As filed with the Securities and Exchange Commission on January 25, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-4
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
L BRANDS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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5621
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31-1029810
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(State or Other Jurisdiction of
Incorporation or Organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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Three Limited Parkway
Columbus, Ohio 43230
(614) 415-7000
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Shelley
Milano
General Counsel
L Brands, Inc.
Three
Limited Parkway
Columbus, Ohio 43230
(614) 415-7000
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Deanna L. Kirkpatrick, Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Tel: (212) 450-4000
Fax: (212) 450-3800
Approximate date of
commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
If the securities being
registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box:
¨
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering.
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If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering.
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Indicate by check mark 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.
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Large accelerated filer
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x
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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*
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Includes certain subsidiaries of L Brands, Inc. identified on the following page.
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CALCULATION
OF REGISTRATION FEE
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Title of each class of
securities to be registered
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Amount
to be
registered
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Proposed
maximum
offering price
per unit(1)
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Proposed
maximum
aggregate
offering price(1)
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Amount of
registration fee
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6.875% Senior Notes due 2035
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$1,000,000,000
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100%
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$1,000,000,000
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$100,700
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Guarantees of 6.875% Senior Notes due 2035
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(2)
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(2)
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(2)
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(2)
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Total
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$1,000,000,000
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100%
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$1,000,000,000
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$100,700
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(1)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457 under the Securities Act of 1933.
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(2)
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No separate consideration will be received for the Guarantees of 6.875% Senior Notes due 2035 being registered hereby. As a result, in accordance with Rule 457(n) under the Securities Act, no registration fee is payable
with respect to the guarantees.
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The Registrant hereby amends
this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933, as amended or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
TABLE OF ADDITIONAL REGISTRANTS
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Name*
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State or Other
Jurisdiction of
Incorporation or
Organization
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Primary
Standard
Industrial
Classification
Code Number
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I.R.S. Employer
Identification
Number
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Bath & Body Works Brand Management, Inc.
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Delaware
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5600
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52-2450868
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Bath & Body Works Direct, Inc.
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Delaware
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5600
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20-3048392
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Bath & Body Works, LLC
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Delaware
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5600
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52-2455381
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beautyAvenues, LLC
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Delaware
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5600
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52-2450857
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Intimate Brands, Inc.
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Delaware
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5600
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51-0346269
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Intimate Brands Holding, LLC
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Delaware
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5600
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90-0648718
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L Brands Direct Fulfillment, Inc.
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Delaware
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5600
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52-2450847
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L Brands Service Company, LLC
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Delaware
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5600
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31-1048997
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L Brands Store Design & Construction, Inc.
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Delaware
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5600
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31-1301070
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La Senza, Inc.
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Delaware
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5600
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01-0960215
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Mast Industries, Inc.
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Delaware
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5600
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04-2468696
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Victoria’s Secret Direct Brand Management, LLC
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Delaware
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5600
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52-2450873
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Victoria’s Secret Stores Brand Management, Inc.
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Delaware
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5600
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52-2450861
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Victoria’s Secret Stores, LLC
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Delaware
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5600
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54-2170171
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*
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The address, including zip code, and telephone number, including area code, of each Registrant’s principal executive offices is Three Limited Parkway, Columbus, Ohio 43230, Tel. (614) 415-7000.
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The information in this prospectus is not complete and may be changed. We may not sell
these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any state where
the offer or sale is not permitted.
PROSPECTUS (SUBJECT TO COMPLETION)
L Brands, Inc.
Offer to Exchange All Outstanding $1,000,000,000 6.875% Senior Notes due 2035 for
$1,000,000,000 6.875% Senior Notes Due 2035 which have been registered under the Securities Act.
We are offering to exchange new 6.875% Senior Notes due 2035 (which we refer to as the “new notes”) for our currently outstanding
6.875% Senior Notes due 2035 (which we refer to as the “old notes”) on the terms and subject to the conditions detailed in this prospectus and the accompanying letter of transmittal.
The Exchange Offer
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The exchange offer will expire at 5:00 p.m., New York City time, on , 2016, unless extended.
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All old notes that are validly tendered and not validly withdrawn will be exchanged.
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Tenders of old notes may be withdrawn any time prior to 5:00 p.m., New York City time, on the date of expiration of the exchange offer.
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To exchange your old notes, you are required to make the representations described on page 33 to us.
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The exchange of the old notes will not be a taxable exchange for U.S. federal income tax purposes.
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We will not receive any proceeds from the exchange offer.
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You must complete and send the letter of transmittal that accompanies this prospectus to the exchange agent, The Bank of New York Mellon Trust Company, N.A., by 5:00 p.m. New York City time, on
, 2016.
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You should read the section called “The Exchange Offer” for further information on how to exchange your old notes for new notes.
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The New Notes
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The terms of the new notes to be issued are identical in all material respects to the outstanding old notes, except that the new notes have been registered under the Securities Act of 1933, as amended (the
“Securities Act”) and will not have any of the transfer restrictions, registration rights and additional interest provisions relating to the old notes. The new notes will represent the same debt as the old notes, and we will issue the new
notes under the same indenture.
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The notes will be our senior unsecured obligations. Accordingly, they will: (i) rank senior in right of payment to any of our future debt that is expressly subordinated in right of payment to the notes;
(ii) rank equal in right of payment to all of our existing and future senior debt and other obligations that are not, by their terms, expressly subordinated in right of payment to the notes; (iii) be effectively subordinated to all of our
existing and future secured debt, to the extent of the value of the assets securing such debt (including obligations under our senior secured revolving facility), and be structurally subordinated to all obligations of each of our subsidiaries that
do not guarantee the notes; and (iv) be effectively senior to our existing senior unguaranteed notes to the extent of the assets of our subsidiaries that guarantee the notes.
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The guarantees will be senior unsecured obligations of the guarantors. Accordingly, they will: (i) rank senior in right of payment to all of the applicable guarantor’s existing and future debt that is
expressly subordinated in right of payment to the guarantee; (ii) rank equal in right of payment to all of the applicable guarantor’s existing and future senior debt and other obligations that are not, by their terms, expressly
subordinated in right of payment to the notes; and (iii) be effectively subordinated to all of the applicable guarantor’s existing and future secured debt (including such guarantor’s guarantee under our senior secured revolving
facility and senior secured term loan), to the extent of the value of the assets securing such debt, and be structurally subordinated to all obligations of any subsidiary of a guarantor if that subsidiary is not also a guarantor of the notes.
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No public market exists for the old notes or the new notes. We do not intend to apply for listing of the new notes on any notes exchange or to arrange for them to be quoted on any quotation system.
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See “
Risk Factors
” beginning on page 12 for a discussion of risk factors that should be considered by
you prior to tendering your old notes in the exchange offer.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is
, 2016
TABLE OF CONTENTS
i
ABOUT THIS PROSPECTUS
In this prospectus, unless otherwise stated or the context otherwise requires, references to “we,” “us,” “our,”
“L Brands” and the “Company” refer to L Brands, Inc. and its subsidiaries.
The “old notes” consisting of
the 6.875% Senior Notes due 2035 which were issued October 30, 2015 and the “new notes” consisting of the 6.875% Senior Notes due 2035 offered pursuant to this prospectus are sometimes collectively referred to in this prospectus as
the “notes.”
Each broker-dealer that receives new notes for its own account pursuant to the exchange offer must acknowledge
that it will deliver a prospectus in connection with any resale of such new notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an
“underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new notes received in exchange for notes where
such notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. We and the guarantors have agreed that, starting on the expiration date and ending on the close of business six months after the
expiration date, we will make this prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”
We have not authorized anyone to provide any information other than that contained or incorporated by reference into this prospectus or in any
free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are offering the notes
for exchange only in jurisdictions where such offers are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of the exchange of the
notes offered hereby.
ii
FORWARD-LOOKING STATEMENTS
Safe Harbor Statement Under the Private Securities Litigation Reform Act of 1995
We caution that any forward-looking statements (as such term is defined in the Private Securities Litigation Reform Act of 1995) contained in
this prospectus, incorporated by reference into this prospectus or made by our company or our management involve risks and uncertainties and are subject to change based on various factors, many of which are beyond our control. Accordingly, our
future performance and financial results may differ materially from those expressed or implied in any such forward-looking statements. Words such as “estimate,” “project,” “plan,” “believe,”
“expect,” “anticipate,” “intend,” “planned,” “potential” and any similar expressions may identify forward-looking statements. Risks associated with the following factors, among others, in some cases
have affected and in the future could affect our financial performance and actual results and could cause actual results to differ materially from those expressed or implied in any forward-looking statements included in this prospectus, incorporated
by reference into this prospectus or otherwise made by our company or our management:
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general economic conditions, consumer confidence, consumer spending patterns and market disruptions including severe weather conditions, natural disasters, health hazards, terrorist activities, financial crises,
political crises or other major events, or the prospect of these events;
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the seasonality of our business;
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the dependence on a high volume of mall traffic and the availability of suitable store locations on appropriate terms;
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our ability to grow through new store openings and existing store remodels and expansions;
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our ability to successfully expand into global markets and related risks;
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our relationships with independent franchise, license and wholesale partners;
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our direct channel businesses;
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our failure to protect our reputation and our brand images;
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our failure to protect our trade names, trademarks and patents;
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the highly competitive nature of the retail industry generally and the segments in which we operate particularly;
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consumer acceptance of our products and our ability to keep up with fashion trends, develop new merchandise and launch new product lines successfully;
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our ability to source, distribute and sell goods and materials on a global basis, including risks related to:
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duties, taxes and other charges;
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legal and regulatory matters;
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volatility in currency exchange rates;
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local business practices and political issues;
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potential delays or disruptions in shipping and transportation and related pricing impacts;
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disruption due to labor disputes; and
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changing expectations regarding product safety due to new legislation;
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fluctuations in foreign currency exchange rates;
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stock price volatility;
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iii
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our failure to maintain our credit rating;
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our ability to service or refinance our debt;
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our ability to retain key personnel;
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our ability to attract, develop and retain qualified employees and manage labor-related costs;
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the inability of our manufacturers to deliver products in a timely manner and meet quality standards;
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fluctuations in product input costs;
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fluctuations in energy costs;
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increases in the costs of mailing, paper and printing;
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claims arising from our self-insurance;
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our ability to implement and maintain information technology systems and to protect associated data;
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our failure to maintain the security of customer, associate, supplier or company information;
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our failure to comply with regulatory requirements;
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legal and compliance matters.
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We are not under any obligation and do not intend to make
publicly available any update or other revisions to any of the forward-looking statements contained in this prospectus or incorporated by reference into this prospectus to reflect circumstances existing after the date of this prospectus or to
reflect the occurrence of future events even if experience or future events make it clear that any expected results expressed or implied by those forward-looking statements will not be realized. Additional information regarding these and other
factors can be found under the heading “Risk Factors” in this prospectus and in our Annual Report on Form 10-K for the year ended January 31, 2015, incorporated herein by reference.
MARKET AND INDUSTRY DATA
Market and industry data and forecasts used in this prospectus or incorporated by reference into this prospectus have been obtained from
independent industry sources. Although we believe these third-party sources to be reliable, we have not independently verified the data obtained from these sources and we cannot assure you of the accuracy or completeness of the data. Forecasts and
other forward-looking information obtained from these sources are subject to the same qualifications and uncertainties as the other forward-looking statements in this prospectus or incorporated by reference into this prospectus.
NON-GAAP FINANCIAL MEASURES
We have included certain non-GAAP financial measures in this prospectus, including earnings before interest, income taxes, depreciation and
amortization or EBITDA. We believe that the presentation of EBITDA enhances an investor’s understanding of our financial performance. We believe that EBITDA is a useful financial metric to assess our operating performance from period to period
by excluding certain items that we believe are not representative of our core business. We believe that EBITDA will provide investors with a useful tool for assessing the comparability between periods of our ability to generate cash from operations
sufficient to pay taxes, to service debt and to undertake capital expenditures. We use EBITDA for business planning purposes and in measuring our performance relative to that of our competitors.
We believe EBITDA is a measure commonly used by investors to evaluate our performance and that of our competitors. EBITDA is not a
presentation made in accordance with GAAP and our use of the term EBITDA varies from others in our industry. EBITDA should not be considered an alternative to net income, operating income or any other performance measures derived in accordance with
GAAP as measures of operating performance or operating cash flows or as measures of liquidity.
iv
SUMMARY
This summary highlights the information contained elsewhere in this prospectus or incorporated by reference herein. Because this is only a
summary, it does not contain all of the information that may be important to you. For a more complete understanding of the exchange offer, we encourage you to read this entire prospectus and the documents incorporated by reference herein. You should
read the following summary together with the more detailed information and consolidated financial statements and the notes to those statements incorporated by reference into this prospectus. Unless otherwise indicated, financial information included
or incorporated by reference in this prospectus is presented on an historical basis.
Our Company
We operate in the highly competitive specialty retail business. Founded in 1963 in Columbus, Ohio, we have evolved from an apparel-based
specialty retailer to a segment leader focused on women’s intimate and other apparel, personal care and beauty categories that make customers feel sexy, sophisticated and forever young. We sell our merchandise through company-owned specialty
retail stores in the United States (“U.S.”), Canada and the United Kingdom (“U.K.”), which are primarily mall-based; through websites; and through international franchise, license and wholesale partners (collectively,
“partners”). We currently operate the following retail brands:
Victoria’s Secret
Victoria’s Secret, including Victoria’s Secret PINK, is the leading specialty retailer of women’s intimate and other apparel
with fashion-inspired collections, prestige fragrances, celebrated supermodels and world-famous runway shows. We sell our Victoria’s Secret products at more than 1,170 Victoria’s Secret stores in the U.S., Canada and U.K. and online at
www.VictoriasSecret.com. Additionally, Victoria’s Secret has 360 stores and various small-format locations in more than 70 other countries operating under franchise, license and wholesale arrangements.
Bath & Body Works
Bath & Body Works is one of the leading specialty retailers of home fragrance and personal care products including shower gels,
lotions, soaps and sanitizers. We sell our Bath & Body Works products at more than 1,670 Bath & Body Works stores in the U.S. and Canada and online at www.BathandBodyWorks.com. Additionally, Bath & Body Works has 110
stores in more than 20 other countries operating under franchise, license and wholesale arrangements.
Other Brands
La Senza is a specialty retailer of women’s intimate apparel. We sell our La Senza products at more than 130 La Senza stores in Canada and
online at www.LaSenza.com. Additionally, La Senza has more than 230 stores in 29 other countries operating under franchise, license and wholesale arrangements.
Henri Bendel sells handbags, jewelry and other accessory products through our New York flagship and 28 other stores, as well as online at
www.HenriBendel.com.
1
Organizational Structure
The following summary organization chart sets forth the basic corporate structure of L Brands,
Inc.
(1)
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(1)
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Amounts reflect principal amounts outstanding.
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(2)
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As defined in this prospectus under the heading “Description of Certain Debt.” Our obligations under the Revolving Facility are guaranteed by certain of our subsidiaries and are secured by security interests
in certain of our and the guarantors’ tangible and intangible personal property. See “Description of Certain Debt.”
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L Brands, Inc. is a holding company and its most significant assets are the stock of its subsidiaries. The guarantors represent
(a) substantially all of the sales of the Company’s domestic subsidiaries, (b) more than 90% of the assets owned by the Company’s domestic subsidiaries, other than real property, certain other assets and intercompany investments
and balances and (c) more than 95% of the accounts receivable and inventory directly owned by the Company’s domestic subsidiaries.
Our History
L Brands,
Inc. was re-incorporated as The Limited, Inc. under the laws of Delaware in 1982 and changed its name to L Brands, Inc. in March 2013.
2
THE EXCHANGE OFFER
On October 30, 2015, we privately placed $1,000,000,000 aggregate principal amount of the old notes in a transaction exempt from
registration under the Securities Act. In connection with the private placement, we entered into a registration rights agreement, dated as of October 30, 2015, with the initial purchasers of the old notes. In the registration rights agreement,
we agreed to offer to exchange old notes for new notes registered under the Securities Act. We also agreed to deliver this prospectus to the holders of the old notes. In this prospectus the old notes and the new notes are referred to together as the
“notes.” You should read the discussion under the heading “Description of the Notes” for information regarding the notes.
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The Exchange Offer
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We are offering to exchange up to $1,000,000,000 principal amount of the new notes for an identical principal amount of the old notes. The new notes are substantially identical to the old notes, except that:
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the new notes will be freely transferable, other than as described in this prospectus;
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holders of the new notes will not be entitled to the rights of the holders of the old notes under the registration rights agreement; and
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the new notes will not contain any provisions regarding the payment of additional interest for failure to satisfy obligations under the registration rights agreement.
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Based on interpretations by the SEC’s staff in no-action letters issued to third parties, we believe that new notes issued in exchange for old notes in the exchange offer may be offered for resale, resold or
otherwise transferred by you without registering the new notes under the Securities Act or delivering a prospectus, unless you are a
broker-dealer
receiving notes for your own account, so long as:
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you are not one of our “affiliates,” which is defined in Rule 405 of the Securities Act;
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you acquire the new notes in the ordinary course of your business;
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you do not have any arrangement or understanding with any person to participate in the distribution of the new notes; and
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you are not engaged in, and do not intend to engage in, a distribution of the new notes.
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If you are an affiliate of L Brands, or you are engaged in, intend to engage in or have any arrangement or understanding with respect to, the distribution of new notes acquired in the exchange offer, you (1) should not
rely on our interpretations of the position of the SEC’s staff and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction.
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Registration Rights
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We have agreed to use our reasonable best efforts to consummate the exchange offer or cause the old notes to be registered under the
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Securities Act to permit resales within 210 days after the issue date of the old notes. If we are not in compliance with our obligations under the registration rights agreement, then additional
interest (in addition to the interest otherwise due on the notes that are the subject of that registration agreement or the new notes) will accrue on such notes or new notes upon such occurrence.
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If the exchange offer is completed on the terms and within the time period contemplated by this prospectus, no additional interest will be payable on the notes.
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No Minimum Condition
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The exchange offer is not conditioned on any minimum aggregate principal amount of old notes being tendered for exchange.
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Expiration Date
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The exchange offer will expire at 5:00 p.m., New York City time, on , 2016, unless it is extended.
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Exchange Date
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Old notes will be accepted for exchange beginning on the first business day following the expiration date, upon surrender of the old notes.
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Conditions to the Exchange Offer
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Our obligation to complete the exchange offer is subject to limited conditions. See “The Exchange Offer—Conditions to the Exchange Offer.” We reserve the right to terminate or amend the exchange offer at any time before the
expiration date if various specified events occur.
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Withdrawal Rights
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You may withdraw the tender of your old notes at any time before the expiration date. Any old notes not accepted for any reason will be returned to you without expense as promptly as practicable after the expiration or termination of the
exchange offer.
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Appraisal Rights
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Holders of old notes do not have any rights of appraisal for their notes if they elect not to tender their notes for exchange.
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Procedures for Tendering Old Notes
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See “The Exchange Offer—How to Tender.”
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Effect on Holders of Old Notes
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As a result of the making of, and upon acceptance for exchange of all validly tendered old notes pursuant to the terms of, the exchange offer, we will have fulfilled a covenant under the registration rights agreement. Accordingly, there will be
no increase in the interest rate on the outstanding notes under the circumstances described in the registration rights agreement. If you do not tender your old notes in the exchange offer, you will continue to be entitled to all the rights and
limitations applicable to the old notes as set forth in the indenture, except we will not have any further obligation to you to provide for the exchange and registration of the old notes under the registration rights agreement. To the extent that
old notes are tendered and accepted in the exchange offer, the trading market for old notes could be adversely affected.
|
4
|
Consequences of Failure to Exchange
|
All untendered old notes will continue to be subject to the restrictions on transfer set forth in the old notes and in the indenture. In general, the old notes may not be offered or sold, unless registered under the Securities Act, except
pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. Other than in connection with the exchange offer, we do not anticipate that we will register the old notes under the
Securities Act.
|
|
Material U.S. Tax Consequences of the Exchange Offer
|
Your exchange of old notes for new notes will not result in any income, gain or loss to you for federal income tax purposes. See “Material U.S. Tax Consequences of the Exchange Offer.”
|
|
Use of Proceeds
|
We will not receive any proceeds from the issuance of the new notes in the exchange offer.
|
|
Broker-Dealers
|
Each broker-dealer that receives new notes for its own account in exchange for old notes, where such notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will
comply with the registration and prospectus delivery requirements of the Securities Act in connection with any offer, resale or other transfer of such new notes, including information with respect to any selling holder required by the Securities Act
in connection with the resale of the new notes and must confirm that it has not entered into any arrangement or understanding with us or any of our affiliates to distribute the new notes. We have agreed that for a period of 180 days after the last
exchange date for the exchange offer, we will make this prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”
|
|
Exchange Agent
|
The Bank of New York Mellon Trust Company, N.A. is serving as exchange agent in connection with the exchange offer.
|
5
THE NEW NOTES
The summary below describes the principal terms of the new notes. The “Description of the Notes” section of this prospectus
contains a more detailed description of the terms and conditions of the old notes and the new notes. The new notes are substantially identical to the old notes, except that the new notes have been registered under the Securities Act and will not
have any of the transfer restrictions, additional interest provisions relating to the old notes and registration rights. The new notes will evidence the same debt as the old notes, be guaranteed by specified subsidiaries of L Brands, Inc. and be
entitled to the benefits of the indenture.
|
Notes Offered
|
$1,000,000,000 aggregate principal amount of new notes in exchange for $1,000,000,000 aggregate principal amount of outstanding old notes.
|
|
Maturity
|
November 1, 2035.
|
|
Interest Payment Dates
|
Interest on the new notes will be paid on May 1 and November 1, beginning on May 1, 2016.
|
|
Guarantees
|
The new notes will be guaranteed on an unsecured senior basis by each of our subsidiaries that guarantee our senior secured revolving facility.
|
|
Ranking
|
The notes will be our senior unsecured obligations and will:
|
|
|
•
|
|
rank senior to our future debt that is expressly subordinated in right of payment to the notes;
|
|
|
•
|
|
rank equally with all of our existing and future unsecured senior debt and other obligations that are not, by their terms, expressly subordinated in right of payment to the notes;
|
|
|
•
|
|
be effectively subordinated to all of our existing and future secured debt, to the extent of the value of the assets securing such debt (including obligations under our senior secured revolving facility), and be
structurally subordinated to all obligations of each of our subsidiaries that do not guarantee the notes; and
|
|
|
•
|
|
be effectively senior to any series of our existing and future senior unsecured notes that are not guaranteed by our subsidiaries to the extent of the assets of our subsidiaries that guarantee the notes offered hereby.
|
|
|
Similarly, the note guarantees will be senior unsecured obligations of the guarantors and will:
|
|
|
•
|
|
rank senior to all of the applicable guarantor’s existing and future debt that is expressly subordinated in right of payment to the guarantee;
|
6
|
|
•
|
|
rank equally with all of the applicable guarantor’s existing and future unsecured senior debt and other obligations that are not, by their terms, expressly subordinated in right of payment to the notes; and
|
|
|
•
|
|
be effectively subordinated to all of the applicable guarantor’s existing and future secured debt (including such guarantor’s guarantee under our senior secured revolving facility), to the extent of the value
of the assets securing such debt, and be structurally subordinated to all obligations of any subsidiary of a guarantor if that subsidiary is not also a guarantor of the notes.
|
|
|
As of October 31, 2015, we had (1) $981 million of unutilized capacity under our senior secured revolving facility (which reflects a reduction in availability as a result of $19 million of outstanding letters of credit)
and (2) approximately $5,771 million of consolidated total indebtedness, of which no indebtedness was secured and no indebtedness was owed by our subsidiaries which are not guarantors (and there was no intercompany indebtedness owed to the Company
and the guarantors).
|
|
|
L Brands, Inc. is a holding company and its most significant assets are the stock of its subsidiaries. The guarantors represent (i) substantially all of the sales of our domestic subsidiaries, (ii) more than 90% of the
assets owned by our domestic subsidiaries, other than real property, certain other assets and intercompany investments and balances and (iii) more than 95% of the accounts receivable and inventory directly owned by our domestic subsidiaries.
|
|
Optional Redemption
|
We may redeem the notes, in whole or in part, at any time or from time to time, at a price equal to 100% of the principal amount of the notes to be redeemed plus accrued and unpaid interest to the redemption date and a “make-whole”
premium, as described under “Description of the Notes—Optional Redemption.”
|
|
|
Additionally, from time to time before November 1, 2018, we may redeem up to 35% of the principal amount of the notes at a redemption price equal to 106.875% of the principal amount thereof with the net cash proceeds
that we raise in one or more qualified equity offerings, so long as at least 65% of the original aggregate principal amount of the notes remains outstanding afterwards.
|
|
Change of Control
|
If we experience “a change of control triggering event,” we will be required to make an offer to purchase the notes at a purchase price of 101% of the principal amount thereof, plus accrued and unpaid interest to the purchase date. See
“Description of the Notes—Change of Control.”
|
7
|
Covenants
|
The indenture governing the notes will restrict our ability and the ability of our subsidiaries to, among other things:
|
|
|
•
|
|
create certain liens; and
|
|
|
•
|
|
merge, consolidate, sell or otherwise dispose of all or substantially all of our assets.
|
|
|
These covenants are subject to important exceptions and qualifications described under the heading “Description of the Notes.”
|
|
Risk Factors
|
Before tendering old notes, holders should carefully consider all of the information set forth and incorporated by reference in this prospectus and, in particular, should evaluate the specific risk factors set forth under the section entitled
“Risk Factors.”
|
|
Absence of a Public Market for the Notes
|
The new notes are new issues of securities for which there is currently no established trading market. We do not intend to apply for listing of any of the new notes on any securities exchange or for quotation through any annotated quotation
system and a trading market for the new notes may not develop.
|
|
Trustee
|
The Bank of New York Mellon Trust Company, N.A.
|
|
Exchange Agent
|
The Bank of New York Mellon Trust Company, N.A.
|
8
SUMMARY HISTORICAL CONSOLIDATED FINANCIAL DATA
The following table contains our summary consolidated historical information and other operating data for the three years ended
January 31, 2015, February 1, 2014 and February 2, 2013, and the thirty-nine weeks ended October 31, 2015 and November 1, 2014. We have prepared the full year information from audited financial statements for the three
years ended January 31, 2015, February 1, 2014 and February 2, 2013. We have prepared the thirty-nine weeks information from our unaudited financial statements. In the opinion of our management, our unaudited financial statements
were prepared on the same basis as our audited financial statements and contain all adjustments (consisting of normal recurring adjustments) necessary to present fairly the information presented and may not necessarily be indicative of full year
results. This information is only a summary. You should read it in conjunction with our historical consolidated financial statements and related notes incorporated by reference into this prospectus.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended
|
|
|
Thirty-Nine Weeks Ended
|
|
|
|
|
February 2,
2013(1)
|
|
|
February 1,
2014
|
|
|
January 31,
2015
|
|
|
November 1,
2014
|
|
|
October 31,
2015
|
|
|
|
|
(in millions)
|
|
|
Income statement data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
|
|
$
|
10,459
|
|
|
$
|
10,773
|
|
|
$
|
11,454
|
|
|
$
|
7,385
|
|
|
$
|
7,759
|
|
|
Costs of goods sold, buying and occupancy
|
|
|
(6,073
|
)
|
|
|
(6,344
|
)
|
|
|
(6,646
|
)
|
|
|
(4,412
|
)
|
|
|
(4,558
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
4,386
|
|
|
|
4,429
|
|
|
|
4,808
|
|
|
|
2,973
|
|
|
|
3,201
|
|
|
General, administrative and store operating expenses
|
|
|
(2,720
|
)
|
|
|
(2,686
|
)
|
|
|
(2,855
|
)
|
|
|
(1,977
|
)
|
|
|
(2,087
|
)
|
|
Impairment of goodwill and other intangible assets
|
|
|
(93
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Operating income(2)
|
|
|
1,573
|
|
|
|
1,743
|
|
|
|
1,953
|
|
|
|
996
|
|
|
|
1,114
|
|
|
Interest expense
|
|
|
(316
|
)
|
|
|
(314
|
)
|
|
|
(324
|
)
|
|
|
(246
|
)
|
|
|
(237
|
)
|
|
Other income
|
|
|
24
|
|
|
|
17
|
|
|
|
7
|
|
|
|
6
|
|
|
|
75
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
1,281
|
|
|
|
1,446
|
|
|
|
1,636
|
|
|
|
756
|
|
|
|
952
|
|
|
Provision for income taxes
|
|
|
528
|
|
|
|
543
|
|
|
|
594
|
|
|
|
279
|
|
|
|
335
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income(3)
|
|
$
|
753
|
|
|
$
|
903
|
|
|
$
|
1,042
|
|
|
$
|
477
|
|
|
$
|
617
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
The fiscal year ended February 2, 2013 represents a 53-week fiscal year.
|
|
(2)
|
Operating income includes the effect of the following items:
|
|
|
(i)
|
In the fiscal year ended February 2, 2013, a $93 million impairment charge related to goodwill and other intangible assets for our La Senza business; a $27 million impairment charge related to long-lived stores
assets for our Henri Bendel business; and $14 million of expense associated with a store closure initiative at La Senza.
|
|
(3)
|
In addition to the items previously discussed in (2), net income includes the effect of the following items:
|
|
|
(i)
|
In the fiscal year ended February 2, 2013, a $13 million gain related to $13 million in cash distributions from certain of our investments in Easton, a 1,300 acre planned community in Columbus, Ohio that integrates
office, hotel, retail, residential and recreational space.
|
|
|
(ii)
|
In the thirty-nine weeks ended October 31, 2015, a $78 million pre-tax gain related to the divestiture of our remaining ownership interest in our third-party apparel sourcing business.
|
9
For additional information on items impacting the fiscal years ended January 31,
2015, February 1, 2014 and February 2, 2013, see the Notes to the Consolidated Financial Statements included in Item 8, Financial Statements and Supplementary Data, of our Annual Report on Form 10-K for the year ended
January 31, 2015, incorporated herein by reference.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of
|
|
|
|
|
February 2,
2013
|
|
|
February 1,
2014
|
|
|
January 31,
2015
|
|
|
November 1,
2014
|
|
|
October 31,
2015
|
|
|
|
|
(in millions)
|
|
|
Balance sheet data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
773
|
|
|
$
|
1,519
|
|
|
$
|
1,681
|
|
|
$
|
745
|
|
|
$
|
1,311
|
|
|
Total assets
|
|
|
6,019
|
|
|
|
7,198
|
|
|
|
7,544
|
|
|
|
7,149
|
|
|
|
7,969
|
|
|
Total debt
|
|
|
4,477
|
|
|
|
4,976
|
|
|
|
4,765
|
|
|
|
4,972
|
|
|
|
5,766
|
|
|
Total equity (deficit)
|
|
|
(1,014
|
)
|
|
|
(369
|
)
|
|
|
19
|
|
|
|
(433
|
)
|
|
|
(657
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended
|
|
|
Thirty-Nine Weeks Ended
|
|
|
|
|
February 2,
2013
|
|
|
February 1,
2014
|
|
|
January 31,
2015
|
|
|
November 1,
2014
|
|
|
October 31,
2015
|
|
|
|
|
(dollars in millions)
|
|
|
Other data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EBITDA(1)
|
|
$
|
1,951
|
|
|
$
|
2,128
|
|
|
$
|
2,358
|
|
|
$
|
1,299
|
|
|
$
|
1,493
|
|
|
Capital expenditures
|
|
|
588
|
|
|
|
691
|
|
|
|
715
|
|
|
|
585
|
|
|
|
603
|
|
|
Ratio of earnings to fixed charges(2)
|
|
|
4.1x
|
|
|
|
4.5x
|
|
|
|
4.7x
|
|
|
|
3.2x
|
|
|
|
3.8x
|
|
|
Net cash provided by (used for)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating activities
|
|
|
1,351
|
|
|
|
1,248
|
|
|
|
1,786
|
|
|
|
370
|
|
|
|
262
|
|
|
Investing activities
|
|
|
(531
|
)
|
|
|
(655
|
)
|
|
|
(699
|
)
|
|
|
(570
|
)
|
|
|
(332
|
)
|
|
Financing activities
|
|
|
(982
|
)
|
|
|
154
|
|
|
|
(919
|
)
|
|
|
(575
|
)
|
|
|
(302
|
)
|
|
Ratio of total debt to EBITDA(1)
|
|
|
2.3x
|
|
|
|
2.3x
|
|
|
|
2.0x
|
|
|
|
3.8x
|
|
|
|
3.9x
|
|
|
Ratio of EBITDA to cash interest(1)
|
|
|
7.1x
|
|
|
|
7.1x
|
|
|
|
7.2x
|
|
|
|
5.2x
|
|
|
|
6.1x
|
|
|
(1)
|
EBITDA is defined as earnings before interest, income taxes and depreciation and amortization. EBITDA is not a recognized term under GAAP and does not purport to be an alternative to net income as a measure of operating
performance or to cash flows from operating activities as a measure of liquidity. Additionally, it is not intended to be a measure of free cash flow for management’s discretionary use, as it does not consider certain cash requirements such as
interest payments, tax payments and debt service requirements. Because not all companies use identical calculations, this presentation may not be comparable to other similarly titled measures of other companies.
|
|
(2)
|
For purposes of calculating the ratio of earnings to fixed charges, earnings consist of income before income taxes plus fixed charges.
|
Reconciliation of Net Income to EBITDA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended
|
|
|
Thirty-Nine Weeks Ended
|
|
|
|
|
February 2,
2013
|
|
|
February 1,
2014
|
|
|
January 31,
2015
|
|
|
November 1,
2014
|
|
|
October 31,
2015
|
|
|
|
|
(in millions)
|
|
|
Net income
|
|
$
|
753
|
|
|
$
|
903
|
|
|
$
|
1,042
|
|
|
$
|
477
|
|
|
$
|
617
|
|
|
Interest expense
|
|
|
316
|
|
|
|
314
|
|
|
|
324
|
|
|
|
246
|
|
|
|
237
|
|
|
Income tax expense
|
|
|
528
|
|
|
|
543
|
|
|
|
594
|
|
|
|
279
|
|
|
|
335
|
|
|
Depreciation and amortization
|
|
|
354
|
|
|
|
368
|
|
|
|
398
|
|
|
|
297
|
|
|
|
304
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EBITDA
|
|
$
|
1,951
|
|
|
$
|
2,128
|
|
|
$
|
2,358
|
|
|
$
|
1,299
|
|
|
$
|
1,493
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10
Stores and Associates at End of Period
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended
|
|
|
Thirty-Nine Weeks Ended
|
|
|
|
|
February 2,
2013
|
|
|
February 1,
2014
|
|
|
January 31,
2015
|
|
|
November 1,
2014
|
|
|
October 31,
2015
|
|
|
Number of stores(1)
|
|
|
2,876
|
|
|
|
2,923
|
|
|
|
2,969
|
|
|
|
2,971
|
|
|
|
3,003
|
|
|
Selling square feet (in thousands)(1)
|
|
|
10,849
|
|
|
|
11,169
|
|
|
|
11,536
|
|
|
|
11,505
|
|
|
|
11,788
|
|
|
Number of associates
|
|
|
99,400
|
|
|
|
94,600
|
|
|
|
80,100
|
|
|
|
94,800
|
|
|
|
98,200
|
|
|
(1)
|
Number of stores and selling square feet excludes independently owned Victoria’s Secret Beauty and Accessories, Victoria’s Secret International, Bath & Body Works International and La Senza
International stores operated by our partners.
|
11
RISK FACTORS
Before tendering old notes, prospective participants in the exchange offer should carefully consider the risks described below relating to
the old notes and all of the information contained or incorporated by reference into this prospectus. Additional risks relating specifically to the exchange offer are also described below. The risks and uncertainties described below and in such
incorporated documents are not the only risks and uncertainties that we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also impair our business operations. If any of those risks actually
occurs, our business, financial condition and results of operations would suffer. The risks discussed below also include forward-looking statements and our actual results may differ substantially from those discussed in these forward-looking
statements. See “Forward Looking Statements” in this prospectus.
Risks Relating to the Notes and the Exchange Offer
You may not be able to sell your old notes if you do not exchange them for new notes in the exchange offer.
If you do not exchange your old notes for new notes in the exchange offer, your old notes will continue to be subject to the restrictions on
transfer as stated in the legend on the old notes. In general, you may not reoffer, resell or otherwise transfer the old notes in the United States unless they are:
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registered under the Securities Act;
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offered or sold under an exemption from the Securities Act and applicable state securities laws; or
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offered or sold in a transaction not subject to the Securities Act and applicable state securities laws.
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We do not currently anticipate that we will register the old notes under the Securities Act.
Holders of the old notes who do not tender their old notes will have no further registration rights under the registration rights
agreement.
Holders who do not tender their old notes will not have any further registration rights under the registration rights
agreement or otherwise and will not have rights to receive additional interest.
The market for old notes may be significantly more
limited after the exchange offer and you may not be able to sell your old notes after the exchange offer.
If old notes are
tendered and accepted for exchange under the exchange offer, the trading market for old notes that remain outstanding may be significantly more limited. As a result, the liquidity of the old notes not tendered for exchange could be adversely
affected. The extent of the market for old notes and the availability of price quotations would depend upon a number of factors, including the number of holders of old notes remaining outstanding and the interest of securities firms in maintaining a
market in the old notes. An issue of securities with a similar outstanding market value available for trading, which is called the “float,” may command a lower price than would be comparable to an issue of securities with a greater float.
As a result, the market price for old notes that are not exchanged in the exchange offer may be affected adversely as old notes exchanged in the exchange offer reduce the float. The reduced float also may make the trading price of the old notes that
are not exchanged more volatile.
Your old notes will not be accepted for exchange if you fail to follow the exchange offer
procedures and, as a result, your old notes will continue to be subject to existing transfer restrictions and you may not be able to sell your old notes.
We will not accept your old notes for exchange if you do not follow the exchange offer procedures. We will issue new notes as part of the
exchange offer only after timely receipt of your old notes, a properly completed
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and duly executed letter of transmittal and all other required documents. Therefore, if you want to tender your old notes, please allow sufficient time to ensure timely delivery. If we do not
receive your old notes, letter of transmittal and other required documents by the expiration date of the exchange offer, we will not accept your old notes for exchange. We are under no duty to give notification of defects or irregularities with
respect to the tenders of old notes for exchange. If there are defects or irregularities with respect to your tender of old notes, we will not accept your old notes for exchange.
There is no established trading market for the new notes.
The new notes will constitute a new issue of securities with no established trading market. A trading market for the new notes may not develop.
If a market does develop, it may not provide you the ability to sell your new notes. Further, you may not be able to sell your new notes at a favorable price or at all. If a market does develop, the new notes could trade at prices that may be higher
or lower than their principal amount or purchase price, depending on many factors, including prevailing interest rates, the market for similar notes and our financial performance.
Some persons who participate in the exchange offer must deliver a prospectus in connection with resales of the new notes.
Based on interpretations of the staff of the SEC contained in Exxon Capital Holdings Corp., SEC No-Action Letter available May 13, 1988,
Morgan Stanley & Co., Incorporated, SEC No-Action Letter available June 5, 1991 and Shearman & Sterling, SEC No-Action Letter available July 2, 1993, we believe that you may offer for resale, resell or otherwise transfer
the new notes without compliance with the registration and prospectus delivery requirements of the Securities Act. However, in some instances described in this prospectus under “Plan of Distribution,” you will remain obligated to comply
with the registration and prospectus delivery requirements of the Securities Act to transfer your new notes. In these cases, if you transfer any new note without delivering a prospectus meeting the requirements of the Securities Act or without an
exemption from registration of your new notes under the Securities Act, you may incur liability under this Act. We do not and will not assume, or indemnify you against, this liability.
Our substantial level of indebtedness could materially adversely affect our ability to fulfill our obligations under the notes, our
ability to react to changes in our business and our ability to incur additional debt to fund future needs.
We have a substantial
amount of debt. As of October 31, 2015, we had total debt of $5,766 million. For more detail regarding our total debt, see “Capitalization.”
Our substantial debt could have important consequences for our noteholders. For example, it could:
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make it more difficult for us to satisfy our obligations with respect to the notes;
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require us to dedicate a substantial portion of our cash flow from operations to payments on our debt, thereby reducing funds available for working capital, capital expenditures, acquisitions, research and development
and other purposes;
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increase our vulnerability to adverse economic and industry conditions;
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limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate;
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limit our noteholders’ rights to receive payments under the notes if secured creditors have not been paid;
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limit our ability to borrow additional funds, or to secure assets to raise funds, if needed, for working capital, capital expenditures, acquisitions, research and development and other purposes; and
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prevent us from raising the funds necessary to repurchase all notes tendered to us upon the occurrence of certain changes of control, which would constitute a default under the indenture governing the notes.
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Restrictions imposed by our senior secured revolving facility, our existing indentures and the indenture governing the
notes may limit our ability to operate our business and to finance our future operations or capital needs or to engage in other business activities.
Claims of noteholders will be structurally subordinate to claims of creditors of our non-guarantor subsidiaries.
As of their issue date, the notes will not be guaranteed by any of our subsidiaries who do not guarantee our senior secured revolving facility.
Claims of holders of the notes will be structurally subordinated to all of the liabilities of our subsidiaries that do not guarantee the notes. As of October 31, 2015, after giving effect to the indebtedness incurred in connection with the
notes, our subsidiaries that are not guarantors had no indebtedness, and there was no intercompany indebtedness owed to the Company and the guarantors. In the event of a bankruptcy, liquidation or dissolution of any of the non-guarantor
subsidiaries, holders of their indebtedness and their trade creditors will generally be entitled to payment on their claims from assets of those subsidiaries before any assets are made available for distribution to us. However, under some
circumstances, the terms of the notes will permit our non-guarantor subsidiaries to incur additional specified indebtedness.
We and
our subsidiaries may be able to incur substantially more debt, including secured debt.
Subject to the restrictions in our senior
secured revolving facility, the indentures governing the notes and our other outstanding indebtedness, we and our subsidiaries may incur significant additional debt, including secured debt, that would be effectively senior to the notes to the extent
of the value of the assets securing such debt. Although the terms of these facilities and the indentures governing the notes and our other outstanding indebtedness contain restrictions on the incurrence of additional debt, including secured debt,
these restrictions are subject to a number of important exceptions, and debt incurred in compliance with these restrictions could be substantial. If we and our restricted subsidiaries incur significant additional debt, the related risks that we face
could intensify. As of October 31, 2015, under the terms of our senior secured revolving facility, revolving loans available for borrowing were $981 million (which reflects a reduction in availability as a result of $19 million of outstanding
letters of credit).
We may not be able to finance a change of control offer required by the indenture.
Upon a change of control triggering event, as defined under the indenture governing the notes, you will have the right to require us to offer
to purchase all of the notes then outstanding at a price equal to 101% of the principal amount of the notes, plus accrued interest. In order to obtain sufficient funds to pay the purchase price of the outstanding notes, we expect that we would have
to refinance the notes. We cannot assure you that we would be able to refinance the notes on reasonable terms, if at all. Our failure to offer to purchase all outstanding notes or to purchase all validly tendered notes would be an event of default
under the indenture. Such an event of default may cause the acceleration of our other debt. Our future debt also may contain restrictions on repayment requirements with respect to specified events or transactions that constitute a change of control
under the indenture.
Federal and state statutes allow courts, under specific circumstances, to void the guarantees of the notes by
our subsidiaries and require the holders of the notes to return payments received from the subsidiary guarantors.
Under the
federal bankruptcy law and comparable provisions of state fraudulent transfer laws, the subsidiary guarantees could be voided, or claims in respect of the subsidiary guarantees could be subordinated to all other debts of a subsidiary guarantor if,
either, the subsidiary guarantee was incurred with the intent to hinder, delay or
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defraud any present or future creditors of the subsidiary guarantor or the subsidiary guarantors, at the time it incurred the indebtedness evidenced by its subsidiary guarantee, received less
than reasonably equivalent value or fair consideration for the incurrence of such indebtedness and the subsidiary guarantor either:
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was insolvent or rendered insolvent by reason of such incurrence;
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was engaged in a business or transaction for which such subsidiary guarantor’s remaining assets constituted unreasonably small capital; or
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intended to incur, or believed that it would incur, debts beyond its ability to pay such debts as they mature.
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If a subsidiary guarantee is voided, you will be unable to rely on the applicable subsidiary guarantor to satisfy your claim in the event that
we fail to make one or more required payments due on the notes. In addition, any payment by such subsidiary guarantor pursuant to its subsidiary guarantee could be voided and required to be returned to such subsidiary guarantor, or to a fund for the
benefit of creditors of such subsidiary guarantor.
The measures of insolvency for purposes of these fraudulent transfer laws will vary
depending upon the law applied in any proceeding to determine whether a fraudulent transfer has occurred. Generally, however, a subsidiary guarantor would be considered insolvent if:
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the sum of its debts, including contingent liabilities, were greater than the fair saleable value of all of its assets;
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the present fair saleable value of its assets were less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature;
or
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it could not pay its debts as they become due.
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There can be no assurance, however, as to what
standard a court would apply in making such determinations or that a court would agree with our or the subsidiary guarantors’ conclusions in this regard.
Risks Relating to Our Business and Operations
Our
net sales, profit results and cash flow are sensitive to, and may be adversely affected by, general economic conditions, consumer confidence, spending patterns and weather or other market disruptions.
Our net sales, profit, cash flows and future growth may be adversely affected by negative local, regional, national or international political
or economic trends or developments that reduce the consumers’ ability or willingness to spend, including the effects of national and international security concerns such as war, terrorism or the threat thereof. In addition, market disruptions
due to severe weather conditions, natural disasters, health hazards or other major events or the prospect of these events could also impact consumer spending and confidence levels. Purchases of women’s intimate and other apparel, beauty and
personal care products and accessories often decline during periods when economic or market conditions are unsettled or weak. In such circumstances, we may increase the number of promotional sales, which could have a material adverse effect on our
results of operations, financial condition and cash flows.
Extreme weather conditions in the areas in which our stores are located,
particularly in markets where we have multiple stores, could adversely affect our business. For example, heavy snowfall, rainfall or other extreme weather conditions over a prolonged period might make it difficult for our customers to travel to our
stores and thereby reduce our sales and profitability.
Our net sales, operating income, cash and inventory levels fluctuate on a seasonal basis.
We experience major seasonal fluctuations in our net sales and operating income, with a significant portion of our operating
income typically realized during the fourth quarter holiday season. Any decrease in sales or margins during this period could have a material adverse effect on our results of operations, financial condition and cash flows.
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Seasonal fluctuations also affect our cash and inventory levels, since we usually order
merchandise in advance of peak selling periods and sometimes before new fashion trends are confirmed by customer purchases. We must carry a significant amount of inventory, especially before the holiday season selling period. If we are not
successful in selling inventory, we may have to sell the inventory at significantly reduced prices or may not be able to sell the inventory at all, which could have a material adverse effect on our results of operations, financial condition and cash
flows.
Our net sales depend on a volume of traffic to our stores and the availability of suitable lease space.
Most of our stores are located in retail shopping areas including malls and other types of retail centers. Sales at these stores are derived,
in part, from the volume of traffic in those retail areas. Our stores benefit from the ability of the retail center and other attractions in an area, including “destination” retail stores, to generate consumer traffic in the vicinity of
our stores. Sales volume and retail traffic may be adversely affected by economic downturns in a particular area, competition from other retail and non-retail attractions and other retail areas where we do not have stores.
Part of our future growth is significantly dependent on our ability to operate stores in desirable locations with capital investment and lease
costs providing the opportunity to earn a reasonable return. We cannot be sure as to when or whether such desirable locations will become available at reasonable costs. These risks could have a material adverse effect on our results of operations,
financial condition and cash flows.
Our ability to grow depends in part on new store openings and existing store remodels and expansions.
Our continued growth and success will depend in part on our ability to open and operate new stores and expand and remodel existing
stores on a timely and profitable basis. Accomplishing our new and existing store expansion goals will depend upon a number of factors, including the ability to partner with developers and landlords to obtain suitable sites for new and expanded
stores at acceptable costs, the hiring and training of qualified personnel and the integration of new stores into existing operations. There can be no assurance we will be able to achieve our store expansion goals, manage our growth effectively,
successfully integrate the planned new stores into our operations or operate our new, remodeled and expanded stores profitably. These risks could have a material adverse effect on our results of operations, financial condition and cash flows.
Our plans for international expansion include risks that could adversely impact our results and reputation.
We intend to further expand into international markets through partner arrangements and/or company-owned stores. The risks associated with our
expansion into international markets include difficulties in attracting customers due to a lack of customer familiarity with our brands, our lack of familiarity with local customer preferences and seasonal differences in the market. Further, entry
into other markets may bring us into competition with new competitors or with existing competitors with an established market presence. Other risks include general economic conditions in specific countries or markets, disruptions or delays in
shipments, changes in diplomatic and trade relationships, political instability and foreign governmental regulation.
We also have risks
related to identifying suitable partners. In addition, certain aspects of these arrangements are not directly within our control, such as the ability of these third parties to meet their projections regarding store openings and sales and their
compliance with federal and local law. We cannot ensure the profitability or success of our expansion into international markets.
In
addition, our results of operations and financial condition may be adversely affected by fluctuations in currency exchange rates.
These
risks could have a material adverse effect on our results of operations, financial condition and cash flows.
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Our licensees, franchisees and wholesalers could take actions that could harm our business or brand images.
We have global representation through independently owned stores operated by our partners. Although we have criteria to evaluate
and select prospective partners, the level of control we can exercise over our partners is limited, and the quality and success of their operations may be diminished by any number of factors beyond our control. Our partners may not have the business
acumen or financial resources necessary to successfully operate stores in a manner consistent with our standards and may not hire and train qualified store managers and other personnel. Our brand image and reputation may suffer materially, and our
sales could decline if our partners do not operate successfully. These risks could have an adverse effect on our results of operations, financial condition and cash flows.
Our direct channel businesses include risks that could have an adverse effect on our results.
Our direct operations are subject to numerous risks that could have a material adverse effect on our results. Risks include, but are not
limited to, the difficulty in recreating the in-store experience through our direct channels; domestic or international resellers purchasing merchandise and reselling it outside our control; the maintenance and security of the Internet
infrastructure; our ability to anticipate and implement innovations in technology and logistics in order to appeal to existing and potential customers who increasingly rely on multiple channels to meet their shopping needs; the failure of and risks
related to the systems that operate our websites and the related support systems, including computer viruses, theft of customer information, privacy concerns, telecommunication failures and electronic break-ins and similar disruptions; and risks
related to the fulfillment of direct-to-consumer orders such as not adequately predicting customer demand.
Our failure to maintain
efficient and uninterrupted order-taking and fulfillment operations could also have a material adverse effect on our results. The satisfaction of our online customers depends on their timely receipt of merchandise. If we encounter difficulties with
the distribution facilities, or if the facilities were to shut down for any reason, including as a result of fire or other natural disaster or work stoppage, we could face shortages of inventory; incur significantly higher costs and longer lead
times associated with distributing our products to our customers; and cause customer dissatisfaction.
Any of these issues could have a
material adverse effect on our operations, financial condition and cash flows.
Our failure to protect our reputation could have a material adverse
effect on our brand images.
Our ability to maintain our reputation is critical to our brand images. Our reputation could be
jeopardized if we fail to maintain high standards for merchandise quality and integrity. Any negative publicity about these types of concerns may reduce demand for our merchandise. Failure to comply with ethical, social, product, labor and
environmental standards, or related political considerations, could also jeopardize our reputation and potentially lead to various adverse consumer actions, including boycotts. Failure to comply with local laws and regulations, to maintain an
effective system of internal controls, to maintain the security of customer, associate, supplier or company information or to provide accurate and timely financial statement information could also hurt our reputation. Damage to our reputation or
loss of consumer confidence for any of these or other reasons could have a material adverse effect on our results of operations, financial condition and cash flows, as well as require additional resources to rebuild our reputation.
Our failure to adequately protect our trade names, trademarks and patents could have a negative impact on our brand images and limit our ability to
penetrate new markets.
We believe that our trade names, trademarks and patents are important assets and an essential element of
our strategy. We have obtained or applied for federal registration of these trade names, trademarks and patents and
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have applied for or obtained registrations in many foreign countries. There can be no assurance that we will obtain such registrations or that the registrations we obtain will prevent the
imitation of our products or infringement of our intellectual property rights by others. If any third-party copies our products or our stores in a manner that projects lesser quality or carries a negative connotation, it could have a material
adverse effect on our brand image and reputation as well as our results of operations, financial condition and cash flows.
Our inability to compete
favorably in our highly competitive segment of the retail industry could negatively impact our results.
The sale of women’s
intimate and other apparel, personal care products and accessories is highly competitive. We compete for sales with a broad range of other retailers, including individual and chain specialty stores, department stores and discount retailers. In
addition to the traditional store-based retailers, we also compete with direct marketers or retailers that sell similar lines of merchandise and who target customers through online channels. Brand image, marketing, design, price, service, quality,
image presentation and fulfillment are all competitive factors in both the store-based and online channels.
Some of our competitors may
have greater financial, marketing and other resources available. In many cases, our competitors sell their products in stores that are located in the same shopping malls as our stores. In addition to competing for sales, we compete for favorable
site locations and lease terms in shopping malls.
Increased competition could result in price reductions, increased marketing
expenditures and loss of market share, any of which could have a material adverse effect on our results of operations, financial condition and cash flows.
Our inability to remain current with fashion trends and launch new product lines successfully could negatively impact the image and relevance of our
brands.
Our success depends in part on management’s ability to effectively anticipate and respond to changing fashion
preferences and consumer demands and to translate market trends into appropriate, saleable product offerings in advance of the actual time of sale to the customer. Customer demands and fashion trends change rapidly. If we are unable to successfully
anticipate, identify or react to changing styles or trends or we misjudge the market for our products or any new product lines, our sales will be lower, potentially resulting in significant amounts of unsold finished goods inventory. In response, we
may be forced to increase our marketing promotions or price markdowns. These risks could have a material adverse effect on our brand image and reputation as well as our results of operations, financial condition and cash flows.
We may be adversely impacted by our inability to adequately source, distribute and sell merchandise and other materials on a global basis.
We source merchandise and other materials directly in international markets and in our domestic market. We distribute merchandise and other
materials globally to our partners in international locations and to our stores. Many of our imports and exports are subject to a variety of customs regulations and international trade arrangements, including existing or potential duties, tariffs or
safeguard quotas. We compete with other companies for production facilities.
We also face a variety of other risks generally associated
with doing business on a global basis, such as:
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imposition of duties, taxes and other charges on imports or exports;
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legal and regulatory matters;
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volatility in currency exchange rates;
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local business practice and political issues (including issues relating to compliance with domestic or international labor standards) which may result in adverse publicity or threatened or actual adverse consumer
actions, including boycotts;
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potential delays or disruptions in shipping and transportation and related pricing impacts;
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disruption due to labor disputes; and
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changing expectations regarding product safety due to new legislation or other factors.
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We
also rely upon third-party transportation providers for substantially all of our product shipments, including shipments to and from our distribution centers, our stores and to our customers. Our utilization of these delivery services for shipments
is subject to risks, including increases in fuel prices, which would increase our shipping costs, and employee strikes and inclement weather, which may impact our transportation providers’ ability to provide delivery services that adequately
meet our shipping needs.
New initiatives may be proposed impacting the trading status of certain countries and may include retaliatory
duties or other trade sanctions which, if enacted, could impact our trading relationships with vendors or other parties in such countries.
In addition, significant health hazards, environmental hazards or natural disasters may occur which could have a negative effect on the
economies, financial markets and business activity of international markets.
Our future performance will depend upon these and the other
factors listed above which are beyond our control and could have a material adverse effect on our results of operations, financial condition and cash flows.
Fluctuations in foreign currency exchange rates could adversely impact our financial condition and results of operations.
We are exposed to foreign currency exchange rate risk with respect to our sales, profits, assets, and liabilities denominated in currencies
other than the U.S. dollar. In addition, our royalty arrangements are calculated based on sales in local currency and, as such, we are exposed to foreign currency exchange rate fluctuations. Although we use foreign currency forward contracts to
hedge certain foreign currency risks, these measures may not succeed in offsetting all of the short-term negative impact of foreign currency rate movements on our business and results of operations. Hedging would generally not be effective in
offsetting the long-term impact of sustained shifts in foreign exchange rates on our business results. As a result, the fluctuation in the value of the U.S. dollar against other currencies could have a material adverse effect on our results of
operations, financial condition and cash flows.
Our stock price may be volatile.
Our stock price may fluctuate substantially as a result of variations in our actual or projected performance or the financial performance of
other companies in the retail industry. In addition, the stock market has experienced price and volume fluctuations that have affected the market price of many retail and other stocks and that have often been unrelated or disproportionate to the
operating performance of these companies.
Our failure to maintain our credit rating could negatively affect our ability to access capital and could
increase our interest expense.
The credit ratings agencies periodically review our capital structure and the quality and stability
of our earnings. A deterioration in our capital structure or the quality and stability of our earnings could result in a downgrade of our credit rating. Any negative ratings actions could constrain the capital available to our company or our
industry and could limit our access to funding for our operations. We are dependent upon our ability to
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access capital at rates and on terms we determine to be attractive. If our ability to access capital becomes constrained, our interest costs will likely increase, which could have a material
adverse effect on our results of operations, financial condition and cash flows. Additionally, changes to our credit rating could affect our interest costs.
We may be unable to service or refinance our debt.
Some of our debt agreements contain covenants which require maintenance of certain financial ratios and also, under certain conditions,
restrict our ability to pay dividends, repurchase common shares and make other restricted payments as defined in those agreements. Our cash flow from operations provides the primary source of funds for our debt service payments. If our cash flow
from operations declines, we may be unable to service or refinance our current debt.
We may be unable to recruit, train and retain key personnel.
We believe we have benefited substantially from the leadership and experience of our senior executives, including Leslie H.
Wexner, Chairman of the Board of Directors and Chief Executive Officer. The loss of the services of any of these individuals could have a material adverse effect on our business and prospects. Competition for key personnel in the retail industry is
intense, and our future success will also depend on our ability to recruit, train and retain other qualified key personnel.
We may be unable to
attract, develop and retain qualified employees and manage labor-related costs.
We believe our competitive advantage is providing
a positive, engaging and satisfying experience for each individual customer, which requires us to have highly trained and engaged employees. Our success depends in part upon our ability to attract, develop and retain a sufficient number of qualified
employees, including store personnel and talented merchants. The turnover rate in the retail industry is generally high, and qualified individuals of the requisite caliber and number needed to fill these positions may be in short supply in some
areas. Competition for such qualified individuals or changes in labor and healthcare laws could require us to incur higher labor costs. Our inability to recruit a sufficient number of qualified individuals in the future may delay planned openings of
new stores or affect the speed with which we expand. Delayed store openings, significant increases in employee turnover rates or significant increases in labor-related costs could have a material adverse effect on our results of operations,
financial condition and cash flows.
Our manufacturers may not be able to manufacture and deliver products in a timely manner and meet quality
standards.
We purchase products through contract manufacturers and importers and directly from third-party manufacturers. Factors
outside our control, such as manufacturing or shipping delays or quality problems, could disrupt merchandise deliveries and result in lost sales, cancellation charges or excessive markdowns. In addition, quality problems could result in a product
liability judgment or a widespread product recall that may negatively impact our sales and profitability for a period of time depending on product availability, competition reaction and consumer attitudes. Even if the product liability claim is
unsuccessful or is not fully pursued, the negative publicity surrounding any assertions could adversely impact our reputation with existing and potential customers and our brand image. These risks could have a material adverse effect on our results
of operations, financial condition and cash flows.
Our results may be adversely affected by fluctuations in product input costs.
Product input costs, including manufacturing labor and raw materials, fluctuate. These fluctuations may result in an increase in our production
costs. We may not be able to, or may elect not to, pass these increases on to our customers which may adversely impact our profit margins. These risks could have a material adverse effect on our results of operations, financial condition and cash
flows.
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Our results may be adversely affected by fluctuations in energy costs.
Energy costs have fluctuated dramatically in the past. These fluctuations may result in an increase in our transportation costs for
distribution, utility costs for our retail stores and costs to purchase products from our manufacturers. A continual rise in energy costs could adversely affect consumer spending and demand for our products and increase our operating costs, both of
which could have a material adverse effect on our results of operations, financial condition and cash flows.
We may be adversely impacted by
increases in costs of mailing, paper and printing.
Postal rate increases and paper and printing costs will affect the cost of our
order fulfillment and promotional mailings. We rely on discounts from the basic postal rate structure, such as discounts for bulk mailings and sorting. Future paper and postal rate increases could adversely impact our earnings if we are unable to
recover these costs or if we are unable to implement more efficient printing, mailing, delivery and order fulfillment systems. These risks could have a material adverse effect on our results of operations, financial condition and cash flows.
We self-insure certain risks and may be adversely impacted by unfavorable claims experience.
We are self-insured for various types of insurable risks including associate medical benefits, workers’ compensation, property, general
liability and automobile up to certain stop-loss limits. Claims are difficult to predict and may be volatile. Any adverse claims experience could have a material adverse effect on our results of operations, financial condition and cash flows.
We significantly rely on our ability to implement and sustain information technology systems and to protect associated data.
Our success depends, in part, on the secure and uninterrupted performance of our information technology systems. Our information technology
systems, as well as those of our service providers, are vulnerable to damage from a variety of sources, including telecommunication failures, malicious human acts and natural disasters. Moreover, despite network security measures, some of our
servers and those of our service providers are potentially vulnerable to physical or electronic break-ins, computer viruses and similar disruptive problems. Additionally, these types of problems could result in a breach of confidential customer,
merchandise, financial or other important information which could result in damage to our reputation and/or litigation. The increased use of smartphones, tablets and other mobile devices may also heighten these and other operational risks. Despite
the precautions we have taken, unanticipated problems may nevertheless cause failures in our information technology systems. Sustained or repeated system failures that interrupt our ability to process orders and deliver products to the stores or
impact our consumers’ ability to access our websites in a timely manner or expose confidential customer, merchandise, financial or other important information could have a material adverse effect on our results of operations, financial
condition and cash flows.
In addition, from time to time, we make modifications and upgrades to the information technology systems for
point-of-sale, e-commerce, merchandising, planning, sourcing, logistics, inventory management and support systems including human resources and finance. Modifications involve replacing legacy systems with successor systems, making changes to legacy
systems or acquiring new systems with new functionality. We are aware of inherent risks associated with replacing these systems, including not accurately capturing data and system disruptions. Information technology system disruptions, if not
anticipated and appropriately mitigated, could have a material adverse effect on our operations, financial condition and cash flows.
We may fail to
maintain the security of customer, associate, supplier or company information which could have a negative impact on our reputation and our results.
