As filed with the Securities and Exchange Commission
on July 28, 1997
Registration No. 333-
======================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
FORM S-3
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 5311 82-0331040
(State or other (Primary Standard (IRS Employer
Jurisdiction of Industrial Identification
Incorporation Classification Number)
or Organization) Code Number)
--------------
3455 Highway 80 West
Jackson, Mississippi 39289
(601) 968-4400
(Address, including zip code,
and telephone number,
including area code
of Registrant's Principal
Executive Office)
--------------
Brian J. Martin, Esq.
Proffitt's, Inc.
750 Lakeshore Parkway
Birmingham, Alabama 35211
(205) 940-4000
(Name, Address, including zip code,
and telephone number,
including area code of Agent for Service)
---------------
Copies to:
Philip L. McCool, Esq.
Sommer & Barnard
4000 Bank One Tower
111 Monument Circle
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 this Registration Statement.
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. X
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering.
If this Form is a post-effective amendment filed pursuant to Rule
462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If delivery of the prospectus is expected to be pursuant to Rule
434, please check the following box.
Proposed
Title of Maximum
Securities Amount Aggregate Amount of
to be to be Offering Registration
Registered Registered Price (1) Fee
------------- ------------- ---------- -----------
Shares of Common Stock, $.10
par value. . . . . . . . . . . 750,000 $37590,000 $11,390.90
pursuant to the Proffitt's,
Inc. 1997 Stock-Based Incentive
Plan
Preferred Stock Purchase
Rights . . . . . . . . . . . . 750,000 (2)N/A (2)N/A
(1) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(c) under the Security Act of 1933 on the
basis of the average high and low prices on the New York Stock
Exchange on July 24, 1997.
(2) No additional consideration will be paid for the Preferred Stock
Purchase Rights.
The registrant hereby amends this Registration Statement on such
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 July 28, 1997
PROFFITT'S, INC.
______________
COMMON STOCK
2, 300,000 SHARES
This Prospectus relates to up to 2,300,000 shares of the common
stock, $0.10 par value share (the "Shares") of Proffitt's, Inc., a
Tennessee corporation (the "Company") issuable pursuant to the
Proffitt's, Inc. 1997 Stock-Based Incentive Plan (the "Incentive
Plan").
The Common Stock is listed for trading on the New York Stock
Exchange under the symbol "PFT." On July 24, 1997 the last reported
sale price for the Common Stock was $50.37.
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.
-----------------
The date of this Prospectus is July 28, 1997.
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
the Company. 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. . . . . . . . . . . . . . . . . . . . . . . . . . . .6
INFORMATION ABOUT THE PLAN . . . . . . . . . . . . . . . . . . . . . .6
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . 13
LEGAL OPINIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
EXPERTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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 Common Stock is
listed on the New York Stock Exchange, and information regarding the
Company may also be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration
statement on Form S-3 (together with any amendments thereto, the
"Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the common Stock offered
pursuant to the Proffitt's, Inc. 1997 Stock-Based Incentive Plan
("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. 1-13113) 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 1, 1997;
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended May 3, 1997;
3. The Company's Current Reports on Form 8-K filed with the
Commission on February 11, 1997, April 1, 1997, May 2, 1997,
May 22, 1997 (including Amendment No. 1 thereto filed May
22, 1997); and July 8, 1997;
4. The description of the Company's Common Stock contained in
the Company's Post-Effective Amendment No. 1 to Registration
Statement on Form S-4 dated January 15, 1997 (Registration
No. 333-17059) and incorporated by reference in the
Company's Registration Statement on Form 8-A filed June 18,
1997;
5. The Company's Registration Statement on Form 8-A filed June
18, 1997 in respect of the Company's Share Purchase Rights
Plan; and
6. Information under the Caption "Pro Forma Combined Statement
of Income (Unaudited)" and the Consolidated Financial
Statements of Parisian, Inc. included in the Company's
prospectus dated July 9, 1997, included in the Company's
Registration Statement on Form S-1 (Registration No. 333-29771).
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,
attention: Investor Relation (telephone number: (423) 983-7000).
SUMMARY
The following is a summary of certain information contained
elsewhere in this Prospectus. Reference is made to, and this summary
is qualified in its entirety by, the more detailed information
contained in this Prospectus. As used herein, unless the context
otherwise requires, "Company" means Proffitt's, Inc. and its
subsidiaries, and the terms "Proffitt's, " "McRae's," "Younkers,"
"Parisian" and "Herberger's" refer to the Company's five department
store chains, and the existing and predecessor entities that conduct
or conducted business under such names.
The Company
The Company is a leading regional department store chain
operating 175 stores in 24 states, primarily in the Southeast and
Midwest. The Company operates its stores under five chain names:
Proffitt's (19 stores), McRae's (29 stores), Younkers (48 stores),
Parisian (40 stores) and Herberger's (39 stores). Each chain operates
primarily as a leading branded traditional department store in its
communities, with Parisian serving as a better branded specialty
department store. Most of the stores are located in premier regional
malls in the respective trade areas served. The Company's stores
offer a wide selection of fashion apparel, accessories, cosmetics and
decorative home furnishings, featuring assortments of premier brands,
private brands and specialty merchandise. Each of the Company's
chains operates with its own merchandising, marketing and store
operations team in order to tailor regional assortments to the local
customer. At the same time, the Company coordinates merchandising
among the chains and consolidates administrative and support functions
to realize scale economies, to promote a competitive cost structure
and to increase margins.
The Company's principal executive offices are located at 3455
Highway 80 West, Jackson, Mississippi 39289, telephone number (601)
968-4400.
The Plan
The Incentive Plan. The Incentive Plan is intended to enable
Proffitt's to attract and retain qualified personnel. All employees
and directors of Proffitt's are eligible to participate in the
Incentive Plan. The Board of Directors will select individuals to
receive awards. Awards will be in the form of stock options, stock
appreciation rights, restricted stock, performance units and stock
bonuses. See "Information About the Plan."
Selected Financial and Operating Data
The following table presents summary historical and pro forma
financial and operating data derived from the audited Consolidated
Financial Statements of the Company for the last five fiscal years and
the unaudited Condensed Consolidated Financial Statements for the
latest interim period. The historical financial data should be read
in conjunction with the Company's Consolidated Financial Statements
and Condensed Consolidated Financial Statements and the notes thereto
incorporated by reference herein. The summary historical pro forma
financial and operating data give effect to the purchase of Parisian
as if it had occurred on February 4, 1996, are based on certain
assumptions and are derived from, and should be read in conjunction
with the Pro Forma Combined Statement of Income (Unaudited)
incorporated by reference herein. The summary pro forma financial
data do not purport to present the actual financial position or
results of operations of the Company had the Parisian acquisition and
the events assumed therein in fact occurred on the dates specified,
nor are they necessarily indicative of the results of operations that
may be achieved in the future. See "Incorporation of Certain
Documents by Reference."
<TABLE>
<CAPTION>
5/3/97 5/4/96(a) 2/1/97 2/1/97 2/3/96 1/28/95 1/29/94 1/30/93
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<S> <C> <C> <C> <C> <C> <C> <C> <C>
Consolidated Income
Statement Data:
Net sales . . . . . $526,370 $365,179 $2,320,955 $1,889,779 $1,661,056 $1,513,444 $1,063,488 $858,754
Cost and expenses:
Cost of sales . . 335,882 237,201 1,511,802 1,230,454 1,087,619 986,028 690,083 523,444
Selling, general and
administrative
expenses. . . . 128,629 88,952 551,804 440,502 398,999 352,448 255,856 220,889
Depreciation and
amortization. . 10,898 9,811 48,471 41,037 43,013 40,305 26,693 19,586
Property and
equipment rentals. . 19,048 11,270 81,747 60,684 50,609 47,857 37,049 26,344
Taxes other than
income taxes. . 12,622 9,638 49,720 40,403 36,938 34,421 25,050 18,227
Merger, restructuring
and integration
costs(b). . . . 1,468 2,763 15,929 15,929 20,822 --- --- ---
Operating income. . 17,796 7,804 62,576 61,864 753 52,385 28,757 50,264
Other income (expense):
Finance charge income,
net(c) . . . . 10,878 7,160 37,883 32,305 31,273 27,934 19,312 16,151
Interest expense. (10,692) (4,706) (44,702) (26,756) (29,389) (23,286) (11,286) (11,701)
Other income, net . . 136 498 3,409 1,572 4,051 4,826 4,063 233
Income before provision
for income taxes, extra-
ordinary loss and cumu-
lative effect of changes
in accounting methods 18,118 10,756 59,166 68,985 6,688 61,859 40,846 54,947
Net income (loss) . 10,544 6,308 29,768 37,399 (1,419) 37,448 25,540 32,522
Earnings (loss) per
common share(s):
Primary . . . . . 0.37 0.25 0.94 1.31 (0.15)(d) 1.55 1.15 1.87
Fully diluted . . 0.37 0.25 1.05 1.41 (0.15)(d) 1.52 1.15 1.87
Weighted average
common shares:
Primary . . . . . 28,451 23,466 27.656 25,564 23,157 23,046 22,167 17,396
Fully diluted . . 30,539 27,655 28.276 28,204 23,166 26,031 22,167 17,396
Dividends per Share(s)(e): -0- -0- -0- -0- -0- -0- -0- -0-
Consolidated Balance
Sheet Data:
Working capital . . $ 375,348 $226,361 $344,410 $344,410 $235,194 $301,270 $306,853 $203,977
Total assets . . . 1,456,794 921,606 1,403,796 1,403,796 919,013 967,667 653,680 536,603
Long-term debt,
less current
portion . . . . . 505,108 247,537 502,577 502,577 269,442 325,501 203,838 216,985
Shareholders' equity . 555,159 334,394 539,898 539,898 327,371 337,007 275,104 122,582
</TABLE>
(a) Effective February 1, 1997 and February 3, 1996, Herberger's and
Younkers, respectively, were acquired by the Company. Such
acquisitions were accounted for under the pooling-of-interests
method. Accordingly, the Company's financial statements were
restated for all periods to include the results of operations and
financial position of Herberger's and Younkers. The pro forma
financial and operating data do not reflect the cost savings realized
by the Company from consolidation of administrative and operating
functions and other synergies following such acquisitions.
