Registration No. 333-
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As filed with the Securities and Exchange Commission on December 16, 2003
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Foot Locker, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
New York 13-3513936
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
112 West 34th Street, New York, NY 10120
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(Address of Principal Executive Offices) (Zip Code)
Foot Locker 2003 Stock Option and Award Plan and
2003 Foot Locker Employees Stock Purchase Plan
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(Full title of the plan)
Gary M. Bahler, General Counsel,
Foot Locker, Inc., 112 West 34th Street, New York, NY 10120
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(Name and address of agent for service)
(212) 720-3700
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(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered (1) per unit (2) price fee
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Common Stock, 7,000,000 $22.08 $154,560,000 $12,504.00
$.01 par value Shares
(including the
associated
Preferred Stock
Purchase Rights)
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the plans described herein.
(2) In accordance with Rule 457 under the Securities Act of 1933, solely for the
purpose of calculating the registration fee, the maximum offering price per unit
is based on the average of the high and low prices of Registrant's common stock
as reported on the Composite Tape for New York Stock Exchange Listed Stocks on
December 12, 2003.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this
Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
February 1, 2003;
(b) Registrant's Quarterly Reports on Form 10-Q for the periods ended
May 3, 2003, August 2, 2003 and November 1, 2003;
(c) Registrant's Current Report on Form 8-K dated (date of earliest
event reported) November 19, 2003 under Item 5; and
(d) The description of the Registrant's common stock contained in the
Registrant's Registration Statement on Form S-3 Amendment No. 1 (Registration
No. 333-64930) previously filed with the SEC, including any amendments or
reports filed for purposes of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall hereby be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof from the date of filing of
such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article IX of the By-laws of the Registrant requires the Registrant to
indemnify, to the fullest extent permitted by applicable law, any person who (a)
is or was made, or threatened to be made, a party to any action or proceeding
because that person or his or her testator or intestate is or was a director or
officer of the Registrant or served, or is serving, at the request of the
Registrant as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise, against judgments, fines, amounts paid in settlement and expenses
incurred as a result of such action or proceeding, or appeal therein, and (b)
has met the standards set forth in Section 721 of the New York Business
Corporation Law (the "NYBCL"). Section 721 of the NYBCL provides that no
indemnification is to be provided to any person who is a director or officer if
a judgment or other final adjudication adverse to such person establishes that
(a) his or her acts were committed in bad faith or were the result of active and
deliberate dishonesty and, in either case, were material to the cause of action
so adjudicated, or (b) he or she personally gained, in fact, a financial profit
or other advantage to which he or she was not legally entitled.
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Article IX of the By-laws also provides that the Registrant shall, from
time to time, reimburse or advance to any person indemnified thereunder the
funds necessary for payment of expenses incurred in connection with any action
or proceeding subject to such indemnification, upon receipt by the Registrant of
a written undertaking by or on behalf of such person to repay such amounts(s) if
a judgment or other final adjudication adverse to the director or officer
establishes that he or she did not meet the standards set forth in Section 721
of the NYBCL.
Article IX of the By-laws also expressly authorizes the Registrant to
enter into agreements providing for indemnification or the advancement of
expenses to the fullest extent permitted by applicable law. As more fully
explained below, the Registrant has entered into (or intends to enter into)
agreements with each of the Registrant's directors and officers to provide for
indemnification to the fullest extent permitted by applicable law.
Article TENTH of the Registrant's Certificate of Incorporation requires
the Registrant to indemnify its directors and officers, and permits the
Registrant to indemnify others, to the fullest extent permitted by applicable
law. The extent and limitations of indemnification under Article TENTH of the
Registrant's Certificate of Incorporation are substantially identical to the
indemnification provisions set forth in Article IX of the Registrant's By-laws.
Article ELEVENTH of the Registrant's Certificate of Incorporation
provides that no director of the Registrant shall be personally liable to the
Registrant or to any of its shareholders for monetary damages for breach of
fiduciary duty as a director, except if a judgment or other final adjudication
adverse to such director establishes that his or her acts or omissions were in
bad faith or involved intentional misconduct or a knowing violation of law or
that such director gained, in fact, a financial profit or other advantage to
which he or she was not legally entitled or that such director's acts violated
Section 719 of the NYBCL.