Information systems are susceptible to an increasing threat of continually evolving cybersecurity risks. Any significant compromise or breach
of our data security could significantly damage our reputation with our
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customers, employees, investors and other third parties; cause the disclosure of confidential customer, associate, supplier or company information; cause our customers to stop shopping with us;
and result in significant legal, regulatory and financial liabilities and lost revenues. While we have implemented systems and processes to protect against unauthorized access to our information systems and prevent data loss, there is no guarantee
that these procedures are adequate to safeguard against all data security breaches. In addition to our own networks and databases, we use third-party service providers to store, process and transmit certain of this information on our behalf.
Although we contractually require these service providers to implement and use reasonable security measures, we cannot control third parties and cannot guarantee that a security breach will not occur in their systems. We have confidential security
measures in place to protect our physical facilities and information technology systems from attacks. Despite these measures, we may be vulnerable to targeted or random security breaches, acts of vandalism, computer viruses, misplaced or lost data,
programming and/or human errors or similar events.
The regulatory environment related to information security, data collection and
privacy is increasingly rigorous, with new and constantly changing requirements applicable to our business, and compliance with those requirements could result in additional costs, such as costs related to organizational changes, implementing
additional protection technologies, training employees and engaging consultants. Additionally, we could incur lost revenues and face increased litigation as a result of any potential cybersecurity breach.
These risks could have a material adverse effect on our results of operations, financial condition and cash flow.
We may fail to comply with regulatory requirements.
We are subject to numerous regulatory requirements. Our policies, procedures and internal controls are designed to comply with all applicable
foreign and domestic laws and regulations, including those required by the Sarbanes-Oxley Act of 2002, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, the SEC and the New York Stock Exchange (the “NYSE”). Failure to comply
with such laws and regulations could have an adverse effect on our reputation, market price of our common stock, results of operations, financial condition and cash flows.
We may be adversely impacted by changes in taxation requirements.
We are subject to income tax in local, national and international jurisdictions. In addition, our products are subject to import and excise
duties and/or sales or value-added taxes in many jurisdictions. The Company is also subject to the examination of its tax returns and other tax matters by the Internal Revenue Service and other tax authorities and governmental bodies. The Company
regularly assesses the likelihood of an adverse outcome resulting from these examinations to determine the adequacy of its provision for taxes. There can be no assurance as to the outcome of these examinations. Fluctuations in tax rates and duties,
changes in tax legislation or regulation or adverse outcomes of these examinations could have a material adverse effect on our results of operations, financial condition and cash flows.
We may be adversely impacted by certain compliance or legal matters.
We, along with third parties we do business with, are subject to complex compliance and litigation risks. Actions filed against our Company
from time to time include commercial, tort, intellectual property, customer, employment, data privacy, securities, anti-corruption and other claims, including purported class action lawsuits. Difficulty can exist in complying with sometimes
conflicting regulations in local, national or foreign jurisdictions as well as new or changing regulations that affect how we operate. In addition, we may be impacted by litigation trends, including class action lawsuits involving consumers and
shareholders, that could have a material adverse effect on our reputation, market price of our common stock, results of operations, financial condition and cash flows.
22
USE OF PROCEEDS
This exchange offer is intended to satisfy our obligations under the registration rights agreement. We will not receive any cash proceeds from
the issuance of the new notes. In consideration for issuing the new notes contemplated in this prospectus, we will receive outstanding securities in like principal amount, the form and terms of which are the same as the form and terms of the new
notes, except as otherwise described in this prospectus. The old notes surrendered in exchange for new notes will be retired and canceled. Accordingly, no additional debt will result from the exchange. We have agreed to bear the expense of the
exchange offer.
Our net proceeds from the sale of the old notes were approximately $988.4 million after the deduction of the initial
purchasers’ discounts and commissions and other expenses of the offering. We used those net proceeds for general corporate purposes, including capital expenditures, dividends and share repurchases.
23
CAPITALIZATION
The following table sets forth our cash and cash equivalents and capitalization as of October 31, 2015. You should read this table in
conjunction with the information under the heading “Summary Historical Consolidated Financial Data” and our consolidated financial statements, including the notes thereto, which are incorporated by reference into this prospectus.
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As of October 31, 2015
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(in millions)
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Cash and cash equivalents
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$
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1,311
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Senior secured revolving facility(1)
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—
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Total senior secured debt
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—
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Senior Unsecured Debt with Subsidiary Guarantee
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8.500% senior notes due 2019(2)
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501
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7.000% senior notes due 2020
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400
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6.625% senior notes due 2021
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1,000
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5.625% senior notes due 2022
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1,000
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5.625% senior notes due 2023
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500
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6.875% senior notes due 2035
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1,000
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Total senior unsecured debt with subsidiary guarantee(3)
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4,401
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Senior Unsecured Debt
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6.900% senior notes due 2017(4)
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711
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6.950% senior notes due 2033
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350
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7.600% senior notes due 2037
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299
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Other borrowings
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5
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Total senior unsecured debt
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1,365
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Total debt
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5,766
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Total equity (deficit)
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(657
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)
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Total capitalization
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$
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5,109
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(1)
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The aggregate amount of loan commitments under our senior secured revolving facility is $1 billion. As of October 31, 2015, there were no outstanding borrowings and $19 million in outstanding letters of credit.
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(2)
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The balances include a fair value interest rate hedge adjustment which increased the debt balance by $7 million as of October 31, 2015.
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(3)
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Reflects the total amount of indebtedness of L Brands, Inc. guaranteed by the subsidiary guarantors of the notes.
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(4)
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The balances include a fair value interest rate hedge adjustment which increased the debt balance by $11 million as of October 31, 2015.
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24
RATIOS OF EARNINGS TO FIXED CHARGES
The table below sets forth our ratios of earnings to fixed charges for the periods indicated.
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For the Fiscal Years Ended
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For the Thirty-Nine
Weeks Ended
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January 29,
2011
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January 28,
2012
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February 2,
2013
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February 1,
2014
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January 31,
2015
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October 31,
2015
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4.8x
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4.5x
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4.1x
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4.5x
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4.7x
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3.8x
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For the purpose of calculating the ratios of earnings to fixed charges, we calculate earnings by adding fixed
charges and distributions from equity method investees, net of income or losses from equity method investees, to pre-tax income from continuing operations before noncontrolling interests in consolidated subsidiaries and cumulative effect of changes
in accounting principle. Fixed charges include total interest and a portion of rent expense, which we believe is representative of the interest factor of our rent expense. Interest associated with income tax liabilities is excluded from our
calculation.
Pre-tax income includes the effect of the following special items:
In the thirty-nine weeks ended October 31, 2015, a $78 million gain related to the divestiture of our remaining ownership interest in our
third-party apparel sourcing business.
In the fiscal year ended February 2, 2013, a $93 million impairment charge related to
goodwill and other intangible assets for our La Senza business; a $27 million impairment charge related to long-lived stores assets for our Henri Bendel business; $14 million of expense associated with a store closure initiative at La Senza; and a
$13 million gain related to $13 million in cash distributions from certain of our investments in Easton, a 1,300 acre planned community in Columbus, Ohio that integrates office, hotel, retail, residential and recreational space.
In the fiscal year ended January 28, 2012, a $232 million impairment charge related to goodwill and other intangible assets for our La
Senza business; a $111 million gain related to the divestiture of 51% of our third-party apparel sourcing business; $163 million of expense related to the charitable contribution of our remaining shares of Express, Inc. to The Limited Brands
Foundation; $24 million of restructuring expenses at La Senza; a $147 million gain related to the charitable contribution of our remaining shares of Express, Inc. to the Limited Brands Foundation; and an $86 million gain related to the sale of
Express, Inc. common stock.
In the fiscal year ended January 29, 2011, a $52 million gain related to the initial public offering of
Express including the sale of a portion of our shares; a $49 million gain related to a $57 million cash distribution from Express; a $45 million gain related to the sale of Express stock; a $25 million loss associated with the early retirement of
portions of our 2012 and 2014 notes; a $20 million gain associated with the sale of our remaining 25% ownership interest in Limited Stores; and a $7 million gain related to a dividend payment from Express.
25
DESCRIPTION OF CERTAIN DEBT
The following descriptions are summaries of various material terms of certain indebtedness. They may not contain all the information that
may be important to you. The following summaries are qualified in their entirety by reference to the relevant agreements and indentures to which each summary relates, copies of which are available upon request. Capitalized terms used but not defined
in this section shall have the meanings set forth in the amended and restated credit agreement dated as of July 18, 2014 (as amended and restated through the date hereof, the “Credit Agreement”) among L Brands, certain of L
Brands’ subsidiaries, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, and the lenders party thereto (such lenders, collectively, the “Lenders”).
Senior Secured Revolving Facility
We
currently have a $1 billion secured revolving facility under our Credit Agreement (as amended, the “Revolving Facility”), which matures on July 18, 2019. The Revolving Facility allows L Brands and certain of its subsidiaries to borrow
and obtain letters of credit in U.S. dollars, Canadian dollars and British pounds sterling.
Fees and interest rates payable under the
Revolving Facility are based on our long-term credit ratings and, as of October 31, 2015, were 0.30% per annum of the committed and unutilized amounts and 1.50% per annum on outstanding letters of credit. As of October 31, 2015,
there were no borrowings outstanding under the Revolving Facility. We had $19 million of outstanding letters of credit as of October 31, 2015, which correspondingly reduced our availability under the Revolving Facility.
Our obligations under the Credit Agreement (as well as any obligation of L Brands or any Guarantor (as defined below) in respect of hedging
arrangements, cash management arrangements, open account agreements (subject to a cap) and certain separate letters of credit (subject to a cap), in each case, with any of the Lenders or their respective affiliates) (collectively,
“Obligations”) are guaranteed (the “Guarantees”) by L Brands’ existing and future domestic subsidiaries that are Material Subsidiaries (the “Guarantors”). The Obligations are secured by security interests in
existing and future tangible and intangible personal property of L Brands and the Guarantors, except to the extent prohibited by L Brands’ existing indentures and subject to additional exceptions for certain specified types of property and in
certain specified circumstances. The Guarantees and security interests shall be released if L Brands’ issuer credit rating (by S&P) and corporate family rating (by Moody’s) is BBB- and Baa3 or better (if rated by both S&P and
Moody’s) or BBB- or Baa3 or better (if rated by one credit rating agency only) and no Default shall have occurred and be continuing or would result from such release. The Guarantee and security interest of a Guarantor may also be released where
such Guarantor ceases to be a consolidated subsidiary of L Brands pursuant to a transaction permitted under the Credit Agreement.
The
Credit Agreement contains various covenants, including, for example, those that require L Brands to maintain certain specified fixed charge coverage and leverage ratios, and those that restrict the ability of L Brands and its Consolidated
Subsidiaries to incur certain types of indebtedness or to grant certain liens on their respective property or assets. With respect to the foregoing financial covenants, L Brands is required to maintain (x) a fixed charge coverage ratio of 1.75
to 1.00 and (y) a leverage ratio, as measured by Consolidated Debt over Consolidated EBITDA, as those terms are defined in the Credit Agreement, not to exceed 4.00 to 1.00. The Credit Agreement also includes additional covenants, which, for
example, restrict or limit the ability of L Brands and each of its Consolidated Subsidiaries to: (a) make new investments in, and new guarantees of indebtedness for the benefit of, non-Guarantor subsidiaries, subject to a $200 million basket
(which Investment covenant shall not apply if L Brands’ issuer credit rating (by S&P) and corporate family rating (by Moody’s) is BBB- and Baa3 or better (if rated by both S&P and Moody’s), or BBB- or Baa3 or better (if rated
by only one credit rating agency); (b) enter into additional agreements or instruments that restrict the granting of liens by L Brands or any of its Consolidated Subsidiaries to secure the Obligations (or the obligations under any facility that
refinances or replaces the Credit Facility); and (c) make Restricted Payments, except with respect to (i) distributions by wholly-owned Consolidated Subsidiaries, (ii) ratable dividends by Consolidated Subsidiaries, and, if
(A) no
26
Default or Event of Default exists and (B) the leverage ratio, as measured by Consolidated Debt over Consolidated EBITDA, is less than 4.00 to 1.00 (in each case of (A) and (B), at the
time of, and immediately after giving effect to such Restricted Payment), (iii) Restricted Payments by L Brands not to exceed the greater of (x) $500,000,000 and (y) 7.5% of Consolidated Total Assets (which Restricted Payment covenant
shall not apply if L Brands’ issuer credit rating (by S&P) and corporate family rating (by Moody’s) is BBB- and Baa3 or better (if rated by both S&P and Moody’s) or BBB- or Baa3 or better (if rated by one credit rating agency
only)); provided that, in each case of (a), (b) and (c), such covenants are subject to certain (other) exceptions or allowances; provided further, that the covenants described in clauses (a) and (c) shall not apply if (i) the
leverage ratio, as measured by Consolidated Debt over Consolidated EBITDA, is less than 3.00 to 1.00 and (ii) no Default or Event of Default exists (in each case of (i) and (ii), at the time of, and immediately after giving effect to, the
applicable investment or guarantee or Restricted Payment).
Other Existing Debt
In October 2015, L Brands issued $1 billion of the old notes.
In October 2013, L Brands issued $500 million of 5.625% senior notes due October 15, 2023. Interest on the 2023 notes is payable on
October 15 and April 15 of each year.
In February 2012, L Brands issued $1 billion of 5.625% senior notes due February 15,
2022. Interest on the 2022 notes is payable on February 15 and August 15 of each year.
In March 2011, L Brands issued $1
billion of 6.625% senior notes due April 1, 2021. Interest on the 2021 notes is payable on April 1 and October 1 of each year.
In May 2010, L Brands issued $400 million of 7.00% senior notes due May 1, 2020. Interest on the 2020 notes is payable on May 1 and
November 1 of each year.
In June 2009, L Brands issued $500 million of 8.50% senior notes due June 15, 2019. Interest on the
2019 notes is payable on June 15 and December 15 of each year.
In July 2007, L Brands issued $700 million of 6.90% notes due
July 2017 and $300 million of 7.60% notes due July 15, 2037 utilizing a shelf registration statement under which up to $1 billion of debt securities, common and preferred stock and other securities could be issued. Interest on the 2017 notes
and the 2037 notes is payable on January 15 and July 15 of each year.
Other outstanding notes of L Brands include $350 million
of 6.95% notes due March 2033.
27
THE EXCHANGE OFFER
Purpose of the Exchange Offer
On
October 30, 2015, L Brands, Inc. privately placed $1,000,000,000 aggregate principal amount of old notes in a transaction exempt from registration under the Securities Act. Accordingly, the old notes may not be reoffered, resold or otherwise
transferred in the United States unless so registered or unless an exemption from the Securities Act registration requirements is available. In the registration rights agreement, we agreed to file a registration statement with the SEC relating to
the exchange offer and upon effectiveness of the exchange offer registration statement, promptly commence the exchange offer.
In
addition, we have agreed to keep the exchange offer open for at least 20 business days, or longer if required by applicable law, after the date notice of the exchange offer is mailed to the holders of the old notes. The new notes are being offered
under this prospectus to satisfy our obligations under the registration rights agreement.
The exchange offer is not being made to, nor
will we accept tenders for exchange from, holders of old notes in any jurisdiction in which the exchange offer or acceptance of the exchange offer would violate the securities or blue sky laws of that jurisdiction.
The Exchange Offer
Upon the terms and
subject to the conditions contained in this prospectus and in the letter of transmittal that accompany this prospectus, we are offering to exchange $1,000 in principal amount of new notes for each $1,000 in principal amount of outstanding old notes.
The terms of the new notes are substantially identical to the terms of the old notes for which they may be exchanged in the exchange offer, except that:
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the new notes have been registered under the Securities Act and will be freely transferable, other than as described in this prospectus;
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the new notes will not contain any legend restricting their transfer;
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holders of the new notes will not be entitled to some of the rights of the holders of the old notes under the registration rights agreement, which rights will terminate on completion of the exchange offer; and
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•
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the new notes will not contain any provisions regarding the payment of additional interest.
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The new notes will evidence the same debt as the old notes and will be entitled to the benefits of the indenture.
The exchange offer is not conditioned on any minimum aggregate principal amount of old notes being tendered for exchange.
Based on interpretations by the SEC’s staff in no-action letters issued to other parties, we believe that a holder of new notes issued in
the exchange offer may transfer the new notes without complying with the registration and prospectus delivery requirements of the Securities Act if such holder:
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is not an affiliate of the Company within the meaning of Rule 405 under the Securities Act;
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is not a broker-dealer tendering old notes acquired directly from L Brands for its own account;
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acquired the old notes in the ordinary course of its business; and
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has no arrangements or understandings with any person to participate in this exchange offer for the purpose of distributing the old notes and has made representations to L Brands to that effect.
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28
Each broker-dealer that receives new notes for its own account in exchange for old notes, where
such old notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such new notes.
Furthermore, any broker-dealer that acquired any of its outstanding notes directly from us:
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may not rely on the applicable interpretation of the SEC staff’s position contained in Exxon Capital Holdings Corp., SEC No-Action Letter available May 13, 1988, Morgan Stanley & Co., Incorporated,
SEC No-Action Letter available June 5, 1991 and Shearman & Sterling, SEC No-Action Letter available July 2, 1993; and
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must also be named as a selling holder of the new notes in connection with the registration and prospectus delivery requirements of the Securities Act relating to any resale transaction.
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The letter of transmittal that accompanies this prospectus states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an underwriter within the meaning of the Securities Act. A participating broker-dealer may use this prospectus, as it may be amended or supplemented from time to time, in connection with resales of new notes
received in exchange for old notes where those new notes were acquired by the broker-dealer as a result of market-making activities or other trading activities. We have agreed that we will make available to any broker-dealer, without charge, as many
copies of this prospectus as such broker-dealer may reasonably request.
Tendering holders of old notes will not be required to pay
brokerage commissions or fees or, subject to the instructions in the applicable letter of transmittal, transfer taxes relating to the exchange of old notes for new notes in the exchange offer.
Shelf Registration Statement
If we and
the guarantors determine that, because of changes in law, SEC rules or regulations or applicable interpretations of the staff of the SEC, L Brands is not permitted to effect the exchange offer, or under certain other circumstances, L Brands will, at
its cost, file with the SEC and use its reasonable best efforts to cause to become effective after such determination a shelf registration statement with respect to resales of the old notes and new notes and to keep the registration statement
effective for two years, or, if earlier, the date when all old notes or new notes covered by the shelf registration statement have been sold pursuant to the shelf registration statement. L Brands will, in the event shelf registration is filed,
provide to each holder copies of a prospectus, notify each holder when the shelf registration statement for the old notes and new notes has become effective and take certain other actions as are required to permit resales of such notes.
A holder selling old notes or new notes under the shelf registration statement generally must be named as a selling security holder in the
related prospectus and must deliver a prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with those sales and will be bound by the provisions of the registration rights
agreement that are applicable to a selling holder, including certain indemnification obligations.
Additional Interest
We will pay additional cash interest on the principal amount of the old notes, in addition to the stated interest on the old notes, if:
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the SEC does not declare the registration statement of which this prospectus forms a part effective by April 25, 2016;
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neither the exchange offer has been completed nor the shelf registration statement has been declared effective on or before May 24, 2016; or
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29
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we have filed, and the SEC has declared effective, the shelf registration statement and at any time prior to the earlier of two years from the date the shelf registration is declared effective and such time as all the
notes covered by the shelf registration statement have been disposed of under the shelf registration statement, the shelf registration statement ceases to be effective, or fails to be usable for its intended purpose without being succeeded within
two business days by a post-effective amendment which cures the failure and that is itself immediately declared effective.
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Additional interest will accrue at a rate of 0.25% per annum on the principal amount during the 90-day period after the occurrence of the
registration default and will increase by 0.25% per annum at the end of each subsequent 90-day period from and including the date on which such registration default shall occur to, but excluding, the date on which the registration default is
cured. In no event will the rate exceed 0.50% per annum on the principal amount. If the exchange offer is completed on the terms and within the period contemplated by this prospectus, no additional interest will be payable.
The summary of the provisions of the registration rights agreement contained in this prospectus does not contain all of the terms of the
agreement. This summary is subject to and is qualified in its entirety by reference to all the provisions of the registration rights agreement, a copy of which is filed as an exhibit to the registration statement of which this prospectus forms a
part.
Expiration Date; Extensions; Termination; Amendments
The expiration date of the exchange offer is 5:00 p.m., New York City time, on , 2016, unless
L Brands in its sole discretion extends the period during which the exchange offer is open. In that case, the expiration date will be the latest time and date to which the exchange offer is extended. We expressly reserve the right to extend the
exchange offer at any time and from time to time before the expiration date by giving oral or written notice to The Bank of New York Mellon Trust Company, N.A., the exchange agent, and by timely public announcement. Unless otherwise required by
applicable law or regulation, the public announcement will be made by a release to Dow Jones New Service or other national newswire service. During any extension of the exchange offer, all old notes previously tendered in the exchange offer will
remain subject to the exchange offer. During any extension, all old notes previously tendered will remain subject to the exchange offer unless withdrawal rights are exercised. Any old notes not accepted for exchange for any reason will be returned
without expense to the tendering holder promptly following the expiration or termination of the offer.
The initial exchange date will be
the first business day following the expiration date. We expressly reserve the right to:
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terminate the exchange offer and not accept for exchange any old notes for any reason, including if any of the events described below under “—Conditions to the Exchange Offer” shall have occurred and
shall not have been waived by us; and
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amend the terms of the exchange offer in any manner.
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If any termination or amendment occurs,
we will notify the exchange agent in writing and will either issue a press release or give written notice to the holders of the old notes as promptly as practicable. Unless we terminate the exchange offer prior to 5:00 p.m., New York City time, on
the expiration date, we will exchange the new notes for the old notes on the exchange date.
If we waive any material condition to the
exchange offer or amend the exchange offer in any other material respect and at the time that notice of this waiver or amendment is first published, sent or given to holders of old notes in the manner specified above, the exchange offer is scheduled
to expire at any time earlier than the fifth business day from, and including, the date that the notice is first so published, sent or given, then the exchange offer will be extended until that fifth business day.
This prospectus and the letter of transmittal and other relevant materials will be mailed to record holders of old notes. In addition, these
materials will be furnished to brokers, banks and similar persons whose names, or the names of whose nominees, appear on the lists of holders for subsequent transmittal to beneficial owners of old notes.
30
How to Tender
The tender to L Brands of old notes according to one of the procedures described below will constitute an agreement between that holder of old
notes and L Brands in accordance with the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal.
General Procedures
. A holder of an old note may tender them by properly completing and signing the letter of transmittal or a facsimile
of the letter of transmittal or, in the case of a book-entry transfer, an agent’s message in lieu of such letter of transmittal, and delivering them, together with the certificate or certificates representing the old notes being tendered and
any required signature guarantees, or a timely confirmation of a book-entry transfer according to the procedure described below, to the exchange agent at the address set forth below under “—Exchange Agent” on or before the expiration
date, or complying with the guaranteed delivery procedures described below. All references in this prospectus to the letter of transmittal include a facsimile of the letter of transmittal.
If tendered old notes are registered in the name of the signer of the applicable letter of transmittal and the new notes to be issued in
exchange for accepted old notes are to be issued, and any untendered old notes are to be reissued, in the name of the registered holder, the signature of the signer need not be guaranteed. In any other case, the tendered old notes must be endorsed
or accompanied by written instruments of transfer in form satisfactory to L Brands. They must also be duly executed by the registered holder. In addition, the signature on the endorsement or instrument of transfer must be guaranteed by an eligible
guarantor institution that is a member of a recognized signature guarantee medallion program within the meaning of Rule 17Ad-15 under the Exchange Act. If the new notes and/or old notes not exchanged are to be delivered to an address other than that
of the registered holder appearing on the note register for the old notes, an eligible guarantor institution must guarantee the signature on the applicable letter of transmittal.
Any beneficial owner whose old notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and who
wishes to tender old notes should contact the holder promptly and instruct it to tender on the beneficial owner’s behalf. If the beneficial owner wishes to tender the old notes itself, the beneficial owner must either make appropriate
arrangements to register ownership of the old notes in its name or follow the procedures described in the immediately preceding paragraph. The beneficial owner must make these arrangements or follow these procedures before completing and executing
the letter of transmittal and delivering the old notes. The transfer of record ownership may take considerable time.
Book-Entry
Transfer
. The exchange agent will make a request to establish an account with respect to the old notes at The Depository Trust Company (“DTC”) for purposes of the exchange offer promptly after the date of this prospectus. Any financial
institution that is a participant in DTC’s systems may make book-entry delivery of old notes by causing DTC to transfer old notes into the exchange agent’s account in accordance with DTC’s Automated Tender Offer Program procedures for
transfer. However, the exchange for the old notes so tendered will only be made after timely confirmation of book-entry transfer of old notes into the exchange agent’s account, and timely receipt by the exchange agent of an agent’s
message, transmitted by DTC and received by the exchange agent and forming a part of a book-entry confirmation. The agent’s message must state that DTC has received an express acknowledgment from the participant tendering old notes that are the
subject of that book-entry confirmation that the participant has received and agrees to be bound by the terms of the letter of transmittal, and that we may enforce the agreement against that participant.
Although delivery of old notes may be effected through book-entry transfer into the exchange agent’s account at DTC, the letter of
transmittal, or a facsimile copy thereof or an agent’s message in lieu thereof, properly completed and duly executed, with any required signature guarantees, must in any case be transmitted to and received by the exchange agent at the address
set forth below under “—Exchange Agent” on or before the expiration date.
The method of delivery of old notes and all
other documents is at the election and risk of the holder. If sent by mail, it is recommended that the holder use registered mail, return receipt requested, obtain proper insurance,
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and make the mailing sufficiently in advance of the expiration date to permit delivery to the exchange agent on or before the expiration date.
If your old notes are held through DTC, you must complete a form called “instructions to registered holder and/or book-entry
participant,” which will instruct the DTC participant through whom you hold your securities of your intention to tender your old notes or not tender your old notes. Please note that delivery of documents to DTC in accordance with its procedures
does not constitute delivery to the exchange agent and we will not be able to accept your tender of notes until the exchange agent receives a letter of transmittal, or an agent’s message in lieu thereof, and a book-entry confirmation from DTC
with respect to your notes. A copy of that form is available from the exchange agent.
Guaranteed Delivery Procedures
. If a holder
desires to accept the exchange offer and time will not permit a letter of transmittal or agent’s message or old notes to reach the exchange agent before the expiration date, a tender may be effected if the exchange agent has received, at the
address set forth below under “—Exchange Agent,” on or before the expiration date a letter, telegram or facsimile transmission from an eligible guarantor institution that:
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sets forth the name and address of the tendering holder, the names in which the old notes are registered and, if possible, the certificate numbers of the old notes to be tendered; and
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states that the tender is being made thereby; and
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guarantees that within three New York Stock Exchange trading days after the date of execution of the letter, telegram or facsimile transmission by the eligible guarantor institution, the old notes, in proper form for
transfer, will be delivered by the eligible guarantor institution together with a properly completed and duly executed letter of transmittal or agent’s message and any other required documents.
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Unless old notes being tendered by the above-described method or a timely confirmation of a book-entry transfer are deposited with the
exchange agent within the time period described above, accompanied or preceded by a properly completed letter of transmittal or agent’s message and any other required documents, we may reject the tender. Copies of a notice of guaranteed
delivery which may be used by eligible guarantor institutions for the purposes described in this paragraph are being delivered with this prospectus and the letter of transmittal.
A tender will be deemed to have been received as of the date when the tendering holder’s properly completed and duly signed letter of
transmittal or agent’s message accompanied by the old notes or a timely confirmation of a
book-
entry transfer is received by an exchange agent. Issuances of new notes in exchange for old notes tendered
by an eligible guarantor institution as described above will be made only against deposit of the applicable letter of transmittal or agent’s message and any other required documents and the tendered old notes or a timely confirmation of a
book-entry transfer.
All questions as to the validity, form, eligibility, including time of receipt, and acceptance for exchange of any
tender of old notes will be determined by us. Our determination will be final and binding. We reserve the absolute right to reject any or all tenders not in proper form or the acceptances for exchange of which may, in the opinion of our counsel, be
unlawful. We also reserve the absolute right to waive any of the conditions of the exchange offer or any defect or irregularities in tenders of any particular holder whether or not similar defects or irregularities are waived in the case of other
holders. None of L Brands, the exchange agent or any other person will incur any liability for failure to give notification of any defects or irregularities in tenders. Our interpretation of the terms and conditions of the exchange offer, including
the letter of transmittal and the instructions to the letter of transmittal, will be final and binding.
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Terms and Conditions of the Letter of Transmittal
The letter of transmittal contains, among other things, the following terms and conditions, which are part of the exchange offer.
The party tendering old notes for exchange, or the transferor, exchanges, assigns and transfers the old notes to L Brands and irrevocably
constitutes and appoints our exchange agent as its agent and attorney-in-fact to cause the old notes to be assigned, transferred and exchanged. The transferor represents and warrants that:
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it has full power and authority to tender, exchange, assign and transfer the old notes and to acquire new notes issuable upon the exchange of the tendered old notes; and
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when the same are accepted for exchange, we will acquire good and unencumbered title to the tendered old notes, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim.
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The transferor also warrants that it will, upon request, execute and deliver any additional documents we deem necessary or
desirable to complete the exchange, assignment and transfer of tendered old notes. The transferor further agrees that acceptance of any tendered old notes by us and the issuance of new notes in exchange shall constitute performance in full of our
obligations under the registration rights agreement and that we will have no further obligations or liabilities under the registration rights agreement, except in certain limited circumstances. All authority conferred by the transferor will survive
the death or incapacity of the transferor and every obligation of the transferor shall be binding upon the heirs, legal representatives, successors, assigns, executors and administrators of the transferor.
By tendering old notes, the transferor certifies that:
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it is not an affiliate of L Brands within the meaning of Rule 405 under the Securities Act, that it is not a broker-dealer that owns old notes acquired directly from L Brands or its affiliates, that it is acquiring the
new notes offered hereby in the ordinary course of its business and that it has no arrangement with any person to participate in the distribution of the new notes; or
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it is an affiliate, as so defined, of L Brands or of an initial purchaser, and that it will comply with applicable registration and prospectus delivery requirements of the Securities Act.
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Each broker-dealer that receives new notes for its own account in the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of those new notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act.
Withdrawal Rights
Old notes
tendered in the exchange offer may be withdrawn at any time before 5:00 p.m., New York City time, on the expiration date.
For a
withdrawal to be effective, a written or facsimile transmission notice of withdrawal must be timely received by the exchange agent at the address set forth below under “—Exchange Agent.” Any notice of withdrawal must:
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state the name of the registered holder of the old notes;
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state the principal amount of old notes delivered for exchange;
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state that the holder is withdrawing its election to have those old notes exchanged;
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specify the principal amount of old notes to be withdrawn, which must be an authorized denomination;
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specify the certificate numbers of old notes to be withdrawn; and
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be signed by the holder in the same manner as the original signature on the applicable letter of transmittal, including any required signature guarantees, or be accompanied by evidence satisfactory to us that the person
withdrawing the tender has succeeded to the beneficial ownership of the old notes being withdrawn.
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If certificates for old
notes have been delivered or otherwise identified to the exchange agent, then prior to the release of those certificates, the withdrawing holder must also submit the serial numbers of the particular certificates to be withdrawn and a signed notice
of withdrawal with signatures guaranteed by an eligible institution unless that holder is an eligible institution.
If old notes have been
tendered pursuant to the procedure for book-entry transfer described above, the executed notice of withdrawal, guaranteed by an eligible institution, unless that holder is an eligible institution, must specify the name and number of the account at
the book-entry transfer facility to be credited with the withdrawn old notes and otherwise comply with the procedures of that facility. All questions as to the validity, form and eligibility, including time of receipt, of those notices will be
determined by us, and our determination shall be final and binding on all parties. Any old notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer. Any old notes which have been tendered
for exchange but which are not exchanged for any reason will be either:
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returned to the holder without cost to that holder; or
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in the case of old notes tendered by book-entry transfer into the applicable exchange agent’s account at the book-entry transfer facility pursuant to the book-entry transfer procedures described above, those old
notes will be credited to an account maintained with the book-entry transfer facility for the old notes, in either case as soon as practicable after withdrawal, rejection of tender or termination of the exchange offer.
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Properly withdrawn old notes may be retendered by following one of the procedures described under “—How to Tender” above at any
time on or prior to the expiration date.
Acceptance of Old Notes for Exchange; Delivery of New Notes
Upon the terms and subject to the conditions of the exchange offer, the acceptance for exchange of old notes validly tendered and not withdrawn
and the issuance of the new notes will be made on the exchange date. For the purposes of the exchange offer, we will be deemed to have accepted for exchange validly tendered old notes when, as and if we had given written notice of acceptance to the
exchange agent.
The exchange agent will act as agent for the tendering holders of old notes for the purposes of receiving new notes from
us and causing the old notes to be assigned, transferred and exchanged. Upon the terms and subject to the conditions of the exchange offer, delivery of new notes to be issued in exchange for accepted old notes will be made by the exchange agent
promptly after acceptance of the tendered old notes. Old notes not accepted for exchange will be returned without expense to the tendering holders. Or, in the case of old notes tendered by book-entry transfer, the non-exchanged old notes will be
credited to an account maintained with the book-entry transfer facility promptly following the expiration date. If we terminate the exchange offer before the expiration date, these non-exchanged old notes will be credited to the applicable exchange
agent’s account promptly after the exchange offer is terminated.
Conditions to the Exchange Offer
The exchange offer will not be subject to any conditions, other than:
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that the exchange offer, or the making of any exchange by a holder, does not violate applicable law or any applicable interpretation of the staff of the SEC;
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the due tendering of old notes in accordance with the exchange offer; and
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that each holder of the old notes exchanged in the exchange offer shall have represented that all new notes to be received by it shall be acquired in the ordinary course of its business and that at the time of the
consummation of the exchange offer it shall have no arrangement or understanding with any person to participate in the distribution (within the meaning of the Securities Act) of the new notes and shall have made such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other appropriate form under the Securities Act available.
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The conditions described above are for our sole benefit. We may assert these conditions regarding all or any portion of the exchange offer
regardless of the circumstances, including any action or inaction by us, giving rise to the condition. We may waive these conditions in whole or in part at any time or from time to time in our sole discretion. Our failure at any time to exercise any
of the rights described above will not be deemed a waiver of any of those rights, and each right will be deemed an ongoing right which may be asserted at any time or from time to time. In addition, we have reserved the right, despite the
satisfaction of each of the conditions described above, to terminate or amend the exchange offer.
Any determination by us concerning the
fulfillment or nonfulfillment of any conditions will be final and binding upon all parties. In addition, we will not accept for exchange any old notes tendered and no new notes will be issued in exchange for any old notes, if at that time any stop
order is threatened or in effect relating to:
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the registration statement of which this prospectus constitutes a part; or
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the qualification of the indenture under the Trust Indenture Act.
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Exchange Agent
The Bank of New York Mellon Trust Company, N.A. has been appointed as the exchange agent for the exchange offer. All executed letters of
transmittal should be directed to the exchange agent at one of the addresses set forth below. Questions and requests for assistance, requests for additional copies of this prospectus or of the letter of transmittal and requests for notices of
guaranteed delivery should be directed to the exchange agent, addressed as follows:
Deliver To:
The Bank of New York Mellon Trust Company, N.A., as Exchange Agent
c/o The Bank of New York Mellon Corporation
Corporate Trust Operations - Reorganization Unit
111 Sanders Creek Parkway
East
Syracuse, NY 13057
Attn: Allissa Overton
Tel: 315-414-3362
Fax:
732-667-9408
Email inquiries:
CT_REORG_UNIT_INQUIRIES@bnymellon.com
Solicitation of Tenders; Expenses
We
have not retained any dealer-manager or similar agent in connection with the exchange offer and will not make any payments to brokers, dealers or others for soliciting acceptances of the exchange offer. However, we will pay the exchange agent
reasonable and customary fees for its services and will reimburse it for reasonable out-of-pocket expenses in connection with its services. We will also pay brokerage houses and other custodians, nominees and fiduciaries the reasonable out-of-pocket
expenses incurred by them in forwarding tenders for their customers. The expenses to be incurred in connection with the exchange offer, including the fees
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and expenses of the exchange agent and printing, accounting and legal fees, will be paid by us and are estimated at approximately $115,000.
Appraisal Rights
Holders of old notes
will not have dissenters’ rights or appraisal rights in connection with the exchange offer.
Transfer Taxes
Holders who tender their old notes for exchange will not be obligated to pay any transfer taxes in connection with the exchange, except that
holders who instruct us to register new notes in the name of, or request that old notes not tendered or not accepted in the exchange offer be returned to, a person other than the registered tendering holder will be responsible for the payment of any
applicable transfer tax.
Accounting Treatment
We will record the new notes at the same carrying value of the original notes reflected in our accounting records on the date the exchange
offer is completed. Accordingly, we will not recognize any gain or loss for accounting purposes upon the exchange of new notes for original notes. We have recognized the expenses incurred in connection with the issuance of the new notes as of the
date of the exchange.
Other
Participation in the exchange offer is voluntary, and holders should carefully consider whether to accept the terms and conditions of this
offer. Holders of the old notes are urged to consult their financial and tax advisors in making their own decisions on what action to take.
As a result of the making of this exchange offer, and upon acceptance for exchange of all validly tendered old notes according to the terms of
this exchange offer, we will have fulfilled a covenant contained in the terms of the old notes and the registration rights agreement. Holders of the old notes who do not tender their certificates in the exchange offer will continue to hold those
certificates and will be entitled to all the rights, and limitations applicable to the old notes under the indenture, except for any rights under the registration rights agreement which by its terms terminates and ceases to have further effect as a
result of the making of this exchange offer.
All untendered old notes will continue to be subject to the restrictions on transfer set
forth in the indenture. In general, the old notes may not be reoffered, resold or otherwise transferred in the U.S. unless registered under the Securities Act or unless an exemption from the Securities Act registration requirements is available. We
do not intend to register the old notes under the Securities Act.
In addition, any holder of old notes who tenders in the exchange offer
for the purpose of participating in a distribution of the new notes may be deemed to have received restricted securities. If so, that holder will be required to comply with the registration and prospectus delivery requirements of the Securities Act
in connection with any resale transaction. To the extent that old notes are tendered and accepted in the exchange offer, the trading market, if any, for the old notes could be adversely affected.
We may in the future seek to acquire untendered old notes in open market or privately negotiated transactions, through subsequent exchange
offers or otherwise. We have no present plan to acquire any old notes that are not tendered in the exchange offer.
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DESCRIPTION OF THE NOTES
As used below, the terms “we,” “us,” “our” and “L Brands” refer only to L Brands, Inc. and not to
any of its Subsidiaries. The definitions of certain capitalized terms used in this section are set forth below under “—Certain Definitions.” Capitalized terms used but not defined in this section shall have the meanings set forth in
the Indenture.
General
The old
notes were issued under an indenture (the “Indenture”) dated as of October 30, 2015 among us, the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”). The Indenture is
subject to and governed by the Trust Indenture Act of 1939, as amended (the “TIA”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The following is a summary of
the material terms and provisions of the Notes and the Indenture. However, this summary does not purport to be a complete description of the Notes or the Indenture and is subject to the detailed provisions of, and qualified in its entirety by
reference to, the Indenture, a copy of which is available from us upon request. We urge you to read the Indenture carefully because it, and not the following description, will govern your rights as a holder of the Notes.
Maturity, Interest, Form and Denomination
The Notes are being issued in an original aggregate principal amount of $1,000,000,000. The Notes will mature on November 1, 2035 and will
bear interest at the rate of 6.875% per year.
Interest will be payable semiannually in arrears on May 1 and November 1 of
each year commencing on May 1, 2016 to holders of record of the Notes on the preceding April 15 and October 15, respectively. If an interest payment date falls on a day that is not a business day, interest will be payable on the next
succeeding business day with the same force and effect as if made on such interest payment date. Interest on the Notes will be calculated on the basis of a 360-day year of twelve 30-day months.
The Notes will be issued in fully registered form in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The
registered holder of a Note will be treated as the owner of such Note for all purposes of the Indenture.
Further Issuances of the Notes
We may, from time to time, without the consent of the existing holders of the Notes, issue additional notes (“Additional Notes”)
under the Indenture having the same terms as the Notes in all respects, except for the issue date, the issue price and the initial interest payment date. Any such Additional Notes will be consolidated with and form a single series with the Notes
offered hereby for all purposes of the Indenture. If the Additional Notes are not fungible with the Notes for U.S. federal income tax purposes, the Additional Notes will have a different CUSIP number.
Ranking
The Notes will be our senior
unsecured obligations and:
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will rank equally with all our other senior unsecured indebtedness from time to time outstanding;
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will rank senior to any of our future indebtedness, if any, from time to time outstanding that is expressly subordinated to the Notes;
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will rank effectively junior to all of our secured indebtedness, if any, from time to time outstanding, including our indebtedness under our Senior Credit Facility, in each case, to the extent of the value of the
collateral securing such indebtedness;
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will rank effectively junior to all indebtedness and liabilities of our Subsidiaries that are not Subsidiary Guarantors (as defined herein) to the extent of the value of such Subsidiaries;
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will be guaranteed by the Subsidiary Guarantors on a senior unsecured basis as described below under “Subsidiary Guarantees”; and
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will rank effectively senior to any series of our existing and future unsecured debt securities that are not guaranteed by our subsidiaries to the extent of the value of the assets of the guarantors.
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Each Subsidiary Guarantee will be the senior unsecured obligation of the applicable Subsidiary Guarantor and:
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will rank equally with all other senior unsecured indebtedness of such Subsidiary Guarantor from time to time outstanding;
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will rank senior to any future indebtedness, if any, of such Subsidiary Guarantor from time to time outstanding that is expressly subordinated to such Subsidiary Guarantor’s Subsidiary Guarantee; and
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will rank effectively junior to all of such Subsidiary Guarantor’s secured indebtedness, if any, from time to time outstanding, including such Subsidiary Guarantor’s guarantee of indebtedness under our Senior
Credit Facility, in each case, to the extent of the value of the collateral of such Subsidiary Guarantor securing such indebtedness.
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The guarantors represent (i) substantially all of the sales of our domestic subsidiaries, (ii) more than 90% of the assets owned by
our domestic subsidiaries, other than real property, certain other assets and intercompany investments and balances and (iii) more than 95% of the accounts receivable and inventory directly owned by our domestic subsidiaries.
Subsidiary Guarantees
The Notes will be
guaranteed (each such guarantee being referred to as a “Subsidiary Guarantee”), on a joint and several senior unsecured basis, on the Issue Date by each of our Domestic Subsidiaries that is a guarantor of our Senior Credit Facility (each
such Subsidiary being referred to as a “Subsidiary Guarantor”). On January 25, 2016, the Subsidiary Guarantors will consist of the following Subsidiaries: Bath & Body Works Brand Management, Inc., Bath & Body Works
Direct, Inc., Bath & Body Works, LLC, beautyAvenues, LLC (formerly beautyAvenues, Inc.), Intimate Brands, Inc., Intimate Brands Holding, LLC, L Brands Direct Fulfillment, Inc. (formerly Limited Brands Direct Fulfillment, Inc.), L Brands
Service Company, LLC (formerly Limited Brands Service Company, LLC), L Brands Store Design & Construction, Inc. (formerly Limited Store Planning, Inc.), La Senza, Inc., Mast Industries, Inc., Victoria’s Secret Direct Brand Management,
LLC, Victoria’s Secret Stores Brand Management, Inc. and Victoria’s Secret Stores, LLC. Following the Issue Date, additional Domestic Subsidiaries will be required to become Subsidiary Guarantors to the extent set forth below under
“—Additional Subsidiary Guarantees.” The obligations of a Subsidiary Guarantor under its Subsidiary Guarantee will be limited to the extent necessary to prevent the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee from constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
The Indenture provides that the
Subsidiary Guarantee of a Subsidiary Guarantor will be automatically and unconditionally released:
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in the event of a sale or other transfer of Equity Interests in such Subsidiary Guarantor or dissolution of such Subsidiary Guarantor in compliance with the terms of the Indenture following which such Subsidiary
Guarantor ceases to be a Consolidated Subsidiary;
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upon such Subsidiary Guarantor ceasing to be a borrower or guarantor under any Senior Credit Facility; or
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in connection with a satisfaction and discharge, Covenant Defeasance or Legal Defeasance of the Indenture in accordance with the provisions described below.
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Optional Redemption
Make-whole redemption
The Notes
will be redeemable in whole or in part, at our option, at any time and from time to time at a redemption price equal to the greater of (1) 100% of the principal amount of the Notes to be redeemed and (2) the sum of the present values of
the remaining scheduled payments of principal and interest thereon to maturity discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 50 basis points, plus
accrued interest thereon to the date of redemption. The Trustee will have no obligation to calculate or determine the Redemption Price.
Redemption
from proceeds of qualified equity offerings
Prior to November 1, 2018 we may, with the net proceeds of one or more Qualified
Equity Offerings, redeem up to 35% of the aggregate principal amount at maturity of the outstanding Notes (including Additional Notes) at a redemption price equal to 106.875% of the principal amount thereof, plus accrued and unpaid interest thereon,
if any, to, but not including, the applicable redemption date; provided that at least 65% of the principal amount at maturity of Notes issued under the Indenture (including Additional Notes) remains outstanding immediately after the occurrence of
any such redemption (excluding Notes held by us or our Subsidiaries) and that any such redemption occurs within 90 days following the closing of any such Qualified Equity Offering.
Notice of any redemption will be sent at least 30 days but not more than 60 days before the redemption date to each holder of Notes to be
redeemed.
Unless we default in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the
Notes or portions thereof called for redemption.
Change of Control
If a Change of Control Triggering Event occurs, unless we have exercised our right to redeem the Notes as described above, holders of Notes
will have the right to require us to repurchase all or any part in an integral multiple of $1,000 of their Notes (provided that no Note will be purchased in part if the remaining principal amount of such Note would be less than $2,000) pursuant to
the offer described below (the “Change of Control Offer”) on the terms set forth in the Indenture. In the Change of Control Offer, we will be required to offer payment in cash equal to 101% of the aggregate principal amount of Notes
repurchased plus accrued and unpaid interest, if any, on the Notes repurchased, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event, or, at our option, prior to any
Change of Control, but after the public announcement of the Change of Control, we will be required to send a notice to holders of Notes describing the transaction or transactions that constitute or may constitute the Change of Control Triggering
Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is sent (the “Change of Control Payment Date”), pursuant to the
procedures required by the Indenture and described in such notice. The notice shall, if sent prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event
occurring on or prior to the payment date specified in the notice. We must comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict
with the Change of Control provisions of the Indenture, we will be required to comply with the applicable securities laws and regulations and will not be deemed to have breached our obligations under the Change of Control provisions of the Indenture
by virtue of such conflicts.
On the Change of Control Payment Date, we will be required, to the extent lawful, to:
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accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
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deposit with the paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
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deliver or cause to be delivered to the Trustee the Notes properly accepted together with an officers’ certificate stating the aggregate principal amount of Notes or portions of Notes being purchased.
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The definition of Change of Control includes the occurrence of a direct or indirect sale, transfer, conveyance or other
disposition (other than by way of a merger or consolidation) of “all or substantially all” of the properties or assets of L Brands and its Subsidiaries taken as a whole. See “—Certain Definitions—Change of Control.”
Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a holder of Notes to require L Brands to
repurchase its Notes as a result of a sale, transfer, conveyance or other disposition of less than all of the assets of L Brands and its Subsidiaries taken as a whole to another Person or group may be uncertain.
Limitations on Liens
We have agreed
under the Indenture that we will not, and will not permit any Subsidiary to, incur, issue, assume or guarantee any indebtedness for money borrowed if such indebtedness is secured by a pledge of, lien on or security interest in any shares of Voting
Stock of any Significant Subsidiary, whether such Voting Stock is now owned or is hereafter acquired, without providing that the Notes (together with, if we shall so determine, any other indebtedness or obligations of L Brands, Inc. or any
Subsidiary ranking equally with the Notes and then existing or thereafter created) shall be secured equally and ratably with such indebtedness. The foregoing limitation shall not apply to indebtedness secured by a pledge of, lien on or security
interest in any shares of Voting Stock of any corporation at the time it becomes a Significant Subsidiary.
Additional Subsidiary Guarantees
If, after the Issue Date, any of our Domestic Subsidiaries becomes a borrower or guarantor under the Senior Credit Facility, then, in each such
case, we will be required to cause such Domestic Subsidiary to:
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execute and deliver to the Trustee a supplemental indenture pursuant to which such Domestic Subsidiary shall unconditionally guarantee all of our obligations under the Notes and the Indenture; and
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deliver to the Trustee one or more opinions of counsel that, subject to customary qualifications, such supplemental indenture (i) has been duly authorized, executed and delivered by such Subsidiary and
(ii) constitutes a valid and legally binding obligation of such Subsidiary in accordance with its terms.
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Limitations on Mergers and
Sales of Assets
We have agreed under the Indenture not to consolidate with or merge into another corporation, or sell other than for
cash or lease all or substantially all our assets to another corporation, or purchase all or substantially all the assets of another corporation, unless:
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either L Brands, Inc. is the continuing corporation or the successor corporation (if other than L Brands, Inc.) expressly assumes by supplemental indenture the obligations of the Notes (in which case, except in the case
of such a lease, we will be discharged from these obligations); and
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immediately after the merger, consolidation, sale or lease, no Default shall have occurred and be continuing.
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Reports
Whether or not required by the
rules and regulations of the SEC, so long as any Notes are outstanding, the Indenture will provide that we will file with the SEC (unless the SEC will not accept such filings) and furnish to the holders of Notes all quarterly and annual financial
information, and on dates, that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Notes were registered under the Exchange Act.
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Defaults
The Indenture provides that each of the following will constitute an “Event of Default”:
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default for 30 days in payment of interest upon any Note;
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default in payment of principal or premium, if any, on any Note;
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default, for 90 days after notice, in the performance of any other covenant in the Indenture; and
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certain events of bankruptcy or insolvency.
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If an Event of Default should occur and be
continuing, either the Trustee or the holders of 25% in aggregate principal amount of the Notes then outstanding may declare the Notes due and payable. Holders of a majority in aggregate principal amount of the Notes then outstanding will be
entitled to control certain actions of the Trustee under the Indenture and to waive past Defaults. Subject to the provisions of the Indenture relating to the duties of the Trustee, the Trustee will not be under any obligation to exercise any of the
rights or powers vested in it by the Indenture at the request, order or direction of any of the holders of Notes, unless one or more of such holders of Notes shall have offered to the Trustee security or indemnity satisfactory to the Trustee.
If an Event of Default occurs and is continuing, any sums held or received by the Trustee under the Indenture may be applied to reimburse the
Trustee for all amounts due to the Trustee under the Indenture prior to any payments to holders of the Notes.
The right of any holder of
Notes to institute an action for any remedy (except such holder’s right to enforce payment of the principal of, and premium, if any, and interest on such holder’s Note when due) will be subject to certain conditions precedent, including a
written notice to the Trustee by such holder of the occurrence of one or more Events of Default, a request to the Trustee by the holders of not less than 25% in aggregate principal amount of the Notes then outstanding to take action and an offer
satisfactory to the Trustee of security and indemnity against liabilities incurred by it in so doing.
Satisfaction and Discharge
The Indenture and the guarantees will be discharged and will cease to be of further effect as to all outstanding Notes when either:
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(a)
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all the Notes that have been authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has been deposited in trust or segregated and held in
trust by us and thereafter repaid to us or discharged from this trust) have been delivered to the Trustee for cancellation; or
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(b)
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all Notes not delivered to the Trustee for cancellation otherwise (x) have become due and payable, (y) will become due and payable, or may be called for redemption, within one year or (z) have been called
for redemption pursuant to the provisions described under “—Optional Redemption,” and, in any case, the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds, in trust solely for the benefit of the
holders of Notes, U.S. legal tender, U.S. government obligations or a combination thereof, in such amounts as will be sufficient (without consideration of any reinvestment of interest) to pay and discharge the entire indebtedness (including all
principal and accrued interest) on the Notes not theretofore delivered to the Trustee for cancellation;
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(c)
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we have paid all other sums payable by us under the Indenture; and
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(d)
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we have delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or on the date of redemption, as the case may be.
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Legal Defeasance and Covenant Defeasance
We may, at our option and at any time, elect to have our obligations and the obligations of the Subsidiary Guarantors discharged with respect
to the outstanding Notes (“Legal Defeasance”). Legal Defeasance means that we and the Subsidiary Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by the Notes and the Subsidiary Guarantees, and the
Indenture shall cease to be of further effect as to all outstanding Notes and Subsidiary Guarantees, except as to:
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(a)
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rights of holders to receive payments in respect of the principal of and interest on the Notes when such payments are due from the trust funds referred to below;
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(b)
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our obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes, and the maintenance of an office or agency for payment and money for
security payments held in trust;
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(c)
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the rights, powers, trust, duties, and immunities of the Trustee, and our obligations in connection therewith; and
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(d)
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the Legal Defeasance provisions of the Indenture.
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In addition, we may, at our option and at
any time, elect to have our obligations and the obligations of the Subsidiary Guarantors released with respect to most of the covenants under the Indenture, except as described otherwise in the Indenture (“Covenant Defeasance”), and
thereafter any omission to comply with such obligations shall not constitute a Default. In the event Covenant Defeasance occurs, certain Events of Default (not including non-payment and bankruptcy events) will no longer apply. Covenant Defeasance
will not be effective until such bankruptcy events no longer apply. We may exercise our Legal Defeasance option regardless of whether we have previously exercised Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance:
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(a)
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we must irrevocably deposit with the Trustee, as trust funds, in trust solely for the benefit of the holders, U.S. legal tender, U.S. government obligations or a combination thereof, in such amounts as will be
sufficient (without consideration of any reinvestment of interest) in the opinion of a nationally recognized firm of independent public accountants selected by us, to pay the principal of and interest on the Notes on the stated date for payment or
on the redemption date of the principal or installment of principal of or interest on the Notes;
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(b)
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in the case of Legal Defeasance, we shall have delivered to the Trustee an opinion of counsel in the United States confirming that:
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(i)
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we have received from, or there has been published by the Internal Revenue Service, a ruling; or
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(ii)
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since the Issue Date, there has been a change in the applicable U.S. federal income tax law;
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in either case to the effect that, and based thereon this opinion of counsel shall confirm that, the holders of Notes will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
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(c)
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in the case of Covenant Defeasance, we shall have delivered to the Trustee an opinion of counsel in the United States confirming that the holders of the Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the Covenant Defeasance had not occurred;
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(d)
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no Default shall have occurred and be continuing on the date of such deposit;
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(e)
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the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a Default under the Indenture or a default under any other material agreement or instrument to which we or any of
our Subsidiaries is a party or by which we or any of our Subsidiaries is bound;
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(f)
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we shall have delivered to the Trustee an officers’ certificate stating that the deposit was not made by it with the intent of preferring the holders of Notes over any other of our creditors or with the intent of
defeating, hindering, delaying or defrauding any other of our creditors or others; and
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(g)
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we shall have delivered to the Trustee an officers’ certificate and an opinion of counsel, each stating that the conditions provided for in, in the case of the officers’ certificate, clauses (a) through
(f) and, in the case of the opinion of counsel, clauses (b) and/or (c) and (e) of this paragraph have been complied with.
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If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when
due, then our obligations and the obligations of the Subsidiary Guarantors under the Indenture will be revived and no such defeasance will be deemed to have occurred.
Modification of the Indenture
The
Indenture contains provisions permitting us and the Trustee, without the consent of the holders of Notes, to, among other things, issue Additional Notes under the Indenture, comply with the terms of the TIA, make changes that are not adverse to the
holders of Notes and add additional Subsidiary Guarantors (or release additional Subsidiary Guarantors from their Subsidiary Guarantees in accordance with the Indenture) by one or more supplemental indentures and, with the consent of the holders of
not less than a majority in aggregate principal amount of the Notes at the time outstanding, to modify the Indenture or any supplemental Indenture or the rights of the holders of the Notes; provided that no such modification will:
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extend the fixed maturity of any Note, reduce the rate or extend the time of payment of interest thereon, reduce the principal amount thereof or the premium, if any, thereon, reduce the amount of the principal payable
on any date, change the coin or currency in which principal of or any premium or interest on any Notes are payable, release all or substantially all of the Subsidiary Guarantors from their Subsidiary Guarantees (other than in accordance with the
Indenture) or impair the right to institute suit for the enforcement of any such payment on or after the maturity thereof, without the consent of the holder of each Note affected thereby; or
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reduce the aforesaid percentage of Notes, the consent of the holders of which is required for any such modification without the consent of the holders of all Notes then outstanding; or
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modify without the written consent of the Trustee the rights, duties or immunities of the Trustee.
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Concerning the Trustee
The Trustee has
loaned money to us and provided other services to us in the past and may do so in the future as a part of its regular business. We will be required to file annually with the Trustee a statement of certain officers specified in the Indenture as to
the fulfillment of our obligations under the Indenture during the preceding year.
Certain Definitions
“Below Investment Grade Rating Event” means the Notes are rated below an Investment Grade Rating by both of the Rating Agencies (as
defined below) on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall
be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies (the “Relevant
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Period”)); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular
Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Triggering Event) if the Rating Agencies making the reduction in rating to which this definition would
otherwise apply either (1) did not reduce the ratings of the Notes during the Relevant Period or (2) do not announce or publicly confirm that the reduction was the result, in whole or in part, of any event or circumstance comprised of or
arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event).
“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or
other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of L Brands and its Subsidiaries taken as a whole to any “Person” (as
that term is used in Section 13(d)(3) of the Exchange Act) other than L Brands or one of its Subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any
“Person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of L Brands’ voting stock; or (3) the
first day on which a majority of the members of L Brands’ Board of Directors are not Continuing Directors. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) we become a wholly owned
Subsidiary of a holding company that has agreed to be bound by the terms of the Notes and (2) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of our voting
stock immediately prior to that transaction.
“Change of Control Triggering Event” means the occurrence of both a Change of
Control and a Below Investment Grade Rating Event.
“Comparable Treasury Issue” means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term of such Notes.
“Comparable Treasury Price”
means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if we obtain fewer
than four such Reference Treasury Dealer Quotations, the average of all such Quotations.
“Continuing Directors” means, as of
any date of determination, any member of the Board of Directors of L Brands who (1) was a member of such Board of Directors on the Issue Date; or (2) was nominated for election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election (either by a specific vote or by approval of L Brands’ proxy statement in which such member was named as a nominee for
election as a director, without objection to such nomination).
“Default” shall mean an Event of Default or an event that, with
the giving of notice, the passage of time, or both, would constitute an Event of Default.
“Disqualified Equity Interests” of
any Person means any class of Equity Interests of such Person that, by its terms, or by the terms of any related agreement or of any security into which it is convertible, puttable or exchangeable, is, or upon the happening of any event or the
passage of time would be, required to be redeemed by such Person, whether or not at the option of the holder thereof, or matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, in whole or in part, on or prior to
the date which is 91 days after the final maturity date of the Notes.
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“Domestic Subsidiary” means any of our Subsidiaries which is organized under the laws
of the United States or any state thereof or the District of Columbia.
“Equity Interests” of any Person means (1) any and
all shares or other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such Person and (2) all rights to purchase, warrants or options (whether or not currently
exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such Person.
“Independent Investment Banker” means one of the Reference Treasury Dealers that we appoint.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the
equivalent) by S&P, and the equivalent investment grade credit rating from any replacement rating agency or rating agencies selected by us.
“Issue Date” means October 30, 2015.
“Moody’s” means Moody’s Investors Service, Inc.
“Person” means any individual, partnership, corporation, limited liability company, joint stock company, business trust, trust,
unincorporated association, joint venture or other entity, or a government or political subdivision or agency thereof.
“Qualified
Equity Offerings” means a public or private offering of Equity Interests (other than Disqualified Equity Interests) of L Brands generating gross proceeds of at least $50.0 million.
“Rating Agencies” means (1) each of Moody’s and S&P; and (2) if either Moody’s or S&P ceases to rate the
Notes or fails to make a rating of the Notes publicly available for reasons outside of our control, a “nationally recognized statistical rating organization” registered under Section 15E of the Exchange Act, selected by us (as
certified by a resolution of our Board of Directors) as a replacement agency for Moody’s or S&P, or both of them, as the case may be.
“Reference Treasury Dealers” means (1) Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets
Inc. and J.P. Morgan Securities LLC and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer (a “Primary Treasury Dealer”), we shall substitute another
nationally recognized investment banking firm that is a Primary Treasury Dealer, and (2) two other Primary Treasury Dealers selected by us.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average,
as determined by us, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to us by such Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding such redemption date.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc.
“Senior Credit Facility” shall mean each of (i) the Amended and Restated Five-Year Revolving Credit
Agreement, among L Brands, Inc., the Lenders party thereto, and JPMorgan Chase Bank N.A., as Administrative Agent and Collateral Agent, dated as of October 6, 2004, as amended or amended and restated as of November 5,
2004, March 22, 2006, August 3, 2007, February 19, 2009, March 8, 2010 and July 15, 2011 and (ii) any other indebtedness for borrowed money of L Brands or any of its Domestic Subsidiaries in excess
of $100.0 million.
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“Significant Subsidiary” means a Subsidiary (treated for purposes of this definition on
a consolidated basis together with its Subsidiaries) which meets any of the following conditions:
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our and our other Subsidiaries’ investments in and advances to the Subsidiary exceed ten percent of the total assets of ours and our Subsidiaries consolidated as of the end of the most recently completed fiscal
year;
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our and our other Subsidiaries’ proportionate share of the total assets (after intercompany eliminations) of the Subsidiary exceeds ten percent of the total assets of ours and our Subsidiaries consolidated as of
the end of the most recently completed fiscal year; or
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our and our other Subsidiaries’ equity in the income from continuing operations before income taxes, extraordinary items and cumulative effect of a change in accounting principles of the Subsidiary exceeds ten
percent of such income of ours and our Subsidiaries consolidated for the most recently completed fiscal year.
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“Subsidiary” means a corporation, a majority of the outstanding voting stock of which is owned, directly or indirectly, by us or by
one or more other Subsidiaries, or by us and one or more other Subsidiaries.
“Treasury Rate” means, with respect to any
redemption date, the rate per annum equal to the semiannual equivalent yield to a maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount equal to the
Comparable Treasury Price for such redemption date).
“Voting Stock” means capital stock the holders of which have general
voting power under ordinary circumstances to elect at least a majority of the Board of Directors of a corporation; provided that, for the purpose of such definition, capital stock which carries only the right to vote conditioned on the occurrence of
an event shall not be considered Voting Stock whether or not such event shall have occurred.
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MATERIAL U.S. TAX CONSEQUENCES OF THE EXCHANGE OFFER
The exchange of old notes for new notes in the exchange offer will not result in any United States federal income tax consequences to
beneficial owners. The tax consequences of holding the new notes (including the accrual of original issue discount on the new notes) are identical to those of holding the old notes. Accordingly, when a holder exchanges an old note for a new note in
the exchange offer, the beneficial owner will have the same adjusted basis and holding period in the new note as in the old note immediately before the exchange.