(b) In connection with the acquisitions of Younkers and Herberger's, the
Company incurred certain merger, restructuring and integration costs,
including transaction costs, costs associated with severance and
related benefits, abandonment and elimination of duplicate
administrative office space, property, data processing equipment and
software, and other costs.
(c) Finance charge income includes finance charges and late payment fees
earned on the Company's proprietary credit cards, less the portion of
such income allocated to third party purchasers of such credit card
receivables.
(d) Losses per share attributable to extraordinary items were $.09 for
the year ended February 3, 1996 and $.05 for the year ended January
29, 1994. Earnings (loss) per share attributable to cumulative
effect of changes in accounting methods were $.08 for the year ended
January 29, 1994 and ($.10) for the year ended January 30, 1993.
(e) Prior to its merger with Proffitt's, Herberger's declared cash
dividends of $1,030, $1,046, $1,126, $1,066 and $1,401 in 1996, 1995,
1994, 1993 and 1992, respectively. Amounts above are shown as $0.00
per share to reflect Proffitt's policy of retained earnings.
USE OF PROCEEDS
The amount of net proceeds to the Company from the sale of the 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 PLAN
The principal features of the Proffitt's, Inc. 1997 Stock-Based
Incentive Plan (the "Incentive Plan") are summarized below. The summary is
qualified in its entirety by reference to the full text of the Incentive
Plan. Participants may contact the Company's Investor Relation Department,
Proffitt's, Inc., 115 North Calderwood, Alcoa, Tennessee 37701, telephone
(423) 983-7000 for additional information concerning the Incentive Plan and
its administrators.
What is the Purpose of the Plan?
The purpose of the Plan is to attract, retain and motivate employees and
directors of high caliber and potential.
How is the Incentive Plan Administered?
The Incentive Plan will be administered by a committee consisting of two or
more nonemployee directors selected by the Board of Directors (the
"Committee"). The Committee will serve at the pleasure of the Board.
The Committee has full and final authority to interpret the Incentive Plan
and to decide all questions of fact arising in its application. Subject to
the provisions of the Incentive Plan, the Committee's powers include, but are
not limited to, determining the employees and directors to receive awards
under the Incentive Plan, determining the type, amount and sizes of each such
award, determining the time when each such award will be granted, and
determining the provisions of each agreement evidencing an award.
What Stock is subject to the Incentive Plan?
The Committee may grant awards under the Incentive Plan with respect to not
more than a total of 2,300,000 shares of $.10 par value common stock of the
Company ("Shares"), subject to adjustment as provided in the Incentive Plan.
Such Shares may be authorized and unissued Shares or treasury Shares and may
be purchased on the open market or otherwise. Except as otherwise provided
in the Incentive Plan, Shares subject to an option or right which is
surrendered, expires or is terminated unexercised and Shares granted pursuant
to restricted stock awards which are forfeited will again become available
for the granting of awards under the Incentive Plan.
Who is eligible to receive Awards?
All employees and directors of the Company are eligible to receive awards
under the Incentive Plan. The number of individuals eligible to participate
in the Plan is determined by the Board of Directors of the Company.
What Awards are available under the Incentive Plan?
Under the Incentive Plan, awards may be granted from time to time by the
Committee in the form of stock options, stock appreciation rights,
performance units, restricted stock, stock bonuses or any combination of the
above. Stock options will be options which are not intended to qualify as
incentive stock options within the meaning of Section 422(b) of the Internal
Revenue Code of 1986, as amended ("nonqualified stock options"). All awards
will be evidenced by written agreement in such form not inconsistent with the
Incentive Plan as the Committee may approve.
What is a stock option?
A stock option is the right to purchase Shares at a set price during a
stated period of time in the future. No cash consideration will be received
by the Company for the granting of any option. Under the Incentive Plan, an
optionee will receive a written agreement evidencing stock options. The
option agreement will identify the options represented thereby as
nonqualified stock options and specify the number of Shares subject to the
options. The maximum number of options which may be granted to one optionee
during any 12-month period is 125,000. The option exercise price per Share
will be determined by the Committee and cannot be less than 100% of the fair
market value of a share on the date of grant. The option agreement will
designate the periods of time within which the option may be exercised, in
whole or in part, provided that no nonqualified stock option will be
exercisable after ten years from the date of grant thereof. The purchase
price of Shares must be payable in full at the time of exercise in cash,
Shares at fair market value, or a combination thereof, as the Committee may
determine. If the purchase price is paid by tendering Shares, the Committee
in its discretion, may grant the optionee a new stock option for the number
of Shares used to pay the purchase price. The Committee may provide in the
option agreement circumstances under which the option will become immediately
exercisable, in whole or in part, and the Committee may accelerate the
exercisability of any option in whole or in part at any time.
What is a stock appreciation right?
Stock appreciation rights ("SARs") are rights to receive cash or Shares, or
a combination thereof, as the Committee may determine, in an amount equaling
the excess of (i) the fair market value at the time of exercise of Shares
with respect to which the SAR is exercised, over (ii) a specified price which
must not be less than 100% of the fair market of the Shares at the time the
SAR is granted, or, if the SAR is granted in connection with a previously
issued stock option, not less than 100% of the fair market value of Shares at
the time such option is granted. SARs may be granted in connection with a
previously or contemporaneously granted stock option, or independently of a
stock option. No cash consideration will be received by the Company for the
granting of any SAR. Upon exercise of an SAR, the number of Shares reserved
for issuance under the Incentive Plan will be reduced by the number of Shares
covered by the SAR. Shares covered by an SAR may not be used more than once
to calculate the amount to be received pursuant to the exercise of the SAR.
If an SAR is granted in relation to a stock option, (i) the SAR will be
exercisable only at such times and by such persons as the related option is
exercisable, and (ii) the grantee's right to exercise either the related
option or the SAR will be canceled to the extent that the other is exercised.
No SAR will be exercisable earlier than six months or later than ten years
after the date of grant. The Committee may provide in the SAR agreement
circumstances under which SARs will become immediately exercisable and may,
notwithstanding the foregoing restriction on time of exercise, accelerate the
exercisability of any SAR at any time.
What is a restricted stock award?
Restricted stock awards under the Incentive Plan are awards of Shares free
of any purchase price or for such purchase price as may be established by the
Committee. Such Shares are restricted against transfer, subject to
forfeiture and subject to such other terms and conditions as may be
determined by the Committee. The Committee will determine the period of
restrictions and will specify the terms and conditions upon which
restrictions will lapse. The Committee may provide in the agreement
circumstances under which the restricted stock will become immediately
transferable and nonforfeitable, or circumstances under which the restricted
stock will be forfeited. Notwithstanding the terms of any restricted stock
agreement executed under the Incentive Plan, the Committee may accelerate the
expiration of the restriction period imposed on any Shares at any time. Each
agreement will provide that during the period the Shares are restricted, the
grantee will have all the rights of a stockholder, including, but not limited
to the right to receive dividends or the right to vote such Shares, except
that such Shares may not be sold or transferred during the restriction period
applicable to such Shares. Upon the expiration, lapse or removal of
restrictions, Shares free of restrictive legend will be issued to the grantee
or his or her legal representative.
What is a performance unit?
