IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction)
AND
IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF L Brands, inc. (the Filer)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction (the Legislation) for an exemption (the Exemption Sought) from the prospectus requirement in section 53 of the Securities Act (Ontario) in connection with the proposed distribution (the Spin-Off) by the Filer of the shares of common stock (VS Shares) of Victoria’s Secret & Co. (VS), a wholly-owned subsidiary of the Filer, by way of a dividend in specie to holders (Filer Shareholders) of shares of common stock of the Filer (Filer Shares) resident in Canada (Filer Canadian Shareholders).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) the Filer has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in each of the other provinces and territories of Canada.
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filer:
The Filer is a Delaware corporation that operates the Bath & Body Works, Victoria's Secret and PINK retail brands focused on home fragrance products, body care, soaps and sanitizers, women’s intimate and other apparel, and personal and beauty care products. The Filer's principal executive office is located at Three Limited Parkway, Columbus, Ohio, 43230.
The Filer is not a reporting issuer, and currently has no intention of becoming a reporting issuer, under the securities laws of any jurisdiction of Canada.
The authorized share capital of the Filer consists of 1,000,000,000 Filer Shares, U.S.$0.50 par value per share, and 10,000,000 shares of preferred stock, U.S.$1.00 par value per share. As of May 5, 2021, there were 288,445,631 Filer Shares and no preferred shares issued and outstanding.
The Filer Shares are listed on the New York Stock Exchange (NYSE) and trade under the symbol “LB”. Other than the foregoing listing on the NYSE, no securities of the Filer are listed or posted for trading on any exchange or market in Canada or outside of Canada. The Filer has no current intention of listing its securities on any Canadian stock exchange.
The Filer is subject to the United States Securities Exchange Act of 1934, as amended (the 1934 Act) and the rules, regulations and orders promulgated thereunder.
According to a registered shareholder report prepared for the Filer by American Stock Transfer & Trust Company, LLC, as of May 20, 2021, there were 20 registered Filer Canadian Shareholders, representing approximately 0.07% of the registered shareholders of the Filer worldwide, and holding approximately 2,388 Filer Shares, representing approximately 0.001% of the outstanding Filer Shares. The Filer does not expect these numbers to have materially changed since that date.
According to a beneficial ownership report prepared for the Filer by Broadridge Financial Solutions, Inc., as of May 5, 2021, there were 4,998 beneficial Filer Canadian Shareholders, representing approximately 4.26% of the beneficial holders of Filer Shares worldwide, and holding approximately 5,851,362 Filer Shares, representing approximately 2.11% of the outstanding Filer Shares. The Filer does not expect these numbers to have materially changed since that date.
Based on the information above, the number of registered and beneficial Filer Canadian Shareholders and the proportion of Filer Shares held by such shareholders are de minimis.
VS is a Delaware corporation and a wholly-owned subsidiary of the Filer. VS’s principal executive office is located at 4 Limited Parkway East, Reynoldsburg, Ohio 43068.
All of the issued and outstanding VS Shares are held by the Filer. No other securities of VS are issued and outstanding.
On May 11, 2021, the Filer announced that its Board of Directors had approved a plan to separate the company into two independent, public companies: Bath & Body Works and Victoria’s Secret, including Victoria’s Secret Lingerie, PINK and Victoria’s Secret Beauty (the VS Businesses). This separation will be effected by way of a transfer of certain assets and liabilities of the VS Businesses to VS or its subsidiaries through certain restructuring transactions and a pro rata distribution of all of the outstanding VS Shares to Filer Shareholders pursuant to the Spin-Off. The Filer will distribute 100% of the VS Shares to the Filer Shareholders as of the record date of the distribution at a fixed distribution rate to be set out in the Information Statement (as defined below) to be sent to the Filer Shareholders. At the time of the Spin-Off, VS will hold, directly or indirectly through its subsidiaries, the VS Businesses.
