Registration No. 333-09043
___________________________________________________________________________
___________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PROFFITT'S, INC.
(Exact Name of Registrant as Specified in its Charter)
Tennessee 62-0331040 5311
(State or other Jurisdiction (IRS Employer (Primary Standard
Incorporation or Identification Classification
Organization) Number) Code Number)
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Post Office Box 9388
Alcoa, Tennessee 37701
(423) 983-7000
(Address, including zip code, and telephone number, including area code
of Registrant's Principal Executive Office)
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R. Brad Martin
5810 Shelby Oaks Drive
Memphis, Tennessee 38134
(901) 372-4300
(Name, Address, including zip code, and telephone number,
including area code of Agent for Service)
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Copies to: Brian J. Martin, Esq. James A. Strain
Proffitt's, Inc. Sommer & Barnard
3455 Highway 80 West 4000 Bank One Tower
Jackson, Mississippi 39209 111 Monument Circle
(601) 968-5215 Indianapolis, Indiana 46204
(317) 630-4000
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Approximate date of commencement of proposed sale of the securities to
the public: as soon as practicable after the effective date of the
Registration Statement.
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The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a) may determine.
___________________________________________________________________________
___________________________________________________________________________
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
SUBJECT TO COMPLETION
DATED October 25, 1996
PROFFITT'S, INC.
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COMMON STOCK
405,833 SHARES
This Prospectus relates to up to 405,833 shares (the "Option Shares")
of the common stock, $0.10 par value share (the "Common Stock") of Proffitt's,
Inc., a Tennessee corporation (the "Company") issuable upon exercise of
certain outstanding options (the "Options") granted pursuant to the Parisian,
Inc. Management Incentive Plan (the "Incentive Plan") or the Parisian, Inc.
Stock Option Plan for Officers (the "Stock Option Plan" and collectively with
the Incentive Plan, the "Plans").
The Options originally represented rights to purchase common shares of
Parisian, Inc., an Alabama corporation ("Parisian"). Effective October 11,
1996, Casablanca Merger Corp., a wholly owned subsidiary of the Company,
merged with and into Parisian (the "Merger"), with the result that Parisian
became a wholly owned subsidiary of the Company. In connection with the
Merger, each outstanding Option was converted into an option to purchase a
number of shares of Common Stock equal to the number of Parisian common
shares that could have been purchased under such Option multiplied by .8, at
a price per share of Common Stock equal to the per share exercise price
specified in the Option divided by .8. The Options are otherwise subject to
the same terms and conditions as before the Merger.
The Common Stock is listed for trading on the Nasdaq Stock Market
under the symbol "PRFT." On October 24, 1996 the last reported sale price for
the Common Stock was $39.00.
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 _________________, 1996.
No persons have been authorized to give any information or to make any
representation other than those contained or incorporated by reference in
this Prospectus in connection with the offering of securities made hereby
and, if given or made, such information or representation must not be relied
upon as having been authorized by Proffitt's. This Prospectus does not
constitute an offer to sell, or a solicitation of an offer to buy, any
securities in any jurisdiction to or from any person to whom it is not lawful
to make any such offer in such jurisdiction. Neither the delivery of this
Prospectus nor any distribution of securities made hereunder shall, under any
circumstances, create an implication that there has been no change in the
affairs of Proffitt's since the date hereof or that the information herein is
correct as of any time subsequent to its date.
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . . . .2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. . . . . . . . . . . . . .3
SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
USE OF PROCEEDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
INFORMATION ABOUT THE PLANS. . . . . . . . . . . . . . . . . . . . . . . .8
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . 10
LEGAL OPINIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
EXPERTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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"). The reports,
proxy statements and other information filed by the Company with the
Commission 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 should be available at the following Regional
Offices of the Commission: Northeast Regional Office, 7 World Trade Center,
13th Floor, New York, New York 10048; and Midwest Regional Office, CitiCorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies
of such material can also be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, the Commission maintains a Web site
(http://www.sec.gov) that contains information regarding registrants that
file electronically with the Commission.
The Company has filed with the Commission a Registration Statement on
Form S-4 (together with any amendments thereto, the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Option Shares. This Prospectus does not contain all the
information set forth in the Registration Statement and the exhibits thereto.
Such additional information may be obtained from the Commission's principal
office in Washington, D.C. Statements contained in this Prospectus or in any
document incorporated in this Prospectus by reference as to the contents of
any contract or other document referred to herein or therein are not
necessarily complete, and in each instance reference is made to the copy of
such contract or other document filed as an exhibit to the Registration
Statement or such other document, each such statement being qualified in all
respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company
(Commission File No. 0-15907) pursuant to the Exchange Act or the Securities
Act are incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
February 3, 1996, and Amendment No. 1 thereto dated May 1, 1996;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
May 4, 1996 and August 3, 1996;
3. The Company's Current Reports on Form 8-K filed with the Commission
on February 16, 1996, April 1, 1996, July 18, 1996, August 12,
1996, August 30, 1996 and October 25, 1996, respectively;
4. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated May 27, 1987
and the Company's Registration Statement on Form S-3 dated October
19, 1993 (Registration No. 33-70000);
5. The Company's Registration Statement on Form 8-A dated April 3,
1995 in respect of the Company's Share Purchase Rights Plan.
6. Information under the Caption "Unaudited Pro Forma Condensed
Combined Financial Statements" and the Consolidated Financial
Statements of Parisian, Inc. included in the Company's prospectus
dated August 16, 1996, included in the Registration Statement.
All documents and reports filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus shall be deemed to be incorporated by reference in this Prospectus
and to be a part hereof from the dates of filing of such documents or
reports. Any statement contained in a document 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 deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such document so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
This Prospectus incorporates documents by reference which are not
presented herein or delivered herewith. Such documents (other than exhibits
to such documents unless such exhibits are specifically incorporated by
reference) are available, without charge, to any person, including any
beneficial owner, to whom this Prospectus is delivered, on written or oral
request, within one business day of such request, to Proffitt's, Inc., P.O.
Box 9388, Alcoa, Tennessee 37701 (telephone number: (423) 983-7000),
attention: Investor Relations.
SUMMARY
THE COMPANY
The Company is a leading regional specialty department store company
offering a wide selection of fashion apparel, accessories, cosmetics, and
decorative home furnishings, featuring assortments of premier brands and
unique specialty merchandise. The Company's stores are primarily anchor
stores in leading regional malls. The Company's principal executive offices
are located at 115 North Calderwood, Alcoa, Tennessee 37701, and its
telephone number is (423) 983-7000.
THE OPTIONS
The Options originally represented rights to purchase common shares of
Parisian. As a result of the Merger, each outstanding Option was converted
into an option to purchase a number of shares of Common Stock equal to the
number of Parisian common shares that could have been purchased under such
Option multiplied by .8, at a price per share of Common Stock equal to the
per share exercise price specified in the Option, divided by .8. The Options
are otherwise subject to the same terms and conditions as before the Merger.
THE PLANS
THE INCENTIVE PLAN. The Incentive Plan is intended to enable Parisian
to attract and retain qualified management personnel. Eligible participants
include persons designated as "Managers" by the Board of Directors of
Parisian who have not previously served as officers of Parisian. The
exercise price per share of Common Stock of the Options granted pursuant to
the Incentive Plan is $22.50 or $25.50, depending on whether the specified
exercise price per Parisian common share in the Option is $18.00 or $20.40,
respectively. See "Information About the Plans."
THE STOCK OPTION PLAN. The Stock Option Plan is intended to enable
Parisian to attract and retain qualified executives. Participants include
persons holding the office of Vice President or higher of Parisian. The
exercise price per share of Common Stock is also $22.50 or $25.50, again
depending on whether the specified exercise price per Parisian common share
in the Option is $18.00 or $20.40, respectively. See "Information About the
Plans."
<TABLE>
SELECTED FINANCIAL AND OPERATING DATA (1)
The selected financial and operating data below should be read in conjunction with the Consolidated Financial
Statements and Notes thereto of the Company and with Management's Discussion and Analysis of Financial Condition and Results
of Operations incorporated by reference in this Prospectus. The selected financial and operating data as of and for the
six months ended July 29, 1995 and August 3, 1996 are derived from unaudited financial statements as of such dates and for
such periods, but in the opinion of management, include all adjustments (consisting of only normal recurring accruals)
necessary for a fair presentation of such data.
<CAPTION> Six Months
Fiscal Year Ended (2) Ended (3)
February January January January February July August
1, 1992 30, 1993 29, 1994 28, 1995 3, 1996 29, 1995 3, 1996
(Dollars in thousands, except per share amounts)
<S> <C> <C> <C> <C> <C> <C> <C>
Statement of Income Data:
Net Sales (4) . . . . . . . . $435,284 $601,677 $798,779 $1,216,498 $1,333,498 $565,923 $568,277
Costs and expenses:
Cost of sales . . . . . . . 273,040 362,620 520,987 795,353 873,218 365,492 366,624
Selling, general and
administrative expenses . . 112,793 158,920 192,028 284,748 324,650 142,885 141,485
Other operating expenses. . 34,934 44,016 66,617 97,821 105,021 49,415 48,081
Expenses related to hostile
takeover defense (5). . . . 3,182 1,912
Impairment of long-lived
assets (6). . . . . . . . . 19,121
Merger, restructuring and
integration costs (7) . . . 20,822 4,270
Gain on sale of assets (8). (2,260)
Operating income (loss) . . 14,517 36,121 19,147 38,576 (12,516) 6,219 10,077
Other income (expense):
Finance charge income, net of
allocation to purchasers of
accounts receivable (9) . . 15,194 15,401 19,312 27,934 31,273 15,342 14,879
Interest expense. . . . . . (15,102)(10) (9,445) (9,245) (20,781) (26,098) (12,576) (8,608)
Other income (expense), net 1,817 (380)(11) 2,923 3,865 2,848 1,372 440
Income (loss) before provision
for income taxes, extraordinary
loss and cumulative effect of
accounting changes. . . . . 16,426 41,697 32,137 49,594 (4,493) 10,357 16,788
Provision for income taxes. . 7,045 15,567 12,892 19,850 1,906 4,230 6,995
Income (loss) before extraordinary
loss and cumulative effect of
accounting changes ... 9,381 26,130 19,245 29,744 (6,399) 6,127 9,793
Extraordinary loss on extinguishment
of debt (net of tax). . . . (1,088) (2,060)
Cumulative effect of accounting
changes (net of tax) (12) . (1,794) 1,904
Net income (loss) . . . . . 9,381 24,336 20,061 29,744 (8,459) 6,127 9,793
Preferred stock dividends . . 1,694 1,950 975 796
Payment for early conversion of
Preferred Stock . . . . . . 3,032
Net income (loss) available to
common shares . . . . . . . $9,381 $24,336 $20,061 $28,050 $(10,409) $5,152 $5,965
Earnings (loss) per common share
before extraordinary loss and
cumulative effect of accounting
changes . . . . . . . . . . $1.07 $2.06 $1.09 $1.48 $(0.43) $0.27 $0.30
Extraordinary loss. . . . . . (0.06) (0.11)
Cumulative effect of accounting
changes . . . . . . . . . . (0.14) 0.11
Earnings (loss) per common
share $1.07 $1.92 $1.14 $1.48 $(0.54) $0.27 $0.30
Weighted average common shares
outstanding (in thousands)(13) . . 8,788 12,707 17,667 18,922 19,372 19,316 29,186
Balance Sheet Data:
Working capital . . . . . . . $126,026 $180,091 $286,351 $283,162 $212,122 $204,467
Total assets. . . . . . . . $274,441 $455,295 $575,449 $878,393 $835,666 $827,186
Senior long-term debt, less
current portion . . . . . . $106,066 $193,555 $ 95,777 $190,216 $134,255 $120,822
Subordinated debt . . . . . . $86,250 $100,269 $100,505 $100,634
Shareholders' equity. . . . . $101,229 $143,107 $290,309 $360,611 $356,852 $365,120
Notes to Selected Financial and Operating Data (In Thousands)
(1) Effective February 3, 1996, the Company combined its business with Younkers, Inc., a publicly-owned retail
department store chain. The combination was structured as a tax-free transaction and has been accounted for as
a pooling of interests and accordingly, the financial statements were restated for all periods to include the
results of operations and financial position of Younkers. Each share of Younkers, Inc. Common Stock was converted
into ninety eight one-hundredths (.98) shares of the Company Common Stock, with approximately 8,800 shares issued
in the transaction.
(2) The Company's fiscal year ends on the Saturday nearest January 31. Fiscal years presented consisted of 52 weeks
except for the fiscal year ended February 3, 1996 which consisted of 53 weeks (except for the period ended January
30, 1993 which includes 53 weeks for Younkers).
(3) The business of the Company is seasonal, and results for any period within a fiscal year are not necessarily
indicative of the results that may be achieved for a full fiscal year.
