Registration No. 33-
As filed with the Securities and Exchange Commission on October 20, 1995
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FEDERATED DEPARTMENT STORES, INC.
Delaware 151 West 34th Street 13-3324058
(State of New York, New York (I.R.S. Employer
Incorporation) 10001 Identification No.)
(212) 695-4400
and
7 West Seventh Street
Cincinnati, Ohio 45202
(513) 579-7000
(Principal Executive Offices)
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Dennis J. Broderick, Esq.
Senior Vice President, General Counsel and Secretary
Federated Department Stores, Inc.
7 West Seventh Street
Cincinnati, Ohio 45202
(513) 579-7000
(Agent for Service)
Copy to:
Robert A. Profusek, Esq.
Jones, Day, Reavis & Pogue
599 Lexington Avenue
32nd Floor
New York, New York 10022
(212) 326-3939
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Approximate date of commencement of proposed sale to the public: The
securities being registered on this Form are to be offered and sold from time to
time after the effective date of the Registration Statement by certain selling
stockholders.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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.
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CALCULATION OF REGISTRATION FEE
<TABLE><CAPTION>
Proposed Proposed Maximum Amount of
Title of each class of Amount to be Maximum Offering Aggregate Registration
securities to be registered Registered Price Per Unit(1) Offering Price(1) Fee
<S> <C> <C> <C> <C>
Common Stock . . . . . . . . . . . . . . . 13,447,288 Shares $26.5625 $357,193,587.50 $123,170.20
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee under
Rule 457(c) upon the basis of the average high and low prices of shares of
Common Stock on the Composite Tape of the New York Stock Exchange, Inc. on
October 19, 1995.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant will file a
further amendment which specifically states that this Registration Statement
will thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 20, 1995
PROSPECTUS
FEDERATED DEPARTMENT STORES, INC.
Common Stock
This Prospectus relates to up to 13,447,288 shares (the "Shares") of Common
Stock, par value $.01 per share ("Common Stock"), of Federated Department
Stores, Inc. (the "Company") which may be offered by the selling stockholders
named herein (the "Selling Stockholders") from time to time. The Shares were
acquired by the Selling Stockholders in the transactions described herein under
the caption "Recent Developments." In connection with such transactions, the
Company agreed to register the Shares for resale under the Securities Act of
1933, as amended (the "Securities Act"). The Company will receive no part of
the proceeds from sales of the Shares.
The Shares are listed on the New York Stock Exchange (the "NYSE") under the
trading symbol "FD".
The Shares will be sold either directly by the Selling Stockholders or
through underwriters, brokers, dealers, or agents. At the time any particular
offer of Shares is made, if and to the extent required, the specific number of
Shares offered, the name of the Selling Stockholder making the offer, the
offering price, and the other terms of the offering, including the names of any
underwriters, brokers, dealers, or agents involved in the offering and the
compensation, if any, of such underwriters, brokers, dealers, or agents, will be
set forth in a supplement to this Prospectus (a "Prospectus Supplement"). Any
statement contained in this Prospectus will be deemed to be modified or
superseded by any inconsistent statement contained in any Prospectus Supplement
delivered herewith.
Unless this Prospectus is accompanied by a Prospectus Supplement stating
otherwise, offers and sales may be made pursuant to this Prospectus only in
ordinary broker's transactions made on the NYSE in transactions involving
ordinary and customary brokerage commissions.
The Selling Stockholders will pay any underwriting discounts and commissions,
transfer taxes, and fees and disbursements of their own legal counsel in
connection with offers and sales of the Shares pursuant to this Prospectus. The
Company will bear all other expenses incurred in connection therewith.
See "Risks Factors" at pages 3 and 4 of this Prospectus for a description of
certain factors that should be considered in connection with an investment in
the Shares.
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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
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is October __, 1995
<PAGE>
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.
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, and, if given or
made, such information or representations must not be relied upon as having been
authorized. This Prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the securities
described herein or an offer to sell or the solicitation of an offer to buy such
securities in any circumstances in which such offer or solicitation if unlawful.
Neither the delivery of this Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or that the information contained
herein is correct as of any time subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements, and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements, and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's
Regional Offices located at 7 World Trade Center, New York, New York 10048 and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such materials can be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The Common Stock and certain other securities of the Company are listed
on the NYSE. Reports and other information concerning the Company may also be
inspected and copied at the offices of the NYSE, 20 Broad Street, New York, New
York 10005.
The Company has filed a Registration Statement on Form S-3 (the "Registration
Statement") filed under the Securities Act. This Prospectus does not contain
all information set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission. For
further information, reference is hereby made to the Registration Statement,
which may be inspected and copied or obtained from the Commission or the NYSE in
the manner described above.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended January
28, 1995, the Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended April 29, 1995 and July 29, 1995, the Company's Current Reports on
Form 8-K dated September 21, 1995, September 22, 1995, September 26, 1995,
September 27, 1995, October 4, 1995, and October 11, 1995, and all reports and
other documents filed by the Company pursuant to Sections 13(a), 13(c), 14, and
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Shares pursuant hereto are incorporated
herein by reference.
Any statement contained in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified will not be deemed to
constitute a part of this Prospectus, except as so modified, and any statement
so superseded will not be deemed to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon the written or oral request of any such person, a
copy of any or all of the documents incorporated herein by reference, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Requests should be directed to Federated
Department Stores, Inc., 7 West Seventh Street, Cincinnati, Ohio 45202,
Attention: Investor Relations (telephone: (513) 579-7780).
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RISK FACTORS
An investment in the Shares is subject to a number of material risks,
including those enumerated below. Investors should carefully consider the risk
factors enumerated below together with all the information set forth or
incorporated by reference in this Prospectus in determining whether to purchase
the Shares.
Business Factors and Competitive Conditions
The retailing industry is and will continue to be intensely competitive. The
Company's stores will face increasing competition not only with other department
stores in the geographic areas in which they operate, but also with numerous
other types of retail outlets, including specialty stores, general merchandise
stores, off-price and discount stores, new and established forms of home
shopping (including mail order catalogs, television, and computer services), and
manufacturer outlets.
Seasonal Nature of the Department Store Business
The department store business is seasonal in nature, with a high proportion
of sales and operating income generated in November and December. Working
capital requirements fluctuate during the year, increasing somewhat in mid-
Summer in anticipation of the Fall merchandising season and increasing
substantially prior to the Christmas season as significantly higher inventory
levels are necessary.