Performance unit awards under the Incentive Plan will entitle grantees to
future payments based upon the achievement of pre-established long-term
performance objectives. Under the Incentive Plan, a performance unit
agreement will establish with respect to each unit award (i) a performance
period of not fewer than two years, (ii) a value for each unit which will not
thereafter change, or which may vary thereafter pursuant to criteria
specified by the Committee, and (iii) maximum and minimum performance targets
to be achieved during the applicable performance period. Under each
agreement, the grantee will be entitled to full value of a unit award for
achievement of maximum targets and a portion of a unit award for performance
exceeding minimum targets and less than maximum targets. The performance
targets will relate to corporate, division or unit performance and may be
established in terms of growth in gross revenue, earnings per share, ratios
of earnings to equity assets, or such other measures or standards as may be
determined by the Committee. At any time prior to payment of a unit award,
the Committee may adjust previously established performance targets or other
terms and conditions to reflect major unforeseen events. Following the
conclusion of each performance period, the Committee will determine the
extent to which performance targets have been obtained and will as promptly
as practicable thereafter make payment in cash, Shares or a combination
thereof, in a lump sum or in installments as determined by the Committee,
unless deferred as prescribed by the Committee.
What is a stock bonus?
Stock bonuses are bonuses in the form of Company Shares granted in addition
to, or in lieu of cash bonuses. The Company may, in its sole discretion,
permit employees to receive a cash bonus in the form of Company Shares.
Does the Incentive Plan provide for loans and supplemental cash?
Yes. The Committee, to further the purposes of the Incentive Plan, may
provide for supplemental cash payments or loans to individuals in connection
with all or any part of an award under the Incentive Plan. The amount of
supplemental cash payments will not exceed (i) in the case of an option, the
excess of the fair market value of a Share on the date of exercise over the
option price multiplied by the number of Shares for which such option is
exercised, or (ii) in the case of an SAR, performance unit, or restricted
stock award, the value of the Shares and other consideration issued in
payment of such award. Any loan will be evidenced by a written loan
agreement.
What happens upon termination of employment?
With respect to stock options, if an optionee ceases to be an employee of
the Company for any cause other than retirement, death or disability, as
defined in the Incentive Plan, the optionee may exercise the option during
its term within three months after the termination to the extent that the
option was exercisable at the time of termination, or within such other
period specified by the Committee. If an optionee retires, dies or becomes
disabled prior to the expiration and full exercise of the employee's option,
the optionee or his or her beneficiary may exercise the option during its
term within a period of (i) one year after the termination of employment due
to retirement, death or disability, or (ii) one year after death if death
occurs either within one year after termination of employment due to
retirement or disability or within three months after termination of
employment for other reasons, to the extent that the option was exercisable
at the time of death or termination, or within such other period specified by
the Committee.
With respect to SARS, in the discretion of the Committee, an SAR may be made
exercisable for up to three months after the grantee's employment is
terminated for any reason other than retirement, death or disability, and for
up to one year after the grantee's employment is terminated because of
retirement, death or disability.
With respect to performance unit awards, in the event of termination due to
death, disability or retirement with the consent of the Company, any unit
award to the extent earned will be payable at the end of the performance
period according to the portion of the performance period during which the
grantee was employed, except that the Committee may provide an appropriate
settlement before the end of the period. Upon any other termination,
participation will immediately terminate and all outstanding unit awards will
be canceled.
Are the awards assignable?
Maybe. Award agreements may provide that vested awards may be transferred
to a spouse, lineal descendants who have obtained age 21 or trusts whose
beneficiaries comprise the aforementioned individuals. Otherwise, no award
under the Incentive Plan may be sold, assigned, transferred, exchanged,
pledged, hypothecated, or otherwise encumbered, other than by will or by the
laws of descent and distribution, or by such other means as the Committee may
approve. Except as otherwise provided in the Incentive Plan, during the life
of the recipient, such award will be exercisable only by such person or by
such person's guardian or legal representative.
What stockholder rights do award holders have?
Except with respect to holders of restricted stock the recipient of any
award under the Incentive Plan, unless otherwise provided by the Incentive
Plan, will have no rights as a stockholder with respect thereto unless and
until certificates for Shares are issued to the recipient, and the issuance
of Shares will confer no retroactive right to dividends.
Does receipt of an award confer any right to employment?
Nothing in the Incentive Plan or in any agreement entered into pursuant to
the Incentive Plan will confer upon any person the right to continue in the
employment or services of the Company or affect any right which the Company
may have to terminate the employment or services of such person.
What withholding obligations exist?
Prior to the issuance or transfer of Shares under the Incentive Plan, the
recipient must remit to the Company an amount sufficient to satisfy any
federal, state or local withholding tax requirements. With the prior
approval of the Committee, the recipient may satisfy the withholding
requirement in whole or in part by electing, prior to the date that the
withholding amount is determined, to have the Company withhold Shares equal
in value to the withholding amount subject to applicable securities law and
other legal requirements. Whenever payments to a grantee under the Incentive
Plan are to be made in cash, such payments will be net of the amount
necessary to satisfy withholding tax requirements.
Must all award grants be uniform?
No. The Committee's determinations under the Incentive Plan need not be
uniform and may be made selectively among persons who receive, or are
eligible to receive, awards under the Incentive Plan, whether or not such
persons are similarly situated.
What happens upon a Change in Control?
In the event of (i) a Change in Control (as defined below) or (ii) a
Potential Change in Control (as defined below), but only if and to the extent
so determined by the Board of Directors at or after grant (subject to any
right of approval expressly reserved by the Board of Directors at the time of
such determination), the following acceleration and valuation provisions will
apply: (a) any SARs outstanding for at least six months and any stock options
awarded under the Incentive Plan not previously exercisable and vested will
become fully exercisable and vested; (b) any restrictions and deferral
limitations applicable to any restricted stock, performance units or other
stock-based awards, in each case to the extent not already vested under the
Incentive Plan, will lapse and such shares, performance units or other
stock-based awards will be deemed fully vested; and (iii) the value of all
outstanding stock options, SARS, restricted stock, performance units and
other stock-based awards, in each case to the extent vested, will, unless
otherwise determined by the Committee in its sole discretion at or after
grant but prior to any Change in Control, be cashed out on the basis of the
Change in Control Price (as defined) as of the date such Change in Control or
such Potential Change in Control is determined to have occurred or such other
date as the Committee may determine prior to the Change in Control.
As used in the Incentive Plan, the term "Change in Control" means the
happening of any of the following: (i) any person or entity, including a
"group" as defined in Section 13(d)(3) of the 1934 Act, other than the
Company, a subsidiary of the Company, or any employee benefit plan of the
Company or its subsidiaries, becomes the beneficial owner of the Company's
securities having 25% or more of the combined voting power of the then
outstanding securities of the Company that may be cast for the election for
directors of the Company (other than as a result of an issuance of securities
initiated by the Company in the ordinary course of business); (ii) as the
result of, or in connection with, any cash tender or exchange offer, merger
or other business combination, sale of assets or contested election, or any
combination of the foregoing transactions, less than a majority of the
combined voting power of the then outstanding securities of the Company or
any successor corporation or entity entitled to vote generally in the
election of directors of the Company or such other corporation or entity
after such transaction, are held in the aggregate by holders of the Company's
securities entitled to vote generally in the election of directors of the
Company immediately prior to such transactions; or (iii) during any period of
two consecutive years, individuals who at the beginning of any such period
constitute the Board of Directors cease for any reason to constitute at least
a majority thereof, unless the election, or the nomination for election by
the Company's stockholders, of each director of the Company first elected
during such period was approved by a vote of at least two-thirds of the
directors of the Company then still in office who were directors of the
Company at the beginning of any such period.
As used in the Incentive Plan, the term "Potential Change in Control" means
the happening of any of the following: (i) the approval by stockholders of an
agreement by the Company, the consummation of which would result in a Change
in Control of the Company; or (ii) the acquisition of beneficial ownership,
directly or indirectly, by any entity, person or group (other than the
Company, a wholly-owned subsidiary thereof or any employee benefit plan of
the Company or its subsidiaries (including any trustee of such plan acting as
such trustee)) of securities of the Company representing 5% or more of the
combined voting power of the Company's outstanding securities and the
adoption by the Board of Directors of a resolution to the effect that a
Potential Change in Control of the Company has occurred for purposes of the
Incentive Plan.
As used in the Incentive Plan, the term "Change in Control Price" means the
highest price per share paid in any transaction reported on the New York
Stock Exchange, or paid or offered in any bona fide transaction related to a
Potential or actual Change in Control of the Company at any time during the
60 day period immediately preceding the occurrence of the Change in Control
(or, where applicable, the occurrence of the Potential Change in Control
event), in each case determined by the Committee.
Can awards be forfeited for competing with the Company?
Yes. Unless the award agreement relating to a stock option, SAR, restricted
stock, performance unit or stock bonus specifies otherwise, a grantee will
forfeit all unexercised, unearned and/or unpaid awards, including awards
earned but not yet paid, all unpaid dividends and dividend equivalents, and
all interest, if any, accrued on the foregoing if, (i) in the opinion of the
Committee, the grantee without the written consent of the Company, engages in
any business or activity competitive with the business conducted by the
Company or any of its subsidiaries; or (ii) the grantee performs any act or
engages in any activity which in the opinion of the Chief Executive Officer
of the Company is inimical to the best interests of the Company.
