repay such expenses if it shall
ultimately be determined that such person is not entitled to be indemnified by
the corporation.
Delaware
law does not permit a corporation to indemnify persons against judgments in
actions brought by or in the right of the corporation unless the Delaware Court
of Chancery approves the indemnification.
The
Registrant’s certificate of incorporation provides that a director of the
Registrant shall not be personally liable to the Registrant or its stockholders
for monetary damages for breach of any fiduciary duty as a director, except for
liability (i) for any breach of the director’s duty of loyalty to the Registrant
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law or (iv) for any transaction
from which the director derives an improper personal benefit. If the Delaware
General Corporation Law shall be amended after approval by the stockholders of
the relevant section of the bylaws to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Registrant shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so
amended.
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The
Registrant’s bylaws provide that it shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that this person, his testator or
intestate is or was a director or officer of the Registrant, or is or was
serving at the request of the Registrant as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust or other
enterprise, or as a member of any committee or similar body against all expenses
(including attorneys’ fees), judgment, penalties, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding (including appeals) or the defense or settlement
thereof or any claim, issue, or matter therein, to the fullest extent permitted
by the laws of Delaware as they may exist from time to time.
The
proper officers of the Registrant, without further authorization by the Board of
Directors, may in their discretion purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of such person,
or is or was serving at its request as a director, officer, employee or agent
for another corporation, partnership, joint venture, trust or other enterprise,
against any liability.
These
provisions of the Registrant’s bylaws shall be deemed to be a contract between
the Registrant and each director and officer who serves in such capacity at any
time while the relevant section of the bylaws is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter brought based in whole or in part
upon any such state of facts.
The
foregoing provisions are not exclusive. The Registrant may indemnify, or agree
to indemnify, any person against any liabilities and expenses and pay any
expenses, including attorneys’ fees, in advance of final disposition of any
action, suit or proceeding, under any circumstances, if such indemnification
and/or payment is approved by the vote of the stockholders or of the
disinterested directors, or is, in the opinion of independent legal counsel
selected by the Board of Directors, to be made on behalf of an indemnitee who
acted in good faith and in a manner be reasonably believed to be in, or not
opposed to, the best interests of the Registrant.
The
Registrant intends to purchase and maintain insurance on behalf of any person
who is or was one of its directors, officers, employees or agents, or a
director, officer, employee or agent of a subsidiary of the Registrant or is or
was serving at the request of the Registrant or its subsidiary as a director,
officer, employee or agent of another entity against any liability asserted
against him or her and incurred by him or her in that capacity, or arising out
of his or her status as such, whether or not the Registrant or its subsidiary
would have the power or the obligation to indemnify him or her against that
liability under the respective provisions of its certificate of incorporation or
its bylaws.
Amended
and Restated Bylaws of the Registrant, filed as Exhibit 3 to the
Registrant’s Quarterly Report on Form 10-Q for the quarter ended May 3,2003 (1934 Act File No. 1-8344).*
5.1
Opinion
of Douglas L. Williams.
15
Letter
from Ernst & Young LLP Regarding Unaudited Interim Financial
Information
23.1
Consent
of Independent Registered Public Accounting Firm, Ernst & Young
LLP.
23.2
Consent
of Douglas L. Williams (included in Exhibit
5.1).
24
Power
of Attorney (included on the signature pages of this Registration
Statement).
99.1
Limited
Brands, Inc. 1993 Stock Option and Performance Incentive Plan (2009
Restatement).
_________________
*Incorporated
herein by reference
Item
9. UNDERTAKINGS
The
undersigned Registrant hereby undertakes:
(a)(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the 1933
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the ‘‘Calculation of
Registration Fee’’ table in the effective registration statement;
-4-
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement;
Provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Commission by the Registrant pursuant to Section 13 or
15(d) of the 1934 Act that are incorporated by reference in this Registration
Statement.