Leverage; Restrictive Covenants
The Company's consolidated indebtedness is and will continue to be greater
than its shareholders' equity. As of July 29, 1995, giving effect to the
transactions described in "Recent Developments," the Company had a total of
$6,469.2 million of pro forma consolidated indebtedness. Certain of the debt
instruments to which the Company is a party contain a number of restrictive
covenants and events of default, including covenants limiting capital
expenditures, incurrence of debt, and sales of assets. In addition, under
certain of its debt instruments, the Company is required to achieve certain
financial ratios, some of which become more restrictive over time, and a
substantial portion of the Company's indebtedness is secured by the capital
stock or assets of various subsidiaries of the Company or has been incurred by
the Company's subsidiaries. Among other consequences, the leverage of the
Company and such restrictive covenants and other terms of the Company's debt
instruments could impair the Company's ability to obtain additional financing in
the future, to make acquisitions, and to take advantage of significant business
opportunities that may arise. In addition, the Company's leverage may increase
its vulnerability to adverse general economic and retailing industry conditions
and to increased competitive pressures.
Dividend Policies; Restrictions on Payment of Dividends
The Company does not anticipate that it will pay any dividends on the Common
Stock in the foreseeable future. The Company's bank credit agreement includes
covenants restricting the Company's ability to pay dividends or make other
distributions to stockholders.
Noncomparability of Historical Financial Information; Consolidation of
Businesses
The Company acquired R.H. Macy & Co., Inc. ("Macy's") on December 19, 1994
and effected other acquisitions (and dispositions) during fiscal year 1994.
Under the purchase method of accounting, the assets, liabilities, and results of
operations associated with such acquisitions have been included in the Company's
financial position and results of operations since the respective dates thereof.
Accordingly, the financial position and results of operations of the Company as
of the end of and for fiscal year 1994 and subsequent dates and periods are not
directly comparable to the financial position and results of operations of the
Company as of and for prior dates and periods. Similar effects will result from
the Company's recent acquisition of Broadway Stores, Inc. ("Broadway"). See
"Recent Developments." For accounting purposes, the assets, liabilities, and
results of operations associated with the Broadway acquisition will be included
in the Company's financial position and results of operations following July 29,
1995. Accordingly, the financial position and results of operations for the
Company for dates and periods subsequent to July 29, 1995 will not be directly
comparable to the financial position and results of operations of the Company on
and prior to that date.
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For the 26 weeks ended July 29, 1995, the Company incurred $172.3 million of
non-recurring charges in connection with the consolidation of the Macy's
business with the Company's other businesses and other divisional
consolidations. The Company anticipates that it will incur additional non-
recurring charges in connection with the Broadway acquisition and the
consolidation of Broadway's business with the Company's other businesses, as
well as the ongoing consolidations of the Macy's business and the Company's
other businesses. In addition, the Company anticipates that a number of
Broadway's stores will be sold or otherwise disposed of. However, as of the
date of this Prospectus, the Company had not entered into an agreement providing
for such dispositions and there can be no assurance that the Company will do so
or as to the timing or terms thereof.
Assumptions Regarding Value of Broadway's Assets
It has been generally assumed in the preparation of the unaudited pro forma
combined financial information contained in the Company's Current Reports on
Form 8-K dated September 21, 1995 and October 11, 1995 and incorporated herein
by reference that the historical book value of Broadway's assets approximates
the fair value thereof, except for specific adjustments discussed in the notes
thereto. The Company is required to determine the fair value of the assets of
Broadway (including trade names and other intangible assets) as of the
effective time of the merger pursuant to which Broadway was acquired. Such
determination will be based on independent valuations, together with analyses
conducted by the Company's management, which had not been completed as of the
date of this Prospectus. As a result of the foregoing determination of the fair
value of Broadway's assets, including inventory, the Company may also record
additional adjustments which will, under generally accepted accounting
principles, increase or decrease the amount of excess cost over net assets
acquired reflected on the Company's balance sheet and the related amortization
thereof in periods following July 29, 1995.
Market Risk; Certain Investment Limitations
The Common Stock is listed for trading on the NYSE. However, the prices at
which shares of Common Stock trade may depend upon many factors, including
prevailing interest rates, markets for similar securities, industry conditions,
and the performance of, and investor expectations for, the Company. No
assurance can be given that a holder of shares of Common Stock will be able to
sell such shares at any particular price.
Certain institutional investors may invest only in dividend-paying equity
securities or may operate under other restrictions that may prohibit or limit
their ability to invest in Common Stock.
Certain Taxation Matters
As of the date of this Prospectus, the Company was a party to certain
disputes with the Internal Revenue Service (the "IRS") pursuant to which the IRS
was seeking to disallow certain deductions claimed by, and certain loss
carryforwards utilized by, the Company and its predecessors. Although there can
be no assurance with respect thereto, the Company does not expect the ultimate
resolution of such disputes to have a material adverse effect on the Company's
financial position or results of operations.
Certain Provisions of the Company's Certificate of Incorporation, By-Laws, and
other Agreements
The Company's certificate of incorporation and by-laws and certain other
agreements to which the Company is a party contain provisions that may have the
effect of delaying, deferring, or preventing a change in control of the Company.
In addition, the Company's certificate of incorporation authorizes the issuance
of up to 500.0 million shares of Common Stock and 125.0 million shares of
preferred stock, par value $.01 per share, of the Company ("Preferred Stock").
The Board will have the power to determine the price and terms under which any
additional capital stock may be issued and to fix the terms of such Preferred
Stock, and existing stockholders of the Company will not have preemptive rights
with respect thereto.
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THE COMPANY
The Company is one of the leading operators of full-line department stores
in the United States, with 441 department stores in 34 states as of the date of
this Prospectus, including 82 stores acquired in its recent acquisition of
Broadway. See "Recent Developments." As of the date of this Prospectus, the
Company also operates 148 specialty and clearance stores and a mail order
catalog business. The Company's department stores sell a wide range of
merchandise, including men's, women's and children's apparel and accessories,
cosmetics, home furnishings, and other consumer goods, and are diversified by
size of store, merchandising character, and character of community served. The
Company's department stores are located at urban or suburban sites, principally
in densely populated areas across the United States. The Company has announced
that it intends to close all of its eight remaining Macy's close-out stores by
the end of fiscal 1995 and that it intends to explore the possibility of selling
the specialty store operations that were acquired in the Company's acquisition
of Macy's in December 1994. In addition, the Company anticipates that a number
of the stores acquired in its recent acquisition of Broadway will be disposed of
(although, as of the date of this Prospectus, the Company has not entered into
any agreement providing for such disposition and there can be no assurance that
the Company will do so or as to the timing or terms thereof), and that
Broadway's retained department stores will be converted into Macy's, Bullock's,
or Bloomingdale's stores commencing in 1996.
The Company believes that the department store business will continue to
consolidate. Accordingly, the Company intends from time to time to consider
actions to increase efficiency and provide greater value to customers and to
consider the possible acquisition of department store assets and companies.
The Company's principal executive offices are located at 151 West 34th
Street, New York, New York 10001 and 7 West Seventh Street, Cincinnati, Ohio
45202. The Company's telephone numbers at such offices are (212) 695-4400 and
(513) 579-7000, respectively.
