As filed with the Securities and Exchange Commission on March 1, 1999.
Registration No. 333-71237
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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J. C. PENNEY COMPANY, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 13-5583779
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
CHARLES R. LOTTER
EXECUTIVE VICE PRESIDENT,
SECRETARY AND GENERAL COUNSEL
6501 LEGACY DRIVE 6501 LEGACY DRIVE
PLANO, TEXAS 75024-3698 PLANO, TEXAS 75024-3698
(Address, Including Zip Code, (972) 431-1201
of Registrant's Principal (Name, Address, Including Zip Code,
Executive Offices) and Telephone Number, Including
Area Code, of Agent for Service)
GENOVESE DRUG STORES, INC. 1984 EMPLOYEE STOCK OPTION AND
STOCK APPRECIATION RIGHTS PLAN
(Full Title of the Plan)
NOTE: THIS POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8 TO THE REGISTRANT'S
REGISTRATION STATEMENT ON FORM S-4 (FILE NO. 333-71237) RELATES TO 553,872
PREVIOUSLY REGISTERED SHARES OF THE REGISTRANT'S COMMON STOCK, PAR VALUE $.50
PER SHARE ("JCPENNEY COMMON STOCK"), AND ASSOCIATED RIGHTS TO PURCHASE SHARES OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK, WITHOUT PAR VALUE (THE "RIGHTS"),
OF THE REGISTRANT RESERVED FOR ISSUANCE PURSUANT TO THE GENOVESE DRUG STORES,
INC. 1984 EMPLOYEE STOCK OPTION AND STOCK APPRECIATION RIGHTS PLAN WHICH THE
REGISTRANT ASSUMED UPON CONSUMMATION OF ITS ACQUISITION OF GENOVESE DRUG STORES,
INC. ("GENOVESE") PURSUANT TO THE AGREEMENT AND PLAN OF MERGER, DATED AS OF
NOVEMBER 23, 1998, AMONG THE REGISTRANT, LEGACY ACQUISITION CORP. AND GENOVESE.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission are incorporated by reference into this Registration Statement:
(1) J. C. Penney Company, Inc.'s (the "Company's") Annual Report on Form
10-K for the 53 weeks ended January 31, 1998, the Company's Quarterly
Report on Form 10-Q for the 13 weeks ended May 2, 1998, the Company's
Quarterly Report on Form 10-Q for the 13 and 26 weeks ended August 1,
1998, the Company's Quarterly Report on Form 10-Q for the 13 and 39 weeks
ended October 31, 1998, the Company's Quarterly Report on Form 10-Q/A for
the 13 and 39 weeks ended October 31, 1998, the Company's Current Report
on Form 8-K dated February 4, 1998 and filed February 6, 1998, and the
Company's Current Report on Form 8-K dated November 23, 1998 and filed
November 25, 1998.
(2) J. C. Penney Funding Corporation's ("Funding's") Annual Report on
Form 10-K for the 53 weeks ended January 31, 1998, Funding's Quarterly
Report on Form 10-Q for the 13 weeks ended May 2, 1998, Funding's
Quarterly Report on Form 10-Q for the 13 and 26 weeks ended August 1,
1998, and Funding's Quarterly Report on Form 10-Q for the 13 and 39 weeks
ended October 31, 1998.
(3) All documents subsequently filed by the Company and Funding pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment to this Registration Statement that indicates
that all of the securities offered have been sold or which deregisters
all 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 documents.
The descriptions set forth below of the JCPenney Common Stock, the
Rights and the preferred stock, without par value, of the Company ("JCPenney
Preferred Stock") constitute brief summaries of certain provisions of the
Company's Restated Certificate of Incorporation, the Company's Bylaws, and the
Rights Agreement between the Company and First Chicago Trust Company of New
York, dated as of February 14, 1990, as amended on January 13, 1992 to reflect
Manufacturers Hanover Trust Company of New York (now ChaseMellon Shareholder
Services, L.L.C.) as successor Rights Agent (the "JCPenney Rights Agreement"),
and are qualified in their entirety by reference to the relevant provisions of
such documents, all of which are listed under Item 8 as exhibits to this
Registration Statement and are incorporated herein by reference.
