<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 17, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
J. C. PENNEY COMPANY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OF INCORPORATION)
13-5583779
(I.R.S. EMPLOYER IDENTIFICATION NO.)
6501 LEGACY DRIVE
PLANO, TEXAS 75024-3698
(972) 431-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
C. R. LOTTER, ESQ.
EXECUTIVE VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
J. C. PENNEY COMPANY, INC.
6501 LEGACY DRIVE, PLANO, TEXAS 75024-3698
(972) 431-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
------------------------
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING
BOX. [ ]
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON
A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, CHECK THE FOLLOWING BOX. [X]
IF THIS FORM IS FILED TO REGISTER ADDITIONAL SECURITIES FOR AN OFFERING
PURSUANT TO RULE 462(B) UNDER THE SECURITIES ACT, PLEASE CHECK THE FOLLOWING BOX
AND LIST THE SECURITIES ACT REGISTRATION STATEMENT NUMBER OF THE EARLIER
EFFECTIVE REGISTRATION STATEMENT FOR THE SAME OFFERING. [ ]
IF THIS FORM IS A POST-EFFECTIVE AMENDMENT FILED PURSUANT TO RULE 462(C)
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. [ ]
IF DELIVERY OF THE PROSPECTUS IS EXPECTED TO BE MADE PURSUANT TO RULE 434,
PLEASE CHECK THE FOLLOWING BOX. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE OFFERING AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PRICE PER UNIT* OFFERING PRICE* FEE
- - -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities and Warrants to
Purchase Debt Securities........ $1,500,000,000** 100%*** $1,500,000,000 $442,500
=========================================================================================================================
</TABLE>
* Estimated solely for the purpose of determining the registration fee.
** In U.S. dollars or the equivalent thereof denominated in foreign currency or
composite currencies such as the European Currency Unit ("ECU"). See below
for a discussion of previously registered securities to be carried forward
pursuant to Rule 429.
*** Exclusive of accrued interest, if any.
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 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
As permitted by Rule 429, the Prospectus included in this Registration
Statement also relates to the Registrant's Registration Statement No. 333-23339
on Form S-3. Debt Securities and Warrants to Purchase Debt Securities registered
pursuant to Registration Statement No. 333-23339 in the amount of $500,000,000
are being carried forward to the Prospectus contained in this Registration
Statement. Registrant previously paid a filing fee of approximately $151,515
associated with such carried forward securities.
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JUNE 17, 1998
- - --------------------------------------------------------------------------------
PROSPECTUS
- - --------------------------------------------------------------------------------
JCPenney
J. C. PENNEY COMPANY, INC.
DEBT SECURITIES
AND
WARRANTS TO PURCHASE DEBT SECURITIES
------------------------
J. C. Penney Company, Inc. ("Company") may offer from time to time in one
or more series up to $1,500,000,000 (or the equivalent thereof denominated in
foreign currency or composite currencies such as the European Currency Unit
("ECU")) aggregate principal amount of its senior debt securities consisting of
unsecured debentures, notes and/or other evidences of indebtedness ("Debt
Securities"), each series of which will be offered on terms to be determined at
the time of sale. The Company from time to time may also offer Debt Securities
with warrants ("Warrants") to purchase Debt Securities (Debt Securities and
Warrants being hereinafter collectively called "Securities"). A Supplement to
this Prospectus ("Prospectus Supplement") will be delivered together with this
Prospectus in respect of any Debt Securities, including any related Warrants,
then being offered and will set forth certain specific terms with respect to
such Securities, which may include, among other items:
- title;
- authorized denominations;
- aggregate principal amount;
- initial public offering price;
- maturity;
- currency or currency unit in which the Debt Securities will be
denominated;
- rate or rates or formula to determine such rate or rates, and time
or times of payment of interest, if any;
- redemption and sinking fund terms, if any;
- exercise prices and expiration dates of any Warrants;
- listing, if any, on a securities exchange;
- underwriter or underwriters, if any, respective amounts to be
purchased by them, their compensation and the resulting net
proceeds to the Company.
Securities may be sold to underwriters for public offering pursuant to
terms of offering fixed at the time of sale. In addition, Securities may be sold
by the Company directly or through agents. See "Plan of Distribution".
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR AD-
EQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1998
<PAGE> 3
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT IN
CONNECTION WITH ANY OFFERING MADE THEREBY, AND IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR BY ANY UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS AND THE
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY OF THE SECURITIES OFFERED THEREBY IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER
THE DELIVERY OF THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE
INFORMATION THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE THEREOF OR
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE SUCH DATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended ("1934 Act") and in accordance therewith, files
reports, proxy statements and other information with the Securities and Exchange
Commission ("Commission"). Such reports, proxy statements and other information
can be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N. W., Room 1024, Washington, D. C. 20549; and
at the Commission's Regional Offices in Chicago (Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661) and New York (Seven World
Trade Center, 13th Floor, New York, N.Y. 10048). Copies of such material can
also be obtained from the Public Reference Section of the Commission at 450
Fifth Street, N. W., Washington, D. C. 20549 at prescribed rates. In addition,
the Commission maintains a Web site (http://www.sec.gov) that contains reports,
proxy and information statements, and other information regarding registrants
that file electronically with the Commission. Reports, proxy statements and
other information concerning the Company can also be inspected at the office of
The New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
This Prospectus constitutes part of a Registration Statement filed by the
Company with the Commission under the Securities Act of 1933, as amended ("1933
Act"). This Prospectus omits certain of the information contained in the
Registration Statement, and reference is hereby made to the Registration
Statement and to the exhibits relating thereto for further information with
respect to the Company and the Securities offered pursuant hereto. Any
statements contained herein concerning the provisions of any document are not
necessarily complete, and in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates herein by reference (i) its Annual Report on Form
10-K for the fiscal year ended January 31, 1998, (ii) the J. C. Penney Funding
Corporation ("Funding Corporation") Annual Report on Form 10-K for such fiscal
year, (iii) the Company's Quarterly Report on Form 10-Q for the 13 weeks ended
May 2, 1998, (iv) Funding Corporation's Quarterly Report on Form 10-Q for the 13
weeks ended May 2, 1998, and (v) the Company's Current Report on Form 8-K dated
February 4, 1998. The aforesaid reports have heretofore been filed by the
Company and Funding Corporation with the Commission pursuant to applicable
provisions of the 1934 Act.
All reports and any definitive proxy or information statements filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act,
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Securities, shall be deemed to be incorporated in this
Prospectus by reference and to be a part hereof from the date of the filing of
such documents.
THE COMPANY WILL PROVIDE, WITHOUT CHARGE, TO EACH PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM THIS PROSPECTUS IS DELIVERED, UPON THE WRITTEN OR ORAL
REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS WHICH HAVE
BEEN OR MAY BE INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO
SUCH DOCUMENTS). WRITTEN REQUESTS SHOULD BE DIRECTED TO: J. C. PENNEY COMPANY,
INC., PUBLIC INFORMATION, P. O. BOX 10001, DALLAS, TEXAS 75301-4302. TELEPHONE
REQUESTS SHOULD BE DIRECTED TO 1-800-953-9421.