RECENT DEVELOPMENTS
Effective October 11, 1995, a wholly owned subsidiary of the Company ("Merger
Sub") merged (the "Broadway Merger") with and into Broadway pursuant to an
Agreement and Plan of Merger, dated August 14, 1995 (the "Broadway Merger
Agreement"), among Broadway, Federated, and Merger Sub, and Broadway thereby
became a subsidiary of the Company. At the effective time of the Broadway
Merger, among other things, each outstanding share of Broadway common stock was
converted into 0.27 shares of Common Stock. Zell/Chilmark Fund L.P. ("Zell/
Chilmark") was a stockholder of Broadway immediately prior to the Broadway
Merger, and, as a result thereof, the Company issued to Zell/Chilmark 6,696,233
Shares pursuant to the Broadway Merger.
In connection with the Broadway Merger Agreement, The Prudential Insurance
Company of America ("Prudential"), a wholly owned subsidiary of the Company
("FNC II"), and the Company entered into an agreement (the "Prudential
Agreement") providing for the purchase by FNC II from Prudential of certain
mortgage indebtedness of Broadway (the "Broadway/Prudential Mortgage Debt"). On
October 11, 1995, FNC II purchased the Broadway/Prudential Mortgage Debt and, in
connection therewith, a $222.3 million promissory note of FNC II (the
"Prudential Note") and 6,751,055 shares of Common Stock were delivered to
Prudential pursuant to the Prudential Agreement. In addition, the Prudential
Agreement provides that, under certain circumstances, Prudential may be entitled
to receive certain additional consideration, payable on or about October 26,
1995, at the Company's option, in shares of Common Stock ("Contingent Shares"),
cash, or an increase in the principal amount of the Prudential Note. Pursuant
to the Prudential Agreement, the Company has agreed to cause any Contingent
Shares received by Prudential thereunder to be registered for resale under the
Securities Act.
SELLING STOCKHOLDERS
The following table sets forth certain information as of the date of this
Prospectus with respect to the shares of Common Stock owned by the Selling
Stockholders which are covered by this Prospectus.
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Number of Percent of
Name of Selling Stockholder Shares Class
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The Prudential Insurance 6,751,055 3.3%
Company of America
Zell/Chilmark Fund L.P. 6,696,233 3.3%
The Company has been informed by Prudential that, as of October 17, 1995,
Prudential beneficially owned an additional 1,066,558 shares of Common Stock
(constituting approximately 0.5% of the outstanding shares of Common Stock)
which are not covered by this Prospectus, but which are eligible for resale
without restriction under the Securities Act. The Company has been
informed by Zell/Chilmark that, as of October 17, 1995, Zell/Chilmark
beneficially owned no shares of Common Stock which are not covered by this
Prospectus. Because Prudential is offering pursuant to this Prospectus only a
portion of the Common Stock owned by it and because each of the Selling
Stockholders may sell pursuant to this Prospectus all or only a portion of the
Shares owned by it, no estimate can be given as to the amount of Common Stock
that will be owned by the Selling Stockholders upon termination of this
offering.
Giving pro forma effect to the purchase from Prudential by FNC II of the
Broadway/Prudential Mortgage Debt (see "Recent Developments"), as of July 29,
1995, the Company and its subsidiaries had outstanding approximately $567.4
million of long-term indebtedness owed to Prudential. In transactions occurring
in December 1993 and 1994, a wholly owned subsidiary of the Company acquired
from Prudential a claim held by Prudential in the Chapter 11 reorganization of
Macy's for approximately $918.9 million.
Prior to the effective time of the Broadway Merger, Zell/Chilmark owned a
majority of Broadway's outstanding common stock and accordingly may be deemed to
have been an affiliate of Broadway. See "Recent Developments."
Each of the Selling Stockholders has agreed to indemnify the Company, its
directors, officers, agents, and any controlling person of the Company against
certain liabilities based on information furnished for use in this Prospectus
and the Registration Statement of which this Prospectus is a part by such
Selling Stockholder. The Company has also agreed to indemnify each of the
Selling Stockholders, each underwriter through which such Selling Stockholder
offers or sells any of the Shares held by it, and each person, if any, who
controls such Selling Stockholder or any such underwriter against certain
liabilities based on information contained in this Prospectus and the
Registration Statement of which this Prospectus is a part which was not
furnished by such Selling Stockholder or any such underwriter.
In addition, Zell/Chilmark has agreed that, prior to January 10, 1996, it
will not directly or indirectly, through any affiliate or associate, sell,
assign, pledge, or otherwise dispose of (including by means of distributions to
its limited partners) or acquire, or enter into any put, call, or other
contract, option, or other arrangement or undertaking with respect to the direct
or indirect acquisition or sale, assignment, or other disposition of, any shares
of Common Stock.
DESCRIPTION OF CAPITAL STOCK
Authorized Capital Stock
The Company's certificate of incorporation provides that the authorized
capital stock of the Company consists of 500 million shares of Common Stock and
125 million shares of Preferred Stock.
Common Stock
The holders of the Common Stock are entitled to one vote for each share held
of record on all matters submitted to a vote of stockholders. Subject to
preferential rights that may be applicable to any Preferred Stock, holders of
Common Stock are entitled to receive ratably such dividends as may be declared
by the Board of Directors of the Company out of funds legally available
therefor. In the event of a liquidation, dissolution, or winding up of the
Company, holders of Common Stock will be entitled to share ratably in all assets
remaining after payment of liabilities and the liquidation preference of any
Preferred Stock. Holders of Common Stock have no preemptive rights and have
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no rights to convert their Common Stock into any other securities, and there are
no redemption provisions with respect to such shares.
Preferred Stock
The Board of Directors of the Company has the authority to issue 125 million
shares of Preferred Stock in one or more series and to fix the designations,
relative powers, preferences, limitations, and restrictions of all shares of
each such series, including without limitation dividend rates, conversion
rights, voting rights, redemption and sinking fund provisions, liquidation
preferences, and the number of shares constituting each such series, without any
further vote or action by the stockholders. The issuance of the Preferred Stock
could decrease the amount of earnings and assets available for distribution to
holders of Common Stock or adversely affect the rights and powers, including
voting rights, of the holders of Stock. The issuance of the Preferred Stock
could have the effect of delaying, deferring, or preventing a change in control
of the Company without further action by the stockholders.
Preferred Share Purchase Rights
Each outstanding share of Common Stock issued is accompanied by one right (a
"Right") issued pursuant to a share purchase rights agreement between the
Company and The Bank of New York, as Rights Agent (the "Share Purchase Rights
Agreement"). Each Right entitles the registered holder thereof to purchase from
the Company one one-hundredth of a share of Series A Junior Participating
Preferred Stock, par value $0.01 per share (the "Series A Preferred Shares"), of
the Company at a price (the "Purchase Price") of $62.50 per one one-hundredth of
a Series A Preferred Share, subject to adjustment.