JCPENNEY COMMON STOCK
Holders of JCPenney Common Stock are entitled to one vote per share with
respect to each matter submitted to a vote of the stockholders of the Company,
including the election of directors, subject to voting rights that may be
established for shares of JCPenney Preferred Stock. Shares of JCPenney Common
Stock vote as a class together with the shares of Series A Preferred Stock (as
hereinafter described), if any such shares of Series A Preferred Stock are
issued, and the shares of Series B Preferred Stock (as hereinafter described).
The Board of Directors of the Company is divided into three classes to be as
nearly equal in number as possible. One third of the directors are elected every
year and serve three-year terms. Holders of JCPenney Common Stock do not have
the right to cumulate votes in the election of directors and have no preemptive
or subscription rights. JCPenney Common Stock is neither redeemable nor
convertible, and there are no sinking fund provisions relating to such stock.
Subject to the prior rights of any outstanding shares of JCPenney
Preferred Stock, holders of JCPenney Common Stock are entitled to receive such
dividends as may be lawfully declared from time to time by the Board of
Directors of the Company. Upon any voluntary or involuntary liquidation,
dissolution or winding-up of the Company, holders of JCPenney Common Stock will
be entitled to receive such assets as are available for distribution to
stockholders after there shall have been paid or set apart for payment the full
amounts necessary to satisfy any preferential or participating rights to which
the holders of JCPenney Preferred Stock are entitled.
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JCPENNEY PREFERRED STOCK
The Company's Restated Certificate of Incorporation authorizes
25,000,000 shares of JCPenney Preferred Stock. The Company's Board of Directors
has designated 1,600,000 shares of JCPenney Preferred Stock as Series A Junior
Participating Preferred Stock ("Series A Preferred Stock") and has authorized
such shares for issuance pursuant to the exercise of the Rights. As of January
31, 1999, no shares of Series A Preferred Stock had been issued. In addition,
1,400,000 shares of JCPenney Preferred Stock have been designated Series B ESOP
Convertible Preferred Stock ("Series B Preferred Stock"). As of January 31,
1999, 791,215 shares of Series B Preferred Stock were issued and outstanding.
Rights; Series A Preferred Stock
There is attached to each share of JCPenney Common Stock one Right to
purchase from the Company one four-hundredth of a share of Series A Preferred
Stock at a purchase price of $140 per share (the "Purchase Price"), subject to
adjustment in certain events. The terms and conditions of the Rights are
contained in the JCPenney Rights Agreement.
Initially, the Rights will not be exercisable, certificates for the
Rights will not be issued and the Rights will automatically trade with the
JCPenney Common Stock.
The Rights will separate from the JCPenney Common Stock and a
"Distribution Date" will occur on the earlier of (i) the tenth day following the
earlier of (a) a public announcement that a person or group of affiliated or
associated persons other than the Company, any subsidiary of the Company or any
employee benefit plan or employee stock plan of the Company or of any subsidiary
of the Company (an "Exempt Person") has acquired, or has obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding JCPenney Common
Stock (an "Acquiring Person") or (b) such date that a majority of the Company's
Board of Directors shall become aware of the existence of an Acquiring Person
(either date referenced in (a) or (b) above being the "Stock Acquisition Date")
or (ii) the nineteenth business day following the commencement of or public
announcement of the intent to commence a tender or exchange offer which, if
consummated, would result in the ownership of 30% or more of the outstanding
JCPenney Common Stock, irrespective of whether any shares of JCPenney Common
Stock are acquired pursuant to such offer. The JCPenney Rights Agreement
provides that the Distribution Date may be extended by the Company's Board of
Directors prior to the expiration of either of the time periods referenced in
the preceding sentence. It further provides that until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be represented
by and transferred with, and only with, JCPenney Common Stock. Until the
Distribution Date (or the earlier redemption or expiration of the Rights),
JCPenney Common Stock certificates issued after February 14, 1990 will each
contain a legend incorporating the JCPenney Rights Agreement by reference and
the surrender for transfer of any JCPenney Common Stock certificate, with or
without the aforesaid legend or a copy of the Summary of Rights attached
thereto, will also constitute the simultaneous transfer of the Rights associated
with the JCPenney Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate Rights Certificates
("Rights Certificates") will be mailed to holders of record of JCPenney Common
Stock at the close of business on the Distribution Date, and, thereafter, the
Rights Certificates alone will evidence the Rights, and the Rights will
thereafter be transferable separate and apart from the JCPenney Common Stock.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on February 14, 2000, unless redeemed earlier as
described below.