The distribution agent for the distribution will distribute to each Filer Shareholder entitled to VS Shares in connection with the Spin-Off the number of whole VS Shares to which the Filer Shareholder is entitled in the form of a book-entry credit. No fractional VS Shares will be issued in connection with the Spin-Off. The distribution agent will aggregate fractional shares into whole shares, sell the whole shares in the open market at prevailing prices and distribute the net cash proceeds (net of brokerage fees and commissions, transfer taxes and other costs) from the sales pro rata to each Filer Shareholder who would otherwise have been entitled to receive a fractional share in the distribution (net of any required applicable withholding taxes). Recipients of cash in lieu of fractional shares will not be entitled to any interest on the amounts of cash payments made in lieu of fractional shares.
Filer Shareholders will not be required to pay any cash, deliver any other consideration or surrender or exchange their Filer Shares, or take any other action in order to receive VS Shares in connection with the Spin-Off. The Spin-Off will occur automatically without any investment decision on the part of Filer Shareholders.
Subject to the satisfaction of certain conditions, including the receipt by the Filer of all necessary approvals of the United States Securities and Exchange Commission (the SEC), it is currently anticipated that the Spin-Off will become effective on or about August 2, 2021.
Following completion of the Spin-Off, Filer Shareholders as of the record date for the Spin-Off will own 100% of the VS Shares, and VS will cease to be a subsidiary of the Filer and will become an independent, publicly-traded company.
Following completion of the Spin-Off, the Filer Shares will continue to be listed for trading on the NYSE.
The VS Shares have been approved for listing on the NYSE under the symbol "VSCO".
VS is not a reporting issuer in any jurisdiction of Canada nor are its securities listed on any stock exchange in Canada. VS has no current intention of becoming a reporting issuer in any jurisdiction of Canada or to list its securities on any stock exchange in Canada after completion of the Spin-Off.
The Spin-Off is being effected in accordance with the laws of Delaware.
Because the Spin-Off will be effected by way of a dividend of VS Shares to Filer Shareholders, no shareholder approval of the Spin-Off is required or being sought under the laws of Delaware or any applicable United States federal securities laws.
On June 21, 2021, VS filed a registration statement on Form 10 with the SEC detailing the proposed Spin-Off (the Registration Statement). It is expected that the Registration Statement will be declared effective by the SEC around mid-July, 2021.
Filer Shareholders will receive a notice of internet availability of an information statement with respect to VS (the Information Statement) detailing the terms and conditions of the Spin-Off. All materials relating to the Spin-Off sent by or on behalf of the Filer to Filer Shareholders resident in the United States (including the Information Statement) will be sent concurrently to Filer Canadian Shareholders.
The Information Statement contains prospectus-level disclosure about VS.
Filer Canadian Shareholders who receive VS Shares pursuant to the Spin-Off will have the benefit of the same rights and remedies in respect of the disclosure documentation received in connection with the Spin-Off that are available to Filer Shareholders resident in the United States.
Following completion of the Spin-Off, VS will be subject to the requirements of the 1934 Act and the rules and regulations of the NYSE. VS will send concurrently to holders of VS Shares resident in Canada the same disclosure materials required to be sent under applicable United States securities laws to holders of VS Shares resident in the United States.
There will be no active trading market for the VS Shares in Canada following the Spin-Off and none is expected to develop. Consequently, it is expected that any resale of VS Shares distributed in connection with the Spin-Off will occur through the facilities of the NYSE or any other exchange or market outside of Canada on which the VS Shares may be quoted or listed at the time that the trade occurs or to a person or company outside of Canada.
The Spin-Off to Filer Canadian Shareholders would be exempt from the prospectus requirement pursuant to subsection 2.31(2) of National Instrument 45-106 Prospectus Exemptions but for the fact that VS is not a reporting issuer under the securities legislation of any jurisdiction in Canada.
Neither the Filer nor VS is in default of any securities legislation in any jurisdiction of Canada.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Exemption Sought is granted provided that the first trade in VS Shares acquired pursuant to the Spin-Off will be deemed to be a distribution that is subject to section 2.6 of National Instrument 45-102 Resale of Securities.
DATED at Toronto this 16th day of July 2021.
“Cecilia Williams” “Mary Anne De Monte-Whelan”
Commissioner Commissioner
Ontario Securities Commission Ontario Securities Commission