Until the earliest to occur of the following dates (the earliest of such
dates being hereinafter called the "Rights Distribution Date"), the Rights will
be evidenced by the certificates evidencing shares of Common Stock: (i) the
close of business on the tenth business day (or such later date as may be
specified by the Board of Directors of the Company) following the first date of
public announcement by the Company that a person (other than the Company or a
subsidiary or employee benefit or stock ownership plan of the Company), together
with its affiliates and associates, has acquired, or obtained the right to
acquire, beneficial ownership of 20% or more of the outstanding Common Stock
(any such person being hereinafter called an "Acquiring Person"); (ii) the close
of business on the tenth business day (or such later date as may be specified by
the Board of Directors of the Company) following the commencement of a tender
offer or exchange offer by a person (other than the Company or a subsidiary or
employee benefit or stock ownership plan of the Company), the consummation of
which would result in beneficial ownership by such person of 20% or more of the
outstanding Common Stock; and (iii) the close of business on the tenth business
day following the first date of public announcement by the Company that a Flip-
in Event or a Flip-over Event (as such terms are hereinafter defined) has
occurred.
The Share Purchase Rights Agreement provides that, until the Rights
Distribution Date, the Rights may be transferred with and only with the Common
Stock. Until the Rights Distribution Date (or earlier redemption or expiration
of the Rights), any certificate evidencing shares of Common Stock issued upon
transfer or new issuance of Common Stock will contain a notation incorporating
the Share Purchase Rights Agreement by reference. Until the Rights Distribution
Date (or earlier redemption or expiration of the Rights), the surrender for
transfer of any certificates evidencing Common Stock will also constitute the
transfer of the Rights associated with such certificates. As soon as
practicable following the Rights Distribution Date, separate certificates
evidencing the Rights ("Rights Certificates") will be mailed to holders of
record of Common Stock as of the close of business on the Rights Distribution
Date and such separate Rights Certificates alone will evidence the Rights. No
Right is exercisable at any time prior to the Rights Distribution Date. The
Rights will expire on December 19, 2004 (the "Final Expiration Date") unless
earlier redeemed or exchanged by the Company as described below. Until a Right
is exercised, the holder thereof, as such, will have no rights as a stockholder
of the Company, including without limitation the right to vote or to receive
dividends.
The Purchase Price payable, and the number of Series A Preferred Shares or
other securities 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
Shares, (ii) upon the grant to holders of the Series A Preferred Shares of
certain rights or warrants to subscribe for or purchase Series A Preferred
Shares at a price, or securities convertible into Series A Preferred Shares with
a conversion price, less than
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the then-current market price of the Series A Preferred Shares, or (iii) upon
the distribution to holders of the Series A Preferred Shares of evidences of
indebtedness or cash (excluding regular periodic cash dividends), assets, or
stock (excluding dividends payable in Series A Preferred Shares) or of
subscription rights or warrants (other than those referred to above). The
number of outstanding Rights and the number of one one-hundredths of a Series A
Preferred Share issuable upon exercise of each Right also is subject to
adjustment in the event of a stock dividend on the Common Stock payable in
shares of Common Stock or a subdivision, combination, or reclassification of the
Common Stock occurring, in any such case, prior to the Rights Distribution Date.
The Series A Preferred Shares issuable upon exercise of the Rights will not
be redeemable. Each Series A Preferred Share will be entitled to a minimum
preferential quarterly dividend payment equal to the greater of (i) $1.00 per
share and (ii) an amount equal to 100 times the aggregate dividends declared per
share of Common Stock during the related quarter. In the event of liquidation,
the holders of the Series A Preferred Shares will be entitled to a preferential
liquidation payment equal to the greater of (a) $100 per share and (b) an amount
equal to 100 times the liquidation payment made per share of Common Stock. Each
Series A Preferred Share will have 100 votes, voting together with the Common
Stock. In the event of any merger, consolidation, or other transaction in which
shares of Common Stock are exchanged, each Series A Preferred Share will be
entitled to receive 100 times the amount received per share of Common Stock.
These rights will be protected by customary antidilution provisions. Because of
the nature of the Series A Preferred Shares' dividend, voting and liquidation
rights, the value of the one one-hundredth interest in a Series A Preferred
Share purchasable upon exercise of each Right should approximate the value of
one share of Common Stock.
Rights may be exercised to purchase Series A Preferred Shares only after the
Rights Distribution Date occurs and prior to the occurrence of a Flip-in Event
or Flip-over Event. A Rights Distribution Date resulting from the commencement
of a tender offer or exchange offer described in clause (ii) of the definition
of "Rights Distribution Date" could precede the occurrence of a Flip-in Event or
Flip-over Event and thus result in the Rights being exercisable to purchase
Series A Preferred Shares. A Rights Distribution Date resulting from any
occurrence described in clause (i) or clause (iii) of the definition of "Rights
Distribution Date" would necessarily follow the occurrence of a Flip-in Event or
Flip-over Event and thus result in the Rights being exercisable to purchase
shares of Common Stock or other securities as described below.
In the event (a "Flip-in Event") that (i) any person, together with its
affiliates and associates, becomes the beneficial owner of 20% or more of the
outstanding Common Stock, (ii) any Acquiring Person merges into or combines with
the Company and the Company is the surviving corporation or any Acquiring Person
effects certain other transactions with the Company, as described in the Share
Purchase Rights Agreement, or (iii) during such time as there is an Acquiring
Person, there is any reclassification of securities or recapitalization or
reorganization of the Company which has the effect of increasing by more than 1%
the proportionate share of the outstanding shares of any class of equity
securities of the Company or any of its subsidiaries beneficially owned by the
Acquiring Person, proper provision will be made so that each holder of a Right,
other than Rights that are or were owned beneficially by the Acquiring Person
(which, from and after the later of the Rights Distribution Date and the date of
the earliest of any such events, will be void), will thereafter have the right
to receive upon exercise thereof at the then-current exercise price of the
Right, that number of shares of Common Stock (or, under certain circumstances,
an economically equivalent security or securities of the Company) that have a
market value of two times the exercise price of the Right.
In the event (a "Flip-over Event") that, following the first date of public
announcement by the Company that a person has become an Acquiring Person, (i)
the Company merges with or into any person and the Company is not the surviving
corporation, (ii) any person merges with or into the Company and the Company is
the surviving corporation, but all or part of the Common Stock is changed or
exchanged, or (iii) 50% or more of the company's assets or earning power,
including without limitation securities creating obligations of the Company, are
sold, proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise thereof at the then-
current exercise price of the Right, that number of shares of common stock (or,
under certain circumstances, an economically equivalent security or securities)
of such other person which at the time of such transaction would have a market
value of two times the exercise price of the Right.
Following the occurrence of any Flip-in Event or Flip-over Event, Rights
(other than any Rights which have become void) may be exercised as described
above, upon payment of the exercise price or, at the option of the holder
thereof, without the payment of the exercise price that would otherwise be
payable. If a holder of Rights elects to exercise
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<PAGE>
Rights without the payment of the exercise price that would otherwise be
payable, such holder will be entitled to receive upon the exercise of such
Rights securities having a market value equal to the exercise price of the
Rights. In addition, at any time after the later of the Rights Distribution
Date and the first occurrence of a Flip-in Event or a Flip-over Event and prior
to the acquisition by any person or group of affiliated or associated persons of
50% or more of the outstanding Common Stock, the Company may exchange the Rights
(other than any Rights which have become void), in whole or in part, at an
exchange ratio of one share of Common Stock per Right (subject to adjustment).