Under certain circumstances, as provided in the JCPenney Rights
Agreement, Rights issued to or beneficially owned by a person who is or becomes
an Acquiring Person (other than pursuant to a Permitted Tender Offer, as
hereinafter defined) or an associate or affiliate of such Acquiring Person (as
such terms are defined in the JCPenney Rights Agreement) or, under certain
circumstances, transferees thereof, will become null and void and thereafter may
not be transferred to any person.
The Series A Preferred Stock issued upon the exercise of a Right will be
nonredeemable and, unless otherwise provided in connection with the creation of
a subsequent series of JCPenney Preferred Stock, will be subordinate to all
other series of JCPenney Preferred Stock. The Series A Preferred Stock will not
be issued except upon exercise of the Rights.
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Each share of Series A Preferred Stock will be entitled to receive,
when, as and if declared, a quarterly dividend preference equal to the greater
of $50 per share or 200 times the quarterly cash dividend declared on shares of
JCPenney Common Stock and would receive an additional dividend preference equal
to 200 times any extraordinary dividend declared on shares of JCPenney Common
Stock (other than dividends payable in equity securities of the Company). In the
event of the dissolution, liquidation or winding-up of the Company, the holders
of Series A Preferred Stock will be entitled to receive a liquidation payment in
an amount equal to the greater of $200 per share or 200 times the payment per
share made in respect of JCPenney Common Stock. Each share of Series A Preferred
Stock will have 200 votes, voting together with JCPenney Common Stock as a
single class. In the event of any merger, consolidation or other transaction in
which common shares are exchanged, each share of Series A Preferred Stock will
be entitled to receive 200 times the amount received per share of JCPenney
Common Stock. The rights of the Series A Preferred Stock as to dividends,
liquidation and voting are subject to anti-dilution adjustment in certain
circumstances.
The Purchase Price payable and the number of shares of Series A
Preferred Stock or other securities or property issuable upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Series A Preferred Stock, (ii) upon the grant to
holders of the Series A Preferred Stock of certain rights or warrants to
subscribe for the purchase of Series A Preferred Stock or convertible securities
at less than the current market price of the Series A Preferred Stock, or (iii)
upon the distribution to holders of the Series A Preferred Stock of evidences of
indebtedness or assets (excluding regular cash dividends and dividends payable
in Series A Preferred Stock) or of subscription rights or warrants.
If any person (other than an Exempt Person) becomes the beneficial owner
of 15% or more of the then outstanding shares of JCPenney Common Stock (other
than pursuant to a tender or exchange offer for all outstanding shares of
JCPenney Common Stock that the Company's Board of Directors, taking into account
the long-term value of the Company and all other factors that it deems relevant
in the circumstance determines to be at a price and on terms which are fair to
the holders of shares of JCPenney Common Stock ("Permitted Tender Offer")), each
holder of a Right, other than the Acquiring Person, will have the right to
receive, upon payment of the Purchase Price, in lieu of Series A Preferred
Stock, a number of shares of JCPenney Common Stock having a market value equal
to twice the Purchase Price. In lieu of issuing shares of JCPenney Common Stock
upon exercise of Rights, the Company may, and to the extent that insufficient
shares of JCPenney Common Stock are available for the exercise in full of the
Rights, the Company shall, issue cash, property or other securities of the
Company, or any combination thereof (which may be accompanied by a reduction in
the Purchase Price), in proportions determined by the Company, so that the
aggregate value received is equal to twice the Purchase Price. Rights will not
be exercisable following the acquisition of shares of JCPenney Common Stock by
an Acquiring Person as described in this paragraph until the expiration of the
period during which the Rights may be redeemed as described below.