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account pursuant to the exchange offer notes must acknowledge that it will deliver a
prospectus in connection with any resale of such new notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new notes received in exchange for the old notes where
such old notes were acquired as a result of
market-
making activities or other trading activities. We and the guarantors have agreed that, starting on the expiration date and ending on the close of business
180 days after the expiration date, it will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until
, 2016, all dealers effecting transactions in the new notes may be required to deliver a prospectus.
We and the guarantors will not receive any proceeds from any sale of new notes by broker-dealers. New notes received by broker-dealers for
their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the new notes or a combination of such methods
of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such broker-dealer and or the purchasers of any such new notes. Any broker-dealer that resells new notes that were received by it for its own account pursuant to the exchange offer and
any broker or dealer that participates in a distribution of such new notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit of any such resale of new notes and any commissions or concessions
received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an “underwriter” within the meaning of the Securities Act.
For a period of six months after the expiration
date, we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the letter of transmittal. We and the guarantors have agreed to pay all expenses
incident to the exchange offer (including the expenses of one counsel for the holder of the notes) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the notes (including any broker-dealers) against
certain liabilities, including liabilities under the Securities Act.
VALIDITY OF SECURITIES
The validity of the new notes and the related guarantees will be passed on for us by Davis Polk & Wardwell LLP, New York, New York.
EXPERTS
The consolidated financial statements of L Brands, Inc. appearing in L Brands, Inc.’s Annual Report (Form 10-K) for the year ended
January 31, 2015 (including schedules appearing therein), and the effectiveness of L Brands, Inc.’s internal control over financial reporting as of January 31, 2015 have been audited by Ernst & Young LLP, independent registered public
accounting firm, as set forth in their reports thereon, included therein,
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and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in
accounting and auditing.
With respect to the unaudited condensed consolidated interim financial information of L Brands, Inc. and
subsidiaries for the thirty-nine week periods ended October 31, 2015 and November 1, 2014, all of which are incorporated by reference in this prospectus, Ernst & Young LLP reported that they have applied limited procedures in
accordance with professional standards for a review of such information. However, their separate reports dated December 4, 2015 and December 5, 2014, respectively, included in the L Brands, Inc. Quarterly Reports on Form 10-Q for the
periods then ended, and incorporated by reference herein, state 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.
WHERE YOU CAN FIND MORE
INFORMATION
We file reports and other information with the SEC. Such reports and other information filed by us may be inspected and
copied at the SEC’s public reference room at 100 F Street NE, Washington, D.C. 20549. For further information about the public reference room, call 1-800-SEC-0330. The SEC also maintains a website on the Internet that contains reports, proxy
and information statements and other information regarding registrants that file electronically with the SEC, and such website is located at
http://www.sec.gov
.
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address:
L Brands, Inc.
Investor Relations
Department
Three Limited Parkway
Columbus, Ohio 43230
INCORPORATION OF DOCUMENTS BY REFERENCE
This document incorporates by reference the documents set forth below. The information
incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future
filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than, in each case, documents or information deemed to have been furnished and not filed
in accordance with SEC rules), on or after the date of this prospectus until all of the notes are sold.
The following documents filed
with the SEC are incorporated by reference into this prospectus:
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(a)
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Annual Report on Form 10-K for the year ended January 31, 2015;
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(b)
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Quarterly Reports on Form 10-Q for the quarterly periods ended May 2, 2015, August 1, 2015 and October 31, 2015;
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(c)
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Current Reports on Form 8-K filed on May 26, 2015 (with respect to Items 5.02 and 5.07 only) and as furnished on June 19, 2015 (with respect to Item 7.01 only); and
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(d)
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Definitive Proxy Statement on Form 14A filed on April 10, 2015.
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Our Annual Report on
Form 10-K for the year ended January 31, 2015 provides guarantor financial information pursuant to Rule 3-10 of Regulation S-X regarding our subsidiaries that are guarantors of the notes.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 20.
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Indemnification of Directors and Officers
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We are a Delaware corporation.
Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) enables a corporation to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of the
director’s fiduciary duty, except:
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for any breach of the director’s duty of loyalty to the corporation or its stockholders;
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for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions); or
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for any transaction from which the director derived an improper personal benefit.
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In
accordance with Section 102(b)(7) of the DGCL, the Restated Certificate of Incorporation of L Brands includes a provision eliminating, to the fullest extent permitted by the DGCL, the liability of L Brands’ directors to L Brands or its
stockholders for monetary damages for breach of fiduciary as director.
Section 145(a) of the DGCL empowers a corporation to
indemnify any present or former director, officer, employee or agent of the corporation, or any individual serving at the corporation’s request as a director, officer, employee or agent of another organization, 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 (other than an action by or in the right of the corporation), against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding provided that such director, officer, employee or agent acted in good faith and
in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, provided further that such director, officer, employee or agent had no reasonable
cause to believe his or her conduct was unlawful.
The DGCL provides that the indemnification described above shall not be deemed
exclusive of any other indemnification that may be granted by a corporation pursuant to its bylaws, disinterested directors’ vote, stockholders’ vote, agreement or otherwise.
The DGCL also provides corporations with the power to purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the corporation in a similar capacity for another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him or
her in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability as described above.
In accordance with Section 145(a) of the DGCL, L Brands’ Amended and Restated Bylaws provide that every 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 such person, or such person’s testator or intestate,
is or was serving as a director or officer of L Brands or is or was serving at the request of L Brands 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, shall be indemnified and held harmless to the fullest extent legally permissible under the DGCL against all expenses (including attorney’s fees), judgments, penalties, fines and amounts paid in settlement reasonably
incurred by such person in connection with such action, suit or proceeding (including appeals) or the defense or settlement thereof or any
II-1
claim, issue, or matter therein. Expenses incurred by a director or officer in defending such an action, suit or proceeding shall be paid by L Brands in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay any amount if it is ultimately determined that such director or officer is not entitled to indemnification by L Brands as authorized by the relevant
sections of the DGCL.
The Registration Rights Agreement filed as Exhibit 4.3 to this registration statement provides for indemnification
of directors and officers of the Registrants by the initial purchasers against certain liabilities.
|
Item 21.
|
Exhibits and Financial Statement Schedules
|
(a)
Exhibits
. Reference is made to
the Exhibit Index filed as part of this registration statement.
(b)
Financial Statement Schedules
. Reference is made to the
financial statements or notes thereto included in the prospectus to which this registration statement relates.
Each undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made of 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;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the 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 the 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
(iii) to include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in the registration statement.
(b) That,
for the purpose of determining any liability under the Securities Act of 1933, 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.
(c) 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.
(d) 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 15(d) of the Securities Exchange Act of 1934 (“Exchange Act”) (and, where applicable, 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 the registration statement shall be deemed 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.
(e) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser, 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.
II-2
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 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.
(f) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 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.
(g) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 of 1933 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 Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(h) The undersigned Registrant hereby undertakes to respond to requests for information that is incorporated
by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this registration statement, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This
includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(i) The undersigned Registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
II-3
SIGNATURES
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-4 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 January 25, 2016.
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|
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L BRANDS, INC.
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By:
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/s/ Stuart B. Burgdoerfer
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Name:
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Stuart B. Burgdoerfer
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Title:
|
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Executive Vice President and Chief Financial Officer
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(Mr. Burgdoerfer is the principal financial officer and the principal accounting officer and has been duly authorized to sign on behalf of the Registrant)
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed
by the following persons in the capacities and as of the dates indicated.
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Signature
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Title
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Date
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*
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Chairman of the Board and
Chief Executive Officer
(Principal
Executive Officer)
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January 25, 2016
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Leslie H. Wexner
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/s/ Stuart B. Burgdoerfer
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Executive Vice President and
Chief Financial Officer (Principal Financial Officer and Principal
Accounting Officer)
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January 25, 2016
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Stuart B. Burgdoerfer
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*
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Director
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January 25, 2016
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E. Gordon Gee
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*
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Director
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January 25, 2016
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Dennis S. Hersch
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*
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Director
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|
January 25, 2016
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Donna A. James
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*
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Director
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January 25, 2016
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David T. Kollat
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*
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Director
|
|
January 25, 2016
|
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William R. Loomis, Jr.
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|
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|
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*
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Director
|
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January 25, 2016
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Jeffrey H. Miro
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Signature
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Title
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Date
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*
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Director
|
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January 25, 2016
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Michael G. Morris
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|
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*
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Director
|
|
January 25, 2016
|
|
Stephen D. Steinour
|
|
|
|
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|
|
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*
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Director
|
|
January 25, 2016
|
|
Allan R. Tessler
|
|
|
|
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|
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|
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*
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Director
|
|
January 25, 2016
|
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Abigail S. Wexner
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*
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Director
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January 25, 2016
|
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Raymond Zimmerman
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*By
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/s/ Stuart B. Burgdoerfer
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Attorney-in-Fact
|
GUARANTOR SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrants certify that they have reasonable grounds to believe that they
meet all of the requirements for filing on Form S-4 and have duly caused this registration statement to be signed on their behalf by the undersigned, thereunto duly authorized, in the City of Columbus, State of Ohio, on January 25, 2016.
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BATH & BODY WORKS BRAND MANAGEMENT,
INC.
BATH & BODY WORKS DIRECT, INC.
INTIMATE BRANDS, INC.
L BRANDS DIRECT FULFILLMENT, INC.
L BRANDS STORE DESIGN & CONSTRUCTION,
INC.
LA SENZA, INC.
MAST INDUSTRIES, INC.
VICTORIA’S SECRET STORES
BRAND MANAGEMENT,
INC.
|
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|
|
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By:
|
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/s/ Stuart B. Burgdoerfer
|
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|
|
Name:
|
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Stuart B. Burgdoerfer
|
|
|
|
Title:
|
|
Principal Financial Officer,
Principal Accounting Officer and Director
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints
Leslie H. Wexner, Stuart B. Burgdoerfer and Timothy J. Faber, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power to act separately and 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) to this registration statement and to file the same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or either of them or his or her or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
|
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Title
|
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Date
|
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|
|
|
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/s/ Leslie H. Wexner
Leslie H. Wexner
|
|
Principal Executive Officer
|
|
January 25, 2016
|
|
|
|
|
|
/s/ Stuart B. Burgdoerfer
|
|
Principal Financial Officer,
Principal Accounting Officer and Director
|
|
January 25, 2016
|
|
Stuart B. Burgdoerfer
|
|
|
|
|
|
|
|
/s/ Shelley Milano
|
|
Director
|
|
January 25, 2016
|
|
Shelley Milano
|
|
|
|
|
GUARANTOR SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrants certify that they have reasonable grounds to believe that they
meet all of the requirements for filing on Form S-4 and have duly caused this registration statement to be signed on their behalf by the undersigned, thereunto duly authorized, in the City of Columbus, State of Ohio, on January 25, 2016.
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BATH & BODY WORKS, LLC
VICTORIA’S SECRET STORES, LLC
|
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By:
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RETAIL STORE OPERATIONS, INC., its sole member
|
|
|
|
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By:
|
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/s/ Stuart B. Burgdoerfer
|
|
|
|
Name:
|
|
Stuart B. Burgdoerfer
|
|
|
|
Title:
|
|
Principal Financial Officer,
Principal Accounting Officer and Director
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints
Leslie H. Wexner, Stuart B. Burgdoerfer and Timothy J. Faber, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power to act separately and 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) to this registration statement and to file the same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or either of them or his or her or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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|
|
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|
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Signature
|
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Title
|
|
Date
|
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|
|
|
|
/s/ Leslie H. Wexner
Leslie H. Wexner
|
|
Principal Executive Officer
|
|
January 25, 2016
|
|
|
|
|
|
/s/ Stuart B. Burgdoerfer
|
|
Principal Financial Officer,
Principal Accounting Officer and Director
|
|
January 25, 2016
|
|
Stuart B. Burgdoerfer
|
|
|
|
|
|
|
|
/s/ Shelley Milano
|
|
Director
|
|
January 25, 2016
|
|
Shelley Milano
|
|
|
|
|
GUARANTOR SIGNATURES
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-4 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 January 25, 2016.
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|
|
|
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|
VICTORIA’S SECRET DIRECT BRAND
MANAGEMENT, LLC
|
|
|
|
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By:
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VICTORIA’S SECRET STORES BRAND MANAGEMENT, INC., its sole member
|
|
|
|
|
By:
|
|
/s/ Stuart B. Burgdoerfer
|
|
|
|
Name:
|
|
Stuart B. Burgdoerfer
|
|
|
|
Title:
|
|
Principal Financial Officer,
Principal Accounting Officer and Director
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints
Leslie H. Wexner, Stuart B. Burgdoerfer and Timothy J. Faber, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power to act separately and 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) to this registration statement and to file the same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or either of them or his or her or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Leslie H. Wexner
Leslie H. Wexner
|
|
Principal Executive Officer
|
|
January 25, 2016
|
|
|
|
|
|
/s/ Stuart B. Burgdoerfer
|
|
Principal Financial Officer,
Principal Accounting Officer and Director
|
|
January 25, 2016
|
|
Stuart B. Burgdoerfer
|
|
|
|
|
|
|
|
/s/ Shelley Milano
|
|
Director
|
|
January 25, 2016
|
|
Shelley Milano
|
|
|
|
|
GUARANTOR SIGNATURES
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-4 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 January 25, 2016.
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|
|
|
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|
|
BEAUTYAVENUES, LLC
|
|
|
|
|
By:
|
|
MAST INDUSTRIES, INC., its sole member
|
|
|
|
|
By:
|
|
/s/ Stuart B. Burgdoerfer
|
|
|
|
Name:
|
|
Stuart B. Burgdoerfer
|
|
|
|
Title:
|
|
Principal Financial Officer,
Principal Accounting Officer and Director
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints
Leslie H. Wexner, Stuart B. Burgdoerfer and Timothy J. Faber, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power to act separately and 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) to this registration statement and to file the same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or either of them or his or her or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Leslie H. Wexner
Leslie H. Wexner
|
|
Principal Executive Officer
|
|
January 25, 2016
|
|
|
|
|
|
/s/ Stuart B. Burgdoerfer
|
|
Principal Financial Officer,
Principal Accounting Officer and Director
|
|
January 25, 2016
|
|
Stuart B. Burgdoerfer
|
|
|
|
|
|
|
|
/s/ Shelley Milano
|
|
Director
|
|
January 25, 2016
|
|
Shelley Milano
|
|
|
|
|
GUARANTOR SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrants certify that they have reasonable grounds to believe that they
meet all of the requirements for filing on Form S-4 and have duly caused this registration statement to be signed on their behalf by the undersigned, thereunto duly authorized, in the City of Columbus, State of Ohio, on January 25, 2016.
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|
|
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|
|
L BRANDS SERVICE COMPANY, LLC
INTIMATE BRANDS HOLDING, LLC
|
|
|
|
|
By:
|
|
INTIMATE BRANDS, INC., manager
|
|
|
|
|
By:
|
|
/s/ Stuart B. Burgdoerfer
|
|
|
|
Name:
|
|
Stuart B. Burgdoerfer
|
|
|
|
Title:
|
|
Principal Financial Officer,
Principal Accounting Officer and Director
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints
Leslie H. Wexner, Stuart B. Burgdoerfer and Timothy J. Faber, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power to act separately and 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) to this registration statement and to file the same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or either of them or his or her or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Leslie H. Wexner
|
|
Principal Executive Officer
|
|
January 25, 2016
|
|
Leslie H. Wexner
|
|
|
|
|
|
|
|
|
/s/ Stuart B. Burgdoerfer
Stuart B. Burgdoerfer
|
|
Principal Financial Officer,
Principal Accounting Officer and Director
|
|
January 25, 2016
|
|
|
|
|
|
/s/ Shelley Milano
|
|
Director
|
|
January 25, 2016
|
|
Shelley Milano
|
|
|
|
EXHIBIT INDEX
|
|
|
|
|
Exhibit
No.
|
|
Document
|
|
|
|
|
3
|
|
Articles of Incorporation and Bylaws.
|
|
|
|
|
3.1
|
|
Restated Certificate of Incorporation of the Company, incorporated by reference to Exhibit 3.1 to the Company’s Form 10-K dated February 1, 2014.
|
|
|
|
|
3.2
|
|
Amended and Restated Bylaws of the Company, incorporated by reference to Exhibit 3.2 to the Company’s Form 8-K dated March 22, 2013.
|
|
|
|
|
3.3*
|
|
Certificate of Incorporation of Bath & Body Works Brand Management, Inc.
|
|
|
|
|
3.4*
|
|
Bylaws of Bath & Body Works Brand Management, Inc.
|
|
|
|
|
3.5*
|
|
Certificate of Incorporation of Bath & Body Works Direct, Inc.
|
|
|
|
|
3.6*
|
|
Bylaws of Bath & Body Works Direct, Inc.
|
|
|
|
|
3.7*
|
|
Certificate of Formation of Bath & Body Works, LLC.
|
|
|
|
|
3.8*
|
|
First Amended and Restated Limited Liability Company Agreement of Bath & Body Works, LLC.
|
|
|
|
|
3.9*
|
|
Certificate of Formation of beautyAvenues, LLC.
|
|
|
|
|
3.10*
|
|
Limited Liability Company Agreement of beautyAvenues, LLC.
|
|
|
|
|
3.11*
|
|
Certificate of Incorporation of Intimate Brands, Inc.
|
|
|
|
|
3.12*
|
|
Amended and Restated Bylaws of Intimate Brands, Inc.
|
|
|
|
|
3.13*
|
|
Certificate of Incorporation of Intimate Brands Holding, LLC.
|
|
|
|
|
3.14*
|
|
Limited Liability Company Agreement of Intimate Brands Holding, LLC.
|
|
|
|
|
3.15*
|
|
Certificate of Incorporation of L Brands Direct Fulfillment, Inc.
|
|
|
|
|
3.16*
|
|
Bylaws of L Brands Direct Fulfillment, Inc.
|
|
|
|
|
3.17*
|
|
Certificate of Amendment of Certificate of Formation of L Brands Service Company, LLC.
|
|
|
|
|
3.18*
|
|
Limited Liability Company Agreement of L Brands Service Company, LLC.
|
|
|
|
|
3.19*
|
|
Certificate of Amendment of the Certificate of Incorporation of L Brands Store Design & Construction, Inc.
|
|
|
|
|
3.20*
|
|
Bylaws of L Brands Store Design & Construction, Inc.
|
|
|
|
|
3.21*
|
|
Certificate of Incorporation of La Senza, Inc.
|
|
|
|
|
3.22*
|
|
Bylaws of La Senza, Inc.
|
|
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|
|
3.23*
|
|
Certificate of Incorporation of Mast Industries, Inc.
|
|
|
|
|
3.24*
|
|
Bylaws of Mast Industries, Inc.
|
|
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|
|
3.25*
|
|
Certificate of Formation of Victoria’s Secret Direct Brand Management, LLC.
|
|
|
|
|
3.26*
|
|
Limited Liability Company Agreement of Victoria’s Secret Direct Brand Management, LLC.
|
|
|
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|
3.27*
|
|
Certificate of Incorporation of Victoria’s Secret Stores Brand Management, Inc.
|
|
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|
|
3.28*
|
|
Bylaws of Victoria’s Secret Stores Brand Management, Inc.
|
|
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|
3.29*
|
|
Certificate of Formation of Victoria’s Secret Stores, LLC.
|
|
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3.30*
|
|
First Amended and Restated Limited Liability Company Agreement of Victoria’s Secret Stores, LLC.
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Exhibit
No.
|
|
Document
|
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4
|
|
Instruments Defining the Rights of Security Holders.
|
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|
|
|
4.1
|
|
Conformed copy of the Indenture dated as of March 15, 1988 between the Company and The Bank of New York, incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-3 (Reg. No. 333-105484) dated
May 22, 2003.
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|
|
|
|
4.2
|
|
Proposed form of Debt Warrant Agreement for Warrants attached to Debt Securities, with proposed form of Debt Warrant Certificate, incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form S-3
(Reg. No. 33-53366) originally filed with the Securities and Exchange Commission (the “SEC”) on October 16, 1992, as amended by Amendment No. 1 thereto, filed with the SEC on February 23, 1993 (the “1993 Form S-3”).
|
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4.3
|
|
Proposed form of Debt Warrant Agreement for Warrants not attached to Debt Securities, with proposed form of Debt Warrant Certificate, incorporated by reference to Exhibit 4.3 to the 1993 Form S-3.
|
|
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|
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4.4
|
|
Indenture, dated as of February 19, 2003 between the Company and The Bank of New York, incorporated by reference to Exhibit 4 to the Company’s Registration Statement on Form S-4 (Reg. No. 333-104633) dated April 18,
2003.
|
|
|
|
|
4.5
|
|
First Supplemental Indenture dated as of May 31, 2005 among the Company, The Bank of New York and The Bank of New York Trust Company, N.A., incorporated by reference to Exhibit 4.1.2 to the Company’s Registration Statement on
Form S-3 (Reg. No. 333-125561) filed June 6, 2005.
|
|
|
|
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4.6
|
|
Second Supplemental Indenture dated as of July 17, 2007 between the Company and The Bank of New York Trust Company, N.A., incorporated by reference to Exhibit 4.1.4 to the Company’s Registration Statement on Form S-3 (Reg. No.
333-146420) filed October 1, 2007.
|
|
|
|
|
4.7
|
|
Indenture, dated as of June 19, 2009, among the Company, the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as trustee, incorporated by reference to Exhibit 4.1 to the Company’s Form 8-K dated
June 24, 2009.
|
|
|
|
|
4.8
|
|
Registration Rights Agreement, dated as of June 19, 2009, among the Company, the guarantors named therein and J.P. Morgan Securities Inc., as representative of the initial purchasers, incorporated by reference to Exhibit 4.2 to the
Company’s Form 8-K dated June 24, 2009.
|
|
|
|
|
4.9
|
|
Third Supplemental Indenture dated as of May 4, 2010 between the Company, the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., incorporated by reference to Exhibit 4.1.4 to the Company’s
Registration Statement on Form S-3 (Reg. No. 333-170406) filed on November 5, 2010.
|
|
|
|
|
4.10
|
|
Fourth Supplemental Indenture dated as of January 29, 2011 between the Company, the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., incorporated by reference to Exhibit 4.1.5 to the post-effective
amendment to the Company’s Registration Statement on Form S-3 (Reg. No. 333-170406) filed on March 22, 2011.
|
|
|
|
|
4.11
|
|
Form of Fifth Supplemental Indenture dated as of March 25, 2011 between the Company, the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., incorporated by reference to Exhibit 4.1.6 to the post-effective
amendment to the Company’s Registration Statement on Form S-3 (Reg. No. 333-170406) filed on March 22, 2011.
|
|
|
|
|
4.12
|
|
Sixth Supplemental Indenture dated as of February 7, 2012 among the Company, the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., incorporated by reference to Exhibit 4.1 to the Company’s Quarterly
Report on Form 10-Q for the quarter ended April 28, 2012.
|
|
|
|
|
4.13
|
|
Seventh Supplemental Indenture dated as of March 22, 2013 between the Company, the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., incorporated by reference to Exhibit 4.1.8 to the Company’s
Registration Statement on Form S-3 (Reg. No. 333-191968) filed on October 29, 2013.
|
|
|
|
|
|
Exhibit
No.
|
|
Document
|
|
|
|
|
4.14
|
|
Eighth Supplemental Indenture dated as of October 16, 2013 between the Company, the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., incorporated by reference to Exhibit 4.1.9 to the Company’s
Registration Statement on Form S-3 (Reg. No. 333-191968) filed on October 29, 2013.
|
|
|
|
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4.15
|
|
Amendment and Restatement Agreement dated July 18, 2014 among L Brands, Inc., a Delaware corporation, L (Overseas) Holdings LP, an Alberta limited partnership, Canadian Retail Holdings Corporation, a Nova Scotia company,
Victoria’s Secret UK Limited, a company organized under the laws of England and Wales, and Mast Industries (Far East) Limited, a Hong Kong corporation, the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent and
Collateral Agent (the “Administrative Agent”), in respect of the Amended and Restated Five-Year Revolving Credit Agreement dated as of July 15, 2011 among the Company, the lenders from time to time party thereto and the Administrative
Agent, incorporated by reference to Exhibit 4.1 to the Company’s Form 8-K dated July 22, 2014.
|
|
|
|
|
4.16*
|
|
Ninth Supplemental Indenture dated as of January 30, 2015 among the Company, the New Guarantors, The Bank of New York Mellon Trust Company, as Trustee, and the Old Guarantors to the Base Indenture dated as of March 15, 1988, as
amended, relating to the 7.000% Senior Notes due 2020, the 6.625% Senior Notes due 2021, the 5.625% Senior Notes due 2022 and the 5.625% Senior Notes due 2023.
|
|
|
|
|
4.17*
|
|
Second Supplemental Indenture dated as of January 30, 2015 among the Company, the New Guarantors, The Bank of New York Mellon Trust Company, as Trustee and the Old Guarantors to the Base Indenture dated as of June 19, 2009, as
amended, relating to the 8.50% Senior Notes due 2019.
|
|
|
|
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4.18
|
|
First Amendment dated as of April 21, 2015 among the Company, L (Overseas) Holding LP, an Alberta limited partnership, Canadian Retail Holdings Corporation, a Nova Scotia company, Victoria’s Secret UK Limited, a company
organized under the laws of England and Wales, and Mast Industries (Far East) Limited, a Hong Kong corporation, the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (the “Administrative
Agent”), in respect of the Amended and Restated Five-Year Revolving Credit Agreement dated as of July 18, 2014 among the Company, the lenders from time to time party thereto and the Administrative Agent, incorporated by reference to Exhibit 4.1
to the Company’s Quarterly Report on Form 10-Q for the quarter ended May 2, 2015.
|
|
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|
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4.19
|
|
Indenture, dated as of October 30, 2015, among L Brands, Inc., the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as trustee, incorporated by reference to Exhibit 4.1 to the Company’s Form 8-K
dated November 3, 2015.
|
|
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|
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4.20
|
|
Form of 6.875% senior notes due 2035, incorporated by reference to Exhibit 4.2 to the Company’s Form 8-K dated November 3, 2015.
|
|
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|
|
4.21
|
|
Registration Rights Agreement, dated as of October 30, 2015, among L Brands, Inc., the guarantors named therein and Merrill Lynch, Pierce, Fenner & Smith Incorporated as representative of the initial purchasers, incorporated by
reference to Exhibit 4.3 to the Company’s Form 8-K dated November 3, 2015.
|
|
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|
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5.1*
|
|
Opinion of Davis Polk & Wardwell LLP with respect to the new notes.
|
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|
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10
|
|
Material Contracts
|
|
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|
|
10.1**
|
|
Officers’ Benefits Plan incorporated by reference to Exhibit 10.4 to the Company’s Annual Report on Form 10-K for the fiscal year ended January 28, 1989.
|
|
|
|
|
10.2**
|
|
The Company’s Supplemental Retirement and Deferred Compensation Plan incorporated by reference to Exhibit 10.3 to the Company’s Annual Report on Form 10-K for the fiscal year ended February 3,
2001.
|
|
|
|
|
|
Exhibit
No.
|
|
Document
|
|
|
|
|
10.3**
|
|
Form of Indemnification Agreement between the Company and the directors and executive officers of the Company incorporated by reference to Exhibit A to the Company’s definitive proxy statement dated April 1988 for the
Company’s 1988 Annual Meeting of Shareholders held May 23, 1988.
|
|
|
|
|
10.4**
|
|
Supplemental schedule of directors and executive officers who are parties to an Indemnification Agreement, incorporated by reference to Exhibit 19.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended October
29, 1988.
|
|
|
|
|
10.5**
|
|
The 1993 Stock Option and Performance Incentive Plan of the Company, incorporated by reference to Exhibit 4 to the Company’s Registration Statement on Form S-8 (Reg. No. 33-49871).
|
|
|
|
|
10.6**
|
|
The Company’s 1996 Stock Plan for Non-Associate Directors, incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the quarter ended November 2, 1996.
|
|
|
|
|
10.7**
|
|
The Company’s Incentive Compensation Performance Plan, incorporated by reference to Exhibit A to the Company’s Proxy Statement dated April 14, 1997.
|
|
|
|
|
10.8
|
|
Agreement dated as of May 3, 1999 among the Company, Leslie H. Wexner and the Wexner Children’s Trust, incorporated by reference to Exhibit 99 (c) 1 to the Company’s Schedule 13E-4 dated May 4, 1999.
|
|
|
|
|
10.9**
|
|
The 1998 Restatement of the Company’s 1993 Stock Option and Performance Incentive Plan, incorporated by reference to Exhibit A to the Company’s Proxy Statement dated April 20, 1998.
|
|
|
|
|
10.10**
|
|
The 2002 Restatement of the Company’s 1993 Stock Option and Performance Incentive Plan, incorporated by reference to Exhibit 10.23 to the Company’s Annual Report on Form 10-K for the fiscal year ended February 1,
2003.
|
|
|
|
|
10.11**
|
|
The Company’s Stock Award and Deferred Compensation Plan for Non-Associate Directors, incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-8 (Reg. No. 333-110465) dated November 13,
2003.
|
|
|
|
|
10.12**
|
|
The Company’s 1993 Stock Option and Performance Incentive Plan (2003 Restatement), incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form S-8 (Reg. No. 333-110465) dated November 13,
2003.
|
|
|
|
|
10.13**
|
|
The Company’s 1993 Stock Option and Performance Incentive Plan (2004 Restatement), incorporated by reference to Appendix A to the Company’s Proxy Statement dated April 14, 2004.
|
|
|
|
|
10.14**
|
|
The Company’s Stock Option Award Agreement, incorporated by reference to Exhibit 10.29 to the Company’s Annual Report on Form 10-K for the fiscal year ended January 29, 2005.
|
|
|
|
|
10.15**
|
|
Form of Stock Ownership Guideline, incorporated by reference to Exhibit 10.32 to the Company’s Annual Report on Form 10-K for the fiscal year ended January 29, 2005.
|
|
|
|
|
10.16**
|
|
Employment Agreement dated as of November 24, 2006 among the Company, Victoria’s Secret Direct, LLC and Sharen Jester Turney, incorporated by reference to Exhibit 10.28 to the Company’s Annual Report on Form 10-K for the
fiscal year ended February 3, 2007.
|
|
|
|
|
10.17**
|
|
Employment Agreement effective as of April 9, 2007 among the Company and Stuart Burgdoerfer, incorporated by reference to Exhibit 10.2 to the Company’s Form 8-K dated April 11, 2007.
|
|
|
|
|
10.18**
|
|
The Company’s 1993 Stock Option and Performance Incentive Plan (2009 Restatement), incorporated by reference to Exhibit 99.1 to the Company’s Registration Statement on Form S-8 (Reg. No. 333-110465) dated September 10,
2009.
|
|
|
|
|
10.19**
|
|
Employment Agreement dated as of December 31, 2007 among the Company, beautyAvenues, LLC, and Charles C. McGuigan, as amended by Amendment to Agreement dated December 1, 2008 and Form of Employment Agreement Amendment effective as
of March 15, 2012, incorporated by reference to Exhibit 10.24 to the Company’s Annual Report on Form 10-K for the fiscal year ended January 28, 2012.
|
|
|
|
|
|
Exhibit
No.
|
|
Document
|
|
|
|
|
10.20**
|
|
The Company’s 2011 Stock Option and Performance Incentive Plan originally incorporated by reference to Appendix A to the Company’s Proxy Statement dated April 11, 2011 and Amended and Restated dated July 21, 2011
incorporated by reference to Exhibit 10.25 to the Company’s Annual Report on Form 10-K for the fiscal year ended January 28, 2012.
|
|
|
|
|
10.21**
|
|
Employment Agreement dated as of November 30, 2012 among the Company and Sharen Jester Turney, incorporated by reference to Exhibit 10.1 to the Company’s Form 10-Q for the quarter ended October 27, 2012.
|
|
|
|
|
10.22**
|
|
Employment Agreement dated as of March 15, 2013 among the Company, Bath & Body Works Brand Management, Inc. and Nicholas P. M. Coe, incorporated by reference to Exhibit 10.26 to the Company’s Annual Report on Form 10-K for
the fiscal year ended February 2, 2013.
|
|
|
|
|
10.23**
|
|
Form of Sixth Amended and Restated Master Aircraft Time Sharing Agreement, incorporated by reference to Exhibit 10.23 to the Company’s Annual Report on Form 10-K for the fiscal year ended January 31, 2015.
|
|
|
|
|
10.24**
|
|
L Brands, Inc. 2015 Stock Option and Performance Incentive Plan Terms and Conditions of Restricted Share Unit Grant, incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended
August 1, 2015.
|
|
|
|
|
10.25**
|
|
L Brands, Inc. 2015 Stock Option and Performance Incentive Plan Terms and Conditions of Stock Option Grant, incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the quarter ended August
1, 2015.
|
|
|
|
|
12.1*
|
|
Computation of Ratios of Earnings to Fixed Charges.
|
|
|
|
|
15.1*
|
|
Letter of Awareness from Ernst & Young LLP.
|
|
|
|
|
21
|
|
Subsidiaries of the Company, incorporated by reference to Exhibit 21 to the Company’s Annual Report on Form 10-K for the fiscal year ended January 31, 2015.
|
|
|
|
|
23.1*
|
|
Consent of Ernst & Young LLP.
|
|
|
|
|
23.2*
|
|
Consent of Davis Polk & Wardwell LLP (included in opinion filed herewith as Exhibit 5.1).
|
|
|
|
|
24.1*
|
|
Power of Attorney for the Company.
|
|
|
|
|
24.2*
|
|
Power of Attorney for the Guarantors (included on signature pages).
|
|
|
|
|
25.1*
|
|
Form T-1 Statement of Eligibility of The Bank of New York Mellon Trust Company, N.A., as Trustee with respect to the indenture dated as of October 30, 2015.
|
|
|
|
|
99.1*
|
|
Form of Letter of Transmittal.
|
|
|
|
|
99.2*
|
|
Form of Notice of Guaranteed Delivery.
|
|
|
|
|
99.3*
|
|
Form of Letter to Clients.
|
|
|
|
|
99.4*
|
|
Form of Letter to Nominees.
|
|
**
|
Identifies management contracts or compensatory plans or arrangements.
|
Exhibit 3.3
CERTIFICATE OF INCORPORATION
OF
BATH & BODY
WORKS BRAND MANAGEMENT, INC.
The undersigned, in order to form a corporation, effective as of 11:29 p.m., Eastern Standard Time, on
January 29, 2011, pursuant to the General Corporation Law of the State of Delaware, does hereby certify as follows:
FIRST
. The
name of the corporation is Bath & Body Works Brand Management, Inc.
SECOND
. The address of the registered office of the
corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle. The name of its registered agent at that address is The Corporation Trust Company.
THIRD
. The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH
. The total number of shares of stock which the corporation is authorized
to issue is One Thousand (1,000) shares of Common Stock having a par value of $0.10 per share.
FIFTH
. Elections of directors at an
annual meeting or a special meeting of stockholders need not be by written ballot unless the bylaws of the corporation shall otherwise provide. The number of directors of the corporation which shall constitute the whole board of directors shall be
such as from time to time shall be fixed by or in the manner provided in the bylaws of the corporation.
SIXTH
. In furtherance and
not in limitation of the powers conferred by statute, the board of directors is expressly authorized to make, repeal, alter, amend and rescind the bylaws of the corporation.
SEVENTH
: A director of the corporation shall not be personally liable to the corporation 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 corporation 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 General Corporation Law of the State of Delaware or (iv) for any transaction from which the director derives an improper personal benefit. If the General
Corporation Law of the State of Delaware is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law of the State of Delaware, as so amended.
EIGHTH
: A director or officer of the
corporation shall not be disqualified by his/her office from dealing or contracting with the corporation as a vendor, purchaser, employee, agent, or otherwise. No transaction, contract or act of the corporation shall be void or voidable or in any
way affected or invalidated by reason of the fact that any director or officer of the corporation is a member of any firm, a stockholder, a director or an officer of any corporation or a trustee or a
beneficiary of any trust that is in any way interested in such transaction, contract, or act. No director or
officer shall be accountable or responsible to the corporation for or in respect to any transaction, contract or act of the corporation or for any gain or profit directly or indirectly realized by him/her by reason of the fact that he/she or any
firm in which he/she is a member or any corporation of which he/she is a stockholder, a director or an officer, or any trust of which he/she is a trustee or a beneficiary, is interested in such transaction, contract or act; provided the fact that
such director or officer or such firm, corporation, trustee or beneficiary of such trust, is so interested shall have been disclosed or shall have been known to the members of the board of directors as shall be present at any meeting at which action
upon such contract, transaction or act shall have been taken and the board of directors in good faith authorizes the transaction, contract or act by the affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum. Any director may be counted in determining the existence of a quorum at any meeting of the board of directors which shall authorize or take action in respect to any such contract, transaction or act, and may vote
thereat to authorize, ratify or approve any such contract, transaction or act, and any officer of the corporation may take any action within the scope of his/her authority, respecting such contract, transaction or act with like force and effect as
if he/she or any firm of which he/she is a member, or any corporation of which he/she is a stockholder, a director or an officer, or any trust of which he/she is a trustee or beneficiary, were not interested in such transaction, contract or act.
Without limiting or qualifying the foregoing, if in any judicial or other inquiry, suit, cause or proceeding, the question of whether a director or officer of the corporation has acted in good faith is material, and notwithstanding any statute or
rule of law or equity to the contrary (if any there be) his/her good faith shall be presumed in the absence of proof to the contrary by clear and convincing evidence.
NINTH
: Whenever a compromise or arrangement is proposed between the corporation and its creditors or any class of them and/or between
the corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the corporation or of any creditor or stockholder thereof or on the application
of any receiver or receivers appointed for the corporation under the provisions of Section 291 of the General Corporation Law of the State of Delaware or on the application of trustees in dissolution or of any receiver or receivers appointed
for the corporation under the provisions of Section 279 of the General Corporation Law of the State of Delaware, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the corporation, as
the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the corporation, as
the case may be, agree to any compromise or arrangement and to any reorganization of the corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganizaton shall, if sanctioned by the court
to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the corporation, as the case may be, and also on the corporation.
TENTH
. The corporation reserves the right to amend and repeal any provision contained in this certificate of incorporation in the
manner prescribed by the laws of the State of Delaware. All rights herein conferred are granted subject to this reservation.
-2-
ELEVENTH
. The incorporator is Luis F. Machado, whose mailing address is c/o Limited Brands
Service Company, LLC, Three Limited Parkway, Columbus, Ohio 43230.
I, the undersigned incorporator, for the purpose of forming a
corporation under the laws of the State of Delaware do make, file and record this Certificate of Incorporation, do certify that that the facts herein stated are true, and, accordingly, have hereunto set my hand as of January 25, 2011.
|
|
|
/s/ Luis F. Machado
|
|
Luis F. Machado, Incorporator
|
-3-
Exhibit 3.4
BATH & BODY WORKS BRAND MANAGEMENT, INC.
BYLAWS
ARTICLE I -
STOCKHOLDERS
Section 1. Annual Meeting
.
An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place within or without the State of Delaware, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within 13 months subsequent to
the later of the date of incorporation or the last annual meeting of stockholders or the last action by written consent to elect directors in lieu of an annual meeting.
Section 2. Special Meetings
.
Special meetings of the stockholders may be called for such purpose or purposes, on such date, at such time, and be held at such place within
or without the State of Delaware, as shall be prescribed in the notice of the meeting by the president, or in case of the president’s death, absence or disability, the vice president, if any, authorized to exercise the authority of the
president or a majority of the Board of Directors acting with or without a meeting; provided, that if and to the extent that any special meeting of stockholders may be called by any other person or persons specified in any provision of the
certificate of incorporation or any amendment thereto or any certificate filed under Section 151(g) of the Delaware General Corporation Law (or its successor statute as in effect from time to time), then such special meeting may also be called
by the person or persons, in the manner, at the times and for the purposes so specified.
Section 3. Notice of Meetings
.
3.1. Written notice of the place, date, and time of all meetings of the stockholders shall be given, not less than 10 nor more than 60 days
before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here or hereinafter, as required from time to time by the Delaware General
Corporation Law or the certificate of incorporation).
3.2. When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, date, and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30 days after the date for
which the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business
may be transacted which might have been transacted at the original meeting.
Section 4. Quorum
.
4.1. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present
in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law.
4.2. If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of the stock
entitled to vote who are present, in person or by proxy, may adjourn the meeting to another place, date, or time.
4.3. If a notice of any
adjourned special meeting of stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present constituting a quorum, then except as otherwise required by law, those present at such adjourned meeting
shall constitute a quorum, and all matters shall be determined by a majority of the votes cast at such meeting.
Section 5.
Organization
.
At each meeting of the stockholders, the president, or, in his/her absence, any vice president, or, in the absence of
the president and all vice presidents, a chairman chosen by a majority in interest of the stockholders present in person or by proxy and entitled to vote, shall act as chairman, and the secretary of the corporation, or, if the secretary of the
corporation not be present, the assistant secretary, or if the secretary and the assistant secretary not be present, any person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting.
Section 6. Conduct of Business
.
The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting including such regulation of
the manner of voting and the conduct of discussion as seem to him/her in order.
Section 7. Proxies and Voting
.
7.1. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in
writing filed in accordance with the procedure established for the meeting.
7.2. Each stockholder shall have one vote for every share of
stock entitled to vote which is registered in such stockholder’s name on the record date for the meeting, except as otherwise provided herein or required by law.
7.3. All voting, except on the election of directors and where otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or such stockholder’s proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.
7.4. All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast.
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Section 8. Stock List
.
8.1. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock
and showing the address of each such stockholder and the number of shares registered in such stockholder’s name, shall be open to the examination of any such stockholder, for any purpose germane to the meeting, during ordinary business hours
for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be
held.
8.2. The stock list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the
examination of any such stockholder who is present. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
Section 9. Voting by Written Consent
.
Any action which may be taken by the stockholders at an annual or special meeting may be taken without a meeting, without prior notice and
without a vote, if stockholders holding the minimum number of votes necessary to take such action shall sign a consent in writing setting forth such action; provided, however, that copies of such written consents shall be filed with the minutes of
the proceedings of the stockholders and that prompt notice of the taking of any such corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented thereto in writing and who, if
the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to
the corporation.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Number and Term of Office; Vacancies
.
The number of directors who shall constitute the whole Board of Directors shall be such number as the stockholders shall at the time have
designated, except that in the absence of any such designation, such number shall be two. Each director shall be elected for a term of one year and until his/her successor is elected and qualified, except as otherwise provided herein or required by
law. Only stockholders shall have the power to increase or decrease the number of directors. If the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, the majority of the remaining
directors, although less than a quorum, by action at a meeting or by written consent, may elect a successor for the unexpired term.
Section 2. Resignations
.
Any director of the corporation may resign at any time by giving written notice to the president or the secretary of the corporation. Such
resignation shall take effect at the time specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
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Section 3. Removal
.
Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
Section 4. Regular Meetings
.
Regular meetings of the Board of Directors shall be held at such place or places within or without the State of Delaware, on such date or
dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.
Section 5. Special Meetings
.
Special meetings of the Board of Directors may be called by two-thirds of the directors then in office or by the chief executive officer and
shall be held at such place, on such date, and at such time as they or he/she shall fix. Notice of the place, date, and time of each such special meeting shall be given each director, by whom it is not waived, by mailing written notice not less than
three days before the meeting or by telegraphing the same not less than eighteen hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section 6. Quorum
.
At any meeting of the Board of Directors, a majority of the whole Board shall constitute a quorum for all purposes. If a quorum shall fail to
attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof.
Section 7. Participation in Meetings By Conference Telephone
.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 8. Conduct of Business
.
At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board may from time to time determine,
and all Board action shall require the affirmative vote of all of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.
Section 9.
Powers
.
The Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as
may be exercised or done by the corporation, except such powers and such acts and things as are deserved in the certificate of incorporation or in these bylaws to the stockholders.
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Section 10. Compensation of Directors
.
Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of committees of the directors.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors
.
The Board of Directors may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who
may replace any absent or disqualified member at any meeting of the committee. Any such committee shall, to the extent provided by resolution of the Board of Directors, have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority of the Board of Directors in
reference to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law to be submitted to the stockholders for approval or (ii) adopting, amending or
repealing any bylaw of the corporation. In the absence or disqualification of any member of any committee and any alternate member in his/her place, the member or members of the committee present at the meeting and not disqualified from voting,
whether or not he/she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.
Section 2. Conduct of Business
.
Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; a majority of the members shall constitute a quorum; and all matters shall be determined by the affirmative vote of the members
present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee.
ARTICLE IV - OFFICERS
Section 1. General Provisions
.
The officers of the corporation shall be the president, such number of vice-presidents as the board may from time to time determine, a
secretary and a treasurer. Any person may hold any two or more offices and perform the duties thereof, except the offices of president and vice-president. If one person is chosen to hold the offices of secretary and treasurer, he/she shall be known
as secretary-treasurer of the corporation. All the duties and obligations assigned to, and all references made to both the secretary and the treasurer in these bylaws, shall apply to the secretary-treasurer, if one person be elected to both of these
offices.
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Section 2. Election, Terms of Office, and Qualification
.
The officers of the corporation named in Section 1 of this Article IV shall be elected by the Board of Directors or, alternatively, by the
stockholders of the corporation, for an indeterminate term and shall hold office during the pleasure of the Board of Directors, or in the event the officers are elected by the stockholders, they shall hold office during the pleasure of the
stockholders.
Section 3. Additional Officers, Agents, etc.
In addition to the officers mentioned in Section 1 of this Article IV, the corporation may have such other officers or agents as the Board
of Directors or the stockholders may deem necessary and may appoint, each of whom or each member of which shall hold office for such period, have such authority and perform such duties as may be provided in these bylaws or as the Board of Directors
or the stockholders may from time to time determine. The Board of Directors or the stockholders may delegate to any officer the power to appoint any subordinate officers or agents. In the absence of any officer of the corporation, or for any other
reason the Board of Directors or the stockholders may deem sufficient, the Board of Directors or the stockholders may delegate, for the time being, the powers and duties, or any of them, of such officer to any other officer, or to any directors.
Section 4. Removal
.
Any officer of the corporation may be removed, either with or without cause, at any time, by resolution adopted by the Board of Directors or
the stockholders at any meeting, the notice (or waivers of notice) of which shall have specified that such removal action was to be considered. Any officer appointed not by the Board of Directors or the stockholders but by an officer or committee to
which the Board of Directors or the stockholders shall have delegated the power of appointment may be removed, without or without cause, by the committee or superior officer (including successors) who made the appointment, or by any committee or
officer upon whom such power of removal may be conferred by the Board of Directors or the stockholders.
Section 5.
Resignations
.
Any officer may resign at any time by giving written notice to the Board of Directors, the president or the secretary of
the corporation. Any such resignation shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 6. Vacancies
A vacancy in any office because of death, resignation, removal, disqualification or otherwise, shall be filled in the manner prescribed in
these bylaws for regular appointments or elections to such office.
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ARTICLE V - DUTIES OF THE OFFICERS
Section 1. The President
The president shall be the chief executive officer of the corporation and shall have general supervision over the property, business and
affairs of the corporation and over its several officers, subject, however, to the control of the Board of Directors. The president shall, if present, preside at all meetings of the stockholders and of the Board of Directors. The president may sign,
with the secretary, treasurer or any other proper officer of the corporation thereunto authorized by the Board of Directors certificates for shares in the corporation. The president may sign, execute, and deliver in the name of the corporation all
deeds, mortgages, bonds, leases, contracts, or other instruments either when specially authorized by the Board of Directors or when required or deemed necessary or advisable by him/her in the ordinary conduct of the corporation’s normal
business, except in cases where the signing and execution thereof shall be expressly delegated by these bylaws to some other officer or agent of the corporation or shall be required by law or otherwise to be signed or executed by some other officer
or agent, and he/she may cause the seal of the corporation, if any, to be affixed to any instrument requiring the same.
Section 2. Vice-Presidents
.
The vice-presidents shall perform such duties as are conferred upon them by these bylaws or as may from time to time be assigned to them by the
Board of Directors or the president. In the absence or disability of the president, the vice-president designated by the Board of Directors shall perform all the duties of the president, and when so acting, shall have all the powers of the
president. The authority of vice-presidents to sign in the name of the corporation all certificates for shares and authorized deeds, mortgages, leases, bonds, contracts, notes and other instruments, shall be coordinate with like authority of the
president.
Section 3. The Treasurer
.
The treasurer shall be the custodian of all funds and securities of the corporation. Whenever so directed by the Board of Directors, he/she
shall render a statement of the cash and other accounts of the corporation, and he/she shall cause to be entered regularly in the books and records of the corporation to be kept for such purpose full and accurate accounts of the corporation’s
receipts and disbursements. He/she shall have such other powers and shall perform such other duties as may from time to time be assigned to him/her by the Board of Directors.
Section 4. The Secretary
.
The secretary shall record and keep the minutes of all meetings of the stockholders and the Board of Directors in a book to be kept for that
purpose. He/she shall be the custodian of, and shall make or cause to be made the proper entries in, the minute book of the corporation and such other books and records as the Board of Directors may direct. He/she shall be the custodian of the seal
of the corporation, if any, and shall affix such seal to such contracts, instruments and other documents as the Board of Directors or any committee thereof may direct. He/she shall have such other powers and shall perform such other duties as may
from time to time be assigned to him/her by the Board of Directors.
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ARTICLE VI - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification
The corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, or pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he/she, his/her testator, or intestate is or was a director or officer of the corporation, or is or was serving at the request
of the corporation as 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),
judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him/her 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 the State of Delaware as they may exist from time to time.
Section 2.
Insurance
.
The proper officers of the corporation, 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 the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent for another
corporation, partnership, joint venture, trusts or other enterprise, against any liability.
Section 3. ERISA
.
To assure indemnification under this provision of all such persons who are or were “fiduciaries” of an employee benefit plan governed
by the Act of the United States Congress entitled “Employee Retirement Income Security Act of 1974”, as amended from time to time (“ERISA”), the provisions of this Article VI shall, except as limited by Section 410 of ERISA,
for the purposes hereof, be interpreted as follows: an “other enterprise” shall be deemed to include an employee benefit plan; the corporation shall be deemed to have requested a person to serve as a director, officer, employee or agent of
an employee benefit plan where the performance of such person of his/her duties to the corporation also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed
on a person with respect to an employee benefit plan pursuant to ERISA shall be deemed “fines”; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose
reasonably believed by such person to be in compliance with ERISA and the terms of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the corporation.
Section 4. Contractual Nature
.
The foregoing provision of this Article VI shall be deemed to be a contract between the corporation and each director and officer who serves in
such capacity at any time while this Section 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 when 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.
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Section 5. Construction
.
For the purposes of this Article VI, references to “the corporation” include in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director or officer of such constituent corporation or is or was serving at the request of such constituent corporation 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 shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he/she would have with respect to such
constituent corporation if its separate existence had continued.
Section 6. Non-Exclusive
.
The corporation 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 he/she reasonably believed to be in, or not opposed to, the best interests of the corporation.
ARTICLE VII - STOCK
Section 1. Certificates of Stock
.
Each stockholder shall be entitled to a certificate signed by, or in the name of the corporation by the president or a vice-president, and by
the secretary or an assistant secretary, or the treasurer or an assistant treasurer, certifying the number of shares owned by such stockholder. Any or all of the signatures on the certificate may be facsimile.
Section 2. Transfers of Stock
.
Transfers of stock shall be made only upon the transfer books of the corporation kept at an office of the corporation or by transfer agents
designated to transfer shares of the stock of the corporation. Except where a certificate is issued in accordance with Section 4 of Article VII of these bylaws, an outstanding certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued therefor.
Section 3. Record Date
.
The Board of Directors may fix a record date, which shall not be more than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for any other action hereinafter described, as of which there shall be determined the stockholders who are entitled: to notice of or to vote at any meeting of stockholders or any adjournment
thereof, to express consent to corporate action in writing without a meeting; to receive payment of any dividend or other distribution or allotment of any rights; or to exercise any rights with respect to any change, conversion or exchange of stock
or with respect to any other lawful action.
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Section 4. Lost, Stolen or Destroyed Certificates
.
In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations
.
The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors
may establish.
ARTICLE VIII - NOTICES
Section 1. Notices
.
Whenever notice is required to be given to any stockholder, director, officer, or agent, such requirement shall not be construed to mean
personal notice. Such notice may in every instance be effectively given by depositing a writing in a post office or letter box, in a postpaid, sealed wrapper, or by dispatching a prepaid telegram, addressed to such stockholder, director, officer, or
agent at his/her address as the same appears on the books of the corporation. The time when such notice is dispatched shall be the time of the giving of the notice.
Section 2. Waivers
.
A written waiver of any notice, signed by a stockholder, director, officer, or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE IX - MISCELLANEOUS
Section 1. Facsimile Signatures
.
In addition to the provisions for the use of facsimile signatures elsewhere specifically authorized in these bylaws, facsimile signatures of
any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal
.
The Board of Directors may provide a suitable seal, containing the name of the corporation, which seal shall be in the charge of the secretary.
If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the treasurer or by the assistant secretary or assistant treasurer.
Section 3. Reliance upon Books, Reports and Records
.
Each director, each member of any committee designated by the Board of Directors, and each officer of the corporation shall, in the performance
of his/her duties, be fully protected in relying in good faith upon the books of account or other records of the corporation, including reports made to the corporation by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
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Section 4. Fiscal Year
.
The fiscal year of the corporation shall be the 52-53 week period ending on the Saturday nearest the last day of January and the next
succeeding fiscal year shall begin on the Sunday following such Saturday.
Section 5. Time Periods
.
In applying any provision of these bylaws which require that an act be done or not done a specified number of days prior to an event or that an
act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
Section 6. Depositaries and Signatories
.
The president and the treasurer of the corporation are each authorized to designate depositaries for the funds of the corporation deposited in
its name and the signatories and conditions with respect thereto in each case, and from time to time, to change such depositaries, signatories and conditions, with the same force and effect as if each such depositary, the signatories and conditions
with respect thereto and changes therein had been specifically designated or authorized by the Board of Directors; and each depositary designated by the Board of Directors or by the president or treasurer of the corporation, shall be entitled to
rely upon the certificate of the secretary and any assistant secretary of the corporation setting forth the fact of such designation and of the appointment of the officers of the corporation or of both or of other persons who are to be signatories
with respect to the withdrawal of funds deposited with such depositary, or from time to time the fact of any change in any depositary or in the signatories with respect thereto.
Section 7. Execution of Instruments Generally
.
In addition to the powers conferred upon the president in Article V, Section 1 and except as otherwise provided in Section 6 of this
Article IX, all contracts and other instruments entered into in the ordinary course of business requiring execution by the corporation may be executed and delivered by any vice president or the treasurer and authority to sign any such contracts or
instruments, which may be general or confined to specific instances, may be conferred by the Board of Directors upon any other person or persons. Any person having authority to sign on behalf of the corporation may delegate, from time to time, by
instrument in writing, all or any part of such authority to any person or persons if authorized so to do by the Board of Directors.
Section 8. Voting Securities of Other Corporations
.
Unless otherwise directed by the Board of Directors, the president and any vice president of the corporation shall have the power to vote and
otherwise act on behalf of the corporation, in person or by proxy, at any meeting, or with respect to any action, of stockholders of any other corporation in which this corporation may hold securities and otherwise to exercise any and all rights and
powers which this corporation may possess by reason of its ownership of securities in such other corporation.
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Exhibit 3.5
CERTIFICATE OF INCORPORATION
OF
BATH & BODY
WORKS DIRECT, INC.
The undersigned, in order to form a corporation, effective as of 11:29 p.m., Eastern Standard Time, on
January 29, 2011, pursuant to the General Corporation Law of the State of Delaware, does hereby certify as follows:
FIRST
. The
name of the corporation is Bath & Body Works Direct, Inc.
SECOND
. The address of the registered office of the corporation
in the State of Delaware is Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle. The name of its registered agent at that address is The Corporation Trust Company.
THIRD
. The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH
. The total number of shares of stock which the corporation is authorized
to issue is One Thousand (1,000) shares of Common Stock having a par value of $0.10 per share.
FIFTH
. Elections of directors
at an annual meeting or a special meeting of stockholders need not be by written ballot unless the bylaws of the corporation shall otherwise provide. The number of directors of the corporation which shall constitute the whole board of directors
shall be such as from time to time shall be fixed by or in the manner provided in the bylaws of the corporation.
SIXTH
. In
furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized to make, repeal, alter, amend and rescind the bylaws of the corporation.
SEVENTH
: A director of the corporation shall not be personally liable to the corporation 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 corporation 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 General Corporation Law of the State of Delaware or (iv) for any transaction from which the director derives an improper personal benefit. If the General
Corporation Law of the State of Delaware is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law of the State of Delaware, as so amended.
EIGHTH
: A director or officer of the
corporation shall not be disqualified by his/her office from dealing or contracting with the corporation as a vendor, purchaser, employee, agent, or otherwise. No transaction, contract or act of the corporation shall be void or voidable or in any
way affected or invalidated by reason of the fact that any director or officer of the corporation is a member of any firm, a stockholder, a director or an officer of any corporation or a trustee or a
beneficiary of any trust that is in any way interested in such transaction, contract, or act. No director or officer shall be accountable or responsible to the corporation for or in respect to
any transaction, contract or act of the corporation or for any gain or profit directly or indirectly realized by him/her by reason of the fact that he/she or any firm in which he/she is a member or any corporation of which he/she is a stockholder, a
director or an officer, or any trust of which he/she is a trustee or a beneficiary, is interested in such transaction, contract or act; provided the fact that such director or officer or such firm, corporation, trustee or beneficiary of such trust,
is so interested shall have been disclosed or shall have been known to the members of the board of directors as shall be present at any meeting at which action upon such contract, transaction or act shall have been taken and the board of directors
in good faith authorizes the transaction, contract or act by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum. Any director may be counted in determining the existence
of a quorum at any meeting of the board of directors which shall authorize or take action in respect to any such contract, transaction or act, and may vote thereat to authorize, ratify or approve any such contract, transaction or act, and any
officer of the corporation may take any action within the scope of his/her authority, respecting such contract, transaction or act with like force and effect as if he/she or any firm of which he/she is a member, or any corporation of which he/she is
a stockholder, a director or an officer, or any trust of which he/she is a trustee or beneficiary, were not interested in such transaction, contract or act. Without limiting or qualifying the foregoing, if in any judicial or other inquiry, suit,
cause or proceeding, the question of whether a director or officer of the corporation has acted in good faith is material, and notwithstanding any statute or rule of law or equity to the contrary (if any there be) his/her good faith shall be
presumed in the absence of proof to the contrary by clear and convincing evidence.
NINTH
: Whenever a compromise or arrangement is
proposed between the corporation and its creditors or any class of them and/or between the corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary
way of the corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the corporation under the provisions of Section 291 of the General Corporation Law of the State of Delaware or on
the application of trustees in dissolution or of any receiver or receivers appointed for the corporation under the provisions of Section 279 of the General Corporation Law of the State of Delaware, order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of the corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of the corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganizaton shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of
the corporation, as the case may be, and also on the corporation.
TENTH
. The corporation reserves the right to amend and repeal
any provision contained in this certificate of incorporation in the manner prescribed by the laws of the State of Delaware. All rights herein conferred are granted subject to this reservation.
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ELEVENTH
. The incorporator is Luis F. Machado, whose mailing address is c/o Limited Brands
Service Company, LLC, Three Limited Parkway, Columbus, Ohio 43230.
I, the undersigned incorporator, for the purpose of forming a
corporation under the laws of the State of Delaware do make, file and record this Certificate of Incorporation, do certify that that the facts herein stated are true, and, accordingly, have hereunto set my hand as of January 25, 2011.
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/s/ Luis F. Machado
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Luis F. Machado, Incorporator
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Exhibit 3.6
BATH & BODY WORKS DIRECT, INC.
BYLAWS
ARTICLE I -
STOCKHOLDERS
Section 1. Annual Meeting
.
An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place within or without the State of Delaware, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within 13 months subsequent to
the later of the date of incorporation or the last annual meeting of stockholders or the last action by written consent to elect directors in lieu of an annual meeting.
Section 2. Special Meetings
.
Special meetings of the stockholders may be called for such purpose or purposes, on such date, at such time, and be held at such place within
or without the State of Delaware, as shall be prescribed in the notice of the meeting by the president, or in case of the president’s death, absence or disability, the vice president, if any, authorized to exercise the authority of the
president or a majority of the Board of Directors acting with or without a meeting; provided, that if and to the extent that any special meeting of stockholders may be called by any other person or persons specified in any provision of the
certificate of incorporation or any amendment thereto or any certificate filed under Section 151(g) of the Delaware General Corporation Law (or its successor statute as in effect from time to time), then such special meeting may also be called
by the person or persons, in the manner, at the times and for the purposes so specified.
Section 3. Notice of Meetings
.
3.1. Written notice of the place, date, and time of all meetings of the stockholders shall be given, not less than 10 nor more than 60 days
before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here or hereinafter, as required from time to time by the Delaware General
Corporation Law or the certificate of incorporation).
3.2. When a meeting is adjourned to another place, date or time, written notice need
not be given of the adjourned meeting if the place, date, and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30 days after the date for which the
meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be
transacted which might have been transacted at the original meeting.
Section 4. Quorum
.
4.1. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present
in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law.
4.2. If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of the stock entitled
to vote who are present, in person or by proxy, may adjourn the meeting to another place, date, or time.
4.3. If a notice of any adjourned
special meeting of stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present constituting a quorum, then except as otherwise required by law, those present at such adjourned meeting shall
constitute a quorum, and all matters shall be determined by a majority of the votes cast at such meeting.
Section 5.
Organization
.
At each meeting of the stockholders, the president, or, in his/her absence, any vice president, or, in the absence of
the president and all vice presidents, a chairman chosen by a majority in interest of the stockholders present in person or by proxy and entitled to vote, shall act as chairman, and the secretary of the corporation, or, if the secretary of the
corporation not be present, the assistant secretary, or if the secretary and the assistant secretary not be present, any person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting.
Section 6. Conduct of Business
.
The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting including such regulation of
the manner of voting and the conduct of discussion as seem to him/her in order.
Section 7. Proxies and Voting
.
7.1. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in
writing filed in accordance with the procedure established for the meeting.
7.2. Each stockholder shall have one vote for every share of
stock entitled to vote which is registered in such stockholder’s name on the record date for the meeting, except as otherwise provided herein or required by law.
7.3. All voting, except on the election of directors and where otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or such stockholder’s proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.
7.4. All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast.
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Section 8. Stock List
.
8.1. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock
and showing the address of each such stockholder and the number of shares registered in such stockholder’s name, shall be open to the examination of any such stockholder, for any purpose germane to the meeting, during ordinary business hours
for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be
held.
8.2. The stock list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the
examination of any such stockholder who is present. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
Section 9. Voting by Written Consent
.
