<PAGE>1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)*
PROFFITT'S, INC.
__________________________________________________________________________
(Name of Issuer)
COMMON STOCK, PAR VALUE $.10 PER SHARE
__________________________________________________________________________
(Title of Class of Securities)
742925 10 0
_________________________________________________________
(CUSIP Number)
JOHN F. HARTIGAN, ESQ. MORGAN, LEWIS & BOCKIUS
801 SOUTH GRAND AVENUE, LOS ANGELES, CA 90017
(213) 612-2500
____________________________________________________________________________
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
MAY 13, 1996
_____________________________________________________________________
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box / /.
Check the following box if a fee is being paid with the statement. (A fee
is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the
class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less
of such class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
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The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
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SCHEDULE 13D
CUSIP No. 742925 10 0
______________
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
APOLLO SPECIALTY RETAIL PARTNERS, L.P.
______________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) / /
(B) / /
______________________________________________________________________
3 SEC USE ONLY
______________________________________________________________________
4 SOURCE OF FUNDS*
WC; 00
______________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or (e) / /
______________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
______________________________________________________________________
7 SOLE VOTING POWER
1,421,801 SHARES OF COMMON STOCK (ISSUABLE UPON
NUMBER CONVERSION OF SERIES A CUMULATIVE CONVERTIBLE
OF EXCHANGEABLE PREFERRED STOCK).
SHARES _______________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
OWNED NOT APPLICABLE.
BY _______________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON 1,421,801 SHARES OF COMMON STOCK (ISSUABLE UPON
CONVERSION OF SERIES A CUMULATIVE CONVERTIBLE
EXCHANGEABLE PREFERRED STOCK).
WITH _______________________________________________________
10 SHARED DISPOSITIVE POWER
NOT APPLICABLE.
______________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,421,801 SHARES OF COMMON STOCK (ISSUABLE UPON CONVERSION OF
SERIES A CUMULATIVE CONVERTIBLE EXCHANGEABLE PREFERRED STOCK).
______________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
______________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.9%
______________________________________________________________________
14 TYPE OF REPORTING PERSON*
PN
______________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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<PAGE>1
AMENDMENT NO. 1 TO
STATEMENT PURSUANT TO RULE 13d-1
OF THE
GENERAL RULES AND REGULATIONS
UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
_________________________________________________________________
_________________________________________________________________
Item 1. Security and Issuer.
______ ___________________
This Amendment No. 1 to Statement on Schedule 13D (the
"Statement") relates to the Agreement and Notice of Conversion
described in Item 4 below between the Reporting Person and
Proffitt's, Inc., a Tennessee corporation ("Proffitt's" or the
"Company"). The initial Statement on Schedule 13D was filed in
respect of Common Stock, par value $.10 per share ("Common
Stock"), of the Company, issuable upon conversion of Preferred
Stock (as defined in Item 4) purchased by the Reporting Person
pursuant to the Securities Purchase Agreement and the other
transactions described in Item 4 below. The principal executive
offices of Proffitt's are located at 115 North Calderwood, Alcoa,
Tennessee 37701.
Pursuant to Rule 101(a)(v)(2)(ii) of Regulation S-T,
because this Amendment is the first electronic amendment to a
paper format Schedule 13D, the amendment restates the entire text
of the Schedule 13D other than previously filed paper exhibits
thereto.
Item 2. Identity and Background.
______ _______________________
This Statement is filed by Apollo Specialty Retail
Partners, L.P., a Delaware limited partnership ("Apollo
Specialty"). Apollo Specialty is referred to herein as the
"Reporting Person."
The Reporting Person is principally engaged in the
investment in Common Stock of Proffitt's. The address of the
Reporting Person's principal business and of its principal office
is c/o CIBC Bank and Trust Company (Cayman) Limited, Edward
Street, Georgetown, Grand Cayman, Cayman Islands, British West
Indies.
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The sole general partner of the Reporting Person is
Apollo Investment Fund, L.P., a Delaware limited partnership
("AIF"). AIF is principally engaged in the business of
investment in securities. The address of AIF's principal business
and of its principal office is c/o CIBC Bank and Trust Company
(Cayman) Limited, Edward Street, Georgetown, Grand Cayman, Cayman
Islands, British West Indies.