Notwithstanding the foregoing, after the acquisition of shares of JCPenney
Common Stock as described above in this paragraph, Rights that are (or, under
certain circumstances, Rights that were) beneficially owned by an Acquiring
Person will be null and void.
The Company's Board of Directors may, at its option, at any time after a
person becomes an Acquiring Person (other than pursuant to a Permitted Tender
Offer) exchange all or part of the then outstanding and exercisable Rights for
shares of JCPenney Common Stock at an exchange ratio of one share of JCPenney
Common Stock per Right; provided, however, the Company's Board of Directors may
not effect such exchange after the time that any person (other than an Exempt
Person) becomes the beneficial owner of 50% or more of the JCPenney Common Stock
then outstanding.
Unless the Rights are redeemed earlier, if, after the Stock Acquisition
Date, the Company is acquired in a merger or other business combination (in
which any shares of JCPenney Common Stock are changed into or exchanged for
other securities or assets) or more than 50% of the assets or earning power of
the Company and its subsidiaries (taken as a whole) are sold or transferred in
one transaction or a series of related transactions, the JCPenney Rights
Agreement provides that a proper provision shall be made so that each holder of
record of a Right will from and after that time have the right to receive, upon
payment of the Purchase Price, that number of shares of common stock of the
acquiring or transferee company which has a market value at the time of such
transaction equal to twice the Purchase Price. The right to purchase stock of an
acquiring company would not apply to a transaction with a person who became an
Acquiring Person pursuant to a Permitted Tender Offer if (i) the form of
consideration paid to holders of JCPenney Common Stock in such transaction were
the same as the form of consideration paid in the Permitted Tender Offer and
(ii) the price paid to holders of JCPenney Common Stock in such transaction was
not less than the price paid in the Permitted Tender Offer.
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Fractions of shares of Series A Preferred Stock may, at the election of
the Company, be evidenced by depositary receipts. The Company may also issue
cash in lieu of fractional shares of Series A Preferred Stock which are not
integral multiples of one four-hundredth of a share.
At any time until ten days following the Stock Acquisition Date (subject
to extension by the Company's Board of Directors), the Company's Board of
Directors may cause the Company to redeem the Rights in whole, but not in part,
at a price of $0.005 per Right, subject to adjustment. Immediately upon the
effective time of the redemption authorized by the Company's Board of Directors
the right to exercise the Rights will terminate, and the only remaining right of
holders of Rights will be to receive payment of the redemption price without any
interest thereon.
As long as the Rights are redeemable, the Company may, except with
respect to the redemption price or expiration date of the Rights, amend the
Rights in any manner, including, without limitation, an amendment to extend the
time period in which the Rights may be redeemed. At any time when the Rights are
not redeemable, the Company may amend the Rights in any manner that does not
adversely affect the interests of holders of the Rights as such.
Until a Right is exercised, the holder, as such, will have no rights as
a stockholder of the Company, including, without limitation, the right to vote
or to receive dividends or payments upon the dissolution, liquidation or
winding-up of the Company.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group who attempts to acquire the Company on
terms not approved by the Company's Board of Directors. The Rights should not
interfere with any merger or other business combination approved by the
Company's Board of Directors since the Rights may be redeemed by the Company at
$0.005 per Right at any time until the close of business on the tenth day
(unless extended) after a person or group has obtained beneficial ownership of
15% or more of the JCPenney Common Stock.
Series B Preferred Stock
Restrictions on Transfer. Pursuant to the Certificate of Designations
respecting the Series B Preferred Stock, shares of Series B Preferred Stock may
be issued only to a trustee acting on behalf of an employee stock ownership plan
or other employee benefit plan of the Company ("Plan Trustee"). In the event of
any transfer of shares of Series B Preferred Stock to other than such Plan
Trustee, the shares of Series B Preferred Stock so transferred, upon such
transfer and without any further action by the Company or the holder, will be
automatically converted into shares of JCPenney Common Stock on the terms
provided for such conversion (described below) and no transferee will have any
of the voting powers, preferences and relative, participating, optional or
special rights ascribed to shares of Series B Preferred Stock but, rather, only
the rights and powers pertaining to the JCPenney Common Stock (described above)
into which such shares of Series B Preferred Stock are so converted.
