As filed with the Securities and Exchange Commission on June 7, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
-------------------------
SAKS HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
12 EAST 49TH STREET
NEW YORK, NEW YORK 10017
(Address of principal executive offices, including zip code)
DELAWARE 52-1685667
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
-------------------------
SAKS HOLDINGS, INC.
SENIOR MANAGEMENT STOCK INCENTIVE PLAN
SAKS HOLDINGS, INC.
1996 MANAGEMENT STOCK INCENTIVE PLAN
(Full title of the plans)
-------------------------
JOAN F. KREY
GENERAL COUNSEL
SAKS HOLDINGS, INC.
12 EAST 49TH STREET
NEW YORK, NEW YORK 10017
(212) 940-4048
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------------
COPIES TO:
CHARLES K. MARQUIS, ESQ.
STEVEN R. FINLEY, ESQ.
GIBSON, DUNN & CRUTCHER
200 PARK AVENUE
NEW YORK, NEW YORK 10166
(212) 351-4000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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AMOUNT PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF TO BE MAXIMUM AGGREGATE REGISTRATION
SECURITIES REGISTERED(1) OFFERING PRICE OFFERING PRICE(2) FEE
TO BE REGISTERED PER SHARE(2)
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
COMMON STOCK, 6,209,045 SHARES N/A $161,009,384 $55,520.48
$0.01 PAR VALUE
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
</TABLE>
(1) Of the 6,209,045 shares of Common Stock being registered hereunder,
up to (i) 30,095 of the shares are reserved for issuance pursuant to the
Senior Management Stock Incentive Plan (the "1990 Stock Incentive Plan")
and (ii) 6,178,950 of the shares (and any shares reserved for issuance
pursuant to the 1990 Stock Incentive Plan but which are not so issued
prior to the expiration of applicable stock options) are reserved for
issuance pursuant to the 1996 Management Stock Incentive Plan (the "1996
Stock Incentive Plan"). Pursuant to Rule 416, there also is being
registered such number of additional shares of Common Stock which may
become available for issuance pursuant to the foregoing plans in the
event of certain changes in outstanding shares, including
reorganizations, recapitalizations, stock splits, stock dividends and
reverse stock splits.
(2) Estimated solely for the purpose of calculating the registration fee.
The registration fee has been calculated in accordance with Rule 457(h)
under the Securities Act of 1933 (a) in the case of 3,126,535 shares
registered with respect to options that remained available for award
under the 1990 Stock Incentive Plan and the 1996 Stock Incentive Plan,
based upon the average price of the Common Stock on June 4, 1996, which
was $32.25; and (b) in the case of 3,082,510 shares registered with
respect to options outstanding under the various plans, with an
aggregate exercise price of $60,178,630, based upon the price at which
the options may be exercised, which averages $19.52 per share.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Omitted from this Registration Statement in accordance with Rule 428
under the Securities Act of 1933, as amended (the "Securities Act"), and the
Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Omitted from this Registration Statement in accordance with Rule 428
under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which previously have been filed by the
Registrant with the Securities and Exchange Commission (the "Commission"), are
incorporated herein by reference and made a part hereof:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or if no such
report has been filed, the Registrant's registration
statement on Form S-1 (File No. 333-2426);
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act, since the end of the fiscal year
covered by Registrant's latest annual report referred to
in (a) above;
(c) The description of the Common Stock contained in the
Registrant's effective registration statement on Form 8-A
(File No. 34-1-14346), including any amendment or report
filed for the purpose of updating such description.
All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a) and (c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment hereto that indicates that all
securities offered hereunder have been sold or that deregisters all such
securities then remaining unsold shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such reports and
documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document that also
is or is deemed to be incorporated by reference herein modifies or supersedes
such earlier statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
2
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provision for the indemnification of officers and directors of corporations in
terms sufficiently broad to indemnify the officers and directors of the
Registrant under certain circumstances from liabilities (including reimbursement
of expenses incurred) arising under the Securities Act.