(4) Net Sales include leased department sales, which represent sales by retail vendors that lease store space. Leased
department sales accounted for approximately 6 to 7% of net sales for all periods presented.
(5) Expenses incurred were related to the defense of the attempted hostile takeover of Younkers by Carson Pirie Scott
& Co.
(6) The Company adopted the provisions of Statement of Financial Accounting Standards No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of" in the fourth quarter of the year ended
February 3, 1996. As a result of adopting this new accounting standard and as a result of closing certain stores
and warehouses, the Company incurred impairment charges related to the write-down in carrying value of six operating
stores due to poor operating results, abandonment of duplicate warehouse and leasehold improvements related to the
Parks-Belk acquisition and the Younkers merger, and a loss on abandonment of leasehold improvements related to
closed stores.
(7) In connection with the merger of the Company and Younkers, the two companies incurred certain costs to effect the
merger and other costs to restructure and integrate the combined operating companies. The costs incurred were
comprised of merger transaction costs, severance and related benefits, abandonment of duplicate administrative
office space and property and duplicate data processing equipment and software (including leases), and other costs.
During the six-month period ended August 3, 1996, the Company incurred additional merger, restructuring and
integration costs primarily related to the termination of the Younkers pension plan, continued conversion of systems
and consolidation of administrative functions.
(8) During the six-month period ended August 3, 1996, Younkers sold two stores to a third party.
(9) On April 1, 1994, the Company began selling an undivided ownership interest in its accounts receivable, recognizing
no gain or loss on the transaction. The ownership interest which may be transferred to the purchaser is limited
to $175,000 and is further restricted on a basis of the level of eligible receivables and a minimum ownership
interest to be maintained by the Company.
Effective with the February 3, 1996 merger, Younkers replaced amounts borrowed under a securitization program with
the sale of (i) a fixed ownership interest of $75,000 and (ii) a variable ownership interest of up to $50,000 in
its trade receivables.
(10) Includes accruals for interest expense of $1,400 resulting from an Internal Revenue Service audit of Younkers.
(11) Includes nonrecurring start-up costs of $1,210 connected with the acquisition of the Prange stores by Younkers.
(12) Effective as of the beginning of the fiscal year ended January 30, 1993, Younkers recognized a cumulative effect
adjustment of $1,794 (net of income taxes of $1,225) due to the adoption of SFAS 106, under which employers
recognize the cost of retiree health and life insurance benefits over the employees' period of service. Effective
January 31, 1993, the Company changed its method of accounting for inventory to include certain purchasing and
distribution costs. Previously, these costs were charged to expense in the period incurred rather than in the
period in which the merchandise was sold. The cumulative effect of this change was to increase net income $2,273
(net of income taxes of $1,532).
Effective January 31, 1993, the Company also changed its method of accounting for store preopening costs to
expensing such costs when incurred. The cumulative effect of this change was to decrease net income $369 (net of
income taxes of $236). Previously, these costs were amortized over the twelve months immediately following the
individual store openings. Younkers has historically expensed such costs as incurred.
In 1992, the Financial Accounting Standards Board issued Statement of Financial Accounting Standard ("SFAS") No.
109, Accounting for Income Taxes, which requires a change from the deferred method to the asset and liability method
of accounting for income taxes. The Company adopted the new accounting standard effective January 31, 1993.
Adoption of the new standard had no effect on the Company financial position or results of operations. There would
have been no impact on the year ended January 30, 1993 had the standard been applied retroactively. Younkers
adopted SFAS 109 prior to the years presented.
Effective January 30, 1994, the Company changed its method of accounting for inventory to the last-in, first-out
(LIFO) method for a substantial portion of its inventories. Previously, all inventories were valued using the
first-in, first-out (FIFO) method. Younkers has historically valued its inventories under the LIFO method. The
cumulative effect of this change is not presented because it is not determinable.
(13) In January 1992, April 1992, March 1993 and April 1993, the Company and Younkers completed public offerings of
2,645, 6,047, 2,395, and 2,371 shares of Common Stock, respectively, the proceeds of which were utilized, in part,
to reduce long-term debt and fund capital expenditures related to the renovation, acquisition and opening of new
stores.
In October 1993, the Company completed a public offering of $86,250 of Convertible Subordinated Debentures, the
proceeds of which were used to reduce outstanding bank debt, fund capital expenditures related to the renovation
and expansion of stores, and for working capital and general corporate purposes.
</TABLE>
USE OF PROCEEDS
The amount of net proceeds to the Company from the sale of the
Option Shares depends upon the number of Options exercised for
cash, which the Company cannot estimate. The Company will add any
net proceeds received to the Company's working capital and will use
such net proceeds for general corporate purposes.
INFORMATION ABOUT THE PLANS
THE FOLLOWING QUESTIONS AND ANSWERS SUMMARIZE CERTAIN
PROVISIONS OF THE PLANS. The information provided below includes
the material terms of the Plans, but is not necessarily complete
and is qualified in its entirety by reference to the Plans.
WHO IS ELIGIBLE TO PARTICIPATE IN THE PLANS?
Participants in the Incentive Plan include any employee of
Parisian who has been designated a "Manager" by the Board of
Directors of Parisian, or a former manager, who held Options as of
October 11, 1996, and any manager to whom an Option is granted
following forfeiture of an Option by a participant, as described
below.
Participants in the Stock Option Plan include any employee of
Parisian who is the President or an Executive Vice President,
Senior Vice President or Vice President of Parisian or the Company,
or who formerly held one of such offices, and who held Options as
of October 11, 1996, or to whom an Option is granted following
forfeiture of an Option by a participant, as described below.
HOW DO I EXERCISE MY OPTION?
To exercise your Option you must send to the Company: (i) a
written notice specifying (a) the number and the exercise price of
the Options you are exercising, (b) the date of exercise which may
not be earlier than the third business day after the Company
receives your notice, and (c) whether you are exercising by paying
cash for your Common Stock or by cashless exercise (as described
below) and (ii) if you are paying cash, a certified or cashier's
check, payable to the Company, for an amount equal to the aggregate
exercise price for the shares of Common Stock for which you are
exercising your option. If the Company maintains an employee stock
option plan at the time of your exercise which provides for
cashless exercise of employee stock options, you may elect to
exercise your options in accordance with the cashless exercise
provisions of such plan. The Company will issue to you a stock
certificate representing the number of shares of Common Stock you
purchase, and if any balance of shares not exercised remains
subject to your Option, a new Option of like tenor for the balance
of such shares.
You may not exercise your option at any time when exercise is
prohibited by the Company's insider trading policies then in
effect.
WHAT IS THE EXERCISE PRICE OF MY OPTION?
The exercise price of your Option is equal to the per share
exercise price specified in your Option per Parisian common share
divided by .8. You will receive from the Company, in exchange for
your original Option, an option agreement representing your Option
and expressing the exercise price per share of Common Stock.
MAY I SELL OR TRANSFER MY OPTION?
Options granted pursuant to the Incentive Plan may not be
transferred without the written consent of the Administrator. The
"Administrator" shall be the Board of Directors of Parisian or a
committee of such Board designated to act as Administrator by the
Board. Options granted pursuant to the Stock Option Plan may be
transferred only in accordance with the provisions of the Stock
Option Plan discussed in the following paragraph.
An Option granted pursuant to the Stock Option Plan may only be
transferred to the spouse of the participant, his or her lineal
descendants who have attained the age of 21 years, and to certain
trusts whose beneficiaries may include only the participant, his or
her spouse and lineal descendants. The transferee must agree in
writing to be bound by the provisions of the Stock Option Plan. A
written notice of the transfer must be received by the Company ten
(10) days prior to the transfer. An Option holder who is not a
participant may transfer an Option only to the person who
transferred the Option to him or her, and only on the same terms
applicable to a transfer by a participant.
The trust instrument of any trust proposed as a transferee of
an Option must be approved by Parisian. Any modification to the
trust instrument not approved by Parisian will result in ownership
of the Option reverting to the person who transferred the Option to
the trust.
A participant in either of the Plans may designate a
beneficiary who will succeed to ownership of the participant's
Option upon the death of that participant. If no beneficiary is
designated, the beneficiary will be the participant's spouse, or if
none, the participant's estate.
MAY I SELL THE OPTION SHARES I ACQUIRE ON EXERCISE OF MY OPTION?
You may sell the Option Shares you acquire on exercise of your
Option at any time permitted by the Company's insider trading
policies. However, if you are an "affiliate" of the Company within
the meaning of Rule 144 under the Securities Act, your sale of the
Option Shares is subject to the conditions of Rule 144. Generally,
under Rule 144 an affiliate is entitled to sell in "broker's
transactions" a number of shares that does not exceed the greater
of (i) one percent of the number of shares of Common Stock then
outstanding or (ii) the average weekly trading volume in the Common
Stock during the four calendar weeks preceding the required filing
with the Commission of Form 144 with respect to such sale.
IS MY OPTION SUBJECT TO FORFEITURE IN ANY WAY?
Your Option will be forfeited if you have not exercised it in
full and your employment with Parisian is terminated on account of:
(i) proven dishonesty, theft, fraud or embezzlement; (ii) breach
of any fiduciary duty or duty of loyalty to Parisian; (iii)
involvement or participation (whether direct or indirect) in any
business competitive with the Company or Parisian without the prior
written consent of the Administrator; (iv) usurpation of any
business opportunity of the Company or Parisian without the prior
written consent of the Administrator; (v) conviction of a felony
or a crime involving moral turpitude; or (vi) divulgence to a
party unrelated to the Company or Parisian of any material
nonpublic confidential information concerning the Company or
Parisian or their respective businesses or activities. In
addition, any Options held by your designated beneficiary or
permitted transferee will also be forfeited.
Any Option granted under the Incentive Plan and so forfeited
will be granted by the Company to an eligible Manager of Parisian
designated by "Participant Representatives" who will be Parisian's
chief executive officer from time to time, D. Warren Bailey and
Steven B. Corenblum or, if such two individuals are at any time not
participants in the Stock Option Plan their respective successors
elected by the participants in the Stock Option Plan (the
"Participant Representatives"). With respect to forfeited Options
granted under the Stock Option Plan, the Option will be granted pro
rata to the other participants in the Stock Option Plan (not
including the Participant Representatives) provided such grant is
approved by the Board of Directors of Parisian.
WHEN DOES MY OPTION EXPIRE?
If not sooner exercised, your Option will expire in increments
on the fifteenth anniversary of each date on which it became
exercisable with respect to a portion of the shares that could be
purchased thereunder. All Options became fully exercisable on or
before October 11, 1996, and will fully expire not later than
October 10, 2011.
HOW WILL I BE TAXED WITH RESPECT TO MY OPTION?
The Options are not incentive stock options under the Internal
Revenue Code. Generally, if you are the participant to whom the
Option was granted, the exercise of an Option by you will result in
ordinary federal taxable income to you in an amount equal to the
excess of the fair market value of the shares of Common Stock
purchased over the exercise price thereof. A deduction from
federal taxable income will be allowed to the Company in an amount
equal to the amount of ordinary income recognized by you. Upon a
subsequent disposition of your Option Shares, you will recognize a
short-term or long-term capital gain (or loss) equal to the
difference to the amount received and the tax basis of such shares,
usually the fair market value at the time of exercise.
If you are the participant to whom the Option was granted and
you transfer your Option to a permitted transferee in an arms-length
transaction, you will recognize ordinary federal taxable
income equal to the consideration received from your transferee at
the time of the transfer, and thereafter will have no further
income tax effect. If you transfer your Option in a non-arms-length
transaction, you will recognize ordinary federal taxable
income equal to the consideration received at the time of the
transfer and, at the time of exercise by the transferee, in an
amount equal to the excess of the fair market value of the shares
of Common Stock purchased over the exercise price, minus the amount
of income recognized at the time of transfer. Examples of non-arms-length
transactions include gifts to family members and sales
at less than the fair market value of your Option.
If you are a transferee of an Option, you will recognize a
short-term or long-term capital gain (or loss) when you resell your
Option, or when you sell the Option Shares after exercise of your
Option. You will have no income tax effect on exercise of the
Option.
The federal income tax consequences described above are based
on the laws and regulations in effect on the date of this
Prospectus and future changes in those laws and regulations may
affect the tax consequences described. No discussion of state
income tax is included. YOU ARE URGED TO CONSULT WITH YOUR OWN TAX
ADVISER CONCERNING THE TAX CONSEQUENCES OF THE PLANS. NOTHING
CONTAINED IN THE FOREGOING DISCUSSION SHOULD BE CONSTRUED AS
INDIVIDUAL TAX ADVICE TO YOU.
PLAN OF DISTRIBUTION
A copy of this Prospectus will be delivered by the Company to
each holder of an Option as of the date of this Prospectus and to
each holder exercising an Option upon receipt by the Company of a
notice of exercise.