The managing general partner of AIF is Apollo Advisors,
L.P., a Delaware limited partnership ("Advisors"). The
administrative general partner of AIF is Apollo Fund
Administration Limited, a Cayman Islands corporation. Advisors
is principally engaged in the business of serving as managing
general partner of AIF and another investment fund. Apollo Fund
Administration Limited is principally engaged in the business of
serving as administrative general partner of AIF and another
investment fund. AIF has no other general partners.
The respective addresses of the principal business and
principal office of each of Advisors and Apollo Fund
Administration Limited are: Apollo Advisors, L.P., Two
Manhattanville Road, Purchase, New York 10577; and Apollo Fund
Administration Limited, c/o CIBC Bank and Trust Company (Cayman)
Limited, Edward Street, Georgetown, Grand Cayman, Cayman Islands,
British West Indies.
Attached as Appendix A to Item 2 is information
concerning the principals, executive officers, directors and
principal shareholders of the Reporting Person and other entities
as to which such information is required to be disclosed in
response to Item 2 and General Instruction C to Schedule 13D.
Neither the Reporting Person, AIF, Advisors, Apollo
Fund Administration Limited nor any of the persons or entities
referred to in Appendix A to Item 2 has, during the last five
years, been convicted in a criminal proceeding (excluding traffic
violations and similar misdemeanors) or been a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree, or final order enjoining future violations
of, or prohibiting or mandating activities subject to, Federal or
state securities laws or finding any violation with respect to
such laws.
Item 3. Source and Amount of Funds or Other Consideration.
______ _________________________________________________
The funds used by the Reporting Person to acquire the
Preferred Stock were provided by working capital of the Reporting
Person derived from capital contributions of the partners of the
Reporting Person.
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Item 4. Purpose of Transaction.
______ ______________________
The Statement relates to the acquisition of beneficial
ownership of shares of Common Stock by the Reporting Person as a
result of the purchase of 600,000 shares of Series A Cumulative
Convertible Exchangeable Preferred Stock of the Company, par
value $1.00 per share (the "Preferred Stock"), pursuant to the
Securities Purchase Agreement, dated March 3, 1994, between the
Company and the Reporting Person (the "Securities Purchase
Agreement"). The Preferred Stock is convertible into a minimum
of 1,421,801 shares of Common Stock. See Item 5. The Reporting
Person acquired the Preferred Stock for investment. The
Reporting Person may change its current intentions, acquire
additional shares of Common Stock or sell or otherwise dispose of
all or any part of the Common Stock or Preferred Stock
beneficially owned by the Reporting Person, or take any other
action with respect to Proffitt's or any of its debt or equity
securities in any manner permitted by law.
The Securities Purchase Agreement was entered into in
connection with a Business Combination Agreement among the
Company, McRae's, Inc. and certain related persons in connection
with which the Company issued certain debt and equity securities.
Pursuant to its terms, the Preferred Stock may be exchanged at
the option of the Company on any Dividend Payment Date (as
defined therein) for the Company's 6.5% Convertible Subordinated
Debentures due 2006 (the "Exchange Debentures"). Michael S.
Gross, a Vice President of Apollo Capital Management, Inc., the
General Partner of Advisors, is a director of the Company.