What adjustments will be made to the awards to reflect changes in the Company
Shares?
In the event of any change in the outstanding common stock of the Company by
reason of a stock dividend or distribution, recapitalization, merger,
consolidation, reorganization, split-up, combination, exchange of Shares or
the like, the Board of Directors, in its discretion, may adjust
proportionately the number of Shares which may be issued under the Incentive
Plan, the number of Shares subject to outstanding awards, and the option
exercise price of each outstanding option. The Board of Directors may also
make such other changes in outstanding options, SARs performance units and
restricted stock awards as it deems equitable in its absolute discretion to
prevent dilution or enlargement of the rights of grantees, provided that any
fractional Shares resulting from such adjustments will be eliminated.
How is the Incentive Plan amended or terminated?
The Board of Directors may terminate, amend, modify or suspend the Incentive
Plan at any time. No termination, modification, amendment or suspension of
the Incentive Plan will adversely affect the rights of any grantee or
beneficiary under an award previously granted, unless the grantee or
beneficiary consents thereto; but it will be conclusively presumed that any
adjustment to the Incentive Plan does not adversely affect any such right.
Will participation in the Incentive Plan affect a participant's eligibility
to participate in other plans?
No. Participation in the Incentive Plan will not affect a participant's
eligibility to participate in any other benefit or incentive plan of the
Company. Any award made pursuant to the Incentive Plan will not be used in
determining the benefits provided under any other plan of the Company unless
specifically provided therein.
What are the effective date and duration of the Incentive Plan?
The Incentive Plan became effective on April 9, 1997. Unless it is sooner
terminated in accordance with the Incentive Plan, the Incentive Plan will
remain in effect until all awards under the Incentive Plan have been
satisfied by the issuance of Shares or the payment of cash or have expired or
otherwise terminated, but no award will be granted after April 8, 2007.
Are there other general restrictions under the Incentive Plan?
Yes. The Incentive Plan provides that each award under the Incentive Plan
will be subject to certain general restrictions set forth in Paragraph 13 of
the Incentive Plan.
What are the federal tax consequences of options?
An optionee will realize no taxable income at the time an option or SAR is
granted under the Incentive Plan.
Generally, the tax treatment of transferable and nontransferable options is
the same. The exercise of an option will result in ordinary federal taxable
income to the optionee in an amount equal to the excess of the fair market
value of the Shares 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 the optionee. Upon a
subsequent disposition of the option Shares, the optionee will recognize a
short-term or long-term capital gain (or loss) equal to the difference of
the amount received and the tax basis of such Shares, depending upon the
holding period of the Shares.
If a participant to whom an option was granted transfers the option to a
permitted transferee in an arms-length transaction, the participant to whom
an option was transferred in a permitted transfer will recognize ordinary
federal taxable income equal to the consideration received from the
transferee at the time of the transfer, and thereafter will have no further
income tax effect. If the optionee transfers the option in a non-arms-length
transaction, he 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 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 an option.
A transferee of an option will recognize a short-term or long-term capital
gain (or loss) when he resells the option, or when he sells the option Shares
after exercise of the option. There will be no income tax effect on exercise
of the option.
How will I be taxed with respect to my Award?
With respect to SARs, a grantee will realize ordinary income upon the
exercise of the SAR equaling the amount of cash received or the current fair
market value of stock acquired, and the Company will receive a corresponding
deduction. Upon subsequent disposition of any Shares received, any gain or
loss will be a long- or short-term capital gain or loss depending upon the
applicable holding period.
With respect to restricted stock awards, the federal income tax consequences
will depend on the facts and circumstances of each restricted stock award,
and in particular, the nature of the restrictions imposed with respect to the
Shares which are the subject of the award. In general, if the Shares are
subject to a "substantial risk of forfeiture," i.e., if rights to full
enjoyment of the benefit of ownership of the Shares are conditioned upon the
future performance of substantial services by the grantee, a taxable event
occurs only when the risk of forfeiture ceases. At such time, the grantee
will realize ordinary income to the extent of the excess of the fair market
value of the Shares on the date the risk ceases over the grantee's cost for
such Shares, and the Company will be entitled to a deduction in the same
amount at the same time. Under certain circumstances, the grantee, by making
an election under Code section 83(b), can accelerate the taxable event with
respect to the Shares, in which event the ordinary income amount and the
Company's deduction will be measured as of the date Shares are deemed for
section 83(b) purposes to have been transferred to the grantee. If the
restrictions with respect to Shares which are the subject of a restricted
stock award do not subject the grantee to a "substantial risk of forfeiture"
of the Shares, then the grantee will realize ordinary income with respect to
the Shares to the extent of the difference at the time of the transfer of the
Shares to the grantee between the fair market value of the Shares and the
grantee's cost therefor, and the Company will be entitled to a deduction in
the same amount at such time. Subsequent to the determination and
satisfaction of the ordinary income tax consequences, any further gain or
loss realized on the subsequent disposition of such Shares will be a long- or
short-term capital gain or loss depending upon the applicable holding period.
With respect to performance unit awards, a grantee will realize ordinary
income upon receipt equaling the amount of cash or the current market value
of the stock received, and the Company will receive a corresponding
deduction. Upon subsequent disposition of any Shares received, any gain or
loss will be a longer short-term gain or loss depending upon the applicable
holding period.
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.
The Incentive Plan is not subject to or qualifiable under Section 401(a) of
the Code or any of the provisions of the Employee Retirement Income Security
Act of 1974.
PLAN OF DISTRIBUTION
A copy of this Prospectus will be delivered by the Company to each
participant in the Plan upon grant of an option, stock appreciation right,
performance unit or restricted Share.
LEGAL OPINIONS
Certain legal matters in connection with the Shares will be passed upon for
the Company by Sommer & Barnard, Attorneys at Law, PC, Indianapolis, Indiana.
EXPERTS
The consolidated financial statements appearing in the Company's Form 10-K
as of February 1, 1997 and February 3, 1996 and for each of the three years
in the period ended February 1, 1997, 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. 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,
incorporated by reference herein , have been audited by Coopers & Lybrand
L.L.P., independent accountants, as set forth in their report thereon and
incorporated by reference therein. Such consolidated financial statements
are incorporated by reference herein in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
The consolidated financial statements incorporated in this prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
February 1, 1997 as it related to Younkers, Inc. and subsidiary for the year
ended January 28, 1995, not separately presented, have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which
is incorporated herein by reference, and have been so incorporated in
reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
All amounts are estimates except the SEC registration fee.
SEC Registration Fee . . . . . . . . . . . . . . . . . . . . $11,390.90
Accounting fees and expenses . . . . . . . . . . . . . . . . .10,000.00
Legal fees and expenses. . . . . . . . . . . . . . . . . . . .15,000.00
Printing and engraving expenses. . . . . . . . . . . . . . . . 2,000.00
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . 0.00
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $38,390.90
__________
Item 15. Indemnification of Directors and Officers.
The By-Laws of the Company provide that the Company 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 the
Company or serves or served as an officer or director of any other enterprise
at the request of the Company.
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 of 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.
The Company's By-Laws further provide that the Company may purchase and
maintain insurance on behalf of any person who is or was or has agreed to
become a director or officer of the Company, or is or was serving at the
request of the Company 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 the Company would have the power to indemnify such person
against such liability under the By-Laws, provided that such insurance is
available on acceptable terms as determined by a majority of the Company's
Board of Directors.
Item 16. Exhibits.
The following exhibits are filed as a part of this Registration Statement:
Exhibit
No. Description
------ --------------
4.1 Proffitt's, Inc. 1997 Stock-Based Incentive Plan
5.1 Opinion of Sommer & Barnard, PC
23.1 Consent of Sommer & Barnard, PC (included in Exhibit 5)
23.2 Consent of Coopers & Lybrand, L.L.P. (Proffitt's)
23.3 Consent of Deloitte & Touche, LLP
23.4 Consent of Coopers & Lybrand, L.L.P. (Parisian)
24.1 Power of Attorney (included on signature page)
27.1 Not Required; financials previously filed
Item 17. 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 post-effective 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.
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 its behalf by the
Undersigned, thereunto duly authorized, in the city of Jackson, State
of Mississippi, on the 28th day of July, 1997.
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, including any Registration Statement filed pursuant to Rule
462(b) under the Securities Act of 1933, 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 July 28, 1997 by the
following persons in the capacities indicated.