LEGAL OPINIONS
Certain legal matters in connection with the Option Shares will
be passed upon for the Company by Sommer & Barnard, Attorneys at
Law, PC.
EXPERTS
The consolidated financial statements appearing in the
Company's Form 10-K as of February 3, 1996 and January 28, 1995 and
for each of the three years in the period ended February 3, 1996,
have been audited by Coopers & Lybrand L.L.P., independent
accountants, as set forth in their report thereon and included
therein and incorporated by reference herein. Such report, as it
relates to the amounts included for Younkers, Inc., for the years
ended January 28, 1995 and January 29, 1994, is based solely on the
reports of Deloitte & Touche, LLP, and Ernst & Young, LLP,
independent accountants, respectively, included in such Form 10-K
and incorporated herein by reference. Such consolidated financial
statements are incorporated by reference herein in reliance upon
such reports given upon the authority of such firms as experts in
accounting and auditing.
The consolidated financial statements of Parisian as of
February 3, 1996 and January 28, 1995, and for each of the three
years in the period ended February 3, 1996, appearing in the
Registration Statement have been audited by Coopers & Lybrand
L.L.P., independent accountants, as set forth in their report
thereon appearing in the Registration Statement. Such consolidated
financial statements are included in the Registration Statement in
reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The ByLaws of Proffitt's provide that Proffitt's shall indemnify to the
full extent authorized or permitted by the Tennessee Business Corporation Act
any person made, or threatened to be made, a party to any threatened, pending
or completed action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that such person, or
such person's testate or intestate, is or was an officer or director of
Proffitt's or serves or served as an officer or director of any other
enterprise at the request of Proffitt's.
Section 48-18-503 of the Tennessee Business Corporation Act provides for
"mandatory indemnification," unless limited by the charter, by a corporation
against reasonable expenses incurred by a director who is wholly successful,
on the merits or otherwise, in the defense of any proceeding to which the
director was a party by reason of the director being or having been a
director of the corporation. Section 48-18-504 of the Tennessee Business
Corporation Act states that a corporation may, in advance of the final
disposition of a proceeding, reimburse reasonable expenses incurred by a
director who is a party to a proceeding if the director furnishes the
corporation with a written affirmation of the director's good faith belief
that the director has met the standard of conduct required by Section 48-18-502
of the Tennessee Business Corporation Act, that the director 'Will repay
the advance if it is ultimately determined that such director did not meet
the standard of conduct required by Section 48-18-502 of the Tennessee
Business Corporation Act, and that those making the decision to reimburse the
director determine that the facts then known would not preclude
indemnification under the Tennessee Business Corporation Act. Section 48-18-507
of the Tennessee Business Corporation Act provides for mandatory
indemnification, unless limited by the charter, of officers pursuant to the
provisions of Section 48-18-503 of the Tennessee Business Corporation Act
applicable to mandatory indemnification of directors.
Proffitt's ByLaws further provide that Proffitt's may purchase and
maintain insurance on behalf of any person who is or was or has agreed to
become a director or officer of Proffitt's, or is or was serving at the
request of Proffitt's as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person or on such person's
behalf in any such capacity, or arising out of such person's status as such,
whether or not Proffitt's would have the power to indemnify such person
against such liability under the ByLaws, provided that such insurance is
available on acceptable terms as determined by a majority of Proffitt's Board
of Directors.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed as part of this Registration
Statement or incorporated by reference herein:
(2)* Agreement and Plan of Merger, dated as of July 8, 1996, among
Proffitt's, Inc., Casablanca Merger Corp. and Parisian, Inc.
(3)(a) Charter, as amended, of Proffitt's, Inc. (Incorporated by
reference from Exhibits to the Form S-1 Registration Statement
No. 33-13548 dated June 3, 1987)
(3) (b) Articles of Amendment to the Charter of Proffitt's, Inc.
designating the rights, preferences and limitations of its
Series A Cumulative Convertible Exchangeable Preferred Stock
(Incorporated by reference from Exhibits to the Form 8-K dated
April 14, 1994)
(3)(c) Articles of Amendment to the Charter of Proffitt's, Inc.
designating the rights, preferences and limitations of its
Series B Cumulative Junior Perpetual Preferred Stock
(Incorporated by reference from Exhibits to the Form 8-K dated
April 14, 1994)
(3)(d) Articles of Amendment to the Charter of Proffitt's Inc.
designating the rights, preferences and limitations of its
Series C Junior Preferred Stock (Incorporated by reference
from Exhibits to the Form 8-K dated April 3, 1995)
(3)(e) Articles of Amendment to the Charter of Proffitt's Inc.
designating the maximum number of shares of all stock which
the corporation shall have the authority to issue
(Incorporated by reference from Exhibits to the Quarterly
Report on Form IO-Q for the quarterly period ended July 29,
1995)
(3)(f) Articles of Amendment to the Charter of Proffitt's Inc.
designating special meeting of shareholders (Incorporated by
reference from Exhibits to the Quarterly Report on Form IO-Q
for the quarterly period ended July 29, 1995)
(3)(g) Articles of Amendment to the Charter of Proffitt's, Inc.
increasing the number of authorized shares of Series C Junior
Preferred stock (Incorporated by reference from Exhibits to
Form 10-K dated May 1, 1996)
(3)(h) Amended and Restated ByLaws of Proffitt's, Inc. (Incorporated
by reference from Exhibits to the Quarterly Report on Form IO-Q
for the quarterly period ended July 29, 1995)
(4)(a) Form of 7.5% Junior Subordinated Debentures due 2004
(Incorporated by reference from Exhibits to the Form 8-K dated
April 14, 1994)
(4)(b) Form of 4.75% Convertible Subordinated Debentures due 2003
(Incorporated by reference from Exhibits to the Form S-3
Registration Statement No. 33-70000 dated October 19, 1993)
(4)(c) Form of Rights Certificate (Incorporated by reference from
Exhibits to the Form 8K dated April 3, 1995)
(4)(d)* Registration Rights Agreement
(4)(e) Form of Supplemental Indenture among Proffitt's, Inc., and
AmSouth Bank of Alabama, as trustee (Incorporated by reference
from Exhibits to Form S-3 Registration Statement No. 333-09941
dated August 23, 1996)
4(f) First Amendment and Restatement of the Parisian, Inc. Management
Incentive Plan
4(g) Third Amendment and Restatement of the Parisian, Inc. Stock
Option Plan For Officers
(5)* Opinion of Sommer & Barnard, Attorneys at Law, PC
(23)(a) Consent of Coopers & Lybrand L.L.P. (re: Proffitt's)
(23)(b) Consent of Deloitte & Touche LLP
(23)(c) Consent of Ernst & Young LLP
(2 3)(d) Consent of Coopers & Lybrand L.L.P. (re: Parisian)
(23)(e)* Consent of Sommer & Barnard (in Exhibit 5)
(99)* Consent of Lehman Brothers
_________________________________
* Previously filed
(b) No financial statement schedules are required to be filed herewith
pursuant to Item 21(b) or (c) of this Form.
ITEM 22. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; that, for the purpose of determining
any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof;
and 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.
PROVIDED, HOWEVER, That paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) The undersigned Registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof
(3) The undersigned Registrant hereby undertakes to remove from
registration by means of a posteffective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended (and, where
applicable, each filing of an employee benefit plan's annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934, as amended) that is
incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against
public policy expressed in the Securities Act of 1933, as amended, and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such indemnifi-
cation by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
(6) The undersigned Registrant hereby undertakes that: (i) for the
purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective; and (ii) for
the purpose of determining any liability under the Securities Act of 1933,
each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe the it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on it behalf by the Undersigned,
thereunto duly authorized, in the city of Alcoa, State of Tennessee, on the
25th day of October, 1996.
<PAGE>
PROFFITT'S, INC.
By: /s/ R. Brad Martin
R. Brad Martin
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brian J. Martin and Julia A. Bentley, and each
of them, his or her true and lawful attorney-in-fact and agent with full
power of substitution for him or her in his or her name, place and stead, in
any and all capacities to sign any and all amendments (including pre-effective
and post-effective amendments) to this registration statement, and
to file the same with all exhibits thereto and other documents in connection
therewith with the Securities and Exchange Commission, grants unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully as to all intents and purposes as he or she might or could
do in person, and hereby ratifies and confirms all that said attorneys-in-fact
and agents or their or his or her substitute or substitutes may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on October 25, 1996 by the following
persons in the capacities indicated.
/s/ R. Brad Martin Chairman of the Board and
R. Brad Martin Chief Executive Officer
/s/ W. Thomas Gould Vice Chairman of the Board
W. Thomas Gould
/s/ James A. Coggin President
James A. Coggin
/s/ Bernard E. Bernstein Director
Bernard E. Bernstein
/s/ Edmond D. Cicala Director
Edmond D. Cicala
/s/ Ronald de Waal Director
Ronald de Waal
/s/ Gerard K. Donnelly Director
Gerard K. Donnelly
/s/ Donald F. Dunn Director
Donald F. Dunn
/s/ G. David Hurd Director
G. David Hurd
/s/ Michael S. Gross Director
Michael S. Gross
/s/ Richard D. McRae Director
Richard D. McRae
/s/ C. Warren Neel Director
C. Warren Neel
/s/ Harwell W. Proffitt Director
Harwell W. Proffitt
/s/ Gerald Tsai, Jr. Director
Gerald Tsai, Jr.
/s/ Marguerite W. Sallee Director
Marguerite W. Sallee
/s/ Julia A. Bentley Senior Vice President and Secretary
Julia A. Bentley
/s/ Brian W. Bender Executive Vice President, Chief Financial
Brian W. Bender Officer and Treasurer
EXHIBIT INDEX
Exhibit # Document Description Page
4(f) First Amendment and Restatement of the Parisian, Inc. Management
Incentive Plan
4(g) Third Amendment and Restatement of the Parisian, Inc. Stock Option
Plan for Officers
23(a) Consent of Coopers & Lybrand L.L.P. (re: Proffitt's)
23(b) Consent of Deloitte & Touche LLP
23(c) Consent of Ernst & Young LLP
23(d) Consent of Coopers & Lybrand L.L.P. (re: Parisian)
EXHIBIT 4(F)
FIRST AMENDMENT AND RESTATEMENT
OF
THE PARISIAN, INC.
MANAGEMENT INCENTIVE PLAN
TABLE OF CONTENTS
Article Page
1 - INTRODUCTION, PURPOSE AND INTENT . . . . . . . . . . . . . . . . . . 1
2 - DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 - PARTICIPATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4 - CONVERSION AND GRANT OF OPTIONS. . . . . . . . . . . . . . . . . . . 4
5 - FORFEITURE OF OPTIONS. . . . . . . . . . . . . . . . . . . . . . . . 5
6 - EXERCISE OF OPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . 6
7 - TRANSFERS OF SHARES. . . . . . . . . . . . . . . . . . . . . . . . . 9
8 - AMENDMENT AND TERMINATION. . . . . . . . . . . . . . . . . . . . . . 10
9 - BENEFICIARIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10 - ASSIGNABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
11 - ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
FIRST AMENDMENT AND RESTATEMENT
OF
THE PARISIAN, INC.
MANAGEMENT INCENTIVE PLAN
On July 2, 1990, Parisian, Inc., an Alabama corporation (the
"Corporation") adopted the Parisian, Inc. Management Incentive Plan (the
"Plan"). On April 8, 1996, the Corporation, having obtained the consent of
all of the Participant Representatives, amended the Plan.
Pursuant to an Agreement and Plan of Merger, dated July 8, 1996, among
Proffitt's, Inc., a Tennessee corporation ("Proffitt's"), the Corporation and
a wholly-owned subsidiary of Proffitt's (the "Merger Agreement"), said
subsidiary shall merge with and into the Corporation on the date which
includes the "Effective Time" (as that term is defined in the Merger
Agreement). As a result of said merger, the Corporation shall become a
wholly-owned subsidiary of Proffitt's.
Pursuant to Section 4.4 of the Plan as in effect immediately prior to
this First Amendment and Restatement (the "Pre-Merger Plan"), said merger
requires an equitable adjustment of the number and option prices of the
options granted by the Corporation pursuant to this Plan (the "Parisian
Options") so as to preserve their aggregate value. Pursuant to Section 1.5
(d) of the Merger Agreement, Proffitt's is required to assume the Pre-Merger
Plan and the Corporation's obligations thereunder.
Proffitt's and the Corporation have determined that the Pre-Merger Plan
should be amended and restated to reflect the equitable adjustment of number
and option prices of the Parisian Options and that the same does not deprive
any Participant, Beneficiary or Plan Shareholder of any right or benefit
which has accrued under the Pre-Merger Plan as of the Effective Date.
Accordingly, in order to comply with Section 4.4 of the Pre-Merger Plan and
Section 1.5(d) of the Merger Agreement and having obtained the written
consent of all of the Participant Representatives, Proffitt's and the
Corporation, pursuant to the provisions of Article 8 of the Pre-Merger Plan,
hereby amend and restate the Pre-Merger Plan effective as of the Effective
Date.