The Reporting Person and the Company have entered into
an Agreement and Notice of Conversion, dated May 13, 1996 (the
"Agreement and Notice of Conversion"), pursuant to which the
Reporting Person has agreed to convert the Preferred Stock into
1,421,801 shares of Common Stock (subject to adjustment), in
accordance with its terms. As an inducement to convert its
shares of Preferred Stock into Common Stock, the Company has
agreed to pay to the Reporting Person the present value of
dividends that would have been paid on September 1, 1996, March
1, 1997, September 1, 1997, and March 1, 1998 on the Preferred
Stock, using a discount rate of 7.0%. The closing of the
conversion of the Preferred Stock is subject to certain
conditions including the expiration or early termination of any
applicable waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and
regulations thereunder. Prior to such closing, the Reporting
Person may not transfer (except for a bona fide pledge or
hypothecation) the Preferred Stock other than to one or more
Apollo Related Accounts (as defined in the Securities Purchase
Agreement) which agree to be bound by the Agreement and Notice of
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Conversion. Reference is hereby made to the Securities Purchase
Agreement and the Agreement and Notice of Conversion filed as
exhibits to the Statement for a description of these and other
matters of the type described in Items (a) through (j) of Item 4
of Schedule 13D. Except as disclosed in this Item 4, the
Reporting Person has no current plans or proposals which relate
or would result in any of the events described in Items (a)
through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
______ ____________________________________
(a) The Reporting Person is the beneficial owner of at
least 1,421,801 shares of Common Stock (or 6.9% of the Common
Stock outstanding) issuable upon conversion of the Preferred
Stock. Each share of Preferred Stock is convertible at a value
of $50.00 plus accrued dividends at the Conversion Price of
$21.10, subject to adjustment from time to time upon the
occurrence of certain dilution and change of control events.
(b) The number of shares of Common Stock as to which
there is sole power to vote or to direct the vote, shared power
to vote or to direct the vote, sole power to dispose or direct
the disposition, or shared power to dispose or direct the
disposition for the Reporting Person is set forth in the cover
pages and such information is incorporated herein by reference.
(c) There have been no reportable transactions with
respect to the Common Stock within the last 60 days by the
Reporting Person except for the acquisition of beneficial
ownership of the shares of Common Stock being reported on this
Statement.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to the Securities of the Issuer.
______ ________________________________________________________
The responses to Item 3 and Item 4 are incorporated
herein by reference.
Pursuant to the Securities Purchase Agreement, the
Reporting Person entered into a registration rights agreement
(the "Registration Rights Agreement") which entitles the
Reporting Person to have certain resales of Common Stock, the
Preferred Stock and the Exchange Debentures registered under
federal and state securities laws. Pursuant to the Agreement and
Notice of Conversion, the Reporting Person has agreed to convert
the Preferred Stock into 1,421,801 shares of Common Stock
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(subject to adjustment), in accordance with its terms. See Item
4.
The foregoing response to this Item 6 is qualified in
its entirety by reference to the Securities Purchase Agreement,
the Agreement and Notice of Conversion, the Articles of Amendment
authorizing the Preferred Stock and the Registration Rights
Agreement, the full texts of which are filed as Exhibits 1, 2, 3,
and 4 hereto and incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
______ ________________________________
(1) Securities Purchase Agreement
(2) Form of Articles of Amendment authorizing the
Preferred Stock (attached as Annex I to the
Securities Purchase Agreement)
(3) Form of Registration Rights Agreement (attached as
Annex II to the Securities Purchase Agreement)
(4) Agreement and Notice of Conversion
- 5 -
<PAGE>
<PAGE>6
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete and
correct.
Dated: May 15, 1996
APOLLO SPECIALTY RETAIL PARTNERS, L.P.
By: Apollo Investment Fund, L.P.,
its General Partner
By: Apollo Advisors, L.P.,
its Managing General Partner
By: Apollo Capital Management, Inc.,
its General Partner
By: /s/ Michael D. Weiner
_____________________________
Name: Michael D. Weiner
Title: Vice President, Apollo Capital
Management, Inc.
<PAGE>
<PAGE>7
APPENDIX A TO ITEM 2
The following sets forth information with respect to
the general partners, executive officers, directors and principal
shareholders of AIF, Advisors, which is the managing general
partner of AIF, Apollo Capital Management, Inc., a Delaware
corporation which is the sole general partner of Advisors
("Capital Management"), and Apollo Fund Administration Limited
("Administration").
The principal occupation of each of Leon Black and John
Hannan, each of whom is a United States citizen, is to act as an
executive officer and director of Capital Management and of Lion
Capital Management, Inc. ("Lion Capital"), the general partner of
Lion Advisors, L.P., a Delaware limited partnership ("Lion
Advisors"), and each is a limited partner of Advisors and Lion
Advisors. The principal business of Advisors and of Lion
Advisors is to provide advice regarding investments in
securities. Lion Capital is principally engaged in the business
of serving as general partner of Lion Advisors. Capital
Management is principally engaged in the business of serving as
general partner of Advisors. The principal offices of Lion
Advisors, Lion Capital and Capital Management are located at Two
Manhattanville Road, Purchase, New York 10577.