Any action which may be taken by the stockholders at an annual or special meeting may be taken without a meeting, without prior notice and
without a vote, if stockholders holding the minimum number of votes necessary to take such action shall sign a consent in writing setting forth such action; provided, however, that copies of such written consents shall be filed with the minutes of
the proceedings of the stockholders and that prompt notice of the taking of any such corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented thereto in writing and who, if
the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to
the corporation.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Number and Term of Office; Vacancies
.
The number of directors who shall constitute the whole Board of Directors shall be such number as the stockholders shall at the time have
designated, except that in the absence of any such designation, such number shall be two. Each director shall be elected for a term of one year and until his/her successor is elected and qualified, except as otherwise provided herein or required by
law. Only stockholders shall have the power to increase or decrease the number of directors. If the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, the majority of the remaining
directors, although less than a quorum, by action at a meeting or by written consent, may elect a successor for the unexpired term.
Section 2. Resignations
.
Any director of the corporation may resign at any time by giving written notice to the president or the secretary of the corporation. Such
resignation shall take effect at the time specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
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Section 3. Removal
.
Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
Section 4. Regular Meetings
.
Regular meetings of the Board of Directors shall be held at such place or places within or without the State of Delaware, on such date or
dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.
Section 5. Special Meetings
.
Special meetings of the Board of Directors may be called by two-thirds of the directors then in office or by the chief executive officer and
shall be held at such place, on such date, and at such time as they or he/she shall fix. Notice of the place, date, and time of each such special meeting shall be given each director, by whom it is not waived, by mailing written notice not less than
three days before the meeting or by telegraphing the same not less than eighteen hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section 6. Quorum
.
At any meeting of the Board of Directors, a majority of the whole Board shall constitute a quorum for all purposes. If a quorum shall fail to
attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof.
Section 7. Participation in Meetings By Conference Telephone
.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 8. Conduct of Business
.
At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board may from time to time determine,
and all Board action shall require the affirmative vote of all of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.
Section 9.
Powers
.
The Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as
may be exercised or done by the corporation, except such powers and such acts and things as are deserved in the certificate of incorporation or in these bylaws to the stockholders.
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Section 10. Compensation of Directors
.
Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of committees of the directors.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors
.
The Board of Directors may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who
may replace any absent or disqualified member at any meeting of the committee. Any such committee shall, to the extent provided by resolution of the Board of Directors, have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority of the Board of Directors in
reference to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law to be submitted to the stockholders for approval or (ii) adopting, amending or
repealing any bylaw of the corporation. In the absence or disqualification of any member of any committee and any alternate member in his/her place, the member or members of the committee present at the meeting and not disqualified from voting,
whether or not he/she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.
Section 2. Conduct of Business
.
Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; a majority of the members shall constitute a quorum; and all matters shall be determined by the affirmative vote of the members
present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee.
ARTICLE IV - OFFICERS
Section 1. General Provisions
.
The officers of the corporation shall be the president, such number of vice-presidents as the board may from time to time determine, a
secretary and a treasurer. Any person may hold any two or more offices and perform the duties thereof, except the offices of president and vice-president. If one person is chosen to hold the offices of secretary and treasurer, he/she shall be known
as secretary-treasurer of the corporation. All the duties and obligations assigned to, and all references made to both the secretary and the treasurer in these bylaws, shall apply to the secretary-treasurer, if one person be elected to both of these
offices.
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Section 2. Election, Terms of Office, and Qualification
.
The officers of the corporation named in Section 1 of this Article IV shall be elected by the Board of Directors or, alternatively, by the
stockholders of the corporation, for an indeterminate term and shall hold office during the pleasure of the Board of Directors, or in the event the officers are elected by the stockholders, they shall hold office during the pleasure of the
stockholders.
Section 3. Additional Officers, Agents, etc.
In addition to the officers mentioned in Section 1 of this Article IV, the corporation may have such other officers or agents as the Board
of Directors or the stockholders may deem necessary and may appoint, each of whom or each member of which shall hold office for such period, have such authority and perform such duties as may be provided in these bylaws or as the Board of Directors
or the stockholders may from time to time determine. The Board of Directors or the stockholders may delegate to any officer the power to appoint any subordinate officers or agents. In the absence of any officer of the corporation, or for any other
reason the Board of Directors or the stockholders may deem sufficient, the Board of Directors or the stockholders may delegate, for the time being, the powers and duties, or any of them, of such officer to any other officer, or to any directors.
Section 4. Removal
.
Any officer of the corporation may be removed, either with or without cause, at any time, by resolution adopted by the Board of Directors or
the stockholders at any meeting, the notice (or waivers of notice) of which shall have specified that such removal action was to be considered. Any officer appointed not by the Board of Directors or the stockholders but by an officer or committee to
which the Board of Directors or the stockholders shall have delegated the power of appointment may be removed, without or without cause, by the committee or superior officer (including successors) who made the appointment, or by any committee or
officer upon whom such power of removal may be conferred by the Board of Directors or the stockholders.
Section 5.
Resignations
.
Any officer may resign at any time by giving written notice to the Board of Directors, the president or the secretary of
the corporation. Any such resignation shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 6. Vacancies
A vacancy in any office because of death, resignation, removal, disqualification or otherwise, shall be filled in the manner prescribed in
these bylaws for regular appointments or elections to such office.
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ARTICLE V - DUTIES OF THE OFFICERS
Section 1. The President
The president shall be the chief executive officer of the corporation and shall have general supervision over the property, business and
affairs of the corporation and over its several officers, subject, however, to the control of the Board of Directors. The president shall, if present, preside at all meetings of the stockholders and of the Board of Directors. The president may sign,
with the secretary, treasurer or any other proper officer of the corporation thereunto authorized by the Board of Directors certificates for shares in the corporation. The president may sign, execute, and deliver in the name of the corporation all
deeds, mortgages, bonds, leases, contracts, or other instruments either when specially authorized by the Board of Directors or when required or deemed necessary or advisable by him/her in the ordinary conduct of the corporation’s normal
business, except in cases where the signing and execution thereof shall be expressly delegated by these bylaws to some other officer or agent of the corporation or shall be required by law or otherwise to be signed or executed by some other officer
or agent, and he/she may cause the seal of the corporation, if any, to be affixed to any instrument requiring the same.
Section 2. Vice-Presidents
.
The vice-presidents shall perform such duties as are conferred upon them by these bylaws or as may from time to time be assigned to them by the
Board of Directors or the president. In the absence or disability of the president, the vice-president designated by the Board of Directors shall perform all the duties of the president, and when so acting, shall have all the powers of the
president. The authority of vice-presidents to sign in the name of the corporation all certificates for shares and authorized deeds, mortgages, leases, bonds, contracts, notes and other instruments, shall be coordinate with like authority of the
president.
Section 3. The Treasurer
.
The treasurer shall be the custodian of all funds and securities of the corporation. Whenever so directed by the Board of Directors, he/she
shall render a statement of the cash and other accounts of the corporation, and he/she shall cause to be entered regularly in the books and records of the corporation to be kept for such purpose full and accurate accounts of the corporation’s
receipts and disbursements. He/she shall have such other powers and shall perform such other duties as may from time to time be assigned to him/her by the Board of Directors.
Section 4. The Secretary
.
The secretary shall record and keep the minutes of all meetings of the stockholders and the Board of Directors in a book to be kept for that
purpose. He/she shall be the custodian of, and shall make or cause to be made the proper entries in, the minute book of the corporation and such other books and records as the Board of Directors may direct. He/she shall be the custodian of the seal
of the corporation, if any, and shall affix such seal to such contracts, instruments and other documents as the Board of Directors or any committee thereof may direct. He/she shall have such other powers and shall perform such other duties as may
from time to time be assigned to him/her by the Board of Directors.
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ARTICLE VI - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification
The corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, or pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he/she, his/her testator, or intestate is or was a director or officer of the corporation, or is or was serving at the request
of the corporation as 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),
judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him/her 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 the State of Delaware as they may exist from time to time.
Section 2.
Insurance
.
The proper officers of the corporation, 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 the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent for another
corporation, partnership, joint venture, trusts or other enterprise, against any liability.
Section 3. ERISA
.
To assure indemnification under this provision of all such persons who are or were “fiduciaries” of an employee benefit plan governed
by the Act of the United States Congress entitled “Employee Retirement Income Security Act of 1974”, as amended from time to time (“ERISA”), the provisions of this Article VI shall, except as limited by Section 410 of ERISA,
for the purposes hereof, be interpreted as follows: an “other enterprise” shall be deemed to include an employee benefit plan; the corporation shall be deemed to have requested a person to serve as a director, officer, employee or agent of
an employee benefit plan where the performance of such person of his/her duties to the corporation also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed
on a person with respect to an employee benefit plan pursuant to ERISA shall be deemed “fines”; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose
reasonably believed by such person to be in compliance with ERISA and the terms of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the corporation.
Section 4. Contractual Nature
.
The foregoing provision of this Article VI shall be deemed to be a contract between the corporation and each director and officer who serves in
such capacity at any time while this Section 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 when 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.
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Section 5. Construction
.
For the purposes of this Article VI, references to “the corporation” include in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director or officer of such constituent corporation or is or was serving at the request of such constituent corporation 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 shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he/she would have with respect to such
constituent corporation if its separate existence had continued.
Section 6. Non-Exclusive
.
The corporation 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 he/she reasonably believed to be in, or not opposed to, the best interests of the corporation.
ARTICLE VII - STOCK
Section 1. Certificates of Stock
.
Each stockholder shall be entitled to a certificate signed by, or in the name of the corporation by the president or a vice-president, and by
the secretary or an assistant secretary, or the treasurer or an assistant treasurer, certifying the number of shares owned by such stockholder. Any or all of the signatures on the certificate may be facsimile.
Section 2. Transfers of Stock
.
Transfers of stock shall be made only upon the transfer books of the corporation kept at an office of the corporation or by transfer agents
designated to transfer shares of the stock of the corporation. Except where a certificate is issued in accordance with Section 4 of Article VII of these bylaws, an outstanding certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued therefor.
Section 3. Record Date
.
The Board of Directors may fix a record date, which shall not be more than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for any other action hereinafter described, as of which there shall be determined the stockholders who are entitled: to notice of or to vote at any meeting of stockholders or any adjournment
thereof, to express consent to corporate action in writing without a meeting; to receive payment of any dividend or other distribution or allotment of any rights; or to exercise any rights with respect to any change, conversion or exchange of stock
or with respect to any other lawful action.
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Section 4. Lost, Stolen or Destroyed Certificates
.
In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations
.
The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors
may establish.
ARTICLE VIII - NOTICES
Section 1. Notices
.
Whenever notice is required to be given to any stockholder, director, officer, or agent, such requirement shall not be construed to mean
personal notice. Such notice may in every instance be effectively given by depositing a writing in a post office or letter box, in a postpaid, sealed wrapper, or by dispatching a prepaid telegram, addressed to such stockholder, director, officer, or
agent at his/her address as the same appears on the books of the corporation. The time when such notice is dispatched shall be the time of the giving of the notice.
Section 2. Waivers
.
A written waiver of any notice, signed by a stockholder, director, officer, or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE IX - MISCELLANEOUS
Section 1. Facsimile Signatures
.
In addition to the provisions for the use of facsimile signatures elsewhere specifically authorized in these bylaws, facsimile signatures of
any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal
.
The Board of Directors may provide a suitable seal, containing the name of the corporation, which seal shall be in the charge of the secretary.
If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the treasurer or by the assistant secretary or assistant treasurer.
Section 3. Reliance upon Books, Reports and Records
.
Each director, each member of any committee designated by the Board of Directors, and each officer of the corporation shall, in the performance
of his/her duties, be fully protected in relying in good faith upon the books of account or other records of the corporation, including reports made to the corporation by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
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Section 4. Fiscal Year
.
The fiscal year of the corporation shall be the 52-53 week period ending on the Saturday nearest the last day of January and the next
succeeding fiscal year shall begin on the Sunday following such Saturday.
Section 5. Time Periods
.
In applying any provision of these bylaws which require that an act be done or not done a specified number of days prior to an event or that an
act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
Section 6. Depositaries and Signatories
.
The president and the treasurer of the corporation are each authorized to designate depositaries for the funds of the corporation deposited in
its name and the signatories and conditions with respect thereto in each case, and from time to time, to change such depositaries, signatories and conditions, with the same force and effect as if each such depositary, the signatories and conditions
with respect thereto and changes therein had been specifically designated or authorized by the Board of Directors; and each depositary designated by the Board of Directors or by the president or treasurer of the corporation, shall be entitled to
rely upon the certificate of the secretary and any assistant secretary of the corporation setting forth the fact of such designation and of the appointment of the officers of the corporation or of both or of other persons who are to be signatories
with respect to the withdrawal of funds deposited with such depositary, or from time to time the fact of any change in any depositary or in the signatories with respect thereto.
Section 7. Execution of Instruments Generally
.
In addition to the powers conferred upon the president in Article V, Section 1 and except as otherwise provided in Section 6 of this
Article IX, all contracts and other instruments entered into in the ordinary course of business requiring execution by the corporation may be executed and delivered by any vice president or the treasurer and authority to sign any such contracts or
instruments, which may be general or confined to specific instances, may be conferred by the Board of Directors upon any other person or persons. Any person having authority to sign on behalf of the corporation may delegate, from time to time, by
instrument in writing, all or any part of such authority to any person or persons if authorized so to do by the Board of Directors.
Section 8. Voting Securities of Other Corporations
.
Unless otherwise directed by the Board of Directors, the president and any vice president of the corporation shall have the power to vote and
otherwise act on behalf of the corporation, in person or by proxy, at any meeting, or with respect to any action, of stockholders of any other corporation in which this corporation may hold securities and otherwise to exercise any and all rights and
powers which this corporation may possess by reason of its ownership of securities in such other corporation.
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Exhibit 3.7
CERTIFICATE OF MERGER
OF
BATH & BODY
WORKS, INC.
INTO
BBW STORE OPERATIONS, LLC
[Domestic Limited Liability Company Surviving]
The undersigned limited liability company, BBW Store Operations, LLC, organized and existing under and by virtue of the Delaware Limited
Liability Company Act, 6
Del. C
. §§18-101,
et seq
. (the “Delaware Act”), for the purpose of merging with another entity pursuant to §18-209 of the Delaware Act, DOES HEREBY CERTIFY:
FIRST: That the name and jurisdiction of formation or organization of each of the constituent entities which are to merge are as follows:
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Name
|
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Jurisdiction of Formation/Organization
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BBW Store Operations, LLC
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Delaware
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Bath & Body Works, Inc.
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Delaware
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SECOND: An agreement of merger has been approved, adopted, certified, executed and acknowledged by the
constituent entities in accordance with §18-209 of the Delaware Act and §264(c) and §228 of the General Corporation Law of the State of Delaware (the “DGCL”), 8
Del C
.§101,
et
seq
.
THIRD: The name of the surviving Delaware limited liability company is BBW Store Operations, LLC and, as of the Effective Time (as defined in
Article Fourth below), Article 1 of the Certificate of Formation of the surviving Delaware limited liability company shall be amended in its entirety to read as follows:
1. The name of the limited liability company is “Bath & Body Works, LLC”.
FOURTH: The merger of Bath & Body Works, Inc. into BBW Store Operations, LLC shall be effective as of 11:59 p.m. (EDST) on
July 1, 2006 (the “Effective Time”).
FIFTH: The executed agreement of merger is on file at the principal place of business
of the surviving Delaware limited liability company. The address of the principal place of business of the surviving Delaware limited liability company is Seven Limited Parkway, Reynoldsburg, Ohio 43068.
SIXTH: A copy of the agreement of merger will be furnished by the surviving Delaware limited liability company, on request and without cost,
to any member of BBW Store Operations, LLC or any stockholder of Bath & Body Works, Inc.
IN WITNESS WHEREOF, this Certificate of Merger has been duly executed this 29th day of June,
2006, and is being filed in accordance with §18-209 of the Delaware Act and §264(c) of the DGCL by an authorized officer of the sole member of the surviving Delaware limited liability company.
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BBW STORE OPERATIONS, LLC
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By:
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Limited Brands Store Operations, Inc.,
Sole Member
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By:
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/s/ Mark A. Giresi
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Mark A. Giresi,
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Executive Vice President, Retail Operations
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Exhibit 3.8
BBW STORE OPERATIONS, LLC
First Amended and Restated Limited Liability Company Agreement
THIS FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) is made to be effective as of 11:46 p.m.
(EDST) on July 1, 2006 by Limited Brands Store Operations, Inc. (f/k/a The Limited Stores, Inc.), a Delaware corporation (the “Member”).
W I T N E S S E T H:
WHEREAS,
BBW Store Operations. LLC, a Delaware limited liability company (the “LLC”), was organized in accordance with the provisions of the Delaware Limited Liability Company Act, Delaware Code Title 6, Sections 18-101, et seq. (the
“Act”) and pursuant to (i) a certain Certificate of Formation filed with the Secretary of State of the State of Delaware (the “Secretary of State”) on March 17, 2005, a copy of which is attached hereto as Exhibit A (the
“Original Certificate of Formation”), and (ii) a certain Limited Liability Company Agreement, dated March 17, 2005 (the “Original LLC Agreement”) and entered into by Womanco, Inc. (n/k/a Limited Brands Store Operations,
Inc.), a Delaware corporation (“Old LBSO”); and
WHEREAS, effective as of 11:45 p.m. (EDST) on July 1, 2006, Old LBSO
merged with and into the Member (the “Merger”), such that, by operation of law, the entire limited liability company interest as a member in the LLC became vested in the Member; and
WHEREAS, the Member desires to enter into this Agreement to reflect the above-described assignment of the entire limited liability company
interest as a member in the LLC upon the consummation of the Merger and the withdrawal of Old LBSO from the LLC; to memorialize that the LLC was not and is not to be dissolved, liquidated or wound up as a result of the Merger and the withdrawal of
Old LBSO from the LLC as a result thereof; and that the Member hereby continues to be a member of the LLC for purposes of conducting and continuing the business of the LLC in accordance with the Original LLC Agreement, as amended, restated and
superseded hereby, and to reflect certain arrangements as to the affairs of the LLC and the conduct of its business; and
WHEREAS, the
Member desires hereby to amend, restate and supersede in its entirety the Original LLC Agreement, and intends that this Agreement constitute the “limited liability company agreement” of the LLC, within the meaning of that term as defined
in the Act;
NOW THEREFORE, it is agreed, stated and declared as follows:
Section l.
Formation; Member
. The LLC was formed upon the execution of the Original Certificate of Formation and the filing of the
Original Certificate of Formation with the Secretary of State. The purpose for which the LLC was formed and continues to exist is to engage in any lawful act or activity for which limited liability companies may be formed under the Act. The Member
shall be the sole “member” of the LLC, as defined in the Act. Whether under this Agreement, under any other agreement or obligation by which the LLC and/or the Member may be bound, or pursuant to applicable law, any action or inaction
taken or omitted to be taken by or with the consent of the Member shall bind the LLC. The Member may delegate such power and authority, including without limitation, the delegation of such power and authority to persons appointed as officers of the
LLC.
Section 2.
Term
. The term of the LLC commenced with the filing of the Original
Certificate of Formation with the Secretary of State. The LLC shall continue in perpetuity, unless and until the Member consents in writing to dissolve the LLC. Upon dissolution, the LLC shall be wound up and terminated as provided in the Act, and
the Member shall have the authority to wind up the LLC. No event described in Section 18-304 of the Act (entitled “Events of Bankruptcy”) involving the Member shall cause the Member to cease to be a member of the LLC, and provisions
of Section 18-801 of the Act (entitled “Dissolution”) shall not apply to the LLC.
Section 3.
Capital Contributions
.
The Member shall determine the amounts, forms and timing of capital contributions required of the Member.
Section 4.
Tax
Matters
. So long as the LLC has only one member, the LLC shall be disregarded as an entity separate from its member, solely for tax purposes, in accordance with Sections 301.7701-1, -2 and -3 of the Treasury Department regulations promulgated
under the Internal Revenue Code of 1986, as amended, and the provisions of Section 18-503 of the Act (entitled “Allocation of Profits and Losses”) shall not apply to the LLC.
Section
5
.
Distributions
. Distributions of cash or property under circumstances not involving the liquidation of the
LLC, if any, shall be within the discretion of the Member as to amount, form and frequency, subject to Section 18-607 of the Act (entitled “Limitations on Distribution”). Upon liquidation of the LLC, the Member shall have the power to
liquidate or to distribute in kind any and all of the assets of the LLC, and the proceeds of any such liquidation shall be applied and distributed in accordance with Section 18-804 of the Act (entitled “Distribution of Assets”).
Section 6.
General Provisions
.
6.1
No Third Party Beneficiaries
. None of the provisions of this Agreement shall be construed as existing for the
benefit of any creditor of the LLC or as being enforceable by any party not a signatory hereto. There shall be no third party beneficiaries of this Agreement.
6.2
Entire Agreement
. This Agreement constitutes the entire “limited liability company agreement” of the LLC
within the meaning of the Act and contains the entire understanding, agreement and statement of the Member upon the subject matter of this Agreement and may only be amended, changed or waived in a writing signed by the Member. The Member
acknowledges that the provisions of the Act shall govern the affairs of the LLC and the conduct of its business, except as provided in this Agreement.
6.3
Provisions Binding
. This Agreement shall inure to the benefit of and be binding upon the Member and the
Member’s successors and assigns.
6.4
Applicable Law
. This Agreement shall be interpreted in accordance with
the laws of the State of Delaware.
6.5
Amendment and Restatement; Continuation of LLC
. The Original LLC Agreement
is hereby amended, restated and superseded in its entirety by this Agreement. The Member agrees that the LLC is not to be dissolved, liquidated or wound up as a result of the Merger, and that the Member hereby continues to be a member of the LLC for
purposes of conducting and continuing the business of the LLC in accordance with this Agreement.
-2-
IN WITNESS WHEREOF, the Member has caused its duly authorized officer to execute this First
Amended and Restated Limited Liability Company Agreement of BBW Store Operations, LLC, effective as of the date and year first above written.
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LIMITED BRANDS STORE OPERATIONS, INC.,
a Delaware corporation
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By:
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/s/ Mark A. Giresi
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Mark A. Giresi,
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Executive Vice President – Retail Operations
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-3-
Exhibit 3.9
STATE OF DELAWARE
CERTIFICATE OF FORMATION
OF
BEAUTYAVENUES, LLC
The undersigned, desiring to form a limited liability company under Title 6, Sections 18-101 et seq. of the Delaware Code, hereby
certifies as follows:
1. The name of the limited liability company is beautyAvenues, LLC.
2. The address of the limited liability company’s registered office in the State of Delaware is: Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle, 19801. The name of the limited liability company’s registered agent at such address is the Corporation Trust Company.
3. This Certificate of Formation shall be effective at 11:12 p.m. (Eastern Standard Time) on January 29, 2011.
4. The undersigned is an authorized person of beautyAvenues, LLC for purposes of the execution and delivery of this Certificate of Formation.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of beautyAvenues, LLC, as of the 25
th
day of January, 2011.
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/s/ Luis F. Machado
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Luis F. Machado,
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Authorized Representative
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Exhibit 3.10
BEAUTYAVENUES, LLC
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT (this
“
Agreement
”),
is dated as of January 29, 2011, to be effective as
of 11:12 p.m., Eastern Standard Time
(“
EST
”),
on January 29, 2011, by Intimate Brands Holding, LLC, a Delaware limited liability company (the “
Member
”).
W I TN E S S E T H:
WHEREAS,
the Member is the sole stockholder of beautyAvenues, Inc., a Delaware corporation
(“
BAI
”);
and
WHEREAS, in
accordance with Section 266 of the Delaware General Corporation Law, the Board of Directors of BAI and the Member, in its capacity as the sole stockholder of BAI, have authorized the conversion of BAI from a Delaware corporation to a Delaware
limited liability company, which conversion is to be effective at 11:12 p.m. EST, on January 29, 2011 ; and
WHEREAS, in compliance
with Section 266 of the Delaware General Corporation Law and Section 18-214 of the Delaware Limited Liability Company Act, Delaware Code Title 6, Chapter 18 (the
“
Act
”),
the Member intends to cause to be filed with
the Delaware Secretary of State a Certificate of Formation in respect of beautyAvenues, LLC, a limited liability company to be formed under the laws of the State of Delaware in connection with the conversion of BAI from a Delaware corporation to a
Delaware limited liability company; and
WHEREAS, the Member desires to enter into this Agreement as to the affairs of the LLC and the
conduct of its business, and the Member intends that this Agreement constitute the “limited liability company agreement” of the LLC, within the meaning of that term as defined in the Act;
NOW, THEREFORE, it is agreed and stated as follows:
Section 1.
Formation; Member
. The Certificate of Formation of the LLC shall be substantially in the form of
“
Exhibit
A
”
attached hereto and made a part hereof (the
“
Certificate of Formation
”).
The Certificate of Formation shall be executed by the Member or an authorized representative of the Member. The Member hereby
acknowledges and agrees that Luis F. Machado is an authorized representative to execute the Certificate of Formation of the LLC. The LLC shall be formed at the time specified in the Certificate of Formation, which is 11:12 p.m. EST, on
January 29, 2011. The Member hereby approves and ratifies the completion, execution, delivery, recording and filing of the Certificate of Formation by Luis F. Machado on behalf of the Member and the LLC. The Member shall be the sole
“member” of the LLC, as defined in the Act. Whether under this Agreement, under any other agreement or obligation by which the Company and/or the Member may be bound, or pursuant to applicable law, any action or inaction taken or omitted
to be taken by or with the consent of the Member shall bind the Company. The Member may delegate such power and authority, including without limitation, the delegation of such power and authority to persons appointed as officers of the LLC.
Section 2.
Term
. BAI shall be converted into the LLC effective at 11:12 p.m., EST, on
January 29, 2011; provided, however, that pursuant to Section 18-214 of the Act, the existence of the LLC shall be deemed to have commenced on the date that BAI was incorporated under the Delaware General Corporation Law (which date was
January 26, 2005). The LLC shall continue in perpetuity, unless and until the Member consents in writing to dissolve the LLC. Upon dissolution, the LLC shall be wound up and terminated as provided in the Act, and the Member shall have the
authority to wind up the LLC. To the extent permitted by law, no event described in Section 18-304 of the Act (entitled “Events of Bankruptcy”) involving the Member shall cause the Member to cease to be a member of the LLC, and the
provisions of Section 18-801 of the Act (entitled “Dissolution”) shall not apply to the LLC.
Section 3.
Capital
Contributions
. The Member shall determine the amounts, forms and timing of capital contributions required of the Member. The initial capitalization of the LLC shall consist of the assets and liabilities of BAI, the Delaware corporation which
converted into the LLC.
Section 4.
Tax Matters
. So long as the LLC has only one member, the LLC shall be disregarded as an
entity separate from its member, for all U.S. federal income tax and applicable state income and franchise tax purposes, pursuant to Treasury Regulation Sections 301.7701-1, 301.7701-2 and 301.7701-3, and corresponding provisions of applicable state
laws (and successor provisions), and the provisions of Section 18-503 of the Act (entitled “Allocation of Profits and Losses”) shall not apply to the LLC.
Section 5.
Distributions
. Distributions of cash or property under circumstances not involving the liquidation of the LLC, if any,
shall be within the discretion of the Member as to amount, form and frequency, subject to Section 18-607 of the Act (entitled “Limitations on Distribution”). Upon the liquidation of the LLC, the Member shall have power to liquidate or
to distribute in kind any and all of the assets of the LLC, and the proceeds of any such liquidation shall be applied and distributed in accordance with Section 18-804 of the Act (entitled “Distribution of Assets”).
Section 6.
General Provisions
.
(a)
No Third-Party Beneficiaries
. None of the provisions of this Agreement shall be construed as existing for the benefit of any
creditor of the LLC or as being enforceable by any party not a signatory hereto. There shall be no third-party beneficiaries of this Agreement.
(b)
Entire Agreement
. This Agreement constitutes the entire “limited liability company agreement” of the LLC within the
meaning of the Act and contains the entire understanding, agreement and statement of the Member upon the subject matter of this Agreement and may only be amended, changed or waived in a writing signed by the Member. The Member acknowledges that the
provisions of the Act shall govern the affairs of the LLC and the conduct of its business, except as provided in this Agreement.
(c)
Provisions Binding
. This Agreement shall inure to the benefit of and be binding upon the Member and the Member’s successors and assigns.
(d)
Applicable Law
. This Agreement shall be interpreted in accordance with the laws of the State of Delaware.
-2-
IN WITNESS WHEREOF,
the undersigned, being a duly authorized officer of Intimate Brands
Holding, LLC, the sole member of beautyAvenues, LLC, has duly executed this Limited Liability Company Agreement of beautyAvenues, LLC on behalf of the Member, effective as of the time, date and year first above written.
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INTIMATE BRANDS HOLDING, LLC
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By:
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/s/ Timothy J. Faber
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Timothy J. Faber,
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Senior Vice President - Legal
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-3-
Exhibit 3.11
CERTIFICATE OF MERGER
OF
MAST INDUSTRIES
(DELAWARE), INC.
INTO
INTIMATE BRANDS, INC.
Intimate Brands, Inc., a corporation organized and existing under the laws of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That Intimate Brands, Inc. was incorporated on the 22
nd
day of February, 1993,
pursuant to the General Corporation Law of the State of Delaware (the “
DGCL
”).
SECOND: That Intimate Brands, Inc.
is the surviving corporation and following the merger, its name shall continue to be Intimate Brands, Inc., and Mast Industries (Delaware), Inc., a corporation incorporated on the 17
th
day of
September, 1982 pursuant to the DGCL, is the merging corporation.
THIRD: An Agreement of Merger and Reorganization has been approved,
adopted, executed and acknowledged by each of Intimate Brands, Inc. and Mast Industries (Delaware), Inc. in accordance with §251 of the DGCL.
FOURTH: Intimate Brands, Inc. shall be the surviving corporation and the Certificate of Incorporation of Intimate Brands, Inc., as in effect
at the effective date and time of the merger, shall be the certificate of incorporation of the surviving corporation.
FIFTH: The executed
Agreement of Merger and Reorganization is on file at the office of the surviving corporation, located at Three Limited Parkway, Columbus, Ohio 43230, and a copy of the Agreement of Merger and Reorganization will be furnished by the surviving
corporation, upon request and without cost, to any stockholder of any constituent corporation.
SIXTH: The merger shall be effective as of
11:24 p.m., Eastern Standard Time, on January 29, 2011.
IN WITNESS WHEREOF, Intimate Brands, Inc. has caused this Certificate of
Merger to be signed by its Senior Vice President – Legal as of the 25
th
day of January, 2011.
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INTIMATE BRANDS, INC.
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By:
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/s/ Luis F. Machado
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Luis F. Machado, Senior Vice President – Legal
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Exhibit 3.12
INTIMATE BRANDS, INC.
(f/k/a Intimate Brands Holding Co., Inc. and as Old Bathco, Inc.)
AMENDED AND RESTATED BYLAWS
ARTICLE I - STOCKHOLDERS
Section 1. Annual Meeting
.
An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place within or without the State of Delaware, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within 13 months subsequent to
the later of the date of incorporation or the last annual meeting of stockholders or the last action by written consent to elect directors in lieu of an annual meeting.
Section 2. Special Meetings
.
Special meetings of the stockholders may be called for such purpose or purposes, on such date, at such time, and be held at such place within
or without the State of Delaware, as shall be prescribed in the notice of the meeting by the president, or in case of the president’s death, absence or disability, the vice president, if any, authorized to exercise the authority of the
president or a majority of the Board of Directors acting with or without a meeting; provided, that if and to the extent that any special meeting of stockholders may be called by any other person or persons specified in any provision of the
certificate of incorporation or any amendment thereto or any certificate filed under Section 151(g) of the Delaware General Corporation Law (or its successor statute as in effect from time to time), then such special meeting may also be called
by the person or persons, in the manner, at the times and for the purposes so specified.
Section 3. Notice of Meetings
.
3.1. Written notice of the place, date, and time of all meetings of the stockholders shall be given, not less than 10 nor more than 60 days
before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here or hereinafter, as required from time to time by the Delaware General
Corporation Law or the certificate of incorporation).
3.2. When a meeting is adjourned to another place, date or time, written notice need
not be given of the adjourned meeting if the place, date, and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30 days after the date for which the
meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be
transacted which might have been transacted at the original meeting.
Section 4. Quorum
.
4.1. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present
in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law.
4.2. If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of the stock entitled
to vote who are present, in person or by proxy, may adjourn the meeting to another place, date, or time.
4.3. If a notice of any adjourned
special meeting of stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present constituting a quorum, then except as otherwise required by law, those present at such adjourned meeting shall
constitute a quorum, and all matter shall be determined by a majority of the votes cast at such meeting.
Section 5. Organization
.
At each meeting of the stockholders, the president, or, in his/her absence, any vice president, or, in the absence of the present and all
vice presidents, a chairman chosen by a majority in interest of the stockholders present in person or by proxy and entitled to vote, shall act as chairman, and the secretary of the corporation, or, if the secretary of the corporation not be present,
the assistant secretary, or if the secretary and the assistant secretary not be present, any person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting.
Section 6. Conduct of Business
.
The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting including such regulation of
the manner of voting and the conduct of discussion as seem to him/her in order.
Section 7. Proxies and Voting
.
7.1. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in
writing filed in accordance with the procedure established for the meeting.
7.2. Each stockholder shall have one vote for every share of
stock entitled to vote which is registered in his name on the record date for the meeting, except as otherwise provided herein or required by law.
7.3. All voting, except on the election of directors and where otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be
required under the procedure established for the meeting. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.
7.4. All elections shall be determined by a plurality of the votes cast, and except as otherwise
required by law, all other matters shall be determined by a majority of the votes cast.
Section 8. Stock List
.
8.1. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock
and showing the address of each such stockholder and the number of shares registered in his name, shall be open to the examination of any such stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at
least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held.
8.2. The stock list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the examination of any
such stockholder who is present. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
Section 9. Voting by Written Consent
.
Any action which may be taken by the stockholders at an annual or special meeting may be taken without a meeting, without prior notice and
without a vote, if stockholders holding the minimum number of votes necessary to take such action shall sign a consent in writing setting forth such action; provided, however, that copies of such written consents shall be filed with the minutes of
the proceedings of the stockholders and that prompt notice of the taking of any such corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented thereto in writing and who, if
the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to
the corporation.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Number and Term of Office; Vacancies
.
The number of directors who shall constitute the whole board shall be such number as the stockholders shall at the time have designated, except
that in the absence of any such designation, such number shall be two. Each director shall be elected for a term of one year and until his successor is elected and qualified, except as otherwise provided herein or required by law. Only stockholders
shall have the power to increase or decrease the number of directors. If the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, the majority of the remaining directors, although less than
a quorum, by action at a meeting or by written consent, may elect a successor for the unexpired term.
Section 2.
Resignations
.
Any director of the corporation may resign at any time by giving written notice to the president or the secretary of the
corporation. Such resignation shall take effect at the time specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 3. Removal
.
Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
Section 4. Regular Meetings
.
Regular meetings of the Board of Directors shall be held at such place or places within or without the State of Delaware, on such date or
dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.
Section 5. Special Meetings
.
Special meetings of the Board of Directors may be called by two-thirds of the directors then in office or by the chief executive officer and
shall be held at such place, on such date, and at such time as they or he/she shall fix. Notice of the place, date, and time of each such special meeting shall be given each director, by whom it is not waived, by mailing written notice not less than
three days before the meeting or by telegraphing the same not less than eighteen hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section 6. Quorum
.
At any meeting of the Board of Directors, a majority of the whole board shall constitute a quorum for all purposes. If a quorum shall fail to
attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof.
Section 7. Participation in Meetings By Conference Telephone
.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 8. Conduct of Business
.
At any meeting of the Board of Directors, business shall be transacted in such order and manner as the board may from time to time determine,
and all board action shall require the affirmative vote of all of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors,
Section 9.
Powers
.
The Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as
may be exercised or done by the corporation, except such powers and such acts and things as are deserved in the certificate of incorporation or in these bylaws to the stockholders.
Section 10. Compensation of Directors
.
Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of committees of the directors.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors
.
The Board of Directors may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who
may replace any absent or disqualified member at any meeting of the committee. Any such committee shall, to the extent provided by resolution of the Board of Directors, have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority of the Board of Directors in
reference to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law to be submitted to the stockholders for approval or (ii) adopting, amending or
repealing any bylaw of the corporation. In the absence or disqualification of any member of any committee and any alternate member in his place, the member or members of the committee present at the meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.
Section 2. Conduct of Business
.
Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; a majority of the members shall constitute a quorum; and all matters shall be determined by the affirmative vote of the members
present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee.
ARTICLE IV - OFFICERS
Section 1. General Provisions
.
The officers of the corporation shall be the president, such number of vice-presidents as the board may from time to time determine, a
secretary and a treasurer. Any person may hold any two or more offices and perform the duties thereof, except the offices of president and vice-president. If one person is chosen to hold the offices of secretary and treasurer, he shall be known as
secretary-treasurer of the corporation. All the duties and obligations assigned to, and all references made to both the secretary and the treasurer in these bylaws, shall apply to the secretary-treasurer, if one person be elected to both of these
offices.
Section 2. Election, Terms of Office, and Qualification
.
The officers of the corporation named in Section 1 of this Article IV shall be elected by the Board of Directors or, alternatively, by the
stockholders of the corporation, for an indeterminate term and shall hold office during the pleasure of the Board of Directors, or in the event the officers are elected by the stockholders, they shall hold office during the pleasure of the
stockholders.
Section 3. Additional Officers Agents, etc.
In addition to the officers mentioned in Section 1 of this Article IV, the corporation may have such other officers or agents as the Board
of Directors or the stockholders may deem necessary and may appoint, each of whom or each member of which shall hold office for such period, have such authority and perform such duties as may be provided in these bylaws or as the Board of Directors
or the stockholders may from time to time determine. The Board of Directors or the stockholders may delegate to any officer the power to appoint any subordinate officers or agents. In the absence of any officer of the corporation, or for any other
reason the Board of Directors or the stockholders may deem sufficient, the Board of Directors or the stockholders may delegate, for the time being, the powers and duties, or any of them, of such officer to any other officer, or to any directors.
Section 4. Removal
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Any officer of the corporation may be removed, either with or without cause, at any time, by resolution adopted by the Board of Directors or
the stockholders at any meeting, the notice (or waivers of notice) of which shall have specified that such removal action was to be considered. Any officer appointed not by the Board of Directors or the stockholders but by an officer or committee to
which the Board of Directors or the stockholders shall have delegated the power of appointment may be removed, without or without cause, by the committee or superior officer (including successors) who made the appointment, or by any committee or
officer upon whom such power of removal may be conferred by the Board of Directors or the stockholders.
Section 5.
Resignations
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Any officer may resign at any time by giving written notice to the Board of Directors, the president or the secretary of
the corporation. Any such resignation shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 6. Vacancies
A vacancy in any office because of death, resignation, removal, disqualification or otherwise, shall be filled in the manner prescribed in
these bylaws for regular appointments or elections to such office.
ARTICLE V - DUTIES OF THE OFFICERS
Section 1. The President
The president shall be the chief executive officer of the corporation and shall have general supervision over the property, business and
affairs of the corporation and over its several officers, subject, however, to the control of the Board of Directors, The president shall, if present, preside at all meetings of the stockholders and of the Board of Directors. The president may sign,
with the secretary, treasurer or any other proper officer of the corporation thereunto authorized by the Board of Directors certificates for shares in the corporation. The president may sign, execute, and deliver in the name of the corporation all
deeds, mortgages, bonds, leases, contracts, or other instruments either when specially authorized by the Board of Directors or when required or deemed necessary or advisable by him/her in the ordinary conduct of the corporation’s normal
business, except in cases where the signing and execution thereof shall be expressly delegated by these bylaws to some other officer or agent of the corporation or shall be required by law or otherwise to be signed or executed by some other officer
or agent, and he/she may cause the seal of the corporation, if any, to be affixed to any instrument requiring the same.
Section 2. Vice-Presidents
.
The vice-presidents shall perform such duties as are conferred upon them by these bylaws or as may from time to time be assigned to them by the
Board of Directors or the president. In the absence or disability of the president, the vice-president designed by the Board of Directors shall perform all the duties of the president, and when so acting, shall have all the powers of the president.
The authority of vice-presidents to sign in the name of the corporation all certificates for shares and authorized deeds, mortgages, leases, bonds, contracts, notes and other instruments, shall be coordinate with like authority of the president.
Section 3. The Treasurer
.
The treasurer shall be the custodian of all funds and securities of the corporation. Whenever so directed by the Board of Directors, he shall
render a statement of the cash and other accounts of the corporation, and he shall cause to be entered regularly in the books and records of the corporation to be kept for such purpose full and accurate accounts of the corporation’s receipts
and disbursements. He shall have such other powers and shall perform such other duties as may from time to time be assigned to him by the Board of Directors.
Section 4. The Secretary
.
The secretary shall record and keep the minutes of all meetings of the stockholders and the Board of Directors in a book to be kept for that
purpose. He shall be the custodian of, and shall make or cause to be made the proper entries in, the minute book of the corporation and such other books and records as the Board of Directors may direct. He shall be the custodian of the seal of the
corporation, if any, and shall affix such seal to such contracts, instruments and other documents as the Board of Directors or any committee thereof may direct. He shall have such other powers and shall perform such other duties as may from time to
time be assigned to him by the Board of Directors.
ARTICLE VI - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification
The corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, or pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director or officer of the corporation, or is or was serving at the request of the
corporation as 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), judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred by him/her 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 the State of Delaware as they may exist from time to time.
Section 2. Insurance
.
The proper officers of the corporation, 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 the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent for another corporation, partnership, joint
venture, trusts or other enterprise, against any liability.
Section 3. ERISA
.
To assure indemnification under this provision of all such persons who are or were “fiduciaries” of an employee benefit plan governed
by the Act of the United States Congress entitled “Employee Retirement Income Security Act of 1974”, as amended from time to time (“ERISA”), the provisions of this Article VI shall, except as limited by Section 410 of ERISA,
for the purposes hereof, be interpreted as follows: an “other enterprise” shall be deemed to include an employee benefit plan; the corporation shall be deemed to have requested a person to serve as a director, officer, employee or agent of
an employee benefit plan where the performance of such person of his/her duties to the corporation also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed
on a person with respect to an employee benefit plan pursuant to ERISA shall be deemed “fines”; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose
reasonably believed by such person to be in compliance with ERISA and the terms of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the corporation.
Section 4. Contractual Nature
.
The provisions of this Article VI shall be deemed to be a contract between the corporation and each director and officer who serves in such
capacity at any time while this Section 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.
Section 5. Construction
.
For the purposes of this Article VI references to “the corporation” include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director or officer of such constituent corporation or is or was serving at the request of such constituent corporation 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 shall stand in the same position under the provisions of this Article VI with respect to the resulting or surviving corporation as he/she would have with respect to
such constituent corporation if its separate existence had continued.
Section 6. Non-Exclusive
.
The corporation 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 he/she reasonably believed to be in, or not opposed to, the best interests of the corporation.
ARTICLE VII - STOCK
Section 1. Certificates of Stock
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Each stockholder shall be entitled to a certificate signed by or in the name of the corporation by the president or a vice-president, and by
the secretary or an assistant secretary, or the treasurer or an assistant treasurer, certifying the number of shares owned by such stockholder. Any or all of the signatures on the certificate may be facsimile.
Section 2. Transfers of Stock
.
Transfers of stock shall be made only upon the transfer books of the corporation kept at an office of the corporation or by transfer agents
designated to transfer shares of the stock of the corporation. Except where a certificate is issued in accordance with Section 4 of Article VII of these bylaws, an outstanding certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued therefor.
Section 3. Record Date
.
The Board of Directors may fix a record date, which shall not be more than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for any other action hereinafter described, as of which there shall be determined the stockholders who are entitled: to notice of or to vote at any meeting of stockholders or any adjournment
thereof, to express consent to corporate action in writing without a meeting; to receive payment of any dividend or other distribution or allotment of any rights; or to exercise any rights with respect to any change, conversion or exchange of stock
or with respect to any other lawful action.
Section 4. Lost, Stolen or Destroyed Certificates
.
In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations
.
The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors
may establish.
ARTICLE VIII - NOTICES
Section 1. Notices
.
Whenever notice is required to be given to any stockholder, director, officer or agent, such requirement shall not be construed to mean
personal notice. Such notice may in every instance be effectively given by depositing a writing in a post office or letter box, in a postpaid, sealed wrapper, or by dispatching a prepaid telegram, addressed to such stockholder, director, officer or
agent at his or her address as the same appears on the books of the corporation. The time when such notice is dispatched shall be the time of the giving of the notice.
Section 2. Waivers
.
A written waiver of any notice, signed by a stockholder, director, officer or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE IV - MISCELLANEOUS
Section 1. Facsimile Signatures
.
In addition to the provisions for the use of facsimile signatures elsewhere specifically authorized in these bylaws, facsimile signatures of
any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal
.
The Board of Directors may provide a suitable seal, containing the name of the corporation, which seal shall be in the charge of the secretary.
If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the treasurer or by the assistant secretary or assistant treasurer.
Section 3. Reliance upon Books, Reports and Records
.
Each director, each member of any committee designated by the Board of Directors, and each officer of the corporation shall, in the performance
of his/her duties, be fully protected in relying in good faith upon the books of account or other records of the corporation, including reports made to the corporation by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
Section 4. Fiscal Year
.
The fiscal year of the corporation shall be the 52-53 week period ending on the Saturday nearest the last day of January and the next
succeeding fiscal year shall begin on the Sunday following such Saturday.
Section 5. Time Periods
.
In applying any provision of these bylaws which require that an act be done or not done a specified number of days prior to an event or that an
act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
Section 6. Depositaries and Signatories
.
The president and the treasurer of the corporation are each authorized to designate depositaries for the funds of the corporation deposited in
its name and the signatories and conditions with respect thereto in each case, and from time to time, to change such depositaries, signatories and conditions, with the same force and effect as if each such depositary, the signatories and conditions
with respect thereto and changes therein had been specifically designated or authorized by the Board of Directors; and each depositary designated by the Board of Directors or by the president or treasurer of the corporation, shall be entitled to
rely upon the certificate of the secretary and any assistant secretary of the corporation setting forth the fact of such designation and of the appointment of the officers of the corporation or of both or of other persons who are to be signatories
with respect to the withdrawal of funds deposited with such depositary, or from time to time the fact of any change in any depositary or in the signatories with respect thereto.
Section 7. Execution of Instruments Generally
.
In addition to the powers conferred upon the president in Article V, Section 1 and except as otherwise provided in Section 6 of this
Article IX, all contracts and other instruments entered into in the ordinary course of business requiring execution by the corporation may be executed and delivered by any vice president or the treasurer and authority to sign any such contracts or
instruments, which may be general or confined to specific instances, may be conferred by the Board of Directors upon any other person or persons. Any person having authority to sign on behalf of the corporation may delegate, from time to time, by
instrument in writing, all or any part of such authority to any person or persons if authorized so to do by the Board of Directors.
Exhibit 3.13
CERTIFICATE OF FORMATION
OF
INTIMATE BRANDS
HOLDING, LLC
The undersigned, desiring to form a limited liability company under Title 6, Sections 18-101 et seq. of the Delaware
Code, hereby certifies as follows:
1. The name of the limited liability company shall be Intimate Brands Holding, LLC.
2. The address of the limited liability company’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle 19801. The name of its registered agent at such address is The Corporation Trust Company.
3. The undersigned is an authorized representative for purposes of the execution and delivery of this Certificate of Formation.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of Intimate Brands Holding, LLC this 7
th
day of January, 2011. ·
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/s/ Ted B. Hipsher
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Ted B. Hipsher, Authorized Representative
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Exhibit 3.14
L
IMITED
L
IABILITY
C
OMPANY
A
GREEMENT
O
F
I
NTIMATE
B
RANDS
H
OLDING
, LLC
D
ATE
: J
ANUARY
25, 2011
L
IMITED
L
IABILITY
C
OMPANY
A
GREEMENT
O
F
I
NTIMATE
B
RANDS
H
OLDING
, LLC
Table of Contents
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Page
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ARTICLE I—DEFINITIONS
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1
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Section 1.01
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Certain Definitions
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1
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Section 1.02
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Other Definitional Provisions
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3
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ARTICLE II—FORMATION, PURPOSE AND POWERS
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3
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Section 2.01
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Name
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3
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Section 2.02
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Formation
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3
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Section 2.03
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Purpose
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3
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Section 2.04
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Powers
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4
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Section 2.05
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Principal Office
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4
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Section 2.06
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Registered Office; Registered Agent
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4
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Section 2.07
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Qualification in Other Jurisidictions
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4
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Section 2.08
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Term
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4
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Section 2.09
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Title to Company Assets
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4
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Section 2.10
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Limited Liability
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4
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ARTICLE III—CAPITALIZATION AND CAPITAL CONTRIBUTIONS
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5
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Section 3.01
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Initial Capital Contribution
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5
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Section 3.02
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Additional Capital Contributions
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5
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Section 3.03
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Units
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5
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Section 3.04
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Preferred Units
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5
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Section 3.05
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Additional Issuances
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6
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Section 3.06
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No Priority Among Members
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6
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Section 3.07
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No Interest on Capital Contributions; No Withdrawal of Capital
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6
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ARTICLE IV—MEMBERS; VOTING
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6
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Section 4.01
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Members
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6
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Section 4.02
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Voting Rights
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6
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Section 4.03
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Meetings
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7
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Section 4.04
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Other Business
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8
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ARTICLE V—TRANSFERS
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8
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Section 5.01
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Transfer of Units
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8
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Section 5.02
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Restrictions on Transfer
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9
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Section 5.03
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Conversion Rights of Preferred Units
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10
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Section 5.04
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No Member Rights
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11
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Section 5.05
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Transferee Rights
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12
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Section 5.06
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Effect of Transfer
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12
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Section 5.07
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Legends on Certificates
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12
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ARTICLE VI—MANAGEMENT AND OPERATION OF THE COMPANY
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13
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Section 6.01
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Manager
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13
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Section 6.02
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Approval Rights of the Members
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15
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Section 6.03
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Approval Rights of the Preferred Units
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15
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Section 6.04
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Officers
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16
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Section 6.05
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Exculpation and Indemnification
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17
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ARTICLE VII—TAX MATTERS
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18
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Section 7.01
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Tax Classification of the Company
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18
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Section 7.02
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Other Tax Elections
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18
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ARTICLE VIII—DISTRIBUTIONS
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18
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Section 8.01
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Requirement and Characterization of Distributions
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18
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Section 8.02
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Preferred Return
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19
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Section 8.03
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Non-Cash Distributions
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20
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Section 8.04
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Return of Distributions
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20
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ARTICLE IX—BOOKS AND RECORDS
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20
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Section 9.01
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Books and Records
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20
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ARTICLE X—DISSOLUTION AND LIQUIDATION
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21
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Section 10.01
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Dissolution
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21
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Section 10.02
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Liquidation
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21
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Section 10.03
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Distributions Upon Liquidation
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21
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ARTICLE XI—GENERAL PROVISIONS
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21
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Section 11.01
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Severability
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21
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Section 11.02
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Entire Agreement
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22
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ii
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Section 11.03
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Binding Effect
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22
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Section 11.04
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Parties in Interest
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22
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Section 11.05
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Notices
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22
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Section 11.06
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Additional Documents and Acts
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22
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Section 11.07
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Headings
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22
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Section 11.08
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Interpretation
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22
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Section 11.09
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Governing Law
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22
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Section 11.10
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Amendments
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23
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Section 11.11
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Waivers
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23
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Section 11.12
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Article 8 “Opt-in”
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23
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Section 11.13
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Representations and Warranties
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23
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Section 11.14
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Counterparts
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24
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Schedule A
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Members, Capital Contributions and Units
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Exhibit A
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Form of Certificate of Limited Liability Company Interests
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iii
L
IMITED
L
IABILITY
C
OMPANY
A
GREEMENT
O
F
I
NTIMATE
B
RANDS
H
OLDING
, LLC
This Limited Liability Company Agreement (this
“
Agreement
”)
of Intimate Brands Holding, LLC (the
“
Company
”)
is entered into this 25
th
day of January, 2011 by Intimate Brands, Inc., a Delaware corporation (the
“
Initial Member
”),
pursuant to and
in accordance with the Delaware Limited Liability Company Act (6 Del. C. §18-101, et seq.), as amended from time to time (the
“
Act
”)
.
WHEREAS, the Company was formed as a limited liability company under the Act pursuant to the filing of the Certificate of Formation with the
Secretary of State of the State of Delaware (the
“
Secretary of State
”)
on January 7, 2011; and
WHEREAS, the
Initial Member desires to enter into this Agreement to establish the respective economic and other rights of Members of the Company and to provide regulations and procedures for the governance of the Company; and
WHEREAS, this Agreement shall constitute the “limited liability company agreement” of the Company within the meaning of that term as
used in the Act;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Initial Member hereby agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.01.
Certain Definitions
. In addition to the terms defined elsewhere in this Agreement, for purposes of this Agreement,
the following terms shall have the meanings specified or referred to in this Article I:
“
Act
” shall have the
meaning set forth in the preamble.
“
Agreement
”
shall have the meaning set forth in the preamble.
“
Capital Contributions
” means, with respect to any Member, the sum of the amount of cash and the fair market value (on
the date contributed) of any property (other than money) contributed to the Company by such Member (or its predecessors in interest) with respect to the Units held by such Member.
“
Certificate of Formation
” means the Certificate of Formation of the Company executed by Ted B. Hipsher, as an
authorized representative of the Company, and filed with the Secretary of State on January 7,
2011
, as the same may be amended from time to time.
“
Code
”
means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute or subsequent
codification or recodification of the U.S. federal income tax laws.
“
Common Majority
”
means a majority of the then outstanding Common Units.
“
Common Units
”
shall have the meaning set forth in Section 3.03.
“Company”
shall have the meaning set forth in the preamble.
“
Conversion Rights
”
shall have the meaning set forth in Section 5.03.
“
Conversion Time
”
shall have the meaning set forth in Section 5.03(c)(i).
“
Costs
”
shall have the meaning set forth in Section 6.05(a).
“
Deemed Common Unit Price
”
shall have the meaning set forth in Section 5.03(a)(i).
“
Deemed Common Unit Price Notice
”
shall have the meaning set forth in Section 5.03(a)(i).
“
Effective Conversion Period
”
shall have the meaning set forth in Section 5.03(a)(i).
“
GAAP
”
means generally accepted accounting principles as applied in the United States of America.
“
Indemnified Party
”
shall have the meaning set forth in Section 6.05(a).
“
Initial Member
”
shall have the meaning set forth in the preamble.
“
Loss
”
shall have the meaning set forth in Section 6.05(a).
“
Members
”
means the Initial Member and any Persons admitted as additional Members of the Company from time to time in
accordance with the provisions of this Agreement, in each case as set forth on
Schedule A
, as
Schedule A
may be amended from time to time.
“
Officers
”
shall have the meaning set forth in Section 6.04.
“
Person
”
means a natural person, corporation, partnership, limited liability company, trust, joint venture,
governmental entity or other entity, association or group.
“
Preferred Liquidation Preference
”
means, with respect
to each Preferred Unit, the Capital Contribution in respect of such Preferred Unit (subject to appropriate adjustment by the Manager in the event of any distribution, split, combination or other similar recapitalization with respect to the Preferred
Units).
“
Preferred Majority
”
means a majority of the then outstanding Preferred Units.
“
Preferred Return
”
shall have the meaning set forth in Section 8.02.
2
“
Preferred Units
”
shall have the meaning set forth in Section 3.03.
“
Regulations
”
means those regulations promulgated under the Code, as currently in effect, and as modified and
clarified by amendment or successor regulation.
“
Secretary
of
State
”
shall have the
meaning set forth in the recitals.
“
Securities Act
”
means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Securities and Exchange Commission (or any successor governmental agency) thereunder.
“
Transfer
”
means, with respect to any Units, (i) when used as a verb, to sell, assign, dispose of, exchange,
pledge, encumber, hypothecate or otherwise transfer such Units or any participation or interest therein, whether directly or indirectly, or agree or commit to do any of the foregoing, and (ii) when used as a noun, a direct or indirect sale,
assignment, disposition, exchange, pledge, encumbrance, hypothecation or other transfer of such Units or any participation or interest therein, or any agreement or commitment to do any of the foregoing.
“
Units Majority
”
means a majority of the then outstanding Units.
“
Units
”
means the limited liability company interests of the Members in the Company, represented by Common Units and
Preferred Units.
Section 1.02.
Other Definitional Provisions
. The words “hereof,” “herein” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and references to Article, Section, Schedule, Exhibit and like references
are references to this Agreement unless otherwise specified. References in this Agreement to any Person shall include such Person’s successors and permitted assigns. Whenever the context so requires, the neuter gender includes the masculine and
feminine, and the singular number includes the plural, and vice versa.
ARTICLE II
FORMATION, PURPOSE AND POWERS
Section 2.01.
Name
. The name of the Company is Intimate Brands Holding, LLC. The business of the Company shall be conducted under
such name or such other trade names or fictitious names as may be adopted by the Company.
Section 2.02.
Formation
. The
Company was formed as a limited liability company under the Act upon the execution by Ted B. Hipsher, as an authorized representative of the Company, and the filing with the Secretary of State of the Certificate of Formation, in accordance with the
provisions of the Act. The Manager, as the authorized representative of the Members and the Company, and the Members, shall from time to time file in a prompt manner any and all certificates of amendment, restatement or dissolution as shall be
required by applicable law.
Section 2.03.
Purpose
. The purpose of the Company is to engage in any and all lawful acts or
activities for which a limited liability company may be formed under the Act.
3
Section 2.04.
Powers
. The Company shall have the power to do any and all acts
reasonably necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance of the purpose and business of the Company which are granted to or permitted of a limited liability company under the laws of the State of
Delaware.
Section 2.05.
Principal Office
. The principal office of the Company, at which its books and records shall be kept,
shall be located at Three Limited Parkway, Columbus, Ohio 43230, or at such other location as the Manager may from time to time determine. Notice shall be given to the Members of any change in the location of the principal office of the Company.
Section 2.06.
Registered Office; Registered Agent
. The registered office of the Company required by the Act to be maintained
in the State of Delaware shall be the office of the registered agent named in the Certificate of Formation or such other office as may from time to time be determined and designated by the Manager in the manner required by law. The registered agent
of the Company required by the Act shall be the registered agent named in the Certificate of Formation or such other registered agent as may from time to time be determined and designated by the Manager in the manner required by law
Section 2.07.
Qualification in Other Jurisdictions
. The Manager shall cause the Company to be registered or qualified under its
own name or under an assumed or fictitious name pursuant to a foreign limited liability company statute or similar laws in any jurisdictions in which the Company owns property or transacts business if the Manager, with the advice of counsel to the
Company, determines that such registration or qualification is necessary to permit the Company lawfully to own property or transact business in such jurisdiction.
Section 2.08.
Term
. The term of the Company commenced upon the filing of the Certificate of Formation with the Secretary of State
and shall continue until the Company is dissolved in accordance with Article X. The provisions of this Section 2.08 (and Article X) are intended to and shall, to the fullest extent permitted by law, supersede the provisions of the Act regarding
the dissolution of limited liability companies.
Section 2.09.
Title to Company Assets
. Title to Company assets, whether real
or personal and whether tangible or intangible, shall be deemed to be owned by the Company as an entity, and no Member, individually or collectively with other Members or Persons, shall have any ownership interest in such Company assets or any
portion thereof. All assets of the Company shall be recorded as the property of the Company in its books and records, irrespective of the name in which legal title to such Company assets is held. No part of the Units of a Member shall be subject to
the claims of any creditor or to legal process, and no part of the Units of a Member may be voluntarily or involuntarily alienated or encumbered except as may be specifically provided for in this Agreement.
Section 2.10.
Limited Liability
. Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company,
whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and none of the Manager, Members, Officers, employees or agents of the Company shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of acting in such capacity.
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ARTICLE III
CAPITALIZATION AND CAPITAL CONTRIBUTIONS
Section 3.01.
Initial Capital Contribution
. The Initial Member and its initial Capital Contribution as of the date hereof are as
set forth on
Schedule A
.
Section 3.02.
Additional Capital Contributions
. Except as required by the Act, no Member
shall be required, under any circumstances, to make any additional Capital Contribution to the Company. The Manager may accept additional Capital Contributions from time to time in its sole discretion from existing Members and/or from Persons who
are not then Members (which Persons shall be admitted as Members in accordance with the terms of this Agreement). In the event that the Company issues additional Units in connection with its acceptance of additional Capital Contributions, the
Manager shall amend
Schedule A
to reflect the then current list of Members and their respective Capital Contributions.
Section 3.03.
Units
. Each Member’s limited liability company interests in the Company shall be represented by Units. As of
the date hereof, the total number of Units that the Company shall have authority to issue is fifty thousand (50,000), classified as (i) ten thousand (10,000) Preferred Units (the
“
Preferred Units
”)
and
(ii) forty thousand (40,000) Common Units (the
“
Common Units
”)
.
The number of Common Units issued to the Initial Member as of the date hereof is set forth on
Schedule A
. Each Unit shall have the same
relative rights as and be identical in all respects to all the other Units, except as provided in this Agreement.
Section 3.04.
Preferred Units
. The Preferred Units shall have voting, distribution, liquidation, conversion and other rights as set forth in this Agreement. The Preferred Units shall, with respect to distribution rights, and rights on liquidation,
dissolution and winding up of the Company, rank senior to the Common Units as set forth in this Agreement. The voting, distribution and liquidation rights of the holders of Common Units shall be subject to, and qualified by the rights of, holders of
the Preferred Units as set forth in this Agreement. Holders of Preferred Units shall have the following rights, among others, as described in this Agreement:
(a)
Voting Rights
. Holders of Preferred Units shall have voting rights as set forth in Section 4.02(a).
(b)
Distribution Rights
. Holders of Preferred Units shall have the right to receive distributions in respect of their Preferred Units as
set forth in Article VIII.
(c)
Dissolution and Liquidation Rights
. Upon the dissolution and liquidation of the Company, holders of
Preferred Units shall have the right to receive distributions and payments in respect of their Preferred Units as set forth in Section 10.03.
(d)
Protective Provisions
. The Company and the Manager shall be prohibited from taking the actions set forth in Section 6.03
without first obtaining the consent of the holders of a Preferred Majority.
(e)
Conversion Rights
. Holders of Preferred Units shall
have the right to convert their Preferred Units into Common Units as set forth in Section 5.03.
5
Any of the rights, powers, preferences and other terms of the Preferred Units set forth in this Agreement may be
waived on behalf of all holders of Preferred Units by the affirmative written consent or vote of the holders of a Preferred Majority.
Section 3.05.
