Registration No. 333-___________
As filed with the Securities and Exchange Commission on December 21, 2004
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 Puerto Rico 1165(e) 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 share (2) price fee
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Common Stock, 50,000 Shares $26.61 $1,330,500 $156.60
$.01 par value
(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 employee benefit plan 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 17, 2004.
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) the Registrant's Annual Report on Form 10-K for the fiscal year ended
January 31, 2004;
(b) all other reports we subsequently filed under Sections 13(a) or 15(d)
of the Securities Exchange Act of 1934; and
(c) 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.
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
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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 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 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
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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 8.
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.
(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
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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 20, 2004.
FOOT LOCKER, INC.
By: /s/ Matthew D. Serra
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Matthew D. Serra
Chairman 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 20, 2004.
Signature Title
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/s/ Matthew D. Serra
------------------------------------ Director, Chairman and
Matthew D. Serra Chief Executive Officer
/s/ Bruce L. Hartman
------------------------------------ Executive Vice President and
Bruce L. Hartman Chief Financial Officer
/s/ Robert W. McHugh
------------------------------------ Vice President and
Robert W. McHugh Chief Accounting Officer
J. Carter Bacot* Director
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 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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The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Plan 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 20, 2004.
Foot Locker Puerto Rico 1165(e) Plan
By: /s/ Matthew D. Serra
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Matthew D. Serra
Foot Locker Retirement Plan Committee
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FOOT LOCKER, INC.
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 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).
4.4 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).
4.5 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).
4.6 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).
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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