Mr. Black is the President and a director of Lion
Capital and the President and a director of Capital Management.
Mr. Black's business address is Two Manhattanville Road,
Purchase, New York 10577.
Mr. Hannan is a Vice President and director of Lion
Capital and a Vice President and director of Capital Management.
Mr. Hannan's business address is Two Manhattanville Road,
Purchase, New York 10577.
Peter Henry Larder, Michael Francis Benedict Gillooly,
Ian Thomas Patrick and Martin William Laidlaw, each of whom is a
British citizen, each serve as a director of Administration.
Each of the above four individuals is principally employed by
CIBC Bank and Trust Company (Cayman) Limited ("CIBC") in the
following positions: Mr. Larder, Managing Director; Mr. Gillooly,
Deputy Managing Director; Mr. Patrick, Manager-Accounting
Services; and Mr. Laidlaw, Senior Fund Accountant. CIBC is a
Cayman Islands corporation which is principally engaged in the
provision of trust, banking and corporate administration
services, the principal address of which is Edward Street, Grand
Cayman, Cayman Islands, British West Indies. It provides
accounting, administrative and other services to Administration
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pursuant to a contract. Messrs. Black and Hannan are the
beneficial owners of the stock of Administration.
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<PAGE>1
AGREEMENT AND NOTICE OF CONVERSION
This inducement and notification agreement, dated as of May 13,
1996 (the "Agreement"), is being entered into between Proffitt's, Inc.,
a Tennessee corporation (the "Company"), and Apollo Specialty Retail
Partners, L.P., a Delaware limited partnership ("Holder").
WHEREAS, the Company and Holder entered into a Securities
Purchase Agreement dated as of March 3, 1994, as amended by Amendment
No. 1 thereto dated March 31, 1994 (collectively the "Securities
Purchase Agreement"), pursuant to which Holder purchased 600,000 shares
of the Company's Series A Cumulative Convertible Exchangeable Preferred
Stock (the "Holder's Series A Preferred Stock");
WHEREAS, the terms of the Series A Preferred Stock contained
in the amendment to the Charter of the Company establishing such Series
(the "Series A Amendment") allow their conversion into Common Stock of
the Company at a "Conversion Price" set forth in such Series A
Amendment; and
WHEREAS, the Company, to induce Holder to convert the Series A
Preferred Stock into Common Stock of the Company, is willing to pay
certain consideration to Holder,
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
Section 1. Inducement. To induce Holder to convert its
shares of Series A Preferred Stock into Common Stock of the Company, the
Company agrees to pay Holder in cash at the Closing (as hereafter
defined) the present value of dividends that would have been paid on
September 1, 1996, March 1, 1997, September 1, 1997 and March 1, 1998 on
Holder's Series A Preferred Stock, using a discount rate of 7.0% (the
"Inducement Payment").
Section 2. Conversion Agreement and Notice; Closing. Subject
to the terms and conditions herein set forth, Holder agrees that it will
convert all of its Series A Preferred Stock for Common Stock, and the
Company agrees that it will issue to Holder on conversion of its Series
A Preferred Stock in accordance with the terms thereof, 1,421,801 whole
shares of Common Stock of the Company (subject to adjustment prior to
the Closing in accordance with the terms of the Series A Amendment).
(i) The conversion and issuance will take place at a closing
(the "Closing") at the Company's principal executive offices
or at such other location as shall be agreed to by the Company
and Holder.
(ii) Delivery of the shares of Common Stock, payment of the
Inducement Payment and delivery of the notice of conversion,
in a form reasonably acceptable to the Holder, shall all occur
simultaneously at the Closing. Certificates for the shares of
Common Stock shall be registered in the names designated by
Holder in writing to the Company prior to the Closing. Holder
acknowledges and agrees that each certificate shall bear a
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legend to reflect the applicability of Federal and states
securities laws limitations on the transfer of such shares of
Common Stock as follows:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS AND MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS
REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAW OR UNLESS AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
(iii) The Closing shall occur no later than June 30, 1996,
unless the Company and the Holder agree to a different later
date in writing; provided, however, that in the event of one
or more requests for additional information in connection with
any filing under the Hart-Scott-Rodino Antitrust Improvements
Act, the Closing shall occur no later than July 31, 1996. If
the Closing shall not have occurred by June 30, 1996 or such
later date permitted by this subsection (iii), then this
Agreement shall be null and void, and of no further force and
effect, except that this provision shall not limit the rights
of any party in respect of a breach of Section 5 hereof.