2
<PAGE> 4
THE COMPANY
The Company is a major retailer operating over 1,200 JCPenney department
stores in all 50 states, Puerto Rico, Mexico and Chile. The major portion of the
Company's business consists of providing merchandise and services to consumers
through department stores that include catalog departments. The Company markets
predominantly family apparel, jewelry, shoes, accessories and home furnishings.
In addition, the Company, through its wholly-owned subsidiary, Eckerd
Corporation, also operates a chain of approximately 2,780 drug stores located
throughout the northeast, southeast, and Sunbelt regions of the United States.
The Company also has several direct marketing insurance subsidiaries, the
principal of which is J. C. Penney Life Insurance Company, which market life,
health, accident and credit insurance as well as a portfolio of non-insurance
products. The Company finances a portion of its operations through Funding
Corporation, a wholly-owned consolidated subsidiary.
The Company was founded by James Cash Penney in 1902 and incorporated in
Delaware in 1924. Its principal executive offices are located at 6501 Legacy
Drive, Plano, Texas 75024-3698, and its telephone number is (972) 431-1000. As
used in this Prospectus, except as otherwise indicated by the context, the term
"Company" means J. C. Penney Company, Inc. and its consolidated subsidiaries.
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the
Securities will be used for general corporate purposes, which may include
working capital, capital expenditures, repayment of borrowings and investments.
Unless otherwise specified in the Prospectus Supplement accompanying this
Prospectus, specific allocations of the proceeds will not have been made at the
date of the Prospectus Supplement. Pending any specific application, the net
proceeds may be initially invested in short term marketable securities or
applied to the reduction of short term indebtedness.
The Company or its subsidiaries may from time to time borrow additional
funds or issue additional equity securities, as appropriate. The amounts, terms
and timing of any such financings or issuances will depend upon a number of
factors, including the operations of the Company and the condition of the
financial markets.
RATIOS OF AVAILABLE INCOME TO FIXED CHARGES
FOR THE COMPANY AND ALL SUBSIDIARIES
<TABLE>
<CAPTION>
53 WEEKS ENDED 52 WEEKS ENDED
---------------- ----------------------------------------
MAY 2 JAN. 31 JAN. 25 JAN. 27 JAN. 28 JAN. 29
1998 1998 1997 1996 1995 1994
----- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
Ratios of available income to fixed
charges............................... 2.2 2.1 2.7 3.7 5.1 4.9
Ratios of available income to combined
fixed charges and preferred stock
dividend requirement.................. 2.1 2.0 2.4 3.4 4.5 4.3
</TABLE>
For purposes of computing the ratios of available income to fixed charges,
available income is determined by adding fixed charges to income from continuing
operations before income taxes and before capitalized interest. Fixed charges
are interest expense and a portion of rental expense representative of interest.
For purposes of computing the ratios of available income to combined fixed
charges and preferred stock dividend requirement, fixed charges are further
increased by the preferred stock dividend requirement. The interest cost of the
LESOP notes guaranteed by the Company is not included in fixed charges.
The Company believes that due to the seasonal nature of its business,
ratios for a period other than a 52 or 53 week period are inappropriate.
3
<PAGE> 5
DESCRIPTION OF SECURITIES
DEBT SECURITIES
The Debt Securities are to be issued under an Indenture, dated as of April
1, 1994 (said Indenture being herein called the "Indenture"), between the
Company and U.S. Bank Trust National Association (formerly First Trust of
California, National Association), Successor Trustee to Bank of America National
Trust and Savings Association ("Trustee"). The Indenture in the form in which it
was executed is incorporated by reference as an exhibit to the Registration
Statement of which this Prospectus forms a part. The following statements are
subject to the detailed provisions of the Indenture, including the definitions
therein of certain terms used herein without definition. Wherever particular
provisions of the Indenture are referred to below, such provisions are
incorporated by reference as a part of the statement made, and the statement is
qualified in its entirety by such reference.
GENERAL
The Indenture does not limit the amount of Debt Securities which can be
issued thereunder. Under the Indenture, Debt Securities may be issued in one or
more series, each in an aggregate principal amount (in U.S. dollars or the
equivalent thereof denominated in foreign currency or composite currencies such
as the ECU) authorized by the Company prior to issuance.
Reference is made to the Prospectus Supplement for certain specified terms
with respect to the Debt Securities being offered hereby, including, but not
limited to (1) the terms set forth on the cover page of this Prospectus; (2) the
obligation, if any, of the Company to redeem or purchase the Debt Securities
pursuant to any sinking fund or analogous provisions or at the option of the
holder thereof and the period or periods within and the price or prices at which
the Debt Securities will be redeemed or purchased, in whole or in part, pursuant
to such obligation, and the other detailed terms and provisions of such
obligation; (3) if the amount of payments of principal of or any premium or
interest on any of the Debt Securities may be determined with reference to an
index, the manner in which such amounts shall be determined; and (4) whether any
of the Debt Securities shall be issuable in whole or in part in the form of one
or more Global Securities (as described below) and, if so, the Depository for
such Global Security or Securities, and the circumstances under which any such
Global Security or Securities may be exchanged for Debt Securities registered in
the name of, and any transfer of such Global Security or Securities may be
registered to, a person other than such Depository or its nominee.
The Debt Securities offered hereby will be unsecured and will rank pari
passu with all other unsecured and unsubordinated indebtedness of the Company.
Unless otherwise provided in the Prospectus Supplement, the Debt Securities
will be issued only in registered form without coupons and may be issued (in the
case of dollar denominated Debt Securities) in denominations of $1,000 and any
integral multiple thereof. The Debt Securities of a series may be represented,
in whole or in part, by one or more permanent Global Securities in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding Debt Securities of the series to be represented
by such Global Security or Securities. Any such Global Security deposited with a
Depository or its nominee and bearing the legend required by the Indenture may
not be surrendered for transfer or exchange except by the Depository for such
Global Security or any nominee of such Depository, except if the Depository
notifies the Company that it is unwilling or unable to continue as Depository,
or the Depository ceases to be qualified as required by the Indenture, or the
Company instructs the Trustee in accordance with the Indenture that such Global
Security shall be so registrable and exchangeable, or there shall exist such
other circumstances, if any, as may be specified in the applicable Prospectus
Supplement.
The specific terms of the depository arrangement with respect to any
portion of a series of Debt Securities to be represented by one or more Global
Securities will be described in the applicable Prospectus Supplement. Beneficial
interests in Global Securities will only be evidenced by, and transfers thereof
will only be effected through, records maintained by the Depository and the
institutions that are participants in the Depository.