Liquidation Rights; Dividends. Shares of Series B Preferred Stock have a
liquidation preference of $600 per share (plus accumulated and unpaid dividends)
and pay cumulative dividends semi-annually in an amount per share equal to
$47.40 per share per annum. So long as shares of Series B Preferred Stock remain
outstanding, no dividend may be declared or paid or set apart for payment on any
other series of stock of the Company ranking on a parity with the Series B
Preferred Stock as to dividends unless like dividends have been declared and
paid or set apart for payment on shares of Series B Preferred Stock. Moreover,
except with respect to (i) dividends payable solely in shares of stock of the
Company ranking, as to dividends or as to distributions upon the liquidation,
dissolution or winding-up of the Company ("Liquidation Distributions"), junior
to the Series B Preferred Stock or (ii) the acquisition of any shares of stock
of the Company ranking, as to dividends or as to Liquidation Distributions,
junior to the Series B Preferred Stock either (a) pursuant to any employee or
director incentive or benefit plan or arrangement (including any employment,
severance or consulting agreement) of the Company or any of its subsidiaries or
(b) in exchange solely for shares of stock of the Company ranking junior to the
Series B Preferred Stock, in the event that full cumulative dividends on the
shares of Series B Preferred Stock have not been declared and paid or set apart
for payment when due, the Company is prohibited from declaring or paying or
setting apart for payment any dividends or making any distributions in respect
of, or, making any payments on account of, the purchase, redemption or other
retirement of any other class of stock or series thereof of the Company ranking,
as to dividends or as to Liquidation Distributions, junior to the Series B
Preferred Stock, until full cumulative dividends on the shares of Series B
Preferred Stock shall have been paid or declared and provided for.
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Redemption. Generally, shares of Series B Preferred Stock may be
redeemed, in whole or in part, at the option of the Company at a redemption
price (payable in cash or securities or a combination thereof) of $600 per
share, plus an amount equal to all dividends accumulated and unpaid on such
share to the date fixed for redemption.
However, under certain circumstances a holder of shares of Series B
Preferred Stock (for example, a Plan Trustee) may, upon not less than five days'
written notice, elect to require the Company to redeem such shares at a
redemption price of $600 per share plus an amount equal to all dividends
accumulated and unpaid on such share to the date fixed for redemption.
Conversion Rights. Shares of Series B Preferred Stock are, at any time
prior to the close of business on the date fixed for redemption of such shares,
convertible into shares of JCPenney Common Stock, at a conversion rate of 20
shares of JCPenney Common Stock for each share of Series B Preferred Stock,
subject to anti-dilution adjustment under certain circumstances. Whenever the
Company issues shares of JCPenney Common Stock upon conversion of shares of
Series B Preferred Stock, the Company will issue together with each such share
of JCPenney Common Stock an associated Right under the JCPenney Rights
Agreement.
Voting Rights. Holders of the Series B Preferred Stock are entitled to
vote upon all matters submitted to a vote of the holders of JCPenney Common
Stock voting together with the holders of JCPenney Common Stock as a single
class. Each share of Series B Preferred Stock carries the number of votes equal
to the number of shares of JCPenney Common Stock into which such share of Series
B Preferred Stock could be converted on the record date for determining the
stockholders entitled to vote, rounded to the nearest one-tenth of a vote.
Holders of shares of Series B Preferred Stock enjoy no special voting rights and
their consent is not specially required for the taking of any corporate action;
provided, however, that the vote of the holders of at least 662/3% of the
outstanding shares of Series B Preferred Stock, voting separately as a series,
is necessary before certain actions may be taken which would adversely affect
the rights of the Series B Preferred Stock.