(2) That,
for the purpose of determining any liability under the 1933 Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the 1933 Act to any
purchaser:
(A) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of this Registration Statement as of the date the filed prospectus was
deemed part of and included in this Registration Statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by section 10(a) of the 1933 Act shall be
deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or
the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona
fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date;
or
(ii) If
the Registrant is subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and
included in the registration statement as of the date it is first used after
effectiveness. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such first use, supersede or modify any statement
-5-
that was
made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such
date of first use.
(5) That,
for the purpose of determining liability of the Registrant under the 1933 Act to
any purchaser in the initial distribution of the securities:
The
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this Registration Statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the 1933 Act, each filing of the Registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the 1934 Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar
as indemnification for liabilities arising under the 1933 Act may be permitted
to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the 1933 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
Independent
Registered Public Accounting Firm
Ernst
& Young LLP, independent registered public accounting firm, has audited our
consolidated financial statements included in our Current Report on Form 8-K
dated June 15, 2009 as set forth in their report which is incorporated by
reference herein. They have also audited the effectiveness of
internal control as of January 31, 2009 and their report is included in our
Annual Report on Form 10-K for the year ended January 31, 2009 which is
incorporated by reference herein.
-6-
With respect to the
unaudited condensed consolidated interim financial information of Limited
Brands, Inc. for the thirteen weeks ended May 2, 2009 and the thirteen and
twenty-six weeks ended August 1, 2009, incorporated by reference herein, Ernst
& Young LLP reported that they have applied limited procedures in accordance
with professional standards for review of such information. However,
their separate reports dated June 5, 2009 and September 4, 2009, included in
Limited Brands, Inc.’s Quarterly Reports on Forms 10-Q for the quarters ended
May 2, 2009 and August 1, 2009, respectively, and incorporated by reference
herein, states that they did not audit and they do not express an opinion on
that interim financial information. Accordingly, the degree of
reliance on their reports on such information should be restricted in light of
the limited nature of the review procedures applied. Ernst & Young LLP is
not subject to the liability provisions of Section 11 of the Securities Act of
1933 (the “Act”)
for their reports on the unaudited interim financial information because those
reports are not “reports”
or “parts” of the
Registration Statement prepared or certified by Ernst & Young LLP within the
meaning of Sections 7 and 11 of the Act.
-7-
SIGNATURES
The
Registrant. Pursuant to the requirements of the Securities Act
of 1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Columbus, State of Ohio, on the 10th day of
September, 2009.
LIMITED
BRANDS, INC.
By:
/s/
Douglas
L. Williams
Name:
Douglas
L. Williams
Title:
Senior
Vice President and General Counsel
-8-
POWER
OF ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints each of
Leslie H. Wexner, Samuel P. Fried and Douglas L. Williams, his or her true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) and supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, and hereby grants to such
attorney-in fact and agent, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his or her substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed below by the following persons in the following
capacities on the 10th day of September,
2009.
Signature
Title
/s/
Leslie H. Wexner
Chairman
of the Board and Chief Executive Officer
Leslie
H. Wexner
/s/
Stuart B. Burgdoerfer
Executive
Vice President and Chief Financial Officer (principal financial and
principal accounting officer)
Amended
and Restated Bylaws of the Registrant, filed as Exhibit 3 to the
Registrant’s Quarterly Report on Form 10-Q for the quarter ended May 3,2003 (1934 Act File No. 1-8344).*
5.1
Opinion
of Douglas L. Williams.
15
Letter
from Ernst & Young LLP Regarding Unaudited Interim Financial
Information
23.1
Consent
of Independent Registered Public Accounting Firm, Ernst & Young
LLP.
23.2
Consent
of Douglas L. Williams (included in Exhibit 5.1).
24
Power
of Attorney (included on the signature pages of this Registration
Statement).
99.1
Limited
Brands, Inc. 1993 Stock Option and Performance Incentive Plan (2009
Restatement).