4
<PAGE> 6
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Global Securities, Debt Securities of any series will
be exchangeable for other Debt Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor. The Debt
Securities may be transferred or exchanged without payment of any service
charge, other than any tax or other governmental charge payable in connection
therewith. (Article Two)
The principal of (and premium, if any) and interest, if any, on the Debt
Securities will be payable, and the transfer of the Debt Securities will be
registrable, at the agency or agencies maintained by the Company; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as it appears in the
Security Register. (Sections 2.07 and 2.10)
Some of the Debt Securities may be issued as discounted Debt Securities
(bearing no interest or bearing interest at a rate which at the time of issuance
is below market rate) to be sold at a substantial discount below their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any such discounted Debt Securities will be
described in the Prospectus Supplement relating thereto. Debt Securities may
also be issued under the Indenture upon the exercise of Warrants. See "Warrants"
below.
RESTRICTIVE COVENANTS
Limitations on Liens. The Indenture provides that the Company may not, nor
may it permit any Restricted Subsidiary to, issue, assume or guarantee evidences
of indebtedness for money borrowed which are secured by any mortgage, security
interest, pledge or lien ("mortgage") of or upon any Principal Property or of or
upon any shares of stock or evidences of indebtedness for borrowed money issued
by any Restricted Subsidiary and owned by the Company or any Restricted
Subsidiary, whether owned at the date of the Indenture or thereafter acquired,
without effectively providing that the Principal Amount of the Debt Securities
from time to time Outstanding shall be secured equally and ratably by such
mortgage, except that this restriction will not apply to (1) mortgages on any
property existing at the time of its acquisition; (2) mortgages on property of a
corporation existing at the time such corporation is merged into or consolidated
with, or disposes of substantially all its properties (or those of a division)
to, the Company or a Restricted Subsidiary; (3) mortgages on property of a
corporation existing at the time such corporation first becomes a Restricted
Subsidiary; (4) mortgages securing indebtedness of a Restricted Subsidiary to
the Company or to another Restricted Subsidiary; (5) mortgages to secure the
cost of acquisition, construction, development or substantial repair, alteration
or improvement of property if the commitment to extend the credit secured by any
such mortgage is obtained within 12 months after the later of the completion or
the placing in operation of the acquired, constructed, developed or
substantially repaired, altered or improved property; (6) mortgages securing
current indebtedness (as defined); or (7) any extension, renewal or replacement
(or successive extensions, renewals or replacements), in whole or in part, of
any mortgage referred to in clauses (1) through (6) provided, however, that the
principal amount of indebtedness secured thereby and not otherwise authorized by
said clauses (1) to (6), inclusive, shall not exceed the principal amount of
indebtedness, plus any premium or fee payable in connection with any such
extension, renewal or replacement, so secured at the time of such extension,
renewal or replacement. However, the Company or any Restricted Subsidiary may
issue, assume or guarantee indebtedness secured by mortgages which would
otherwise be subject to the foregoing restriction in any aggregate amount which,
together with all other such indebtedness outstanding, all attributable debt
outstanding under the provisions described in the last sentence under
Limitations on Sale and Lease-Back Transactions below and all Senior Funded
Indebtedness issued, assumed or guaranteed by any Restricted Subsidiary, does
not exceed 5% of Stockholders' Equity. (Section 5.08)
Limitations on Sale and Lease-Back Transactions. The Indenture provides
that neither the Company nor any Restricted Subsidiary may enter into any Sale
and Lease-Back Transaction with respect to any Principal Property (except for
transactions involving leases for a term, including renewals, of not more than
three years and except for transactions between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries), if the purchaser's commitment is
obtained more than 12 months after the later of the acquisition or completion or
the placing in operation of such Principal Property or of such Principal
Property as constructed or developed or substantially repaired, altered or
improved. This restriction will not apply if
5
<PAGE> 7
either (a) the Company or such Restricted Subsidiary would be entitled pursuant
to the provision described in the first sentence under Limitations on Liens
above to issue, assume or guarantee debt secured by a mortgage on such Principal
Property without equally and ratably securing the Debt Securities from time to
time outstanding or (b) the Company applies within 180 days an amount equal to,
in the case of a sale or transfer for cash, the net proceeds (not exceeding the
net book value) and, otherwise, an amount equal to the fair value (as determined
by its Board of Directors) of the Principal Property so leased to the retirement
of Debt Securities or other Senior Funded Indebtedness of the Company or a
Restricted Subsidiary, subject to reduction as set forth in the Indenture in
respect of Debt Securities and other Senior Funded Indebtedness retired during
such 180-day period otherwise than pursuant to mandatory sinking fund or
prepayment provisions and payments at maturity. The Company or any Restricted
Subsidiary, however, may enter into a Sale and Lease-Back Transaction which
would otherwise be subject to the foregoing restriction so as to create an
aggregate amount of attributable debt (as defined) which, together with all
other such attributable debt outstanding, all indebtedness outstanding under the
provision described in the last sentence under Limitations on Liens above and
all Senior Funded Indebtedness issued, assumed or guaranteed by any Restricted
Subsidiary, does not exceed 5% of Stockholders' Equity. (Section 5.09)
Waiver of Covenants. The Indenture provides that the Holders of a majority
(unless a greater requirement with respect to any series of Debt Securities is
specified for this purpose, in which case the requirement specified) in
Principal Amount of the Outstanding Debt Securities of a particular series may
waive compliance as to such series with certain covenants or conditions set
forth in the Indenture, including those described above. (Section 5.10)
Consolidation, Merger or Sale of Assets of the Company. The Indenture
provides that the Company may not consolidate with or merge into any other
corporation or sell its assets substantially as an entirety, unless (1) the
corporation formed by such consolidation or into which the Company is merged or
the Person which acquires its assets is a corporation organized in the United
States and expressly assumes the due and punctual payment of the principal of
(and premium, if any) and interest, if any, on all the Debt Securities and the
performance of every covenant of the Indenture on the part of the Company, and
(2) immediately after giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time, or both, would become an
Event of Default, shall have happened and be continuing. Upon any such
consolidation, merger or sale, the successor corporation formed by such
consolidation or into which the Company is merged or to which such sale is made
will succeed to, and be substituted for, the Company under the Indenture, and
the predecessor corporation shall be released from all obligations and covenants
under the Indenture and the Debt Securities. (Article Eleven)
Unless otherwise provided in the Prospectus Supplement, the covenants
contained in the Indenture and the Debt Securities would not necessarily afford
Holders of the Debt Securities protection in the event of a highly leveraged or
other transaction involving the Company that may adversely affect such Holders.