Additional Rights. Holders of shares of Series B Preferred Stock have
certain additional rights in the event the Company should (i) consummate a
merger, consolidation or similar transaction ("Extraordinary Transaction")
pursuant to which the outstanding shares of JCPenney Common Stock are, by
operation of law, exchanged solely for, or changed, reclassified or converted
solely into, stock of any successor or resulting company (including the
Company), which stock constitutes "employer securities" with respect to a holder
of Series B Preferred Stock (within the meaning of Section 409(l) of the
Internal Revenue Code of 1986, as amended, or any successor provisions of law)
and "qualifying employer securities" with respect to a holder of Series B
Preferred Stock (within the meaning of Section 407(d)(5) of the Employee
Retirement Income Security Act of 1974, as amended, or any successor provisions
of law), (ii) consummate an Extraordinary Transaction pursuant to which the
outstanding shares of JCPenney Common Stock are, by operation of law, exchanged
for, or changed, reclassified or converted into, other stock, securities, cash
or any other property, or any combination thereof, or (iii) enter into any
agreement providing for any Extraordinary Transaction pursuant to which the
outstanding shares of JCPenney Common Stock would, upon consummation thereof,
be, by operation of law, exchanged for, or changed, reclassified or converted
into, other stock, securities, cash or any other property, or any combination
thereof, other than any such consideration constituted solely of qualifying
employer securities and cash payments in lieu of fractional shares, as the case
may be.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of JCPenney Common Stock being registered
hereby has been passed upon by C. R. Lotter, Esq., Executive Vice President,
Secretary and General Counsel of the Company. As of January 31, 1999, Mr. Lotter
owned 38,740 shares of JCPenney Common Stock and JCPenney Common Stock voting
equivalents of the Company, including shares credited to his accounts under the
Company's Savings, Profit-Sharing and Stock Ownership Plan. As of January 31,
1999, Mr. Lotter had outstanding options to purchase 64,000 shares of JCPenney
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State 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 the State 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Agreement and Plan of Merger, dated as of November 23, 1998,
among the Company, Legacy Acquisition Corp. and Genovese Drug
Stores, Inc. (Included as Annex I to the Proxy
Statement/Prospectus filed as part of the Company's
Registration Statement on Form S-4 (File No. 333-71237), and
incorporated by reference herein.)
4.2 Restated Certificate of Incorporation of the Company. (Filed
previously as Exhibit 3(i) to the Company's Quarterly Report
on Form 10-Q for the 13 weeks ended April 27, 1996, and
incorporated by reference herein.)
4.3 Bylaws of the Company, as amended to January 11, 1995. (Filed
previously as Exhibit 3(ii)(a) to the Company's Annual Report
on Form 10-K for the 52 weeks ended January 28, 1995, and
incorporated by reference herein.)
4.4 Rights Agreement, dated as of February 14, 1990, between the
Company and First Chicago Trust Company of New York, as Rights
Agent. (Filed previously as Exhibit 1 to the Company's Current
Report on Form 8-K dated February 6, 1990, and incorporated by
reference herein.)
4.5 Amendment to Rights Agreement, dated as of February 14, 1990,
between the Company and First Chicago Trust Company of New
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York, as Rights Agent, effective as of January 13, 1992, among
the Company, First Chicago Trust Company of New York and
Manufacturers Hanover Trust Company of New York (now
ChaseMellon Shareholder Services, L.L.C.), as successor Rights
Agent. (Filed previously as Exhibit 4(b) to the Company's
Annual Report on Form 10-K for the 52 weeks ended January 25,
1992, and incorporated by reference herein.)
4.6 Letter to the Company's stockholders, dated May 1, 1993,
explaining adjustments to Rights and to underlying Series A
Preferred Stock, including exercise price of such Rights, and
the voting rights and participating dividend on such Series A
Preferred Stock as a result of the two-for-one stock split
payable May 1, 1993 to stockholders of record on April 12,
1993. (Filed previously as Exhibit 4(c) to the Company's
Annual Report on Form 10-K for the 53 weeks ended January 30,
1993, and incorporated by reference herein.)
4.7 Genovese Drug Stores, Inc. 1984 Employee Stock Option and
Stock Appreciation Rights Plan, as amended through June 26,
1998. (Filed previously as Exhibit 4(a) to Genovese Drug
Stores, Inc.'s Registration Statement on Form S-8 (File No.
333-57787), and incorporated by reference herein.)