Section 3. Representations and Warranties of the Holder. As
a condition to the agreement of the Company to convert the Holder's
Series A Preferred Stock, Holder hereby represents and warrants both as
of the date hereof and as of the Closing, and covenants, as follows:
(i) The Holder is a limited partnership duly organized,
validly existing and in good standing under the laws of
Delaware. The Holder has all necessary partnership power and
authority to execute and deliver this Agreement, and to elect
to convert Holder's Series A Preferred Stock into Common Stock
of the Company, and to consummate the transactions
contemplated hereby. The execution and delivery by the Holder
of this Agreement have been duly authorized by all necessary
partnership actions and no further authorization on the part
of the Holder is necessary to authorize such execution,
delivery and performance. This Agreement constitutes the
legal valid and binding agreement of the Holder enforceable
against the Holder in accordance with its terms except as
enforceability may be limited by general equitable principles,
bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors' rights generally other than laws
relating to fraudulent conveyances.
(ii) The Holder has all necessary title to Holder's Series A
Preferred Stock to perform its obligations under this
Agreement, and there are no liens or encumbrances of any
nature whatsoever that will impair its ability to complete the
transactions contemplated by this Agreement. No consent,
approval or authorization of, or declaration, filing or
registration with, any governmental or regulatory authority is
required in connection with the execution and delivery by the
Holder of this Agreement, the consummation of the transactions
contemplated hereby, and the performance by the Holder of its
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obligations hereunder other than pursuant to the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), and
the rules and regulations thereunder and the expiration of any
applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act prior to the Closing. The
execution and delivery by the Holder of this Agreement, the
consummation of the transactions contemplated hereby and the
performance by the Holder of its obligations hereunder do not
and will not (with the giving of notice or the passage of time
or both) conflict with or violate the constitutive documents
of the Holder, any agreements to which the Holder is a party
or any applicable law, regulation, judgment, injunction, order
or decree binding upon the Holder or to which any of its
properties is subject.
(iii) At the Closing, the Holder will deliver certificates for
all of the Holder's Series A Preferred Stock, duly endorsed in
blank, to the Company and a notice of conversion.
(iv) The shares of Common Stock of the Company to be acquired
by the Holder pursuant to this Agreement are being acquired
for its own account with no intention of distributing or
reselling such Common Stock in any transaction which would be
in violation of the applicable securities laws of the United
States or any state thereof, without prejudice, however, to
the Holder's rights at all times to sell or otherwise dispose
of all or any part of such shares of Common Stock pursuant to
a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), or under an exemption from
such registration available under the Securities Act.
(v) The Holder has been afforded access to information about
the Company, its financial condition, results of operations,
business, property, management and prospects sufficient to
enable the Holder to evaluate its election to convert.
(vi) If the Holder should decide to dispose of the shares of
Common Stock received on conversion other than pursuant to an
effective registration statement under the Securities Act, the
Holder may in connection with such disposition, at the
Holder's expense, appoint counsel of recognized standing in
securities law (including in-house or special counsel) in
connection with such disposition and the Company will accept,
and will recommend the that its transfer agent accept, the
opinion of such counsel to the effect that the proposed
disposition would not be in violation of the Securities Act,
provided that such counsel and opinion are reasonably
acceptable to the Company and its counsel.