DEFINITIONS
"Principal Amount" means, when used with respect to any Debt Security, the
amount of principal thereof that could then be declared due and payable as a
result of an Event of Default with respect to such Debt Security. "Principal
Property" means all real and tangible property owned by the Company or a
Restricted Subsidiary constituting a part of any store, warehouse or
distribution center located within the United States, exclusive of motor
vehicles, mobile materials-handling equipment and other rolling stock, cash
registers and other point of sale recording devices and related equipment, and
data processing and other office equipment, provided the net book value of all
real property (including leasehold improvements) and store fixtures constituting
a part of such store, warehouse or distribution center exceeds 0.25% of
Stockholders' Equity. "Restricted Subsidiary" means any Subsidiary (as defined)
of the Company or of a Restricted Subsidiary which the Company designates as a
Restricted Subsidiary, which designation shall not have been canceled. However,
no subsidiary for which the designation of Restricted Subsidiary has been
canceled may be redesignated as such if during any period following cancellation
of its previous designation as a Restricted Subsidiary, such Subsidiary shall
have entered into a Sale and Lease-Back Transaction which would have been
prohibited had it been a Restricted Subsidiary at the time of such Transaction.
"Senior Funded
6
<PAGE> 8
Indebtedness" of the Company means any Funded Indebtedness of the Company unless
in any instruments evidencing or securing such Funded Indebtedness it is
provided that such Funded Indebtedness is subordinate in right of payment to the
Debt Securities to the extent provided in the Indenture. "Senior Funded
Indebtedness" of a Restricted Subsidiary means Funded Indebtedness of the
Restricted Subsidiary and the aggregate preference on involuntary liquidation of
preferred stock of such Subsidiary. "Funded Indebtedness" of a corporation means
the principal of (a) indebtedness for money borrowed or evidenced by an
instrument given in connection with an acquisition which is not payable on
demand and which matures, or which such corporation has the right to renew or
extend to a date, more than one year after the date of determination, (b) any
indebtedness of others of the kinds described in the preceding clause (a) for
the payment of which such corporation is responsible or liable as a guarantor or
otherwise, and (c) amendments, renewals and refundings of any such indebtedness.
For the purposes of the definition of "Funded Indebtedness", the term
"principal" when used at any date with respect to any indebtedness means the
amount of principal of such indebtedness that could be declared to be due and
payable on that date pursuant to the terms of such indebtedness. "Stockholders'
Equity" means the aggregate of (a) capital and reinvested earnings, after
deducting the cost of shares of capital stock of the Company held in its
treasury, of the Company and consolidated Subsidiaries plus (b) deferred tax
effects. (Section 1.01)
EVENTS OF DEFAULT, NOTICE AND WAIVER
The Indenture provides that if an Event of Default shall have occurred and
be continuing with respect to any series of Debt Securities at the time
Outstanding, either the Trustee or the Holders of not less than 25% (unless a
different percentage with respect to any series of Debt Securities is specified
for this purpose, in which case the percentage specified) in Outstanding
Principal Amount of such series may declare to be due and payable immediately
the Principal Amount (or specified portion thereof) of such series, together
with interest, if any, accrued thereon. (Section 7.02)
The Indenture defines an Event of Default with respect to any series of
Debt Securities as any one of the following events: (a) default for 30 days in
payment of any interest due with respect to any Debt Security of such series;
(b) default for 30 days in making any sinking fund payment due with respect to
any Debt Security of such series; (c) default in payment of principal of (or
premium, if any, on) any Debt Security of such series when due; (d) default for
90 days after notice to the Company by the Trustee or by Holders of not less
than 25% in Principal Amount of the Debt Securities then Outstanding of such
series in the performance of any other covenant for the benefit of such series;
(e) certain events of bankruptcy, insolvency and reorganization; and (f) any
additional event specified as an "Event of Default" for the benefit of such
series. (Section 7.01) No Event of Default with respect to a particular series
of Debt Securities issued under the Indenture necessarily constitutes an Event
of Default with respect to any other series of Debt Securities issued
thereunder.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default, give to the Holders of the Debt Securities of each
series as to which such default has occurred notice of such default known to it,
unless cured or waived; provided that, except in the case of default in the
payment of principal of (or premium, if any) or interest, if any, or in the
payment of any sinking fund installment in respect of any of the Debt
Securities, the Trustee will be protected in withholding such notice if it in
good faith determines that the withholding of such notice is in the interests of
the Holders of the series as to which such default has occurred. The term
"default" for the purpose of this provision means any event which is, or after
notice or lapse of time, or both, would become, an Event of Default. (Section
8.02)
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during the continuance of an Event of Default to act with
the required standard of care, to be indemnified by the Holders of Debt
Securities before proceeding to exercise any right or power under the Indenture
at the request of such Holders. (Section 8.03) The Indenture provides that the
Holders of a majority (unless a greater requirement with respect to any series
of Debt Securities is specified for this purpose, in which case the requirement
specified) in Outstanding Principal Amount of a series of Debt Securities may,
subject to certain exceptions, on behalf of the Holders of the Debt Securities
of such series direct the time, method and place of conducting
7
<PAGE> 9
proceedings for remedies available to the Trustee, or exercising any trust or
power conferred on the Trustee. (Section 7.12)
The Indenture includes a covenant that the Company will file annually with
the Trustee a certificate of no default, or specifying any default that exists.
(Section 5.06)
In certain cases, the Holders of a majority (unless a greater requirement
with respect to any series of Debt Securities is specified for this purpose, in
which case the requirement specified) in Outstanding Principal Amount of a
series of Debt Securities may on behalf of the Holders of the Debt Securities of
such series rescind, as to such series, a declaration of acceleration or waive,
as to such series, any past default or Event of Default relating to the Debt
Securities of such series, except a default not theretofore cured in payment of
the principal of (or premium, if any) or interest, if any, on any of such Debt
Securities or in respect of a provision which under the Indenture cannot be
modified or amended without the consent of the Holder of each Outstanding Debt
Security of such series. (Sections 7.02 and 7.13)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of 66 2/3% (unless a different percentage with
respect to any series of Debt Securities is specified for this purpose, in which
case the percentage specified) in Principal Amount of the Outstanding Debt
Securities of each series affected by such modification, to execute supplemental
indentures adding any provisions to or changing or eliminating any provisions of
the Indenture or modifying the rights of the Holders of such Debt Securities,
except that no such supplemental indenture may, without the consent of all
Holders of affected Debt Securities, (i) change the Stated Maturity of any Debt
Security or reduce the principal payable at Stated Maturity or which could be
declared due and payable prior thereto or change any redemption price thereof,
(ii) reduce the rate of interest payable on any Debt Security, (iii) adversely
affect the terms and provisions, if any, applicable to the conversion or
exchange of any Debt Securities, (iv) reduce the aforesaid percentage of Debt
Securities of any series or the percentage of Debt Securities of any series
specified in Section 5.10 or 7.13, (v) change any place or the currency of
payment of principal of (or premium, if any) or interest, if any, on any Debt
Security, or (vi) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security. (Section 10.02)
SATISFACTION AND DISCHARGE PRIOR TO MATURITY
The Company may elect to provide with respect to any series of Debt
Securities that the Company may satisfy its obligations with respect to any
payment of principal (and premium, if any) or interest due on such series of
Debt Securities by depositing in trust with the Trustee money or U.S. Government
Obligations or a combination thereof sufficient to make such payment when due.
