As filed with the Securities and Exchange Commission
on November 3, 1998
Registration No. 333-
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
Saks Incorporated
(Exact name of registrant as specified in its charter)
Tennessee 5311 82-0331040
________________
750 Lakeshore Parkway
Birmingham, Alabama 35211
(205) 940-4000
(Address, including zip code, and
telephone number, including area code
of Registrant's Principal Executive Office)
________________
Brian J. Martin, Esq.
Saks Incorporated (formerly 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
________________
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.
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.
CALCULATION OF REGISTRATION FEE
Proposed
Title of each Amount maximum Amount of
class of to be aggregate registr-
securities registered offering ation
to be registered (1) price fee
- ---------------- -------- ------- --------
Common Stock,
$ .10 par value...... 1,550,000 $31,676,730.00(2) $8,806.13
(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 October 28, 1998.
(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.
THIS REGISTRATION STATEMENT IS FILED TO REGISTER THE BALANCE OF THE
2,300,000 SHARES ISSUABLE UNDER THE PLAN, SOME OF WHICH WERE
PREVIOUSLY REGISTERED ON JULY 28, 1997, ON FORM S-3, UNDER
REGISTRATION NUMBER 333-32237.
The information in this prospectus is not complete and may be
amended. We may not sell these securities until the registration
statement filed with the SEC in effective. This prospectus is not
an offer to sell nor is it seeking an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION
DATED November 3, 1998
SAKS INCORPORATED
(Formerly 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 Saks
Incorporated, a Tennessee corporation (the "Company") issuable
pursuant to the Saks Incorporated 1997 Stock-Based Incentive Plan
(the "Incentive Plan").
The Common Stock is listed for trading on the New York Stock
Exchange under the symbol "SKS." On October 12, 1998 the last
reported sale price for the Common Stock was $19.25.
THE SECURITIES AND EXCHANGE COMMISSION HAS NOT APPROVED OR
DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS PROSPECTUS IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_____________
The date of this Prospectus is November 3, 1998
You should rely only on the information contained in this
document or incorporated by reference. We have not authorized
anyone to provide you with information that is different.
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
Our company files annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and
copy any reports, statements or other information we file at the
SEC's public reference room in Washington, D.C. You can request
copies of these documents, upon payment of a duplicating fee, by
writing to the SEC. Please call the SEC at 1-800-SEC-0330 for
further information on the operation of the public reference rooms.
Our SEC filings are also available to the public on the SEC
Internet site (http://www.sec.gov).
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 Saks Incorporated 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:
(a) The Company's Annual Report filed with the Commission on
May 1, 1998 on Form 10-K for the fiscal year ended
January 31, 1998;
(b) The Company's Quarterly Reports filed with the Commission
on June 8, 1998 and September 14, 1998 for the fiscal
quarters ended May 2, 1998 and August 1, 1998,
respectively;
(c) The Company's Current Reports on Form 8-K filed with the
Commission (since the Form 10-K was filed) on February
11, February 17, March 26, April 13, July 8, July 14 (as
amended), August 4, August 20, August 31, September 11,
and two filings on September 23, 1998;
(d) The Company's Registration Statement on Form 8-A filed
March 26, 1998 in respect of the Proffitt's Rights
Agreement; and
(e) The information contained in "Description of Proffitt's
Capital Stock" in the Registrant's Registration Statement
on Form S-4 (Reg. No. 333-17059) filed with the
Securities and Exchange Commission on July 29, 1998.
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 Saks Incorporated, 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 Saks Incorporated
and its subsidiaries, and the terms "Proffitt's, " "McRae's,"
"Younkers," "Parisian," "Herberger's," "Carson's" and "Saks" refer
to the Company's department store chains, and the existing and
predecessor entities that conduct or conducted business under such
names.
