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As filed with the Securities and Exchange Commission on September 11, 1997
Registration No. 333-
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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 HOLDINGS, INC. DIRECTORS STOCK 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
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED (1) REGISTERED PER SHARE(2) PRICE (2) FEE (3)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share. . . . . . . 100,000 $23.1875 $2,318,750 $703.00
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers an indeterminate number of additional
securities that may be offered or issued pursuant to the antidilution
provisions of the Saks Holdings, Inc. Directors Stock Plan.
(2) Estimated solely for the purpose of determining the registration fee based
on the average high and low prices reported on September 9, 1997.
(3) Calculated under Rule 457(c) pursuant to Rule 457(h)(1).
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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 Annual Report on Form 10-K for the fiscal year ended
February 1, 1997 as filed with the Commission on May 2, 1997 and
amended on May 6, 1997;
(2) The Registrant's quarterly reports on Form 10-Q for the quarters ended
May 3, 1997 and August 2, 1997, filed on June 12, 1997 and September 3,
1997, respectively;
(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 Securities Exchange Act of 1934, as amended (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.
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
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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 "Securities 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 or her 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 or she 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 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
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and in a manner he or she 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 or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her 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 her or incurred by him or her in any such capacity or arising out
of his or her status as such whether or not the Registrant would have the power
to indemnify him or her 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 Commission.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibits are filed herewith:
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Coopers & Lybrand L.L.P. (independent auditors).
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5).
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 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.
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(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, there-unto duly
authorized, in the City of New York, State of New York, on this 10th day of
September, 1997.
SAKS HOLDINGS, INC.
By: /s/ Philip B. Miller
--------------------------
Philip B. Miller
Chief Executive Officer
POWER OF ATTORNEY
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
- ---------------------------- Chairman of the Board and September 10, 1997
Philip B. Miller Chief Executive Officer
(Principal Executive Officer)
/s/ Brian E. Kendrick
- ---------------------------- Vice Chairman of the Board September 10, 1997
Brian E. Kendrick and Chief Operating Officer
/s/ Rose Marie Bravo
- ---------------------------- President and Director September 10, 1997
Rose Marie Bravo
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/s/ Richard F. Zannino
- ---------------------------- Executive Vice President, September 10, 1997
Richard F. Zannino Chief Financial Officer and
Treasurer
(Principal Financial Officer)
/s/ Mark E. Hood
- ---------------------------- Senior Vice President - September 10, 1997
Mark E. Hood Finance
(Principal Accounting Officer)
/s/ Savio W. Tung
- ---------------------------- Director September 10, 1997
Savio W. Tung
/s/ Jon P. Hedley
- ---------------------------- Director September 10, 1997
Jon P. Hedley
/s/ E. Garrett Bewkes III
- ---------------------------- Director September 10, 1997
E. Garrett Bewkes III
/s/ Charles J. Philippin
- ---------------------------- Director September 10, 1997
Charles J. Philippin
/s/ Brian Ruder
- ---------------------------- Director September 10, 1997
Brian Ruder
/s/ Stephen I. Sadove
- ---------------------------- Director September 10, 1997
Stephen I. Sadove
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
5 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Coopers & Lybrand L.L.P. (independent auditors)
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5)
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Exhibit 5
[LETTERHEAD OF GIBSON, DUNN & CRUTCHER LLP]
September 10, 1997
Saks Holdings, Inc. C 80337-00056
12 East 49th Street
New York, NY 10017
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We refer to an aggregate of 100,000 shares of Common Stock, par value
$0.01 per share, of Saks Holdings, Inc., a Delaware corporation (the "Company"),
which are the subject of a registration statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), which
shares (the "Shares") may be offered and sold under the Saks Holdings, Inc.
Directors Stock Plan (the "Plan").
We have examined the original, or a photostatic or certified copy, of
such records of the Company, certificates of officers of the Company and of
public officials and such other documents as we have determined relevant and
necessary as the basis for the opinion set forth below. In such examination, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon our examination mentioned above, we are of the opinion that
the Shares have been validly authorized for issuance and, when issued and sold
in accordance with the terms set forth in the Registration Statement and the
Plan, and, when (a) the Registration Statement has become effective under the
Act, (b) the pertinent provisions of any applicable state securities law have
been complied with, and (c) in the case of options issued under the Plan, the
Shares have been paid for, the Shares so issued will be legally issued and will
be fully paid and nonassessable.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm appearing on the cover
of the Registration Statement. In giving this
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Saks Holdings, Inc.
September 10, 1997
Page 2
consent, we do not admit that we are within the category of persons whose
consent is required under Section 7 of the Act or the General Rules and
Regulations of the Commission.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
GIBSON, DUNN & CRUTCHER LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement of
Saks Holdings, Inc. on Form S-8 of our report dated March 4, 1997, on our audits
of the consolidated financial statements and financial statement schedule of
Saks Holdings, Inc. as of February 1, 1997 and February 3, 1996, and for each of
the three fiscal years in the period ended February 1, 1997, which report
appears as Exhibit 13.03 to the Annual Report on Form 10-K filed on May 2, 1997
and amended on May 6, 1997.
/s/ Coopers & Lybrand L.L.P.
New York, New York
September 11, 1997