If such deposit is sufficient to make all payments of (1) interest on such
series of Debt Securities prior to their redemption or maturity, as the case may
be, and (2) principal of (and premium, if any) and interest on such series of
Debt Securities when due upon redemption or at maturity, as the case may be, all
the obligations of the Company under such series of Debt Securities and the
Indenture as it relates to such series of Debt Securities will be discharged and
terminated except as otherwise provided in the Indenture. "U.S. Government
Obligations" are defined to mean (i) securities backed by the full faith and
credit of the United States and (ii) depository receipts issued by a bank or
trust company as custodian and evidencing ownership by the holders of such
depository receipts of future payments of interest or principal, or both, on
such securities backed by the full faith and credit of the United States held by
such custodian.
For United States income tax purposes, it is likely that any such deposit
and discharge with respect to any Debt Securities will be treated as a taxable
exchange of such Debt Securities for interests in the trust. In that event, a
Holder will recognize gain or loss equal to the difference between the Holder's
cost or other tax basis for the Debt Securities and the value of the Holder's
interest in such trust; and thereafter will be required to include in income a
share of the income, gain and loss of the trust. Purchasers of the Debt
Securities should consult their own advisers with respect to the tax
consequences to them of such deposit and discharge, including the applicability
and effect of tax laws other than the United States income tax law.
8
<PAGE> 10
In addition, the Company may elect to provide with respect to any series of
Debt Securities that the Company may be released from certain of its covenants
upon the satisfaction of certain conditions applicable to the securities of such
series.
WARRANTS
The Company may issue with any Debt Securities being offered by it Warrants
for the purchase of other Debt Securities. Each issue of Warrants will be issued
under, and will be governed by, a Warrant Agreement ("Warrant Agreement"), to be
entered into between the Company and a warrant agent ("Warrant Agent"), to be
described in the Prospectus Supplement relating to the Debt Securities with
which the Warrants are to be issued. The proposed Warrant Agreement, including
the form of proposed Warrant Certificate representing the Warrants,
substantially in the form in which it is to be executed, is incorporated by
reference as an exhibit to the Registration Statement of which this Prospectus
forms a part. The following summaries of certain provisions of the Warrant
Agreement and Warrant Certificates do not purport to be complete and are subject
to and qualified in their entirety by reference to all the provisions set forth
in the Warrant Agreement and Warrant Certificates, respectively, including the
definitions thereof of certain terms.
Reference is made to the Prospectus Supplement relating to the Securities,
the Warrant Agreement relating to the Warrants and the Warrant Certificates
representing the Warrants for certain specific terms of the Warrants, which may
include: (1) designation, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of the Warrants; (2) designation and terms
of any related Debt Securities with which the Warrants are issued and the number
of Warrants issued with each such Debt Security; (3) date, if any, on and after
which the Warrants and the related Debt Securities will be separately
transferable; (4) principal amount of Debt Securities purchasable upon exercise
of one Warrant and the price at which such principal amount of Debt Securities
may be purchased upon such exercise; (5) date on which the right to exercise the
Warrants shall commence ("Commencement Date") and date on which such right shall
expire ("Expiration Date"); and (6) whether the Warrants represented by the
Warrant Certificates will be issued in registered or bearer form.
Warrant Certificates will be exchangeable for new Warrant Certificates of
different denominations, and Warrants may be exercised, at the agency or
agencies maintained for such purposes. Prior to the exercise of their Warrants,
holders of Warrants will not have any of the rights of Holders of the Debt
Securities purchasable upon such exercise and will not be entitled to payments
of principal of (or premium, if any) or interest, if any, on the Debt Securities
purchasable upon such exercise.
Each Warrant will entitle the holder to purchase for cash such principal
amount of Debt Securities at such exercise price as shall in each case be set
forth, or be determinable as set forth, in the Prospectus Supplement relating to
the Securities. Each Warrant may be exercised in whole but not in part at any
time on and after the Commencement Date and up to the close of business on the
Expiration Date set forth in the Prospectus Supplement relating to the
Securities. After the close of business on the Expiration Date, unexercised
Warrants will become void.
The exercise price of the Warrants will be that price applicable on the
date of receipt of payment therefor determined as set forth in the Prospectus
Supplement relating to the Securities. Upon receipt of payment of the exercise
price and the Warrant Certificate properly completed and duly executed at the
agency or agencies maintained by the Company for such purpose, the Company will,
as soon as practicable, forward the Debt Securities purchasable upon such
exercise. If less than all of the Warrants represented by such Warrant
Certificate are exercised, a new Warrant Certificate will be issued for the
Warrants remaining unexercised.
9
<PAGE> 11
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for the Company by C. R.
Lotter, Executive Vice President, Secretary and General Counsel of the Company,
and for any underwriters, agents or purchasers by Dewey Ballantine LLP, New
York, New York. As of May 31, 1998, Mr. Lotter owned 38,242 shares of Common
Stock and Common Stock voting equivalents of the Company, including shares
credited to his accounts under the Company's Savings and Profit-Sharing
Retirement Plan and Savings, Profit-Sharing and Stock Ownership Plan. As of May
31, 1998, he had outstanding options to purchase 64,000 shares of Common Stock.
EXPERTS
The consolidated balance sheets of J. C. Penney Company, Inc. and
Subsidiaries as of January 31, 1998 and January 25, 1997, and the related
consolidated statements of income, stockholders' equity, and cash flows for each
of the years in the three-year period ended January 31, 1998, and the related
financial statement schedule, contained or incorporated by reference in the
Company's Annual Report on Form 10-K for the fiscal year ended January 31, 1998
and the balance sheets of J. C. Penney Funding Corporation as of January 31,
1998 and January 25, 1997, and the related statements of income, reinvested
earnings and cash flows for each of the years in the three year period ended
January 31, 1998, contained or incorporated by reference in Funding
Corporation's Annual Report on Form 10-K for the fiscal year ended January 31,
1998, have been incorporated herein by reference in reliance upon the reports of
KPMG Peat Marwick LLP, independent certified public accountants (which reports
each dated February 26, 1998 are incorporated herein by reference to the
aforementioned Annual Reports on Form 10-K) and upon the authority of said firm
as experts in accounting and auditing. To the extent that KPMG Peat Marwick LLP
audits and reports on financial statements of the Company and Funding
Corporation issued at future dates, and consents to the use of their reports
thereon, such financial statements also will be incorporated by reference herein
in reliance upon their reports and said authority.
PLAN OF DISTRIBUTION
The Company may offer the Securities from time to time (i) through
underwriters or dealers, (ii) directly to one or more institutional purchasers,
or (iii) through agents.
Sales of Securities through underwriters may be through underwriting
syndicates led by one or more managing underwriters. The specific managing
underwriter or underwriters which may act with respect to the offer and sale of
any series of Securities are set forth on the cover of the Prospectus Supplement
in respect of such series and the members of the underwriting syndicate, if any,
are named in such Prospectus Supplement.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. In connection with the sale of Securities, underwriters may
be deemed to have received compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of Securities for whom they may act as agents. Underwriters may sell
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, are set forth in
the Prospectus Supplement. Underwriters, dealers and agents participating in the
distribution of the Securities may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on
resale of the Securities may be deemed to be underwriting discounts and
commissions, under the 1933 Act.