/s/ R. Brad Martin Chairman of the Board and
----------------------- Chief Executive Officer
R. Brad Martin (Principal Executive Officer)
/s/ Ronald deWaal Vice Chairman and Director
------------------------
Ronald deWaal
/s/ Douglas E. Coltharp Executive Vice President and
------------------------ Chief Financial Officer
Douglas E. Coltharp (Principal Financial Officer)
/s/ Donald E. Wright Senior Vice President of Finance
------------------------ and Accounting
Donald E. Wright (Principal Accounting Officer)
/s/ Bernard E. Bernstein Director
------------------------
Bernard E. Bernstein
/s/ Edmond D. Cicala Director
------------------------
Edmond D. Cicala
/s/ Gerard K. Donnelly Director
------------------------
Gerard K. Donnelly
/s/ Donald F. Dunn Director
------------------------
Donald F. Dunn
/s/ Michael S. Gross Director
------------------------
Michael S. Gross
------------------------ Director
Donald E. Hess
/s/ G. David Hurd Director
------------------------
G. David Hurd
/s/ C. Warren Neel Director
------------------------
C. Warren Neel
/s/ Marguerite W. Sallee Director
------------------------
Marguerite W. Sallee
------------------------ Director
Gerald Tsai, Jr.
EXHIBIT INDEX
Exhibit
No. Description
4.1 Proffitt's, Inc. 1997 Stock-Based Incentive Plan
5.1 Opinion of Sommer & Barnard, PC
23.1 Consent of Sommer & Barnard, PC (included in Exhibit 5)
23.2 Consent of Coopers & Lybrand, L.L.P. (Proffitt's)
23.3 Consent of Deloitte & Touche, L.L.P.
23.4 Consent of Coopers & Lybrand, L.L.P. (Parisian)
24.1 Power of Attorney (included on signature page)
27.1 Not Required; financials previously filed
PROFFITT'S, INC.
1997 STOCK-BASED INCENTIVE PLAN
1. Purpose.
The purpose of the PROFFITT'S, INC. 1997 STOCK-BASED INCENTIVE
PLAN (the "Plan") is to further the earnings of PROFFITT'S, INC.,
a Tennessee corporation, and its affiliated companies
(collectively, the "Company") by assisting the Company in
attracting, retaining and motivating employees and directors of
high caliber and potential. The Plan provides for the award of
stock-based incentives to certain employees and directors who make
substantial contributions to the Company by their loyalty, industry
and invention.
2. Administration.
The Plan shall be administered by a committee (the "Committee")
selected by the Board of Directors of the Company (the "Board of
Directors") consisting solely of two or more non-employee
directors. The Committee shall have full and final authority in
its discretion to interpret the provisions of the Plan and to
decide all questions of fact arising in its application. Subject
to the provisions hereof, the Committee shall have full and final
authority in its discretion to determine the employees and
directors to whom awards shall be made under the Plan; to determine
the type of awards to be made and the amount, size and terms and
conditions of each such award; to determine the time when awards
shall be granted; to determine the provisions of each agreement
evidencing an award; and to make all other determinations necessary
or advisable for the administration of the plan.
3. Stock Subject to the Plan.
The Company may grant awards under the Plan with respect to
not more than a total of 2,300,000 shares of $.10 par value common
stock of the Company (the "Shares") (subject, however, to adjustment
as provided in paragraph 21, below). Such shares may be authorized
and unissued Shares or treasury Shares and may be purchased on the
open market or otherwise. Except as otherwise provided herein, any
Shares subject to an option or right which for any reason is
surrendered before exercise, or expires or is terminated
unexercised as to such Shares, shall again be available for the
granting of awards under the Plan. Similarly, if any Shares
granted pursuant to restricted stock awards are forfeited, such
forfeited Shares shall again be available for the granting of
awards under the Plan.
4. Eligibility to Receive Awards.
All employees and directors of the Company are eligible to
receive awards under the Plan.
5. Form of Awards.
Awards may be made from time to time by the Committee in the
form of stock options to purchase Shares, stock appreciation
rights, performance units, restricted stock, bonus shares or any
combination of the above. Stock options granted under the Plan are
nonqualified stock options, which are not intended to qualify as
incentive stock options within the meaning of Section 422(b) of the
Internal Revenue Code.
6. Stock Options.
Stock options for the purchase of Shares shall be evidenced by
written agreements in such form not inconsistent with the Plan as
the Committee shall approve from time to time; provided that the
maximum number of options which may be granted to any one grantee
during any twelve-month period is 125,000 (as adjusted pursuant to
paragraph 21, below). Such agreement shall contain the terms and
conditions applicable to the options, including in substance the
following terms and conditions:
(a) Number of Option. Each option agreement shall set forth the
number of Shares subject to the options.
(b) Option Price. The option exercise price to be paid by the
optionee to the Company for each Share purchased upon the
exercise of an option shall be determined by the Committee,
but shall in no event be less than the fair market value of a
Share on the date the option is granted.
(c) Exercise Term. Each option agreement shall state the period
or periods of time within which the option may be exercised,
in whole or in part, as determined by the Committee, and
subject to such terms and conditions as are prescribed for
such purpose by the Committee, provided that no option shall
be exercisable after ten years from the date of grant thereof.
The Committee, in its discretion, may provide in the option
agreement circumstances under which the option shall become
immediately exercisable, in whole or in part, and,
notwithstanding the foregoing, may accelerate the
exercisability of any option, in whole or in part, at any
time.
(d) Payment for Shares. The purchase price of the Shares with
respect to which an option is exercised shall be payable in
full at the time of exercise in cash, shares at fair market
value, or a combination thereof, as the Committee may
determine and subject to such terms and conditions as may be
prescribed by the Committee for such purpose. If the purchase
price is paid by tendering Shares, the Committee in its
discretion may grant the optionee a new stock option for the
number of Shares used to pay the purchase price.
(e) Rights Upon Termination. In the event of Termination (as
defined below) of an optionee's status as an employee or
director of the Company for any cause other than Retirement
(as defined below), death or Disability, (as defined below),
the optionee shall have the right to exercise the option
during its term within a period of three months after such
Termination to the extent that the option was exercisable at
the time of Termination, or within such other period, and
subject to such terms and conditions, as may be specified by
the Committee. (As used herein, "Termination" means the
cessation of the grantee's employment or service by the
Company for any reason, and "Terminates" has the corresponding
meaning. As used herein, "Retirement" means retirement from
active employment or service with the Company on or after age
65, or such earlier age with the express written consent for
purposes of the Plan of the Company at or before the time of
such retirement, and "Retires" has the corresponding meaning.
As used herein, "Disability" means a condition that, in the
judgment of the Committee, has rendered a grantee completely
and presumably permanently unable to perform any and every
duty of his regular occupation, and "Disabled" has the
corresponding meaning.) In the event that an optionee
Retires, dies or becomes Disabled prior to the expiration of
his option and without having fully exercised his option, the
optionee or his Beneficiary (as defined below) shall have the
right to exercise the option during its term within a period
of (i) one year after Termination due to Retirement, death or
Disability, or (ii) one year after death if death occurs
either within one year after Termination due to Retirement or
Disability or within three months after Termination for other
reasons, to the extent that the option was exercisable at the
time of death or Termination, or within such other period, and
subject to such terms and conditions, as may be specified by
the Committee. (As used herein, "Beneficiary" means the person
or persons designated in writing by the grantee as his
beneficiary with respect to an award under the Plan; or, in
the absence of an effective designation or if the designated
person or persons predeceases the grantee, the grantee's
Beneficiary shall be the person or persons who acquire by
bequest or inheritance the grantee's rights in respect of an
award). In order to be effective, a grantee's designation of
a Beneficiary must be on file with the Committee before the
grantee's death, but any such designation may be revoked and
a new designation substituted therefor at any time before the
grantee's death.
(f) Transferability. Except as provided in paragraph 12, options
granted under the Plan shall not be sold, assigned,
transferred, exchanged, pledged, hypothecated, or otherwise
encumbered, other than by will or by the laws of descent and
distribution until such options become vested.
7. Stock Appreciation Rights.
Stock appreciation rights ("SARs") shall be evidenced by
written SAR agreements in such form not inconsistent with the Plan
as the Committee shall approve from time to time; provided that the
maximum number of SARs which may be granted to any one grantee
during any twelve-month period is 125,000, (as adjusted pursuant to
paragraph 21, below). Such SAR agreements shall contain the terms
and conditions applicable to the SARs, including in substance the
following terms and conditions:
(a) Award. SARs may be granted in connection with a previously or
contemporaneously granted stock option, or independently of a
stock option. SARs shall entitle the grantee, subject to such
terms and conditions as may be determined by the Committee, to
receive upon exercise portion of the excess of (i) the fair
market value at the time of exercise, as determined by the
Committee, of a specified number of Shares with respect to
which the SAR is exercised, over (ii) a specified price which
shall not be less than 100% of the fair market value of the
Shares at the time the SAR is granted, or, if the SAR is
granted in connection with a previously issued stock option,
not less than 100% of the fair market value of the Shares at
the time such option was granted. Upon exercise of an SAR,
the number of Shares reserved for issuance hereunder shall be
reduced by the number of Shares covered by the SAR. Shares
covered by an SAR shall not be used more than once to
calculate the amount to be received pursuant to the exercise
of the SAR.