Additional Issuances
. Subject to the other provisions of this Agreement, the Manager may, at any time:
(i) increase the total number of Units that the Company shall have authority to issue in accordance with the terms of this Agreement; (ii) issue Units to one or more Persons in respect of additional Capital Contributions (and admit such
Persons as additional Members); and (iii) amend this Agreement to reflect the rights of such additional Units, as the Manager deems to be in the best interest of the Company. Upon the admission of a Person as an additional Member, such Person
shall, by executing this Agreement or such other subscription documents or certificates as the Manager determines in its sole discretion, agree to become a Member and to be bound by the terms of this Agreement.
Section 3.06.
No Priority Among Members
. No Member shall have priority over any other Member either as to the return of such
Member’s Capital Contribution or as to distributions by the Company, except as may be specifically provided in this Agreement.
Section 3.07.
No Interest on Capital Contributions; No Withdrawal of Capital
. No interest shall be paid by the Company to any
Member with respect to any Capital Contribution except as provided herein. Except as otherwise specifically set forth in this Agreement, no Member shall have the right to: (i) demand or receive property other than cash in return for such
Member’s Capital Contribution or as a distribution in respect of such Member’s Units; (ii) withdraw any part of such Member’s Capital Contribution (regardless of whether or not such Member has withdrawn as a Member of the
Company); or (iii) receive any funds or property of the Company.
ARTICLE IV
MEMBERS; VOTING
Section 4.01.
Members
. The name, mailing address and limited liability company interests of the Initial Member is set forth on
Schedule A
. The Manager shall amend
Schedule A
from time to time to reflect the addition or withdrawal of any Member permitted under the terms of this Agreement. Subject to and in accordance with this Agreement, additional Persons may
be admitted as Members upon the consent of the Manager and upon such terms as may be determined by the Manager in its sole discretion. Without limiting the generality of the foregoing, the Manager shall admit as a Member any Person who acquires
Units pursuant to and in compliance with Article V. Upon the admission of such Person as a Member, the Manager shall amend
Schedule A
to reflect the name, address and limited liability company interests of such Person in the Company.
Section 4.02.
Voting Rights
.
(a)
Voting Units
. Except as otherwise provided in this Agreement or as required by applicable law, Members holding Common Units and
Members holding Preferred Units shall vote together as a single class (and not as separate classes or series of Units). Except as otherwise provided in this Agreement or as required by applicable law, the affirmative vote,
6
consent or agreement of Members holding at least a Units Majority shall be the act of the Members of the Company. Each Member holding Common Units shall be entitled to one (1) vote per
Common Unit. Each Member holding Preferred Units shall be entitled to one (1) vote per Preferred Unit. Except as otherwise required by law, holders of Common Units shall not be entitled to vote on any amendment to this Agreement that relates
solely to the terms of the Preferred Units if the holders of the Preferred Units are entitled to vote thereon pursuant to this Agreement or the Act.
(b)
Consent
.
(i) Unless otherwise expressly provided herein, consent of the holders of Units may be obtained: (A) at any meeting of the
Members holding Units, provided that Members holding at least a Units Majority are present at such meeting and Members holding a majority of the Units held by the Members holding Units and attending the meeting vote in favor of the matter being
voted upon; or (B) by the written consent of the Members holding at least a Units Majority, provided that a copy of such consent is sent to all the Members promptly.
(ii) Unless otherwise expressly provided herein, consent of the holders of Preferred Units may be obtained: (A) at any
meeting of the Members holding Preferred Units, provided that Members holding at least a Preferred Majority are present at such meeting and Members holding a majority of the Preferred Units held by the Members holding Preferred Units and attending
the meeting vote in favor of the matter being voted upon; or (B) by the written consent of the Members holding at least a Preferred Majority, provided that a copy of such consent is sent to all Members holding Preferred Units promptly.
(iii) Unless otherwise expressly provided herein, consent of the holders of Common Units may be obtained: (A) at any
meeting of the Members holding Common Units, provided that Members holding at least a Common Majority are present at such meeting and Members holding a majority of the Common Units held by the Members holding Common Units and attending the meeting
vote in favor of the matter being voted upon; or (B) by the written consent of the Members holding at least a Common Majority, provided that a copy of such consent is sent to all Members holding Common Units promptly.
Section 4.03.
Meetings
.
(a)
Notice; Participation
. Any matter requiring the approval or consent of the holders of Units, Common Units and/or Preferred Units, as
the case may be, pursuant to this Agreement may be considered at a meeting of the holders of Units, Common Units and/or Preferred Units, as applicable, held not less than two (2) nor more than sixty (60) days after notification thereof
shall have been given by the Manager to the holders of Units, Common Units and/or Preferred Units, as applicable. Such notification may be given by the Manager, in its discretion, at any time. Any such notification shall state briefly the purpose,
time and place of the meeting. Notices shall be given by (i) personal delivery, (ii) courier (with signed acknowledgement of receipt), (iii) facsimile or electronic transmission (with confirmation of
7
transmission) or (iv) certified or registered mail (with return receipt), and shall be deemed to have been given, delivered, received and effective upon receipt. All such meetings shall be
held within or outside the State of the Company’s principal place of business at such place as the Manager shall designate. Any meeting may be held by conference telephone or similar communication equipment so long as all Members participating
in the meeting can hear one another, and all Members participating by telephone or similar communication equipment shall be deemed to be present in person at the meeting. If a majority of the total number of Units, Common Units and/or Preferred
Units, as the case may be, is not present at a meeting, a majority of the total number of voting Units represented at such meeting may adjourn the meeting from time to time with further notice.
(b)
Waiver of Notice
. A Member may waive any notice required by this Agreement before or after any meeting by signing a written waiver
of the Member’s right to receive notice of such meeting. A Member’s attendance at a meeting: (i) waives objection to lack of notice or defective notice of the meeting, unless the Member at the beginning of the meeting or promptly upon
the Member’s arrival objects to holding the meeting or transacting business at the meeting; (ii) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting
notice, unless the Member objects to considering the matter when it is presented; and (iii) results in a presumption that the Member assented to the action taken at such meeting, unless such Member’s dissent shall be entered in the minutes
of the meeting or unless such Member shall file its written dissent to such action with the secretary of the meeting before the adjournment thereof;
provided
,
however
, that such right to dissent shall not apply to a Member who voted in
favor of any action at such meeting.
Section 4.04.
Other Business
. Subject to the terms of any employment agreement,
restrictive covenant agreement or other agreement with the Company, a Member may engage in or possess an interest in other business ventures (connected or unconnected with the Company) of any kind and description, independently or with others. The
Company and the other Members shall not have any rights in or to any such independent ventures of a Member or the income or profits derived therefrom by virtue of this Agreement.
ARTICLE V
TRANSFERS
Section 5.01.
Transfer of Units
. Subject to the terms of this Agreement and applicable law, a Member may Transfer, at any
time and from time to time, any or all of its Units to any Person;
provided, however,
that the transferee of such Units shall agree in writing to be bound by the terms of this Agreement and take such other actions and execute such other
documents as the Manager may request in its sole discretion. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns and any subsequent holder of Units.
8
Section 5.02.
Restrictions on Transfer
. Notwithstanding anything in this Agreement to
the contrary:
(a) No Units or any interest therein may be Transferred to a Person who is not a party to this Agreement unless such
transferee executes and delivers to the Company an instrument pursuant to which it agrees to be bound by the terms, conditions and obligations of this Agreement.
(b) No Transfer of Units shall be made if such Transfer, or the transferee’s ownership of such Units, would:
(i) result in a violation of the Securities Act or any other applicable federal or state laws;
(ii) be a violation of or a default (or an event that, with notice or the lapse of time or both, would constitute a default)
under, or result in an acceleration of any indebtedness of the Company under, any note, mortgage, loan agreement or similar instrument or document to which the Company is a party; or
(iii) constitute a Transfer to a minor or an individual who is not legally competent;
provided, however,
that Units may
be Transferred to a trustee, custodian or guardian of a minor or an incompetent, if such Transfer is effected in accordance with applicable law.
(c) The Units created by this Agreement have not been and will not be registered with the Securities and Exchange Commission under the
Securities Act or with the securities authorities of any state under any state securities laws. As a consequence, no Transfer of Units shall be permitted unless the Units to be Transferred are registered pursuant to the Securities Act and registered
or qualified under applicable state securities laws or Transferred in a transaction which is exempt from such registration and/or qualification. The Manager may require, as a condition of Transfer of any Units, that the transferor furnish reasonable
assurances to the Company, including the provision of any factual information and/or legal opinions, satisfactory in all respects to the Manager, that such Transfer complies with applicable federal and state securities laws.
(d) The Manager may, in addition to any other requirement that it may impose, require, as a condition of Transfer of any Units, that the
transferor assume all costs incurred by the Company in connection with such Transfer.
(e) The Company shall not Transfer on its books any
Units unless, in the opinion of the Manager, with the advice of counsel to the Company, there has been compliance with all of the material conditions of this Agreement affecting such Units or the ownership thereof.
(f) Any attempted Transfer of Units other than in accordance with the terms of this Agreement shall be null and void, and the Company shall
refuse to recognize any such purported Transfer and shall not reflect on its records any change in record ownership of Units pursuant to any such purported Transfer.
9
Section 5.03.
Conversion Rights of Preferred Units
. The holders of Preferred Units
shall have conversion rights as follows (the
“
Conversion Rights
”):
(a)
Right to Convert
.
(i)
Conversion Ratio
. Each Preferred Unit shall be convertible, at the option of the holder thereof, at any time and
from time to time, and without the payment of additional consideration, into such number of Common Units as is determined by dividing the Preferred Liquidation Preference of such Preferred Unit plus any accrued but unpaid Preferred Return on such
Preferred Unit, as of the date of conversion, by the Deemed Common Unit Price in effect at the time of conversion. The “
Deemed Common Unit Price
” shall equal the fair market value of a Common Unit when, as and if
(A) determined in good faith by the Manager and (B) communicated to each holder of Preferred Units in writing as the “Deemed Common Unit Price” upon which such Preferred Unit may be converted into Common Units (the
“
Deemed Common Unit Price Notice
”).
The Deemed Common Unit Price Notice shall specify how many days the Deemed Common Unit Price shall be in effect for a conversion (the
“
Effective Conversion Period
”),
which shall
be
no less than thirty (30) days.
(ii)
Termination of Conversion Rights
. In the
event of a liquidation, dissolution or winding up of the Company, the Conversion Rights shall terminate at the close of business on the last full day preceding the date fixed for the payment of any such amounts distributable on such event to the
holders of Preferred Units.
(b)
Fractional Units
. No fractional Common Units shall be issued upon conversion of Preferred Units. In
lieu of any fractional Common Units to which the holder of the Preferred Units being converted would otherwise be entitled, the Company shall pay to such holder cash equal to such fraction multiplied by the Deemed Common Unit Price. Whether or not
fractional Common Units would be issuable upon such conversion shall be determined on the basis of the total number of Preferred Units the holder is at the time converting into Common Units and the aggregate number of Common Units issuable upon such
conversion.
(c)
Mechanics of Conversion
.
(i)
Notice of Conversion
. In order for a holder of Preferred Units to voluntarily convert Preferred Units into Common
Units, upon receipt of a Deemed Common Unit Price Notice, such holder shall surrender the certificate for such Preferred Units (or, if such holder alleges that such certificate has been lost, a lost certificate affidavit and agreement reasonably
acceptable to the Manager) at the principal office of the Company, together with written notice stating that such holder elects to convert all or any of the Preferred Units represented by such certificate and, if applicable, any event on which such
conversion is contingent, all within the Effective Conversion Period. Such notice shall state such holder’s name or the name of the nominee in which such holder wishes the certificate for Common Units to be issued. The close of business on the
date of receipt by the Company of such certificate and notice shall be the effective time of conversion (the
“
Conversion Time
”
), and the Common Units issuable upon conversion of the Preferred Units represented by such
certificate shall be deemed to be outstanding
10
of record as of such date. The Manager shall, as soon as practicable after the Conversion Time:
(A) issue and deliver to such holder of Preferred Units a certificate for the number of Common Units issuable upon such conversion in accordance with the provisions hereof and a certificate for the number (if any) of the Preferred Units
represented by the surrendered certificate that were not converted into Common Units; (B) pay in cash such amount as provided in Section 5.03(b) in lieu of any fractional Common Unit otherwise issuable upon such conversion; and
(C) pay all declared but unpaid distributions on the Preferred Units converted.
(ii)
Reservation of Common
Units
. If at any time the number of authorized but unissued Common Units shall not be sufficient to effect the conversion of the then outstanding Preferred Units for which the Company has received notice of a voluntary conversion, the Manager
shall take such action as may be necessary to increase the number of authorized but unissued Common Units to such number of Common Units as shall be sufficient for such purposes. The expiration of the applicable Effective Conversion Period shall be
tolled until the number of authorized but unissued Common Units is increased to such number of Common Units as shall be sufficient to effect the conversion of the then outstanding Preferred Units for which the Company has received a notice of a
voluntary conversion.
(iii)
Effect of Conversion
. All Preferred Units which shall have been surrendered for
conversion shall no longer be deemed to be outstanding and all rights with respect to such Preferred Units shall immediately cease and terminate at the Conversion Time, except for the right of the holders thereof to receive: (A) Common Units in
exchange for such Preferred Units; (B) payment in lieu of any fractional Common Unit otherwise issuable upon such conversion as provided in Section 5.03(b); and (C) payment of any distributions declared but unpaid on such Preferred
Units. Any Preferred Units so converted shall be retired and cancelled as of the Conversion Time and may not be reissued by the Company, and the Manager may thereafter take such appropriate action as may be necessary to reduce the authorized number
of Preferred Units accordingly.
(iv)
Taxes
. The Company shall pay any and all issue and other similar taxes that
may be payable in respect of any issuance or delivery of Common Units upon conversion of Preferred Units pursuant to this Section 5.03. The Company shall not, however, be required to pay any tax which may be payable in respect of any Transfer
involved in the issuance and delivery of Common Units in a name other than that in which the Preferred Units so converted were registered, and no such issuance or delivery shall be made unless and until the Person requesting such issuance has paid
to the Company the amount of any such tax or has established, to the satisfaction of the Company, that such tax has been paid.
Section 5.04.
No Member Rights
. No Member or holder of Units who is not a Member shall have the right or power to confer upon any
transferee the attributes of a Member in the Company, and no transferee of Units shall be admitted as a Member, except as provided in this Agreement.
11
Section 5.05.
Transferee Rights
. Any transferee of Units who is not admitted as a
Member in accordance with this Agreement shall have no right to (a) participate or interfere in the management or administration of the Company’s business or affairs or (b) vote or agree on any matter affecting the Company or any
Member. Unless otherwise provided for herein, the only rights of a transferee of Units who is not admitted as a Member in accordance with this Agreement are to receive the distributions, if any, to which the transferor would otherwise be entitled
(to the extent of the Units Transferred) and to obtain such information concerning the Company’s books, records and financial affairs as provided by this Agreement or the Act. Notwithstanding the foregoing, each transferee of Units shall at all
times be subject to all of the obligations, restrictions and other terms contained in this Agreement as if such transferee were a Member. To the extent of any Units Transferred, the transferor shall not possess any right or power as a Member or
under the terms of this Agreement and may not exercise any such right or power directly or indirectly on behalf of the transferee.
Section 5.06.
Effect of Transfer
. Any Member that makes a permitted Transfer of all of the Units held of record by such Member
shall be treated as having withdrawn as a Member as the effective date of such Transfer. Any Member that makes a Transfer of part (but not all) of the Units held of record by such Member shall continue as a Member (with respect to the Units
retained), and such partial Transfer shall not constitute the withdrawal of such Member. The rights and obligations of any transferee of Units shall be governed by the other provisions of this Agreement.
Section 5.07.
Legends on Certificates
. During the term of this Agreement, each certificate or other instrument representing Units
subject to this Agreement shall bear the following legends on its face, or upon the reverse side thereof, appropriately completed, which legends shall likewise be endorsed upon all certificates representing Units that shall hereafter be issued and
which are subject to this Agreement:
“THE UNITS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND NEITHER THESE UNITS NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.”
“THE UNITS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND OTHER
CONDITIONS SET FORTH IN THE LIMITED LIABILITY COMPANY AGREEMENT OF INTIMATE BRANDS HOLDING, LLC DATED AS OF JANUARY , 2011. A COPY OF SUCH AGREEMENT MAY BE OBTAINED FROM INTIMATE BRANDS HOLDING, LLC AT ITS PRINCIPAL EXECUTIVE
OFFICES.”
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ARTICLE VI
MANAGEMENT AND OPERATION OF THE COMPANY
Section 6.01.
Manager
.
(a)
Management
. Management of the Company shall be vested in the Manager, which shall have the power to do any and all acts necessary or
convenient to or for the furtherance of the purposes of the Company, except to the extent such management powers are expressly reserved to the Members by this Agreement, the Certificate of Formation or the Act. A Manager need not be a Member of the
Company. The initial Manager of the Company shall be the Initial Member.
(b)
Resignation and Removal
. A Manager shall serve as such
until its resignation or removal. A Manager may resign at any time by giving written notice to the Members. Such resignation shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice. A Manager may
be removed at any time, with or without cause, by the unanimous consent of the Members. The resignation or removal of a Manager who is also a Member, by itself, shall not affect such Manager’s rights, duties and obligations as a Member.
Following the resignation or removal of a Manager, the Members, acting with the consent of the holders of a Units Majority, shall be entitled to designate a successor Manager. A Manager so designated shall succeed to all the rights, powers,
authority, duties and obligations of the Manager as set forth in this Agreement.
(c)
Management Obligations; Management Fee;
Expenses
. The Manager shall devote so much of its time to the conduct and management of the Company’s business and affairs as is reasonably necessary to further the business purposes of the Company, and shall be entitled to receive
reasonable compensation therefor. In addition, the Company shall pay or reimburse the Manager for all expenses incurred by or on behalf of the Manager in connection with the conduct and management of the Company.
(d)
Power and Authority of the Manager
. Without limiting the generality of this Section 6.01, except as otherwise specifically
provided in this Agreement, the Members hereby delegate to the Manager all necessary powers to manage and carry out the purposes, business, property and affairs of the Company, including, without limitation, the power to:
(i) sell, exchange, lease, or otherwise dispose of any other property and assets owned by the Company, or any part thereof, or
any interest therein;
(ii) borrow money from any Person, issue evidences of indebtedness in connection therewith,
refinance, increase the amount of, modify, amend, or change the terms of, or extend the time for the payment of any indebtedness or obligation of the Company, and secure such indebtedness by mortgage, deed of trust, pledge, security interest, or
other lien on Company assets;
(iii) sue on, defend, or compromise any and all claims or liabilities in favor of or against
the Company, submit any or all such claims or liabilities to arbitration and confess a judgment against the Company in connection with any litigation in which the Company is involved;
13
(iv) employ from time to time, at the expense of the Company, on such terms and
for such compensation as the Manager may determine, Persons to render services to the Company, including without limitation, accountants, consultants, legal counsel, agents or other experts;
(v) pay or cause to be paid all expenses, fees, charges, taxes, and liabilities incurred or arising in connection with
business, affairs or management of the Company, including, without limitation, such expenses and charges for the services of the Company’s Officers, employees, accountants, attorneys, and other agents or independent contractors, and such other
expenses and charges as the Manager deems necessary or advisable to incur;
(vi) make all Company elections (including the
determination whether to make an election) permitted under the Code and the Regulations;
(vii) pay to the Members any and
all fees, reimbursements and distributions permitted under the terms of this Agreement;
(viii) invest Company funds in
certificates of deposit, bank savings accounts, money market accounts and such other interest-bearing obligations as the Manager may determine, and deposit, withdraw, pay, retain and distribute such funds in any manner consistent with the provisions
of this Agreement;
(ix) purchase liability and other insurance to protect the Company’s property and business;
(x) cause the Company to guarantee the debt obligations of Limited Brands, Inc., a Delaware corporation and the ultimate parent
company of the Company, and its subsidiaries, and enter into guarantee or similar agreements with respect to such debt obligations;
(xi) establish and maintain the books and records of the Company;
(xii) select or vary the Company’s accounting methods and make decisions with respect to the treatment of various Company
transactions for state or federal income tax purposes or other financial purposes not specifically provided for in this Agreement;
(xiii) enter into, make and perform such contracts, agreements and other undertakings as may be deemed necessary or advisable
for the conduct of the business of the Company, and do any act or execute any instrument or other document on behalf of the Company as the Manager may deem necessary, convenient, incidental or appropriate to the furtherance of the business of the
Company; and
(xiv) take any and all actions on behalf of the Company that are required or permitted to be taken by the
Company under this Agreement.
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Section 6.02.
Approval Rights of the Members
. Notwithstanding anything to the
contrary set forth in this Agreement, the approval of the holders of a Units Majority shall be required before the Company or the Manager may undertake any of the following matters:
(a) effect any sale, lease, assignment, transfer or other conveyance of all or substantially all of the assets of the Company or any
consolidation or merger involving the Company;
(b) take any actions which would make it impossible to carry out the operation of the
business of the Company, change or reorganize the Company into any other legal form or voluntarily liquidate, dissolve or wind-up the business and affairs of the Company, or consent to any of the foregoing;
(c) make any distributions of cash or property to the Members except in accordance with the terms of this Agreement;
(d) file any election pursuant to the Code or the Regulations to be treated as an entity other than a corporation for U.S. federal income tax
purposes; or
(e) amend, alter or repeal any provision of this Agreement, except as otherwise specifically provided in Agreement.
Section 6.03.
Approval Rights of the Preferred Units
. Notwithstanding anything to the contrary set forth in this Agreement, and in
addition to the approval rights of the Members set forth in Section 6.02, the approval of the holders of a Preferred Majority shall be required before the Company or the Manager may undertake any of the following matters:
(a) liquidate, dissolve or wind-up the business and affairs of the Company, or consent to any of the foregoing;
(b) amend, alter or repeal any provision of this Agreement or the Certificate of Formation in a manner that adversely affects the powers,
preferences or rights of the Preferred Units;
(c) create, or authorize the creation of, any additional class or series of Units unless the
same ranks junior to the Preferred Units with respect to the distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of distributions and rights of redemption, or increase the authorized number of Preferred
Units or increase the authorized number of Units of any additional class or series of Units unless the same ranks junior to the Preferred Units with respect to the distribution of assets on the liquidation, dissolution or winding up of the Company,
the payment of distributions and rights of redemption;
(d) reclassify, alter or amend any existing class or series of Units that ranks
junior to the Preferred Units in respect of the distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of distributions or rights of redemption, if such reclassification, alteration or amendment would render
such other class or series of Units senior to or
pari passu
with the Preferred Units in respect of any such right, preference or privilege;
15
(e) purchase or redeem or declare, make or set aside any distributions on any Units except as
expressly authorized in this Agreement; or
(f) issue any additional Common Units without providing to the holders of Preferred Units a
Deemed Common Unit Price Notice.
Section 6.04.
Officers
.
(a)
Appointment of Officers
. The Manager may appoint individuals as officers
(“
Officers
”)
of the Company, which
may include a President, one or more Vice Presidents, a Treasurer, a Secretary and such other Officers as the Manager deems advisable. An individual may be appointed to more than one office. The Manager shall designate in writing the following
individuals to act as the initial Officers of the Company, which designation shall be effective as of the date of this Agreement:
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Name
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Title
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Stuart B. Burgdoerfer
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President, Principal Financial Officer, Principal Accounting Officer and Assistant Secretary
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James L. Bersani
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Executive Vice President — Retail Real Estate
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Martyn R. Redgrave
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Executive Vice President and Chief Administrative Officer
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Timothy J. Faber
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Senior Vice President, Treasurer and Assistant Secretary
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Todd G. Helvie
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Senior Vice President — Tax
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Carol M. Matorin
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Senior Vice President — Senior Counsel and Assistant Secretary
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Luis F. Machado
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Senior Vice President — Legal and Assistant Secretary
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Douglas L. Williams
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Senior Vice President — General Counsel and Secretary
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Joyce Stern
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Vice President
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Jeffrey Hilton
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Associate Vice President — Insurance & Risk
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James J. Harris
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Assistant Secretary
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Mark Peters
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Assistant Secretary
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Denise Slazyk
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Assistant Secretary
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(b)
Duties of Officers Generally
. Under the direction of and, at all times, subject to the authority of
the Manager, the Officers shall have full and complete discretion to manage and control the day-to-day business, operations and affairs of the Company in the
16
ordinary course of its business, to make all decisions affecting the day-to-day business, operations and affairs of the Company in the ordinary course of its business and to take all such actions
as the Officers deem necessary or appropriate to accomplish the foregoing. Each Officer shall have such individual powers and duties as may be prescribed from time to time by the Manager or this Agreement.
(c)
Authority of Officers
. Under the direction of and, at all times, subject to the authority of the Manager, any Officer of the Company
shall have the right, power and authority to transact business in the name of the Company or to execute agreements on behalf of the Company, with respect to those agreements which are commonly signed by such officers of a business organized under
the laws of the State of Delaware. With respect to all matters within the ordinary course of business of the Company, third parties dealing with the Company may rely conclusively upon any certificate of any Officer to the effect that such Officer is
acting on behalf of the Company.
(d)
Removal, Resignation and Filling of Vacancies of Officers
. The Manager may remove any Officer,
for any reason or for no reason, at any time. Any Officer may resign at any time by giving written notice to the Manager, and such resignation shall take effect at the date of the receipt of that notice or any later time specified in that notice.
Any such resignation shall be without prejudice to the rights, if any, of the Company or such Officer under this Agreement. A vacancy in any office because of an Officer’s death, resignation or removal or otherwise shall be filled in the manner
prescribed in this Agreement for regular appointments to that office.
(e)
Compensation of Officers
. Officers of the Company shall
be entitled to receive compensation from the Company when, if and as determined by the Manager. In addition, the Company shall pay or reimburse the Officers for all expenses reasonably incurred by or on behalf such Officers in connection with the
performance of their respective duties hereunder.
Section 6.05.
Exculpation and Indemnification
.
(a) None of the Manager, the Members or the Officers (each, an
“
Indemnified Party
”)
shall be liable to the Company or
any other Person who has an interest in the Company for any loss, damage or claim (a
“
Loss
”)
(or any expenses or costs associated therewith
(“
Costs
”))
incurred by reason of any act or omission
performed or omitted by such Indemnified Party in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Indemnified Party by this Agreement, except that an Indemnified Party
shall be liable for any such Loss and Costs, incurred by reason of such Indemnified Party’s gross negligence or willful misconduct. To the full extent permitted by applicable law, an Indemnified Party shall be entitled to indemnification from
the Company for any Loss or Costs incurred by such Indemnified Party by reason of any act or omission performed or omitted by such Indemnified Party in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of
the authority conferred on such Indemnified Party by this Agreement, except that no Indemnified Party shall be entitled to be indemnified in respect of any Loss or Costs incurred by such Indemnified Party by reason of such Indemnified Party’s
gross negligence or willful misconduct with respect to such acts or
17
omissions;
provided, however,
that any indemnity under this Section 6.05 shall be provided out of and
to the extent of Company assets only, and no Manager, Member, or Officer shall have personal liability on account thereof. The Company shall advance Costs incurred by or on behalf of an Indemnified Party in connection with any Loss within twenty
(20) days after receipt by the Company from the Indemnified Party of a statement requesting such advances from to time;
provided
such statement provides reasonable documentary evidence of such Costs and provides a written undertaking by
the Indemnified Party to repay any and all advanced Costs in the event such Indemnified Party is ultimately determined to not be entitled to indemnification by the Company. The Company may enter into agreements with its Officers to provide for
indemnification consistent with the terms and conditions set forth in this Section 6.05.
(b) The provisions of this Section 6.05
are for the benefit of the Indemnified Parties, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons. Any amendment, modification or repeal of this Section 6.05 or
any provision hereof shall be prospective only and shall not in any way affect the limitations on the Company’s liability to any Indemnified Party under this Section 6.05 as in effect immediately prior to such amendment, modification or
repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted,
ARTICLE VII
TAX MATTERS
Section 7.01.
Tax Classification of the Company
. Within seventy-five (75) days after the formation of the Company
(and retroactive to the date of formation), Internal Revenue Service Form 8832 shall be filed electing for the Company to be classified as an association taxable as a corporation for United States federal income tax purposes. The Company and the
Manager shall not, without the consent of the holders of a Units Majority, file any election pursuant to the Code or the Regulations to be treated as an entity other than a corporation.
Section 7.02.
Other Tax Elections
. Except as otherwise provided in Section 7.01, relating to the tax classification of the
Company, the Manager may make, or not make, upon the advice of counsel to the Manager, any tax elections provided under the Code or the Regulations, or any provision of state, local or foreign tax law. Any such elections made by the Manager shall be
conclusive and binding on all Members.
ARTICLE VIII
DISTRIBUTIONS
Section 8.01.
Requirement and Characterization of Distributions
. Distributions in respect of the Units shall be made to the
Members only when, as and if declared by the Manager, and the Manager shall be under no obligation at any time to declare, make or set aside any such distributions. Except as otherwise provided in this Agreement, if and to the extent that the
Manager determines to make distributions to the Members in respect of the Units, the Company shall (to the extent permitted by law, including without limitation, Section 18-607 of the Act) make distributions to the Members as follows:
18
(a) If such distribution is being made
other
than
upon the dissolution and
liquidation of the Company, in accordance with the following priorities:
(i)
first,
in respect of each Preferred
Unit then outstanding, the accrued but undistributed Preferred Return thereon, until payment in full of such amount;
provided
,
however,
that if the distributable amount shall be insufficient to permit the distribution on the Preferred
Units of the full amount of accrued but undistributed Preferred Return on such Units, then the entire amount of such distribution shall be made among the Preferred Units in proportion to their respective accrued and unpaid Preferred Return; and
(ii)
second,
after payment in respect of the Preferred Units then outstanding of the amounts as set forth under clause
(i) above, then pro rata in respect of all Common Units then outstanding.
(b) If such distribution is being made upon the dissolution
and liquidation of the Company, in accordance with the following priorities:
(i)
first
, in respect of each
Preferred Unit then outstanding, the accrued but undistributed Preferred Return thereon, until payment in full of such amount;
provided, however,
that if the distributable amount shall be insufficient to permit the distribution on the
Preferred Units of the full amount of accrued but undistributed Preferred Return on such Preferred Units, then the entire amount of such distribution shall be made among the Preferred Units in proportion to their respective accrued and unpaid
Preferred Return;
(ii)
second,
in respect of each Preferred Unit then outstanding, the Preferred Liquidation
Preference thereon, until payment in full of such amount;
provided, however,
that if the distributable amount shall be insufficient to permit the distribution on the Preferred Units of the full amount of Preferred Liquidation Preference on
such Preferred Units, then the entire amount of such distribution shall be made among the Preferred Units in proportion to their respective Preferred Liquidation Preference; and
(iii)
third,
after payment in respect of the Preferred Units then outstanding of the amounts as set forth under clauses
(i) and (ii) above, then pro rata in respect of all Common Units then outstanding.
Section 8.02.
Preferred Return
.
From and after the date of the issuance of any Preferred Units, distributions shall accrue on such Preferred Units at the rate per annum of ten percent (10%), compounded annually, of the Capital Contribution in respect of such Preferred Units
(subject to appropriate adjustment by the Manager in the event of any distribution, split, combination or other similar recapitalization with respect to the Preferred Units) (the
“
Preferred Return
”).
The Preferred
Return in respect of any Preferred Units shall accrue from day to day, whether or not declared by the Manager, and shall be cumulative;
provided, however
, that except as set forth in the following sentence, such Preferred Return shall be
payable only when, as and if declared by the Manager, and the Company shall be under no obligation to pay such Preferred Return. The Company shall not declare, make or set aside any distributions on any class or
19
series of Units other than Preferred Units unless the holders of the Preferred Units then outstanding shall first receive, or simultaneously receive, a distribution on each outstanding Preferred
Unit in an amount at least equal to the amount of the aggregate Preferred Return then accrued on such Preferred Unit and not previously paid.
Section 8.03.
Non-Cash Distributions
. Whenever a distribution provided for in this Article VIII shall be payable in property other
than cash, the value of such distribution shall be deemed to be the gross fair market value of such property at the time of distribution as determined by the Manager in its sole discretion.
Section 8.04.
Return of Distributions
. Members receiving distributions made in violation of this Agreement or the Act shall return
such distributions to the Company. Except for those distributions made in violation of this Agreement or the Act, no Member shall be obligated to return any distribution to the Company or pay the amount of any distribution for the account of the
Company or to any creditor of the Company.
ARTICLE IX
BOOKS AND RECORDS
Section 9.01.
Books and Records
.
(a)
Books and Records
. The Manager shall keep or cause to be kept the following: (i) a current list of the full names and last
known mailing addresses of all Members; (ii) a copy of the Certificate of Formation, including any amendments thereof and any written powers of attorney relating to the execution thereof; (iii) a copy of this Agreement, including any amendments
hereto and any written powers of attorney relating to the execution hereof and/or thereof; (iv) copies of federal, state and local income tax returns and reports of the Company for the three most recent fiscal years; (v) copies of any
financial statements of the Company for the three most recent fiscal years; and (vi) such other information pertaining to the Company as shall be required by law. Such books and records shall be maintained at the principal place of business of
the Company and be available upon reasonable notice, at reasonable times, for inspection and examination by the Members or their duly authorized agents or representatives.
(b)
Accounting Method
. The books and records of the Company shall be kept in accordance with accounting methods selected from time to
time by the Manager in its sole discretion.
(c)
Fiscal Year
. The fiscal year of the Company shall end on the Saturday closest to
January 31.
(d)
Bank Accounts
. The bank accounts of the Company shall be maintained in such institutions as the Manager shall
determine in its sole discretion. All deposits and other funds not needed in the operation of the business may be invested in the discretion of the Manager;
provided
,
however,
that the funds of the Company shall not be commingled with
the funds of any other Person.
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ARTICLE X
DISSOLUTION AND LIQUIDATION
Section 10.01.
Dissolution
. The Company shall dissolve, and its affairs shall be wound up, upon the first to occur of the
following: (a)(i) the written approval of the Manager, (ii) the consent of the holders of a Units Majority and (iii) the consent of the holders of a Preferred Majority; (b) the sale or other disposition of all or substantially all of the
assets of the Company (unless the Manager elects to continue the Company for the sole purpose of collecting the proceeds of such sale or other disposition or winding up the affairs of the Company); or (c) the entry of a decree of judicial
dissolution under Section 18-802 of the Act. As soon as possible following the occurrence of any of the events provided in clauses (a), (b) or (c) above, the Manager shall prepare and execute a certificate of cancellation (or
equivalent instrument) in such form as shall be prescribed by the Secretary of State, and the same shall be delivered for filing with that office, or as otherwise required by law.
Section 10.02.
Liquidation
. Upon dissolution of the Company, the Manager or, if one is appointed by the Manager in its sole
discretion, an authorized liquidating trustee, shall wind up the Company’s affairs. Upon termination and dissolution of the Company and liquidation of its assets, the Manager (or liquidating trustee) shall apply the Company’s assets to the
payment of all liabilities owing to creditors in accordance with applicable law. The Manager (or liquidating trustee) shall set up such reserves as it deems reasonably necessary for any contingent or unforeseen liabilities or obligations of the
Company. Said reserves may be paid by the Manager (or liquidating trustee) upon dissolution to a bank or trust company to be held in escrow for the purpose of paying any such contingent or unforeseen liabilities or obligations of the Company and, at
the expiration of such period or occurrence of such events as the Manager (or liquidating trustee) may in establishing such reserves deem advisable, such reserves shall be distributed to the Members or their assigns in the manner set forth in
Section 10.03. The Manager (or liquidating trustee) shall (a) determine which assets shall be distributed in kind and which assets shall be liquidated and (b) either cause the Company’s assets to be sold or distributed, and if
sold, shall cause the proceeds therefrom, to the extent sufficient therefor, to be applied and distributed as provided in Section 10.03.
Section 10.03.
Distributions Upon Liquidation
. Upon the dissolution of the Company in accordance with Section 10.01 and the
payment of all liabilities owing to creditors, including the establishment of reasonable reserves therefor, in accordance with Section 10.02, the Company shall distribute the remaining assets of the Company in the order of priority set forth in
Section 8.01(b). Except as otherwise specifically provided in this Agreement, each Member shall only be entitled to look to the assets of the Company for the return of its Capital Contribution and shall have no recourse for its Capital
Contribution and/or share of any income or profits of the Company (upon dissolution or otherwise) against any other Member.
ARTICLE XI
GENERAL PROVISIONS
Section 11.01.
Severability
. Each provision of this Agreement shall be considered separable and, if for any reason any provision
or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity,
21
unenforceability or illegality shall not impair the operation of such provision or provisions to Persons or circumstances other than those to which it is held invalid, unenforceable or illegal or
affect those portions of this Agreement which are valid, enforceable and legal.
Section 11.02.
Entire Agreement
. This
Agreement, including the Schedules and Exhibits attached hereto, constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes any prior agreements or understandings of such parties.
Section 11.03.
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Members, and their respective
successors and permitted assigns.
Section 11.04.
Parties in Interest
. Except as expressly provided in this Agreement or the
Act, nothing in this Agreement shall confer any rights or remedies under or by reason of this Agreement on any Persons other than the Members and their respective successors and assigns, nor shall anything in this Agreement relieve or discharge the
obligation or liability of any Person to any party to this Agreement or give any Person any right of subrogation or action over or against any party to this Agreement.
Section 11.05.
Notices
. Any notice, payment, demand, or other communication required or permitted to be given to any Member
hereunder shall be given by (a) personal delivery, (b) courier (with signed acknowledgment of receipt), (c) facsimile or electronic transmission (with confirmation of transmission) or (d) certified or registered mail, with return
receipt, in each case to the address (or facsimile number) of such Member set forth on
Schedule A
, or such other address (or facsimile number) as such Member may specify from time to time in a written notice to the other Members. Any such
notice, payment, demand or other communication shall be deemed to have been given, delivered, received and effective upon receipt.
Section 11.06.
Additional Documents and Acts
. Each Member agrees to execute and deliver such additional documents and instruments
and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement.
Section 11.07.
Headings
. All headings herein are inserted only for convenience and ease of reference and are not to be considered
in the construction or interpretation of any provision of this Agreement.
Section 11.08.
Interpretation
. In the event any
claim is made by any Member relating to any conflict, omission or ambiguity in this Agreement, no presumption or burden of proof or persuasion shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a
particular Member or its counsel.
Section 11.09.
Governing Law
. This Agreement shall be governed by, and construed under, the
laws of the State of Delaware (without regard to conflict of laws principles thereof), and all rights and remedies hereunder shall be governed by such laws.
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Section 11.10.
Amendments
. Unless otherwise provided in this Agreement, this
Agreement may not be modified, altered, supplemented or amended (by merger, repeal or otherwise) except pursuant to the written consent of the holders of a Units Majority. In addition, this Agreement may not be modified, supplemented or amended (by
merger, repeal or otherwise) in a manner that adversely affects the powers, preferences or rights of the Preferred Units except pursuant to the written consent of the holders of a Preferred Majority. Notwithstanding the foregoing, the Manager may
amend this Agreement at any time and from time to time without the consent of the Members as specifically provided in or contemplated by this Agreement or to cure any ambiguity, to correct or supplement any inconsistent or incomplete provisions or
to correct any stenographic or clerical errors.
Section 11.11.
Waivers
. No failure or delay on the part of any Member in
exercising any rights under this Agreement, or in insisting on strict performance of any covenant or condition contained in this Agreement, shall operate as a waiver of any of such Member’s rights hereunder.
Section 11.12.
Article 8 “Opt-in”
. Pursuant to and in accordance with the provisions of 6 Del. Code
Section 8-103(c), all Units shall be considered and treated as “securities” (within the meaning of 6 Del. Code Section 1-102(a)(15)) governed by Article 8 of the Delaware Uniform Commercial Code. All Units shall hereinafter be
evidenced and represented by a Certificate of Limited Liability Company Interests issued by the Company to the Member entitled thereto in the form and substance of
Exhibit A
attached hereto. Such Certificate of Limited Liability Company
Interests is intended to be and shall be considered a “security certificate” within the meaning of 6 Del. Code Section 8-102(a)(16). The Units represented or evidenced by such Certificate of Limited Liability Company Interests are
intended to be treated as and shall be considered “certificated securities” within the meaning of 6 Del. Code Section 8-102(a)(4). Appropriate Officers of the Company are hereby authorized, empowered, and directed to execute and
deliver any such Certificates of Limited Liability Company Interests.
Section 11.13.
Representations and Warranties
. By
executing and/or becoming a party to (or otherwise bound by the provisions of) this Agreement, each Member represents and warrants to the Company and the other Members that:
(a) such Member has full power, authority and legal capacity to execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby, and the execution, delivery and performance by such Member of this Agreement and the consummation by such Member of the transactions contemplated hereby have been duly authorized by all necessary action;
(b) this Agreement has been duly and validly executed and delivered by such Member and constitutes the binding obligation thereof enforceable
against such Member in accordance with the terms of this Agreement; and
(c) the execution, delivery and performance by such Member of this
Agreement and the consummation by such Member of the transactions contemplated hereby will not, with or without the giving of notice or the lapse of time, or both: (i) violate any provision of
23
law, statute, rule or regulation to which such Member is subject; (ii) violate any order, judgment or decree applicable to such Member; or (iii) conflict with, or result in a breach or
default under, any term or condition of any agreement or other instrument to which such Member is a party or by which such Member or its property is bound.
Section 11.14.
Counterparts
. This Agreement may be executed in any number of counterparts, each of which shall be deemed an
original of this Agreement and all of which taken together shall constitute one and the same instrument.
[Remainder of page intentionally
left blank; signatures on following page]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this
Limited Liability Company Agreement of Intimate Brands Holding, LLC as of the date first written above.
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INTIMATE BRANDS, INC.
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By:
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/s/ Luis F. Machado
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Name:
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Luis F. Machado
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Its:
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Senior Vice President – Legal
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Schedule A
Members, Capital Contributions and Units
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Member Name and Address
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Capital Contribution
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Common Units
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Preferred Units
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Intimate Brands, Inc.
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$
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0
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Three Limited Parkway
Columbus,
Ohio 43230
Attention:
Facsimile:
Email:
This
Schedule A
is dated as of January , 2011.
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Exhibit A
Form of Certificate of Limited Liability Company Interests
CERTIFICATE
OF
VOTING [COMMON/PREFERRED]
LIMITED LIABILITY COMPANY INTERESTS
THE
LIMITED LIABILITY COMPANY INTERESTS REPRESENTED BY THIS CERTIFICATE ARE SECURITIES GOVERNED BY ARTICLE 8 OF THE DELAWARE UNIFORM COMMERCIAL CODE.
INTIMATE BRANDS HOLDING, LLC
(a Delaware limited liability company; the “Company”)
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Certificate Number
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Voting [Common/Preferred]
LLC Interests
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[C-
/P-
]
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[Common/Preferred] Units,
being % of all of the
voting [common/preferred] limited liability company
interests of the Company as of January , 2011
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VOTING [COMMON/PREFERRED] LIMITED LIABILITY COMPANY INTERESTS
THIS CERTIFIES THAT Intimate Brands, Inc., a Delaware corporation, is the registered holder of
[Common/Preferred] Units, being % of all of the voting [common/preferred] limited liability company interests of:
INTIMATE BRANDS HOLDING, LLC,
a Delaware limited liability company
as of
January , 2011.
IN WITNESS WHEREOF, the said limited liability company has caused this Certificate to be signed by its
Senior Vice President, effective as of the day of January, 2011.
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Timothy J. Faber, Senior Vice President
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“THE COMMON UNITS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND NEITHER THESE COMMON UNITS NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH LAWS.”
“THE
[COMMON/PREFERRED] UNITS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND OTHER CONDITIONS SET FORTH IN THE LIMITED LIABILITY COMPANY AGREEMENT OF INTIMATE BRANDS HOLDING, LLC DATED AS OF JANUARY
, 2011. A COPY OF SUCH AGREEMENT MAY BE OBTAINED FROM INTIMATE BRANDS HOLDING, LLC AT ITS PRINCIPAL EXECUTIVE OFFICES.”
Exhibit 3.15
CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF
INCORPORATION
OF
LIMITED BRANDS DIRECT FULFILLMENT, INC.
Limited Brands Direct Fulfillment, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State
of Delaware (the
“
Corporation
”),
does hereby certify:
FIRST: That the Board of Directors of said
Corporation, by its written consent, filed with the minutes of the Corporation, adopted a resolution proposing and declaring advisable the following amendment to the Certificate of Incorporation of said Corporation:
RESOLVED, that the Board of Directors has determined that it is advisable that the Certificate of Incorporation of the
Corporation be amended by changing Article FIRST thereof so that, as amended, said Article FIRST shall be and read as follows:
“FIRST: The name of the corporation is L Brands Direct Fulfillment, Inc.”
SECOND: That in lieu of a meeting and vote of stockholders, the sole stockholder of the Corporation has given its written consent to said
amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.
THIRD: That the
aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware.
FOURTH: That the effective date of the aforesaid amendment is October 1, 2013.
IN WITNESS WHEREOF, Limited Brands Direct Fulfillment, Inc. has caused this certificate to be signed by its Executive Vice President –
General Counsel as of the 27
th
day of September, 2013.
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LIMITED BRANDS DIRECT FULFILLMENT, INC.
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By:
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/s/ Douglas L. Williams
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Douglas L. Williams,
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Executive Vice President – General Counsel
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Exhibit 3.16
LIMITED BRANDS DIRECT FULFILLMENT, INC.
BYLAWS
ARTICLE I -
STOCKHOLDERS
Section 1. Annual Meeting
.
An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place within or without the State of Delaware, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within 13 months subsequent to
the later of the date of incorporation or the last annual meeting of stockholders or the last action by written consent to elect directors in lieu of an annual meeting.
Section 2. Special Meetings
.
Special meetings of the stockholders may be called for such purpose or purposes, on such date, at such time, and be held at such place within
or without the State of Delaware, as shall be prescribed in the notice of the meeting by the president, or in case of the president’s death, absence or disability, the vice president, if any, authorized to exercise the authority of the
president or a majority of the Board of Directors acting with or without a meeting; provided, that if and to the extent that any special meeting of stockholders may be called by any other person or persons specified in any provision of the
certificate of incorporation or any amendment thereto or any certificate filed under Section 151(g) of the Delaware General Corporation Law (or its successor statute as in effect from time to time), then such special meeting may also be called
by the person or persons, in the manner, at the times and for the purposes so specified.
Section 3. Notice of Meetings
.
3.1. Written notice of the place, date, and time of all meetings of the stockholders shall be given, not less than 10 nor more than 60 days
before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here or hereinafter, as required from time to time by the Delaware General
Corporation Law or the certificate of incorporation).
3.2. When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, date, and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30 days after the date for
which the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business
may be transacted which might have been transacted at the original meeting.
Section 4. Quorum
.
4.1. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present
in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law.
4.2. If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of the stock entitled
to vote who are present, in person or by proxy, may adjourn the meeting to another place, date, or time.
4.3. If a notice of any adjourned
special meeting of stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present constituting a quorum, then except as otherwise required by law, those present at such adjourned meeting shall
constitute a quorum, and all matters shall be determined by a majority of the votes cast at such meeting.
Section 5.
Organization
.
At each meeting of the stockholders, the president, or, in his/her absence, any vice president, or, in the absence of
the president and all vice presidents, a chairman chosen by a majority in interest of the stockholders present in person or by proxy and entitled to vote, shall act as chairman, and the secretary of the corporation, or, if the secretary of the
corporation not be present, the assistant secretary, or if the secretary and the assistant secretary not be present, any person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting.
Section 6. Conduct of Business
.
The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting including such regulation of
the manner of voting and the conduct of discussion as seem to him/her in order.
Section 7. Proxies and Voting
.
7.1. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in
writing filed in accordance with the procedure established for the meeting.
7.2. Each stockholder shall have one vote for every share of
stock entitled to vote which is registered in his name on the record date for the meeting, except as otherwise provided herein or required by law.
7.3. All voting, except on the election of directors and where otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be
required under the procedure established for the meeting. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.
7.4. All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast.
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Section 8. Stock List
.
8.1. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock
and showing the address of each such stockholder and the number of shares registered in his name, shall be open to the examination of any such stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at
least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held.
8.2. The stock list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the examination of any
such stockholder who is present. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
Section 9. Voting by Written Consent
.
Any action which may be taken by the stockholders at an annual or special meeting may be taken without a meeting, without prior notice and
without a vote, if stockholders holding the minimum number of votes necessary to take such action shall sign a consent in writing setting forth such action; provided, however, that copies of such written consents shall be filed with the minutes of
the proceedings of the stockholders and that prompt notice of the taking of any such corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented thereto in writing and who, if
the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to
the corporation.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Number and Term of Office; Vacancies
.
The number of directors who shall constitute the whole board shall be such number as the stockholders shall at the time have designated, except
that in the absence of any such designation, such number shall be two. Each director shall be elected for a term of one year and until his successor is elected and qualified, except as otherwise provided herein or required by law. Only stockholders
shall have the power to increase or decrease the number of directors. If the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, the majority of the remaining directors, although less than
a quorum, by action at a meeting or by written consent, may elect a successor for the unexpired term.
Section 2.
Resignations
.
Any director of the corporation may resign at any time by giving written notice to the president or the secretary of the
corporation. Such resignation shall take effect at the time specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
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Section 3. Removal
.
Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
Section 4. Regular Meetings
.
Regular meetings of the Board of Directors shall be held at such place or places within or without the State of Delaware, on such date or
dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.
Section 5. Special Meetings
.
Special meetings of the Board of Directors may be called by two-thirds of the directors then in office or by the chief executive officer and
shall be held at such place, on such date, and at such time as they or he/she shall fix. Notice of the place, date, and time of each such special meeting shall be given each director, by whom it is not waived, by mailing written notice not less than
three days before the meeting or by telegraphing the same not less than eighteen hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section 6. Quorum
.
At any meeting of the Board of Directors, a majority of the whole board shall constitute a quorum for all purposes. If a quorum shall fail to
attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof.
Section 7. Participation in Meetings By Conference Telephone
.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 8. Conduct of Business
.
At any meeting of the Board of Directors, business shall be transacted in such order and manner as the board may from time to time determine,
and all board action shall require the affirmative vote of all of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.
Section 9.
Powers
.
The Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as
may be exercised or done by the corporation, except such powers and such acts and things as are deserved in the certificate of incorporation or in these bylaws to the stockholders.
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Section 10. Compensation of Directors
.
Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of committees of the directors.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors
.
The Board of Directors may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who
may replace any absent or disqualified member at any meeting of the committee. Any such committee shall, to the extent provided by resolution of the Board of Directors, have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority of the Board of Directors in
reference to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law to be submitted to the stockholders for approval or (ii) adopting, amending or repealing any
bylaw of the corporation. In the absence or disqualification of any member of any committee and any alternate member in his place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.
Section 2. Conduct of Business
.
Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; a majority of the members shall constitute a quorum; and all matters shall be determined by the affirmative vote of the members
present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee.
ARTICLE IV - OFFICERS
Section 1. General Provisions
.
The officers of the corporation shall be the president, such number of vice-presidents as the board may from time to time determine, a
secretary and a treasurer. Any person may hold any two or more offices and perform the duties thereof, except the offices of president and vice-president. If one person is chosen to hold the offices of secretary and treasurer, he shall be known as
secretary-treasurer of the corporation. All the duties and obligations assigned to, and all references made to both the secretary and the treasurer in these bylaws, shall apply to the secretary-treasurer, if one person be elected to both of these
offices.
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Section 2. Election, Terms of Office, and Qualification
.
The officers of the corporation named in Section 1 of this Article IV shall be elected by the Board of Directors or, alternatively, by the
stockholders of the corporation, for an indeterminate term and shall hold office during the pleasure of the Board of Directors, or in the event the officers are elected by the stockholders, they shall hold office during the pleasure of the
stockholders.
Section 3. Additional Officers, Agents, etc
.
In addition to the officers mentioned in Section 1 of this Article IV, the corporation may have such other officers or agents as the Board
of Directors or the stockholders may deem necessary and may appoint, each of whom or each member of which shall hold office for such period, have such authority and perform such duties as may be provided in these bylaws or as the Board of Directors
or the stockholders may from time to time determine. The Board of Directors or the stockholders may delegate to any officer the power to appoint any subordinate officers or agents. In the absence of any officer of the corporation, or for any other
reason the Board of Directors or the stockholders may deem sufficient, the Board of Directors or the stockholders may delegate, for the time being, the powers and duties, or any of them, of such officer to any other officer, or to any directors.
Section 4. Removal
.
Any officer of the corporation may be removed, either with or without cause, at any time, by resolution adopted by the Board of Directors or
the stockholders at any meeting, the notice (or waivers of notice) of which shall have specified that such removal action was to be considered. Any officer appointed not by the Board of Directors or the stockholders but by an officer or committee to
which the Board of Directors or the stockholders shall have delegated the power of appointment may be removed, without or without cause, by the committee or superior officer (including successors) who made the appointment, or by any committee or
officer upon whom such power of removal may be conferred by the Board of Directors or the stockholders.
Section 5.
Resignations
.
Any officer may resign at any time by giving written notice to the Board of Directors, the president or the secretary of
the corporation. Any such resignation shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 6. Vacancies
A vacancy in any office because of death, resignation, removal, disqualification or otherwise, shall be filled in the manner prescribed in
these bylaws for regular appointments or elections to such office.
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ARTICLE V - DUTIES OF THE OFFICERS
Section 1. The President
.
The president shall be the chief executive officer of the corporation and shall have general supervision over the property, business and
affairs of the corporation and over its several officers, subject, however, to the control of the Board of Directors. The president shall, if present, preside at all meetings of the stockholders and of the Board of Directors. The president may sign,
with the secretary, treasurer or any other proper officer of the corporation thereunto authorized by the Board of Directors certificates for shares in the corporation. The president may sign, execute, and deliver in the name of the corporation all
deeds, mortgages, bonds, leases, contracts, or other instruments either when specially authorized by the Board of Directors or when required or deemed necessary or advisable by him/her in the ordinary conduct of the corporation’s normal
business, except in cases where the signing and execution thereof shall be expressly delegated by these bylaws to some other officer or agent of the corporation or shall be required by law or otherwise to be signed or executed by some other officer
or agent, and he/she may cause the seal of the corporation, if any, to be affixed to any instrument requiring the same.
Section 2. Vice-Presidents
.
The vice-presidents shall perform such duties as are conferred upon them by these bylaws or as may from time to time be assigned to them by the
Board of Directors or the president. In the absence or disability of the president, the vice-president designed by the Board of Directors shall perform all the duties of the president, and when so acting, shall have all the powers of the president.
The authority of vice-presidents to sign in the name of the corporation all certificates for shares and authorized deeds, mortgages, leases, bonds, contracts, notes and other instruments, shall be coordinate with like authority of the president.
Section 3. The Treasurer
.
The treasurer shall be the custodian of all funds and securities of the corporation. Whenever so directed by the Board of Directors, he shall
render a statement of the cash and other accounts of the corporation, and he shall cause to be entered regularly in the books and records of the corporation to be kept for such purpose full and accurate accounts of the corporation’s receipts
and disbursements. He shall have such other powers and shall perform such other duties as may from time to time be assigned to him by the Board of Directors.
Section 4. The Secretary
.
The secretary shall record and keep the minutes of all meetings of the stockholders and the Board of Directors in a book to be kept for that
purpose. He shall be the custodian of, and shall make or cause to be made the proper entries in, the minute book of the corporation and such other books and records as the Board of Directors may direct. He shall be the custodian of the seal of the
corporation, if any, and shall affix such seal to such contracts, instruments and other documents as the Board of Directors or any committee thereof may direct. He shall have such other powers and shall perform such other duties as may from time to
time be assigned to him by the Board of Directors.
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ARTICLE VI - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification
.
The corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, or pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he, his testator, or intestate is or was a director or officer of the corporation, or is or was serving at the request of the
corporation as 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), judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred by him/her 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 the State of Delaware as they may exist from time to time.
Section 2. Insurance
.
The proper officers of the corporation, 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 the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent for another corporation, partnership, joint
venture, trusts or other enterprise, against any liability.
Section 3. ERISA
.
To assure indemnification under this provision of all such persons who are or were “fiduciaries” of an employee benefit plan governed
by the Act of the United States Congress entitled “Employee Retirement Income Security Act of 1974”, as amended from time to time (“ERISA”), the provisions of this Article VI shall, except as limited by Section 410 of ERISA,
for the purposes hereof, be interpreted as follows: an “other enterprise” shall be deemed to include an employee benefit plan; the corporation shall be deemed to have requested a person to serve as a director, officer, employee or agent of
an employee benefit plan where the performance of such person of his duties to the corporation also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on
a person with respect to an employee benefit plan pursuant to ERISA shall be deemed “fines”; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose
reasonably believed by such person to be in compliance with ERISA and the terms of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the corporation.
Section 4. Contractual Nature
.
The foregoing provision of this Article VI shall be deemed to be a contract between the corporation and each director and officer who serves in
such capacity at any time while this Section 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 when 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.
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Section 5. Construction
.
For the purposes of this Article VI, references to “the corporation” include in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director or officer of such constituent corporation or is or was serving at the request of such constituent corporation 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 shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he/she would have with respect to such
constituent corporation if its separate existence had continued.
Section 6. Non-Exclusive
.
The corporation 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 he/she reasonably believed to be in, or not opposed to, the best interests of the corporation.
ARTICLE VII - STOCK
Section 1. Certificates of Stock
.
Each stockholder shall be entitled to a certificate signed by, or in the name of the corporation by the president or a vice-president, and by
the secretary or an assistant secretary, or the treasurer or an assistant treasurer, certifying the number of shares owned by him. Any or all of the signatures on the certificate may be facsimile.
Section 2. Transfers of Stock
.
Transfers of stock shall be made only upon the transfer books of the corporation kept at an office of the corporation or by transfer agents
designated to transfer shares of the stock of the corporation. Except where a certificate is issued in accordance with Section 4 of Article VII of these bylaws, an outstanding certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued therefor.
Section 3. Record Date
.
The Board of Directors may fix a record date, which shall not be more than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for any other action hereinafter described, as of which there shall be determined the stockholders who are entitled: to notice of or to vote at any meeting of stockholders or any adjournment
thereof, to express consent to corporate action in writing without a meeting; to receive payment of any dividend or other distribution or allotment of any rights; or to exercise any rights with respect to any change, conversion or exchange of stock
or with respect to any other lawful action.
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Section 4. Lost, Stolen or Destroyed Certificates
.
In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations
.
The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors
may establish.
ARTICLE VIII - NOTICES
Section 1. Notices
.
Whenever notice is required to be given to any stockholder, director, officer, or agent, such requirement shall not be construed to mean
personal notice. Such notice may in every instance be effectively given by depositing a writing in a post office or letter box, in a postpaid, sealed wrapper, or by dispatching a prepaid telegram, addressed to such stockholder, director, officer, or
agent at his or her address as the same appears on the books of the corporation. The time when such notice is dispatched shall be the time of the giving of the notice.
Section 2. Waivers
.
A written waiver of any notice, signed by a stockholder, director, officer, or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE IV - MISCELLANEOUS
Section 1. Facsimile Signatures
.
In addition to the provisions for the use of facsimile signatures elsewhere specifically authorized in these bylaws, facsimile signatures of
any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal
.
The Board of Directors may provide a suitable seal, containing the name of the corporation, which seal shall be in the charge of the secretary.
If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the treasurer or by the assistant secretary or assistant treasurer.
Section 3. Reliance upon Books, Reports and Records
.
Each director, each member of any committee designated by the Board of Directors, and each officer of the corporation shall, in the performance
of his duties, be fully protected in relying in good faith upon the books of account or other records of the corporation, including reports made to the corporation by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
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Section 4. Fiscal Year
.
The fiscal year of the corporation shall be the 52-53 week period ending on the Saturday nearest the last day of January and the next
succeeding fiscal year shall begin on the Sunday following such Saturday.
Section 5. Time Periods
.
In applying any provision of these bylaws which require that an act be done or not done a specified number of days prior to an event or that an
act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
Section 6. Depositaries and Signatories
.
The president and the treasurer of the corporation are each authorized to designate depositaries for the funds of the corporation deposited in
its name and the signatories and conditions with respect thereto in each case, and from time to time, to change such depositaries, signatories and conditions, with the same force and effect as if each such depositary, the signatories and conditions
with respect thereto and changes therein had been specifically designated or authorized by the Board of Directors; and each depositary designated by the Board of Directors or by the president or treasurer of the corporation, shall be entitled to
rely upon the certificate of the secretary and any assistant secretary of the corporation setting forth the fact of such designation and of the appointment of the officers of the corporation or of both or of other persons who are to be signatories
with respect to the withdrawal of funds deposited with such depositary, or from time to time the fact of any change in any depositary or in the signatories with respect thereto.
Section 7. Execution of Instruments Generally
.
In addition to the powers conferred upon the president in Article V, Section 1 and except as otherwise provided in Section 6 of this
Article IX, all contracts and other instruments entered into in the ordinary course of business requiring execution by the corporation may be executed and delivered by any vice president or the treasurer and authority to sign any such contracts or
instruments, which may be general or confined to specific instances, may be conferred by the Board of Directors upon any other person or persons. Any person having authority to sign on behalf of the corporation may delegate, from time to time, by
instrument in writing, all or any part of such authority to any person or persons if authorized so to do by the Board of Directors.
Section 8. Voting Securities of Other Corporations
.
Unless otherwise directed by the Board of Directors, the president and any vice president of the corporation shall have the power to vote and
otherwise act on behalf of the corporation, in person or by proxy, at any meeting, or with respect to any action, of stockholders of any other corporation in which this corporation may hold securities and otherwise to exercise any and all rights and
powers which this corporation may possess by reason of its ownership of securities in such other corporation.
-11-
Exhibit 3.17
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF
FORMATION
OF
LIMITED BRANDS SERVICE COMPANY, LLC
The undersigned, being the Executive Vice President—General Counsel of the manager of the sole member of Limited Brands Service Company,
LLC (the “
Company
”), a limited liability company organized and existing under the Delaware Limited Liability Company Act, the Certificate of Formation of which was filed with the office of the Secretary of State of the State
of Delaware on January 29, 2011, does hereby certify:
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1.
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The name of the Company is Limited Brands Service Company, LLC.
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2.
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The first statement of the Certificate of Formation of the Company is hereby amended and restated to read in its entirety as follows:
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1. The name of the limited liability company is L Brands Service Company, LLC.
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3.
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The effective date of the aforesaid amendment is October 1, 2013.
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4.
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The undersigned officer of the manager of the sole member of the Company is authorized to execute this Certificate of Amendment of Certificate of Formation and cause it to be filed with the office of the Secretary of
State of the State of Delaware.
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IN WITNESS WHEREOF, I have executed this Certificate of Amendment as of this 27
th
day of September, 2013.