Section 4. Representations and Warranties of the Company. As
a condition of the Holder's agreement to convert the Holder's Series A
Preferred Stock into Common Stock of the Company, the Company hereby
represents and warrants, both as of the date hereof and as of the
Closing, and covenants, as follows:
(i) The Company and each of its subsidiaries is a corporation
duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, and has all
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<PAGE>4
necessary corporate power and authority to conduct its
business as currently conducted and to own or lease the
properties and assets it now owns or holds under lease; and is
duly qualified to do business and is in good standing as a
foreign corporation in every jurisdiction in the which the
conduct of its business or the ownership or leasing of its
properties requires it to be so qualified or licensed except
where the failure to be so qualified or licensed or in good
standing would not individually, or in the aggregate, have a
material adverse effect on the Company. The Company has
heretofore delivered to the Holder true, complete and correct
copies of the Charter and By-laws of the Company as currently
in effect, and no action has been taken or authorized to amend
or in contemplation of the amendment of such documents or to
liquidate or dissolve the Company.
(ii) The execution, delivery and performance by the Company
of this Agreement have been duly authorized by all necessary
corporate actions and no further authorization on the part of
the Company is necessary to authorize such execution, delivery
and performance. This Agreement constitutes the legal, valid
and binding agreement of the Company enforceable against the
Company in accordance with its terms except as enforceability
may be limited by general equitable principles, bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally other than laws relating to
fraudulent conveyances. The shares of Common Stock to be
issued on conversion of the Holder's Series A Preferred Stock
have been duly authorized and, upon issuance on conversion in
accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and free and clear of
any liens, and the issuance of such shares will not be subject
to any preemptive or similar right of any other stockholder of
the Company.
(iii) Except for the expiration of any applicable waiting
periods under the Hart-Scott-Rodino Antitrust Improvements Act
prior to the Closing, no consent, approval or authorization
of, or declaration, filing or registration with, any
governmental or regulatory authority is required in connection
with the execution and delivery by the Company of this
Agreement, the consummation of the transactions contemplated
hereby, and the performance by the Company of its obligations
hereunder. The execution and delivery by the Company of this
Agreement, the consummation of the transactions contemplated
hereby and the performance by the Company of its obligations
hereunder do not and will not (with the giving of notice or
the passage of time or both) conflict with or violate the
constitutive documents of the Company, any agreements to which
the Company is a party or any applicable law, regulation,
judgment, injunction, order or decree binding upon the Company
or to which any of its properties is subject.
(iv) Since January 1, 1992, the Company has filed all reports,
forms and other documents required to be filed by it with the
Securities and Exchange Commission (the "Commission") pursuant
to the Exchange Act and the Securities Act. Each such report,
form and document (a) was prepared in accordance with the
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<PAGE>5
requirements of the Securities Act or the Exchange Act, as the
case may be, and the respective rules and regulations
thereunder, and (b) did not as of its date contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in
which made, not misleading.
(v) Since February 3, 1996, there has not been any change or
occurrence in or affecting the business, results of operations
or financial condition of the Company that has had or could
reasonably be expected to have a material adverse effect on
the business, assets, condition (financial or otherwise), or
the results of operations of the Company and its subsidiaries
taken as a whole.
(vi) The Conversion Price (as defined in the Series A
Amendment) is $21.10. Since the issuance of the Series A
Preferred Stock, no event or circumstance has occurred which
requires adjustment of the Conversion Price pursuant to
Section 4 of the Series A Amendment.
Section 5. Covenants. The Company and the Holder each agree
to use their reasonable best efforts promptly to make such filings and
requests for consent, seek such authorizations and respond to such
requests for information, and to take any other actions as may be
necessary to consummate the transactions contemplated by this Agreement.