With certain exceptions, no adjustments in the Purchase Price will be
required until cumulative adjustments require an adjustment in the Purchase
Price of at least 1%. The Company is not required to issue fractional Series A
Preferred Shares (other than fractions that are integral multiples of one one-
hundredth of a Series A Preferred Share, which may, at the option of the
Company, be evidenced by depositary receipts) or fractional shares of Common
Stock or other securities issuable upon the exercise of Rights. In lieu of
issuing such securities, the Company may make a cash payment, as provided in the
Share Purchase Rights Agreement.
The Company may redeem the Rights in whole, but not in part, at a price of
$0.03 per Right, subject to adjustment and, in the event that the payment of
such amount would be prohibited by loan agreements or indentures to which the
Company is a party, deferral (the "Redemption Price"), at any time prior to the
close of business on the later of (i) the Rights Distribution Date and (ii) the
first date of public announcement that a person has become an Acquiring Person.
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the holders will have only the right to receive the
Redemption Price.
The Share Purchase Rights Agreement may be amended by the Company without the
approval of any holders of Rights, including amendments which add other events
requiring adjustment to the Purchase Price payable and the number of Series A
Preferred Shares or other securities issuable upon the exercise of the Rights
which modify procedures relating to the redemption of the Rights, provided that
no amendment may be made which decreases the stated Redemption Price to an
amount less than $0.01 per Right, decreases the period of time remaining until
the Final Expiration Date, or modifies a time period relating to when the Rights
may be redeemed at such time as the Rights are not then redeemable.
Certain Corporate Governance Matters
The Company's certificate of incorporation and by-laws provide that the
directors of the Company are to be classified into three classes, with the
directors in each class serving for three-year terms and until their successors
are elected. Any additional person elected to the Board of Directors of the
Company will be added to a particular class of directors to be determined at the
time of such election, although in accordance with the Company's certificate of
incorporation and by-laws, the number of directors in each class will be
identical or as nearly as practicable thereto based on the total number of
directors then serving as such.
The Company's by-laws provide that nominations for election of directors by
the stockholders will be made by the Board of Directors of the Company or by any
stockholder entitled to vote in the election of directors generally. The
Company's by-laws require that stockholders intending to nominate candidates for
election as directors deliver written notice thereof to the Secretary of the
Company not later than 60 calendar days in advance of the meeting of
stockholders; provided, however, that in the event that the date of the meeting
is not publicly announced by the Company by inclusion in a report filed with the
Commission or furnished to stockholders, or by mail, press release, or otherwise
more than 75 calendar days prior to the meeting, notice by the stockholder to be
timely must be delivered to the Secretary of the Company not later than the
close of business on the tenth day following the date on which such announcement
of the date of the meeting was so communicated. The Company's by-laws further
require that the notice by the stockholder set forth certain information
concerning such stockholder and the stockholder's nominees, including their
names and addresses, a representation that the stockholder is entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice, a description of all
arrangements or understandings between the stockholders and each nominee, such
other information as would be required to be included in a proxy statement
soliciting proxies for the election of the nominees of such stockholder, and the
consent of each nominee to serve as a director of the Company if so elected.
The chairman of the meeting may refuse to acknowledge the nomination of any
person not made in compliance with these requirements.
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<PAGE>
In addition to the provisions relating to the classification of the Board of
Directors and the director nomination procedures described above, the Company's
certificate of incorporation and by-laws provide, in general, that (i) the
number of directors of the Company will be fixed, within a specified range, by a
majority of the total number of the Company's directors (assuming no vacancies)
or by the holders of at least 80% of the Company's voting stock, (ii) the
directors of the Company in office from time to time will fill any vacancy or
newly created directorship on the Board of Directors of the Company with any new
director to serve in the class of directors to which he or she is so elected,
(iii) directors of the Company may be removed only for cause by the holders of
at least 80% of the Company's voting stock, (iv) stockholder action can be taken
only at an annual or special meeting of stockholders and not by written consent
in lieu of a meeting, (v) except as described below, special meetings of
stockholders may be called only by the Company's Chief Executive Officer or by a
majority of the total number of directors of the Company (assuming no vacancies)
and the business permitted to be conducted at any such meeting is limited to
that brought before the meeting by the Company's Chief Executive Officer or by a
majority of the total number of directors of the Company (assuming no
vacancies), and (vi) subject to certain exceptions, the Board of Directors of
the Company may postpone and reschedule any previously scheduled annual or
special meeting of stockholders. The Company's by-laws also require that
stockholders desiring to bring any business before an annual meeting of
stockholders deliver written notice thereof to the Secretary of the Company not
later than 60 calendar days in advance of the meeting of stockholders; provided,
however, that in the event that the date of the meeting is not publicly
announced by the Company by press release or inclusion in a report filed with
the Commission or furnished to stockholders more than 75 calendar days prior to
the meeting, notice by the stockholders to be timely must be delivered to the
Secretary of the Company not later than the close of business on the tenth
calendar day following the day on which such announcement of the date of the
meeting was so communicated. The Company's by-laws further require that the
notice by the stockholder set forth a description of the business to be brought
before the meeting and the reasons for conducting such business at the meeting
and certain information concerning the stockholder proposing such business and
the beneficial owner, if any, on whose behalf the proposal is made including
their names and addresses, the class and number of shares of the Company, that
are owned beneficially and of record by each of them, and any material interest
of either of them in the business proposed to be brought before the meeting.
Upon the written request of the holders of not less than 15% of the Company's
voting stock, the Board of Directors of the Company will be required to call a
meeting of stockholders for the purpose specified in such written request and
fix a record date for the determination of stockholders entitled to notice of
and to vote at such meeting (which record date may not be later than 60 calendar
days after the date of receipt of notice of such meeting), provided that in the
event that the Board or Directors of the Company calls an annual or special
meeting of stockholders to be held not later than 90 calendar days after receipt
of any such written request, no separate special meeting of stockholders as so
requested will be required to be convened provided that the purposes of such
annual or special meeting called by the Board of Directors of the Company
include (among others) the purposes specified in such written request of the
stockholders.