4.8 Form of Resolutions of Compensation Committee of Genovese Drug
Stores, Inc., adopted January 21, 1999, amending the Genovese
Drug Stores, Inc. 1984 Employee Stock Option and Stock
Appreciation Rights Plan.*
5.1 Opinion of C. R. Lotter regarding legality of securities being
registered.*
23.1 Consent of KPMG LLP.*
23.2 Consent of C. R. Lotter (included in Exhibit 5.1).*
24.1 Power of Attorney (Filed previously as Exhibit 24.1 to the
Company's Registration Statement on Form S-4 (File No.
333-71237), and incorporated by reference herein.)
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement to include any material
information with respect to the plan of distribution
not previously disclosed in this Registration
Statement or any material change to such information
in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended (the
"Securities Act"), each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-8
<PAGE>
SIGNATURES
The Registrant. 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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Plano, State of Texas, on this 1st day of March,
1999.
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 by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
J. E. Oesterreicher * Chairman of the Board March 1, 1999
- ------------------------------- and Chief Executive
J. E. Oesterreicher Officer; Director
(Principal Executive
Officer)
/s/ D. A. McKay Executive Vice President March 1, 1999
- ------------------------------- and Chief Financial
D. A. McKay Officer (Principal
Financial Officer)
W. J. Alcorn * Vice President and March 1, 1999
- ------------------------------- Controller (Principal
W. J. Alcorn Accounting Officer)
M. A. Burns * Director March 1, 1999
- -------------------------------
M. A. Burns
K. B. Foster * Director March 1, 1999
- -------------------------------
K. B. Foster
V. E. Jordan, Jr. * Director March 1, 1999
- -------------------------------
V. E. Jordan, Jr.
George Nigh * Director March 1, 1999
- -------------------------------
George Nigh
II-9
<PAGE>
J. C. Pfeiffer * Director March 1, 1999
- -------------------------------
J. C. Pfeiffer
A. W. Richards * Director March 1, 1999
- -------------------------------
A. W. Richards
Francisco Sanchez-Loaeza* Director March 1, 1999
- -------------------------------
Francisco Sanchez-Loaeza
C. S. Sanford, Jr. * Director March 1, 1999
- -------------------------------
C. S. Sanford, Jr.
R. G. Turner * Director March 1, 1999
- -------------------------------
R. G. Turner
*By: /s/ D. A. McKay
--------------------------
D. A. McKay
Attorney-in-fact
II-10
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
--- -----------
4.1 Agreement and Plan of Merger, dated as of November 23, 1998, among the
Company, Legacy Acquisition Corp. and Genovese Drug Stores, Inc.
(Included as Annex I to the Proxy Statement/Prospectus filed as part of
the Company's Registration Statement on Form S-4 (File No. 333-71237),
and incorporated by reference herein.)
4.2 Restated Certificate of Incorporation of the Company. (Filed previously
as Exhibit 3(i) to the Company's Quarterly Report on Form 10-Q for the
13 weeks ended April 27, 1996, and incorporated by reference herein.)
4.3 Bylaws of the Company, as amended to January 11, 1995. (Filed
previously as Exhibit 3(ii)(a) to the Company's Annual Report on Form
10-K for the 52 weeks ended January 28, 1995, and incorporated by
reference herein.)
4.4 Rights Agreement, dated as of February 14, 1990, between the Company
and First Chicago Trust Company of New York, as Rights Agent. (Filed
previously as Exhibit 1 to the Company's Current Report on Form 8-K
dated February 6, 1990, and incorporated by reference herein.)
4.5 Amendment to Rights Agreement, dated as of February 14, 1990, between
the Company and First Chicago Trust Company of New York, as Rights
Agent, effective as of January 13, 1992, among the Company, First
Chicago Trust Company of New York and Manufacturers Hanover Trust
Company of New York (now ChaseMellon Shareholder Services, L.L.C.), as
successor Rights Agent. (Filed previously as Exhibit 4(b) to the
Company's Annual Report on Form 10-K for the 52 weeks ended January 25,
1992, and incorporated by reference herein.)
4.6 Letter to the Company's stockholders, dated May 1, 1993, explaining
adjustments to Rights and to underlying Series A Preferred Stock,
including exercise price of such Rights, and the voting rights and
participating dividend on such Series A Preferred Stock as a result of
the two-for-one stock split payable May 1, 1993 to stockholders of
record on April 12, 1993. (Filed previously as Exhibit 4(c) to the
Company's Annual Report on Form 10-K for the 53 weeks ended January 30,
1993, and incorporated by reference herein.)