As permitted by the DGCL, the Registrant's Certificate of Incorporation
(the "Charter") provides that, to the fullest extent permitted by the DGCL, no
director shall be liable to the Registrant or to its stockholders for monetary
damages for breach of his fiduciary duty as a director. Delaware law does not
permit the elimination of liability (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) in respect of certain unlawful dividend payments or stock redemptions
or repurchases or (iv) for any transaction from which the director derives an
improper personal benefit. The effect of this provision in the Charter is to
eliminate the rights of the Registrant and its stockholders (through
stockholders' derivative suits on behalf of the Registrant) to recover monetary
damages against a director for breach of fiduciary duty as a director thereof
(including breaches resulting from negligent or grossly negligent behavior)
except in the situations described in clauses (i)-(iv), inclusive, above. These
provisions will not alter the liability of directors under federal securities
laws.
The Registrant's Bylaws (the "Bylaws") provide that the Registrant may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Registrant) by reason of the fact that he is or was a director,
officer, employee or agent of the Registrant or is or was serving at the request
of the Registrant as a director, officer, employee or agent of another
corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful.
The Bylaws also provide that the Registrant may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Registrant to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted under similar
standards, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Registrant unless and only to the extent that the Court of Chancery of the
State
3
<PAGE>
of Delaware or the court in which such action or suit was brought shall
determine that despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to be
indemnified for such expenses which the Court of Chancery of the State of
Delaware or the court in which such action was brought shall deem proper.
The Bylaws also provide that to the extent a director or officer of the
Registrant has been successful in the defense of any action, suit or proceeding
referred to in the previous paragraphs or in the defense of any claim, issue, or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith; that
indemnification provided for in the Bylaws shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
Registrant may purchase and maintain insurance on behalf of a director or
officer of the Registrant against any liability asserted against him or incurred
by him in any such capacity or arising out of his status as such whether or not
the Registrant would have the power to indemnify him against such liabilities
under such Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- -------- ----------------------
4.01 Amended and Restated Certificate of Incorporation of the Registrant,
as filed with the Delaware Secretary of State on May 28, 1996,
incorporated herein by reference to Exhibit 3.01.9 of the
Registrant's Registration Statement on Form S-1 (No. 333-2426)
4.02 Bylaws of the Registrant, incorporated herein by reference to
Exhibit 3.02 of the Registrant's Registration Statement on Form S-1
(No. 333-2426).
4.03 Form of Stock Certificate of the Common Stock of the Registrant
5.01 Opinion of Gibson, Dunn & Crutcher LLP
23.01 Consent of Coopers & Lybrand L.L.P.
23.02 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.01)
24.01 Power of Attorney (included on signature page of this Registration
Statement)
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement.
4
<PAGE>
Notwithstanding the foregoing, any increase or decrease in the
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 and of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent 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 this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes 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 Exchange
Act that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on June 7, 1996.
SAKS HOLDINGS, INC.
By: /s/ Philip B. Miller
-----------------------------
Philip B. Miller
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brian E. Kendrick and Mark E. Hood and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for him and in his 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 other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each said attorneys-in-fact and agent or any of them or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacity indicated on
June 7, 1996.
