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As filed with the Securities and Exchange Commission on December __, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SAKS HOLDINGS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 52-1685667
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
12 EAST 49TH STREET 10017
NEW YORK, NY (Zip Code)
(Address of Principal
Executive Offices)
SAKS FIFTH AVENUE 401(k) RETIREMENT SAVINGS PLAN
(Full Title of the Plan)
JOAN F. KREY, ESQ.
GENERAL COUNSEL
SAKS HOLDINGS, INC.
12 EAST 49TH STREET
NEW YORK, NY 10017
(Name and Address of Agent for Service)
(212) 940-4048
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
RONALD O. MUELLER, ESQ.
GIBSON, DUNN & CRUTCHER LLP
1050 CONNECTICUT AVENUE, NW, SUITE 900
WASHINGTON, DC 20036
(202) 955-8500
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed Maximum Amount of
Title of Securities Amount to be Maximum Offering Aggregate Offering Registration
to be registered (1) Registered Price Per Share Price (2) Fee (3)
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<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share. . . . . N/A N/A $15,000,000 $4,545.46
- -------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Calculated pursuant to Rule 457(o).
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Note
to Part 1 of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to Note
to Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed
with the Securities and Exchange Commission (the "Commission") are hereby
incorporated in this Registration Statement by reference:
(1) 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 latest prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), that contains
audited financial statements for the Registrant's latest fiscal year for
which such statements have been filed;
(2) 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 or prospectus referred to in (1) above;
(3) The description of the Common Stock set forth under the caption
"Description of Capital Stock" in the Registrant's registration statement
on Form S-1, filed with the Commission on August 29, 1996, File No.
333-11101, together with any amendment or report filed with the Commission
for the purpose of updating such description.
All reports and other documents subsequently filed by the Registrant
or by the Plan pursuant to Sections 13(a) and (c), 14 and 15(d) of the Exchange
Act (including the Plan's latest annual report) prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all such securities then remaining unsold
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such reports and documents.
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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 which
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.
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 of 1933, as amended (the
"Act"). Section 102(b)(7) of the DGCL permits a corporation to provide in its
Certificate of Incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of 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) in respect of certain unlawful
dividend payments or stock redemptions or repurchases, or (iv) for any
transaction from which the director derived an improper personal benefit.
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. 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
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or was serving at the request of the Registrant as a director, officer, employee
or agent of any other 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 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 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 if 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.
The Registrant maintains liability insurance in the amount of $50
million insuring its officers and directors against liabilities that they may
incur in such capacities, including liabilities arising under the Federal
securities laws other than liabilities arising out of the filing of a
registration statement with the Securities and Exchange Commission.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibit is filed herewith:
23.1 Consent of Coopers & Lybrand L.L.P. (independent auditors).
The Company hereby undertakes to submit the Plan and any amendment
thereto to the Internal Revenue Service (the "IRS") in a timely manner and to
make all changes required by the IRS in order to qualify the Plan under Section
401 of the Internal Revenue Code.
ITEM 9. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) 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 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 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 the
registration statement or any material change to such information
in the registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(a)(i) and (1)(a)(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 by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new
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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.
(2) 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 Section 15(d) of the
Exchange Act that is incorporated by reference in the 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.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
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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 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 THIS 16th day of
December, 1996.
SAKS HOLDINGS, INC.
By: /s/ Philip B. Miller
----------------------------------
Philip B. Miller
Chief Executive Officer
Each person whose signature appears below constitutes and appoints Philip B.
Miller and Mark E. Hood, and each of them, his true and lawful attorneys-in-fact
and agents, each with full power of substitution and resubstitution, severally,
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 Securities and Exchange 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 and 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 said
attorneys-in-fact and agents, 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 of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/ Philip B. Miller
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Philip B. Miller Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer) December 16, 1996
/s/ Brian E. Kendrick
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Brian E. Kendrick Vice Chairman of the Board December 16, 1996
and Chief Operating Officer
/s/ Rose Marie Bravo
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Rose Marie Bravo President and Director December 16, 1996
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/s/ Richard F. Zannino
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Richard F. Zannino Executive Vice President, December 16, 1996
Chief Financial Officer and
Treasurer
(Principal Financial Officer)
/s/ Mark E. Hood
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Mark E. Hood Senior Vice President - December 16, 1996
Finance
(Principal Accounting Officer)
/s/ Savio W. Tung
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Savio W. Tung Director December 16, 1996
/s/ Jon P. Hedley
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Jon P. Hedley Director December 16, 1996
/s/ E. Garrett Bewkes III
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E. Garrett Bewkes III Director December 16, 1996
/s/ Charles J. Philippin
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Charles J. Philippin Director December 16, 1996
/s/ Brian Ruder
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Brian Ruder Director December 16, 1996
/s/ Stephen I. Sadove
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Stephen I. Sadove Director December 16, 1996
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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23.1 Consent of Coopers & Lybrand L.L.P. (independent auditors).
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Exhibit 23.1
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 (File Nos. 333-2426, 333-11101, and 333-11103).
/s/ Coopers & Lybrand L.L.P.
New York, New York
December 16, 1996