ARTICLE 1 - INTRODUCTION, PURPOSE AND INTENT
Proffitt's owns all of the issued and outstanding shares of the capital
stock of the Corporation. The Corporation owns and operates a chain of
specialty apparel department stores. In order to conduct and advance its
business effectively, the Corporation must attract and retain qualified
management personnel and provide them with meaningful financial incentives.
Accordingly, Proffitt's and the Corporation have established this Plan to
provide the Managers with long-range financial incentives and shall maintain
and administer this Plan for the exclusive benefit of the Participants and
their Beneficiaries.
ARTICLE 2 - DEFINITIONS
Unless otherwise provided herein, the following terms shall have the
following meanings:
2.1 ADMINISTRATOR. The party determined pursuant to Article 11.
2.2 BENEFICIARY. With respect to a Participant, the party who,
pursuant to Article 9, owns any Options owned by such Participant at the time
of his death.
2.3 BOARD. With respect to Proffitt's or the Corporation, as
applicable, its Board of Directors.
2.4 COMMISSION. The Securities and Exchange Commission.
2.5 CORPORATION. Parisian, Inc., an Alabama corporation.
2.6 DISABILITY. A Participant's physical or mental inability to
perform the normal duties of his employment by the Corporation which
continues for more than 180 consecutive days and which is not attributable to
chronic or excessive use of intoxicants, drugs or narcotics, intentional
self-inflicted injury or self-induced sickness or any felonious act or
enterprise on the part of the Participant. If there is any disagreement
between the Corporation and a Participant as to the Participant's Disability
or as to the date any such Disability began, the same shall be determined by
a physician to be selected by the Administrator who shall make such
determination after an examination of the Participant by such physician. The
Participant shall be available for such an examination at any reasonable
time. The determination of such physician shall be conclusive evidence of
the Disability or non-Disability of the Participant and of the date any such
Disability began. If the Participant fails or refuses to cooperate in such
examination, the determination of the Participant's Disability or
non-Disability and the date any such Disability began shall be made by the
Administrator in its sole discretion.
2.7 EFFECTIVE DATE. The date which includes the "Effective Time" (as
that term is defined in the Merger Agreement).
2.8 MANAGER. An employee of the Corporation who:
(a) has been designated as a Manager in writing by the
Corporation's Board; and
(b) at the time of such designation, has never been an "Officer"
as that term is defined in the Senior Plan.
2.9 OPTION. The right to purchase one Share from Proffitt's for the
Option Price and upon the terms and conditions set forth in this Plan.
2.10 OPTIONHOLDER. The owner of an Option.
2.11 OPTION PRICE. With respect to an Option, the price determined
pursuant to Article 4 for which one Share may be purchased from Proffitt's
upon the exercise of such Option.
2.12 PARISIAN OPTION. An option granted by the Corporation pursuant to
this Plan prior to this First Amendment and Restatement which entitles the
holder thereof to purchase from the Corporation one share of the One Cent
($0.01) par value common stock of the Corporation for the option price and
upon the terms and conditions of the Pre-Merger Plan.
2.13 PARTICIPANT. At any relevant time, a Manager or former Manager who
is a Participant pursuant to Article 3.
2.14 PARTICIPANT REPRESENTATIVES. The individual or individuals who are
the "Participant Representatives" as that term is defined in the Senior Plan;
provided, however, that if there are no such "Participant Representatives",
the Participant Representatives shall be the two Participants who own the
largest number of Options. Any action required or permitted to be taken by
the Participant Representatives hereunder or any consent, approval or notice
required or permitted to be given by the Participant Representatives
hereunder shall be taken or given by a majority of the Participant
Representatives.
2.15 PLAN SHAREHOLDER. An owner of Shares.
2.16 PRE-MERGER PLAN. This Plan as in effect immediately prior to this
Third Amendment and Restatement.
2.17 PROFFITT'S. Proffitt's, Inc., a Tennessee corporation.
2.18 RULE 144. Rule 144 under the Securities Act or any similar
provision then in force promulgated under the Securities Act.
2.19 SECURITIES ACT. The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
2.20 SENIOR PLAN. The Parisian, Inc. Stock Option Plan for Officers.
2.21 SHARES. The shares of the Ten Cent ($0.10) par value common stock
of Proffitt's purchased from Proffitt's pursuant to the terms and conditions
set forth in this Plan and any shares of Stock received upon the conversion
of such shares but excluding any shares of Stock acquired other than pursuant
to this Plan.
2.22 STOCK. All classes of the preferred and common capital stock of
Proffitt's.
ARTICLE 3 - PARTICIPATION
3.1 PARTICIPATION. Any person who, on the Effective Date, was a
Manager or a former Manager of the Corporation and held any Parisian Options
shall be a Participant as of the Effective Date. A Manager who is not a
Participant on the Effective Date shall become a Participant if and when
Options are granted to him pursuant to Article 4.
3.2 TERMINATION OF PARTICIPATION. A Participant shall cease to be a
Participant on the date on which he exercises all Options then owned by him.
ARTICLE 4 - CONVERSION AND GRANT OF OPTIONS
4.1 CONVERSION OF PARISIAN. Pursuant to Section 4.4 of the Pre-Merger
Plan, the Parisian Options are hereby converted into Options in accordance
with the provisions of this Section. As a result of said conversion, the
Parisian Options are hereby cancelled and the owner of such Parisian Options
shall have no further right to purchase from the Corporation any of the
shares of its capital stock but such owners shall receive the number of
Options determined pursuant to the provisions of this Section.
(a) Number of Options. The Parisian Options held by each owner of
Parisian Options are hereby converted into a number of Options
equal to 80% of the number of such Parisian Options; provided,
however, that if an owner of Parisian Options would receive a
fractional Option, then, as determined by the Participant
Representatives in their sole discretion, such owner shall
receive the next lowest or next highest whole number of
Options; provided, further, however, that the total number of
Options received by all such owners shall equal 80% of the
number of Parisian Options held by them.
(b) Option Price. If the option price of the Parisian Option from
which an Option is hereby converted was $18.00, the Option
Price of such Option shall be $22.50. If the option price of
the Parisian Option from which an Option is converted was
$20.40, the Option Price of such Option shall be $25.50.
(c) Agreements. Upon its receipt of a certificate evidencing
Parisian Options, Proffitt's shall execute and deliver to the
holder of such Parisian Options an agreement evidencing his
ownership of the Options into which said Parisian Options have
been converted and reflecting the Option Prices of such
Options.
4.2 FULL VESTING OF OPTIONS. All of the Options are and, unless and
until forfeited in accordance with the provisions of Article 5, shall remain
fully vested.
4.3 GRANT OF FORFEITED OPTIONS. In the event any Options are forfeited
pursuant to Article 5, then, on the third business day following its receipt
of written notice from a majority of the Participant Representatives,
Proffitt's shall grant to each Manager named in such notice the number of
such Options specified therein. The Option Price of each Option granted
pursuant to any such notice shall be $22.50.
4.4 ADJUSTMENTS. If, at any time prior to the termination of this
Plan, there is an increase or decrease or other change in the shares of Stock
by reason of stock dividends (or payment of a dividend consisting of money or
other property to the extent the recipient thereof immediately reinvests such
dividend in Proffitt's and receives from Proffitt's in exchange therefor
additional shares of Stock), split-ups, recapitalizations, combinations,
conversions, exchanges of shares or the like, then, as of the date of such
increase, decrease or other change, there shall be an equitable adjustment of
the number and Option Prices of the Options then owned by the Participants
and Beneficiaries so as to preserve the aggregate value of such Options
determined as of such date.
4.5 EVIDENCE OF OPTIONS. All Options shall be evidenced by an
agreement reflecting the name of the owner of such Options and the number and
Option Price of such Options and bearing a conspicuous notice of (a) the
restrictions imposed by this Plan on the exercise and transferability of such
Options and the transferability of the Shares purchased pursuant to such
exercise and (b) such other matters relating to the Options, the Shares and
this Plan as the Administrator shall deem appropriate.
ARTICLE 5 - FORFEITURE OF OPTIONS
5.1 EFFECT OF FORFEITURES. On the date any Options are forfeited
pursuant to the following provisions of this Article, the rights of the
Participant or Beneficiary then owning such Options shall be terminated and,
thereafter, such Options shall be granted to the Participants pursuant to the
provisions of Section 4.3.
5.2 FORFEITURES UPON TERMINATION FOR CERTAIN CAUSES. If a
Participant's employment with the Corporation is terminated by the
Corporation on account of the Participant's:
(a) proven dishonesty, theft, fraud or embezzlement;
(b) breach of any fiduciary duty or duty of loyalty to the
Corporation;
(c) involvement or participation (whether direct or indirect) in
any business competitive with that of the Corporation or
Proffitt's without the Administrator's prior written consent;
(d) usurpation of any business opportunity of the Corporation or
Proffitt's without the Administrator's prior written consent;
(e) conviction of a felony or a crime involving moral turpitude;
or
(f) divulgence to a party unrelated to the Corporation or
Proffitt's of any material non-public confidential information
concerning the Corporation or Proffitt's or their businesses
or activities, then, on the effective date of such termination,
all Options then owned by him or his Beneficiary shall be
forfeited.
5.3 FORFEITURES FOR CERTAIN CAUSES AFTER TERMINATION. If, during the
120 day period following the effective date of the termination of a
Participant's employment with the Corporation, the Administrator shall
determine that, prior to the effective date of such termination, such
Participant engaged in any conduct described in Section 5.2, then, as of the
date of such determination, all Options then owned by him or his Beneficiary
shall be forfeited.
5.4 FORFEITURES AFTER FIFTEEN YEARS. If not previously forfeited
pursuant to the foregoing provisions of this Section, each Option shall be
forfeited on the fifteenth anniversary of the date on which the Parisian
Option from which such Option was converted pursuant to Section 4.1 became a
"Vested Option" (as that term is defined in the Pre-Merger Plan).
ARTICLE 6 - EXERCISE OF OPTIONS
6.1 RIGHT TO EXCERISE. Subject to Section 6.5, each Participant shall
be entitled to exercise any or all of his Options at any time.
6.2 METHOD OF EXERCISE. A Participant may elect to exercise his
Options only by written notice (the "Exercise Notice") to Proffitt's. In
order to be effective, such Exercise Notice must:
(a) specify the number and Option Prices of the Options to be
exercised;
(b) be received by Proffitt's prior to the date such Options are
forfeited;
(c) be accompanied by the certificate evidencing such
Participant's ownership of such Options;
(d) specify the date on which such Options are to be exercised
which shall not be earlier than the third business day
following Proffitt's receipt of such Exercise Notice; and
(e) specify whether such Participant shall exercise such Options
(1) by paying their aggregate Option Price pursuant to Section
6.3 or (2) pursuant to the cashless exercise program referred
to in Section 6.4.
6.3 PAYMENT FOR SHARES. If a Participant's Exercise Notice specifies
that such Participant shall exercise the Options which are the subject of
such Exercise Notice pursuant to this Section 6.3, then, on the date
determined pursuant to Section 6.2(d):
(a) the Participant shall deliver to Proffitt's:
(i) a certified or cashier's check, made payable to the order
of Proffitt's, in an amount equal to the aggregate Option
Price of the Options which are the subject of such
Exercise Notice; and
(ii) if the same shall be requested by Proffitt's in order for
Proffitt's issuance of Shares pursuant to the exercise of
such Options to satisfy one or more exemptions from the
registration requirements of the Securities Act, a
certificate pursuant to which such Participant shall (A)
represent that he is exercising such Options and
acquiring the Shares issued upon such exercise for
investment purposes only for his own account and not with
a view to the distribution thereof and (B) acknowledge
that such Shares have not been registered under the
Securities Act and may not be resold or otherwise
transferred in the absence of an effective registration
statement under the Securities Act or an opinion of
counsel satisfactory to the Corporation that such
registration is not required; and
(b) Proffitt's shall deliver to such Participant:
(i) a stock certificate evidencing his ownership of a number
of Shares equal to the number of such Options exercised
pursuant to such Exercise Notice and bearing a
conspicuous notice of the restrictions on the
transferability of such Shares which may be required by
the applicable provisions of the Securities Act and those
which are imposed by Article 7; and
(ii) to the extent necessary, a certificate evidencing his
ownership of any Options not exercised pursuant to such
Exercise Notice.
6.4 CASHLESS EXERCISE. If a Participant's Exercise Notice specifies
that such Participant shall exercise the Options which are the subject of
such Exercise Notice pursuant to this Section 6.4, then such Participant
shall exercise such Options in accordance with the applicable provisions of
the cashless exercise program then maintained by Proffitt's in connection
with any stock option plan then available to employees of Proffitt's.