As previously noted, the Registrant has entered into indemnification
agreements with each of its directors and officers (and intends in the future to
enter into similar indemnification agreements with other persons who become
directors or officers of the Registrant) which require the Registrant to, among
other things, indemnify each director or officer for any and all judgments,
fines, amounts paid in settlement and expenses incurred in connection with
investigating, defending, being a witness or participating in any threatened,
pending or completed action, suit, proceeding, inquiry or investigation, and to
advance to each such director or officer his or her costs and expenses of any
such suit, proceeding, inquiry or investigation if such director or officer
undertakes to pay back such advances to the extent required by law. Prior to a
"Change in Control" (as defined in each indemnification agreement) of the
Registrant, a director or officer is not entitled to indemnification under such
agreement in any action or proceeding voluntarily commenced by such indemnitee
against the Registrant or any director or officer of the Registrant, unless the
institution of such action or proceedings is joined in or consented to by the
Registrant.
Sections 721 through 726 of the NYBCL provide for indemnification of
directors and officers. If a director or officer is successful on the merits or
otherwise in a legal proceeding, such person must be indemnified to the extent
he or she was successful. Further, indemnification is permitted in both
third-party and derivative suits if such person acted in good faith and for a
purpose he or she reasonably believed was in the best interest of Registrant,
and if, in the case of a criminal proceeding, he or she had no reasonable cause
to believe his or her conduct was unlawful. Indemnification under this provision
applies to judgments, fines, amounts paid in settlement and reasonable expenses,
in the case of derivative actions. In a derivative action, however, a director
or officer may not be indemnified for amounts paid to settle such a suit or for
any claim, issue or matter as to which such person shall have been adjudged
liable to the Registrant absent a court determination that the person is fairly
and reasonably entitled to
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indemnity. Notwithstanding the failure of the Registrant to provide
indemnification and despite any contrary resolution of the board of directors,
indemnification shall be awarded by the proper court pursuant to Section 724 of
the NYBCL. Under New York law (and as provided in Article IX of the Registrant's
By-laws and in the indemnification agreements previously described), expenses
may be advanced upon receipt of an undertaking by or on behalf of the director
or officer to repay the amounts in the event the recipient is ultimately found
not to be entitled to indemnification. The advance is conditioned only upon
receipt of the undertaking and not upon a finding that the officer or director
has met the applicable indemnity standards.
In addition, the Registrant has directors and officers liability
insurance policies.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits filed as part of or incorporated by reference in this
Registration Statement are listed in the Index of Exhibits that begins on Page
7.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Securities 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; and
(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 the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities 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 hereby which remain unsold at the
termination of the offering.
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(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities 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 against
the Registrant 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 Securities Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, 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 New York, State of New York, on December 16,
2003.
FOOT LOCKER, INC.
By: /s/ Matthew D. Serra
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Matthew D. Serra
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 16, 2003.
Signature Title
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/s/ Matthew D. Serra Director, President and
------------------------------------ Chief Executive Officer
Matthew D. Serra
/s/ Bruce L. Hartman Executive Vice President and
------------------------------------ Chief Financial Officer
Bruce L. Hartman
/s/ Robert W. McHugh Vice President and
------------------------------------ Chief Accounting Officer
Robert W. McHugh
J. Carter Bacot* Director, Non-executive
Chairman of the Board
Purdy Crawford * Director
Nicholas DiPaolo * Director
Philip H. Geier, Jr. * Director
Jarobin Gilbert, Jr. * Director
James E. Preston * Director
David Y. Schwartz * Director
Christopher A. Sinclair * Director
Cheryl N. Turpin * Director
Dona D. Young * Director
* Matthew D. Serra, by signing his name hereto, is also signing as
attorney-in-fact for the named directors.
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FOOT LOCKER, INC.