If so indicated in an applicable Prospectus Supplement, the Company will
authorize underwriters, dealers or agents to solicit offers by certain
institutions to purchase Securities from the Company pursuant to delayed
delivery contracts. The Prospectus Supplement relating thereto will also set
forth the price to be paid for
10
<PAGE> 12
Securities pursuant to such contracts, the commissions payable for solicitation
of such contracts, the date or dates in the future for delivery of Securities
pursuant to such contracts and any conditions to which such contracts will be
subject.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Company, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the 1933 Act.
Underwriters and agents may engage in transactions with, or perform
services for, the Company in the ordinary course of business.
11
<PAGE> 13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses (exclusive of underwriting discounts and commissions) in
connection with the issuance and distribution of the Securities registered
hereunder.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 442,500
"Blue Sky" expenses......................................... 20,000*
Printing expenses........................................... 100,000*
Trustee's fees and expense.................................. 35,000*
Accounting fees............................................. 35,000*
Rating agency fees.......................................... 275,000*
Miscellaneous expenses...................................... 25,000*
---------
Total.................................................. $932,500
=========
</TABLE>
- - ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware permits
indemnification of the directors and officers of the Company involved in a civil
or criminal action, suit or proceeding, including, under certain circumstances,
suits by or in the right of the Company, for any expenses, including attorneys'
fees, and (except in the case of suits by or in the right of the Company) any
liabilities which they may have incurred in consequence of such action, suit or
proceeding under the conditions stated in said Section.
Article X of the Company's Bylaws provides, in substance, for
indemnification by the Company of its directors and officers in accordance with
the provisions of the General Corporation Law of Delaware. The Company has
entered into indemnification agreements with its current directors and certain
of its current officers which generally provide for indemnification by the
Company except as prohibited by applicable law. To provide some assurance of
payment to the indemnitees of amounts to which they may become entitled pursuant
to the aforesaid agreements, the Company has funded a trust.
In addition, the Company has purchased insurance coverage under policies
which insure the Company for amounts which the Company is required or permitted
to pay as indemnification of directors and certain officers of the Company and
its subsidiaries, and which insure directors and certain officers of the Company
and its subsidiaries against certain liabilities which might be incurred by them
in such capacities and for which they are not entitled to indemnification by the
Company.
Furthermore, the Company, as well as its directors and officers, may be
entitled to indemnification by any underwriters named in the Prospectus
Supplement against certain civil liabilities under the 1933 Act under agreements
entered into between the Company and such underwriters.
II-1
<PAGE> 14
ITEM 16. EXHIBITS.
<TABLE>
<C> <S> <C>
1(a) Form of proposed Underwriting Agreement (including form of proposed
Delayed Delivery Contract) (filed as Exhibit 1 to the Company's
Registration Statement on Form S-3, SEC File No. 2-79577, and
incorporated herein by reference)
(b) Form of Proposed Agency Agreement (filed as Exhibit 1(b) to the
Company's Registration Statement on Form S-3, SEC File No.
333-06883, and incorporated herein by reference)
Indenture, dated as of April 1, 1994, between the Company and U.S.
4(a) Bank Trust National Association (formerly First Trust of California,
National Association), Successor Trustee to Bank of America National
Trust and Savings Association (filed as Exhibit 4(a) to the
Company's Registration Statement on Form S-3, SEC File No. 33-53275,
and incorporated herein by reference)
(b) Forms of Debt Securities registered hereunder may include the
following, among others:
(i) Form of % Note Due (filed as Exhibit 4(b)(i)
to the Company's Registration Statement on Form S-3, SEC
File No. 33-53275, and incorporated herein by reference)
(ii) Form of Zero Coupon Note Due (filed as Exhibit
4(b)(ii) to the Company's Registration Statement on Form
S-3, SEC File No. 33-53275, and incorporated herein by
reference)
(iii) Form of % Debenture Due (Original Issue
Discount) (filed as Exhibit 4(b)(iii) to the Company's
Registration Statement on Form S-3, SEC File No. 33-53275,
and incorporated herein by reference)
(iv) Form of % Debenture Due (filed as Exhibit
4(b)(iv) to the Company's Registration Statement on Form
S-3, SEC File No. 33-53275, and incorporated herein by
reference)
(v) Form of % Sinking Fund Debenture Due (filed
as Exhibit 4(b)(v) to the Company's Registration Statement
on Form S-3, SEC File No. 33-53275, and incorporated herein
by reference)
(vi) Form of Extendible Note (filed as Exhibit 4(b)(vi) to the
Company's Registration Statement on Form S-3, SEC File No.
33-53275, and incorporated herein by reference)
(vii) Form of Medium-Term Note, Series (Fixed Rate) (filed as
Exhibit 4(b)(vii) to the Company's Registration Statement on
Form S-3, SEC File No. 33-53275, and incorporated herein by
reference)
(viii) Form of Medium-Term Note, Series (Floating Rate) (filed as
Exhibit 4(b)(viii) to the Company's Registration Statement
on Form S-3, SEC File No. 33-53275, and incorporated herein
by reference)
(c) Form of proposed Warrant Agreement (including form of proposed
Warrant Certificate) (filed as Exhibit 4(c) to the Company's
Registration Statement on Form S-3, SEC File No. 33-53275, and
incorporated herein by reference)
5 Opinion of C. R. Lotter with respect to the validity of the
Securities
Computation of ratios (Computation of Ratios of Available Income to
Combined Fixed Charges and Preferred Stock Dividend Requirement and
Computation of Ratios of Available Income to Fixed Charges for the
12 53 weeks ended May 2, 1998 and January 31, 1998, and for the 52
weeks ended January 25, 1997, January 27, 1996, January 28, 1995,
and January 29, 1994, were filed as Exhibits 12(a) and 12(b),
respectively, to the Company's Quarterly Report on Form 10-Q for the
13 weeks ended May 2, 1998, and the Company's Annual Reports on Form
10-K for each of the years ended January 31, 1998, January 25, 1997,
January 27, 1996, January 28, 1995, and January 29, 1994,
respectively (SEC File No. 1-777), which Reports are incorporated
herein by reference)
23(a) Consent of KPMG Peat Marwick LLP
(b) Consent of C. R. Lotter (see Exhibit 5)
24 Powers of Attorney
</TABLE>
II-2
<PAGE> 15
<TABLE>
<C> <S> <C>
Statement of Eligibility on Form T-1 of U.S. Bank Trust National
25 Association (formerly First Trust of California, National
Association), as Successor Trustee under the Indenture pursuant to
which the Debt Securities registered hereunder are to be issued
(filed as Exhibit 25 to the Company's Registration Statement on Form
S-3, SEC File No. 333-06883, and incorporated herein by reference)
99 Form of Pricing Supplement (filed as Exhibit 99 to the Company's
Registration Statement on Form S-3, SEC File No. 33-53275, and
incorporated herein by reference)
</TABLE>
ITEM 17. UNDERTAKINGS.