6.5 RESTRICTION ON EXERCISE OF OPTIONS. Notwithstanding anything to
the contrary contained herein, a Participant may not exercise any of his
Options unless entitled to do so pursuant to this Section.
(a) Registration. A Participant shall be entitled to exercise his
Options if, on the date of his Exercise Notice, the Shares to
be issued upon such exercise are the subject of an effective
registration statement under the Securities Act.
(b) Exemption. If, on the date of a Participant's Exercise Notice,
the Shares to be issued upon such exercise are not the subject
of an effective registration statement under the Securities
Act, he shall be entitled to exercise his Options only if an
exemption from such registration is available. For purposes
of this Article, the availability of such an exemption shall
be determined in the manner set forth in this Section 6.5(b).
(i) Upon request by such Participant, Proffitt's shall seek
an opinion of counsel of recognized standing in
securities law as to whether such an exemption is
available. If, in the opinion of such counsel, such an
exemption is available, the Participant shall be entitled
to exercise such Options on such date, not later than the
tenth day following the date of such opinion, as
Proffitt's and such Participant shall agree.
(ii) If, in the opinion of such counsel, such an exemption
is not available, the Participant may seek an opinion
of another counsel of recognized standing in securities
law (which counsel shall be reasonably satisfactory to
Proffitt's) as to whether such an exemption is
available. If, in the opinion of such other counsel
(the "Participant's Counsel"), such an exemption is not
available, the Participant shall not be entitled to
exercise such Options until the date the Shares to be
issued upon such exercise are the subject of an
effective registration statement under the Securities
Act.
(iii) If, in the opinion of the Participant's Counsel, such
an exemption is available, then, promptly upon its
receipt of such opinion, Proffitt's shall:
(A) request the Participant Representatives to
determine whether or not Proffitt's should seek a
no-action letter from the Commission as to whether
such an exemption is available; and
(B) reimburse the Participant for the cost of
obtaining such opinion.
(iv) If a majority of the Participant Representatives
determine that Proffitt's should not seek such
no-action letter, the Participant shall be entitled to
exercise such Options on such date, not later than the
tenth day following the date of such determination, as
Proffitt's and such Participant shall agree.
(v) If a majority of the Participant Representatives
determine that Proffitt's should seek such no-action
letter, Proffitt's shall use its reasonable good faith
efforts to seek such no-action letter.
(vi) If such no-action letter indicates that such an
exemption is not available, the Participant shall not
be entitled to exercise such Options until the date the
Shares to be issued upon such exercise are the subject
of an effective registration statement under the
Securities Act.
(vii) If such no-action letter indicates that such an
exemption is available, the Participant shall exercise
such Options on such date, not later than the tenth
day following the date of such no-action letter, as
Proffitt's and such Participant shall agree.
(c) Insider Trading. A Participant shall not be entitled to
exercise his Options in any manner or at any time which is
prohibited by Proffitt's insider trading policies then in
effect.
ARTICLE 7 - TRANSFERS OF SHARES
7.1 REGISTRATION. As soon as reasonably practical following the
Effective Date but in no event later than the tenth (10th) day following the
Effective Date, Proffitt's shall take such action and file such documents
with the Commission as may be necessary to cause the Shares to be the subject
of an effective registration statement under the Securities Act.
7.2 GENERAL RESTRICTIONS. No Plan Shareholder may sell, transfer,
assign, convey or otherwise dispose of or alienate any of his Shares or any
right, or interest therein (whether voluntarily, by operation of law, by gift
or otherwise) or enter into any contract or agreement or grant any option
with respect to the sale, transfer, assignment, conveyance or other
disposition of his Shares or any right or interest therein, unless such sale,
transfer, assignment, conveyance or other disposition is:
(a) required or permitted by this Plan;
(b) made in compliance with Proffitt's insider trading policies in
effect;
(c) made pursuant to (i) an effective registration statement under
the Securities Act or (ii) an exemption from registration
under the Securities Act; and
(d) made in compliance with applicable federal and state
securities laws;
provided, however, that if the Plan Shareholder is an "affiliate" (within the
meaning of the Securities Act) of Proffitt's or his Shares were issued by
Proffitt's pursuant to Section 6.5(b), he may not sell, transfer, assign,
convey or otherwise dispose of his Shares pursuant to Section 7.2(b)(ii)
prior to the tenth (10th) day following Proffitt's receipt of an opinion of
counsel (which opinion and counsel shall be reasonably satisfactory to the
corporation) or a no-action letter from the Commission to the effect that
such exemption is available.
Any purported transfer of Shares in violation of this Section shall be void
and ineffective and shall not operate to transfer any interest in or title to
such Shares to the purported transferee and Proffitt's shall not record any
such purported transfer in its transfer records.
7.3 PUBLIC SALES. A Plan Shareholder may sell all or any number of his
Shares on any date if:
(a) such sale is made pursuant to Rule 144 (provided that such
transfer complies with paragraph (f) of such Rule) or
otherwise on a national securities exchange or in the
over-the-counter market; and
(b) on such date, such sale is permitted under Section 7.2.
ARTICLE 8 - AMENDMENT AND TERMINATION
8.1 REQUIRED CONSENT. This Plan cannot be amended or terminated
without the consent of a majority of the Participant Representatives.
8.2 EFFECTIVE DATE. No amendment or termination of the Plan shall be
effective as of any date prior to the date on which Proffitt's obtains the
consent required by this Article.
8.3 RESTRICTIONS ON AMENDMENTS. Notwithstanding anything to the
contrary contained herein, no amendment to this Plan shall deprive any
Participant, Beneficiary or Plan Shareholder of any right or benefit which
had accrued prior to the effective date of such amendment. Without limiting
the generality of the foregoing, no such amendment shall cause any Option to
be forfeited, adversely affect the right of a Participant or Beneficiary to
exercise any Option or adversely affect any Plan Shareholder's right to sell
any Shares in accordance with the provisions of Article 7.
8.4 EFFECT OF TERMINATION. In the event Proffitt's terminates this
Plan in accordance with the provisions of this Article:
(a) none of the Options forfeited pursuant to Article 5 after such
effective date shall be granted to any Participant pursuant to
this Plan; and
(b) the rights of the Participants, Beneficiaries and Plan
Shareholders hereunder (including, without limitation, their
rights to exercise Options pursuant to Article 6 and to sell
Shares pursuant to Article 7) shall survive such termination.
ARTICLE 9 - BENEFICIARIES
Upon becoming eligible to participate in this Plan, each Participant,
pursuant to a written instrument delivered to the Administrator, shall
designate a Beneficiary who shall own any Options owned by such Participant
at the time of his death and who shall be entitled to exercise any of such
Options. Such designation may be changed by the Participant from time to
time by written notice to the Administrator. In the event a Participant does
not designate a Beneficiary or a Beneficiary designated by a Participant
predeceases such Participant and no new Beneficiary has been designated, then
such Participant's Beneficiary shall be his surviving spouse, if any, or if
none, his estate.
Upon a Beneficiary's receipt of any Options pursuant to this Article,
the provisions of this Article shall apply to such Beneficiary and such
Options as if such Beneficiary was a Participant.
ARTICLE 10 - ASSIGNABILITY
No Participant or Beneficiary shall alienate, sell, transfer, assign,
pledge or otherwise encumber any interest in this Plan or any Option granted
to him pursuant to this Plan without the prior written consent of the
Administrator. Any attempt by a Participant or Beneficiary to alienate,
sell, transfer, assign, pledge or encumber any such interest or Option in
contravention of this Article shall be ineffective.
ARTICLE 11 - ADMINISTRATION
11.1 ADMINISTRATOR. The Administrator shall be the Corporation's Board
or, as designated by it in writing, the Executive Committee or any other
committee of said Board.
11.2 ADMINISTRATION. The Administrator shall administer the Plan and
shall have all powers necessary or appropriate to enable it to carry out its
duties including, without limitation, the power to interpret the Plan, to
decide all issues arising under the Plan, to make, establish and change rules
and procedures with respect to the operation of the Plan, and all other
powers conferred upon it herein. The Administrator shall have the authority
to decide all questions relating to eligibility, participation, vesting and
forfeitures. The Administrator may rely and act on any information provided
by Proffitt's and the Corporation without further inquiry or liability.
11.3 EXCULPTION AND INDEMNIFICATION. No Participant Representative,
officer of Proffitt's or Corporation or member of either Board shall be
responsible or liable for any mistake or error of judgment in connection with
their responsibilities, obligations or duties with respect to this Plan.
Proffitt's shall indemnify each Participant Representative, officer of
Proffitt's or the Corporation and member of either Board to the full extent
of any liabilities, expenses, penalties, damages or other pecuniary loss,
including attorney's fees, which he may suffer as a result of his
responsibilities, obligations or duties in connection with this Plan. Such
indemnification shall be paid by Proffitt's to the extent that liability
insurance is not available to cover the payment of such items. Proffitt's
may purchase and maintain such insurance on behalf of such individuals.
11.4 REPORTS TO PARTICIPANTS. The Administrator shall, from time to
time in its sole discretion, but at least annually, notify each Participant
of the number and Option Prices of the Options then owned by him and such
other information as the Administrator, in its sole discretion, deems to be
reasonable under the circumstances. No Participant shall be entitled to
receive or review any information or data with regard to the number or Option
Prices of Options owned by any other Participant. Such information shall
only be disclosed to Participants to the extent the Administrator deems it to
be appropriate and in the best interest of Proffitt's and the Corporation.
ARTICLE 12 - MISCELLANEOUS
12.1 NO RIGHT TO EMPLOYMENT. Nothing contained herein shall give any
Manager the right to be employed by Proffitt's or the Corporation, nor shall
this Plan interfere with the right of Proffitt's or the Corporation to
discharge any Manager at any time, to change the duties of any Manager at any
time or to change the title or position of any Participant at any time.
12.2 GRANT OF OPTIONS TO OTHERS. If the Administrator shall determine
that Options are to be granted hereunder to any person who is incapable or
unable to care for his affairs due to minority or any other incapacity,
whether or not such incapacity has been judicially determined, then, in the
discretion of the Administrator, all or any number of such Options may be
granted to and, pursuant to the provisions of this Plan, exercised by his
spouse, a relative of such person, an institution maintaining or having
custody of such person or any person deemed by the Administrator to be a
proper party for such purpose. Alternatively, the Administrator may, in its
discretion, delay the grant of such Options until a legal representative is
appointed for such person. Any grant of options made pursuant to this
Section shall constitute a complete discharge of the liabilities of the
Administrator, Proffitt's and the Corporation to such person hereunder.
12.3 SUBORDINATION OF RIGHTS. If, and only to the extent that, a majority of
the Participant Representatives and a majority of the members of the
Corporation's Board deem such subordination to be in Proffitt's or the
Corporation's best interests, the rights of each Participant, Beneficiary and
Plan Shareholder hereunder shall be subordinate to the provisions of any loan
agreement, note, bond, indenture, debenture, capitalized lease or other
evidence of Proffitt's or the Corporation's indebtedness.
12.4 GOVERNING LAW. This Plan shall be construed according to the laws of
the State of Alabama.
12.5 NUMBER AND GENDER. Whenever the context so requires, the singular
number shall include the plural and the plural shall include the singular and
the gender of any pronoun shall include the other genders.
12.6 NOTICE. Any notice required or permitted to be given hereunder shall be
in writing and signed by the party making the same and shall specify the
Section hereof pursuant to which it is given. Any such notice shall be
deemed given (i) on the date delivered, if delivered in person and (ii) on
the fifth business day after mailing, if mailed. Any such notice shall be
mailed registered or certified first class mail, return receipt requested
(with postage and other fees prepaid) as follows:
If to Proffitt's, to: Proffitt's, Inc.
115 North Calderwood
Alcoa, Tennessee 37701
Attention: Senior V.P. of
Investor Relations
If to the Corporation, to: Parisian, Inc.
750 Lakeshore Parkway
Birmingham, Alabama 35211
Attention: President
If to the Administrator, to: Parisian, Inc.
750 Lakeshore Parkway
Birmingham, Alabama 35211
Attention: Administrator, Parisian, Inc.
Management Incentive Plan
and, if to a Participant, Beneficiary or Plan Shareholder, to such
Participant's, Beneficiary's or Plan Shareholder's last known residence or
office address appearing in the Corporation's employment or other records.
If any such notice is given to Proffitt's, the Corporation or the
Administrator, a copy thereof shall be given to:
(a) Donald E. Hess (or such other person who is then the President of the
Corporation) at the address of the Corporation set forth above; and
(b) D. Warren Bailey and Steven B. Corenblum at the address of the
Corporation set forth above (or if either of them ceases to be an "Officer,"
as that term is defined in the Senior Plan, at his last known residence
address); provided, however, that if either of said individuals ceases to be
a Participant Representative, such notice shall not be given to him but shall
instead be given to the individual who succeeds him as a Participant
Representative at the address of the Corporation set forth above.