The Company
The Company is a leading department store retailer that, as of
the date of this Prospectus, operates 331 department stores in 38
states and is the fourth largest traditional department store
company in the United States. The Company's stores operate under
the Saks Fifth Avenue, Younkers, Off 5th, Parisian, Herberger's,
Carson Pirie Scott, McRae's, Proffitt's, Bergner's, Boston Store
and Bullock & Jones trade names. Carson Pirie Scott, Bergner's and
Boston Store are operated as a single "chain" of department stores,
and the stores operating under each of the other trade names are
operated as
separate chains. The Company's stores are typically leading branded
traditional department stores in their communities. Most of the
stores are located in premier regional or community 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. Merchandising, sales promotion
and certain store operating support functions are conducted in
multiple regional locations to tailor regional assortments to the
local customer. The Company coordinates merchandising planning and
execution among the stores and consolidates certain administrative
and support functions to realize scale economies, to promote a
competitive cost structure and to increase margins. In addition to
its department stores, the Company also operates four furniture
stores in the Carson Pirie Scott chain.
The Company was incorporated under the laws of the State of
Tennessee in 1919. The principal executive offices of the Company
are located at 750 Lakeshore Parkway, Birmingham, Alabama 35211,
and its telephone number is (205) 940-4000.
The Plan
The Incentive Plan. The Incentive Plan is intended to enable
Saks to attract and retain qualified personnel. All employees and
directors of Saks 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 tables sets forth supplemental financial and
operating data as of and for the five fiscal years ended January
31, 1998 and supplemental summary unaudited financial and operating
data as of the six months ended August 1, 1998 and August 2, 1997.
See "Incorporation of Certain Documents by Reference."
These supplemental consolidated financial statements include the
accounts of the Company and all of its subsidiaries and have been
prepared to give retroactive effect to the merger with Saks Fifth
Avenue ("SFA"), which was accounted for as a pooling-of-interests.
Generally accepted accounting principles proscribe giving effect to
a completed merger accounted for by the pooling-of-interests method
in financial statements that do not include the effective date of
the merger. These financial statements do not extend through the
effective date of the merger; however, they will become the
historical consolidated financial statements for the Company after
financial statements covering the effective date of the merger are
issued. The supplemental consolidated financial statements for
1996 and 1995 have also been previously restated to give
retroactive effect to the poolings-of-interests mergers in the
respective year. All significant intercompany balances and
transactions have been eliminated in consolidation.
<TABLE>
<CAPTION>
Six Months Ended Fiscal Year Ended(a)
---------------- -----------------------------------------------------
8/1/98 8/3/97 1/31/98 2/1/97 2/3/96 1/28/95 1/29/94
-------- -------- -------- -------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
Supplemental Consolidated
Income Statement Data:
Net sales $2,696,346 $2,490,469 $5,726,346 $4,926,862 $4,422,107 $4,085,595 $3,600,897
Cost of sales 1,761,420 1,636,809 3,731,293 3,208,989 2,900,026 2,665,525 2,357,829
---------- ---------- ---------- ---------- ---------- ---------- ----------
Gross margin 934,926 853,660 1,995,053 1,717,873 1,522,081 1,420,070 1,243,068
Selling, general
and administra-
tive expenses 588,245 542,471 1,165,118 1,057,144 961,407 852,896 784,091
Other operating
expenses 2,998 5,235 17,018 11,645 2,178 1,798 295
Property & equip-
ment rentals 83,917 70,048 157,018 114,714 97,148 91,567 86,532
Depreciation & other
amortization 71,570 65,353 136,119 123,533 121,171 115,543 142,650
Taxes other than
income taxes 73,469 68,450 134,121 117,355 110,137 108,677 98,881
Expenses related to
attempted Younkers
takeover 10,017
(Gains) losses from
long-lived assets 1,855 30 (134) 1,406 (36,058)
Merger, restructuring
and integration
charges (b) 5,951 3,102 36,524 16,929 64,237 2,000 179,731