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/s/ Douglas L. Williams
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Douglas L. Williams,
Executive Vice President
– General Counsel of
Intimate Brands, Inc., the Manager of Intimate
Brands Holding, LLC, the sole member of
Limited Brands Service
Company, LLC
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Exhibit 3.18
LIMITED BRANDS SERVICE COMPANY, LLC
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT (this
“
Agreement
”),
is dated as of January , 2011, to
be effective as of 11:17 p.m., Eastern Standard Time
(“
EST
”),
on January 29, 2011, by Intimate Brands Holding, LLC, a Delaware limited liability company (the “
Member
”).
WI TN E S S E TH:
WHEREAS, the
Member is the sole stockholder of Limited Service Corporation, a Delaware corporation
(“
LSC
”);
and
WHEREAS, in
accordance with Section 266 of the Delaware General Corporation Law, the Board of Directors of LSC and the Member, in its capacity as the sole stockholder of LSC, have authorized the conversion of LSC from a Delaware corporation to a Delaware
limited liability company, which conversion is to be effective at 11 :17 p.m. EST, on January 29, 2011; and
WHEREAS, in compliance
with Section 266 of the Delaware General Corporation Law and Section 18-214 of the Delaware Limited Liability Company Act, Delaware Code Title 6, Chapter 18 (the
“
Act
”),
the Member intends to cause to be filed with
the Delaware Secretary of State a Certificate of Formation in respect of Limited Brands Service Company, LLC, a limited liability company to be formed under the laws of the State of Delaware in connection with the conversion of LSC from a Delaware
corporation to a Delaware limited liability company; and
WHEREAS, the Member desires to enter into this Agreement as to the affairs of
the LLC and the conduct of its business, and the Member intends that this Agreement constitute the “limited liability company agreement” of the LLC, within the meaning of that term as defined in the Act;
NOW, THEREFORE, it is agreed and stated as follows:
Section 1.
Formation: Member
. The Certificate of Formation of the LLC shall be substantially in the form of
“
Exhibit
A
” attached hereto and made a part hereof (the
“
Certificate of Formation
”).
The Certificate of Formation shall be executed by the Member or an authorized representative of the Member. The Member hereby
acknowledges and agrees that Luis F. Machado is an authorized representative to execute the Certificate of Formation of the LLC. The LLC shall be formed at the time specified in the Certificate of Formation, which is 11: 17 p.m. EST, on
January 29, 2011. The Member hereby approves and ratifies the completion, execution, delivery, recording and filing of the Certificate of Formation by Luis F. Machado on behalf of the Member and the LLC. The Member shall be the sole
“member” of the LLC, as defined in the Act. Whether under this Agreement, under any other agreement or obligation by which the Company and/or the Member may be bound, or pursuant to applicable law, any action or inaction taken or omitted
to be taken by or with the consent of the Member shall bind the Company. The Member may delegate such power and authority, including without limitation, the delegation of such power and authority to persons appointed as officers of the LLC.
Section 2.
Term
. LSC shall be converted into the LLC effective at 11: 17 p.m., EST,
on January 29, 2011; provided, however, that pursuant to Section 18-214 of the Act, the existence of the LLC shall be deemed to have commenced on the date that LSC was incorporated under the Delaware General Corporation Law (which date was
August 31, 1982). The LLC shall continue in perpetuity, unless and until the Member consents in writing to dissolve the LLC. Upon dissolution, the LLC shall be wound up and terminated as provided in the Act, and the Member shall have the
authority to wind up the LLC. To the extent permitted by law, no event described in Section 18-304 of the Act (entitled “Events of Bankruptcy”) involving the Member shall cause the Member to cease to be a member of the LLC, and the
provisions of Section 18-801 of the Act (entitled “Dissolution”) shall not apply to the LLC.
Section 3.
Capital
Contributions
. · The Member shall determine the amounts, forms and timing of capital contributions required of the Member. The initial capitalization of the LLC shall consist of the assets and liabilities of LSC, the Delaware corporation
which converted into the LLC.
Section 4.
Tax Matters
. So long as the LLC has only one member, the LLC shall be disregarded as
an entity separate from its member, for all U.S. federal income tax and applicable state income and franchise tax purposes, pursuant to Treasury Regulation Sections 301. 7701-1, 301.7701-2 and 301.7701-3, and corresponding provisions of applicable
state laws (and successor provisions), and the provisions of Section 18-503 of the Act (entitled “Allocation of Profits and Losses”) shall not apply to the LLC.
Section 5.
Distributions
. Distributions of cash or property under circumstances not involving the liquidation of the LLC, if any,
shall be within the discretion of the Member as to amount, form and frequency, subject to Section 18-607 of the Act (entitled “Limitations on Distribution”), Upon the liquidation of the LLC, the Member shall have power to liquidate or
to distribute in kind any and all of the assets of the LLC, and the proceeds of any such liquidation shall be applied and distributed in accordance with Section 18-804 of the Act (entitled “Distribution of Assets”).
Section 6.
General Provisions
.
(a)
No Third-Party Beneficiaries
. None of the provisions of this Agreement shall be construed as existing for the benefit of any
creditor of the LLC or as being enforceable by any party not a signatory hereto. There shall be no third-party beneficiaries of this Agreement.
(b)
Entire Agreement
. This Agreement constitutes the entire “limited liability company agreement” of the LLC within the
meaning of the Act and contains the entire understanding, agreement and statement of the Member upon the subject matter of this Agreement and may only be amended, changed or waived in a writing signed by the Member. The Member acknowledges that the
provisions of the Act shall govern the affairs of the LLC and the conduct of its business, except as provided in this Agreement.
(c)
Provisions Binding
. This Agreement shall inure to the benefit of and be binding upon the Member and the Member’s successors and assigns.
(d)
Applicable Law
. This Agreement shall be interpreted in accordance with the laws of the State of Delaware.
-2-
IN WITNESS WHEREOF,
the undersigned, being a duly authorized officer of Intimate Brands
Holding, LLC, the sole member of Limited Brands Service Company, LLC, has duly executed this Limited Liability Company Agreement of Limited Brands Service Company, LLC on behalf of the Member, effective as of the time, date and year first above
written.
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INTIMATE BRANDS HOLDING, LLC
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By:
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/s/ Luis F. Machado
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Luis F. Machado,
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Senior Vice President
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-3-
Exhibit 3.19
CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF
INCORPORATION
OF
LIMITED STORE PLANNING, INC.
Limited Store Planning, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware
(the
“
Corporation
”),
does hereby certify:
FIRST: That the Board of Directors of said Corporation, by
its written consent, filed with the minutes of the Corporation, adopted a resolution proposing and declaring advisable the following amendment to the Certificate of Incorporation of said Corporation:
RESOLVED, that the Board of Directors has determined that it is advisable that the Certificate of Incorporation of the
Corporation be amended by changing Article FIRST thereof so that, as amended, said Article FIRST shall be and read as follows:
“FIRST: The name of the corporation is L Brands Store Design & Construction, Inc.”
SECOND: That in lieu of a meeting and vote of stockholders, the sole stockholder of the Corporation has given its written consent to said
amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.
THIRD: That the
aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware.
FOURTH: That the effective date of the aforesaid amendment is October 1, 2013.
IN WITNESS WHEREOF, Limited Store Planning, Inc. has caused this certificate to be signed by its Executive Vice President – General
Counsel as of the 27
th
day of September, 2013.
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LIMITED STORE PLANNING, INC.
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By:
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/s/ Douglas L. Williams
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Douglas L. Williams,
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Executive Vice President – General Counsel
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Exhibit 3.20
L BRANDS STORE DESIGN & CONSTRUCTION, INC.
BYLAWS
ARTICLE I -
STOCKHOLDERS
Section 1. Annual Meeting
.
An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place within or without the State of Delaware, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within 13 months subsequent to
the later of the date of incorporation or the last annual meeting of stockholders or the last action by written consent to elect directors in lieu of an annual meeting.
Section 2. Special Meetings
.
Special meetings of the stockholders may be called for such purpose or purposes, on such date, at such time, and be held at such place within
or without the State of Delaware, as shall be prescribed in the notice of the meeting by the president, or in case of the president’s death, absence or disability, the vice president, if any, authorized to exercise the authority of the
president or a majority of the Board of Directors acting with or without a meeting; provided, that if and to the extent that any special meeting of stockholders may be called by any other person or persons specified in any provision of the
certificate of incorporation or any amendment thereto or any certificate filed under Section 151(g) of the Delaware General Corporation Law (or its successor statute as in effect from time to time), then such special meeting may also be called
by the person or persons, in the manner, at the times and for the purposes so specified.
Section 3. Notice of Meetings
.
3.1. Written notice of the place, date, and time of all meetings of the stockholders shall be given, not less than 10 nor more than 60 days
before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here or hereinafter, as required from time to time by the Delaware General
Corporation Law or the certificate of incorporation).
3.2. When a meeting is adjourned to another place, date or time, written notice need
not be given of the adjourned meeting if the place, date, and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30 days after the date for which the
meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be
transacted which might have been transacted at the original meeting.
Section 4. Quorum
.
4.1. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present
in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law.
4.2. If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of the stock entitled
to vote who are present, in person or by proxy, may adjourn the meeting to another place, date, or time.
4.3. If a notice of any adjourned
special meeting of stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present constituting a quorum, then except as otherwise required by law, those present at such adjourned meeting shall
constitute a quorum, and all matters shall be determined by a majority of the votes cast at such meeting.
Section 5.
Organization
.
At each meeting of the stockholders, the president, or, in his/her absence, any vice president, or, in the absence of
the president and all vice presidents, a chairman chosen by a majority in interest of the stockholders present in person or by proxy and entitled to vote, shall act as chairman, and the secretary of the corporation, or, if the secretary of the
corporation not be present, the assistant secretary, or if the secretary and the assistant secretary not be present, any person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting.
Section 6. Conduct of Business
.
The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting including such regulation of
the manner of voting and the conduct of discussion as seem to him/her in order.
Section 7. Proxies and Voting
.
7.1. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in
writing filed in accordance with the procedure established for the meeting.
7.2. Each stockholder shall have one vote for every share of
stock entitled to vote which is registered in such stockholder’s name on the record date for the meeting, except as otherwise provided herein or required by law.
7.3. All voting, except on the election of directors and where otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or such stockholder’s proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.
7.4. All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast.
-2-
Section 8. Stock List
.
8.1. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock
and showing the address of each such stockholder and the number of shares registered in such stockholder’s name, shall be open to the examination of any such stockholder, for any purpose germane to the meeting, during ordinary business hours
for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be
held.
8.2. The stock list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the
examination of any such stockholder who is present. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
Section 9. Voting by Written Consent
.
Any action which may be taken by the stockholders at an annual or special meeting may be taken without a meeting, without prior notice and
without a vote, if stockholders holding the minimum number of votes necessary to take such action shall sign a consent in writing setting forth such action; provided, however, that copies of such written consents shall be filed with the minutes of
the proceedings of the stockholders and that prompt notice of the taking of any such corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented thereto in writing and who, if
the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to
the corporation.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Number and Term of Office; Vacancies
.
The number of directors who shall constitute the whole Board of Directors shall be such number as the stockholders shall at the time have
designated, except that in the absence of any such designation, such number shall be two. Each director shall be elected for a term of one year and until his/her successor is elected and qualified, except as otherwise provided herein or required by
law. Only stockholders shall have the power to increase or decrease the number of directors. If the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, the majority of the remaining
directors, although less than a quorum, by action at a meeting or by written consent, may elect a successor for the unexpired term.
Section 2. Resignations
.
Any director of the corporation may resign at any time by giving written notice to the president or the secretary of the corporation. Such
resignation shall take effect at the time specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
-3-
Section 3. Removal
.
Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
Section 4. Regular Meetings
.
Regular meetings of the Board of Directors shall be held at such place or places within or without the State of Delaware, on such date or
dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.
Section 5. Special Meetings
.
Special meetings of the Board of Directors may be called by two-thirds of the directors then in office or by the chief executive officer and
shall be held at such place, on such date, and at such time as they or he/she shall fix. Notice of the place, date, and time of each such special meeting shall be given each director, by whom it is not waived, by mailing written notice not less than
three days before the meeting or by telegraphing the same not less than eighteen hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section 6. Quorum
.
At any meeting of the Board of Directors, a majority of the whole Board shall constitute a quorum for all purposes. If a quorum shall fail to
attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof.
Section 7. Participation in Meetings By Conference Telephone
.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 8. Conduct of Business
.
At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board may from time to time determine,
and all Board action shall require the affirmative vote of all of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.
Section 9.
Powers
.
The Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as
may be exercised or done by the corporation, except such powers and such acts and things as are deserved in the certificate of incorporation or in these bylaws to the stockholders.
-4-
Section 10. Compensation of Directors
.
Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of committees of the directors.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors
.
The Board of Directors may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who
may replace any absent or disqualified member at any meeting of the committee. Any such committee shall, to the extent provided by resolution of the Board of Directors, have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority of the Board of Directors in
reference to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law to be submitted to the stockholders for approval or (ii) adopting, amending or
repealing any bylaw of the corporation. In the absence or disqualification of any member of any committee and any alternate member in his/her place, the member or members of the committee present at the meeting and not disqualified from voting,
whether or not he/she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.
Section 2. Conduct of Business
.
Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; a majority of the members shall constitute a quorum; and all matters shall be determined by the affirmative vote of the members
present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee.
ARTICLE IV - OFFICERS
Section 1. General Provisions
.
The officers of the corporation shall be the president, such number of vice-presidents as the board may from time to time determine, a
secretary and a treasurer. Any person may hold any two or more offices and perform the duties thereof, except the offices of president and vice-president. If one person is chosen to hold the offices of secretary and treasurer, he/she shall be known
as secretary-treasurer of the corporation. All the duties and obligations assigned to, and all references made to both the secretary and the treasurer in these bylaws, shall apply to the secretary-treasurer, if one person be elected to both of these
offices.
-5-
Section 2. Election, Terms of Office, and Qualification
.
The officers of the corporation named in Section 1 of this Article IV shall be elected by the Board of Directors or, alternatively, by the
stockholders of the corporation, for an indeterminate term and shall hold office during the pleasure of the Board of Directors, or in the event the officers are elected by the stockholders, they shall hold office during the pleasure of the
stockholders.
Section 3. Additional Officers, Agents, etc.
In addition to the officers mentioned in Section 1 of this Article IV, the corporation may have such other officers or agents as the Board
of Directors or the stockholders may deem necessary and may appoint, each of whom or each member of which shall hold office for such period, have such authority and perform such duties as may be provided in these bylaws or as the Board of Directors
or the stockholders may from time to time determine. The Board of Directors or the stockholders may delegate to any officer the power to appoint any subordinate officers or agents. In the absence of any officer of the corporation, or for any other
reason the Board of Directors or the stockholders may deem sufficient, the Board of Directors or the stockholders may delegate, for the time being, the powers and duties, or any of them, of such officer to any other officer, or to any directors.
Section 4. Removal
.
Any officer of the corporation may be removed, either with or without cause, at any time, by resolution adopted by the Board of Directors or
the stockholders at any meeting, the notice (or waivers of notice) of which shall have specified that such removal action was to be considered. Any officer appointed not by the Board of Directors or the stockholders but by an officer or committee to
which the Board of Directors or the stockholders shall have delegated the power of appointment may be removed, without or without cause, by the committee or superior officer (including successors) who made the appointment, or by any committee or
officer upon whom such power of removal may be conferred by the Board of Directors or the stockholders.
Section 5.
Resignations
.
Any officer may resign at any time by giving written notice to the Board of Directors, the president or the secretary of
the corporation. Any such resignation shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 6. Vacancies
.
A vacancy in any office because of death, resignation, removal, disqualification or otherwise, shall be filled in the manner prescribed in
these bylaws for regular appointments or elections to such office.
-6-
ARTICLE V - DUTIES OF THE OFFICERS
Section 1. The President
.
The president shall be the chief executive officer of the corporation and shall have general supervision over the property, business and
affairs of the corporation and over its several officers, subject, however, to the control of the Board of Directors. The president shall, if present, preside at all meetings of the stockholders and of the Board of Directors. The president may sign,
with the secretary, treasurer or any other proper officer of the corporation thereunto authorized by the Board of Directors certificates for shares in the corporation. The president may sign, execute, and deliver in the name of the corporation all
deeds, mortgages, bonds, leases, contracts, or other instruments either when specially authorized by the Board of Directors or when required or deemed necessary or advisable by him/her in the ordinary conduct of the corporation’s normal
business, except in cases where the signing and execution thereof shall be expressly delegated by these bylaws to some other officer or agent of the corporation or shall be required by law or otherwise to be signed or executed by some other officer
or agent, and he/she may cause the seal of the corporation, if any, to be affixed to any instrument requiring the same.
Section 2. Vice-Presidents
.
The vice-presidents shall perform such duties as are conferred upon them by these bylaws or as may from time to time be assigned to them by the
Board of Directors or the president. In the absence or disability of the president, the vice-president designated by the Board of Directors shall perform all the duties of the president, and when so acting, shall have all the powers of the
president. The authority of vice-presidents to sign in the name of the corporation all certificates for shares and authorized deeds, mortgages, leases, bonds, contracts, notes and other instruments, shall be coordinate with like authority of the
president.
Section 3. The Treasurer
.
The treasurer shall be the custodian of all funds and securities of the corporation. Whenever so directed by the Board of Directors, he/she
shall render a statement of the cash and other accounts of the corporation, and he/she shall cause to be entered regularly in the books and records of the corporation to be kept for such purpose full and accurate accounts of the corporation’s
receipts and disbursements. He/she shall have such other powers and shall perform such other duties as may from time to time be assigned to him/her by the Board of Directors.
Section 4. The Secretary
.
The secretary shall record and keep the minutes of all meetings of the stockholders and the Board of Directors in a book to be kept for that
purpose. He/she shall be the custodian of, and shall make or cause to be made the proper entries in, the minute book of the corporation and such other books and records as the Board of Directors may direct. He/she shall be the custodian of the seal
of the corporation, if any, and shall affix such seal to such contracts, instruments and other documents as the Board of Directors or any committee thereof may direct. He/she shall have such other powers and shall perform such other duties as may
from time to time be assigned to him/her by the Board of Directors.
-7-
ARTICLE VI - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification
.
The corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, or pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he/she, his/her testator, or intestate is or was a director or officer of the corporation, or is or was serving at the request
of the corporation as 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),
judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him/her 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 the State of Delaware as they may exist from time to time.
Section 2.
Insurance
.
The proper officers of the corporation, 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 the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent for another
corporation, partnership, joint venture, trusts or other enterprise, against any liability.
Section 3. ERISA
.
To assure indemnification under this provision of all such persons who are or were “fiduciaries” of an employee benefit plan governed
by the Act of the United States Congress entitled “Employee Retirement Income Security Act of 1974”, as amended from time to time (“ERISA”), the provisions of this Article VI shall, except as limited by Section 410 of ERISA,
for the purposes hereof, be interpreted as follows: an “other enterprise” shall be deemed to include an employee benefit plan; the corporation shall be deemed to have requested a person to serve as a director, officer, employee or agent of
an employee benefit plan where the performance of such person of his/her duties to the corporation also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed
on a person with respect to an employee benefit plan pursuant to ERISA shall be deemed “fines”; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose
reasonably believed by such person to be in compliance with ERISA and the terms of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the corporation.
Section 4. Contractual Nature
.
The foregoing provision of this Article VI shall be deemed to be a contract between the corporation and each director and officer who serves in
such capacity at any time while this Section 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 when 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.
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Section 5. Construction
.
For the purposes of this Article VI, references to “the corporation” include in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director or officer of such constituent corporation or is or was serving at the request of such constituent corporation 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 shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he/she would have with respect to such
constituent corporation if its separate existence had continued.
Section 6. Non-Exclusive
.
The corporation 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 he/she reasonably believed to be in, or not opposed to, the best interests of the corporation.
ARTICLE VII - STOCK
Section 1. Certificates of Stock
.
Each stockholder shall be entitled to a certificate signed by, or in the name of the corporation by the president or a vice-president, and by
the secretary or an assistant secretary, or the treasurer or an assistant treasurer, certifying the number of shares owned by such stockholder. Any or all of the signatures on the certificate may be facsimile.
Section 2. Transfers of Stock
.
Transfers of stock shall be made only upon the transfer books of the corporation kept at an office of the corporation or by transfer agents
designated to transfer shares of the stock of the corporation. Except where a certificate is issued in accordance with Section 4 of Article VII of these bylaws, an outstanding certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued therefor.
Section 3. Record Date
.
The Board of Directors may fix a record date, which shall not be more than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for any other action hereinafter described, as of which there shall be determined the stockholders who are entitled: to notice of or to vote at any meeting of stockholders or any adjournment
thereof, to express consent to corporate action in writing without a meeting; to receive payment of any dividend or other distribution or allotment of any rights; or to exercise any rights with respect to any change, conversion or exchange of stock
or with respect to any other lawful action.
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Section 4. Lost, Stolen or Destroyed Certificates
.
In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations
.
The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors
may establish.
ARTICLE VIII - NOTICES
Section 1. Notices
.
Whenever notice is required to be given to any stockholder, director, officer, or agent, such requirement shall not be construed to mean
personal notice. Such notice may in every instance be effectively given by depositing a writing in a post office or letter box, in a postpaid, sealed wrapper, or by dispatching a prepaid telegram, addressed to such stockholder, director, officer, or
agent at his/her address as the same appears on the books of the corporation. The time when such notice is dispatched shall be the time of the giving of the notice.
Section 2. Waivers
.
A written waiver of any notice, signed by a stockholder, director, officer, or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE IX - MISCELLANEOUS
Section 1. Facsimile Signatures
.
In addition to the provisions for the use of facsimile signatures elsewhere specifically authorized in these bylaws, facsimile signatures of
any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal
.
The Board of Directors may provide a suitable seal, containing the name of the corporation, which seal shall be in the charge of the secretary.
If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the treasurer or by the assistant secretary or assistant treasurer.
Section 3. Reliance upon Books, Reports and Records
.
Each director, each member of any committee designated by the Board of Directors, and each officer of the corporation shall, in the performance
of his/her duties, be fully protected in relying in good faith upon the books of account or other records of the corporation, including reports made to the corporation by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
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Section 4. Fiscal Year
.
The fiscal year of the corporation shall be the 52-53 week period ending on the Saturday nearest the last day of January and the next
succeeding fiscal year shall begin on the Sunday following such Saturday.
Section 5. Time Periods
.
In applying any provision of these bylaws which require that an act be done or not done a specified number of days prior to an event or that an
act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
Section 6. Depositaries and Signatories
.
The president and the treasurer of the corporation are each authorized to designate depositaries for the funds of the corporation deposited in
its name and the signatories and conditions with respect thereto in each case, and from time to time, to change such depositaries, signatories and conditions, with the same force and effect as if each such depositary, the signatories and conditions
with respect thereto and changes therein had been specifically designated or authorized by the Board of Directors; and each depositary designated by the Board of Directors or by the president or treasurer of the corporation, shall be entitled to
rely upon the certificate of the secretary and any assistant secretary of the corporation setting forth the fact of such designation and of the appointment of the officers of the corporation or of both or of other persons who are to be signatories
with respect to the withdrawal of funds deposited with such depositary, or from time to time the fact of any change in any depositary or in the signatories with respect thereto.
Section 7. Execution of Instruments Generally
.
In addition to the powers conferred upon the president in Article V, Section 1 and except as otherwise provided in Section 6 of this
Article IX, all contracts and other instruments entered into in the ordinary course of business requiring execution by the corporation may be executed and delivered by any vice president or the treasurer and authority to sign any such contracts or
instruments, which may be general or confined to specific instances, may be conferred by the Board of Directors upon any other person or persons. Any person having authority to sign on behalf of the corporation may delegate, from time to time, by
instrument in writing, all or any part of such authority to any person or persons if authorized so to do by the Board of Directors.
Section 8. Voting Securities of Other Corporations
.
Unless otherwise directed by the Board of Directors, the president and any vice president of the corporation shall have the power to vote and
otherwise act on behalf of the corporation, in person or by proxy, at any meeting, or with respect to any action, of stockholders of any other corporation in which this corporation may hold securities and otherwise to exercise any and all rights and
powers which this corporation may possess by reason of its ownership of securities in such other corporation.
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Exhibit 3.21
CERTIFICATE OF AMENDMENT
OF
THE CERTIFICATE OF
INCORPORATION
BEFORE PAYMENT OF CAPITAL
OF
LSI OHIO, INC.
The undersigned, being the sole incorporator of LSI Ohio, Inc., a corporation organized and existing under the General Corporation
Law of the State of Delaware (the “Corporation”), incorporated on March 31, 2010, does hereby certify:
FIRST: That Article
FIRST of the Certificate of Incorporation of the Corporation be amended to read as follows:
“FIRST: The name of the
corporation is La Senza, Inc.”
SECOND: That no directors and officers of the Corporation have been appointed and the Corporation has
not received any payment for any of its stock.
THIRD: That the aforesaid amendment was duly adopted in accordance with the provisions of
Section 241 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, I have signed this Certificate of Amendment
as of the 8
th
day of April, 2010.
|
|
|
/s/ Ted B. Hipsher
|
|
Ted B. Hipsher, Incorporator
|
Exhibit 3.22
LA SENZA, INC.
BYLAWS
ARTICLE I - STOCKHOLDERS
Section 1. Annual Meeting
.
An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place within or without the State of Delaware, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within 13 months subsequent to
the later of the date of incorporation or the last annual meeting of stockholders or the last action by written consent to elect directors in lieu of an annual meeting.
Section 2. Special Meetings
.
Special meetings of the stockholders may be called for such purpose or purposes, on such date, at such time, and be held at such place within
or without the State of Delaware, as shall be prescribed in the notice of the meeting by the president, or in case of the president’s death, absence or disability, the vice president, if any, authorized to exercise the authority of the
president or a majority of the Board of Directors acting with or without a meeting; provided, that if and to the extent that any special meeting of stockholders may be called by any other person or persons specified in any provision of the
certificate of incorporation or any amendment thereto or any certificate filed under Section 151(g) of the Delaware General Corporation Law (or its successor statute as in effect from time to time), then such special meeting may also be called
by the person or persons, in the manner, at the times and for the purposes so specified.
Section 3. Notice of Meetings
.
3.1. Written notice of the place, date, and time of all meetings of the stockholders shall be given, not less than 10 nor more than 60 days
before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here or hereinafter, as required from time to time by the Delaware General
Corporation Law or the certificate of incorporation).
3.2. When a meeting is adjourned to another place, date or time, written notice need
not be given of the adjourned meeting if the place, date, and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30 days after the date for which the
meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be
transacted which might have been transacted at the original meeting.
Section 4. Quorum
.
4.1. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present
in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law.
4.2. If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of the stock entitled
to vote who are present, in person or by proxy, may adjourn the meeting to another place, date, or time.
4.3. If a notice of any adjourned
special meeting of stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present constituting a quorum, then except as otherwise required by law, those present at such adjourned meeting shall
constitute a quorum, and all matters shall be determined by a majority of the votes cast at such meeting.
Section 5.
Organization
.
At each meeting of the stockholders, the president, or, in his/her absence, any vice president, or, in the absence of
the president and all vice presidents, a chairman chosen by a majority in interest of the stockholders present in person or by proxy and entitled to vote, shall act as chairman, and the secretary of the corporation, or, if the secretary of the
corporation not be present, the assistant secretary, or if the secretary and the assistant secretary not be present, any person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting.
Section 6. Conduct of Business
.
The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting including such regulation of
the manner of voting and the conduct of discussion as seem to him/her in order.
Section 7. Proxies and Voting
.
7.1. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in
writing filed in accordance with the procedure established for the meeting.
7.2. Each stockholder shall have one vote for every share of
stock entitled to vote which is registered in his name on the record date for the meeting, except as otherwise provided herein or required by law.
7.3. All voting, except on the election of directors and where otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be
required under the procedure established for the meeting. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.
7.4. All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast.
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Section 8. Stock List
.
8.1. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock
and showing the address of each such stockholder and the number of shares registered in his name, shall be open to the examination of any such stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at
least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held.
8.2. The stock list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the examination of any
such stockholder who is present. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
Section 9. Voting by Written Consent
.
Any action which may be taken by the stockholders at an annual or special meeting may be taken without a meeting, without prior notice and
without a vote, if stockholders holding the minimum number of votes necessary to take such action shall sign a consent in writing setting forth such action; provided, however, that copies of such written consents shall be filed with the minutes of
the proceedings of the stockholders and that prompt notice of the taking of any such corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented thereto in writing and who, if
the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to
the corporation.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Number and Term of Office; Vacancies
.
The number of directors who shall constitute the whole board shall be such number as the stockholders shall at the time have designated, except
that in the absence of any such designation, such number shall be two. Each director shall be elected for a term of one year and until his successor is elected and qualified, except as otherwise provided herein or required by law. Only stockholders
shall have the power to increase or decrease the number of directors. If the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, the majority of the remaining directors, although less than
a quorum, by action at a meeting or by written consent, may elect a successor for the unexpired term.
Section 2.
Resignations
.
Any director of the corporation may resign at any time by giving written notice to the president or the secretary of the
corporation. Such resignation shall take effect at the time specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
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Section 3. Removal
.
Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
Section 4. Regular Meetings
.
Regular meetings of the Board of Directors shall be held at such place or places within or without the State of Delaware, on such date or
dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.
Section 5. Special Meetings
.
Special meetings of the Board of Directors may be called by two-thirds of the directors then in office or by the chief executive officer and
shall be held at such place, on such date, and at such time as they or he/she shall fix. Notice of the place, date, and time of each such special meeting shall be given each director, by whom it is not waived, by mailing written notice not less than
three days before the meeting or by telegraphing the same not less than eighteen hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section 6. Quorum
.
At any meeting of the Board of Directors, a majority of the whole board shall constitute a quorum for all purposes. If a quorum shall fail to
attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof.
Section 7. Participation in Meetings By Conference Telephone
.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 8. Conduct of Business
.
At any meeting of the Board of Directors, business shall be transacted in such order and manner as the board may from time to time determine,
and all board action shall require the affirmative vote of all of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.
Section 9.
Powers
.
The Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as
may be exercised or done by the corporation, except such powers and such acts and things as are deserved in the certificate of incorporation or in these bylaws to the stockholders.
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Section 10. Compensation of Directors
.
Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of committees of the directors.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors
.
The Board of Directors may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who
may replace any absent or disqualified member at any meeting of the committee. Any such committee shall, to the extent provided by resolution of the Board of Directors, have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority of the Board of Directors in
reference to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law to be submitted to the stockholders for approval or (ii) adopting, amending or
repealing any bylaw of the corporation. In the absence or disqualification of any member of any committee and any alternate member in his place, the member or members of the committee present at the meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.
Section 2. Conduct of Business
.
Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; a majority of the members shall constitute a quorum; and all matters shall be determined by the affirmative vote of the members
present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee.
ARTICLE IV - OFFICERS
Section 1. General Provisions
.
The officers of the corporation shall be the president, such number of vice-presidents as the board may from time to time determine, a
secretary and a treasurer. Any person may hold any two or more offices and perform the duties thereof, except the offices of president and vice-president. If one person is chosen to hold the offices of secretary and treasurer, he shall be known as
secretary-treasurer of the corporation. All the duties and obligations assigned to, and all references made to both the secretary and the treasurer in these bylaws, shall apply to the secretary-treasurer, if one person be elected to both of these
offices.
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Section 2. Election, Terms of Office, and Qualification
.
The officers of the corporation named in Section 1 of this Article IV shall be elected by the Board of Directors or, alternatively, by the
stockholders of the corporation, for an indeterminate term and shall hold office during the pleasure of the Board of Directors, or in the event the officers are elected by the stockholders, they shall hold office during the pleasure of the
stockholders.
Section 3. Additional Officers, Agents, etc.
In addition to the officers mentioned in Section 1 of this Article IV, the corporation may have such other officers or agents as the Board
of Directors or the stockholders may deem necessary and may appoint, each of whom or each member of which shall hold office for such period, have such authority and perform such duties as may be provided in these bylaws or as the Board of Directors
or the stockholders may from time to time determine. The Board of Directors or the stockholders may delegate to any officer the power to appoint any subordinate officers or agents. In the absence of any officer of the corporation, or for any other
reason the Board of Directors or the stockholders may deem sufficient, the Board of Directors or the stockholders may delegate, for the time being, the powers and duties, or any of them, of such officer to any other officer, or to any directors.
Section 4. Removal
.
Any officer of the corporation may be removed, either with or without cause, at any time, by resolution adopted by the Board of Directors or
the stockholders at any meeting, the notice (or waivers of notice) of which shall have specified that such removal action was to be considered. Any officer appointed not by the Board of Directors or the stockholders but by an officer or committee to
which the Board of Directors or the stockholders shall have delegated the power of appointment may be removed, without or without cause, by the committee or superior officer (including successors) who made the appointment, or by any committee or
officer upon whom such power of removal may be conferred by the Board of Directors or the stockholders.
Section 5.
Resignations
.
Any officer may resign at any time by giving written notice to the Board of Directors, the president or the secretary of
the corporation. Any such resignation shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 6. Vacancies
A vacancy in any office because of death, resignation, removal, disqualification or otherwise, shall be filled in the manner prescribed in
these bylaws for regular appointments or elections to such office.
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ARTICLE V - DUTIES OF THE OFFICERS
Section 1. The President
The president shall be the chief executive officer of the corporation and shall have general supervision over the property, business and
affairs of the corporation and over its several officers, subject, however, to the control of the Board of Directors. The president shall, if present, preside at all meetings of the stockholders and of the Board of Directors. The president may sign,
with the secretary, treasurer or any other proper officer of the corporation thereunto authorized by the Board of Directors certificates for shares in the corporation. The president may sign, execute, and deliver in the name of the corporation all
deeds, mortgages, bonds, leases, contracts, or other instruments either when specially authorized by the Board of Directors or when required or deemed necessary or advisable by him/her in the ordinary conduct of the corporation’s normal
business, except in cases where the signing and execution thereof shall be expressly delegated by these bylaws to some other officer or agent of the corporation or shall be required by law or otherwise to be signed or executed by some other officer
or agent, and he/she may cause the seal of the corporation, if any, to be affixed to any instrument requiring the same.
Section 2. Vice-Presidents
.
The vice-presidents shall perform such duties as are conferred upon them by these bylaws or as may from time to time be assigned to them by the
Board of Directors or the president. In the absence or disability of the president, the vice-president designed by the Board of Directors shall perform all the duties of the president, and when so acting, shall have all the powers of the president.
The authority of vice-presidents to sign in the name of the corporation all certificates for shares and authorized deeds, mortgages, leases, bonds, contracts, notes and other instruments, shall be coordinate with like authority of the president.
Section 3. The Treasurer
.
The treasurer shall be the custodian of all funds and securities of the corporation. Whenever so directed by the Board of Directors, he shall
render a statement of the cash and other accounts of the corporation, and he shall cause to be entered regularly in the books and records of the corporation to be kept for such purpose full and accurate accounts of the corporation’s receipts
and disbursements. He shall have such other powers and shall perform such other duties as may from time to time be assigned to him by the Board of Directors.
Section 4. The Secretary
.
The secretary shall record and keep the minutes of all meetings of the stockholders and the Board of Directors in a book to be kept for that
purpose. He shall be the custodian of, and shall make or cause to be made the proper entries in, the minute book of the corporation and such other books and records as the Board of Directors may direct. He shall be the custodian of the seal of the
corporation, if any, and shall affix such seal to such contracts, instruments and other documents as the Board of Directors or any committee thereof may direct. He shall have such other powers and shall perform such other duties as may from time to
time be assigned to him by the Board of Directors.
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ARTICLE VI - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification
The corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, or pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he, his testator, or intestate is or was a director or officer of the corporation, or is or was serving at the request of the
corporation as 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), judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred by him/her 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 the State of Delaware as they may exist from time to time.
Section 2. Insurance
.
The proper officers of the corporation, 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 the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent for another corporation, partnership, joint
venture, trusts or other enterprise, against any liability.
Section 3. ERISA
.
To assure indemnification under this provision of all such persons who are or were “fiduciaries” of an employee benefit plan governed
by the Act of the United States Congress entitled “Employee Retirement Income Security Act of 1974”, as amended from time to time (“ERISA”), the provisions of this Article VI shall, except as limited by Section 410 of ERISA,
for the purposes hereof, be interpreted as follows: an “other enterprise” shall be deemed to include an employee benefit plan; the corporation shall be deemed to have requested a person to serve as a director, officer, employee or agent of
an employee benefit plan where the performance of such person of his duties to the corporation also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on
a person with respect to an employee benefit plan pursuant to ERISA shall be deemed “fines”; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose
reasonably believed by such person to be in compliance with ERISA and the terms of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the corporation.
Section 4. Contractual Nature
.
The foregoing provision of this Article VI shall be deemed to be a contract between the corporation and each director and officer who serves in
such capacity at any time while this Section 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 when 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.
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Section 5. Construction
.
For the purposes of this Article VI, references to “the corporation” include in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director or officer of such constituent corporation or is or was serving at the request of such constituent corporation 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 shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he/she would have with respect to such
constituent corporation if its separate existence had continued.
Section 6. Non-Exclusive
.
The corporation 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 he/she reasonably believed to be in, or not opposed to, the best interests of the corporation.
ARTICLE VII - STOCK
Section 1. Certificates of Stock
.
Each stockholder shall be entitled to a certificate signed by, or in the name of the corporation by the president or a vice-president, and by
the secretary or an assistant secretary, or the treasurer or an assistant treasurer, certifying the number of shares owned by him. Any or all of the signatures on the certificate may be facsimile.
Section 2. Transfers of Stock
.
Transfers of stock shall be made only upon the transfer books of the corporation kept at an office of the corporation or by transfer agents
designated to transfer shares of the stock of the corporation. Except where a certificate is issued in accordance with Section 4 of Article VII of these bylaws, an outstanding certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued therefor.
Section 3. Record Date
.
The Board of Directors may fix a record date, which shall not be more than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for any other action hereinafter described, as of which there shall be determined the stockholders who are entitled: to notice of or to vote at any meeting of stockholders or any adjournment
thereof, to express consent to corporate action in writing without a meeting; to receive payment of any dividend or other distribution or allotment of any rights; or to exercise any rights with respect to any change, conversion or exchange of stock
or with respect to any other lawful action.
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Section 4. Lost, Stolen or Destroyed Certificates
.
In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations
.
The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors
may establish.
ARTICLE VIII - NOTICES
Section 1. Notices
.
Whenever notice is required to be given to any stockholder, director, officer, or agent, such requirement shall not be construed to mean
personal notice. Such notice may in every instance be effectively given by depositing a writing in a post office or letter box, in a postpaid, sealed wrapper, or by dispatching a prepaid telegram, addressed to such stockholder, director, officer, or
agent at his or her address as the same appears on the books of the corporation. The time when such notice is dispatched shall be the time of the giving of the notice.
Section 2. Waivers
.
A written waiver of any notice, signed by a stockholder, director, officer, or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE IV - MISCELLANEOUS
Section 1. Facsimile Signatures
.
In addition to the provisions for the use of facsimile signatures elsewhere specifically authorized in these bylaws, facsimile signatures of
any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal
.
The Board of Directors may provide a suitable seal, containing the name of the corporation, which seal shall be in the charge of the secretary.
If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the treasurer or by the assistant secretary or assistant treasurer.
Section 3. Reliance upon Books, Reports and Records
.
Each director, each member of any committee designated by the Board of Directors, and each officer of the corporation shall, in the performance
of his duties, be fully protected in relying in good faith upon the books of account or other records of the corporation, including reports made to the corporation by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
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Section 4. Fiscal Year
.
The fiscal year of the corporation shall be the 52-53 week period ending on the Saturday nearest the last day of January and the next
succeeding fiscal year shall begin on the Sunday following such Saturday.
Section 5. Time Periods
.
In applying any provision of these bylaws which require that an act be done or not done a specified number of days prior to an event or that an
act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
Section 6. Depositaries and Signatories
.
The president and the treasurer of the corporation are each authorized to designate depositaries for the funds of the corporation deposited in
its name and the signatories and conditions with respect thereto in each case, and from time to time, to change such depositaries, signatories and conditions, with the same force and effect as if each such depositary, the signatories and conditions
with respect thereto and changes therein had been specifically designated or authorized by the Board of Directors; and each depositary designated by the Board of Directors or by the president or treasurer of the corporation, shall be entitled to
rely upon the certificate of the secretary and any assistant secretary of the corporation setting forth the fact of such designation and of the appointment of the officers of the corporation or of both or of other persons who are to be signatories
with respect to the withdrawal of funds deposited with such depositary, or from time to time the fact of any change in any depositary or in the signatories with respect thereto.
Section 7. Execution of Instruments Generally
.
In addition to the powers conferred upon the president in Article V, Section 1 and except as otherwise provided in Section 6 of this
Article IX, all contracts and other instruments entered into in the ordinary course of business requiring execution by the corporation may be executed and delivered by any vice president or the treasurer and authority to sign any such contracts or
instruments, which may be general or confined to specific instances, may be conferred by the Board of Directors upon any other person or persons. Any person having authority to sign on behalf of the corporation may delegate, from time to time, by
instrument in writing, all or any part of such authority to any person or persons if authorized so to do by the Board of Directors.
Section 8. Voting Securities of Other Corporations
.
Unless otherwise directed by the Board of Directors, the president and any vice president of the corporation shall have the power to vote and
otherwise act on behalf of the corporation, in person or by proxy, at any meeting, or with respect to any action, of stockholders of any other corporation in which this corporation may hold securities and otherwise to exercise any and all rights and
powers which this corporation may possess by reason of its ownership of securities in such other corporation.
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Exhibit 3.23
CERTIFICATE OF INCORPORATION
OF
MAST INDUSTRIES, INC.
The undersigned, in order to form a corporation, effective as of 11:29 p.m., Eastern Standard Time, on January 29, 2011,
pursuant to the General Corporation Law of the State of Delaware, does hereby certify as follows:
FIRST
. The name of the
corporation is Mast Industries, Inc.
SECOND
. The address of the registered office of the corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle. The name of its registered agent at that address is The Corporation Trust Company.
THIRD
. The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH
. The total number of shares of stock which the corporation is authorized
to issue is One Thousand (1,000) shares of Common Stock having a par value of $0.10 per share.
FIFTH
. Elections of directors
at an annual meeting or a special meeting of stockholders need not be by written ballot unless the bylaws of the corporation shall otherwise provide. The number of directors of the corporation which shall constitute the whole board of directors
shall be such as from time to time shall be fixed by or in the manner provided in the bylaws of the corporation.
SIXTH
. In
furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized to make, repeal, alter, amend and rescind the bylaws of the corporation.
SEVENTH
: A director of the corporation shall not be personally liable to the corporation 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 corporation 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 General Corporation Law of the State of Delaware or (iv) for any transaction from which the director derives an improper personal benefit. If the General
Corporation Law of the State of Delaware is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law of the State of Delaware, as so amended.
EIGHTH
: A director or officer of the
corporation shall not be disqualified by his/her office from dealing or contracting with the corporation as a vendor, purchaser, employee, agent, or otherwise. No transaction, contract or act of the corporation shall be void or voidable or in any
way affected or invalidated by reason of the fact that any director or officer of the corporation is a member of any firm, a stockholder, a director or an officer of any corporation or a trustee or a
beneficiary of any trust that is in any way interested in such transaction, contract, or act. No director or
officer shall be accountable or responsible to the corporation for or in respect to any transaction, contract or act of the corporation or for any gain or profit directly or indirectly realized by him/her by reason of the fact that he/she or any
firm in which he/she is a member or any corporation of which he/she is a stockholder, a director or an officer, or any trust of which he/she is a trustee or a beneficiary, is interested in such transaction, contract or act; provided the fact that
such director or officer or such firm, corporation, trustee or beneficiary of such trust, is so interested shall have been disclosed or shall have been known to the members of the board of directors as shall be present at any meeting at which action
upon such contract, transaction or act shall have been taken and the board of directors in good faith authorizes the transaction, contract or act by the affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum. Any director may be counted in determining the existence of a quorum at any meeting of the board of directors which shall authorize or take action in respect to any such contract, transaction or act, and may vote
thereat to authorize, ratify or approve any such contract, transaction or act, and any officer of the corporation may take any action within the scope of his/her authority, respecting such contract, transaction or act with like force and effect as
if he/she or any firm of which he/she is a member, or any corporation of which he/she is a stockholder, a director or an officer, or any trust of which he/she is a trustee or beneficiary, were not interested in such transaction, contract or act.
Without limiting or qualifying the foregoing, if in any judicial or other inquiry, suit, cause or proceeding, the question of whether a director or officer of the corporation has acted in good faith is material, and notwithstanding any statute or
rule of law or equity to the contrary (if any there be) his/her good faith shall be presumed in the absence of proof to the contrary by clear and convincing evidence.
NINTH
: Whenever a compromise or arrangement is proposed between the corporation and its creditors or any class of them and/or between
the corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the corporation or of any creditor or stockholder thereof or on the application
of any receiver or receivers appointed for the corporation under the provisions of Section 291 of the General Corporation Law of the State of Delaware or on the application of trustees in dissolution or of any receiver or receivers appointed
for the corporation under the provisions of Section 279 of the General Corporation Law of the State of Delaware, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the corporation, as
the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the corporation, as
the case may be, agree to any compromise or arrangement and to any reorganization of the corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganizaton shall, if sanctioned by the court
to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the corporation, as the case may be, and also on the corporation.
TENTH
. The corporation reserves the right to amend and repeal any provision contained in this certificate of incorporation in the
manner prescribed by the laws of the State of Delaware. All rights herein conferred are granted subject to this reservation.
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ELEVENTH
. The incorporator is Luis F. Machado, whose mailing address is c/o Limited Brands
Service Company, LLC, Three Limited Parkway, Columbus, Ohio 43230.
I, the undersigned incorporator, for the purpose of forming a
corporation under the laws of the State of Delaware do make, file and record this Certificate of Incorporation, do certify that the facts herein stated are true, and, accordingly, have hereunto set my hand as of January 25, 2011.
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/s/ Luis F. Machado
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Luis F. Machado, Incorporator
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Exhibit 3.24
MAST INDUSTRIES, INC.
BYLAWS
ARTICLE I -
STOCKHOLDERS
Section 1. Annual Meeting
.
An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place within or without the State of Delaware, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within 13 months subsequent to
the later of the date of incorporation or the last annual meeting of stockholders or the last action by written consent to elect directors in lieu of an annual meeting.
Section 2. Special Meetings
.
Special meetings of the stockholders may be called for such purpose or purposes, on such date, at such time, and be held at such place within
or without the State of Delaware, as shall be prescribed in the notice of the meeting by the president, or in case of the president’s death, absence or disability, the vice president, if any, authorized to exercise the authority of the
president or a majority of the Board of Directors acting with or without a meeting; provided, that if and to the extent that any special meeting of stockholders may be called by any other person or persons specified in any provision of the
certificate of incorporation or any amendment thereto or any certificate filed under Section 151(g) of the Delaware General Corporation Law (or its successor statute as in effect from time to time), then such special meeting may also be called
by the person or persons, in the manner, at the times and for the purposes so specified.
Section 3. Notice of Meetings
.
3.1. Written notice of the place, date, and time of all meetings of the stockholders shall be given, not less than 10 nor more than 60 days
before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here or hereinafter, as required from time to time by the Delaware General
Corporation Law or the certificate of incorporation).
3.2. When a meeting is adjourned to another place, date or time, written notice need
not be given of the adjourned meeting if the place, date, and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30 days after the date for which the
meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be
transacted which might have been transacted at the original meeting.
Section 4. Quorum
.
4.1. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present
in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law.
4.2. If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of the stock entitled
to vote who are present, in person or by proxy, may adjourn the meeting to another place, date, or time.
4.3. If a notice of any adjourned
special meeting of stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present constituting a quorum, then except as otherwise required by law, those present at such adjourned meeting shall
constitute a quorum, and all matters shall be determined by a majority of the votes cast at such meeting.
Section 5.
Organization
.
At each meeting of the stockholders, the president, or, in his/her absence, any vice president, or, in the absence of
the president and all vice presidents, a chairman chosen by a majority in interest of the stockholders present in person or by proxy and entitled to vote, shall act as chairman, and the secretary of the corporation, or, if the secretary of the
corporation not be present, the assistant secretary, or if the secretary and the assistant secretary not be present, any person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting.
Section 6. Conduct of Business
.
The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting including such regulation of
the manner of voting and the conduct of discussion as seem to him/her in order.
Section 7. Proxies and Voting
.
7.1. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in
writing filed in accordance with the procedure established for the meeting.
7.2. Each stockholder shall have one vote for every share of
stock entitled to vote which is registered in such stockholder’s name on the record date for the meeting, except as otherwise provided herein or required by law.
7.3. All voting, except on the election of directors and where otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or such stockholder’s proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.
7.4. All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast.
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Section 8. Stock List
.
8.1. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock
and showing the address of each such stockholder and the number of shares registered in such stockholder’s name, shall be open to the examination of any such stockholder, for any purpose germane to the meeting, during ordinary business hours
for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be
held.
8.2. The stock list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the
examination of any such stockholder who is present. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
Section 9. Voting by Written Consent
.
Any action which may be taken by the stockholders at an annual or special meeting may be taken without a meeting, without prior notice and
without a vote, if stockholders holding the minimum number of votes necessary to take such action shall sign a consent in writing setting forth such action; provided, however, that copies of such written consents shall be filed with the minutes of
the proceedings of the stockholders and that prompt notice of the taking of any such corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented thereto in writing and who, if
the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to
the corporation.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Number and Term of Office; Vacancies
.
The number of directors who shall constitute the whole Board of Directors shall be such number as the stockholders shall at the time have
designated, except that in the absence of any such designation, such number shall be two. Each director shall be elected for a term of one year and until his/her successor is elected and qualified, except as otherwise provided herein or required by
law. Only stockholders shall have the power to increase or decrease the number of directors. If the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, the majority of the remaining
directors, although less than a quorum, by action at a meeting or by written consent, may elect a successor for the unexpired term.
Section 2. Resignations
.
Any director of the corporation may resign at any time by giving written notice to the president or the secretary of the corporation. Such
resignation shall take effect at the time specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
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Section 3. Removal
.
Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
Section 4. Regular Meetings
.
Regular meetings of the Board of Directors shall be held at such place or places within or without the State of Delaware, on such date or
dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.
Section 5. Special Meetings
.
Special meetings of the Board of Directors may be called by two-thirds of the directors then in office or by the chief executive officer and
shall be held at such place, on such date, and at such time as they or he/she shall fix. Notice of the place, date, and time of each such special meeting shall be given each director, by whom it is not waived, by mailing written notice not less than
three days before the meeting or by telegraphing the same not less than eighteen hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section 6. Quorum
.
At any meeting of the Board of Directors, a majority of the whole Board shall constitute a quorum for all purposes. If a quorum shall fail to
attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof.
Section 7. Participation in Meetings By Conference Telephone
.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 8. Conduct of Business
.
At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board may from time to time determine,
and all Board action shall require the affirmative vote of all of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.
Section 9.
Powers
.
The Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as
may be exercised or done by the corporation, except such powers and such acts and things as are deserved in the certificate of incorporation or in these bylaws to the stockholders.
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Section 10. Compensation of Directors
.
Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of committees of the directors.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors
.
The Board of Directors may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who
may replace any absent or disqualified member at any meeting of the committee. Any such committee shall, to the extent provided by resolution of the Board of Directors, have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority of the Board of Directors in
reference to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law to be submitted to the stockholders for approval or (ii) adopting, amending or
repealing any bylaw of the corporation. In the absence or disqualification of any member of any committee and any alternate member in his/her place, the member or members of the committee present at the meeting and not disqualified from voting,
whether or not he/she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.
Section 2. Conduct of Business
.
Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; a majority of the members shall constitute a quorum; and all matters shall be determined by the affirmative vote of the members
present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee.
ARTICLE IV - OFFICERS
Section 1. General Provisions
.
The officers of the corporation shall be the president, such number of vice-presidents as the board may from time to time determine, a
secretary and a treasurer. Any person may hold any two or more offices and perform the duties thereof, except the offices of president and vice-president. If one person is chosen to hold the offices of secretary and treasurer, he/she shall be known
as secretary-treasurer of the corporation. All the duties and obligations assigned to, and all references made to both the secretary and the treasurer in these bylaws, shall apply to the secretary-treasurer, if one person be elected to both of these
offices.
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Section 2. Election, Terms of Office, and Qualification
.
The officers of the corporation named in Section 1 of this Article IV shall be elected by the Board of Directors or, alternatively, by the
stockholders of the corporation, for an indeterminate term and shall hold office during the pleasure of the Board of Directors, or in the event the officers are elected by the stockholders, they shall hold office during the pleasure of the
stockholders.
Section 3. Additional Officers, Agents, etc.
In addition to the officers mentioned in Section 1 of this Article IV, the corporation may have such other officers or agents as the Board
of Directors or the stockholders may deem necessary and may appoint, each of whom or each member of which shall hold office for such period, have such authority and perform such duties as may be provided in these bylaws or as the Board of Directors
or the stockholders may from time to time determine. The Board of Directors or the stockholders may delegate to any officer the power to appoint any subordinate officers or agents. In the absence of any officer of the corporation, or for any other
reason the Board of Directors or the stockholders may deem sufficient, the Board of Directors or the stockholders may delegate, for the time being, the powers and duties, or any of them, of such officer to any other officer, or to any directors.
Section 4. Removal
.
Any officer of the corporation may be removed, either with or without cause, at any time, by resolution adopted by the Board of Directors or
the stockholders at any meeting, the notice (or waivers of notice) of which shall have specified that such removal action was to be considered. Any officer appointed not by the Board of Directors or the stockholders but by an officer or committee to
which the Board of Directors or the stockholders shall have delegated the power of appointment may be removed, without or without cause, by the committee or superior officer (including successors) who made the appointment, or by any committee or
officer upon whom such power of removal may be conferred by the Board of Directors or the stockholders.
Section 5.
Resignations
.
Any officer may resign at any time by giving written notice to the Board of Directors, the president or the secretary of
the corporation. Any such resignation shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 6. Vacancies
.
A vacancy in any office because of death, resignation, removal, disqualification or otherwise, shall be filled in the manner prescribed in
these bylaws for regular appointments or elections to such office.
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ARTICLE V - DUTIES OF THE OFFICERS
Section 1. The President
.
The president shall be the chief executive officer of the corporation and shall have general supervision over the property, business and
affairs of the corporation and over its several officers, subject, however, to the control of the Board of Directors. The president shall, if present, preside at all meetings of the stockholders and of the Board of Directors. The president may sign,
with the secretary, treasurer or any other proper officer of the corporation thereunto authorized by the Board of Directors certificates for shares in the corporation. The president may sign, execute, and deliver in the name of the corporation all
deeds, mortgages, bonds, leases, contracts, or other instruments either when specially authorized by the Board of Directors or when required or deemed necessary or advisable by him/her in the ordinary conduct of the corporation’s normal
business, except in cases where the signing and execution thereof shall be expressly delegated by these bylaws to some other officer or agent of the corporation or shall be required by law or otherwise to be signed or executed by some other officer
or agent, and he/she may cause the seal of the corporation, if any, to be affixed to any instrument requiring the same.
Section 2. Vice-Presidents
.
The vice-presidents shall perform such duties as are conferred upon them by these bylaws or as may from time to time be assigned to them by the
Board of Directors or the president. In the absence or disability of the president, the vice-president designated by the Board of Directors shall perform all the duties of the president, and when so acting, shall have all the powers of the
president. The authority of vice-presidents to sign in the name of the corporation all certificates for shares and authorized deeds, mortgages, leases, bonds, contracts, notes and other instruments, shall be coordinate with like authority of the
president.
Section 3. The Treasurer
.
The treasurer shall be the custodian of all funds and securities of the corporation. Whenever so directed by the Board of Directors, he/she
shall render a statement of the cash and other accounts of the corporation, and he/she shall cause to be entered regularly in the books and records of the corporation to be kept for such purpose full and accurate accounts of the corporation’s
receipts and disbursements. He/she shall have such other powers and shall perform such other duties as may from time to time be assigned to him/her by the Board of Directors.
Section 4. The Secretary
.
The secretary shall record and keep the minutes of all meetings of the stockholders and the Board of Directors in a book to be kept for that
purpose. He/she shall be the custodian of, and shall make or cause to be made the proper entries in, the minute book of the corporation and such other books and records as the Board of Directors may direct. He/she shall be the custodian of the seal
of the corporation, if any, and shall affix such seal to such contracts, instruments and other documents as the Board of Directors or any committee thereof may direct. He/she shall have such other powers and shall perform such other duties as may
from time to time be assigned to him/her by the Board of Directors.
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ARTICLE VI - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification
.
The corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, or pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he/she, his/her testator, or intestate is or was a director or officer of the corporation, or is or was serving at the request
of the corporation as 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),
judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him/her 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 the State of Delaware as they may exist from time to time.
Section 2.
Insurance
.
The proper officers of the corporation, 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 the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent for another
corporation, partnership, joint venture, trusts or other enterprise, against any liability.
Section 3. ERISA
.
To assure indemnification under this provision of all such persons who are or were “fiduciaries” of an employee benefit plan governed
by the Act of the United States Congress entitled “Employee Retirement Income Security Act of 1974”, as amended from time to time (“ERISA”), the provisions of this Article VI shall, except as limited by Section 410 of ERISA,
for the purposes hereof, be interpreted as follows: an “other enterprise” shall be deemed to include an employee benefit plan; the corporation shall be deemed to have requested a person to serve as a director, officer, employee or agent of
an employee benefit plan where the performance of such person of his/her duties to the corporation also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed
on a person with respect to an employee benefit plan pursuant to ERISA shall be deemed “fines”; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose
reasonably believed by such person to be in compliance with ERISA and the terms of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the corporation.
Section 4. Contractual Nature
.
The foregoing provision of this Article VI shall be deemed to be a contract between the corporation and each director and officer who serves in
such capacity at any time while this Section 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 when 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.
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Section 5. Construction
.
For the purposes of this Article VI, references to “the corporation” include in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director or officer of such constituent corporation or is or was serving at the request of such constituent corporation 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 shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he/she would have with respect to such
constituent corporation if its separate existence had continued.
Section 6. Non-Exclusive
.
The corporation 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 he/she reasonably believed to be in, or not opposed to, the best interests of the corporation.
ARTICLE VII - STOCK
Section 1. Certificates of Stock
.
Each stockholder shall be entitled to a certificate signed by, or in the name of the corporation by the president or a vice-president, and by
the secretary or an assistant secretary, or the treasurer or an assistant treasurer, certifying the number of shares owned by such stockholder. Any or all of the signatures on the certificate may be facsimile.
Section 2. Transfers of Stock
.
Transfers of stock shall be made only upon the transfer books of the corporation kept at an office of the corporation or by transfer agents
designated to transfer shares of the stock of the corporation. Except where a certificate is issued in accordance with Section 4 of Article VII of these bylaws, an outstanding certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued therefor.
Section 3. Record Date
.
The Board of Directors may fix a record date, which shall not be more than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for any other action hereinafter described, as of which there shall be determined the stockholders who are entitled: to notice of or to vote at any meeting of stockholders or any adjournment
thereof, to express consent to corporate action in writing without a meeting; to receive payment of any dividend or other distribution or allotment of any rights; or to exercise any rights with respect to any change, conversion or exchange of stock
or with respect to any other lawful action.
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Section 4. Lost, Stolen or Destroyed Certificates
.
In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations
.
The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors
may establish.
ARTICLE VIII - NOTICES
Section 1. Notices
.
Whenever notice is required to be given to any stockholder, director, officer, or agent, such requirement shall not be construed to mean
personal notice. Such notice may in every instance be effectively given by depositing a writing in a post office or letter box, in a postpaid, sealed wrapper, or by dispatching a prepaid telegram, addressed to such stockholder, director, officer, or
agent at his/her address as the same appears on the books of the corporation. The time when such notice is dispatched shall be the time of the giving of the notice.
Section 2. Waivers
.
A written waiver of any notice, signed by a stockholder, director, officer, or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE IX - MISCELLANEOUS
Section 1. Facsimile Signatures
.
In addition to the provisions for the use of facsimile signatures elsewhere specifically authorized in these bylaws, facsimile signatures of
any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal
.
The Board of Directors may provide a suitable seal, containing the name of the corporation, which seal shall be in the charge of the secretary.
If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the treasurer or by the assistant secretary or assistant treasurer.
Section 3. Reliance upon Books, Reports and Records
.
Each director, each member of any committee designated by the Board of Directors, and each officer of the corporation shall, in the performance
of his/her duties, be fully protected in relying in good faith upon the books of account or other records of the corporation, including reports made to the corporation by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
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Section 4. Fiscal Year
.
The fiscal year of the corporation shall be the 52-53 week period ending on the Saturday nearest the last day of January and the next
succeeding fiscal year shall begin on the Sunday following such Saturday.
Section 5. Time Periods
.
In applying any provision of these bylaws which require that an act be done or not done a specified number of days prior to an event or that an
act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
Section 6. Depositaries and Signatories
.
The president and the treasurer of the corporation are each authorized to designate depositaries for the funds of the corporation deposited in
its name and the signatories and conditions with respect thereto in each case, and from time to time, to change such depositaries, signatories and conditions, with the same force and effect as if each such depositary, the signatories and conditions
with respect thereto and changes therein had been specifically designated or authorized by the Board of Directors; and each depositary designated by the Board of Directors or by the president or treasurer of the corporation, shall be entitled to
rely upon the certificate of the secretary and any assistant secretary of the corporation setting forth the fact of such designation and of the appointment of the officers of the corporation or of both or of other persons who are to be signatories
with respect to the withdrawal of funds deposited with such depositary, or from time to time the fact of any change in any depositary or in the signatories with respect thereto.
Section 7. Execution of Instruments Generally
.
In addition to the powers conferred upon the president in Article V, Section 1 and except as otherwise provided in Section 6 of this
Article IX, all contracts and other instruments entered into in the ordinary course of business requiring execution by the corporation may be executed and delivered by any vice president or the treasurer and authority to sign any such contracts or
instruments, which may be general or confined to specific instances, may be conferred by the Board of Directors upon any other person or persons. Any person having authority to sign on behalf of the corporation may delegate, from time to time, by
instrument in writing, all or any part of such authority to any person or persons if authorized so to do by the Board of Directors.
Section 8. Voting Securities of Other Corporations
.
Unless otherwise directed by the Board of Directors, the president and any vice president of the corporation shall have the power to vote and
otherwise act on behalf of the corporation, in person or by proxy, at any meeting, or with respect to any action, of stockholders of any other corporation in which this corporation may hold securities and otherwise to exercise any and all rights and
powers which this corporation may possess by reason of its ownership of securities in such other corporation.