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 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 Commission
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;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and 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 Securities Exchange
Act of 1934 that are incorporated by reference in the Registration Statement.
(2) 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;
(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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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.
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 provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange
II-3
<PAGE> 16
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.
II-4
<PAGE> 17
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-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF PLANO AND STATE OF TEXAS, ON THE 17TH DAY OF JUNE,
1998.
J. C. PENNEY COMPANY, INC.
By: /s/ D. A. MCKAY
------------------------------------
D. A. MCKAY
EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
Chairman of the Board and
Chief Executive Officer
(principal executive officer);
J. E. OESTERREICHER* Director June 17, 1998
- - --------------------------------------------------------
J. E. OESTERREICHER
Executive Vice President
and Chief Financial Officer
/s/ D. A. MCKAY (principal financial officer) June 17, 1998
- - --------------------------------------------------------
D. A. MCKAY
Vice President
and Controller
(principal accounting
W. J. ALCORN* officer) June 17, 1998
- - --------------------------------------------------------
W. J. ALCORN
M. A. BURNS* Director June 17, 1998
- - --------------------------------------------------------
M. A. BURNS
V. E. JORDAN, JR.* Director June 17, 1998
- - --------------------------------------------------------
V. E. JORDAN, JR.
GEORGE NIGH* Director June 17, 1998
- - --------------------------------------------------------
GEORGE NIGH
J. C. PFEIFFER* Director June 17, 1998
- - --------------------------------------------------------
J. C. PFEIFFER
A. W. RICHARDS* Director June 17, 1998
- - --------------------------------------------------------
A. W. RICHARDS
FRANCISCO SANCHEZ-LOAEZA* Director June 17, 1998
- - --------------------------------------------------------
FRANCISCO SANCHEZ-LOAEZA
C. S. SANFORD, JR.* Director June 17, 1998
- - --------------------------------------------------------
C. S. SANFORD, JR.
</TABLE>
II-5
<PAGE> 18
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
R. G. TURNER* Director June 17, 1998
- - --------------------------------------------------------
R. G. TURNER
*By: /s/ D. A. MCKAY
---------------------------------------------------
D. A. MCKAY
ATTORNEY-IN-FACT
</TABLE>
COPIES OF POWERS OF ATTORNEY AUTHORIZING W. J. ALCORN, R. B. CAVANAUGH, C.
R. LOTTER, AND D. A. MCKAY, AND EACH OF THEM, TO SIGN THIS REGISTRATION
STATEMENT ON BEHALF OF THE ABOVE NAMED DIRECTORS AND OFFICERS, ARE BEING FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION SIMULTANEOUSLY HEREWITH.
II-6
<PAGE> 19
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- - ------- -----------
<C> <S> <C>
1(a) Form of proposed Underwriting Agreement (including form of proposed
Delayed Delivery Contract) (filed as Exhibit 1 to the Company's
Registration Statement on Form S-3, SEC File No. 2-79577, and
incorporated herein by reference)
(b) Form of Proposed Agency Agreement (filed as Exhibit 1(b) to the
Company's Registration Statement on Form S-3, SEC File No.
333-06883, and incorporated herein by reference)
Indenture, dated as of April 1, 1994, between the Company and U.S.
4(a) Bank Trust National Association (formerly First Trust of California,
National Association), Successor Trustee to Bank of America National
Trust and Savings Association (filed as Exhibit 4(a) to the
Company's Registration Statement on Form S-3, SEC File No. 33-53275,
and incorporated herein by reference)
(b) Forms of Debt Securities registered hereunder may include the
following, among others:
(i) Form of % Note Due (filed as Exhibit 4(b)(i)
to the Company's Registration Statement on Form S-3, SEC
File No. 33-53275, and incorporated herein by reference)
(ii) Form of Zero Coupon Note Due (filed as Exhibit
4(b)(ii) to the Company's Registration Statement on Form
S-3, SEC File No. 33-53275, and incorporated herein by
reference)
(iii) Form of % Debenture Due (Original Issue
Discount) (filed as Exhibit 4(b)(iii) to the Company's
Registration Statement on Form S-3, SEC File No. 33-53275,
and incorporated herein by reference)
(iv) Form of % Debenture Due (filed as Exhibit
4(b)(iv) to the Company's Registration Statement on Form
S-3, SEC File No. 33-53275, and incorporated herein by
reference)
(v) Form of % Sinking Fund Debenture Due (filed
as Exhibit 4(b)(v) to the Company's Registration Statement
on Form S-3, SEC File No. 33-53275, and incorporated herein
by reference)
(vi) Form of Extendible Note (filed as Exhibit 4(b)(vi) to the
Company's Registration Statement on Form S-3, SEC File No.
33-53275, and incorporated herein by reference)
(vii) Form of Medium-Term Note, Series (Fixed Rate) (filed as
Exhibit 4(b)(vii) to the Company's Registration Statement on
Form S-3, SEC File No. 33-53275, and incorporated herein by
reference)
(viii) Form of Medium-Term Note, Series (Floating Rate) (filed as
Exhibit 4(b)(viii) to the Company's Registration Statement
on Form S-3, SEC File No. 33-53275, and incorporated herein
by reference)
(c) Form of proposed Warrant Agreement (including form of proposed
Warrant Certificate) (filed as Exhibit 4(c) to the Company's
Registration Statement on Form S-3, SEC File No. 33-53275, and
incorporated herein by reference)
5 Opinion of C. R. Lotter with respect to the validity of the
Securities
Computation of ratios (Computation of Ratios of Available Income to
Combined Fixed Charges and Preferred Stock Dividend Requirement and
Computation of Ratios of Available Income to Fixed Charges for the
12 53 weeks ended May 2, 1998 and January 31, 1998, and for the 52
weeks ended January 25, 1997, January 27, 1996, January 28, 1995,
and January 29, 1994, were filed as Exhibits 12(a) and 12(b),
respectively, to the Company's Quarterly Report on Form 10-Q for the
13 weeks ended May 2, 1998, and the Company's Annual Reports on Form
10-K for each of the years ended January 31, 1998, January 25, 1997,
January 27, 1996, January 28, 1995, and January 29, 1994,
respectively (SEC File No. 1-777), which Reports are incorporated
herein by reference)
23(a) Consent of KPMG Peat Marwick LLP
(b) Consent of C. R. Lotter (see Exhibit 5)
24 Powers of Attorney
</TABLE>
<PAGE> 20
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- - ------- -----------
<C> <S> <C>
Statement of Eligibility on Form T-1 of U.S. Bank Trust National
25 Association (formerly First Trust of California, National
Association), as Successor Trustee under the Indenture pursuant to
which the Debt Securities registered hereunder are to be issued
(filed as Exhibit 25 to the Company's Registration Statement on Form
S-3, SEC File No. 333-06883, and incorporated herein by reference)
99 Form of Pricing Supplement (filed as Exhibit 99 to the Company's
Registration Statement on Form S-3, SEC File No. 33-53275, and
incorporated herein by reference)
</TABLE>
<PAGE> 1
[JC PENNEY LETTERHEAD]
Exhibit 5
June 17, 1998
Board of Directors
J. C. Penney Company, Inc.
6501 Legacy Drive
Plano, Texas 75024-3698
Ladies and Gentlemen:
As General Counsel of J. C. Penney Company, Inc., a Delaware corporation
("Company"), I am familiar with the Restated Certificate of Incorporation of
the Company, and its Bylaws, as amended.