Year 2000 expenses (c) 4,127 4,362 6,590
ESOP expenses (d) 1,532 9,513 3,910 2,931 2,787 2,939
---------- ---------- ---------- ---------- ---------- ---------- ----------
Operating income
(Loss) 102,794 93,077 333,166 271,237 188,913 244,802 (51,981)
Other income (expense):
Interest expense (49,292) (57,497) (113,685) (114,881) (141,725) (117,065) (99,205)
Other income
(expense), net 754 389 2,330 (11,780) 4,051 4,826 4,063
Reorganization
items (e) (219,857)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income (loss)
before provision
for income taxes and
extraordinary items
and cumulative
effect of changes
in accounting
methods 54,256 35,969 221,811 144,576 51,239 132,563 (366,980)
Provision (benefit)
for income
taxes (g) 23,150 15,505 (194,426) 50,998 48,914 58,112 34,432
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income (loss) before
extraordinary items
and umulative effect
of changes in
accounting methods 31,106 20,464 416,237 93,578 2,325 74,451 (401,412)
Extraordinary loss on
early extinguishment
of debt, net of
taxes (f) (334) (4,472) (11,323) (12,746) (8,051) (535) (28,728)
Extraordinary gain
on reorganization,
net of taxes (e) 212,139
Cumulative effect
of changes in
accounting methods,
net of taxes (h) (12,090)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income (loss) $ 30,772 $ 15,992 $ 404,914 $ 80,832 $ (5,726) $ 73,916 $(230,091)
========= ========= ========= ========= ========= ========= =========
Basic earnings per
share:
Basic earnings (loss)
per common share
before extra-
ordinary items and
cumulative effect $0.22 $0.15 $3.03 $0.72 $0.00 $0.62 $(3.44)
Basic earnings (loss)
per common share $0.22 $0.12 $2.94 $0.62 $(0.07) $0.62 $(1.97)
Diluted earnings (loss)
per common share
before extra-
ordinary items
and cumulative
effect $0.21 $0.15 $2.86 $0.70 $0.00 $0.61 $(3.44)
Diluted earnings (loss)
per common share $0.21 $0.12 $2.79 $0.60 $(0.07) $0.61 $(1.97)
Weighted average
common shares:
Basic 142,302 135,550 137,588 125,056 111,974 117,217 116,590
Diluted 146,463 138,795 149,085 132,583 113,309 118,504 116,590
Supplemental Consol-
idated Balance
Sheet Data:
Working capital 929,542 999,957 $1,090,304 $ 951,752 $ 710,468 $ 777,444 $ 801,589
Total assets $4,270,253 $3,630,276 $2,899,565 $2,908,258 $2,593,779
Senior long-term
debt, less current
portion $1,093,806 $ 863,475 $1,256,349 $1,263,147 $1,171,817
Subordinated debt $ 286,964 $ 501,767 $ 150,505 $ 150,269 $ 136,250
Shareholders' equity $1,944,529 $1,397,934 $ 691,059 $ 739,893 $ 658,101
</TABLE>
See notes to condensed consolidated financial statements.
(a) Effective September 17, 1998, January 31, 1998, February 1,
1997, and February 3, 1996, Saks Holdings, Inc. ("Saks
Holdings") Carson Pirie Scott & Co. ("CPS"), G.R. Herberger's,
Inc. ("Herberger's") and Younkers, Inc. ("Younkers"),
respectively, were acquired by Saks Incorporated (the
"Company"). Such acquisitions were accounted for under the
pooling-of- interests method of accounting. Accordingly, the
Company's financial statements were restated for all periods
to include the results of operations and financial position of
Saks Holdings, CPS, Herberger's and Younkers. The Company
completed the purchase of Parisian, Inc. ("Parisian") on
October 11, 1996, which the Company accounted for under the
purchase method of accounting. As a consequence, the Company's
financial statements include Parisian's results of operations
from October 11, 1996.
(b) In connection with the acquisitions of CPS, Parisian,
Herberger's and Younkers, the Company incurred merger,
restructuring and integration costs, including (i) transaction
costs, (ii) costs associated with severance and related
benefits and abandonment and elimination of duplicate
administrative office space, property, data processing
equipment and software, and (iii) other costs.
(c) During fiscal 1997 the Company completed its assessment of the
effect of the Year 2000 Problem on the Company and began the
necessary systems modifications resulting in expenses of $6.6
million. The Company's expenses related to the Year 2000
Problem for the periods ended August 1, 1998 and August 2,
1997 were $4.1 million and $4.4 million, respectively.
(d) In December 1997, the Company terminated the Herberger's
Employee Stock Ownership Plan.
(e) CPS and its subsidiaries filed Chapter 11 bankruptcy in fiscal
1991 and completed Chapter 11 reorganization in fiscal 1993.