Under applicable provisions of Delaware law, the approval of a Delaware
company's board of directors, in addition to stockholder approval, is required
to adopt any amendment to the company's certificate of incorporation, but a
company's by-laws may be amended either by action of its stockholders or, if the
company's certificate of incorporation so provides, its board of directors. The
Company's certificate of incorporation and by-laws provide that (i) except as
described below, the provisions summarized above and the provisions relating to
the classification of the Board and nominating procedures may not be amended by
the stockholders, nor may any provision inconsistent therewith be adopted by the
stockholders, without the affirmative vote of the holders of at least 80% of the
Company's voting stock, voting together as single class, except that if any such
action (other than any direct or indirect amendments to the provision requiring
that stockholder action be taken at a meeting of stockholders rather than by
written consent in lieu of a meeting) is approved by the holders of a majority,
but less than 80%, of the then-outstanding voting stock (in addition to any
other approvals require by law, including approval by the Board of Directors of
the Company with respect to any amendment to the Company's certificate of
incorporation), such action will be effective as of one year from the date of
adoption, or (ii) the Company's by-law provisions relating to the right of
stockholders to cause special meetings of stockholders to be called and to the
composition of certain directorate committees may not be amended by the Board
without stockholder approval.
The Company is subject to Section 203 of the General Corporation Law of the
State of Delaware (the "DGCL"), which restricts the consummation of certain
business combination transactions in certain circumstances. In addition, the
Company's certificate of incorporation contains provisions that are
substantially similar to those contained in Section 203 of the DGCL that
restrict business combination transactions with (i) any person or group that
became or is deemed to have become the beneficial owner of 15% or more of the
voting stock of the Company as a result of its
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<PAGE>
receipt of Common Stock or warrants pursuant to Macy's plan of reorganization
that thereafter becomes the beneficial owner of an additional 1% or more of the
voting stock of the Company and (ii) any other person or group that becomes the
beneficial owner of 15% more of the voting stock of the Company.
The foregoing provisions of the Company's certificate of incorporation, the
provisions of its by-laws relating to advance notice of stockholder nominations,
and the provisions of the Share Purchase Rights Agreement (see "--Preferred
Share Purchase Rights") may discourage or make more difficult the acquisition of
control of the Company by means of a tender offer, open market purchase, proxy
contest, or otherwise. These provisions are intended to discourage or may have
the effect of discouraging certain types of coercive takeover practices and
inadequate takeover bids and to encourage persons seeking to acquire control of
the Company first to negotiate with the Company. The Company's management
believes that the foregoing measures, many of which are substantially similar to
the takeover-related measures in effect for many other publicly held companies,
provide benefits by enhancing the Company's potential ability to negotiate with
the proponent of an unfriendly or unsolicited proposal to take over or
restructure the Company that outweigh the disadvantages of discouraging such
proposals because, among other things, negotiation of such proposals could
result in an improvement of their terms.
PLAN OF DISTRIBUTION
Offers and sales of Shares pursuant to this Prospectus may be effected by
each of the Selling Stockholders from time to time in one or more transactions,
directly by such Selling Stockholder or through underwriters, brokers, dealers,
or agents to be designated from time to time, at prices and on terms then
prevailing in the market, or in privately negotiated transactions. Such offers
or sales may be effected in any legally available manner, including without
limitation (i) directly in privately negotiated transactions, (ii) through
purchases by a broker-dealer as principal and resale by such broker-dealer for
its account pursuant to this Prospectus, (iii) through block trades in which a
broker-dealer will attempt to sell the Shares as agent but may position and
resell a portion of the block as principal to facilitate the transaction,
(iv) through transactions on the NYSE in accordance with the rules of such
exchange, (v) through ordinary broker's transactions and transactions in which
the broker solicits the purchasers, and (vi) through any combination of two or
more of the foregoing. In effecting sales, broker-dealers engaged by the
Selling Stockholders may arrange for other broker-dealers to participate. In
addition to the foregoing, Zell/Chilmark may distribute Shares held by it to its
partners from time to time in accordance with its partnership agreement.
Moreover, any of the Shares covered by this Prospectus which qualify for sale
pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this
Prospectus.
In connection with the sale of the Shares, underwriters, brokers, dealers,
and agents may receive compensation from the Selling Stockholders or from
purchasers of the Shares in the form of discounts, concessions, or commissions.
Underwriters, brokers, dealers, and agents who participate in the distribution
of the Shares may be deemed to be underwriters, and any discounts or commissions
received by them from the Selling Stockholders and any profit on the resale of
Shares by them may be deemed to be underwriting discounts and commissions under
the Securities Act. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
At the time a particular offer of Shares is made, if and to the extent
required, this Prospectus will be accompanied by a Prospectus Supplement setting
forth the specific number of Shares offered, the name of the Selling Stockholder
making the offer, the offering price, and the other terms of the offering,
including the names of any underwriters, agents, dealers, and brokers involved
and the compensation, if any, of such underwriters, agents, dealers or brokers.
Unless this Prospectus is accompanied by a Prospectus Supplement stating
otherwise, offers and sales may be made pursuant to this Prospectus only in
ordinary broker's transactions made on the NYSE in transactions involving
ordinary and customary brokerage commissions.
Under agreements which may be entered into by the Selling Stockholders (to
which the Company may be a party), underwriters, brokers, dealers, and agents
who participate in the distribution of the Shares may be entitled to
indemnification by the Selling Stockholders and/or the Company against certain
liabilities, including under the Securities Act, or contribution from the
Selling Stockholders and/or the Company to payments which the underwriters,
brokers, dealers, or agents may be required to make in respect thereof. The
underwriters, brokers, dealers, and agents
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<PAGE>
may engage in transactions with, or perform services for, the Selling
Stockholders and the Company in the ordinary course of business.
EXPERTS
The consolidated financial statements of the Company as of January 28, 1995
and January 29, 1994, and for each of the fifty-two week periods ended January
28, 1995, January 29, 1994, and January 30, 1993, have been incorporated by
reference in this Prospectus in reliance upon the report, incorporated by
reference herein, of KPMG Peat Marwick LLP, independent certified public
accountants and upon the authority of that firm as experts in accounting and
auditing.
The consolidated financial statements of Macy's as of July 30, 1994 and
July 31, 1993 and for each of the three years in the period ended July 30, 1994
incorporated by reference in this Prospectus have been audited by Deloitte &
Touche LLP, independent auditors, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
The consolidated financial statements of Broadway as of January 28, 1995 and
January 29, 1994 and for each of the fiscal years ended January 28, 1995 and
January 29, 1994, the seventeen weeks ended January 30, 1993, and the thirty-
five weeks ended October 3, 1992 incorporated by reference in this Prospectus
have been so incorporated in reliance on the reports of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
LEGAL MATTERS
The validity of the Shares offered hereby has been passed upon for the
Company by Jones, Day, Reavis & Pogue, New York, New York.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses to be borne by the Company in connection with the issuance and
distribution of the securities being registered are estimated as follows:
Securities and Exchange Commission registration fee . $123,170
Legal fees and expenses . . . . . . . . . . . . . . . 50,000
Accounting fees and expenses . . . . . . . . . . . . 25,000
Printing expenses . . . . . . . . . . . . . . . . . . 25,000
Blue sky fees and expenses . . . . . . . . . . . . . 10,000
Miscellaneous expenses . . . . . . . . . . . . . . . 16,830
--------
Total . . . . . . . . . . . . . . . . . . . . . $250,000
========
The expenses to be borne by the Selling Stockholders in connection with the
issuance and distribution of the securities being registered (other than any
underwriting discounts and commissions, which will be described in an applicable
Prospectus Supplement to the extent required) are expected to consist solely of
the fees and expenses of their respective legal counsel and are estimated to be
approximately $5,000 for each Selling Stockholder.