(b) SARs Related to Stock Options. If an SAR is granted in
relation to a stock option, (i) the SAR shall be exercisable
only at such times, and by such persons as the related option
is exercisable; (ii) the grantee's right to exercise the
related option shall be canceled if and to the extent that the
Shares subject to the option are used to calculate the amount
to be received upon the exercise of the related SAR; (iii) the
grantee's right to exercise the related SAR shall be canceled
if and to the extent that the Shares subject to the SAR are
purchased upon the exercise of the related option; and (iv)
the SAR shall not be transferable other than by will or by the
laws of descent and distribution until the SAR vests, at which
time the vested portion of the SAR will become transferable as
provided in paragraph 12, below.
(c) Term. Each SAR agreement shall state the period or periods of
time within which the SAR may be exercised, in whole or in
part, as determined by the Committee and subject to such terms
and conditions as are prescribed for such purpose by the
Committee, provided that no SAR shall be exercisable earlier
than six months after the date of grant or later than ten
years after the date of grant. The Committee may, in its
discretion, provide in the SAR agreement circumstances under
which the SARs shall become immediately exercisable, in whole
or in part, and may, notwithstanding the foregoing, accelerate
the exercisability of any SAR, in whole or in, Part, at any
time.
(d) Termination. SARs shall be exercisable only during the
grantee's tenure as an employee or director of the Company,
except that, in the discretion of the Committee, an SAR may be
made exercisable for up to three months after the grantee is
Terminated for any reason other than Retirement, death or
Disability, and for up to one year after the grantee is
Terminated because of Retirement, death or Disability.
(e) Payment. Upon exercise of an SAR, payment shall be made in
cash, in Shares valued at fair market value on the date of
exercise, or in a combination thereof, as the Committee may
determine at the time of exercise.
(f) Other Terms. SARs shall be granted in such manner and such
form, and subject to such additional terms and conditions, as
the Committee in its sole discretion deems necessary or
desirable, including without limitation, in order to avoid any
insider-trading liability in connection with an SAR under
Section 16(b) of the 1934 Act.
8. Restricted Stock Awards.
Restricted stock awards under the Plan shall consist of Shares
free of any purchase price, or for such purchase price as may be
established by the Committee, restricted against transfer, subject
to forfeiture, and subject to such other terms and conditions
(including attainment of performance objectives) as may be
determined by the Committee. Restricted stock shall be evidenced
by written restricted stock agreements in such form not
inconsistent with the Plan as the Committee shall approve from time
to time, which agreement shall contain the terms and conditions
applicable to such awards, including in substance the following
terms and conditions:
(a) Restriction Period. Restrictions shall be imposed for such
period or periods as may be determined by the Committee. The
Committee, in its discretion, may provide in the agreement
circumstances under which the restricted stock shall become
immediately transferable and nonforfeitable, or under which
the restricted stock shall be forfeited, and, notwithstanding
the foregoing, may accelerate the expiration of the
restriction period imposed on any Shares at any time.
(b) Restrictions Upon Transfer. Restricted stock and the right to
vote such Shares and to receive dividends thereon, may not be
sold, assigned, transferred, exchanged, pledged, hypothecated,
or otherwise encumbered, except as herein provided, during the
restriction period applicable to such Shares. Notwithstanding
the foregoing, and except as otherwise provided in the Plan,
the grantee shall have all of the other rights of a
stockholder, including, but not limited to, the right to
receive dividends and the right to vote such Shares.
(c) Certificates. A certificate or certificates representing the
number of restricted Shares granted shall be registered in the
name of the grantee. The Committee, in its sole discretion,
shall determine when the certificate or certificates shall be
delivered to the grantee (or, in the event of the grantee's
death, to his Beneficiary), may provide for the holding of
such certificate or certificates in escrow or in custody by
the Company or its designee pending their delivery to the
grantee or Beneficiary, and may provide for any appropriate
legend to be borne by the certificate or certificates.
(d) Lapse of Restrictions. The restricted stock agreement shall
specify the terms and conditions upon which any restriction
upon restricted stock awarded under the Plan shall expire,
lapse, or be removed, as determined by the Committee.
9. Performance Units.
Performance unit awards under the Plan shall entitle grantees
to future payments based upon the achievements of preestablished
long-term performance objectives and shall be evidenced by written
performance unit agreements in such form not inconsistent with this
Plan as the Committee shall approve from time to time. Such
agreements shall contain the terms and conditions applicable to the
performance unit awards, including in substance the following terms
and conditions:
(a) Performance Period. The Committee shall establish with
respect to each unit award a performance period.
(b) Unit Value. The Committee shall establish with respect to
each unit award value for each unit which shall not thereafter
change, or which may vary thereafter pursuant to criteria
specified by the Committee.
(c) Performance Targets. The Committee shall establish with
respect to each unit award maximum and minimum performance
targets to be achieved during the applicable performance
period. Achievement of maximum targets shall entitle grantees
to payment with respect to the full value of a unit award.
Grantees shall be entitled to payment with respect to a
portion of a unit award according to the level of achievement
of targets as specified by the Committee for performance which
achieves or exceeds the minimum target but fails to achieve
the maximum target.
(d) Performance Measures. Performance targets established by the
Committee shall relate to corporate, subsidiary, division,
unit or individual performance and may be established in terms
of growth in gross revenue, earnings per share, stock price,
ratios of earnings to equity or assets, individual sales, or
such other measures or standards as may be determined by the
Committee in its discretion. Multiple targets may be used and
may have the same or different weighing, and they may relate
to absolute performance or relative performance measured
against other companies or businesses.
(e) Adjustments. At any time prior to the payment of a unit
award, the Committee may adjust previously established
performance targets or other terms and conditions, including
the Company's financial performance for Plan purposes, to
reflect major unforeseen events such as changes in laws,
regulations or accounting practices, mergers, acquisitions or
divestitures or other extraordinary, unusual or non-recurring
items or events.
(f) Payment of Unit Awards. Following the conclusion of a
performance period, the Committee shall determine the extent
to which performance targets have been attained and any other
terms and conditions satisfied for such period. The Committee
shall determine what, if any, payment is due on the unit award
and whether such payment shall be made in cash, Shares, or a
combination thereof. Payment shall be made in a lump sum or
installments, as determined by the Committee, commencing as
promptly as practicable following the end of the performance
period unless deferred subject to such terms and conditions
and in such form as may be prescribed by the Committee.
(g) Termination. In the event that a grantee is Terminated as an
employee by the Company prior to the end of the performance
period by reason of death, Disability, or Retirement with the
consent of the Company, any unit award, to the extent earned
under the applicable performance targets may, in the
Committee's sole discretion, be payable at the end of the
performance period according to the portion of the performance
period during which the grantee was employed by or provided
services to the Company, provided that the Committee shall
have the power to provide for an appropriate settlement of a
unit award before the end of the performance period. Upon any
other Termination, participation shall terminate forthwith and
all outstanding unit awards shall be canceled.
10. Loans and Supplemental Cash.
The Committee, in its sole discretion to further the purpose
of the Plan, may provide for supplemental cash payments or loans to
employees or directors in connection with all or any part of an
award under the Plan. Supplemental cash payments shall be subject
to such terms and conditions as shall be prescribed by the
Committee at the time of grant, provided that in no event shall the
amount of payment exceed:
(a) In the case of an option, the excess fair market value of a
Share on the date of exercise over the option price multiplied
by the number of Shares for which such option is exercised, or
(b) In the case of an SAR, performance unit, or restricted stock
award, the value of the Shares and other consideration issued
in payment of such award.
Any loan shall be evidenced by a written loan agreement or other
instrument in such form and containing such terms and conditions
(including, without limitation, provisions for interest, payment
schedules, collateral, forgiveness or acceleration) as the
Committee may prescribe from time to time.
11. Stock Bonuses
The Committee may, in its sole discretion, award a bonus to
any employee or director in the form of Company Shares in addition
to, or in lieu of a cash bonus. In addition, the Company may, in
its sole discretion, permit an employee to elect to receive a cash
bonus in the form of Company Shares.
12. Restrictions on Transfer of Awards.
Except as permitted by this paragraph 12, no awardholder may
sell, transfer, assign, convey or otherwise dispose of or alienate
any of his awards 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 awards or any right or interest therein. Any purported
transfer of awards in violation of this paragraph shall be void and
ineffective and shall not operate to transfer any interest in or
title to such awards to the purported Award Transferee and the
Company shall not record any such purported transfer in its
transfer records.