In connection with the reorganization, CPS recognized a loss
on reorganization of $219.9 million and an extraordinary gain
on reorganization of $212.1 million net of tax.
(f) During fiscal 1997, the Company modified its capital
structure, including retiring approximately $114 million of 9
7/8% Parisian Senior Subordinated Notes due 2003, prepaying
approximately $15 million of 11% Junior Subordinated Notes,
prepaying certain mortgages and replacing the Company's
existing revolving credit and working capital facilities with
a new revolving credit facility. As a result of this early
extinguishment of debt, certain deferred costs and premiums
associated with the debt facilities, such as loan origination
costs, were written off resulting in a loss of $11.3 million
net of income taxes. In fiscal 1996, the Company recognized
$12.7 million of extraordinary charges associated with the
prepayment of term borrowings under the Saks Holdings credit
facility, the repayment of outstanding balances on the
revolving credit portion of the Saks Holdings credit facility
and the prepayment of certain mortgages. In fiscal 1995,
Younkers canceled its $150 million revolving credit agreement
and replaced its debt financing of accounts receivable with
sales of ownership interests in its accounts receivable
resulting in a write-off of $2.1 million net of income taxes.
In connection with the Saks Holdings real estate refinancing
in 1995, the Company incurred $6.0 million in charges. In
fiscal 1993, the Company incurred $28.7 million of charges
associated with the early extinguishment of debt.
(g) The Company recorded an income tax benefit of $294.8 million
in the fourth quarter of 1997, relating to the reduction in
the Saks Holdings valuation allowance associated with certain
deferred tax assets.
(h) Effective with fiscal 1993, the Company changed its method of
accounting for inventories, store pre-opening costs and
pensions. The adjustments to reflect these changes resulted in
a net charge of $12.1 million. The most significant component
was a charge with respect to pensions of $14.0 million, net of
tax.
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 Saks Incorporated 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, Saks Incorporated , 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 in the Company's Annual
Report on Form 10-K as of January 31, 1998 and February 1, 1997 and
for each of the three years in the period ended January 31, 1998,
have been incorporated herein in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the
authority of that firm as experts in accounting and auditing.
The supplemental consolidated financial statements included in
the Company's Current Report on Form 8-K (filed with the Securities
and Exchange Commission on September 23, 1998) as of January 31,
1998 and February 1, 1997 and for each of the three years in the
period ended January 31, 1998, have been incorporated herein in
reliance on the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of that firm as experts in
accounting and auditing. PricewaterhouseCoopers LLP's report
includes an explanatory paragraph which states that the
supplemental consolidated financial statements give retroactive
effect to the merger of Proffitt's, Inc. with Saks Holdings, Inc.
The combination occurred on September 17, 1998, and has been
accounted for as a pooling-of-interests as described in Notes 1 and
3 to the supplemental consolidated financial statements. Generally
accepted accounting principles proscribe giving effect to a
consummated business combination accounted for by the pooling-of-
interests method in financial statements that do not include the
date of consummation; however, they will become the historical
consolidated financial statements of Saks Incorporated and
Subsidiaries after financial statements covering the date of
consummation of the business combination are issued.
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 Saks Incorporated 1997 Stock-Based Incentive Plan
(incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-3
filed with the Commission on July 28, 1997)
5.1 Opinion of Sommer & Barnard, PC
23.1 Consent of Sommer & Barnard, PC (included in
Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of PricewaterhouseCoopers LLP
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 indemnification 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 3rd day of November, 1998.
Saks Incorporated
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 November 3, 1998 by
the following persons in the capacities indicated.
