As filed with the Securities and Exchange Commission
on May 23, 1997
Registration No.
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
Form S-8
Registration Statement
Under
The Securities Act of 1933
Proffitt's, Inc.
Tennessee 62-0331040
(State of Incorporation) (IRS Employer Identification No.)
3455 Highway 80 West
Jackson, Mississippi 39209
(423) 983-7000
(Address of Principal Executive Offices)
G.R. Herberger's, Inc. 401(k) Employee Stock
Purchase Plan and Employee Stock Ownership Plan
(Full title of the plan)
R. Brad Martin
Chairman of the Board and Chief Executive Officer
Proffitt's, Inc.
5810 Shelby Oaks Drive
Memphis, Tennessee 38134
(901) 372-4300
(Name, address and telephone number of agent for service)
Copies to:
Philip L. McCool, Esq. Brian J. Martin, Esq.
Sommer & Barnard, PC Proffitt's, Inc.
4000 Bank One Tower 750 Lakeshore Parkway
Indianapolis, Indiana 46204 Birmingham, Alabama 35211
(317) 630-4000 (205) 940-4980
______________________
CALCULATION OF REGISTRATION FEE
Title of each Proposed Proposed
securities Amount offering aggregate Amount
to be to be per offering registration
registered regiserted (1) share price fee
---------- ----------- -------- -------- ----------
Common Stock,
$ .10 par value ... 50,000 $39.25 (2) $1,962,500.00(2) $594.70
Preferred Stock
Purchase Rights 50,000 0 (3) 0 (3) 0 (3)
(1) In addition, pursuant to Rule 416(c) under the Securities Act
of 1933, this Registration Statement also covers an
indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plans described above.
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) under the Securities
Act of 1933 on the basis of the average of the high and low
prices of the Common Shares reported on the Nasdaq National
Market on May 20, 1997.
(3) No additional consideration will be paid for the Preferred
Stock Purchase Rights.
===================================================================
Part II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The documents listed below, and all documents filed by
Registrant pursuant to Sections 13(a), 13(c) 14 and 15(d) of the
Securities Exchange Act of 1934 subsequent to the filing of this
Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, are
deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of this
Registration Statement:
(a) The Registrant's Annual Report filed with the Securities
Exchange Commission ("SEC") on April 29, 1997 on Form
10-K for the fiscal year ended February 1, 1997;
(b) The Plan's Annual Report on Form 11-K for the Plan Year
ended December 31, 1996, filed concurrently with this
Registration Statement.
(c) The information contained in "Description of Proffitt's Capital
Stock" in the Registrant's Registration Statement on Post-Effective
Amendment No. 1 to Form S-4 (Reg. No. 333-17059) filed with the
Securities and Exchange Commission on January 14, 1997.
Item 4. Description of Securities.
On March 28,1995, the Board of Directors of Registrant
declared a dividend distribution of one right (a "Right") for each
share of Registrant's Common Stock. Each Right entitles the holder
to purchase from Registrant one one-hundredth (1/100) of a share of
Series C Preferred Stock at a price of $85 per one one-hundredth
(1/100) of a share. Such Rights will attach to shares of
Registrant's Common Stock issued stockholders until such Rights
become exercisable. The Rights will become exercisable upon the
acquisition by any person of, or the announcement of the intention
of any person to commence a tender or exchange offer upon the
successful consummation of which such person would be the
beneficial owner of, 20% or more of the shares of Registrant's
Common Stock then outstanding, without the prior approval of the
Registrant's Board of Directors. The Rights are generally designed
to deter coercive takeover tactics and to encourage all persons
interested in potentially acquiring control of Registrant to treat
each stockholder on a fair and equal basis.
Item 5. Interest of Named Experts and Counsel.
Note applicable.
Item 6. Indemnification of Directors and Officers.
The By-Laws of Registrant provide that Registrant 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
Registrant or serves or served as an officer or director of any
other enterprise at the request of Registrant.