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Exhibit 3.25
STATE OF DELAWARE
CERTIFICATE OF FORMATION
OF
VICTORIA’S
SECRET DIRECT BRAND MANAGEMENT, LLC
The undersigned, desiring to form a limited liability company under Title 6, Sections 18-101 et
seq. of the Delaware Code, hereby certifies as follows:
1. The name of the limited liability company is Victoria’s Secret Direct
Brand Management, LLC.
2. The address of the limited liability company’s registered office in the State of Delaware is: Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is the Corporation Trust Company.
3. This Certificate of Formation shall be effective at 11:50 p.m. on February 3, 2007.
4. The undersigned is an authorized representative of Victoria’s Secret Direct Brand Management, LLC for purposes of the execution and
delivery of this Certificate of Formation.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of
Victoria’s Secret Direct Brand Management, LLC, as of the 2nd day of February, 2007.
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/s/ Douglas L. Williams
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Douglas L. Williams,
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Authorized Representative
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Exhibit 3.26
VICTORIA’S SECRET DIRECT BRAND MANAGEMENT, LLC
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement’’), is dated as of February 2, 2007, to be effective as of 11:50
pm (EST) on February 3, 2007, by Victoria’s Secret Direct, LLC, a Delaware limited liability company (the “Member”);
W
I T N E S S E T H:
WHEREAS, the Member is the sole stockholder of Victoria’s Secret Direct Brand Management, Inc., a Delaware
corporation (“VSDBM’’); and
WHEREAS, in accordance with Section 266 of the Delaware General Corporation Law, the
Board of Directors of VSDBM and the Member, in its capacity as the sole stockholder of VSDBM, have authorized the conversion of VSDBM from a Delaware corporation to a Delaware limited liability company, which conversion is to be effective at 11:50
p.m. (EST) on February 3, 2007; and
WHEREAS, in compliance with Section 266 of the Delaware General Corporation Law and
Section 18-214 of the Delaware Limited Liability Company Act, Delaware Code Title 6, Chapter 18 (the “Act”), the Member intends to cause to be filed with the Delaware Secretary of State a Certificate of Formation in respect of
Victoria’s Secret Direct Brand Management, LLC, a limited liability company to be formed under the laws of the State of Delaware in connection with the conversion of VSDBM from a Delaware corporation to a Delaware limited liability company; and
·
WHEREAS, the Member desires to enter into this Agreement as to the affairs of the LLC and the conduct of its business, and the
Member intends that this Agreement constitute the “limited liability company agreement” of the LLC, within the meaning of that term as defined in the Act;
NOW, THEREFORE, it is agreed and stated as follows:
Section 1.
Formation; Member
. The Certificate of Formation of the LLC shall be substantially in the form of Exhibit A attached
hereto and made a part hereof (the “Certificate of Formation”). The Certificate of Formation shall be executed by the Member or an authorized representative of the Member. The Member hereby acknowledges and agrees that Douglas L. Williams
is an authorized representative to execute the Certificate of Formation of the LLC. The LLC shall be formed at the time specified in the Certificate of Formation, which is 11:50 p.m. (EST) on February 3, 2007. The Member hereby approves and
ratifies the completion, execution, delivery, recording and filing of the Certificate of Formation by Douglas L. Williams on behalf of the Member and the LLC. The Member shall be the sole “member’’ of the LLC, as defined in the Act.
Whether under this Agreement, under any other agreement or obligation by which the Company and/or the Member may be bound, or pursuant to applicable law, any action or inaction taken or omitted to be taken by or with the consent of the Member shall
bind the Company. The Member may delegate such power and authority, including without limitation, the delegation of such power and authority to persons appointed as officers of the LLC.
Section 2.
Term
. VSDBM shall be converted into the LLC effective at 11:50 p.m. (EST)
on February 3, 2007; provided, however, that pursuant to Section 18-214 of the Act, the existence of the LLC shall be deemed to have commenced on the date that VSDBM was incorporated under the Delaware General Corporation Law (which date
was January 26, 2005). The LLC shall continue in perpetuity, unless and until the Member consents in writing to dissolve the LLC. Upon dissolution, the LLC shall be wound up and terminated as provided in the Act, and the Member shall have the
authority to wind up the LLC. To the extent permitted by law, no event described in Section 18-304 of the Act (entitled “Events of Bankruptcy’’) involving the Member shall cause the Member to cease to be a member of the LLC, and
the provisions of Section 18-801 of the Act (entitled “Dissolution”) shall not apply to the LLC.
Section
3
.
Capital Contributions
. The Member shall determine the amounts, forms and timing of capital contributions required of the Member. The initial capitalization of the LLC shall consist of the assets and liabilities of VSDBM, the Delaware
corporation which converted into the LLC.
Section 4.
Tax Matters
. So long as the LLC has only one member, the LLC shall be
disregarded as an entity separate from its member, in accordance with Sections 301.7701-1, -.2 and -3 of the regulations promulgated under the Internal Revenue Code of 1986, as amended, and the provisions of Section 18-503 of the Act (entitled
“Allocation of Profits and Losses”) shall not apply to the LLC.
Section
5
.
Distributions
. Distributions
of cash or property under circumstances not involving the liquidation of the LLC, if any, shall be within the discretion of the Member as to amount, form and frequency, subject to Section 18-607 of the Act (entitled “Limitations on
Distribution”). Upon the liquidation of the LLC, the Member shall have power to liquidate or to distribute in kind any and all of the assets of the LLC, and the proceeds of any such liquidation shall be applied and distributed in accordance
with Section 18-804 of the Act (entitled “Distribution of Assets”).
Section 6.
General Provisions
.
(a)
No Third Party Beneficiaries
. None of the provisions of this Agreement shall be construed as existing for the benefit of any
creditor of the LLC or as being enforceable by any party not a signatory hereto. There shall be no third party beneficiaries of this Agreement.
(b)
Entire Agreement
. This Agreement constitutes the entire “limited liability company agreement” of the LLC within the
meaning of the Act and contains the entire understanding, agreement and statement of the Member upon the subject matter of this Agreement and may only be amended, changed or waived in a writing signed by the Member. The Member acknowledges that the
provisions of the Act shall govern the affairs of the LLC and the conduct of its business, except as provided in this Agreement.
(c)
Provisions Binding
. This Agreement shall inure to the benefit of and be binding upon the Member and the Member’s successors and assigns.
(d)
Applicable Law
. This Agreement shall be interpreted in accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of Victoria’s Secret
Stores Brand Management, Inc. (a Delaware corporation), the sole member of Victoria’s Secret Direct Holding, LLC (a Delaware limited liability company). which is the sole member of the Member, has duly executed this Limited Liability Company
Agreement of Victoria’s Secret Direct Brand Management, LLC on behalf of the Member, effective as of the time, date and year first above written.
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VICTORIA’S SECRET DIRECT, LLC (the “Member’)
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By:
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VICTORIA’S SECRET DIRECT HOLDING, LLC, Sole Member
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By:
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VICTORIA’S SECRET STORES BRAND
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MANAGEMENT, INC., Sole Member
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By:
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/s/ Douglas L. Williams
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Douglas L. Williams,
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Senior Vice President – Enterprise General Counsel
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Exhibit 3.27
CERTIFICATE OF INCORPORATION
OF
VICTORIA’S
SECRET STORES BRAND MANAGEMENT, INC.
The undersigned, in order to form a corporation, effective as of 11:29 p.m., Eastern Standard
Time, on January 29, 2011, pursuant to the General Corporation Law of the State of Delaware, does hereby certify as follows:
FIRST
. The name of the corporation is Victoria’s Secret Stores Brand Management, Inc.
SECOND
. The address of the registered office of the corporation in the State of Delaware is Corporation Trust Center, 1209 Orange
Street in the City of Wilmington, County of New Castle. The name of its registered agent at that address is The Corporation Trust Company.
THIRD
. The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH
. The total number of shares of stock which the corporation is authorized
to issue is One Thousand (1,000) shares of Common Stock having a par value of $0.10 per share.
FIFTH
. Elections of directors
at an annual meeting or a special meeting of stockholders need not be by written ballot unless the bylaws of the corporation shall otherwise provide. The number of directors of the corporation which shall constitute the whole board of directors
shall be such as from time to time shall be fixed by or in the manner provided in the bylaws of the corporation.
SIXTH
. In
furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized to make, repeal, alter, amend and rescind the bylaws of the corporation.
SEVENTH
: A director of the corporation shall not be personally liable to the corporation 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 corporation 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 General Corporation Law of the State of Delaware or (iv) for any transaction from which the director derives an improper personal benefit. If the General
Corporation Law of the State of Delaware is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law of the State of Delaware, as so amended.
EIGHTH
: A director or officer of the
corporation shall not be disqualified by his/her office from dealing or contracting with the corporation as a vendor, purchaser, employee, agent, or otherwise. No transaction, contract or act of the corporation shall be void or voidable or in any
way affected or invalidated by reason of the fact that any director or officer of the corporation is a member of any firm, a stockholder, a director or an officer of any corporation or a trustee or a
beneficiary of any trust that is in any way interested in such transaction, contract, or act. No director or officer shall be accountable or responsible to the corporation for or in respect to
any transaction, contract or act of the corporation or for any gain or profit directly or indirectly realized by him/her by reason of the fact that he/she or any firm in which he/she is a member or any corporation of which he/she is a stockholder, a
director or an officer, or any trust of which he/she is a trustee or a beneficiary, is interested in such transaction, contract or act; provided the fact that such director or officer or such firm, corporation, trustee or beneficiary of such trust,
is so interested shall have been disclosed or shall have been known to the members of the board of directors as shall be present at any meeting at which action upon such contract, transaction or act shall have been taken and the board of directors
in good faith authorizes the transaction, contract or act by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum. Any director may be counted in determining the existence
of a quorum at any meeting of the board of directors which shall authorize or take action in respect to any such contract, transaction or act, and may vote thereat to authorize, ratify or approve any such contract, transaction or act, and any
officer of the corporation may take any action within the scope of his/her authority, respecting such contract, transaction or act with like force and effect as if he/she or any firm of which he/she is a member, or any corporation of which he/she is
a stockholder, a director or an officer, or any trust of which he/she is a trustee or beneficiary, were not interested in such transaction, contract or act. Without limiting or qualifying the foregoing, if in any judicial or other inquiry, suit,
cause or proceeding, the question of whether a director or officer of the corporation has acted in good faith is material, and notwithstanding any statute or rule of law or equity to the contrary (if any there be) his/her good faith shall be
presumed in the absence of proof to the contrary by clear and convincing evidence.
NINTH
: Whenever a compromise or arrangement is
proposed between the corporation and its creditors or any class of them and/or between the corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary
way of the corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the corporation under the provisions of Section 291 of the General Corporation Law of the State of Delaware or on
the application of trustees in dissolution or of any receiver or receivers appointed for the corporation under the provisions of Section 279 of the General Corporation Law of the State of Delaware, order a meeting of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of the corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganizaton shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of
the corporation, as the case may be, and also on the corporation.
TENTH
. The corporation reserves the right to amend and repeal
any provision contained in this certificate of incorporation in the manner prescribed by the laws of the State of Delaware. All rights herein conferred are granted subject to this reservation.
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ELEVENTH
. The incorporator is Luis F. Machado, whose mailing address is c/o Limited Brands
Service Company, LLC, Three Limited Parkway, Columbus, Ohio 43230.
I, the undersigned incorporator, for the purpose of forming a
corporation under the laws of the State of Delaware do make, file and record this Certificate of Incorporation, do certify that that the facts herein stated are true, and, accordingly, have hereunto set my hand as of January 25, 2011.
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/s/ Luis F. Machado
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Luis F. Machado, Incorporator
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Exhibit 3.28
VICTORIA’S SECRET STORES BRAND MANAGEMENT, INC.
BYLAWS
ARTICLE I -
STOCKHOLDERS
Section 1. Annual Meeting
.
An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place within or without the State of Delaware, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within 13 months subsequent to
the later of the date of incorporation or the last annual meeting of stockholders or the last action by written consent to elect directors in lieu of an annual meeting.
Section 2. Special Meetings
.
Special meetings of the stockholders may be called for such purpose or purposes, on such date, at such time, and be held at such place within
or without the State of Delaware, as shall be prescribed in the notice of the meeting by the president, or in case of the president’s death, absence or disability, the vice president, if any, authorized to exercise the authority of the
president or a majority of the Board of Directors acting with or without a meeting; provided, that if and to the extent that any special meeting of stockholders may be called by any other person or persons specified in any provision of the
certificate of incorporation or any amendment thereto or any certificate filed under Section 151(g) of the Delaware General Corporation Law (or its successor statute as in effect from time to time), then such special meeting may also be called
by the person or persons, in the manner, at the times and for the purposes so specified.
Section 3. Notice of Meetings
.
3.1. Written notice of the place, date, and time of all meetings of the stockholders shall be given, not less than 10 nor more than 60 days
before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here or hereinafter, as required from time to time by the Delaware General
Corporation Law or the certificate of incorporation).
3.2. When a meeting is adjourned to another place, date or time, written notice need
not be given of the adjourned meeting if the place, date, and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30 days after the date for which the
meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be
transacted which might have been transacted at the original meeting.
Section 4. Quorum
.
4.1. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present
in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law.
4.2. If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of the stock entitled
to vote who are present, in person or by proxy, may adjourn the meeting to another place, date, or time.
4.3. If a notice of any adjourned
special meeting of stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present constituting a quorum, then except as otherwise required by law, those present at such adjourned meeting shall
constitute a quorum, and all matters shall be determined by a majority of the votes cast at such meeting.
Section 5.
Organization
.
At each meeting of the stockholders, the president, or, in his/her absence, any vice president, or, in the absence of
the president and all vice presidents, a chairman chosen by a majority in interest of the stockholders present in person or by proxy and entitled to vote, shall act as chairman, and the secretary of the corporation, or, if the secretary of the
corporation not be present, the assistant secretary, or if the secretary and the assistant secretary not be present, any person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting.
Section 6. Conduct of Business
.
The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting including such regulation of
the manner of voting and the conduct of discussion as seem to him/her in order.
Section 7. Proxies and Voting
.
7.1. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in
writing filed in accordance with the procedure established for the meeting.
7.2. Each stockholder shall have one vote for every share of
stock entitled to vote which is registered in such stockholder’s name on the record date for the meeting, except as otherwise provided herein or required by law.
7.3. All voting, except on the election of directors and where otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or such stockholder’s proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.
7.4. All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast.
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Section 8. Stock List
.
8.1. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock
and showing the address of each such stockholder and the number of shares registered in such stockholder’s name, shall be open to the examination of any such stockholder, for any purpose germane to the meeting, during ordinary business hours
for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be
held.
8.2. The stock list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the
examination of any such stockholder who is present. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.
Section 9. Voting by Written Consent
.
Any action which may be taken by the stockholders at an annual or special meeting may be taken without a meeting, without prior notice and
without a vote, if stockholders holding the minimum number of votes necessary to take such action shall sign a consent in writing setting forth such action; provided, however, that copies of such written consents shall be filed with the minutes of
the proceedings of the stockholders and that prompt notice of the taking of any such corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented thereto in writing and who, if
the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to
the corporation.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Number and Term of Office; Vacancies
.
The number of directors who shall constitute the whole Board of Directors shall be such number as the stockholders shall at the time have
designated, except that in the absence of any such designation, such number shall be two. Each director shall be elected for a term of one year and until his/her successor is elected and qualified, except as otherwise provided herein or required by
law. Only stockholders shall have the power to increase or decrease the number of directors. If the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, the majority of the remaining
directors, although less than a quorum, by action at a meeting or by written consent, may elect a successor for the unexpired term.
Section 2. Resignations
.
Any director of the corporation may resign at any time by giving written notice to the president or the secretary of the corporation. Such
resignation shall take effect at the time specified therein, and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
-3-
Section 3. Removal
.
Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
Section 4. Regular Meetings
.
Regular meetings of the Board of Directors shall be held at such place or places within or without the State of Delaware, on such date or
dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.
Section 5. Special Meetings
.
Special meetings of the Board of Directors may be called by two-thirds of the directors then in office or by the chief executive officer and
shall be held at such place, on such date, and at such time as they or he/she shall fix. Notice of the place, date, and time of each such special meeting shall be given each director, by whom it is not waived, by mailing written notice not less than
three days before the meeting or by telegraphing the same not less than eighteen hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section 6. Quorum
.
At any meeting of the Board of Directors, a majority of the whole Board shall constitute a quorum for all purposes. If a quorum shall fail to
attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof.
Section 7. Participation in Meetings By Conference Telephone
.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 8. Conduct of Business
.
At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board may from time to time determine,
and all Board action shall require the affirmative vote of all of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.
Section 9.
Powers
.
The Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as
may be exercised or done by the corporation, except such powers and such acts and things as are deserved in the certificate of incorporation or in these bylaws to the stockholders.
-4-
Section 10. Compensation of Directors
.
Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of committees of the directors.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors
.
The Board of Directors may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who
may replace any absent or disqualified member at any meeting of the committee. Any such committee shall, to the extent provided by resolution of the Board of Directors, have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority of the Board of Directors in
reference to (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law to be submitted to the stockholders for approval or (ii) adopting, amending or
repealing any bylaw of the corporation. In the absence or disqualification of any member of any committee and any alternate member in his/her place, the member or members of the committee present at the meeting and not disqualified from voting,
whether or not he/she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member.
Section 2. Conduct of Business
.
Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; a majority of the members shall constitute a quorum; and all matters shall be determined by the affirmative vote of the members
present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee.
ARTICLE IV - OFFICERS
Section 1. General Provisions
.
The officers of the corporation shall be the president, such number of vice-presidents as the board may from time to time determine, a
secretary and a treasurer. Any person may hold any two or more offices and perform the duties thereof, except the offices of president and vice-president. If one person is chosen to hold the offices of secretary and treasurer, he/she shall be known
as secretary-treasurer of the corporation. All the duties and obligations assigned to, and all references made to both the secretary and the treasurer in these bylaws, shall apply to the secretary-treasurer, if one person be elected to both of these
offices.
-5-
Section 2. Election, Terms of Office, and Qualification
.
The officers of the corporation named in Section 1 of this Article IV shall be elected by the Board of Directors or, alternatively, by the
stockholders of the corporation, for an indeterminate term and shall hold office during the pleasure of the Board of Directors, or in the event the officers are elected by the stockholders, they shall hold office during the pleasure of the
stockholders.
Section 3. Additional Officers, Agents, etc
.
In addition to the officers mentioned in Section 1 of this Article IV, the corporation may have such other officers or agents as the Board
of Directors or the stockholders may deem necessary and may appoint, each of whom or each member of which shall hold office for such period, have such authority and perform such duties as may be provided in these bylaws or as the Board of Directors
or the stockholders may from time to time determine. The Board of Directors or the stockholders may delegate to any officer the power to appoint any subordinate officers or agents. In the absence of any officer of the corporation, or for any other
reason the Board of Directors or the stockholders may deem sufficient, the Board of Directors or the stockholders may delegate, for the time being, the powers and duties, or any of them, of such officer to any other officer, or to any directors.
Section 4. Removal
.
Any officer of the corporation may be removed, either with or without cause, at any time, by resolution adopted by the Board of Directors or
the stockholders at any meeting, the notice (or waivers of notice) of which shall have specified that such removal action was to be considered. Any officer appointed not by the Board of Directors or the stockholders but by an officer or committee to
which the Board of Directors or the stockholders shall have delegated the power of appointment may be removed, without or without cause, by the committee or superior officer (including successors) who made the appointment, or by any committee or
officer upon whom such power of removal may be conferred by the Board of Directors or the stockholders.
Section 5.
Resignations
.
Any officer may resign at any time by giving written notice to the Board of Directors, the president or the secretary of
the corporation. Any such resignation shall take effect at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 6. Vacancies
A vacancy in any office because of death, resignation, removal, disqualification or otherwise, shall be filled in the manner prescribed in
these bylaws for regular appointments or elections to such office.
-6-
ARTICLE V - DUTIES OF THE OFFICERS
Section 1. The President
The president shall be the chief executive officer of the corporation and shall have general supervision over the property, business and
affairs of the corporation and over its several officers, subject, however, to the control of the Board of Directors. The president shall, if present, preside at all meetings of the stockholders and of the Board of Directors. The president may sign,
with the secretary, treasurer or any other proper officer of the corporation thereunto authorized by the Board of Directors certificates for shares in the corporation. The president may sign, execute, and deliver in the name of the corporation all
deeds, mortgages, bonds, leases, contracts, or other instruments either when specially authorized by the Board of Directors or when required or deemed necessary or advisable by him/her in the ordinary conduct of the corporation’s normal
business, except in cases where the signing and execution thereof shall be expressly delegated by these bylaws to some other officer or agent of the corporation or shall be required by law or otherwise to be signed or executed by some other officer
or agent, and he/she may cause the seal of the corporation, if any, to be affixed to any instrument requiring the same.
Section 2. Vice-Presidents
.
The vice-presidents shall perform such duties as are conferred upon them by these bylaws or as may from time to time be assigned to them by the
Board of Directors or the president. In the absence or disability of the president, the vice-president designated by the Board of Directors shall perform all the duties of the president, and when so acting, shall have all the powers of the
president. The authority of vice-presidents to sign in the name of the corporation all certificates for shares and authorized deeds, mortgages, leases, bonds, contracts, notes and other instruments, shall be coordinate with like authority of the
president.
Section 3. The Treasurer
.
The treasurer shall be the custodian of all funds and securities of the corporation. Whenever so directed by the Board of Directors, he/she
shall render a statement of the cash and other accounts of the corporation, and he/she shall cause to be entered regularly in the books and records of the corporation to be kept for such purpose full and accurate accounts of the corporation’s
receipts and disbursements. He/she shall have such other powers and shall perform such other duties as may from time to time be assigned to him/her by the Board of Directors.
Section 4. The Secretary
.
The secretary shall record and keep the minutes of all meetings of the stockholders and the Board of Directors in a book to be kept for that
purpose. He/she shall be the custodian of, and shall make or cause to be made the proper entries in, the minute book of the corporation and such other books and records as the Board of Directors may direct. He/she shall be the custodian of the seal
of the corporation, if any, and shall affix such seal to such contracts, instruments and other documents as the Board of Directors or any committee thereof may direct. He/she shall have such other powers and shall perform such other duties as may
from time to time be assigned to him/her by the Board of Directors.
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ARTICLE VI - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Indemnification
The corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, or pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he/she, his/her testator, or intestate is or was a director or officer of the corporation, or is or was serving at the request
of the corporation as 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),
judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him/her 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 the State of Delaware as they may exist from time to time.
Section 2.
Insurance
.
The proper officers of the corporation, 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 the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent for another
corporation, partnership, joint venture, trusts or other enterprise, against any liability.
Section 3. ERISA
.
To assure indemnification under this provision of all such persons who are or were “fiduciaries” of an employee benefit plan governed
by the Act of the United States Congress entitled “Employee Retirement Income Security Act of 1974”, as amended from time to time (“ERISA”), the provisions of this Article VI shall, except as limited by Section 410 of ERISA,
for the purposes hereof, be interpreted as follows: an “other enterprise” shall be deemed to include an employee benefit plan; the corporation shall be deemed to have requested a person to serve as a director, officer, employee or agent of
an employee benefit plan where the performance of such person of his/her duties to the corporation also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed
on a person with respect to an employee benefit plan pursuant to ERISA shall be deemed “fines”; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose
reasonably believed by such person to be in compliance with ERISA and the terms of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the corporation.
Section 4. Contractual Nature
.
The foregoing provision of this Article VI shall be deemed to be a contract between the corporation and each director and officer who serves in
such capacity at any time while this Section 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 when 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.
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Section 5. Construction
.
For the purposes of this Article VI, references to “the corporation” include in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director or officer of such constituent corporation or is or was serving at the request of such constituent corporation 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 shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he/she would have with respect to such
constituent corporation if its separate existence had continued.
Section 6. Non-Exclusive
.
The corporation 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 he/she reasonably believed to be in, or not opposed to, the best interests of the corporation.
ARTICLE VII - STOCK
Section 1. Certificates of Stock
.
Each stockholder shall be entitled to a certificate signed by, or in the name of the corporation by the president or a vice-president, and by
the secretary or an assistant secretary, or the treasurer or an assistant treasurer, certifying the number of shares owned by such stockholder. Any or all of the signatures on the certificate may be facsimile.
Section 2. Transfers of Stock
.
Transfers of stock shall be made only upon the transfer books of the corporation kept at an office of the corporation or by transfer agents
designated to transfer shares of the stock of the corporation. Except where a certificate is issued in accordance with Section 4 of Article VII of these bylaws, an outstanding certificate for the number of shares involved shall be surrendered
for cancellation before a new certificate is issued therefor.
Section 3. Record Date
.
The Board of Directors may fix a record date, which shall not be more than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for any other action hereinafter described, as of which there shall be determined the stockholders who are entitled: to notice of or to vote at any meeting of stockholders or any adjournment
thereof, to express consent to corporate action in writing without a meeting; to receive payment of any dividend or other distribution or allotment of any rights; or to exercise any rights with respect to any change, conversion or exchange of stock
or with respect to any other lawful action.
-9-
Section 4. Lost, Stolen or Destroyed Certificates
.
In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as
the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations
.
The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors
may establish.
ARTICLE VIII - NOTICES
Section 1. Notices
.
Whenever notice is required to be given to any stockholder, director, officer, or agent, such requirement shall not be construed to mean
personal notice. Such notice may in every instance be effectively given by depositing a writing in a post office or letter box, in a postpaid, sealed wrapper, or by dispatching a prepaid telegram, addressed to such stockholder, director, officer, or
agent at his/her address as the same appears on the books of the corporation. The time when such notice is dispatched shall be the time of the giving of the notice.
Section 2. Waivers
.
A written waiver of any notice, signed by a stockholder, director, officer, or agent, whether before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE IX - MISCELLANEOUS
Section 1. Facsimile Signatures
.
In addition to the provisions for the use of facsimile signatures elsewhere specifically authorized in these bylaws, facsimile signatures of
any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal
.
The Board of Directors may provide a suitable seal, containing the name of the corporation, which seal shall be in the charge of the secretary.
If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the treasurer or by the assistant secretary or assistant treasurer.
Section 3. Reliance upon Books, Reports and Records
.
Each director, each member of any committee designated by the Board of Directors, and each officer of the corporation shall, in the performance
of his/her duties, be fully protected in relying in good faith upon the books of account or other records of the corporation, including reports made to the corporation by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
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Section 4. Fiscal Year
.
The fiscal year of the corporation shall be the 52-53 week period ending on the Saturday nearest the last day of January and the next
succeeding fiscal year shall begin on the Sunday following such Saturday.
Section 5. Time Periods
.
In applying any provision of these bylaws which require that an act be done or not done a specified number of days prior to an event or that an
act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
Section 6. Depositaries and Signatories
.
The president and the treasurer of the corporation are each authorized to designate depositaries for the funds of the corporation deposited in
its name and the signatories and conditions with respect thereto in each case, and from time to time, to change such depositaries, signatories and conditions, with the same force and effect as if each such depositary, the signatories and conditions
with respect thereto and changes therein had been specifically designated or authorized by the Board of Directors; and each depositary designated by the Board of Directors or by the president or treasurer of the corporation, shall be entitled to
rely upon the certificate of the secretary and any assistant secretary of the corporation setting forth the fact of such designation and of the appointment of the officers of the corporation or of both or of other persons who are to be signatories
with respect to the withdrawal of funds deposited with such depositary, or from time to time the fact of any change in any depositary or in the signatories with respect thereto.
Section 7. Execution of Instruments Generally
.
In addition to the powers conferred upon the president in Article V, Section 1 and except as otherwise provided in Section 6 of this
Article IX, all contracts and other instruments entered into in the ordinary course of business requiring execution by the corporation may be executed and delivered by any vice president or the treasurer and authority to sign any such contracts or
instruments, which may be general or confined to specific instances, may be conferred by the Board of Directors upon any other person or persons. Any person having authority to sign on behalf of the corporation may delegate, from time to time, by
instrument in writing, all or any part of such authority to any person or persons if authorized so to do by the Board of Directors.
Section 8. Voting Securities of Other Corporations
.
Unless otherwise directed by the Board of Directors, the president and any vice president of the corporation shall have the power to vote and
otherwise act on behalf of the corporation, in person or by proxy, at any meeting, or with respect to any action, of stockholders of any other corporation in which this corporation may hold securities and otherwise to exercise any and all rights and
powers which this corporation may possess by reason of its ownership of securities in such other corporation.
-11-
Exhibit 3.29
CERTIFICATE OF MERGER
OF
VICTORIA’S
SECRET STORES, INC.
INTO
VSS STORE OPERATIONS, LLC
[Domestic Limited Liability Company Surviving]
The undersigned limited liability company, VSS Store Operations, LLC, organized and existing under and by virtue of the Delaware Limited
Liability Company Act, 6
Del. C
. §§18-101,
et seq
. (the “Delaware Act”), for the purpose of merging with another entity pursuant to §18-209 of the Delaware Act, DOES HEREBY CERTIFY:
FIRST: That the name and jurisdiction of formation or organization of each of the constituent entities which are to merge are as follows:
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Name
|
|
Jurisdiction of Formation/Organization
|
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VSS Store Operations, LLC
|
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Delaware
|
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Victoria’s Secret Stores, Inc.
|
|
Delaware
|
SECOND: An agreement of merger has been approved, adopted, certified, executed and acknowledged by the
constituent entities in accordance with §18-209 of the Delaware Act and §264(c) and §228 of the General Corporation Law of the State of Delaware, 8
Del C
.§101,
et seq
.
THIRD: The name of the surviving Delaware limited liability company is VSS Store Operations, LLC and, as of the Effective Time (as defined in
Article Fourth below), Article 1 of the Certificate of Formation of the LLC shall be amended in its entirety to read as follows:
1. The
name of the limited liability company is “Victoria’s Secret Stores, LLC”.
FOURTH: The merger of Victoria’s Secret
Stores, Inc. into VSS Store Operations, LLC shall be effective as of 11:40 p.m. (EDST) on July 30, 2005 (the “Effective Time”).
FIFTH: The executed agreement of merger is on file at the principal place of business of the surviving Delaware limited liability company. The
address of the principal place of business of the surviving Delaware limited liability company is Four Limited Parkway, Reynoldsburg, Ohio 43068.
SIXTH: A copy of the agreement of merger will be furnished by the surviving Delaware limited liability company, on request and without cost,
to any member of VSS Store Operations, LLC or any stockholder of Victoria’s Secret Stores, Inc.
IN WITNESS WHEREOF, this Certificate
of Merger has been duly executed this 29th day of July, 2005, and is being filed in accordance with §18-209 of the Delaware Act by an authorized officer of the sole member of the surviving Delaware limited liability company.
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VSS STORE OPERATIONS, LLC
By:
WOMANCO, INC., Sole Member
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By:
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/s/ Mark A. Giresi
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Mark A. Giresi,
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Executive Vice President, Retail Operations
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Exhibit 3.30
VICTORIA’S SECRET STORES, LLC
First Amended and Restated Limited Liability Company Agreement
THIS FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) is made to be effective as of 11:46 p .m.
(EDST) on July 1, 2006 by Limited Brands Store Operations, Inc.(f/k/a The Limited Stores, Inc.), a Delaware corporation (the “Member”).
W I T N E S S E T H:
WHEREAS,
Victoria’s Secret Stores, LLC (f/k/a VSS Store Operations, LLC), a Delaware limited liability company (the “LLC”), was organized in accordance with the provisions of the Delaware Limited Liability Company Act, Delaware Code Title 6,
Sections 18-101, et seq. (the “Act”) and pursuant to (i) a certain Certificate of Formation filed with the Secretary of State of the State of Delaware (the “Secretary of State”) on March 17, 2005, a copy of which is
attached hereto as Exhibit A (the “Original Certificate of Formation”), and (ii) a certain Limited Liability Company Agreement, dated March 17, 2005 (the “Original LLC Agreement”) and entered into by Womanco, Inc.
(n/k/a Limited Brands Store Operations, Inc.), a Delaware corporation (“Old LBSO”); and
WHEREAS, effective as of 11:45 p.m.
(EDST) on July 1. 2006, Old LBSO merged with and into the Member (the “Merger”), such that, by operation of law, the entire limited liability company interest as a member in the LLC became vested in the Member; and
WHEREAS, the Member desires to enter into this Agreement to reflect the above-described assignment of the entire limited liability company
interest as a member in the LLC upon the consummation of the Merger and the withdrawal of Old LBSO from the LLC; to memorialize that the LLC was not and is not to be dissolved, liquidated or wound up as a result of the Merger and the withdrawal of
Old LBSO from the LLC as a result thereof; and that the Member hereby continues to be a member of the LLC for purposes of conducting and continuing the business of the LLC in accordance with the Original LLC Agreement, as amended, restated and
superseded hereby, and to reflect certain arrangements as to the affairs of the LLC and the conduct of its business; and
WHEREAS, the
Member desires hereby to amend, restate and supersede in its entirety the Original LLC Agreement, and intends that this Agreement constitute the “limited liability company agreement” of the LLC, within the meaning of that term as defined
in the Act;
NOW THEREFORE, it is agreed, stated and declared as follows:
Section 1.
Formation; Member
. The LLC was fanned upon the execution of the Original Certificate of Formation and the filing of the
Original Certificate of Formation with the Secretary of State. The purpose for which the LLC was formed and continues to exist is to engage in any lawful act or activity for which limited liability companies may be formed under the Act. The Member
shall be the sole “member” of the LLC, as defined in the Act. Whether under this Agreement, under any other agreement or obligation by which the LLC and/or the Member may be bound, or pursuant to applicable law, any action or inaction
taken or omitted to be taken by or with the consent of the Member shall bind the LLC. The Member may delegate such power and authority, including without limitation, the delegation of such power and authority to persons appointed as officers of the
LLC.
Section 2.
Term
. The term of the LLC commenced with the filing of the Original
Certificate of Formation with the Secretary of State. The LLC shall continue in perpetuity, unless and until the Member consents in writing to dissolve the LLC. Upon dissolution, the LLC shall be wound up and terminated as provided in the Act, and
the Member shall have the authority to wind up the LLC. No event described in Section 18-304 of the Act (entitled “Events of Bankruptcy”) involving the Member shall cause the Member to cease to be a member of the LLC, and provisions
of Section 18-801 of the Act (entitled ‘‘Dissolution”) shall not apply to the LLC.
Section 3.
Capital
Contributions
. The Member shall determine the amounts, forms and timing of capital contributions required of the Member.
Section 4.
Tax Matters
. So long as the LLC has only one member, the LLC shall be disregarded as an entity separate from its
member, solely for tax purposes, in accordance with Sections 301. 7701-1, -2 and -3 of the Treasury Department regulations promulgated under the Internal Revenue Code of 1986, as amended, and the provisions of Section 18-503 of the Act
(entitled “Allocation of Profits and Losses”) shall not apply to the LLC.
Section
5
.
Distributions
.
Distributions of cash or property under circumstances not involving the liquidation of the LLC, if any, shall be within the discretion of the Member as to amount, form and frequency, subject to Section 18-607 of the Act (entitled
“Limitations on Distribution”). Upon liquidation of the LLC, the Member shall have the power to liquidate or to distribute in kind any and all of the assets of the LLC, and the proceeds of any such liquidation shall be applied and
distributed in accordance with Section 18-804 of the Act (entitled ‘‘Distribution of Assets”).
Section 6.
General Provisions
.
6.1
No Third Party Beneficiaries
. None of the provisions of this Agreement shall be
construed as existing for the benefit of any creditor of the LLC or as being enforceable by any party not a signatory hereto. There shall be no third party beneficiaries of this Agreement.
6.2
Entire Agreement
. This Agreement constitutes the entire “limited liability company agreement” of the LLC
within the meaning of the Act and contains the entire understanding, agreement and statement of the Member upon the subject matter of this Agreement and may only be amended, changed or waived in a writing signed by the Member. The Member
acknowledges that the provisions of the Act shall govern the affairs of the LLC and the conduct of its business, except as provided in this Agreement.
6.3
Provisions Binding
. This Agreement shall inure to the benefit of and be binding upon the Member and the
Member’s successors and assigns.
6.4
Applicable Law
. This Agreement shall be interpreted in accordance with
the laws of the State of Delaware. ·
6.5
Amendment and Restatement; Continuation of LLC
. The Original LLC
Agreement is hereby amended, restated and superseded in its entirety by this Agreement. The Member agrees that the LLC is not to be dissolved, liquidated or wound up as a result of the Merger, and that the Member hereby continues to be a member of
the LLC for purposes of conducting and continuing the business of the LLC in accordance with this Agreement.
-2-
IN WITNESS WHEREOF, the Member has caused its duly authorized officer to execute this First
Amended and Restated Limited Liability Company Agreement of Victoria’s Secret Stores, LLC, effective as of the date and year first above written.
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LIMITED BRANDS STORE OPERATIONS, INC.,
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a Delaware corporation
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By:
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/s/ Mark A. Giresi
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Mark A. Giresi,
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Executive Vice President – Retail Operations
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-3-
Exhibit 4.16
L BRANDS, INC. (formerly known as LIMITED BRANDS, INC.),
THE GUARANTORS PARTY HERETO, as Guarantors
and
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.,
as Trustee
7.000% Senior
Notes due 2020
6.625% Senior Notes due 2021
5.625% Senior Notes due 2022
5.625% Senior Notes due 2023
NINTH SUPPLEMENTAL INDENTURE
Dated as of January 30, 2015
to
INDENTURE
Dated as of March 15, 1988
TABLE OF CONTENTS
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P
AGE
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ARTICLE 1
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D
EFINITIONS
AND
O
THER
P
ROVISIONS
OF
G
ENERAL
A
PPLICATION
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Section 1.01.
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Definitions
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2
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ARTICLE 2
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A
GREEMENT
TO
BE
BOUND
; G
UARANTEE
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Section 2.01
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Agreement To Be Bound
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3
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Section 2.02
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Guarantee
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3
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ARTICLE 3
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M
ISCELLANEOUS
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Section 3.01.
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Effect of Supplemental Indenture
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3
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Section 3.02.
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Effect of Headings
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3
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Section 3.03.
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Successors and Assigns
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3
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Section 3.04.
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Severability Clause
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3
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Section 3.05.
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Benefits of Supplemental Indenture
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3
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Section 3.06.
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Conflict
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4
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Section 3.07.
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Governing Law
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4
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Section 3.08.
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Trustee
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4
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i
NINTH SUPPLEMENTAL INDENTURE, dated as of January 30, 2015 (this
“
Supplemental Indenture
”), among L Brands, Inc., a Delaware corporation (hereinafter called the “
Company
”), La Senza, Inc. and Bath & Body Works Direct, Inc. (each, a “
New Guarantor
”), each
other then existing Guarantor under the Original Indenture referred to below (the “
Existing Guarantors
”) and The Bank of New York Mellon Trust Company, N.A., a national banking association, as successor trustee hereunder
(hereinafter called the “
Trustee
”).
RECITALS
WHEREAS, the Company and the Trustee, entered into an indenture, dated March 15, 1988
(the
“
Base
Indenture
”), as amended by the First Supplemental Indenture, dated May 31, 2005 (the “
First Supplemental Indenture
”), as further amended by the Second Supplemental Indenture dated July 17, 2007 (the
“
Second Supplemental Indenture
”), as further amended by the Third Supplemental Indenture dated May 4, 2010 (the “
Third Supplemental Indentur
e”), as further amended by the Fourth Supplemental Indenture, dated
January 29, 2011 (the “
Fourth Supplemental Indenture
”), as further amended by the Fifth Supplemental Indenture, dated March 25, 2011 (the “
Fifth Supplemental Indenture
”), as further amended by the Sixth
Supplemental Indenture, dated February 7, 2012 (the “
Sixth Supplemental Indenture
”), as further amended by the Seventh Supplemental Indenture, dated March 22, 2013 (the “
Seventh Supplemental Indenture
”),
as further amended by the Eighth Supplemental Indenture, dated October 16, 2013 (the “
Eighth Supplemental Indenture
” and together with the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental
Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh Supplemental Indenture, the Eighth Supplemental Indenture and the Base Indenture, the “
Original
Indenture
”), pursuant to which the Company issued its 7.000% Senior Notes due 2020 (the “
2020 Notes
”), 6.625% Senior Notes due 2021 (the “
2021 Notes
”), 5.625% Senior Notes due 2022 (the “
2022
Notes
”), 5.625% Senior Notes due 2023 (the “
2023 Notes
,” and together with the 2020 Notes, the 2021 Notes and the 2022 Notes, the “
Notes
”).
WHEREAS, Section 5.4 of each of the Third, Fifth, Sixth and Eighth Supplemental Indentures provides that in the event that any of the
Domestic Subsidiaries of the Company becomes a borrower or guarantor under the Senior Credit Facility (other than obligations of a Domestic Subsidiary under indebtedness for borrowed money existing at the time such Domestic Subsidiary became a
Domestic Subsidiary and not created in contemplation of such acquisition), then, in each such case, the Company is required to cause such Domestic Subsidiary to execute and deliver to the Trustee a supplemental indenture pursuant to which such
Domestic Subsidiary shall unconditionally guarantee, on a joint and several basis with the Existing Guarantors, the full and
prompt payment of principal of and interest and premium, if any, on the Notes and all of the Company’s obligations under the Notes as set forth herein and in
Article Six
of the Third,
Fifth, Sixth and Eighth Supplemental Indentures;
WHEREAS, Section 1301 of the Original Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the consent of any Holders of the Notes, to add a Guarantee of the Notes;
WHEREAS, all things necessary to make this Supplemental Indenture a valid, binding and enforceable agreement of the Company, each of the New
Guarantors, the Existing Guarantors and the Trustee and a valid supplement to the Original Indenture have been done; and
NOW, THEREFORE,
THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the foregoing, each of the New Guarantors, the Company, the Existing
Guarantors and the Trustee mutually covenant and agree, for the equal and proportionate benefit of the Holders from time to time of the Notes, as follows:
ARTICLE 1
D
EFINITIONS
AND
O
THER
P
ROVISIONS
OF
G
ENERAL
A
PPLICATION
Section 1.01
. Definitions.
The Original Indenture together with this Supplemental Indenture
are hereinafter sometimes collectively referred to as the “
Indenture.
” For the avoidance of doubt, references to any “Section” of the “Indenture” refer to such Section of the Original Indenture as
supplemented and amended by this Supplemental Indenture. All capitalized terms which are used herein and not otherwise defined herein are defined in the Original Indenture and are used herein with the same meanings as in the Original Indenture. If a
capitalized term is defined in the Original Indenture and this Supplemental Indenture, the definition in this Supplemental Indenture shall apply to the Notes (and any Guarantee endorsed therein).
For all purposes of this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as
therein defined. The words “herein,” “hereof” and “hereunder” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular article,
section or other subdivision hereof.
2
ARTICLE 2
A
GREEMENT
TO
BE
BOUND
; G
UARANTEE
Section 2.01
Agreement To Be Bound
. Each of the New Guarantors hereby becomes a party to the Original Indenture as a
Guarantor and as such shall have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Original Indenture. Each of the New Guarantors agrees to be bound by all of the provisions of the Original Indenture
applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Original Indenture.
Section 2.02
Guarantee.
Each of the New Guarantors agrees, on a joint and several basis with all the Existing Guarantors,
to unconditionally guarantee to each Holder of the Notes and the Trustee the Obligations as provided in
Article Six
of the Third, Fifth, Sixth and Eighth Supplemental Indentures.
ARTICLE 3
M
ISCELLANEOUS
Section 3.01.
Effect of Supplemental Indenture
. (a) This Supplemental Indenture is a supplemental indenture within the
meaning of Section 13.01 of the Original Indenture, and the Original Indenture shall be read together with this Supplemental Indenture and shall have the same effect over the Notes, in the same manner as if the provisions of the Original
Indenture and this Supplemental Indenture were contained in the same instrument.
(b) In all other respects, the Original Indenture is
confirmed by the parties hereto as supplemented by the terms of this Supplemental Indenture.
Section 3.02
. Effect of
Headings.
The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 3.03
. Successors and Assigns.
All covenants and agreements in this Supplemental Indenture by the Company, the New
Guarantor, the Existing Guarantors, the Trustee and the Holders shall bind their successors and assigns, whether so expressed or not.
Section 3.04
. Severability Clause.
In case any provision in this Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 3.05
. Benefits of This Supplemental Indenture.
Nothing in this Supplemental Indenture, express or implied, shall
give to any Person, other than the parties hereto, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture.
3
Section 3.06
. Conflict.
In the event that there is a conflict or inconsistency
between the Original Indenture and this Supplemental Indenture, the provisions of this Supplemental Indenture shall control; provided, however, if any provision hereof limits, qualifies or conflicts with another provision herein or in the Original
Indenture, in either case, which is required or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required or deemed provision shall control.
Section 3.07
. Governing Law.
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE OR ENTERED INTO AND, IN EACH CASE, PERFORMED, IN SAID STATE.
Section 3.08
. Trustee.
The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
[
Signature page to follow
]
4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed on the date and year first written above.
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L B
RANDS
, I
NC
.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President and Treasurer
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[
Signature page to the
Ninth Supplemental Indenture
]
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NEW GUARANTOR:
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L
A
S
ENZA
, I
NC
.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President and Treasurer
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By:
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/s/ Douglas L. Williams
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Name:
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Douglas L. Williams
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Title:
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Executive Vice President, General Counsel
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NEW GUARANTOR:
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B
ATH
& B
ODY
W
ORKS
D
IRECT
, I
NC
.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President and Treasurer
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By:
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/s/ Douglas L. Williams
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Name:
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Douglas L. Williams
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Title:
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Executive Vice President, General Counsel
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[
Signature page to the
Ninth Supplemental Indenture
]
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EXISTING GUARANTOR:
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BATH & BODY WORKS BRAND
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MANAGEMENT, INC.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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BATH & BODY WORKS, LLC.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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BEAUTYAVENUES, LLC
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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INTIMATE BRANDS, INC.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
|
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Senior Vice President
|
[
Signature page to the
Ninth Supplemental Indenture
]
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EXISTING GUARANTOR:
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INTIMATE BRANDS HOLDING, LLC
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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L BRANDS DIRECT FULFILLMENT, INC.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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L BRANDS SERVICE COMPANY, LLC
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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L BRANDS STORE DESIGN & CONSTRUCTION, INC.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
|
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Senior Vice President
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[
Signature page to the
Ninth Supplemental Indenture
]
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EXISTING GUARANTOR:
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MAST INDUSTRIES, INC
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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VICTORIA’S SECRET STORES BRAND MANAGEMENT, INC
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
|
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Title:
|
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Senior Vice President
|
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EXISTING GUARANTOR:
|
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|
VICTORIA’S SECRET DIRECT BRAND MANAGEMENT, LLC
|
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By:
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/s/ Timothy J. Faber
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Name:
|
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Timothy J. Faber
|
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Title:
|
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Senior Vice President
|
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EXISTING GUARANTOR:
|
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VICTORIA’S SECRET STORES, LLC
|
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By:
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/s/ Timothy J. Faber
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Name:
|
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Timothy J. Faber
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Title:
|
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Senior Vice President
|
[
Signature page to the
Ninth Supplemental Indenture
]
|
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T
HE
B
ANK
OF
N
EW
Y
ORK
M
ELLON
T
RUST
C
OMPANY
, N.A., as Trustee
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By:
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/s/ Michael Countryman
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Name:
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Michael Countryman
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Title:
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Vice President
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[
Signature page to the
Ninth Supplemental Indenture
]
Exhibit 4.17
L BRANDS, INC. (formerly known as LIMITED BRANDS, INC.),
THE GUARANTORS PARTY HERETO, as Guarantors
and
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.,
as Trustee
8.50% Senior
Notes due 2019
SECOND SUPPLEMENTAL INDENTURE
Dated as of January 30, 2015
to
INDENTURE
Dated as of June 19, 2009
TABLE OF CONTENTS
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|
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|
|
P
AGE
|
|
|
ARTICLE 1
|
|
|
D
EFINITIONS
AND
O
THER
P
ROVISIONS
OF
G
ENERAL
A
PPLICATION
|
|
|
|
|
|
|
Section 1.01.
|
|
Definitions
|
|
|
2
|
|
|
|
|
ARTICLE 2
|
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A
GREEMENT
TO
BE
BOUND
; G
UARANTEE
|
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|
|
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Section 2.01
|
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Agreement To Be Bound.
|
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2
|
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Section 2.02
|
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Guarantee
|
|
|
2
|
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ARTICLE 3
|
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M
ISCELLANEOUS
|
|
|
|
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Section 3.01.
|
|
Effect of Supplemental Indenture
|
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|
2
|
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Section 3.02.
|
|
Effect of Headings
|
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3
|
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Section 3.03.
|
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Successors and Assigns
|
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|
3
|
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|
Section 3.04.
|
|
Severability Clause
|
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|
3
|
|
|
Section 3.05.
|
|
Benefits of Supplemental Indenture
|
|
|
3
|
|
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Section 3.06.
|
|
Conflict
|
|
|
3
|
|
|
Section 3.07.
|
|
Governing Law
|
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|
3
|
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|
Section 3.08.
|
|
Trustee
|
|
|
3
|
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i
SECOND SUPPLEMENTAL INDENTURE, dated as of January 30, 2015 (this “
Supplemental
Indenture
”), among L Brands, Inc. (formerly known as Limited Brands, Inc.) a Delaware corporation (hereinafter called the “
Company
”), La Senza, Inc. and Bath & Body Works Direct, Inc. (each, a “
New
Guarantor
”), each other than existing Guarantor under the Original Indenture referred to below (the “
Existing Guarantors
”) and The Bank of New York Mellon Trust Company, N.A., a national banking association, as successor
trustee hereunder (hereinafter called the “
Trustee
”).
RECITALS
WHEREAS, the Company, the Existing Guarantors and the Trustee entered into an indenture, dated June 19, 2009 ( the “
Base
Indenture
”), as supplemented by the First Supplemental Indenture, dated March 22, 2013, among the Company, the Existing Guarantors and the Trustee (the “
First Supplemental Indenture
” and together with the Base
Indenture, the “
Original Indenture
”), pursuant to which the Company issued its 8.50% Senior Notes due 2019 (the “
Notes
”).
WHEREAS, Section 4.05 of the Original Indenture provides that in the event that any of the Domestic Subsidiaries of the Company becomes a
borrower or guarantor under the Senior Credit Facilities (other than obligations of a Domestic Subsidiary under indebtedness for borrowed money existing at the time such Domestic Subsidiary became a Domestic Subsidiary and not created in
contemplation of such acquisition), then, in each such case, the Company is required to cause such Domestic Subsidiary to execute and deliver to the Trustee a supplemental indenture pursuant to which such Domestic Subsidiary shall unconditionally
guarantee, on a joint and several basis with the Existing Guarantors, the full and prompt payment of principal of and interest and premium, if any, on the Notes and all of the Company’s obligations under the Notes as set forth herein and in
Article Ten
of the Original Indenture;
WHEREAS, Section 8.01 of the Original Indenture provides that a supplemental indenture
may be entered into by the Company and the Trustee without the consent of any Holders of the Notes, to add a Guarantee of the Notes;
WHEREAS, all things necessary to make this Supplemental Indenture a valid, binding and enforceable agreement of the Company, each of the New
Guarantors, the Existing Guarantors and the Trustee and a valid supplement to the Original Indenture have been done; and
NOW, THEREFORE,
THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the foregoing, each of the New Guarantor, the Company, the Existing
Guarantors and the Trustee mutually covenant and agree,
for the equal and proportionate benefit of the Holders from time to time of the Notes, as follows:
ARTICLE 1
D
EFINITIONS
AND
O
THER
P
ROVISIONS
OF
G
ENERAL
A
PPLICATION
Section 1.01
. Definitions.
The Original Indenture together with this Supplemental Indenture are
hereinafter sometimes collectively referred to as the “
Indenture.
” For the avoidance of doubt, references to any “Section” of the “Indenture” refer to such Section of the Original Indenture as supplemented and
amended by this Supplemental Indenture. All capitalized terms which are used herein and not otherwise defined herein are defined in the Original Indenture and are used herein with the same meanings as in the Original Indenture. If a capitalized term
is defined in the Original Indenture and this Supplemental Indenture, the definition in this Supplemental Indenture shall apply to the Notes (and any Guarantee endorsed therein).
For all purposes of this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as
therein defined. The words “herein,” “hereof” and “hereunder” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular article,
section or other subdivision hereof.
ARTICLE 2
A
GREEMENT
TO
BE
BOUND
; G
UARANTEE
Section 2.01
Agreement To Be Bound
. Each of the New Guarantors hereby becomes a party to the Original Indenture as a Guarantor and
as such shall have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Original Indenture. The New Guarantor agrees to be bound by all of the provisions of the Original Indenture applicable to a
Guarantor and to perform all of the obligations and agreements of a Guarantor under the Original Indenture.
Section 2.02
Guarantee.
Each of the New Guarantors agrees, on a joint and several basis with all the Existing Guarantors, to unconditionally guarantee to each Holder of the Notes and the Trustee the Obligations as provided in
Article Ten
of the
Original Indenture.
ARTICLE 3
M
ISCELLANEOUS
Section 3.01
. Effect of Supplemental Indenture.
(a) This Supplemental Indenture is a supplemental indenture within the
meaning of Section 8.06 of the
2
Original Indenture, and the Original Indenture shall be read together with this Supplemental Indenture and shall have the same effect over the Notes, in the same manner as if the provisions of
the Original Indenture and this Supplemental Indenture were contained in the same instrument.
(b) In all other respects, the Original
Indenture is confirmed by the parties hereto as supplemented by the terms of this Supplemental Indenture.
Section 3.02
. Effect of
Headings.
The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 3.03
. Successors and Assigns.
All covenants and agreements in this Supplemental Indenture by the Company, each of the New
Guarantors, the Existing Guarantors, the Trustee and the Holders shall bind their successors and assigns, whether so expressed or not.
Section 3.04
. Severability Clause.
In case any provision in this Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 3.05
. Benefits of This Supplemental Indenture.
Nothing in this Supplemental Indenture, express or implied, shall give to
any Person, other than the parties hereto, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture.
Section 3.06
. Conflict.
In the event that there is a conflict or inconsistency between the Original Indenture and this
Supplemental Indenture, the provisions of this Supplemental Indenture shall control; provided, however, if any provision hereof limits, qualifies or conflicts with another provision herein or in the Original Indenture, in either case, which is
required or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required or deemed provision shall control.
Section 3.07
. Governing Law.
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE OR ENTERED INTO AND, IN EACH CASE, PERFORMED, IN SAID STATE.
Section 3.08
.
Trustee.
The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the
Company.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
3
[
Signature pages to follow
]
4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed on the date and year first written above.
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L B
RANDS
, I
NC
.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President and Treasurer
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[
Signature page to the
Second Supplemental Indenture for the 2019 Notes
]
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NEW GUARANTOR:
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L
A
S
ENZA
, I
NC
.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President and Treasurer
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By:
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/s/ Douglas L. Williams
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Name:
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Douglas L. Williams
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Title:
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Executive Vice President, General Counsel
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NEW GUARANTOR:
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B
ATH
& B
ODY
W
ORKS
D
IRECT
, I
NC
.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President and Treasurer
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By:
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/s/ Douglas L. Williams
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Name:
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Douglas L. Williams
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Title:
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Executive Vice President, General Counsel
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[
Signature page to the
Second Supplemental Indenture for the 2019 Notes
]
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EXISTING GUARANTOR:
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BATH & BODY WORKS BRAND
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MANAGEMENT, INC.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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BATH & BODY WORKS, LLC.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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BEAUTYAVENUES, LLC
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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INTIMATE BRANDS, INC.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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[
Signature page to the
Second Supplemental Indenture for the 2019 Notes
]
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EXISTING GUARANTOR:
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INTIMATE BRANDS HOLDING, LLC
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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L BRANDS DIRECT FULFILLMENT, INC.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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L BRANDS SERVICE COMPANY, LLC
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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L BRANDS STORE DESIGN & CONSTRUCTION, INC.
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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[
Signature page to the
Second Supplemental Indenture for the 2019 Notes
]
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EXISTING GUARANTOR:
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MAST INDUSTRIES, INC
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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VICTORIA’S SECRET STORES BRAND MANAGEMENT, INC
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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VICTORIA’S SECRET DIRECT BRAND MANAGEMENT, LLC
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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EXISTING GUARANTOR:
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VICTORIA’S SECRET STORES, LLC
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By:
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/s/ Timothy J. Faber
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Name:
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Timothy J. Faber
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Title:
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Senior Vice President
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[
Signature page to the
Second Supplemental Indenture for the 2019 Notes
]
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T
HE
B
ANK
OF
N
EW
Y
ORK
M
ELLON
T
RUST
C
OMPANY
, N.A., as Trustee
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By:
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/s/ Michael Countryman
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Name:
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Michael Countryman
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Title:
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Vice President
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[
Signature page to the
Second Supplemental Indenture for the 2019 Notes
]
Exhibit 5.1
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New York
Menlo Park
Washington DC
São Paulo
London
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Paris
Madrid
Tokyo
Beijing
Hong Kong
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Davis Polk & Wardwell
LLP
450 Lexington Avenue
New York, NY 10017
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January 25, 2016
L
Brands, Inc.
Three Limited Parkway
Columbus, OH 43230
Ladies and Gentlemen:
We have acted as special counsel to L
Brands, Inc., a Delaware corporation (the “Company”), the entities listed in Part A of Schedule I hereto, each a Delaware corporation (the “Corporation Guarantors”), and the entities listed in Part B of
Schedule I hereto, each a Delaware limited liability company (the “LLC Guarantors,” and together with the Corporation Guarantors, the “Guarantors”) in connection with the Company’s offer (the “Exchange Offer”)
to exchange its 6.875% Senior Notes due 2035 (the “New Notes”, and together with the related guarantees by the Guarantors, collectively, the “New Securities”), issued pursuant to an indenture dated as of October 30, 2015
(the “Indenture”) among the Company, the Guarantors and the Bank of New York Mellon Trust Company, N.A., as trustee, for any and all of its outstanding 6.875% Senior Notes due 2035 (the “Old Notes”, and together with the related
guarantees by the Guarantors, collectively, the “Old Securities”) pursuant to the registration statement on Form S-4 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission.
We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have
deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinion expressed herein, we have, without independent inquiry
or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents
that we reviewed are genuine, (iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials and officers of the Company and the Guarantors that we reviewed
were and are accurate and (vi) all representations made by the Company and the Guarantors as to matters of fact in the documents that we reviewed were and are accurate.
Based on the foregoing, and subject to the additional assumptions and qualifications set forth below, we are of the opinion that the New Securities, when the
New Securities are executed, authenticated and delivered in exchange for the Old Securities in accordance with the terms of the Indenture and the Exchange Offer, will constitute valid and binding obligations of the Company and the Guarantors, as
applicable, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally,
concepts of reasonableness and equitable principles of general applicability; provided that we express no opinion as to the (w) enforceability of any waiver of rights under any usury or stay
law and (x) effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above.
In
connection with the opinions expressed above, we have assumed that (i) the Registration Statement shall have been declared effective and such effectiveness shall not have been suspended; (ii) the Indenture and the New Securities are each
valid, binding and enforceable agreements of each party thereto (other than as expressly covered above in respect of the Company and the Guarantors); and (iii) there shall not have occurred any change in law affecting the validity or
enforceability of any of the New Securities.
We are members of the Bar of the State of New York and the foregoing opinion is limited to the laws of the
State of New York, the General Corporation Law of the State of Delaware, the federal laws of the United States of America, and the Delaware Limited Liability Company Act.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to the reference to our name under the caption
“Validity of Securities” in the prospectus, which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act
of 1933, as amended.
Very truly yours,
/s/ Davis Polk & Wardwell LLP
Schedule I
Part A
Bath & Body Works Brand Management, Inc.
Bath & Body Works Direct, Inc.
Intimate Brands, Inc.
L Brands Direct Fulfillment, Inc.
L Brands Store
Design & Construction, Inc.
La Senza, Inc.
Mast
Industries, Inc.
Victoria’s Secret Stores Brand Management, Inc.
Part B
Bath & Body Works, LLC
beautyAvenues, LLC
Intimate Brands Holding, LLC
L Brands Service Company, LLC
Victoria’s Secret Direct
Brand Management, LLC
Victoria’s Secret Stores, LLC
Exhibit 12.1
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratios of earnings to fixed charges for the periods indicated.
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Thirty-Nine
Weeks
Ended
October 31,
2015
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Fiscal Year Ended
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January 31,
2015
|
|
|
February 1,
2014
|
|
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February 2,
2013
|
|
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January 28,
2012
|
|
|
January 29,
2011
|
|
|
Earnings:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
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Income before income taxes, noncontrolling interest and cumulative effect of change in accounting principle
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$
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952
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|
|
$
|
1,636
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|
|
$
|
1,446
|
|
|
$
|
1,280
|
|
|
$
|
1,226
|
|
|
$
|
1,251
|
|
|
Fixed charges (excluding capitalized interest)
|
|
|
339
|
|
|
|
440
|
|
|
|
429
|
|
|
|
426
|
|
|
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354
|
|
|
|
329
|
|
|
Distributions from equity method investments, net of income or loss from equity investees
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(3
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)
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(4
|
)
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49
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|
|
|
11
|
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—
|
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|
|
(3
|
)
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|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
Total earnings
|
|
$
|
1,288
|
|
|
$
|
2,072
|
|
|
$
|
1,924
|
|
|
$
|
1,717
|
|
|
$
|
1,580
|
|
|
$
|
1,577
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed charges:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Portion of minimum rent representative of interest
|
|
$
|
102
|
|
|
$
|
119
|
|
|
$
|
114
|
|
|
$
|
107
|
|
|
$
|
105
|
|
|
$
|
118
|
|
|
Interest on indebtedness (including capitalized interest)
|
|
|
240
|
|
|
|
324
|
|
|
|
314
|
|
|
|
317
|
|
|
|
246
|
|
|
|
208
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fixed charges
|
|
$
|
342
|
|
|
$
|
443
|
|
|
$
|
428
|
|
|
$
|
424
|
|
|
$
|
351
|
|
|
$
|
326
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Ratio of earnings to fixed charges
|
|
|
3.8x
|
|
|
|
4.7x
|
|
|
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4.5x
|
|
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4.1x
|
|
|
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4.5x
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4.8x
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For the purpose of calculating the ratios of earnings to fixed charges, we calculate earnings by adding fixed
charges and distributions from equity method investees, net of income or losses from equity method investees, to pre-tax income from continuing operations before noncontrolling interests in consolidated subsidiaries and cumulative effect of changes
in accounting principle. Fixed charges include total interest and a portion of rent expense, which we believe is representative of the interest factor of our rent expense. Interest associated with income tax liabilities is excluded from our
calculation.