12.7 SEVERABILITY. The invalidity of this Plan with respect to one or more
persons shall not affect the rights and obligations of any other person
hereunder in any manner whatsoever. The invalidity of one or more provisions
of this Plan shall not affect the validity of any other provision of this
Plan in any manner whatsoever.
IN WITNESS WHEREOF, Proffitt's and the Corporation have executed this First
Amendment and Restatement on ______________, 1996.
PROFFITT'S, INC. PARISIAN, INC.
By:____________________________________ By:________________________________
___________________, ________________ Donald E. Hess, President
A:\1ST-AMD.ASC
EXHIBIT 4(G)
THIRD AMENDMENT AND RESTATEMENT
OF
THE PARISIAN, INC.
STOCK OPTION PLAN FOR OFFICERS
TABLE OF CONTENTS
Article Page
1 - INTRODUCTION, PURPOSE AND INTENT . . . . . . . . . . . . . . . . . . 1
2 - DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 - PARTICIPATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4 - CONVERSION AND GRANT OF OPTIONS. . . . . . . . . . . . . . . . . . . 5
5 - FORFEITURE OF OPTIONS. . . . . . . . . . . . . . . . . . . . . . . . 8
6 - EXERCISE OF OPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . 9
7 - TRANSFERS OF SHARES. . . . . . . . . . . . . . . . . . . . . . . . . 12
8 - AMENDMENT AND TERMINATION. . . . . . . . . . . . . . . . . . . . . . 13
9 - BENEFICIARIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10 - ASSIGNABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11 - ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
12 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
THIRD AMENDMENT AND RESTATEMENT
OF
THE PARISIAN, INC.
STOCK OPTION PLAN FOR OFFICERS
On April 26, 1988, Parisian, Inc., an Alabama corporation (the "Corporation")
adopted the Parisian, Inc. Stock Option Plan for Officers (the "Plan"). On
May 12, 1989 and May 21, 1990, the Corporation, having obtained the written
consent of all of the Participant Representatives, amended and restated the
Plan. On November 17, 1992 and April 8, 1996, the Corporation, having
obtained the consent of all of the Participant Representatives, amended the
Plan.
Pursuant to an Agreement and Plan of Merger, dated July 8, 1996, among
Proffitt's, the Corporation and a wholly-owned subsidiary of Proffitt's,
Inc., a Tennessee corporation ("Proffitt's") (the "Merger Agreement"), said
subsidiary shall merge with and into the Corporation on the date which
includes the "Effective Time" (as that term is defined in the Merger
Agreement). As a result of said merger, the Corporation shall become a
wholly-owned subsidiary of Proffitt's.
Pursuant to Section 4.4 of the Plan as in effect immediately prior to this
Third Amendment and Restatement (the "Pre-Merger Plan"), said merger requires
an equitable adjustment of the number and option prices of the options
granted by the Corporation pursuant to this Plan (the "Parisian Options") so
as to preserve their aggregate value. Pursuant to Section 1.5 (d) of the
Merger Agreement, Proffitt's is required to assume the Pre-Merger Plan and
the Corporation's obligations thereunder.
Proffitt's and the Corporation have determined that the Pre-Merger Plan
should be amended and restated to reflect the equitable adjustment of number
and option prices of the Parisian Options and that the same does not deprive
any Participant, Beneficiary or Plan Shareholder of any right or benefit
which has accrued under the Pre-Merger Plan as of the Effective Date.
Accordingly, in order to comply with Section 4.4 of the Pre-Merger Plan and
Section 1.5(d) of the Merger Agreement and having obtained the written
consent of all of the Participant Representatives, Proffitt's and the
Corporation, pursuant to the provisions of Article 8 of the Pre-Merger Plan,
hereby amend and restate the Pre-Merger Plan effective as of the Effective
Date.
ARTICLE 1 - INTRODUCTION, PURPOSE AND INTENT
Proffitt's owns all of the issued and outstanding shares of the capital stock
of the Corporation. The Corporation owns and operates a chain of specialty
apparel department stores. In order to conduct and advance its business
effectively, the Corporation must attract and retain qualified executives and
provide them with meaningful financial incentives. Accordingly, Proffitt's
and the Corporation have established this Plan to provide the Officers with
long-range financial incentives and shall maintain and administer this Plan
for the exclusive benefit of the Participants and their Beneficiaries.
ARTICLE 2 - DEFINITIONS
Unless otherwise provided herein, the following terms shall have the
following meanings:
2.1 ADMINISTRATOR: The party determined pursuant to Article 11.
2.2 BENEFICIARY. With respect to a Participant, the party who, pursuant to
Article 9, owns any options owned by such Participant at the time of his
death.
2.3 BOARD: With respect to Proffitt's or the Corporation, as applicable, its
Board of Directors.
2.4 COMMISSION: The Securities and Exchange Commission.
2.5 CORPORATION: Parisian, Inc., an Alabama corporation.
2.6 DISABILITY: A Participant's physical or mental inability to perform the
normal duties of his employment by the Corporation which continues for more
than 180 consecutive days and which is not attributable to chronic or
excessive use of intoxicants, drugs or narcotics, intentional self-inflicted
injury or self-induced sickness or any felonious act or enterprise on the
part of the Participant. If there is any disagreement between the
Corporation and a Participant as to the Participant's Disability or as to the
date any such Disability began, the same shall be determined by a physician
to be selected by the Administrator who shall make such determination after
an examination of the Participant by such physician. The Participant shall
be available for such an examination at any reasonable time. The
determination of such physician shall be conclusive evidence of the
Disability or non-Disability of the Participant and of the date any such
Disability began. If the Participant fails or refuses to cooperate in such
examination, the determination of the Participant's Disability or
non-Disability and the date any such Disability began shall be made by the
Administrator in its sole discretion.
2.7 EFFECTIVE DATE: The date which includes the "Effective Time" (as that
term is defined in the Merger Agreement).
2.8 OFFICER: Any person who is an employee of the Corporation and either the
President or an Executive Vice President, Senior Vice President or Vice
President of the Corporation or Proffitt's.
2.9 OPTION: The right to purchase one Share from Proffitt's for the Option
Price and upon the terms and conditions set forth in this Plan.
2.10 OPTIONHOLDER: The owner of an Option.
2.11 OPTION PRICE: With respect to an Option, the price determined pursuant
to Article 4 for which one Share may be purchased from Proffitt's upon the
exercise of such Option.
2.12 OPTION TRANSFEREE. With respect to a Participant, his spouse and lineal
descendants who have attained age 21 and a Qualified Trust, the sole
beneficiaries of which may not include anyone other than such Participant,
his spouse and lineal descendants.
2.13 PARISIAN OPTION: An option granted by the Corporation pursuant to this
Plan prior to this Third Amendment and Restatement which entitles the holder
thereof to purchase from the Corporation one share of the One Cent ($0.01)
par value common stock of the Corporation for the option price and upon the
terms and conditions of the Pre-Merger Plan.
2.14 PARTICIPANT: At any relevant time, an Officer or former Officer who is
a Participant pursuant to Article 3.
2.15 PARTICIPANT REPRESENTATIVES: The Corporation's Chief Executive Officer,
D. Warren Bailey and Steven B. Corenblum; provided, however, that if either
of said named individuals ceases to be a Participant, Proffitt's shall give
written notice of that fact to the other Participants who shall elect another
Participant to succeed said named individual as a Participant Representative.
Each Participant shall have one vote in the election of such successor
regardless of the number of Options and Shares owned by such Participant.
Any action required or permitted to be taken by the Participant
Representatives hereunder or any consent, approval or notice required or
permitted to be given by the Participant Representatives hereunder shall be
taken or given by a majority of the Participant Representatives.
2.16 PLAN SHAREHOLDER: An owner of Shares.
2.17 PRE-MERGER PLAN: This Plan as in effect immediately prior to this Third
Amendment and Restatement.
2.18 PROFFITT'S: Proffitt's, Inc., a Tennessee corporation.
2.19 QUALIFIED EMPLOYEE: A person who, on April 8, 1996, was an Officer of
the Corporation.
2.20 QUALIFIED TRUST: A trust established pursuant to a written document
which has been approved in writing by the Corporation in its sole discretion
and which, by its terms:
(a) authorizes the trustee of such trust to:
(I) acquire, own and dispose of shares of stock and other securities
and options to purchase shares of stock and other securities;
(ii) exercise any such options;
(iii) grant proxies to vote any securities owned by such trust; and
(iv) enter into agreements with respect to such securities, the term
of which may extend beyond the term of such trust; and
(b) provides that Options and Shares held by the trustee of such trust shall
only be distributed to a beneficiary of such trust if such beneficiary (i) is
an Option Transferee of the grantor of such trust and (ii) prior to such
distribution, has agreed in writing, in form and substance satisfactory to
the Corporation, in its sole discretion, that such beneficiary and the
options and Shares distributed to him shall be bound by the provisions of
this Plan including, without limitation, those of Articles 4 and 7 hereof;
(c) cannot be amended without the prior written approval of the Corporation,
which approval may be withheld by the Corporation in its sole discretion;
(d) provides that any such amendment which is not so approved by the
Corporation shall be invalid; and
(e) contains such other terms and provisions as the Corporation, in its sole
discretion, shall determine to be appropriate.
2.21 RULE 144: Rule 144 under the Securities Act or any similar provision
then in force promulgated under the Securities Act.
2.22 SECURITIES ACT: The Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
2.23 SHARES: The shares of the Ten Cent ($0.10) par value common stock of
Proffitt's purchased from Proffitt's pursuant to the terms and conditions set
forth in this Plan and any shares of Stock received upon the conversion of
such shares but excluding any shares of Stock acquired other than pursuant to
this Plan.
2.24 STOCK: All classes of the preferred and common capital stock of
Proffitt's.
2.25 TRANSFEROR: With respect to an Option Transferee, the Participant to
whom the Options owned by such Option Transferee were originally granted.
ARTICLE 3 - PARTICIPATION
3.1 PARTICIPATION. Any person who, on the Effective Date, was an Officer or
a former Officer of the Corporation and held any Parisian Options shall be a
Participant as of the Effective Date. An Officer who is not a Participant on
the Effective Date shall become a Participant if and when Options are granted
to him pursuant to Article 4.
3.2 TERMINATION OF PARTICIPATION. A Participant shall cease to be a
Participant on the date on which he exercises all Options then owned by him.
ARTICLE 4 - CONVERSION AND GRANT OF OPTIONS
4.1 CONVERSION OF PARISIAN OPTIONS. Pursuant to Section 4.4 of the Pre-Merger
Plan, the Parisian Options are hereby converted into Options in
accordance with the provisions of this Section. As a result of said
conversion, the Parisian Options are hereby cancelled and the owner of such
Parisian Options shall have no further right to purchase from the Corporation
any of the shares of its capital stock but such owners shall receive the
number of Options determined pursuant to the provisions of this Section.
(a) Number of Options. The Parisian Options held by each owner of Parisian
Options are hereby converted into a number of Options equal to 80% of the
number of such Parisian Options; provided, however, that if an owner of
Parisian Options would receive a fractional Option, then, as determined by
the Participant Representatives in their sole discretion, such owner shall
receive the next lowest or next highest whole number of Options; provided,
further, however, that the total number of Options received by all such
owners shall equal 80% of the number of Parisian Options held by them.
(b) Option Price. If the option price of the Parisian Option from which an
Option is hereby converted was $18.00, the Option Price of such Option shall
be $22.50. If the option price of the Option from which an Option is
converted was $20.40, the Option Price of such Option shall be $25.50.
(c) Agreements. Upon its receipt of a certificate evidencing Parisian
Options, Proffitt's shall execute and deliver to the holder of such Parisian
Options an agreement evidencing his ownership of the Options into which said
Parisian Options have been converted and reflecting the Option Prices of such
Options.
4.2 FULL VESTING OF OPTIONS. All of the Options are and, unless and until
forfeited in accordance with the provisions of Article 5, shall remain fully
vested.
4.3 GRANT OF FORFEITED OPTIONS. In the event any Options are forfeited
pursuant to Article 5, then, on the third business day following its receipt
of written notice from a majority of the Participant Representatives,
Proffitt's shall grant to each Officer named in such notice the number of
such Options specified therein. The Option Price of each Option granted
pursuant to any such notice shall be:
(a) with respect to an Option granted to a Qualified Employee, $22.50; and
(b) with respect to an Option granted to an Officer who is not a Qualified
Employee, $25.50.
4.4 GRANT OF OPTIONS TO PARTICIPANT REPRESENTATIVE. Notwithstanding the
foregoing provisions of this Section, the Corporation shall not grant any of
the Options referred to in a written notice described in Section 4.3 to any
Officer named in such notice unless:
(a) none of such Officers is a Participant Representative;
(b) the Corporation's Board approves Proffitt's grant of such Options to
such Officers prior to the date such Options are to be granted pursuant to
such notice; or
(c) pursuant to such notice, each Participant is to be granted his pro-rata
portion of such Options.