Item 15. Indemnification of Directors and Officers
The Company's Certificate of Incorporation (the "Certificate") provides, as
do the charters of many other publicly held companies, that the personal
liability of directors of the Company to the Company is eliminated to the
maximum extent permitted by Delaware law. The Certificate and the Company's
By-Laws (the "By-Laws") provide for the indemnification of the directors,
officers, employees, and agents of the Company and its subsidiaries to the full
extent that may be permitted by Delaware law from time to time and, in the case
of the By-Laws, for various procedures relating thereto. Certain provisions of
the Certificate protect the Company's directors against personal liability for
monetary damages resulting from breaches of their fiduciary duty of care, except
as set forth below. Under Delaware law, absent these provisions, directors
could be held liable for gross negligence in the performance of their duty of
care, but not for simple negligence. The Certificate absolves directors of
liability for negligence in the performance of their duties, including gross
negligence. However, the Company's directors remain liable for breaches of
their duty of loyalty to the Company and its stockholders, as well as for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law and transactions from which a director derives improper
personal benefit. The Certificate also does not absolve directors of liability
under section 174 of the Delaware General Corporation Law, which makes directors
personally liable for unlawful dividends or unlawful stock repurchases or
redemptions in certain circumstances and expressly sets forth a negligence
standard with respect to such liability.
Under Delaware law, directors, officers, employees, and other individuals may
be indemnified against expenses (including attorneys' fees), judgments, fines,
and amounts paid in settlement in connection with specified actions, suits, or
proceedings, whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the corporation -- a "derivative action")
if they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the Company and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard of care is applicable in the case of a
derivative action, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with defense or settlement of
such an action and Delaware law requires court approval before there can be any
indemnification of expenses where the person seeking indemnification has been
found liable to the Company.
The Certificate provides, among other things, that each person who was or is
made a party to, or is threatened to be made a party to, or is involved in, any
action, suit, or proceeding by reason of the fact that he or she is or was a
director or officer of the Company (or was serving at the request of the Company
as a director, officer, employee, or agent for another entity), will be
indemnified and held harmless by the Company to the full extent authorized by
Delaware law against all expense, liability, or loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties, and amounts to be paid in
settlement) reasonably incurred by such person in connection therewith. The
rights conferred thereby will be deemed to be contract rights and will include
the right to be paid by the Company for the expenses incurred in defending the
proceedings specified above in advance of their final disposition.
The Company is a party to indemnification agreements with each of its
directors and officers. These indemnification agreements provide for, among
other things, (i) the indemnification by the Company of the indemnitees
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thereunder to the extent described above, (ii) the advancement of attorneys'
fees and other expenses, and (iii) the establishment, upon approval by the
Board, of trusts or other funding mechanisms to fund the Company's
indemnification obligations thereunder.
Item 16. Exhibits
4.1 -- Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 of the Company's Annual Report on Form 10-K (File
No. 1-13536) for the fiscal year ended January 28, 1995 ("1994 Form
10-K"))
4.2 -- By-Laws (incorporated by reference to Exhibit 3.2 of the 1994
Form 10-K)
4.3 -- Rights Agreement, dated December 19, 1994, between the Company and
the Bank of New York, as rights agent (incorporated by reference to
Exhibit 4.3 of the 1994 Form 10-K)
5.1 -- Opinion of Jones, Day, Reavis & Pogue
23.1 -- Consent of KPMG Peat Marwick LLP
23.2 -- Consent of Price Waterhouse LLP
23.3 -- Consent of Deloitte & Touche LLP
23.4 -- Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
24.1 -- Powers of Attorney
Item 17. Undertakings
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above shall not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment will be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time will 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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this Registration
Statement will be deemed to be a new Registration Statement relating to the
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securities offered herein, and the offering of such securities at that time
will be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director, officer,
or controlling person of the Company 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 Company will,
unless in the opinion of counsel for the Company 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.
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<PAGE>
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 Cincinnati, State of Ohio on October 20, 1995.
FEDERATED DEPARTMENT STORES, INC.
By /s/ Dennis J. Broderick
----------------------------
Dennis J. Broderick,
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated on October 20, 1995.
Signature Title
--------- -----
* Chairman of the Board and Chief Executive Officer
- -------------------------
Allen I. Questrom (principal executive officer) and Director
* Vice Chairman and Chief Financial Officer
- -------------------------
Ronald W. Tysoe (principal financial officer) and Director
* Senior Vice President and Controller
- -------------------------
John E. Brown (principal accounting officer)
* Director
- -------------------------
Robert A. Charpie
* Director
- -------------------------
Lyle Everingham
* Director
- -------------------------
Earl G. Graves, Sr.
* Director
- -------------------------
Meyer Feldberg
* Director
- -------------------------
George V. Grune
* Director
- -------------------------
Gertrude G. Michelson
* Director
- -------------------------
Joseph Neubauer
* Director
- -------------------------
Laurence A. Tisch
* Director
- -------------------------
Paul W. Van Orden
* Director
- -------------------------
Karl M. von der Heyden
* Director
- -------------------------
Marna C. Whittington
* Director
- -------------------------
James M. Zimmerman
* The undersigned, by signing his name hereto, does sign and execute this
Registration Statement pursuant to the Powers of Attorney executed by the
above-named persons.
/s/ Dennis J. Broderick
---------------------------------
Dennis J. Broderick,
Attorney-in-Fact
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<PAGE>
INDEX TO EXHIBITS
Exhibit Description
No.
------- --------------------------------------------------------------------
4.1 Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 of the Company's Annual Report on Form 10-K (File
No. 1-13536) for the fiscal year ended January 28, 1995 ("1994 Form
10-K"))
4.2 By-Laws (incorporated by reference to Exhibit 3.2 of the 1994
Form 10-K)
4.3 Rights Agreement, dated December 19, 1994, between the Company and
the Bank of New York, as rights agent (incorporated by reference to
Exhibit 4.3 of the 1994 Form 10-K)
5.1 Opinion of Jones, Day, Reavis & Pogue
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
24.1 Powers of Attorney
Exhibit 5.1
-----------
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
October 20, 1995
Federated Department Stores, Inc.