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INDEX OF EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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4.1 The rights of holders of the Registrant's equity
securities are defined in the Registrant's
Certificate of Incorporation, as amended
(incorporated herein by reference to Exhibits 3(i)(a)
and 3(i)(b) to the Quarterly Report on Form 10-Q for
the quarterly period ended July 26, 1997, Exhibit
4.2(a) to the Registration Statement on Form S-8
(Registration No. 333-62425) previously filed with
the SEC), and Exhibit 4.2 to the Registration
Statement on Form S-8 (Registration No. 333-74688)
previously filed with the SEC).
4.2 By-laws of the Registrant, as amended (incorporated
herein by reference to Exhibit 10.1 to the Quarterly
Report on Form 10-Q for the quarterly period ended
May 5, 2001, filed by the Registrant with the SEC on
June 13, 2001).
4.3 Rights Agreement dated as of March 11, 1998 ("Rights
Agreement") between the Registrant and First Chicago
Trust Company of New York, as Rights Agent
(incorporated herein by reference to Exhibit 4 to the
Registrant's Form 8-K dated March 11, 1998).
4.4 Amendment No. 1 to the Rights Agreement, dated as of
May 28, 1999 (incorporated herein by reference to
Exhibit 4.2(a) to the Quarterly Report on Form 10-Q
for the quarterly period ended May 1, 1999, filed by
the Registrant with the SEC on June 4, 1999).
4.5 Amendment No. 2 to the Rights Agreement, dated as of
October 24, 2001 (incorporated herein by reference to
Exhibit 4.6 to the Registration Statement on Form S-8
(Registration No. 333-74688) previously filed with
the SEC).
4.6 Amendment No. 3 to the Rights Agreement, dated as of
March 18, 2002 (incorporated herein by reference to
Exhibit 4.5 to the Annual Report on Form 10-K for the
year ended February 2, 2002, filed by the Registrant
with the SEC on April 29, 2002.
4.7 Amendment No. 4 to the Rights Agreement, dated as of
March 18, 2002 (incorporated herein by reference to
Exhibit 99.1 to the Current Report on Form 8-K dated
November 19, 2003 (date of earliest event reported)
under Item 5, filed by the Registrant with the SEC on
November 20, 2003.
4.8 Indenture dated as of October 10, 1991 (incorporated
herein by reference to Exhibit 4.1 to Registrant's
Registration Statement on Form S-3 (Registration No.
33-43334) previously filed with the SEC).
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4.9 Forms of Medium-Term Notes (Fixed Rate and Floating
Rate) (incorporated herein by reference to Exhibits
4.4 and 4.5 to the Registration Statement on Form S-3
(Registration No. 33-43334) previously filed with the
SEC).
4.10 Form of 8 1/2% Debentures due 2022 (incorporated
herein by reference to Exhibit 4 to Registrant's Form
8-K dated January 16, 1992).
4.11 Distribution Agreement dated July 13, 1995 and Forms
of Fixed Rate and Floating Rate Notes (incorporated
herein by reference to Exhibits 1, 4.1, and 4.2,
respectively, to Registrant's Form 8-K dated July 13,
1995).
4.12 Indenture dated as of June 8, 2001 (incorporated
herein by reference to Exhibit 4.1 to Registrant's
Registration Statement on Form S-3 Amendment No. 1
(Registration No. 333-64930) previously filed with
the SEC).
4.13 Form of 5.50% Convertible Subordinated Note
(incorporated herein by reference to Exhibit 4.2 to
the Registration Statement on Form S-3 Amendment No.
1 (Registration No. 333-64930) previously filed with
the SEC).
4.14 Registration Rights Agreement dated as of June 8,
2001 (incorporated herein by reference to Exhibit 4.3
to the Registration Statement on Form S-3 Amendment
No. 1 (Registration No. 333-64930) previously filed
with the SEC).
5 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
is contained in its opinion filed as Exhibit 5 to
this Registration Statement.
23.2 Consent of KPMG LLP.
24 Powers of Attorney.
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