/s/ R. Brad Martin
__________________________ Chairman of the Board and
R. Brad Martin Chief Executive Officer
(Principal Executive Officer)
/s/ Ronald deWaal
__________________________ Vice Chairman and Director
Ronald deWaal
/s/ Douglas E. Coltharp
__________________________ Executive Vice President and
Douglas E. Coltharp Chief Financial Officer
(Principal Financial Officer)
/s/ Donald E. Wright
__________________________ Senior Vice President of Finance
Donald E. Wright and Chief Accounting Officer
(Principal Accounting Officer)
__________________________ Director
Bernard E. Bernstein
/s/ Stanton J. Bluestone
__________________________
Stanton J. Bluestone Director
/s/ John W. Burden, III
__________________________
John W. Burden, III Director
/s/ Edmond D. Cicala
__________________________
Edmond D. Cicala Director
/s/ James A. Coggin
__________________________
James A. Coggin Director
__________________________
Julius Erving Director
/s/ Michael S. Gross
__________________________
Michael S. Gross Director
/s/ Donald E. Hess
__________________________
Donald E. Hess Director
/s/ G. David Hurd
__________________________
G. David Hurd Director
/s/ Philip B. Miller
__________________________
Philip B. Miller Director
/s/ Robert M. Mosco
__________________________
Robert M. Mosco Director
/s/ C. Warren Neel
__________________________
C. Warren Neel Director
/s/ Charles J. Philippin
__________________________
Charles J. Philippin Director
__________________________
Stephen I. Sadove Director
/s/ Marguerite W. Sallee
__________________________
Marguerite W. Sallee Director
/s/ Gerald Tsai, Jr.
__________________________
Gerald Tsai, Jr. Director
EXHIBIT INDEX
Exhibit
No. Description
4.1 Saks Incorporated 1997 Stock-Based Incentive Plan
(incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-3
filed with the Commission on July 28, 1997)
5.1 Opinion of Sommer & Barnard, PC
23.1 Consent of Sommer & Barnard, PC (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included on signature page)
27.1 Not Required; financials previously filed
SOMMER & BARNARD, PC
4000 Bank One Tower
111 Monument Circle
Indianapolis, Indiana 46204
Phone: (317) 630-4000
Fax: (317) 236-9802
November 2, 1998
Board of Directors
Saks Incorporated
750 Lakeshore Parkway
Birmingham, Alabama 35211
RE: Registration Statement on Form S-3 of Saks Incorporated
Gentlemen:
We have acted as counsel to Saks Incorporated ("Saks,"
formerly known as Proffitt's, Inc.) 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 1,550,000 shares of Proffitt's common stock, $.10 par
value (the "Registered Shares") to be offered or sold pursuant to
the Saks Incorporated 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 Saks Charter, and all amendments thereto;
2. A copy of the Code of By-Laws of Saks;
3. The Registration Statement together with all exhibits;
4. The Plan;
5. Minutes of the meetings and written consent resolutions
of Saks Board of Directors; and
6. Such other instruments, documents, statements and records
of Saks 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 Saks 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/tlr
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report, dated March 19, 1998, except
for Notes 1, 3, 4, 9, 11, and 13 as to which the date is September
17, 1998, on our audits of the supplemental consolidated financial
statements of Saks Incorporated and Subsidiaries (formerly
Proffitt's, Inc.) as of January 31, 1998 and February 1, 1997, and
for each of the three years in the period ended January 31, 1998
which report is included in the Company's Current Report on Form 8-K
dated September 23, 1998. We also consent to the reference to
our firm under the caption "Experts."
Our report includes an explanatory paragraph which states that the
supplemental consolidated financial statements give retroactive
effect to the merger of Proffitt's, Inc. with Saks Holdings, Inc.
The combination occurred on September 17, 1998, and has been
accounted for as a pooling-of-interests as described in Notes 1 and
3 to the supplemental consolidated financial statements. Generally
accepted accounting principles proscribe giving effect to a
consummated business combination accounted for by the pooling-of-
interests method in financial statements that do not include the
date of consummation; however, they will become the historical
consolidated financial statements of Saks Incorporated and
Subsidiaries after financial statements covering the date of
consummation of the business combination are issued.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Birmingham, Alabama
November 2, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report, dated March 19, 1998, except
for Note 12 as to which the date is March 26, 1998, on our audits
of the consolidated financial statements and financial statement
schedule of Proffitt's, Inc. and Subsidiaries as of January 31,
1998 and February 1, 1997, and for each of the three years in the
period ended January 31, 1998 which report is included in the
Company's Annual Report on Form 10-K. We also consent to the
reference to our firm under the caption "Experts."
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Birmingham, Alabama
November 2, 1998