7 West Seventh Street
Cincinnati, Ohio 45202
Re:
Offering of Shares of Common Stock
of Federated Department Stores, Inc.
by Certain Selling Stockholders
--------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Federated Department Stores, Inc., a Delaware
corporation (the "Company"), in connection with the offering by certain
stockholders of the Company (the "Selling Stockholders") of up to 13,447,288
shares (the "Shares") of common stock (the "Common Stock") of the Company issued
to the Selling Stockholders in connection with the transactions contemplated by
the Agreement and Plan of Merger, dated August 14, 1995 (the "Merger
Agreement"), among Broadway Stores, Inc., the Company, and a wholly owned
subsidiary of the Company and by the Purchase Agreement, dated as of August 14,
1995 (the "Prudential Agreement"), among The Prudential Insurance Company of
America ("Prudential"), a wholly owned subsidiary of the Company, and the
Company and of any additional shares of Common Stock (the "Additional Shares")
to be issued to Prudential pursuant to the Prudential Agreement.
We have examined such documents, records, and matters of law as we have
deemed necessary for purposes of this opinion. Based thereon, we are of the
opinion that the Shares and the Additional Shares have been duly authorized and
the Shares are, and the Additional Shares, when issued and delivered in
accordance with the Prudential Agreement, will be, validly issued, fully paid,
and nonassessable.
In rendering the foregoing opinion, we have assumed the authenticity of all
documents represented to us to be originals, the conformity to original
documents of all copies of documents submitted to us, the accuracy and
completeness of all corporate records made available to us, and the genuineness
of all signatures that purport to have been made in a corporate, governmental,
fiduciary, or other capacity, and that the persons who affixed such signatures
had the requisite authority to do so.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement on Form S-3 (the "Registration Statement") filed by the
Company to effect registration of the Shares under the Securities Act of 1933,
as amended, to the reference to us under the caption "Legal Matters" in the
Prospectus constituting a part of the Registration Statement, and to the
incorporation by reference of this opinion in any abbreviated registration
statement relating to the Registration Statement to register the Additional
Shares as permitted pursuant to Rule 462(b) under the Securities Act.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
Jones, Day, Reavis & Pogue
Exhibit 23.1
------------
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Federated Department Stores, Inc.:
We consent to the use of our audit report dated February 28, 1995 on the
consolidated financial statements of Federated Department Stores, Inc. and
subsidiaries as of January 28, 1995 and January 29, 1994, and for each of the
fifty-two week periods ended January 28, 1995, January 29, 1994 and January 30,
1993, incorporated herein by reference and to the reference to our firm under
the heading "Experts" in the Prospectus.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Cincinnati, Ohio
October 17, 1995
Exhibit 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Federated
Department Stores, Inc. of our reports dated March 13, 1995 and March 12, 1993
relating to the consolidated financial statements of Broadway Stores, Inc. and
its subsidiaries as of January 28, 1995 and January 29, 1994 and the fiscal
years ended January 28, 1995 and January 29, 1994, the seventeen weeks ended
January 30, 1993, and the thirty-five weeks ended October 3, 1992, which appear
in the Current Report on Form 8-K of Federated Department Stores, Inc. dated
September 21, 1995. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Los Angeles, California
October 16, 1995
Exhibit 23.3
------------
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Federated Department Stores, Inc. on Form S-3 of our report dated September 19,
1994 (September 28, 29 and 30, 1994 as to Notes 18, 2 and 20 respectively) on
the consolidated financial statements of R.H. Macy & Co., Inc. for the three
years in the period ended July 30, 1994, which expresses an unqualified opinion
and includes explanatory paragraphs relating to the Company's reorganization
proceedings, its ability to continue as a going concern and its method of
accounting for income taxes and postretirement benefits other than pension,
appearing in the Annual Report on Form 10-K of R.H. Macy & Co., Inc. for the
year ended July 30, 1994, which consolidated financial statements are attached
as an Exhibit to the Current Report on Form 8-K of Federated Department Stores,
Inc. dated September 21, 1995, and to the reference to us under the heading
"Experts" in the Prospectus which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
New York, New York
October 17, 1995
Exhibit 24.1
------------
POWER OF ATTORNEY
By signing below, I hereby constitute and appoint Ronald W. Tysoe, Dennis
J. Broderick, John R. Sims, and Padma Tatta Cariappa, or any of them, my true
and lawful attorneys and agents to do any and all acts and things and to execute
any and all instruments in my name and behalf in my capacities as director
and/or officer of Federated Department Stores, Inc., a Delaware corporation (the
"Company"), which said attorneys and agents, or any of them, may deem necessary
or advisable or which may be required to enable the Company to comply with the
Securities Act of 1933, as amended (the "Securities Act"), and any rules,
regulations or requirements of the Securities and Exchange Commission in respect
thereof, in connection with a Registration Statement on Form S-3 (or any other
appropriate form) and any abbreviated registration statement relating thereto
permitted pursuant to Rule 462(b) under the Securities Act for the purpose of
registering pursuant to the Securities Act shares of common stock, par value
$.01 per share ("Federated Common Stock"), of the Company issued by the Company
to The Prudential Insurance Company of America ("Prudential") pursuant to the
Purchase Agreement, dated as of August 14, 1995, among Prudential, Federated
Noteholding Corporation II, and the Company and/or shares of Federated Common
Stock issued by the Company and delivered upon conversion of shares of common
stock, par value $.01 per share, of Broadway Stores, Inc. ("Broadway") as a
result of the merger of Nomo Company, Inc., a wholly owned subsidiary ("Nomo"),
of the Company with and into Broadway pursuant to the Agreement and Plan of
Merger, dated August 14, 1995, by and among Broadway, the Company, and Nomo, to
persons who may be deemed to have been affiliates of Broadway as of September 7,
1995, including specifically, but without limiting the generality of the
foregoing, the power and authority to sign for me, in my name and behalf in my
capacities as director and/or officer of the Company (individually or on behalf
of the Company), such Registration Statement and any such abbreviated
registration statement, and any and all amendments and supplements thereto, and
to file the same, with all exhibits thereto and other instruments or documents
in connection therewith, with the Securities and Exchange Commission, and hereby
ratify and confirm all that said attorneys and agents, or any of them, may do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
October 10, 1995.
/s/ John E. Brown /s/ Robert A. Charpie /s/ Lyle Everingham
- -------------------------- ------------------------- ----------------------
John E. Brown Robert A. Charpie Lyle Everingham
/s/ Meyer Feldberg /s/ Earl G. Graves, Sr. /s/ George V. Grune
- -------------------------- ------------------------- ----------------------
Meyer Feldberg Earl G. Graves, Sr. George V. Grune
/s/ Karl M. von der Heyden /s/ Gertrude G. Michelson /s/ Joseph Neubauer
- -------------------------- ------------------------- ----------------------
Karl M. von der Heyden Gertrude G. Michelson Joseph Neubauer
/s/ Allen I. Questrom /s/ Laurence A. Tisch /s/ Ronald W. Tysoe
- -------------------------- ------------------------- ----------------------
Allen I. Questrom Laurence A. Tisch Ronald W. Tysoe
/s/ Paul W. Van Orden /s/ Marna C. Whittington /s/ James M. Zimmerman
- -------------------------- ------------------------- ----------------------
Paul W. Van Orden Marna C. Whittington James M. Zimmerman