(a) Permitted Transfers of Awards by Participants. Upon ten (10)
days prior written notice to the Company (or such lesser
number of days as the Company may agree to in writing) an
awardholder may sell, transfer or assign all or any number of
his awards to an Award Transferee who (or which) is an Award
Transferee (defined below) only if, prior to such transfer,
such Award Transferee has agreed in writing, in form and
substance satisfactory to the Company, in its sole discretion,
that such Award Transferee and the award transferred to him
shall be bound by the provisions of this Plan including,
without limitation, those of this paragraph 12. Such notice
shall specify the name and address of the proposed Award
Transferee, the relationship between the Participant and the
proposed transferee which establishes the proposed transferee
as an Award Transferee of the Participant and the number and
prices (if any) of the awards to be transferred to such
proposed Award Transferee. Notwithstanding the foregoing
provisions of this paragraph, if awards are transferred to an
Award 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 the Company then, on the effective date of such
amendment, ownership of all awards then owned by such
Qualified Trust shall revert to its Transferor.
(b) Permitted Transfers of Awards By Other Awardholders. Upon ten
(10) days prior written notice to the Company (or such lesser
number of days as the Company may agree to in writing), an
awardholder other than a Participant may sell, transfer or
assign all or any number of his awards to his Transferor if,
prior to such transfer, such Transferor has agreed in writing,
in form and substance satisfactory to the Company, that such
Transferor and the awards transferred to him shall be bound by
the provisions of this Plan including, without limitation,
those of this paragraph 12. Such notice shall specify the
number and prices (if any) of the awards to be transferred to
such Transferor.
(c) Effect of Transfer of Awards. The provisions of this
subparagraph (c) shall apply in the event a participant
transfers awards to an Award Transferee pursuant to
subparagraph (a).
(i) Forfeitures of Awards. All of an Award Transferee's
awards shall be forfeited on the date any awards owned by
his Transferor are or would be forfeited pursuant to
paragraph 20. On the date an Award Transferee's awards
are forfeited pursuant to this paragraph 12, the rights
of such Award Transferee shall be terminated.
(ii) Exercise of Awards. An Award Transferee shall be
entitled to exercise his awards 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 awards owned by such
Transferor.
(iii) Beneficiaries. Upon an Award Transferee's receipt
of any awards, the provisions of the Plan governing
the determination of a participant's Beneficiary
shall apply to such Award Transferee as if such
Award Transferee were a participant.
(iv) Deemed Ownership of Awards. Each Participant shall be
deemed to own all of the awards actually owned by his
Award Transferees for the purpose of determining the
number of awards to be granted to a Participant pursuant
to paragraph 12.
(d) Rights of Award Transferees. Notwithstanding anything to the
contrary contained in this Plan, the rights of an Award
Transferee with respect to all awards owned by such Award
Transferee shall be the same as those of the individual who
first owned such award determined as if such individual then
owned such award.
(e) Definitions. Unless otherwise provided, for purposes of the
Plan, the following terms have the following meaning:
(i) Award 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 the participant, his
spouse and lineal descendants.
(ii) Qualified Trust. A trust established pursuant to a
written document which has been approved in writing by
the Company in its sole discretion and which, by its
terms:
(1) authorizes the trustee of such trust to: acquire,
own and dispose of shares of stock and other
securities and awards under which shares of stock
and other securities may be issued; exercise any
award; grant proxies to vote any securities owned
by such trust; and enter into agreements with
respect to such securities, the term of which may
extend beyond the term of the trust;
(2) provides that awards and Shares held by the trustee
of such trust shall only be distributed to a
beneficiary of such trust if such beneficiary is an
Award Transferee of the grantor of such trust, and
prior to such distribution, has agreed in writing,
in form and substance satisfactory to the Company,
in its sole discretion, that such beneficiary and
the awards and Shares distributed to him shall be
bound by the provisions of this Plan including,
without limitation, those of this paragraph 12;
(3) cannot be amended without the prior written
approval of the Company which approval may be
withheld by the Company in its sole discretion;
(4) provides that any such amendment which is not so
approved by the Company shall be invalid; and
(5) contains such other terms and provisions as the
Company, it its sole discretion, shall determine to
be appropriate.
(iii) Transferor. With respect to an Award Transferee,
the participant to whom the awards owned by such
Award Transferee were originally granted.
13. General Restrictions.
Each award under the Plan shall be subject to the requirement
that if at any time the Company shall determine that (i) the
listing, registration or qualification of the Shares subject or
related thereto upon any securities exchange or under any state or
federal law, or (ii) the consent or approval of any regulatory
body, or (iii) an agreement by the recipient of an award with
respect to the disposition of Shares, or (iv) the satisfaction of
withholding tax or other withholding liabilities is necessary or
desirable as a condition of or in connection with such award or the
issuance or purchase of Shares thereunder, such award shall not be
consummated in whole or in part unless such listing, registration,
qualification, consent, approval, agreement, or withholding shall
have been effected or obtained free of any conditions not
acceptable to the Company. Any restriction affecting an award shall
not extend the time within which the award may be exercised; and
neither the Company nor its directors or officers nor the Committee
shall have any obligation or liability to the grantee or to a
Beneficiary or Award Transferee with respect to any Shares with
respect to which an award shall lapse or with respect to which the
grant, issuance or purchase of Shares shall not be effected,
because of any such restriction.
14. Single or Multiple Agreements.
Multiple awards, multiple forms of awards, or combinations
thereof may be evidenced by a single agreement or multiple
agreements, as determined by the Committee.
15. Rights of the Stockholder.
The recipient of any award under the Plan, shall have no
rights as a stockholder with respect thereto unless and until
certificates for Shares are issued to him, and the issuance of
shares shall confer no retroactive right to dividends.
16. Rights to Terminate.
Nothing in the Plan or in any agreement entered into pursuant
to the Plan shall confer upon any person the right to continue in
the employment or service of the Company or affect any right which
the Company may have to terminate the employment or service of such
person.
17. Withholding.
(a) Prior to the issuance or transfer of Shares under the Plan,
the recipient shall remit to the Company an amount sufficient
to satisfy any federal, state or local withholding tax
requirements. The recipient may satisfy the withholding
requirement in whole or in part by electing to have the
Company withhold Shares having a value equal to the amount
required to be withheld. The value of the Shares to be
withheld shall be the fair market value, as determined by the
Committee, of the stock on the date that the amount of tax to
be withheld is determined (the "Tax Date"). Such election must
be made prior to the Tax Date, must comply with all applicable
securities law and other legal requirements, as interpreted by
the Committee, and may not be made unless approved by the
Committee, in its discretion.
(b) Whenever payments to a grantee in respect of an award under
the Plan are paid in cash, such payments shall be net of the
amount necessary to satisfy any federal, state or local
withholding tax requirements.
18. Non-Uniform Determinations.
The Committee's determinations under the Plan (including
without limitation determinations of the persons to receive awards,
the form, amount and timing of such awards, the terms and
provisions of such awards and the agreements evidencing same, and
the establishment of values and performance targets) need not be
uniform and may be made selectively among persons who receive, or
are eligible to receive, awards under the Plan, whether or not such
persons are similarly situated.
19. Change In Control Provisions.
(a) In the event of (1) a Change in Control (as defined) or (2) a
Potential Change in Control (as defined), but only if and to
the extent so determined by the Board of Directors at or after
grant (subject to any right of approval expressly reserved by
the Board of Directors at the time of such determination), the
following acceleration and valuation provisions shall apply:
(i) Any SARs outstanding for at least six months and any
stock awards awarded under the Plan not previously
exercisable and vested shall become fully exercisable and
vested.
(ii) Any restrictions and deferral limitations applicable to
any restricted stock, performance units or other stock-based
awards, in each case to the extent not already
vested under the Plan, shall lapse and such shares,
performance units or other stock-based awards shall be
deemed fully vested.
(iii) The value of all outstanding stock awards, SARs,
restricted stock, performance units and other stock-based
awards, in each case to the extent vested, shall, unless
otherwise determined by the Committee in its sole
discretion at or after grant but prior to any Change in
Control, be cashed out on the basis of the Change in
Control Price (as defined) as of the date such Change in
Control or such Potential Change in Control is determined
to have occurred or such other date as the Committee may
determine prior to the Change in Control.
(b) As used herein, the term "Change in Control" means the
happening of any of the following:
(i) Any person or entity, including a "group" as defined in
Section 13(d)(3) of the 1934 Act, other than the Company,
a subsidiary of the Company, or any employee benefit plan
of the Company or its subsidiaries, becomes the
beneficial owner of the Company's securities having 25 %
or more of the combined voting power of the then
outstanding securities of the Company that may be cast
for the election for directors of the Company (other than
as a result of an issuance of securities initiated by the
Company in the ordinary course of business), or
(ii) As the result of, or in connection with, any cash tender
or exchange offer, merger or other business combination,
sale of assets or contested election, or any combination
of the foregoing transactions, less than a majority of
the combined voting power of the then outstanding
securities of the Company or any successor corporation or
entity entitled to vote generally in the election of
directors of the Company or such other corporation or
entity after such transaction, are held in the aggregate
by holders of the Company's securities entitled to vote
generally in the election of directors of the Company
immediately prior to such transactions; or
(iii) During any period of two consecutive years,
individuals who at the beginning of any such period
constitute the Board of Directors cease for any reason to
constitute at least a majority thereof, unless the
election, or the nomination for election by the Company's
stockholders, of each director of the Company first
elected during such period was approved by a vote of at
least two-thirds of the directors of the Company then
still in office who were directors of the Company at the
beginning of any such period.