For purposes of this Section 4.4, a Participant's pro-rata portion of such
Options shall be a fraction, the numerator of which shall be the number of
Options and Shares owned by such Participant and his Permitted Transferees,
Transferees, Pledgees and Remote Transferees (as such terms are defined in
the Pre-Merger Plan) on the date of such notice and the denominator of which
shall be the number of Options and Shares owned by all Participants on such
date.
4.5 ADJUSTMENTS. If, at any time prior to the termination of this Plan,
there is an increase or decrease or other change in the shares of Stock by
reason of stock dividends (or payment of a dividend consisting of money or
other property to the extent the recipient thereof immediately reinvests such
dividend in Proffitt's and receives from Proffitt's in exchange therefor
additional shares of Stock), split-ups, recapitalizations, combinations,
conversions, exchanges of shares or the like, then, as of the date of such
increase, decrease or other change, there shall be an equitable adjustment of
the number and Option Prices of the Options then owned by the Participants
and Beneficiaries so as to preserve the aggregate value of such Options
determined as of such date.
4.6 EVIDENCE OF OPTIONS. All Options shall be evidenced by an agreement
reflecting the name of the owner of such Options and the number and Option
Price of such Options and bearing a conspicuous notice of (a) the
restrictions imposed by this Plan on the exercise and transferability of such
Options and the transferability of the Shares purchased pursuant to such
exercise and (b) such other matters relating to the Options, the Shares and
this Plan as the Administrator shall deem appropriate.
4.7 RESTRICTIONS ON TRANSFER OF OPTIONS. Except as permitted by this
Section 4.7, no Optionholder may sell, transfer, assign, convey or otherwise
dispose of or alienate any of his options or any right or interest therein
(whether voluntarily, by operation of law, by gift or otherwise) or enter
into any contract or agreement or grant any option with respect to the sale,
transfer, assignment, conveyance or other disposition of his Options or any
right or interest therein. Any purported transfer of Options in violation of
this Section shall be void and ineffective and shall not operate to transfer
any interest in or title to such options to the purported transferee and
Proffitt's shall not record any such purported transfer in its transfer
records.
(a) Permitted Transfers Of Options By Participants. Upon ten (10) days
prior written notice to Proffitt's (or such lesser number of days as
Proffitt's may agree to in writing) , a Participant may sell, transfer or
assign all or any number of his Options to a transferee who (or which) is an
Option Transferee only if, prior to such transfer, such transferee has agreed
in writing, in form and substance satisfactory to Proffitt's, in its sole
discretion, that such transferee and the Options transferred to him shall be
bound by the provisions of this Plan including, without limitation, those of
this Article 4. Such notice shall specify the name and address of the
proposed transferee, the relationship between the Participant and the
proposed transferee which establishes the proposed transferee as an Option
Transferee of the Participant and the number and Option Prices of the Options
to be transferred to such proposed transferee. Notwithstanding the foregoing
provisions of this Section, if Options are transferred to an Option
Transferee which is a Qualified Trust and the written document pursuant to
which such Qualified Trust was established is later amended without the prior
written approval of Proffitt's then, on the effective date of such amendment,
ownership of all Options then owned by such Qualified Trust shall revert to
its Transferor.
(b) Permitted Transfers Of Options By Other Optionholders. Upon ten (10)
days prior written notice to Proffitt's (or such lesser number of days as
Proffitt's may agree to in writing), an Optionholder other than a Participant
may sell, transfer or assign all or any number of his Options to his
Transferor if, prior to such transfer, such Transferor has agreed in writing,
in form and substance satisfactory to Proffitt's, that such Transferor and
the Options transferred to him shall be bound by the provisions of this Plan
including, without limitation, those of this Article 4. Such notice shall
specify the number and Option Prices of the options to be transferred to such
Transferor.
4.8 EFFECT OF TRANSFER OF OPTIONS. The provisions of this Section 4.8 shall
apply in the event a Participant transfers Options to an Option Transferee
pursuant to Section 4.7.
(a) Forfeitures of Options. All of an Option Transferee's Options shall be
forfeited on the date any Options owned by his Transferor are or would be
forfeited pursuant to Article 5. On the date an Option Transferee's Options
are forfeited pursuant to this Section 4.8(a), the rights of such Option
Transferee shall be terminated and, thereafter, such Options shall be granted
to the Participants pursuant to the provisions of Section 4.3.
(b) Exercise of Options. An Option Transferee shall be entitled to exercise
his Options at such times, in such manner, upon such terms and subject to
such conditions, limitations and restrictions as his Transferor is or would
be entitled to exercise any Options owned by such Transferor.
(c) Beneficiaries. Upon an Option Transferee's receipt of any Options
pursuant to Section 4.7, the provisions of Article 9 (governing the
determination of a Participant's Beneficiary) shall apply to such Option
Transferee as if such Option Transferee was a Participant.
(d) Deemed Ownership of Options. Each Participant shall be deemed to own
all of the Options actually owned by his Option Transferees for the purpose
of determining:
(1) the number of Options to be granted to a Participant pursuant to Section
4.4; and
(2) whether Proffitt's has obtained the consent of the Participants required
by Section 8.1.
ARTICLE 5 - FORFEITURE OF OPTIONS
5.1 EFFECT OF FORFEITURES. On the date any Options are forfeited pursuant
to the following provisions of this Article, the rights of the Participant or
Beneficiary then owning such Options shall be terminated and, thereafter,
such Options shall be granted to the Participants pursuant to the provisions
of Section 4.3.
5.2 FORFEITURES UPON TERMINATION FOR CERTAIN CAUSES. If a Participant's
employment with the Corporation is terminated by the Corporation on account
of the Participant's:
(a) proven dishonesty, theft, fraud or embezzlement;
(b) breach of any fiduciary duty or duty of loyalty to the Corporation;
(c) involvement or participation (whether direct or indirect) in any
business competitive with that of the Corporation or Proffitt's without the
Administrator's prior written consent;
(d) usurpation of any business opportunity of the Corporation or Proffitt's
without the Administrator's prior written consent;
(e) conviction of a felony or a crime involving moral turpitude; or
(f) divulgence to a party unrelated to the Corporation or Proffitt's of any
material non-public confidential information concerning the Corporation or
Proffitt's or their businesses or activities,
then, on the effective date of such termination, all Options then owned by
him or his Beneficiary shall be forfeited.
5.3 FORFEITURES FOR CERTAIN CAUSES AFTER TERMINATION. If, during the 120 day
period following the effective date of the termination of a Participant's
employment with the Corporation, the Administrator shall determine that,
prior to the effective date of such termination, such Participant engaged in
any conduct described in Section 5.2, then, as of the date of such
determination, all Options then owned by him or his Beneficiary shall be
forfeited.
5.4 FORFEITURES AFTER FIFTEEN YEARS. If not previously forfeited pursuant to
the foregoing provisions of this Section, each Option shall be forfeited on
the fifteenth anniversary of the date on which the Parisian Option from which
such Option was converted pursuant to Section 4.1 became a "Vested Option"
(as that term is defined in the Pre-Merger Plan).
ARTICLE 6 - EXERCISE OF OPTIONS
6.1 RIGHT TO EXERCISE. Subject to Section 6.5, each Participant shall be
entitled to exercise any or all of his Options at any time.
6.2 METHOD OF EXERCISE. A Participant may elect to exercise his Options
only by written notice (the "Exercise Notice") to Proffitt's. In order to be
effective, such Exercise Notice must:
(a) specify the number and Option Prices of the Options to be exercised;
(b) be received by Proffitt's prior to the date such Options are forfeited;
(c) be accompanied by the certificate evidencing such Participant's
ownership of such Options;
(d) specify the date on which such Options are to be exercised which shall
not be earlier than the third business day following Proffitt's receipt of
such Exercise Notice; and
(e) specify whether such Participant shall exercise such Options (1) by
paying their aggregate Option Price pursuant to Section 6.3 or (2) pursuant
to the cashless exercise program referred to in Section 6.4.
6.3 PAYMENT FOR SHARES. If a Participant's Exercise Notice specifies that
such Participant shall exercise the Options which are the subject of such
Exercise Notice pursuant to this Section 6.3, then, on the date determined
pursuant to Section 6.2(d):
(a) the Participant shall deliver to Proffitt's:
(1) a certified or cashier's check, made payable to the order of
Proffitt's, in an amount equal to the aggregate Option Price of the
Options which are the subject of such Exercise Notice; and
(2) if the same shall be requested by Proffitt's in order for
Proffitt's issuance of Shares pursuant to the exercise of such Options
to satisfy one or more exemptions from the registration requirements of
the Securities Act, a certificate pursuant to which such Participant
shall (A) represent that he is exercising such Options and acquiring the
Shares issued upon such exercise for investment purposes only for his
own account and not with a view to the distribution thereof and (B)
acknowledge that such Shares have not been registered under the
Securities Act and may not be resold or otherwise transferred in the
absence of an effective registration statement under the Securities Act
or an opinion of counsel satisfactory to the Corporation that such
registration is not required; and
(b) Proffitt's shall deliver to such Participant:
(1) a stock certificate evidencing his ownership of a number of Shares
equal to the number of such Options exercised pursuant to such Exercise
Notice and bearing a conspicuous notice of the restrictions on the
transferability of such Shares which may be required by the applicable
provisions of the Securities Act and those which are imposed by Article
7; and
(2) to the extent necessary, a certificate evidencing his ownership
of any Options not exercised pursuant to such Exercise Notice.
6.4 CASHLESS EXERCISE. If a Participant's Exercise Notice specifies that
such Participant shall exercise the Options which are the subject of such
Exercise Notice pursuant to this Section 6.4, then such Participant shall
exercise such Options in accordance with the applicable provisions of the
cashless exercise program then maintained by Proffitt's in connection with
any stock option plan then available to employees of Proffitt's.
6.5 RESTRICTION ON EXERCISE OF OPTIONS. Notwithstanding anything to the
contrary contained herein, a Participant may not exercise any of his Options
unless entitled to do so pursuant to this Section.
(a) Registration. A Participant shall be entitled to exercise his Options
if, on the date of his Exercise Notice, the Shares to be issued upon such
exercise are the subject of an effective registration statement under the
Securities Act.
(b) Exemption. If, on the date of a Participant's Exercise Notice, the
Shares to be issued upon such exercise are not the subject of an effective
registration statement under the Securities Act, he shall be entitled to
exercise his Options only if an exemption from such registration is
available. For purposes of this Article, the availability of such an
exemption shall be determined in the manner set forth in this Section 6.5(b).
(i) Upon request by such Participant, Proffitt's shall seek an opinion
of counsel of recognized standing in securities law as to whether such
an exemption is available. If, in the opinion of such counsel, such an
exemption is available, the Participant shall be entitled to exercise
such Options on such date, not later than the tenth day following the
date of such opinion, as Proffitt's and such Participant shall agree.
(ii) If, in the opinion of such counsel, such an exemption is not
available, the Participant may seek an opinion of another counsel of
recognized standing in securities law (which counsel shall be reasonably
satisfactory to Proffitt's) as to whether such an exemption is
available. If, in the opinion of such other counsel (the "Participant's
Counsel"), such an exemption is not available, the Participant shall not
be entitled to exercise such Options until the date the Shares to be
issued upon such exercise are the subject of an effective registration
statement under the Securities Act.
(iii) If, in the opinion of the Participant's Counsel, such an exemption
is available, then, promptly upon its receipt of such opinion,
Proffitt's shall:
(A) request the Participant Representatives to determine
whether or not Proffitt's should seek a no-action letter from the
Commission as to whether such an exemption is available; and
(B) reimburse the Participant for the cost of obtaining such
opinion.
(iv) If a majority of the Participant Representatives determine that
Proffitt's should not seek such no-action letter, the Participant shall
be entitled to exercise such Options on such date, not later than the
tenth day following the date of such determination, as Proffitt's and
such Participant shall agree.
(v) If a majority of the Participant Representatives determine that
Proffitt's should seek such no-action letter, Proffitt's shall use its
reasonable good faith efforts to seek such no-action letter.
(vi) If such no-action letter indicates that such an exemption is not
available, the Participant shall not be entitled to exercise such
Options until the date the Shares to be issued upon such exercise are
the subject of an effective registration statement under the Securities
Act.
(vii) If such no-action letter indicates that such an exemption is
available, the Participant shall exercise such Options on such date, not
later than the tenth day following the date of such no-action letter, as
Proffitt's and such Participant shall agree.
(c) Insider Trading. A Participant shall not be entitled to exercise his
Options in any manner or at any time which is prohibited by Proffitt's
insider trading policies then in effect.
ARTICLE 7 - TRANSFERS OF SHARES
7.1 REGISTRATION. As soon as reasonably practical following the Effective
Date but in no event later than the tenth (10th) day following the Effective
Date, Proffitt's shall take such action and file such documents with the
Commission as may be necessary to cause the Shares to be the subject of an
effective registration statement under the Securities Act.