4.7 Genovese Drug Stores, Inc. 1984 Employee Stock Option and Stock
Appreciation Rights Plan, as amended through June 26, 1998. (Filed
previously as Exhibit 4(a) to Genovese Drug Stores, Inc.'s Registration
Statement on Form S-8 (File No. 333-57787), and incorporated by
reference herein.)
4.8 Form of Resolutions of Compensation Committee of Genovese Drug Stores,
Inc., adopted January 21, 1999, amending the Genovese Drug Stores, Inc.
1984 Employee Stock Option and Stock Appreciation Rights Plan.
5.1 Opinion of C. R. Lotter regarding legality of securities being
registered.
23.1 Consent of KPMG LLP.
23.2 Consent of C. R. Lotter (included in Exhibit 5.1)
24.1 Power of Attorney (Filed previously as Exhibit 24.1to the Company's
Registration Statement on Form S-4 (File No. 333-71237), and
incorporated by reference herein.)
Exhibit 4.8
COMPENSATION COMMITTEE RESOLUTIONS
RESOLVED that, at the effective time of the merger (the
"Effective Time") of Legacy Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of J. C. Penney Company, Inc., a Delaware corporation
("Parent"), with and into the Company (the "Merger"), pursuant to an Agreement
and Plan of Merger dated as of November 23, 1998 (the "Merger Agreement"), the
terms of each then outstanding and unexercised employee stock option (each, a
"Company Stock Option") granted under the Company's stock option plan (the
"Option Plan") shall be, and it hereby is, adjusted to provide that, from and
after the Effective Time, it shall be exercisable for not less than 90 days
after termination of the holder's employment for any reason (but not beyond the
original term of such Company Stock Option) or such longer period as such
Company Stock Option provided as of November 23, 1998; and
FURTHER RESOLVED, that effective as of the Effective Time, the
Option Plan shall be, and it hereby is, amended to provide that no additional
Company Stock Options may be granted under the Option Plan.
DA1:\162136\02\3h3s02!.DOC\67457.1468
Exhibit 5.1
[LETTERHEAD OF J. C. PENNEY COMPANY, INC.]
March 1, 1999
Securities and Exchange Commission
450 Fifth Street
Washington, D. C. 20549
RE: GENOVESE DRUG STORES, INC. 1984 EMPLOYEE
STOCK OPTION AND STOCK APPRECIATION RIGHTS PLAN
-----------------------------------------------
Ladies and Gentlemen:
As Executive Vice President, Secretary and 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 Genovese Drug Stores, Inc. 1984 Employee
Stock Option and Stock Appreciation Rights Plan ("Plan"), and the corporate
proceedings taken to authorize the offer of shares of Common Stock of 50(cent)
par value, together with the preferred stock purchase rights associated
therewith (such Common Stock, together with such associated rights, being
hereinafter referred to as the "Common Stock"), of the Company thereunder. I
have examined the Registration Statement on Form S-8 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 shares of Common Stock of the Company
to be offered pursuant to the Plan. I have also examined such other documents
and records as I have deemed appropriate for the purposes of this opinion.
Based on the foregoing, I am of the opinion that the shares of Common
Stock of the Company to be offered pursuant to the Plan have been duly
authorized and when issued, will have been legally issued, fully paid, and
non-assessable.
I hereby consent to the reference to me in the above-mentioned
Registration Statement and to the filing of this opinion as an exhibit to said
Registration Statement.
Very truly yours,
/s/ Charles R. Lotter, Esq.
Charles R. Lotter, Esq.
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
To the Board of Directors of
J. C. Penney Company, Inc.
We consent to incorporation by reference herein of our reports dated February
26, 1998 relating to the consolidated financial statements and financial
statement schedule of J. C. Penney Company, Inc. and subsidiaries and the
financial statements of J. C. Penney Funding Corporation as of January 31, 1998,
and January 25, 1997, and for each of the years in the three-year period ended
January 31, 1998.
/s/ KPMG LLP
Dallas, Texas
March 1, 1999