Section 6. Closing. The Closing shall occur on a date to be
agreed to by the parties hereto as soon as practicable after the
execution of this Agreement and the satisfaction of the following
conditions:
(i) Each of the representations and warranties shall be true
and correct in all respects as of the date of this Agreement
and as of the Closing, as though made on and as of the
Closing;
(ii) All registrations, filings, applications, notices,
transfers, consents, approvals, orders, qualifications,
waivers and other actions of any kind required with or from
any governmental agencies or bodies, including, but not
limited to the FTC and the Antitrust Division, shall have been
filed, made or obtained and all applicable waiting periods
shall have expired or been terminated, including, but not
limited to, any applicable waiting period under the Hart-
Scott-Rodino Antitrust Improvements Act;
(iii) The Company shall have received any necessary consents
from lending institutions without the imposition of material
conditions;
(iv) As of the Closing, no injunction, restraining order or
decree of any nature of any governmental agency or body shall
be in effect which restrains or prohibits the Closing, and no
Federal or state agency or governmental body shall be
threatening action to restrain or prohibit or attach material
conditions to the consummation of this Agreement;
<PAGE>
<PAGE>6
(v) As a condition to the obligation of the Company to close
the transactions contemplated by this Agreement, except for a
bona fide pledge or hypothecation, Holder shall not have
transferred any of its Series A Preferred Stock, other than to
an Apollo Related Account as such term is defined in Article I
of the Securities Purchase Agreement, to any person without
the Company's prior written consent; and
(vi) As a condition to the obligation of the Holder to close
the transactions contemplated by this Agreement, as of the
Closing no Change of Control, as that term is defined in
Section 1 of the Series A Amendment, or event which would
require an adjustment of the Conversion Price pursuant to
Section 4 of the Series A Amendment shall have occurred.
Section 7. Entire Agreement; Survival of Provisions. All
provisions of the Securities Purchase Agreement will continue in full
force and effect in accordance with the terms thereof. This Agreement,
the Securities Purchase Agreement and any other documents expressly
referred to herein and therein constitute the entire agreement of the
parties with respect to the transactions contemplated hereby and
supersede all prior agreements and understandings with respect thereto.
The representations, warranties and covenants contained in this
Agreement shall survive the Closing.
Section 8. Communications. All notices and other
communications provided for hereunder shall be in writing and shall only
be effective upon receipt addressed to the Company as follows:
Proffitt's, Inc.
115 North Calderwood
Alcoa, Tennessee 37703
Attention: Mr. R. Brad Martin
Telecopy: (423) 981-6336
with a copy to:
Brian J. Martin, Esquire
Senior Vice President and General Counsel
3455 Highway 80 West
Jackson, MS 39209
Telecopy: (601) 968-5216
and
James A. Strain, Esquire
Sommer & Barnard
4000 Bank One Tower
Indianapolis, Indiana 46204-5140
Telecopy: (317) 236-9802
and to Holder as follows:
Apollo Specialty Retail Partners, L.P.
c/o Apollo Advisors, L.P.
Two Manhattanville Road
Purchase, N.Y. 10577
Attention: Mr. Michael Gross
Telecopy: (914) 694-8032<PAGE>
<PAGE>7
with a copy to:
Lion Advisers, L.P.
1301 Avenue of the Americas
New York, N.Y. 10019
Attention: Mr. Josh Harris
Telecopy: (212) 459-3300
and
Thomas E. Molner, Esquire
Kramer, Levin, Naftalis, Nessen, Kamin & Frankel
919 Third Avenue
New York, N.Y. 10022-3852
Telecopy: (212) 715-8000.
Section 9. Miscellaneous. (i) This Agreement shall be
governed by the internal laws of the State of Tennessee. Each of the
parties hereto agrees to submit to the jurisdiction of the federal or
state courts located in the County of New York, State of New York in any
action or proceeding arising out of or relating to this Agreement.
(ii) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
(iii) Without the express written consent of the Company,
neither Holder's Series A Preferred Stock, nor the rights of Holder
hereunder may be assigned or transferred (except for a bona fide pledge
or hypothecation) to any other person prior to Closing other than to one
or more Apollo Related Accounts, as such term is defined in Article I of
the Securities Purchase Agreement, which Account or Accounts shall agree
to the extent required hereunder to convert all such Series A Preferred
Stock and otherwise to be bound hereunder as Holder and to provide the
Company with representations, warranties and covenants substantially
equivalent to those provided by Holder hereunder.
/next page is signature page/
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers, as of the date
first above written.
PROFFITT'S, INC.
By: /s/ Brian J. Martin
______________________
Brian J. Martin
Senior Vice President
APOLLO SPECIALTY RETAIL PARTNERS, L.P.
By: AIF II, L.P., its General Partner
By: Apollo Advisors, L.P.,
its Managing Partner
By: Apollo Capital Management, Inc.,
its General Partner
By: /s/ Michael D. Weiner
_______________________
Name: Michael D. Weiner
Title: Vice President