Exhibit 15.1
January 25, 2016
To the Board of Directors and
Shareholders of L Brands, Inc.:
We are aware of the incorporation by reference in the Registration Statement (Form S-4 No. 333-000000) and related
Prospectus of L Brands, Inc. for the registration of $1 billion Exchange Senior Notes due 2035 of our reports dated June 5, 2015, September 4, 2015 and December 4, 2015 relating to the unaudited consolidated interim financial
statements of L Brands, Inc. and its subsidiaries included in the Form 10-Qs for the quarters ended May 2, 2015, August 1, 2015 and October 31, 2015.
/s/ Ernst & Young LLP
Columbus, Ohio
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form S-4 No. 333-000000) and related
Prospectus of L Brands, Inc. for the registration of $1 billion Exchange Senior Notes due 2035 and to the incorporation by reference therein of our report dated March 20, 2015, with respect to the consolidated financial statements of L Brands,
Inc., and the effectiveness of internal control over financial reporting of L Brands, Inc., included in its Annual Report (Form 10-K) for the year ended January 31, 2015, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Columbus, Ohio
January 25, 2016
Exhibit 24.1
L BRANDS, INC.
POWER
OF ATTORNEY
Each of the undersigned individuals, being members of the board of directors of L Brands, Inc., a Delaware corporation
(the “
Company
”), hereby constitutes and appoints each of Samuel Fried, Stuart Burgdoerfer and Shelley Milano, acting individually, his or her true and lawful attorney-in-fact and agent, with full power to act separately and 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 one or more registration statements on:
(i) Form S-3 (the “
Shelf Registration Statement
”) covering the sale and issuance of the Company’s common stock, preferred
stock, debt securities, guarantees of debt securities and any other securities in a registered offering or offerings, and any additional securities that may be registered under a registration statement filed pursuant to 462(b) of the Securities Act
of 1933, as amended that is related to the Shelf Registration Statement; and
(ii) Form S-4 (the “
Exchange Registration
Statement
”) relating to the exchange of $1.0 billion aggregate principal amount of 6.857% Senior Notes due 2035 (the “
144A/Reg S Notes
”) for newly issued notes (the “
Exchange Notes
”) of the Company with
terms substantially identical in all material respects to the 144A/Reg S Notes (except that the Exchange Notes will not contain terms with respect to transfer restrictions or any increase in interest rate) pursuant to the exchange offer contemplated
in the Registration Rights Agreement dated October 30, 2015 between the Company and the initial purchasers of the 144A/Reg S Notes;
each under the
Securities Exchange Act of 1933, as amended, or such other form as any such attorney-in-fact may deem necessary or desirable, any amendments thereto, and all additional amendments thereto, each in such form as they or any one of them may approve,
and to file the same with all exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission so that such registration statements shall comply with the Securities Exchange Act of 1933, as amended, and the
applicable Rules and Regulations adopted or issued pursuant thereto, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitute or resubstitute, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, each of the undersigned has duly executed and delivered this power of attorney as of the 5
th
day of November, 2015.
[
Signature Pages to Follow
]
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|
|
/s/ Leslie H. Wexner
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Name:
|
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Leslie H. Wexner
|
|
Title:
|
|
Chairman and Chief Executive Officer
|
|
|
|
/s/ Dr. E. Gordon Gee
|
|
Name:
|
|
Dr. E. Gordon Gee
|
|
Title:
|
|
Director
|
|
|
|
/s/ Dennis S. Hersch
|
|
Name:
|
|
Dennis S. Hersch
|
|
Title:
|
|
Director
|
|
|
|
/s/ Donna A. James
|
|
Name:
|
|
Donna A. James
|
|
Title:
|
|
Director
|
|
|
|
/s/ David T. Kollat
|
|
Name:
|
|
David T. Kollat
|
|
Title:
|
|
Director
|
|
|
|
/s/ William R. Loomis, Jr.
|
|
Name:
|
|
William R. Loomis, Jr.
|
|
Title:
|
|
Director
|
|
|
|
/s/ Jeffrey H. Miro
|
|
Name:
|
|
Jeffrey H. Miro
|
|
Title:
|
|
Director
|
|
|
|
/s/ Michael G. Morris
|
|
Name:
|
|
Michael G. Morris
|
|
Title:
|
|
Director
|
|
|
|
/s/ Allan R. Tessler
|
|
Name:
|
|
Allan R. Tessler
|
|
Title:
|
|
Director
|
|
|
|
/s/ Stephen D. Steinour
|
|
Name:
|
|
Stephen D. Steinour
|
|
Title:
|
|
Director
|
|
|
|
/s/ Abigail S. Wexner
|
|
Name:
|
|
Abigail S. Wexner
|
|
Title:
|
|
Director
|
|
|
|
/s/ Raymond Zimmerman
|
|
Name:
|
|
Raymond Zimmerman
|
|
Title:
|
|
Director
|
Exhibit 25.1
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF
ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
|
¨
|
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
|
THE BANK OF
NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
|
|
|
|
|
|
|
95-3571558
|
|
(Jurisdiction of incorporation
if not a U.S. national bank)
|
|
(I.R.S. employer
identification no.)
|
|
|
|
|
400 South Hope Street
Suite 400
Los Angeles,
California
|
|
90071
|
|
(Address of principal executive offices)
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(Zip code)
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L BRANDS, INC.
(Exact
name of obligor as specified in its charter)
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Delaware
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31-1029810
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. employer
identification no.)
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TABLE OF ADDITIONAL REGISTRANTS
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Exact Name of Registrant as Specified in Its Charter
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State or Other
Jurisdiction of
Incorporation or
Organization
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I.R.S. Employer
Identification Number
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Bath & Body Works Brand Management, Inc.
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Delaware
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52-2450868
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Bath & Body Works Direct, Inc.
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Delaware
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20-3048392
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Bath & Body Works, LLC
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Delaware
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52-2455381
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beautyAvenues, LLC
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Delaware
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52-2450857
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Intimate Brands, Inc.
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Delaware
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51-0346269
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Intimate Brands Holding, LLC
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Delaware
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90-0648718
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L Brands Direct Fulfillment, Inc.
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Delaware
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52-2450847
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L Brands Service Company, LLC
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Delaware
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31-1048997
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L Brands Store Design & Construction, Inc.
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Delaware
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31-1301070
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La Senza, Inc
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Delaware
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01-0960215
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Mast Industries, Inc.
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Delaware
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04-2468696
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Victoria’s Secret Direct Brand Management, LLC
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Delaware
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52-2450873
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Victoria’s Secret Stores Brand Management, Inc.
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Delaware
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52-2450861
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Victoria’s Secret Stores, LLC
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Delaware
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54-2170171
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Three Limited Parkway
Columbus, Ohio
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43230
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(Address of principal executive offices)
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(Zip code)
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6.875% Senior Notes due 2035
and Guarantees of 6.875% Senior Notes due 2035
(Title of the indenture securities)
- 2 -
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1.
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General information. Furnish the following information as to the trustee:
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(a)
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Name and address of each examining or supervising authority to which it is subject.
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Name
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Address
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Comptroller of the Currency
United States Department of the Treasury
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Washington, DC 20219
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Federal Reserve Bank
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San Francisco, CA 94105
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Federal Deposit Insurance Corporation
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Washington, DC 20429
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(b)
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Whether it is authorized to exercise corporate trust powers.
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Yes.
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2.
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Affiliations with Obligor.
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If the obligor is an affiliate of the trustee, describe
each such affiliation.
None.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29
under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
|
|
1.
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A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement
No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).
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2.
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A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948).
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3.
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A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875).
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- 3 -
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4.
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A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-162713).
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6.
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The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).
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7.
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A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
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- 4 -
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and
existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Los Angeles, and State of California, on the 21st day
of January, 2016.
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THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
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By:
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/s/ Valere Boyd
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Name:
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Valere Boyd
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Title:
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Vice President
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- 5 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 400 South Hope Street, Suite 400, Los Angeles, CA 90071
At the close of business September 30, 2015, published in accordance with Federal regulatory authority instructions.
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Dollar amounts
in thousands
|
|
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ASSETS
|
|
|
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Cash and balances due from depository institutions:
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|
|
|
|
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Noninterest-bearing balances and currency and coin
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|
|
2,276
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|
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Interest-bearing balances
|
|
|
244,568
|
|
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Securities:
|
|
|
|
|
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Held-to-maturity securities
|
|
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0
|
|
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Available-for-sale securities
|
|
|
681,351
|
|
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Federal funds sold and securities purchased under agreements to resell:
|
|
|
|
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Federal funds sold
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|
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0
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|
Securities purchased under agreements to resell
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|
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0
|
|
|
Loans and lease financing receivables:
|
|
|
|
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Loans and leases held for sale
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|
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0
|
|
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Loans and leases, net of unearned income
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|
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0
|
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LESS: Allowance for loan and lease losses
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|
|
0
|
|
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Loans and leases, net of unearned income and allowance
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|
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0
|
|
|
Trading assets
|
|
|
0
|
|
|
Premises and fixed assets (including capitalized leases)
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|
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11,809
|
|
|
Other real estate owned
|
|
|
0
|
|
|
Investments in unconsolidated subsidiaries and associated companies
|
|
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0
|
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Direct and indirect investments in real estate ventures
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|
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0
|
|
|
Intangible assets:
|
|
|
|
|
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Goodwill
|
|
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856,313
|
|
|
Other intangible assets
|
|
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83,975
|
|
|
Other assets
|
|
|
124,507
|
|
|
|
|
|
|
|
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Total assets
|
|
$
|
2,004,799
|
|
|
|
|
|
|
|
|
|
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|
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LIABILITIES
|
|
|
|
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Deposits:
|
|
|
|
|
|
In domestic offices
|
|
|
502
|
|
|
Noninterest-bearing
|
|
|
502
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|
|
Interest-bearing
|
|
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0
|
|
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Not applicable
|
|
|
|
|
|
Federal funds purchased and securities sold under agreements to repurchase:
|
|
|
|
|
|
Federal funds purchased
|
|
|
0
|
|
|
Securities sold under agreements to repurchase
|
|
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0
|
|
|
Trading liabilities
|
|
|
0
|
|
|
Other borrowed money:
|
|
|
|
|
|
(includes mortgage indebtedness and obligations under capitalized leases)
|
|
|
0
|
|
|
Not applicable
|
|
|
|
|
|
Not applicable
|
|
|
|
|
|
Subordinated notes and debentures
|
|
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0
|
|
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Other liabilities
|
|
|
279,624
|
|
|
Total liabilities
|
|
|
280,126
|
|
|
Not applicable
|
|
|
|
|
|
|
|
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EQUITY CAPITAL
|
|
|
|
|
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Perpetual preferred stock and related surplus
|
|
|
0
|
|
|
Common stock
|
|
|
1,000
|
|
|
Surplus (exclude all surplus related to preferred stock)
|
|
|
1,122,404
|
|
|
Not available
|
|
|
|
|
|
Retained earnings
|
|
|
600,880
|
|
|
Accumulated other comprehensive income
|
|
|
389
|
|
|
Other equity capital components
|
|
|
0
|
|
|
Not available
|
|
|
|
|
|
Total bank equity capital
|
|
|
1,724,673
|
|
|
Noncontrolling (minority) interests in consolidated subsidiaries
|
|
|
0
|
|
|
Total equity capital
|
|
|
1,724,673
|
|
|
|
|
|
|
|
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Total liabilities and equity capital
|
|
|
2,004,799
|
|
|
|
|
|
|
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I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income
(including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the
supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is
true and correct.
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|
|
|
|
|
|
Antonio I. Portuondo, President
|
|
)
|
|
|
|
William D. Lindelof, Director
|
|
)
|
|
Directors (Trustees)
|
|
Alphonse J. Briand, Director
|
|
)
|
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|
Exhibit 99.1
L Brands, Inc.
LETTER OF TRANSMITTAL
FOR TENDER OF ALL OUTSTANDING
$1,000,000,000 Aggregate Principal Amount of
6.875% Senior Notes Due 2035 Issued on October 30, 2015
in Exchange for 6.875% Senior Notes Due 2035
That Have Been Registered Under the
Securities Act of 1933
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
[
●
] [
●
], 2016, UNLESS EXTENDED (THE “EXPIRATION DATE”). TENDERS IN THE
EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M.,
NEW YORK CITY TIME, ON THE EXPIRATION DATE.
Deliver to the Exchange Agent:
The Bank of New York Mellon Trust Company, N.A.
By Mail:
The Bank of New
York Mellon Trust Company, N.A.
c/o The Bank of New York Mellon Corporation
Corporate Trust Operations
Reorganization Unit
111 Sanders
Creek Parkway
East Syracuse, NY 13057
Attn: Allissa Overton
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|
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|
By Registered or Certified Mail
or Overnight Courier:
The Bank of New York Mellon Trust Company, N.A.
c/o The Bank of New York Mellon Corporation
Corporate Trust Operations
Reorganization Unit
111 Sanders
Creek Parkway
East Syracuse, NY 13057
Attn: Allissa Overton
|
|
By Hand in New York:
The Bank of New York Mellon Trust Company, N.A.
c/o The Bank of New York Mellon Corporation
Corporate Trust Operations
Reorganization Unit
111 Sanders
Creek Parkway
East Syracuse, NY 13057
Attn: Allissa Overton
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|
|
|
By Facsimile Transmission:
(for Eligible Institutions Only)
Fax: (732) 667-9408
Confirm by
Telephone: (315) 414-3362
|
Delivery of this instrument to an address other than as set forth above or transmission of instructions via
a facsimile number other than the one listed above will not constitute a valid delivery. The instructions accompanying this Letter of Transmittal should be read carefully before this Letter of Transmittal is completed.
The undersigned hereby acknowledges receipt of the prospectus dated [●] [●], 2016
(the “Prospectus”) of L Brands, Inc., a Delaware corporation (the “Company”), and this Letter of Transmittal, which together describe the offer by the Company (the “exchange offer”) to exchange 6.875% Senior Notes
Due 2035 (the “New Notes”), which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement of which the Prospectus is a part, for a like principal amount of
6.875% Senior Notes Due 2035 issued on October 30, 2015 (the “Old Notes”). Certain terms used but not defined herein have the respective meanings given to them in the Prospectus.
The Company reserves the right, at any time or from time to time, to extend the exchange offer at its discretion, in which event the term
“Expiration Date” shall mean the latest time and date to which the exchange offer is extended. The Company shall give notice of any extension by giving written notice to The Bank of New York Mellon Trust Company, N.A., the exchange agent,
and by making a public announcement by press release to Businesswire, the PR Newswire or other national newswire service. The term “business day” shall mean any day that is not a Saturday, Sunday or day on which banks are authorized by law
to close in the State of New York.
This Letter of Transmittal is to be used by a holder of Old Notes if (i) Old Notes are to be
physically forwarded herewith to the exchange agent or (ii) if delivery of Old Notes is to be made by book-entry transfer to the account maintained by the exchange agent at the book-entry transfer facility pursuant to the procedures set forth
in the Prospectus under the caption “The Exchange Offer—How to Tender—Book-Entry Transfer.” Holders of Old Notes whose Old Notes are not immediately available, or who are unable to deliver their Old Notes and all other documents
required by this Letter of Transmittal to the exchange agent on or prior to the Expiration Date, or who are unable to complete the procedure for book-entry transfer on a timely basis, must tender their Old Notes according to the guaranteed delivery
procedures set forth in the Prospectus under the caption “The Exchange Offer—How to Tender—Guaranteed Delivery Procedures.” Delivery of documents to the book-entry transfer facility does not constitute delivery to the exchange
agent.
The term “holder” with respect to the exchange offer means any person in whose name Old Notes are registered on the
books of the Company. The undersigned has completed, executed and delivered this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the exchange offer. Holders who wish to tender their Old Notes must
complete this Letter of Transmittal in its entirety.
Please read this entire Letter of Transmittal and the Prospectus carefully before
checking any box below.
The instructions included with this Letter of Transmittal must be followed. Questions and requests for
assistance for additional copies of the Prospectus and this Letter of Transmittal may be directed to the exchange agent.
List below the Old Notes to which this Letter of Transmittal relates. If the space below is
inadequate, list the registered numbers and principal amounts on a separate signed schedule and affix the list to this Letter of Transmittal.
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|
DESCRIPTION OF OLD NOTES TENDERED
|
|
Name(s) and Address(es) of
Registered Holder(s)
Exactly as Name(s) Appear(s)
on Old Notes.
(Please Fill
in, if Blank)
|
|
Old Notes
Tendered
(attach additional list if necessary)
|
|
|
|
Principal
Represented
Tendered**
|
|
Principal
Amount
|
|
Registered
Numbers(s)*
|
|
Aggregate
Amount
by Bond(s)
|
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* Need not be completed by book-entry holders.
** Unless otherwise indicated, any tendering holder of Old Notes will be deemed to have tendered the entire
aggregate principal amount represented by such Old Notes. All tenders will be accepted only in integral multiples of $1,000.
|
|
¨
|
CHECK HERE IF TENDERED OLD NOTES ARE ENCLOSED HEREWITH.
|
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¨
|
CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE
INSTITUTIONS ONLY):
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Name of Tendering Institution:
|
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¨
|
CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS ONLY):
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Name(s) of Registered Holder(s) of Old Notes:
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Date of Execution of Notice of Guaranteed Delivery:
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Window Ticket Number (if available):
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Name of Eligible Institution that Guaranteed Delivery:
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Account Number (if delivered by book-entry transfer):
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¨
|
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO:
|
3
Ladies and Gentlemen:
The undersigned hereby tenders to L Brands, Inc., a Delaware corporation (the “Company”), the principal amount of the Company’s
6.875% Senior Notes due 2035 (the “Old Notes”) specified above in exchange for a like aggregate principal amount of the Company’s 6.875% Exchange Senior Notes due 2035 (the “New Notes”), upon the terms and subject to the
conditions set forth in the Prospectus dated [●] [●], 2016 (as the same may be amended or supplemented from time to time, the “Prospectus”), receipt of which is acknowledged, and in this Letter of Transmittal (which, together
with the Prospectus, constitute the “Exchange Offer”). The Exchange Offer has been registered under the Securities Act of 1933, as amended (the “Securities Act”).
Subject to and effective upon the acceptance for exchange of all or any portion of the Old Notes tendered herewith in accordance with the terms
and conditions of the Exchange Offer (including, if the Exchange Offer is extended or amended, the terms and conditions of any such extension or amendment), the undersigned hereby sells, assigns and transfers to or upon the order of the Company all
right, title and interest in and to such Old Notes as are being tendered herewith. The undersigned hereby irrevocably constitutes and appoints the exchange agent as its agent and attorney-in-fact (with full knowledge that the exchange agent is also
acting as agent of the Company in connection with the Exchange Offer) with respect to the tendered Old Notes, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), subject only to
the right of withdrawal described in the Prospectus, to (i) deliver certificates for Old Notes to the Company together with all accompanying evidences of transfer and authenticity to, or upon the order of, the Company, upon receipt by the
exchange agent, as the undersigned’s agent, of the New Notes to be issued in exchange for such Old Notes, (ii) present certificates for such Old Notes for transfer, and to transfer the Old Notes on the books of the Company, and
(iii) receive for the account of the Company all benefits and otherwise exercise all rights of beneficial ownership of such Old Notes, all in accordance with the terms and conditions of the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER
THE OLD NOTES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR EXCHANGE, THE COMPANY WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES, AND THAT THE OLD NOTES
TENDERED HEREBY ARE NOT SUBJECT TO ANY ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE COMPANY OR THE EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE,
ASSIGNMENT AND TRANSFER OF THE OLD NOTES TENDERED HEREBY, AND THE UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE REGISTRATION RIGHTS AGREEMENT. THE UNDERSIGNED AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the Old Notes tendered hereby should be printed above, if they are not already set
forth above, as they appear on the certificates representing such Old Notes. The certificate number(s) and the Old Notes that the undersigned wishes to tender should be indicated in the appropriate boxes above.
If any tendered Old Notes are not exchanged pursuant to the Exchange Offer for any reason, or if certificates are submitted for more Old Notes
than are tendered or accepted for exchange, certificates for such unaccepted or nonexchanged Old Notes will be returned (or, in the case of Old Notes tendered by book-entry transfer, such Old Notes will be credited to an account maintained at DTC),
without expense to the tendering holder, promptly following the expiration or termination of the Exchange Offer.
The undersigned
understands that tenders of Old Notes pursuant to any one of the procedures described in “The Exchange Offer—How To Tender” in the Prospectus and in the instructions hereto will, upon the Company’s acceptance for exchange of such
tendered Old Notes, constitute a binding agreement between the undersigned and the Company upon the terms and subject to the conditions of the Exchange Offer. In all cases in which a participant elects to accept the Exchange Offer by transmitting an
express acknowledgment in accordance with the established ATOP procedures, such participant shall be bound by all of the terms and conditions of this Letter of Transmittal. The undersigned recognizes that, under certain circumstances set forth in
the Prospectus, the Company may not be required to accept for exchange any of the Old Notes tendered hereby.
Upon the terms and subject to
the conditions of the Exchange Offer, the acceptance for exchange of Old Notes validly tendered and not withdrawn and the issuance of the New Notes will be made on the exchange date. For the purposes of the Exchange Offer, the Company shall be
deemed to have accepted for exchange validly tendered Old Notes when, as and if the Company gives written notice thereof to the exchange agent. Any tendered Old Notes that are not accepted for exchange pursuant to the Exchange Offer for any reason
will be returned, without expense, to the undersigned at the address shown below or at a different address as may be indicated herein under “Special Delivery Instructions” as promptly as practicable after the Expiration Date.
Unless otherwise indicated under “Special Issuance Instructions,” please issue the New Notes issued in exchange for the Old Notes
accepted for exchange, and return any Old Notes not tendered or not exchanged, in the name(s) of the undersigned. Similarly, unless otherwise indicated under “Special Delivery Instructions,” please mail or deliver the New Notes issued in
exchange for the Old Notes accepted for exchange and any Old Notes not tendered or not exchanged (and accompanying documents, as appropriate) to the
4
undersigned at the address shown below the undersigned’s signature(s). In the event that both “Special Issuance Instructions” and “Special Delivery Instructions” are
completed, please issue the New Notes issued in exchange for the Old Notes accepted for exchange in the name(s) of, and return any Old Notes not tendered or not exchanged to, the person(s) so indicated. The undersigned recognizes that the Company
has no obligation pursuant to the “Special Issuance Instructions” and “Special Delivery Instructions” to transfer any Old Notes from the name of the registered holder(s) thereof if the Company does not accept for exchange any of
the Old Notes so tendered for exchange.
The undersigned acknowledges that the New Notes issued in exchange for the Old Notes pursuant to
the Exchange Offer may be offered for resale, resold and otherwise transferred by holders thereof (other than a broker-dealer who purchased Old Notes exchanged for such New Notes directly from the Company to resell pursuant to Rule 144A or any other
available exemption under the Securities Act or a person that is an “affiliate” of the Company within the meaning of Rule 405 under the Securities Act) without compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such New Notes are acquired in the ordinary course of such holders’ business and such holders are not participating in, and have no arrangement with any person to participate in, the distribution of such New Notes.
By tendering Old Notes and executing, or otherwise becoming bound by, this Letter of Transmittal, the undersigned hereby represents and
agrees that:
(i) the undersigned is not an “affiliate” (as defined in Rule 405 under the Securities Act) of the
Company or a broker-dealer tendering Old Notes acquired directly from the Company for resale pursuant to Rule 144A or any other available exemption under the Security Act;
(ii) any New Notes to be received by the undersigned are being acquired in the ordinary course of its business, and
(iii) the undersigned has no arrangements or understandings with any person to participate, and is not engaged and does not
intend to engage, in a distribution (within the meaning of the Securities Act) of such New Notes.
By tendering Old Notes pursuant to the
Exchange Offer and executing, or otherwise becoming bound by, this Letter of Transmittal, a holder of Old Notes which is a broker-dealer represents and agrees, consistent with certain interpretive letters issued by the staff of the Division of
Corporation Finance of the Securities and Exchange Commission to third parties, that (a) such Old Notes held by the broker-dealer are held only as a nominee, or (b) such Old Notes were acquired by such broker-dealer for its own account as
a result of market-making activities or other trading activities and it will deliver the prospectus (as amended or supplemented from time to time) meeting the requirements of the Securities Act in connection with any resale of such New Notes
(provided that, by so acknowledging and by delivering a prospectus, such broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act).
The undersigned acknowledges that if the undersigned is participating in the Exchange Offer for the purpose of distributing the New Notes:
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the undersigned must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction of the New Notes, in which case the registration statement
must contain the selling security holder information required by Item 507 or Item 508, as applicable, of Regulation S-K of the SEC; and
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•
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failure to comply with such requirements in such instance could result in the undersigned incurring liability for which the undersigned is not indemnified by the Company.
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The Company and the Guarantors have agreed that, subject to the provisions of the Registration Rights Agreement, the Prospectus, as it may be
amended or supplemented from time to time, may be used by a participating broker-dealer (as defined below) in connection with resales of New Notes received in exchange for Old Notes, where such Old Notes were acquired by such participating
broker-dealer for its own account as a result of market-making activities or other trading activities, for a period ending 180 days after the expiration date (subject to extension under certain limited circumstances) or, if earlier, when all such
New Notes have been disposed of by such participating broker-dealer. In that regard, each broker-dealer who acquired Old Notes for its own account as a result of market-making or other trading activities (a “participating broker-dealer”),
by tendering such Old Notes and executing, or otherwise becoming bound by, this Letter of Transmittal, agrees that, upon receipt of notice from the Company of the occurrence of any event or the discovery of any fact which makes any statement
contained in the Prospectus untrue in any material respect or which causes the Prospectus to omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not
misleading or of the occurrence of certain other events specified in the Registration Rights Agreement, such participating broker-dealer will suspend the sale of New Notes pursuant to the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission and has furnished copies of the amended or supplemented Prospectus to the participating broker-dealer or the Company has given notice that the sale of the New Notes may be resumed, as the case may
be.
5
All authority herein conferred or agreed to be conferred in this Letter of Transmittal shall
survive the death or incapacity of the undersigned and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, personal representatives, trustees in bankruptcy, legal representatives successors and
assigns of the undersigned. The undersigned agrees that acceptance of any tendered Old Notes by the Company and the issuance of New Notes in exchange therefor shall constitute performance in full by the Company of its obligations under the
Registration Rights Agreement and that, upon the issuance of the New Notes, the Company will have no further obligations or liabilities thereunder, subject only to limited exceptions applicable to persons to whom the Exchange Offer is not available.
Except as stated in the Prospectus, this tender is irrevocable.
6
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IMPORTANT
PLEASE SIGN HERE WHETHER OR NOT OLD NOTES
ARE BEING PHYSICALLY TENDERED HEREBY
(Complete Accompanying Substitute Form W-9 on Reverse Side)
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(Signature(s) of Registered Holder(s) of Old Notes)
Dated:
, 2016
(The above lines must be signed by the registered holder(s) of Old Notes as their name(s) appear(s) on the Old Notes or on a security position listing, or by
person(s) authorized to become registered holder(s) by a properly completed bond power from the registered holder(s), a copy of which must be transmitted with this Letter of Transmittal. If Old Notes to which this Letter of Transmittal relate are
held of record by two or more joint holders, then all such holders must sign this Letter of Transmittal. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a
fiduciary or representative capacity, then such person must set forth his or her full title below and, unless waived by the Company, submit evidence satisfactory to the Company of such person’s authority so to act. See Instruction 5 regarding
the completion of this Letter of Transmittal, printed below.)
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Name:
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(Please Type or Print)
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Address:
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(Include Zipcode)
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Area Code and Telephone Number:
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SIGNATURE GUARANTEE
(If Required by Instruction 5)
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Certain signatures must be guaranteed by an eligible institution.
Signature(s) guaranteed by an eligible institution:
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(Authorized Signature)
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(Title)
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(Name of Firm)
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(Address, Include Zip Code)
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(Area Code and Telephone Number)
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Dated
, 2016
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7
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SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 5 and 6)
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To be completed ONLY if (i) Old
Notes in a principal amount not tendered, or New Notes issued in exchange for Old Notes accepted for exchange, are to be issued in the name of someone other than the undersigned, or (ii) Old Notes tendered by book-entry transfer that are not
exchanged are to be returned by credit to an account maintained at the book-entry transfer facility other than the account indicated above.
Issue New Notes and/or Old Notes to:
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Name
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(Please Print or Type)
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(Include Zip Code)
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(Tax Identification or Social Security Number)
¨
Credit un-exchanged Old Notes delivered by book-entry transfer to the book-entry transfer facility account number set forth below:
Book-entry transfer facility
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account number:
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(Complete Substitute Form W-9)
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SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 5 and 6)
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To be completed ONLY if Old Notes in a
principal amount not tendered, or New Notes issued in exchange for Old Notes accepted for exchange, are to be mailed or delivered to someone other than the undersigned, or to the undersigned at an address other than that shown below the
undersigned’s signature.
Mail or deliver New Notes and/or Old Notes to:
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Name
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(Please Print or Type)
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Address
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(Include Zip Code)
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(Tax Identification or Social Security Number)
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8
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND OLD NOTES OR BOOK-ENTRY CONFIRMATIONS. This Letter of Transmittal is to be completed if
certificates are to be forwarded herewith and, unless your Old Notes are held through DTC, should be accompanied by the certificates for the Old Notes. If tenders are to be made pursuant to the procedures for tender by book-entry transfer set forth
in “The Exchange Offer—Book-Entry Transfer” in the Prospectus and in accordance with ATOP established by DTC, a tendering holder will become bound by the terms and conditions hereof in accordance with the procedures established under
ATOP. Certificates, or timely confirmation of a book-entry transfer of such Old Notes into the exchange agent’s account at DTC, as well as a properly completed and duly executed copy of this Letter of Transmittal (or facsimile hereof), with any
required signature guarantees, or an agent’s message in lieu thereof, and any other required documents, must be received by the exchange agent at its address set forth herein prior to 5:00 p.m., New York City time, on the Expiration Date. The
method of delivery of the tendered Old Notes, this Letter of Transmittal and all other required documents to the exchange agent is at the election and risk of the holder and, except as otherwise provided below, the delivery will be deemed made only
when actually received or confirmed by the exchange agent. Instead of delivery by mail, it is recommended that the holder use an overnight or hand delivery service. If such delivery is by mail, it is recommended that registered mail with return
receipt requested properly insured, be used. In all cases, sufficient time should be allowed to assure delivery to the exchange agent before the Expiration Date. No Letter of Transmittal or Old Notes should be sent to the Company.
2. GUARANTEED DELIVERY PROCEDURES. Holders who wish to tender their Old Notes and whose Old Notes are not immediately available or who cannot
deliver their Old Notes, this Letter of Transmittal or any other documents required hereby to the exchange agent prior to the Expiration Date or who cannot complete the procedure for book-entry transfer on a timely basis, must tender their Old Notes
according to the guaranteed delivery procedures set forth in the Prospectus. Pursuant to such procedures:
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such tender must be made by or through a firm that is a member of a registered national securities exchange or of the National Association of Securities Dealers Inc., a commercial bank or a trust company having an
office or correspondent in the United States or an “eligible guarantor institution” within the meaning of Rule 17Ad-15 under the Exchange Act (an “eligible guarantor institution”);
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prior to the Expiration Date, the exchange agent must have received from the eligible guarantor institution a properly completed and duly executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand
delivery) setting forth the name and address of the holder of the Old Notes, the registration number(s) of such Old Notes and the total principal amount of Old Notes tendered, stating that the tender is being made thereby and guaranteeing that,
within three New York Stock Exchange trading days after the Expiration Date, this Letter of Transmittal (or facsimile hereof), or an agent’s message in lieu thereof, together with the Old Notes in proper form for transfer (or a book-entry
confirmation) and any other documents required hereby, will be deposited by the eligible guarantor institution with the exchange agent; and
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the certificates for all physically tendered shares of Old Notes, in proper form for transfer, and all other documents required hereby must be received by the exchange agent three New York Stock Exchange trading days
after the Expiration Date.
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Any holder of Old Notes who wishes to tender Old Notes pursuant to the guaranteed delivery
procedures described above must ensure that the exchange agent receives the Notice of Guaranteed Delivery prior to 5:00 p.m., New York City time, on the Expiration Date. Upon request of the exchange agent, a Notice of Guaranteed Delivery will
be sent to holders who wish to tender their Old Notes according to the guaranteed delivery procedures set forth above. See “The Exchange Offer—How to Tender—Guaranteed Delivery Procedures” section of the Prospectus.
3. TENDER BY HOLDER. Only a holder of Old Notes may tender such Old Notes in the Exchange Offer. Any beneficial owner of Old Notes who is not
the registered holder and who wishes to tender should arrange with the registered holder to execute and deliver this Letter of Transmittal on his behalf or must, prior to completing and executing this Letter of Transmittal and delivering his Old
Notes, either make appropriate arrangements to register ownership of the Old Notes in such beneficial owner’s name or obtain a properly completed bond power from the registered holder.
4. PARTIAL TENDERS. Tenders of Old Notes will be accepted only in integral multiples of $1,000. If less than the entire principal amount of
any Old Notes is tendered, the tendering holder should fill in the principal amount tendered in the third column of the box entitled “Description of Old Notes Tendered” above. The entire principal amount of Old Notes delivered to the
exchange agent will be deemed to have been tendered unless otherwise indicated. If the entire principal amount of all Old Notes is not tendered, then Old Notes for the principal amount of Old Notes not tendered and New Notes issued in exchange for
any Old Notes accepted will be sent to the holder at his or her registered address, unless a different address is provided in the appropriate box on this Letter of Transmittal, promptly after the Old Notes are accepted for exchange.
9
5. SIGNATURES ON THIS LETTER OF TRANSMITTAL. Bond Powers and Endorsements; Guarantee of
Signatures. If this Letter of Transmittal (or facsimile hereof) is signed by the record holder(s) of the Old Notes tendered hereby, the signature must correspond with the name(s) as written on the face of the Old Notes without alteration,
enlargement or any change whatsoever.
If this Letter of Transmittal (or facsimile hereof) is signed by the registered holder or holders of
Old Notes listed and tendered hereby and the New Notes issued in exchange therefor are to be issued (or any untendered principal amount of Old Notes is to be reissued) to the registered holder, the said holder need not and should not endorse any
tendered Old Notes, nor provide a separate bond power. In any other case, such holder must either properly endorse the Old Notes tendered or transmit a properly completed separate bond power with this Letter of Transmittal, with the signatures on
the endorsement or bond power guaranteed by an eligible guarantor institution that is a member of a recognized signature guarantee medallion program within the meaning of Rule 17Ad-15 under the Exchange Act.
If this Letter of Transmittal (or facsimile hereof) is signed by a person other than the registered holder or holders of any Old Notes listed,
such Old Notes must be endorsed or accompanied by appropriate bond powers, in each case signed as the name of the registered holder or holders appears on the Old Notes.
If this Letter of Transmittal (or facsimile hereof) or any Old Notes or bond powers are signed by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company, evidence satisfactory to the Company of their
authority to act must be submitted with this Letter of Transmittal.
Endorsements on Old Notes or signatures on bond powers required by
this Instruction 5 must be guaranteed by an eligible guarantor institution.
No signature guarantee is required if:
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this Letter of Transmittal (or facsimile hereof) is signed by the registered holder(s) of the Old Notes tendered herein and the New Notes are to be issued directly to such registered holder(s) and neither the box
entitled “Special Delivery Instructions” nor the box entitled “Special Issuance Instructions” has been completed; or
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•
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such Old Notes are tendered for the account of an eligible guarantor institution.
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In all other
cases, all signatures on this Letter of Transmittal (or facsimile hereof) must be guaranteed by an eligible guarantor institution.
6.
SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. Tendering holders should indicate, in the applicable box or boxes, the name and address (or account at the book-entry transfer facility) to which New Notes or substitute Old Notes for principal amounts not
tendered or not accepted for exchange are to be issued or sent, if different from the name and address of the person signing this Letter of Transmittal. In the case of issuance in a different name, the taxpayer identification or social security
number of the person named must also be indicated.
7. TRANSFER TAXES. Holders who tender their Old Notes for exchange will not be
obligated to pay any transfer taxes in connection with the exchange. If, however, New Notes or Old Notes for principal amounts not tendered or accepted for exchange are to be delivered to, or are to be registered or issued in the name of, any person
other than the registered holder of the Old Notes tendered hereby, or if tendered Old Notes are registered in the name of any person other than the person signing this Letter of Transmittal, or if a transfer tax is imposed for any reason other than
the exchange of Old Notes pursuant to the Exchange Offer, then the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such
taxes or exemption from such payment is not submitted with this Letter of Transmittal, the amount of such transfer taxes will be billed directly to such tendering holder.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 7, IT WILL NOT BE NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE OLD NOTES LISTED IN THIS LETTER
OF TRANSMITTAL.
8. TAX IDENTIFICATION NUMBER. Federal income tax law requires that a holder of any Old Notes that are accepted for
exchange must provide the Company (as payor) with its correct taxpayer identification number (“TIN”), which, in the case of a holder who is an individual, is his or her social security number. If the Company is not provided with the
correct TIN, the holder may be subject to a $50 penalty imposed by the Internal Revenue Service (the “IRS”). (If withholding results in an over-payment of taxes, a refund may be obtained). Certain holders (including, among others, all
corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. See the enclosed “Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9” for additional
instructions.
10
To prevent backup withholding, each tendering holder must provide such holder’s correct TIN
by completing the Substitute Form W-9 set forth herein, certifying that the TIN provided is correct (or that such holder is awaiting a TIN), and that:
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the holder has not been notified by the IRS that such holder is subject to backup withholding as a result of failure to report all interest or dividends; or
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the IRS has notified the holder that such holder is no longer subject to backup withholding.
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If the Old Notes are registered in more than one name or are not in the name of the actual owner, see the enclosed “Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9” for information on which TIN to report.
The Company reserves
the right in its sole discretion to take whatever steps are necessary to comply with the Company’s obligations regarding backup withholding.
9. VALIDITY OF TENDERS. All questions as to the validity, form, eligibility (including time of receipt), acceptance and withdrawal of tendered
Old Notes will be determined by the Company in its sole discretion, which determination will be final and binding. The Company reserves the absolute right to reject any and all Old Notes not properly tendered or any Old Notes the acceptance of which
would, in the opinion of the Company or its counsel, be unlawful. The Company also reserves the absolute right to waive any conditions of the Exchange Offer or defects or irregularities in tenders as to particular Old Notes. The interpretation of
the terms and conditions by the Company of the Exchange Offer (which includes this Letter of Transmittal and the instructions hereto) shall be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders
of Old Notes must be cured within such time as the Company shall determine. Neither the Company, the exchange agent nor any other person shall be under any duty to give notification of defects or irregularities with regard to tenders of Old Notes
nor shall any of them incur any liability for failure to give such information.
10. WAIVER OF CONDITIONS. The Company reserves the
absolute right to waive, in whole or in part, any of the conditions to the Exchange Offer set forth in the Prospectus.
11. NO CONDITIONAL
TENDER. No alternative, conditional, irregular or contingent tender of Old Notes or transmittal of this Letter of Transmittal will be accepted.
12. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES. Any holder whose Old Notes have been mutilated, lost, stolen or destroyed should contact
the exchange agent at the address indicated above for further instructions.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests
for assistance or for additional copies of the Prospectus or this Letter of Transmittal may be directed to the exchange agent at the address or telephone number set forth on the cover page of this Letter of Transmittal. Holders may also contact
their broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Exchange Offer.
14. WITHDRAWAL.
Tenders may be withdrawn only pursuant to the withdrawal rights set forth in the Prospectus under the caption “The Exchange Offer—Withdrawal Rights.”
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED FACSIMILE HEREOF OR AN AGENT’S MESSAGE IN LIEU THEREOF (TOGETHER WITH THE
OLD NOTES DELIVERED BY BOOK-ENTRY TRANSFER OR IN ORIGINAL HARD COPY FORM) MUST BE RECEIVED BY THE EXCHANGE AGENT, OR THE NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT, PRIOR TO THE EXPIRATION DATE.
11
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PAYER’S NAME:
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SUBSTITUTE
FORM
W-9
DEPARTMENT OF THE
TREASURY
INTERNAL REVENUE
SERVICE
PAYER’S REQUEST
FOR TAXPAYER
IDENTIFICATION
NUMBER AND
CERTIFICATION
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Part 1—Taxpayer Identification Number—
PROVIDE YOUR TAXPAYER IDENTIFICATION NUMBER (“TIN”) IN THE BOX AT RIGHT AND CERTIFY BY SIGNING AND DATING BELOW.
If you do not have a TIN, see the enclosed Guidelines for information on obtaining a
number. If you are awaiting (or will soon apply for) a TIN, check the box in Part 2.
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Social Security Number.
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OR
Employer Identification Number
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Part 2
—Awaiting TIN
¨
Exempt
¨
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Part
3—Certification—
Under penalties of perjury, I certify that:
(1) I am a U.S. person (including a U.S. resident alien);
(2) The number shown on this form
is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and
(3) I am not subject to backup withholding because:
(a) I am exempt from backup
withholding,
(b) I have not
been notified by the Internal Revenue Service (the “IRS”) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or
(c) the IRS has notified me that I am no longer subject to backup withholding.
(4) The Internal Revenue Service
does not require your consent to any provision of this document other than the certifications required to avoid backup withholding.
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Certification
Instructions
—You must cross out item (3) above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest or dividends on your tax return and you have not been
notified by the IRS that you are no longer subject to backup withholding.
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Signature
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Date
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Name
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Address
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City
State
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Zip
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YOU MUST COMPLETE THE FOLLOWING ADDITIONAL CERTIFICATION IF YOU ARE
AWAITING (OR WILL SOON APPLY FOR) A TAXPAYER IDENTIFICATION NUMBER.
CERTIFICATION OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has not been
issued to me, and that I mailed or delivered, or intend to mail or deliver in the near future, an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office. I
understand that 28% of all reportable payments made to me will be withheld if I do not timely provide a correct taxpayer identification number.
12
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for determining the proper taxpayer identification number to provide to the payer
—Social Security Numbers have nine
digits separated by two hyphens (i.e., 000-00-0000). Employer Identification Numbers have nine digits separated by one hyphen (i.e., 00-0000000). The table below will help you determine the number to give the payer.
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For this type of
account:
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Give the
SOCIAL SECURITY
number of—
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1.
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An individual’s account
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The individual
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2.
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Two or more individuals
(joint account)
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The actual owner of the account
or, if combined funds, the first
individual on the account(1)
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3.
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Custodian account of a minor
(Uniform Gift to Minors Act)
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The minor(2)
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4.
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a. The usual revocable
savings trust account
(grantor is also trustee)
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The grantor-trustee(1)
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b. So-called trust account
that is not a legal or valid
trust under state
law
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The actual owner(1)
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5.
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Sole proprietorship or single-
member limited liability company
(“LLC”) that is disregarded as
separate from its member
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The owner(3)
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For this type of
account:
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Give the EMPLOYER
IDENTIFICATION
number of—
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6.
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Sole proprietorship or single-
member LLC that is disregarded
as separate from its owner
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The owner(3)
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7.
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Partnership or multiple member
LLC that has not elected to be
taxed as a corporation
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The partnership or LLC
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8.
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Corporation or LLC that has
elected to be taxed as a corporation
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The corporation or LLC
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9.
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A broker or registered nominee
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The broker or nominee
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10.
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A valid trust, estate or pension
trust
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The legal entity(4)
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11.
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Association, club, religious,
charitable, educational
organization, or other tax-exempt
organization
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The organization
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12.
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Account with the Department of
Agriculture in the name of a
public entity (such as a state or
local government, school district,
or prison) that receives agricultural program
payments
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The public entity
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(1)
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List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that person’s number must be furnished.
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(2)
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Circle the minor’s name and furnish the minor’s social security number.
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(3)
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You must show your individual name, but you may also enter your business or “doing business as” name. You may use either your social security number or employer identification number (if you have one).
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(4)
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List first and circle the name of the legal entity, either a trust, estate or pension trust. Do not furnish the taxpayer identification number of the personal representative or trustee unless the legal entity itself is
not designated in the account title. If no name is circled when there is more than one name, the number will be considered that of the first name listed.
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13
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Page 2
Obtaining a Number
If you do not have a taxpayer identification number (“TIN”) or if you do not know your number, obtain Form SS-5 (Application for
Social Security Card) or Form SS-4 (Application for Employer Identification Number) at the local office of the Social Security Administration or the Internal Revenue Service (the “IRS”) and apply for a number. In addition, you must check
the box marked “Awaiting TIN” in Part 2 of Substitute
Form W-9
and sign and date the “Certification of Awaiting Taxpayer Identification Number” at the bottom of the form. If you do not
timely provide a TIN, a portion of all reportable payments made to you will be withheld.
Section references in these guidelines refer to
sections under the Internal Revenue Code of 1986, as amended.
Payees specifically exempted from backup withholding include:
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An organization exempt from tax under Section 501(a), an individual retirement account (IRA), or a custodial account under Section 403(b)(7) if the account satisfies the requirements of Section 401(f)(2).
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The United States, a state thereof, the District of Columbia or a possession of the United States, or a political subdivision or agency or instrumentality of any the foregoing.
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An international organization or any agency or instrumentality thereof.
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A foreign government or any political subdivision, agency or instrumentality thereof.
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Payees
that may be exempt from backup withholding include:
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A financial institution.
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A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States.
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A real estate investment trust.
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A common trust fund operated by a bank under Section 584(a).
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An entity registered at all times during the tax year under the Investment Company Act of 1940, as amended.
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A middleman known in the investment community as a nominee or custodian.
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A futures commission merchant registered with the Commodity Futures Trading Commission.
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A foreign central bank of issue.
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A trust exempt from tax under Section 664 or a non-exempt trust described in Section 4947.
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Payments of dividends and patronage dividends not generally subject to backup withholding include:
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Payments to nonresident aliens subject to withholding under Section 1441.
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Payments to partnerships not engaged in a trade or business in the U.S. and which have at least one nonresident alien partner.
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Payments of patronage dividends where the amount received is not paid in money.
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Payments made by certain foreign organizations.
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Section 404(k) payments made by an ESOP.
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GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Page 3
Payments of interest not generally subject to backup withholding include:
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Payments of interest on obligations issued by individuals, unless such payments equal $600 or more and are paid in the course of the payer’s trade or business and the payee does not provide its correct taxpayer
identification number to the payer.
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Payments of tax-exempt interest (including exempt-interest dividends under Section 852).
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Payments described in Section 6049(b)(5) to nonresident aliens.
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Payments on tax-free covenant bonds under Section 1451.
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Payments made by certain foreign organizations.
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Mortgage or student loan interest paid to you.
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EXEMPT PAYEES DESCRIBED ABOVE SHOULD COMPLETE
AND RETURN SUBSTITUTE FORM W-9 TO AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. Exempt payees should furnish their TIN, check the box labeled “Exempt” in Part 2 and sign and date the form. If you are a foreign person, you must submit
the appropriate IRS Form W-8 signed under penalty of perjury attesting to foreign status. Such forms may be obtained from the Depositary or at www.irs.gov.
Certain payments other than interest, dividends, and patronage dividends, that are not subject to information reporting are also not
subject to backup withholding. For details, see the regulations under Sections 6041, 6041A, 6042, 6044, 6045, 6049, 6050A and 6050N.
Privacy Act Notice.—Section 6109 requires most recipients of dividend, interest, or certain other income to give taxpayer
identification numbers to payers who must report the payments to the IRS. The IRS uses the numbers for identification purposes and to help verify the accuracy of tax returns. The IRS may also provide this information to the Department of Justice for
civil and criminal litigation and to cities, states and the District of Columbia to carry out their tax laws. The IRS may also disclose this information to other countries under a tax treaty, or to Federal and state agencies to enforce Federal
non-tax criminal laws and to combat terrorism. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must generally withhold a portion of taxable interest, dividend, and certain other payments to a payee
who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply.
Penalties
(1)
Penalty for Failure to Furnish TIN.
—If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50
for each such failure unless your failure is due to reasonable cause and not to willful neglect.
(2)
Civil Penalty for False
Information With Respect to Withholding.
—If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a penalty of $500.
(3)
Criminal Penalty for Falsifying Information.
—Willfully falsifying certifications or affirmations may subject you to criminal
penalties including fines and/or imprisonment.
(4)
Misuse of TINs.
—If the requester discloses or uses TINs in violation of
federal law, the requester may be subject to civil and criminal penalties.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE
INTERNAL REVENUE SERVICE]
15
Exhibit 99.2
L Brands, Inc.
NOTICE OF GUARANTEED DELIVERY
$1,000,000,000 Aggregate Principal Amount of
6.875% Senior Notes Due 2035 Issued on October 30, 2015
in Exchange for 6.875% Senior Notes Due 2035
That Have Been Registered Under the
Securities Act of 1933
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON [
●
] [
●
], 2016,
UNLESS EXTENDED (THE “EXPIRATION DATE”). TENDERS IN THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
This form, or one substantially equivalent hereto, must be used by a holder to accept the exchange offer of L Brands, Inc., a Delaware
corporation (the “Company”), and to tender 6.875% Senior Notes Due 2035 issued on October 30, 2015 (the “Old Notes”) to the exchange agent pursuant to the guaranteed delivery procedures described in “The Exchange
Offer—How to Tender—Guaranteed Delivery Procedures” of the prospectus of the Company, dated [●] [●], 2016 (the “Prospectus”), and in Instruction 2 to the related Letter of Transmittal. Any holder who wishes to
tender Old Notes pursuant to such guaranteed delivery procedures must ensure that the exchange agent receives this Notice of Guaranteed Delivery prior to the Expiration Date of the exchange offer. Certain terms used but not defined herein have the
meanings ascribed to them in the Prospectus or the Letter of Transmittal.
The Exchange Agent for the Exchange Offer is:
The Bank of New York Mellon Trust Company, N.A
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By Registered or Certified Mail
or Overnight Courier:
The Bank of New York Mellon Corporation
Corporate Trust Operations
Reorganization Unit
111 Sanders
Creek Parkway
East Syracuse, NY 13057
Attn: Allissa Overton
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By Mail:
The Bank of New York Mellon Corporation
Corporate Trust Operations
Reorganization Unit
111 Sanders
Creek Parkway
East Syracuse, NY 13057
Attn: Allissa Overton
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By Hand in New York:
The Bank of New York Mellon Corporation
Corporate Trust Operations
Reorganization Unit
111 Sanders
Creek Parkway
East Syracuse, NY 13057
Attn: Allissa Overton
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By Facsimile Transmission:
(for Eligible Institutions Only)
Fax: (732) 667-9408
Confirm by
Telephone: (315) 414-3362
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Delivery of this Notice of Guaranteed Delivery to an address other than as set forth above, or transmission
of instructions via facsimile other than as set forth above, will not constitute a valid delivery.
This Notice of Guaranteed
Delivery is not to be used to guarantee signatures. If a signature on a Letter of Transmittal is required to be guaranteed by an “Eligible Institution” under the instructions thereto, such signature guarantee must appear in the applicable
space in the box provided on the Letter of Transmittal for guarantee of signatures.
Ladies and Gentlemen:
The undersigned hereby tenders to the Company, upon the terms and subject to the conditions set forth in the Prospectus and the related Letter
of Transmittal, receipt of which is hereby acknowledged, the principal amount of Old Notes set forth below pursuant to the guaranteed delivery procedures set forth in the Prospectus and in Instruction 2 of the Letter of Transmittal.
The undersigned hereby tenders the Old Notes listed below:
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Certificate Number(s)
(if known)
of Old Notes or
Account Number
at the Book Entry
Transfer Facility
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Aggregate Principal
Amount Represented
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Aggregate Principal
Amount Tendered
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PLEASE SIGN AND COMPLETE
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Name(s) of Record Holder(s):
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Area Code and Telephone Number(s):
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Dated
, 2016
This Notice of Guaranteed Delivery must be signed by the holder(s) exactly as their name(s) appear on certificates for Old Notes or on a
security position listing as the owner of Old Notes, or by person(s) authorized to become holder(s) by endorsements and documents transmitted with this Notice of Guaranteed Delivery. If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must provide the following information.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):
Capacity:
Address(es):
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm which is a member of a registered national securities exchange or of the National Association of Securities Dealers,
Inc., a commercial bank or trust company having an office or correspondent in the United States, or is otherwise an “eligible guarantor institution” within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, guarantees
deposit with the exchange agent of the Letter of Transmittal (or facsimile thereof), together with the Old Notes tendered hereby in proper form for transfer (or confirmation of the book-entry transfer of such Old Notes into the exchange agent’s
account at the book-entry transfer facility as described in the Prospectus under the caption “The Exchange Offer—How to Tender—Book-Entry Transfer” and in the Letter of Transmittal) and any other required documents, all by 5:00
p.m., New York City time, within three New York Stock Exchange trading days following the Expiration Date.
The undersigned acknowledges
that it must deliver the Old Notes tendered hereby to the Exchange Agent within the time period set forth above and that a failure to do so could result in a financial loss to the undersigned.
Name of
Firm:
Address:
(Include Zip Code)
Area Code and Telephone
Number:
Name:
Title:
(Please Type or Print)
Dated
, 2016
DO NOT SEND OLD NOTES WITH THIS FORM. ACTUAL SURRENDER OF OLD NOTES MUST BE MADE PURSUANT TO, AND BE ACCOMPANIED BY, A PROPERLY COMPLETED
AND DULY EXECUTED LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS.
INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY
1. DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY. A properly completed and duly executed copy of this Notice of Guaranteed Delivery and any
other documents required by this Notice of Guaranteed Delivery must be received by the exchange agent at its address set forth herein prior to the Expiration Date. The method of delivery of this Notice of Guaranteed Delivery and any other required
documents to the exchange agent is at the election and sole risk of the holder, and the delivery will be deemed made only when actually received by the exchange agent. If delivery is by mail, registered mail with return receipt requested, properly
insured, is recommended. As an alternative to delivery by mail, the holders may wish to consider using an overnight or hand delivery service. In all cases, sufficient time should be allowed to assure timely delivery. For a description of the
guaranteed delivery procedures, see Instruction 2 of the Letter of Transmittal.
2. SIGNATURES ON THIS NOTICE OF GUARANTEED DELIVERY. If
this Notice of Guaranteed Delivery is signed by the registered holder(s) of the Old Notes referred to herein, the signature must correspond with the name(s) written on the face of the Old Notes without alteration, enlargement, or any change
whatsoever.
If this Notice of Guaranteed Delivery is signed by a person other than the registered holder(s) of any Old Notes listed, this
Notice of Guaranteed Delivery must be accompanied by appropriate bond powers, signed as the name of the registered holder(s) appears on the Old Notes.
If this Notice of Guaranteed Delivery is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation,
or other person acting in a fiduciary or representative capacity, such person should so indicate when signing and submit with the Letter of Transmittal evidence satisfactory to the Company of such person’s authority to so act.
3. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests for assistance and requests for additional copies of the Prospectus
may be directed to the exchange agent at the address specified in the Prospectus. Holders may also contact their broker, dealer, commercial bank, trust company, or other nominee for assistance concerning the exchange offer.
Exhibit 99.3
L Brands, Inc.
TENDER OF ALL OUTSTANDING
$1,000,000,000 Aggregate Principal Amount of
6.875% Senior Notes Due 2035 Issued on October 30, 2015
in Exchange for 6.875% Senior Notes Due 2035
That Have Been Registered Under the
Securities Act of 1933
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON [
●
] [
●
], 2016,
UNLESS EXTENDED (THE “EXPIRATION DATE”). TENDERS IN THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
To Our Clients:
We are enclosing a prospectus,
dated [●] [●], 2016 (the “Prospectus”), of L Brands, Inc., a Delaware corporation (the “Company”), and a related Letter of Transmittal (which together constitute the “exchange offer”) relating to the offer
by the Company to exchange 6.875% Senior Notes Due 2035 (the “New Notes”), which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement of which the
Prospectus is a part, for a like principal amount of 6.875% Senior Notes Due 2035 issued on October 30, 2015 (the “Old Notes”), upon the terms and subject to the conditions set forth in the exchange offer.
The exchange offer is not conditioned upon any minimum number of Old Notes being tendered.
We are the holder of record of Old Notes held by us for your account. A tender of such Old Notes can be made only by us as the record holder
and pursuant to your instructions. The enclosed Letter of Transmittal is furnished to you for your information only and cannot be used by you to tender Old Notes held by us for your account.
We request instructions as to whether you wish to tender any or all of the Old Notes held by us for your account pursuant to the terms and
conditions of the exchange offer. We also request that you confirm that we may on your behalf make the representations and warranties contained in the Letter of Transmittal.
PLEASE RETURN YOUR INSTRUCTIONS TO US IN THE ENCLOSED ENVELOPE WITHIN AMPLE TIME TO PERMIT US TO SUBMIT A TENDER ON YOUR BEHALF PRIOR TO
THE EXPIRATION DATE.
INSTRUCTIONS TO REGISTERED HOLDER AND/OR
BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES AND OTHER NOMINEES
To Registered Holder and/or Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
The
undersigned hereby acknowledges receipt of the prospectus dated [●] [●], 2016 (the “Prospectus”), of L Brands, Inc., a Delaware corporation (the “Company”), and the accompanying Letter of Transmittal, that together
constitute the offer of the Company (the “exchange offer”) to exchange the Company’s 6.875% Senior Notes Due 2035 (the “New Notes”), which have been registered under the Securities Act of 1933, as amended (the
“Securities Act”), pursuant to a registration statement of which the Prospectus is a part, for a like principal amount of 6.875% Senior Notes Due 2035 issued on October 30, 2015 (the “Old Notes”). Certain terms used but not
defined herein have the meanings ascribed to them in the Prospectus.
This will instruct you, the registered holder and/or Brokers,
Dealers, Commercial Banks, Trust Companies and Other Nominees as to the action to be taken by you relating to the exchange offer with respect to the Old Notes held by you for the account of the undersigned.
The aggregate face amount of the Old Notes held by you for the account of the undersigned is (fill in amount):
$ of the 6.875% Senior Notes Due 2035.
With respect to the exchange offer, the undersigned hereby instructs you (check appropriate box):
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To tender the following Old Notes held by you for the account of the undersigned (insert principal amount of Old Notes to be tendered) (if any): $ .
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Not to tender any Old Notes held by you for the account of the undersigned.
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If the
undersigned instructs you to tender the Old Notes held by you for the account of the undersigned, it is understood that you are authorized to make, on behalf of the undersigned (and the undersigned by its signature below, hereby makes to you), the
representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner, including but not limited to the representations, that: the New Notes acquired in exchange for Old Notes
pursuant to the exchange offer are being acquired in the ordinary course of business of the person receiving such New Notes;
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the undersigned is not participating in, and has no arrangement with any person to participate in, the distribution of New Notes within the meaning of the Securities Act;
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neither the undersigned nor any such other person is an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or a broker-dealer tendering Old Notes acquired directly from the
Company; and
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if the undersigned is not a broker-dealer, that the undersigned is not engaged in and does not intend to engage in the distribution of the New Notes.
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If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, it acknowledges that it will
deliver a prospectus in connection with any resale of such New Notes and we will represent on behalf of such broker-dealer that the Old Notes to be exchanged for New Notes were acquired by it as a result of market-making activities or other trading
activities. By acknowledging that it will deliver and by delivering a prospectus meeting the requirements of the Securities Act in connection with any resale of the New Notes, such broker-dealer is not deemed to admit it is an
“Underwriter” within the meaning of the Securities Act.
SIGN HERE
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Names(s) of beneficial owner(s)
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Addresses(s)
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(Please Print)
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Taxpayer Identification or Social Security Number(s)
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Exhibit 99.4
L Brands, Inc.
TENDER OF ALL OUTSTANDING
$1,000,000,000 Aggregate Principal Amount of
6.875% Senior Notes Due 2035 Issued on October 30, 2015
in Exchange for 6.875% Senior Notes Due 2035
That Have Been Registered Under the
Securities Act of 1933
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
[
●
] [
●
], 2016, UNLESS EXTENDED (THE “EXPIRATION DATE”). TENDERS IN THE
EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M.,
NEW YORK CITY TIME, ON THE EXPIRATION DATE.
To Registered Holders, Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We are
enclosing herewith the material listed below relating to the offer by L Brands, Inc., a Delaware corporation (the “Company”), to exchange 6.875% Senior Notes Due 2035 (the “New Notes”), which have been registered under the
Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement of which the Prospectus is a part, for a like principal amount of 6.875% Senior Notes Due 2035 issued on October 30, 2015 (the “Old
Notes”), upon the terms and subject to the conditions set forth in the prospectus, dated [●] [●], 2016 (the “Prospectus”), and the related Letter of Transmittal (which together constitute the “exchange offer”).
Enclosed herewith are copies of the following documents:
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Prospectus dated [●] [●], 2016;
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2.
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Letter of Transmittal (together with accompanying Substitute Form W-9 and related Guidelines);
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3.
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Notice of Guaranteed Delivery;
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4.
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Letter that may be sent to your clients for whose account you hold Old Notes in your name or in the name of your nominee;
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5.
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Letter that may be sent from your clients to you with such clients’ instruction with regard to the exchange offer (included in item 4 above); and
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6.
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Letter to the holders of Old Notes.
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We urge you to contact your clients promptly. Please note
that the exchange offer will expire on the Expiration Date unless extended. The exchange offer is not conditioned upon any minimum number of Old Notes being tendered.
Pursuant to the Letter of Transmittal, each holder of Old Notes will represent to the Company that:
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the New Notes acquired in exchange for Old Notes pursuant to the exchange offer are being acquired in the ordinary course of business of the person receiving such New Notes;
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the holder is not participating in, and has no arrangement with any person to participate in, the distribution of New Notes within the meaning of the Securities Act;
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neither the holder nor any such other person is an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or a broker-dealer tendering Old Notes acquired directly from the
Company; and
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if the holder is not a broker-dealer, that the holder is not engaged in and does not intend to engage in the distribution of the New Notes.
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If the holder is a broker-dealer that will receive New Notes for its own account in exchange for
Old Notes, it acknowledges that it will deliver a prospectus in connection with any resale of such New Notes and you will represent on behalf of such broker-dealer that the Old Notes to be exchanged for New Notes were acquired by it as a result of
market-making activities or other trading activities. By acknowledging that it will deliver and by delivering a prospectus meeting the requirements of the Securities Act in connection with any resale of the New Notes, such broker-dealer is not
deemed to admit it is an “Underwriter” within the meaning of the Securities Act.
The enclosed Letter to Clients contains an
authorization by the beneficial owners of the Old Notes for you to make the foregoing representations.
The Company will not pay any fee
or commission to any broker or dealer or to any other persons (other than the exchange agent) in connection with the solicitation of tenders of Old Notes pursuant to the exchange offer. The Company will not pay or cause to be paid any transfer taxes
payable on the transfer of Old Notes to it.
Additional copies of the enclosed materials may be obtained from the exchange agent by
calling Allissa Overton:
(315) 414-3362.
Very truly yours,
L Brands, Inc.