I am also familiar with the corporate proceedings heretofore taken and the
additional proceedings proposed to be taken in connection with the issuance and
sale from time to time of up to $1,500,000,000 aggregate principal amount of
debt securities ("Debt Securities") issuable under an Indenture dated as of
April 1, 1994 ("Indenture") between the Company and U.S. Bank Trust National
Association (formerly First Trust of California, National Association), as
Successor Trustee ("Trustee") to Bank of America National Trust and Savings
Association, each series of which will be offered on terms to be determined at
the time of sale. The Debt Securities may be offered with warrants ("Warrants")
to purchase Debt Securities, any such Warrants to be issued pursuant to a
warrant agreement ("Warrant Agreement") to be entered between the Company and a
warrant agent ("Warrant Agent") (Debt Securities and Warrants being collectively
called "Securities"). I have examined the Registration Statement on Form S-3 in
the form being filed by the Company with the Securities and Exchange Commission
on this date, for the registration under the Securities Act of 1933, as amended,
of the Securities for an offering to be made on a continuous or delayed basis
pursuant to the provisions of Rule 415. I have also examined such other
documents and records as I have deemed appropriate for the purpose of this
opinion.
Based upon the foregoing, I am of the opinion as follows:
(i) The execution and delivery of the Indenture have been validly
authorized, and the Indenture constitutes a valid and binding obligation of the
Company in accordance with its terms except as the same may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
<PAGE> 2
(ii) Subject to the proposed additional proceedings being taken as
now contemplated by the Company prior to the issuance of the Debt Securities,
when the Debt Securities, including the Debt Securities issuable upon due
exercise of the Warrants in accordance with the terms of the Warrant Agreement,
have been duly executed on behalf of the Company, authenticated by or on behalf
of the Trustee, issued and sold as described in the Registration Statement,
including the Prospectus and Prospectus Supplement relating thereto, and
delivered by the Company in accordance with the Indenture, such Debt Securities
will constitute valid and binding obligations of the Company in accordance with
their respective terms and the terms of the Indenture except as limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(iii) Subject to the proposed additional proceedings being taken as
now contemplated by the Company prior to the issuance of the Warrants, and to
the due execution and delivery of the Warrant Agreement relating to the
Warrants to be issued, when the warrant certificates evidencing such Warrants
("Warrant Certificates") shall have been duly executed on behalf of the Company
and countersigned by the Warrant Agent, issued and sold as described in the
Registration Statement, including the Prospectus and Prospectus Supplement
relating thereto, and such Warrant Certificates shall have been delivered by
the Company in accordance with the Warrant Agreement, the Warrant Certificates
will constitute valid and binding obligations of the Company in accordance with
their respective terms and the terms of the Warrant Agreement except as limited
by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles.
I hereby consent to the reference to me under the heading "Validity of
Securities" in the Prospectus included in said Registration Statement and to
the filing of this opinion as an exhibit to said Registration Statement.
Very truly yours,
/s/ C. R. Lotter
C. R. Lotter
General Counsel
<PAGE> 1
Exhibit 23a
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors of
J. C. Penney Company, Inc.
We consent to the use of our reports incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the registration statement.
/S/ KPMG Peat Marwick LLP
Dallas, Texas
June 16, 1998
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT each of the undersigned directors and
officers of J. C. PENNEY COMPANY, INC., a Delaware corporation ("Company"),
which will file with the Securities and Exchange Commission, Washington, D. C.
("Commission"), (i) under the provisions of the Securities Act of 1933, as
amended, a Registration Statement on Form S-3 (or any appropriate form then in
effect) for the registration of the Company's debt securities (which may include
debt securities, together with warrants or other rights to purchase or otherwise
acquire debt securities), and (ii) under the provisions of the Securities
Exchange Act of 1934, as amended, its Annual Report on Form 10-K for the 53
weeks ended January 31, 1998, hereby constitutes and appoints W. J. Alcorn, R.
B. Cavanaugh, C. R. Lotter, and D. A. McKay, and each of them, his or her true
and lawful attorneys-in-fact and agents, with full power to each of them to act
without the others, for him or her and in his or her name, place, and stead, in
any and all capacities, to sign (x) said Registration Statement and Prospectus
and Prospectus Supplements, which are about to be filed, and any and all
subsequent amendments thereto (including, without limitation, any and all
post-effective amendments thereto ("Registration Statement")), and (y) said
Annual Report, which is about to be filed, and any and all subsequent amendments
to said Annual Report ("Annual Report"), and to file said Registration Statement
and Annual Report so signed, with all exhibits thereto, and any and all
documents in connection therewith, and to appear before the Commission in
connection with any matter relating to said Registration Statement and Annual
Report, hereby granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform any and all acts and things
requisite and necessary to be done in and about the premises as fully and to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this Power of
Attorney as of the 11th day of March, 1998.
<TABLE>
<S> <C>
/s/ J. E. Oesterreicher /s/ W. B. Tygart
- - -------------------------------------------- ---------------------------------------------
J. E. Oesterreicher W. B. Tygart
Chairman of the Board Vice Chairman of the Board;
and Chief Executive Officer Director
(principal executive officer);
Director
/s/ D. A. McKay /s/ W. J. Alcorn
- - -------------------------------------------- ---------------------------------------------
D. A. McKay W. J. Alcorn
Executive Vice President and Vice President and Controller
Chief Financial Officer (principal accounting officer)
(principal financial officer)
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
/s/ M. A. Burns
- - ---------------------------------------
M. A. Burns
Director
/s/ V. E. Jordan, Jr. /s/ George Nigh
- - --------------------------------------- ---------------------------------------------
V. E. Jordan, Jr. George Nigh
Director Director
/s/ J. C. Pfeiffer /s/ A. W. Richards
- - --------------------------------------- ---------------------------------------------
J. C. Pfeiffer A. W. Richards
Director Director
/s/ Francisco Sanchez-Loaeza /s/ C. S. Sanford, Jr.
- - --------------------------------------- ---------------------------------------------
Francisco Sanchez-Loaeza C. S. Sanford, Jr.
Director Director
/s/ R. G. Turner /s/ J. D. Williams
- - --------------------------------------- ---------------------------------------------
R. G. Turner J. D. Williams
Director Director
</TABLE>