SIGNATURE TITLE
--------- -----
/s/ Philip B. Miller Chairman of the Board and
- ----------------------------------------- Chief Executive Officer
Philip B. Miller (Principal Executive Officer)
/s/ Brian E. Kendrick Vice Chairman of the Board and
- ----------------------------------------- Chief Financial Officer
Brian E. Kendrick (Principal Financial Officer)
/s/ Rose Marie Bravo
- ----------------------------------------- President and Director
Rose Marie Bravo
/s/ Savio W. Tung
- ----------------------------------------- Director
Savio W. Tung
<PAGE>
/s/ Jon P. Hedley
- ----------------------------------------- Director
Jon P. Hedley
/s/ E. Garrett Bewkes III
- ----------------------------------------- Director
E. Garrett Bewkes III
/s/ Charles J. Philippin
- ----------------------------------------- Director
Charles J. Philippin
/s/ Mark E. Hood Vice President - Finance
- ----------------------------------------- (Principal Accounting Officer)
Mark E. Hood
2
<PAGE>
<TABLE><CAPTION>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE
----- ---------------------- ----
<S> <C> <C>
4.01 Amended and Restated Certificate of Incorporation of the
Registrant, filed with the Delaware Secretary of
State, on May 28, 1996, incorporated herein by reference to
Exhibit 3.01.9 of the Registrant's Registration Statement on
Form S-1 (No. 333-2426)
4.02 Bylaws of the Registrant, incorporated herein by reference to
Exhibit 3.02 of the Registrant's Registration Statement on Form S-1
(No. 333-2426)
4.03 Form of Stock Certificate of the Common Stock of the Registrant
5.01 Opinion of Gibson, Dunn & Crutcher LLP
23.01 Consent of Coopers & Lybrand L.L.P.
23.02 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.01)
24.01 Power of Attorney (included on signature page of this Registration
Statement)
</TABLE>
2
Exhibit 4.03
Temporary Certificate - Exchangeable for Definitive Engraved Certificate - When
Ready for Delivery
Number Shares
SKS-
[SAKS
FIFTH COMMON STOCK
AVENUE PAR VALUE $.01
LOGO]
COMMON STOCK
PAR VALUE $.01
SAKS HOLDINGS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFICATE IS TRANSFERABLE SEE REVERSE FOR CERTAIN DEFINITIONS
IN THE CITY OF NEW YORK, NY CUSIP 79377R 10 9
This certifies that
is the owner of
FULLY-PAID AND NON ASSESSABLE SHARES OF COMMON STOCK OF
SAKS HOLDINGS, INC., transferable on the books of the Corporation by the holder
hereof, in person or by a duly authorized Attorney, upon surrender of this
Certificate properly endorsed. This Certificate is not valid until
countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of said Corporation and the facsimile signatures
of its duly authorized Officers.
Dated:
<TABLE>
<S> <C> <C>
Countersigned and Registered /s/ Brian E. Kendrick /s/ Philip B. Miller
CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C. VICE-CHAIRMAN AND CHAIRMAN AND
(NEW YORK, NEW YORK) CHIEF FINANCIAL OFFICER CHIEF EXECUTIVE OFFICER
Transfer Agent and Registrar
</TABLE>
By
[SAKS HOLDINGS, INC.
CORPORATE SEAL
1990 DELAWARE]
AUTHORIZED SIGNATURE
<PAGE>
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenants in common UNIF TRAN MIN ACT - ______ Custodian ______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Transfers to Minors
of survivorship and not as
tenants in common Act ___________________
(State)
UNIF GIFT MIN ACT - ______ Custodian ______
(Cust) (Minor)
under Uniform Gifts to Minors
Act ___________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For Value Received, _______________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
/ /
- ------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF ASSIGNEE)
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- ------------------------------------------------------------------------------
- --------------------------------------------------------------------- Shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_________________________________________________________________ Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated _________________________
_____________________________________
NOTICE: The signature of this assignment must
correspond with name as written upon the face of
the certificate in every particular without
alteration or enlargement or any change whatever.
SIGNATURE(S) GUARANTEED
By _____________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION, (Banks, Stockbrokers, Savings and Loan Associations and
Credit Unions) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15.
Exhibit 23.01
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement on
Form S-8 (File No. 333-_____) of our report dated March 13, 1996, except as to
the information regarding the amendments to the Credit Facility in April 1996
presented in Note 5 for which the date is April 18, 1996 and the information
presented in Note 15, for which the date is April 26, 1996, on our audits of the
consolidated financial statements of Saks Holdings, Inc. as of January 28, 1995
and February 3, 1996, and for each of the three fiscal years in the period ended
February 3, 1996, which report is included in the registration statement on Form
S-1 (No. 333-2426).
/s/ COOPERS & LYBRAND L.L.P.
New York, New York
June 7, 1996