(c) As used herein, the term "Potential Change in Control" means
the happening of any of the following:
(i) The approval by stockholders of an agreement by the
Company, the consummation of which would result in a
Change in Control of the Company; or
(ii) The acquisition of beneficial ownership, directly or
indirectly, by any entity, person or group (other than
the Company, a wholly-owned subsidiary thereof or any
employee benefit plan of the Company or its subsidiaries
(including any trustee of such plan acting as such
trustee)) of securities of the Company representing five
% or more of the combined voting power of the Company's
outstanding securities and the award by the Board of
Directors of a resolution to the effect that a Potential
Change in Control of the Company has occurred for
purposes of this Plan.
(d) As used herein, the term "Change in Control Price" means the
highest price per share paid in any transaction reported on
the New York Stock Exchange, or paid or offered in any bona
fide transaction related to a Potential or actual Change in
Control of the Company at any time during the 60 day period
immediately preceding the occurrence of the Change in Control
(or, where applicable, the occurrence of the Potential Change
in Control event), in each case determined by the Committee.
20. Non-Competition Provision.
Unless the award agreement relating to an option, SAR, a
restricted stock, stock bonus or performance unit expressly
specifies otherwise, a grantee shall forfeit all unexercised,
unearned and/or unpaid awards, including, but not by way of
limitation, awards earned but not yet paid, all unpaid dividends
and dividend equivalents, and all interest, if any, accrued on the
foregoing if, (i) in the opinion of the Committee, the grantee
without the written consent of the Company, engages directly or
indirectly in any manner or capacity as principal, agent, partner,
officer, director, employee or otherwise, in any business or
activity competitive with the business conducted by the Company or
any of its subsidiaries; or (ii) the grantee performs any act or
engages in any activity which in the opinion of the Chief Executive
Officer of the Company is inimical to the best interests of the
Company.
21. Adjustments.
In the event of any change in the outstanding common stock of
the Company, by reason of a stock dividend or distribution,
recapitalization, merger, consolidation, reorganization, split-up,
combination, exchange of Shares or the like, the Board of
Directors, in its discretion, may adjust proportionately the number
of Shares which may be issued under the Plan, the number of Shares
subject to outstanding awards, and the option exercise price of
each outstanding option, and may make such other changes in
outstanding options, SARs, performance units and restricted stock
awards, as it deems equitable in its absolute discretion to prevent
dilution or enlargement of the rights of grantees, provided that
any fractional Shares resulting from such adjustments shall be
eliminated.
22. Amendment and Termination.
The Board of Directors may terminate, amend, modify or suspend
the Plan at any time. No termination, modification, amendment or
suspension of the Plan shall adversely affect the rights of any
grantee, Beneficiary or Award Transferee under an award previously
granted unless the grantee or Beneficiary shall consent; but it
shall be conclusively presumed that any adjustment pursuant to
paragraph 21 hereof does not adversely affect any such right.
23. Effect on Other Plans.
Participation in this Plan shall not affect a grantee's
eligibility to participate in any other benefit or incentive plan
of the Company. Any awards made pursuant to this Plan shall not be
used in determining the benefits provided under any other plan of
the Company unless specifically provided therein.
24. Effective Date and Duration of the Plan.
The Plan shall become effective when adopted by the Board of
Directors. Unless it is sooner terminated in accordance with
paragraph 22 hereof, the Plan shall remain in effect until all
awards under the Plan have been satisfied by the issuance of Shares
or payment of cash or have expired or otherwise terminated, but no
award shall be granted more than ten years after the date the Plan
is adopted by the Board of Directors.
25. Unfunded Plan.
The Plan shall be unfunded. Neither the Company nor any
affiliate shall be required to segregate any assets that may be
represented by stock options, SARs, stock bonuses or performance
units, and neither the Company nor any affiliate shall be deemed to
be a trustee of any amounts to be paid under any stock option, SAR,
stock bonus or performance unit. Any liability of the Company or
any affiliate to pay any grantee, Beneficiary or Award Transferee
with respect to an option, SAR or performance unit shall be based
solely upon any contractual obligations created pursuant to the
provisions of the Plan; no such obligations will be deemed to be
secured by a pledge or encumbrance on any property of the Company
or an affiliate.
26. Governing Law.
The Plan shall be construed and its provisions enforced and
administered in accordance with the laws of the State of Tennessee
except to the extent that such laws may be superseded by any
federal law.
ADOPTED BY THE BOARD OF DIRECTORS OF PROFFITT'S, INC. ON THE 9TH
DAY OF APRIL, 1997.
By:
R. Brad Martin, Chairman of the Board of Directors
and Chief Executive Officer
SOMMER & BARNARD
Attorneys at Law*PC
4000 Bank One Tower
111 Monument Circle
Indianapolis, Indiana 46204
July 28, 1997
Board of Directors
Proffitt's, Inc.
3455 Highway 80 West
Jackson, Mississippi 39209
RE: Registration Statement on Form S-3 of Proffitt's, Inc.
Gentlemen:
We have acted as counsel to Proffitt's, Inc. ("Proffitt's") in
connection with the preparation and filing with the Securities and
Exchange Commission of the Registration Statement on Form S-3
(the "Registration Statement") which covers the registration under
the Securities Act of 1933 of 750,000 shares of Proffitt's common
stock, $.10 par value (the "Registered Shares") to be offered or
sold pursuant to the Proffitt's, Inc. 1997 Stock-Based Incentive
Plan (the "Plan").
In that capacity, and for purposes of giving the opinion set
forth in this letter, we have examined and reviewed the following
documents and materials:
1. A copy of Proffitt's Charter, and all amendments thereto;
2. A copy of the Code of By-Laws of Proffitt's;
3. The Registration Statement together with all exhibits;
4. The Plan;
5. Minutes of the meetings and written consent resolutions
of Proffitt's Board of Directors; and
6. Such other instruments, documents, statements and records
of Proffitt's as we deemed relevant and necessary to
examine and rely upon for the purpose of this opinion.
Further, we have made the relied upon the following
assumptions:
1. That the originals of all documents and instruments
submitted to us, including those described above, are
authentic;
2. That all copies of documents and instruments submitted to
us, including those described above, conform in all
material respects to the originals of such documents;
3. That all signatures on documents and instruments the
originals or copies of which were submitted to us,
including those described above, are genuine;
4. That all natural persons signing documents, the originals
or copies of which were submitted to us, including those
described above, had the legal capacity to so sign;
5. That all documents and instruments, the originals or
copies of which were submitted to us, including those
described above, will have been duly and properly
authorized, executed and delivered and be valid, binding
and enforceable, at the time any Registered Shares are
sold; and
6. That all statements, representations, understandings and
warranties in the documents and instruments, the
originals or copies of which were submitted to us,
including those described above, are now (and will be at
the time any Registered Shares are sold) true, accurate
and complete in all respects.
In rendering the opinion set forth below, we have not passed
upon and do not purport to pass upon any "doing business", "blue sky"
or securities laws of any jurisdiction. Nor do we express any
opinion regarding law other than the corporate law of the State of
Indiana and the federal law of the United States.
Based on the documents, matters and assumptions described
above, and such other matters as we deem appropriate, we hereby
advise you that we are of the opinion that, when issued and
delivered by Proffitt's in accordance with the Plan, the
Registered Shares will be duly authorized, validly issued, fully
paid and non-assessable.
We hereby consent to the reference to this firm under the
caption "Legal Matters" in the Prospectus forming part of the
Registration Statement and to the inclusion of this opinion as
Exhibit 5.1 to the Registration Statement.
Respectfully,
/s/ Sommer & Barnard, PC
SOMMER & BARNARD, PC
RMS/pas
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form
S-3 of our report, dated March 20, 1997, on our audits of the
consolidated financial statements of Proffitt's, Inc. as of
February 1, 1997 and February 3, 1996, and for each of the three
years in the period ended February 1, 1997. 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
July 25, 1997
EXHIBIT 23.3
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration
Statement of Proffitt's, Inc. on Form S-3 of our report dated March
3, 1995 (relating to the consolidated financial statements of
Younkers, Inc. and subsidiary for the year ended January 28, 1995,
not separately presented) and incorporated by reference in the
Annual Report on Form 10-K of Proffitt's, Inc. for the year ended
February 1, 1997 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration
Statement.
Des Moines, Iowa /s/ Deloitte & Touche
July 24, 1997
DELOITTE & TOUCHE
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form
S-3 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 of our firm under the caption "Experts."
Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Birmingham, Alabama
July 25, 1997