7.2 GENERAL RESTRICTIONS. No Plan Shareholder may sell, transfer, assign,
convey or otherwise dispose of or alienate any of his Shares or any right, or
interest therein (whether voluntarily, by operation of law, by gift or
otherwise) or enter into any contract or agreement or grant any option with
respect to the sale, transfer, assignment, conveyance or other disposition of
his Shares or any right or interest therein, unless such sale, transfer,
assignment, conveyance or other disposition is:
(a) required or permitted by this Plan;
(b) made in accordance with Proffitt's insider trading policies then in
effect;
(c) made pursuant to (i) an effective registration statement under the
Securities Act or (ii) an exemption from registration under the Securities
Act; and
(d) made in compliance with applicable federal and state securities laws;
provided, however, that if the Plan Shareholder is an "affiliate" (within the
meaning of the Securities Act) of Proffitt's or his Shares were issued by
Proffitt's pursuant to Section 6.5(b), he may not sell, transfer, assign,
convey or otherwise dispose of his Shares pursuant to Section 7.1(b)(ii)
prior to the tenth (10th) day following Proffitt's receipt of an opinion of
counsel (which opinion and counsel shall be reasonably satisfactory to the
corporation) or a no-action letter from the Commission to the effect that
such exemption is available.
Any purported transfer of Shares in violation of this Section shall be void
and ineffective and shall not operate to transfer any interest in or title to
such Shares to the purported transferee and Proffitt's shall not record any
such purported transfer in its transfer records.
7.3 PUBLIC SALES. A Plan Shareholder may sell all or any number of his
Shares on any date if:
(a) such sale is made pursuant to Rule 144 (provided that such transfer
complies with paragraph (f) of such Rule) or otherwise on a national
securities exchange or in the over-the-counter market; and
(b) on such date, such sale is permitted under Section 7.2.
ARTICLE 8 - AMENDMENT AND TERMINATION
8.1 REQUIRED CONSENT. This Plan cannot be amended or terminated without the
consent of a majority of the Participant Representatives who are then
Participants; provided, however, that if less than two Participant
Representatives are then Participants, Proffitt's may not amend or terminate
this Plan without the consent of the Participants who own at least 66.67% of
the number of Options and Shares then owned by the Participants.
8.2 EFFECTIVE DATE. No amendment or termination of the Plan shall be
effective as of any date prior to the date on which Proffitt's obtains the
consent required by this Article.
8.3 RESTRICTIONS ON AMENDMENTS. Notwithstanding anything to the contrary
contained herein, no amendment to this Plan shall deprive any Participant,
Beneficiary or Plan Shareholder of any right or benefit which had accrued
prior to the effective date of such amendment. Without limiting the
generality of the foregoing, no such amendment shall cause any Option to be
forfeited, adversely affect the right of a Participant or Beneficiary to
exercise any Option or adversely affect any Plan Shareholder's right to sell
any Shares in accordance with the provisions of Article 7.
8.4 EFFECT OF TERMINATION. In the event Proffitt's terminates this Plan in
accordance with the provisions of this Article:
(a) none of the Options forfeited pursuant to Article 5 after such effective
date shall be granted to any Participant pursuant to this Plan; and
(b) the rights of the Participants, Beneficiaries and Plan Shareholders
hereunder (including, without limitation, their rights to exercise Options
pursuant to Article 6 and to sell Shares pursuant to Article 7) shall survive
such termination.
ARTICLE 9 - BENEFICIARIES
Upon becoming eligible to participate in this Plan, each Participant,
pursuant to a written instrument delivered to the Administrator, shall
designate a Beneficiary who shall own any Options owned by such Participant
at the time of his death and who shall be entitled to exercise any of such
Options. Such designation may be changed by the Participant from time to
time by written notice to the Administrator. In the event a Participant does
not designate a Beneficiary or a Beneficiary designated by a Participant
predeceases such Participant and no new Beneficiary has been designated, then
such Participant's Beneficiary shall be his surviving spouse, if any, or if
none, his estate.
Upon a Beneficiary's receipt of any Options pursuant to this Article, the
provisions of this Article shall apply to such Beneficiary and such Options
as if such Beneficiary was a Participant.
ARTICLE 10 - ASSIGNABILITY
No Participant or Beneficiary shall alienate, sell, transfer, assign, pledge
or otherwise encumber any interest in this Plan or any Option granted to him
pursuant to this Plan without the prior written consent of the Administrator.
Any attempt by a Participant or Beneficiary to alienate, sell, transfer,
assign, pledge or encumber any such interest or Option in contravention of
this Article shall be ineffective.
ARTICLE 11 - ADMINISTRATION
11.1 ADMINISTRATOR. The Administrator shall be the Corporation's Board or,
as designated by it in writing, the Executive Committee or any other
committee of said Board.
11.2 ADMINISTRATION. The Administrator shall administer the Plan and shall
have all powers necessary or appropriate to enable it to carry out its duties
including, without limitation, the power to interpret the Plan, to decide all
issues arising under the Plan, to make, establish and change rules and
procedures with respect to the operation of the Plan, and all other powers
conferred upon it herein. The Administrator shall have the authority to
decide all questions relating to eligibility, participation, vesting and
forfeitures. The Administrator may rely and act on any information provided
by Proffitt's and the Corporation without further inquiry or liability.
11.3 EXCULPATION AND INDEMNIFICATION. No Participant Representative, officer
of Proffitt's or Corporation or member of either Board shall be responsible
or liable for any mistake or error of judgment in connection with their
responsibilities, obligations or duties with respect to this Plan.
Proffitt's shall indemnify each Participant Representative, officer of
Proffitt's or the Corporation and member of either Board to the full extent
of any liabilities, expenses, penalties, damages or other pecuniary loss,
including attorney's fees, which he may suffer as a result of his
responsibilities, obligations or duties in connection with this Plan. Such
indemnification shall be paid by Proffitt's to the extent that liability
insurance is not available to cover the payment of such items. Proffitt's
may purchase and maintain such insurance on behalf of such individuals.
11.4 REPORTS TO PARTICIPANTS. The Administrator shall, from time to time in
its sole discretion, but at least annually, notify each Participant of the
number and Option Prices of the Options then owned by him and such other
information as the Administrator, in its sole discretion, deems to be
reasonable under the circumstances. No Participant other than a Participant
Representative shall be entitled to receive or review any information or data
with regard to the number or Option Prices of Options owned by any other
Participant. Such information shall only be disclosed to Participants to the
extent the Administrator deems it to be appropriate and in the best interest
of Proffitt's and the Corporation.
ARTICLE 12 - MISCELLANEOUS
12.1 NO RIGHT TO EMPLOYMENT. Nothing contained herein shall give any Officer
the right to be employed by Proffitt's or the Corporation, nor shall this
Plan interfere with the right of Proffitt's or the Corporation to discharge
any Officer at any time, to change the duties of any Officer at any time or
to change the title or position of any Participant at any time.
12.2 GRANT OF OPTIONS TO OTHERS. If the Administrator shall determine that
Options are to be granted hereunder to any person who is incapable or unable
to care for his affairs due to minority or any other incapacity, whether or
not such incapacity has been judicially determined, then, in the discretion
of the Administrator, all or any number of such Options may be granted to
and, pursuant to the provisions of this Plan, exercised by his spouse, a
relative of such person, an institution maintaining or having custody of such
person or any person deemed by the Administrator to be a proper party for
such purpose. Alternatively, the Administrator may, in its discretion, delay
the grant of such Options until a legal representative is appointed for such
person. Any grant of options made pursuant to this Section shall constitute
a complete discharge of the liabilities of the Administrator, Proffitt's and
the Corporation to such person hereunder.
12.3 SUBORDINATION OF RIGHTS. If, and only to the extent that, a majority of
the Participant Representatives and a majority of the members of the
Corporation's Board deem such subordination to be in Proffitt's or the
Corporation's best interests, the rights of each Participant, Beneficiary and
Plan Shareholder hereunder shall be subordinate to the provisions of any loan
agreement, note, bond, indenture, debenture, capitalized lease or other
evidence of Proffitt's or the Corporation's indebtedness.
12.4 GOVERNING LAW. This Plan shall be construed according to the laws of
the State of Alabama.
12.5 NUMBER AND GENDER. Whenever the context so requires, the singular
number shall include the plural and the plural shall include the singular and
the gender of any pronoun shall include the other genders.
12.6 NOTICE. Any notice required or permitted to be given hereunder shall be
in writing and signed by the party making the same and shall specify the
Section hereof pursuant to which it is given. Any such notice shall be
deemed given (i) on the date delivered, if delivered in person and (ii) on
the fifth business day after mailing, if mailed. Any such notice shall be
mailed registered or certified first class mail, return receipt requested
(with postage and other fees prepaid) as follows:
If to Proffitt's, to: Proffitt's, Inc.
115 North Calderwood
Alcoa, Tennessee 37701
Attention: Senior Vice President of
Investor Relations
If to the Corporation, to: Parisian, Inc.
750 Lakeshore Parkway
Birmingham, Alabama 35211
Attention: President
If to the Administrator, to: Parisian, Inc.
750 Lakeshore Parkway
Birmingham, Alabama 35211
Attention: Administrator, Parisian, Inc.
Stock Option Plan for Officers
and, if to a Participant, Beneficiary or Plan Shareholder, to such
Participant's, Beneficiary's or Plan Shareholder's last known residence or
office address appearing in the Corporation's employment or other records.
If any such notice is given to Proffitt's, the Corporation or the
Administrator, a copy thereof shall be given to:
(a) Donald E. Hess (or such other person who is then the President of the
Corporation) at the address of the Corporation set forth above; and
(b) D. Warren Bailey and Steven B. Corenblum at the address of the
Corporation set forth above (or if either of them ceases to be an Officer, at
his last known residence address); provided, however, that if either of said
individuals ceases to be a Participant, such notice shall not be given to him
but shall instead be given to the Participant who succeeds him as a
Participant Representative at the address of the Corporation set forth above.
12.7 SEVERABILITY. The invalidity of this Plan with respect to one or more
persons shall not affect the rights and obligations of any other person
hereunder in any manner whatsoever. The invalidity of one or more provisions
of this Plan shall not affect the validity of any other provision of this
Plan in any manner whatsoever.
12.8 RIGHTS OF TRANSFEREES. Notwithstanding anything to the contrary
contained in this Plan:
(a) the rights of an Option Transferee with respect to all Options owned by
such Option Transferee shall be the same as those of the Participant who
first owned such Option determined as if such Participant then owned such
Option; and
(b) the rights of a Plan Shareholder who is not a Participant with respect
to a Share owned by such Plan Shareholder shall be the same as those of the
Participant who first owned such Share determined as if such Participant then
owned such Option.
IN WITNESS WHEREOF, Proffitt's and the Corporation have executed this Third
Amendment and Restatement on ______________, 1996.
PROFFITT'S, INC. PARISIAN, INC.
By:____________________________________ By:________________________________
___________________, ________________ Donald E. Hess, President
A:\3RD-AMD.ASC
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Proffitt's, Inc. on Form S-4 of our report dated March 15, 1996, on our
audits of the consolidated financial statement and financial statements
schedules of Proffitt's, Inc. as of February 3, 1996 and January 28, 1995,
and for each of three years in the period ended February 3, 1996 which report
is incorporated by reference herein. We also consent to the reference to our
firm under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
Atlanta, Georgia
October 23, 1996
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective
Amendment No. 1 to Registration Statement No. 333-09043 of
Proffitt's, Inc. on Form S-4 of our report dated March 3, 1995 of
Younkers, Inc., appearing in and incorporated by reference in the
Annual Report on Form 10-K of Proffitt's, Inc. for the year ended
February 3, 1996 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
Des Moines, Iowa
October 22, 1996
EXHIBIT 23(c)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in the Post-Effective Amendment No. 1 to the
Registration Statement (Form S-4, No. 333-09043) of Proffitt's,
Inc. pertaining to stock options resulting from the merger with
Parisian, Inc. and to the incorporation by reference therein of
our report dated March 3, 1994 (with respect to the consolidated
statements of earnings, shareholders' equity, and cash flows of
Younkers, Inc. for the year ended January 29, 1994, not
separately presented), appearing in the Annual Report (Form 10-K)
of Proffitt's, Inc. for the year ended February 3, 1996, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Des Moines, Iowa
October 21, 1996
EXHIBIT 23(d)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on
Form S-4 of our report, dated March 22, 1996, on our audits of
the consolidated financial statements of Parisian, Inc. as of
January 28, 1995 and February 3, 1996, and for the years ended
January 29, 1994, January 28, 1995, and February 3, 1996. We
also consent to the reference to our firm under the caption
"Experts."
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Birmingham, Alabama
October 21, 1996