Section 48-18-503 of the Tennessee Business Corporation Act
provides for "mandatory indemnification," unless limited by the
charter, by a corporation against reasonable expenses incurred by
a director who is wholly successful, on the merits or otherwise, in
the defense of any proceeding to which the director was a party by
reason of the director being or having been a director of the
corporation. Section 48-18-504 of the Tennessee Business
Corporation Act states that a corporation may, in advance of the
final disposition of a proceeding, reimburse reasonable expenses
incurred by a director who is a party to a proceeding if the
director furnishes the corporation with a written affirmation of
the director's good faith belief that the director has met the
standard of conduct required by Section 48-18-502 of the Tennessee
Business Corporation Act, that the director will repay the advance
if it is ultimately determined that such director did not meet the
standard of conduct required by Section 48-18-502 of the Tennessee
Business Corporation Act, and that those making the decision to
reimburse the director determine that the facts then known would
not preclude indemnification under the Tennessee Business
Corporation Act. Section 48-18-507 of the Tennessee Business
Corporation Act provides for mandatory indemnification, unless
limited by the charter, of officers pursuant to the provisions of
Section 48-18-503 of the Tennessee Business Corporation Act
applicable to mandatory indemnification of directors.
Registrant's By-Laws further provide that Registrant may
purchase and maintain insurance on behalf of any person who is or
was or has agreed to become a director or officer of Registrant, or
is or was serving at the request of Registrant 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 Registrant 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 Registrant's Board of Directors.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
5.1 Opinion re: Legality (Since the shares are not
original issuance securities, no Opinion re:
Legality is required)
5.2 Undertaking by the Registrant to ensure the
timely request of a Determination Letter from
the Internal Revenue Service for the Plan.
23.1 Consent of Coopers & Lybrand L.L.P. (Re:
Proffitt's, Inc.)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Coopers & Lybrand L.L.P. (Re:
Parisian, Inc.)
23.4 Consent of Coopers & Lybrand L.L.P. (Re: Form
11-K)
24 Power of Attorney (included at page II-5)
99 G.R. Herberger's, Inc. 401(k) Employee Stock
Purchase Plan and Employee Stock Ownership
Plan
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) 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;
(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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed 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) 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) 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) If the Registrant is a foreign private issuer, to
file a post-effective amendment to the Registration Statement
to include any financial statements required by Section 210.3-19 of
this chapter at the start of any delayed offering or
throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act
need not be furnished, provided that the Registrant includes
in the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph
(a)(4) and other information necessary to ensure that all
other information in the prospectus is at least as current as
the date of those financial statements.
(5) For the purposes of determining any liability under
the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan pursuant to Section
15(d) of the Securities Exchange Act of 1934) 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.
(6) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers, and controlling persons of the Registrant
pursuant to the foregoing provisions described in Item 15, or
otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act 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.
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the requirement
for filing on Form S-8 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 21 day of May, 1997.
Proffitt's, Inc.
/s/ R. Brad Martin
By: ________________________________
R. Brad Martin
Chief Executive Officer and
Chairman of the Board
The Plan. Pursuant to the requirements of the Securities Act,
the Plan Trustee has duly caused this registration statement to be
signed on its behalf by the Undersigned, thereunto duly authorized,
in the City of Minneapolis, State of Minnesota, on the 21 day of May, 1997.
G.R. Herberger's, Inc. 401(k)
Employee Stock Purchase Plan and
Employee Stock Ownership Plan
/s/ Karl O. Sharp
By: ________________________________
Karl O. Sharp
Norwest Bank Minnesota N.A.
Plan Trustee
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Brian J. Martin,
his true and lawful attorney-in-fact and agent with full power of
substitution for him in his name, place and stead, in any and all
capacities to sign any and all amendments (including pre-effective
and post effective amendments) to this Registration Statement, and
to file the same with all exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission,
grants unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully as to
all intents and purposes as he might or could do in person, and
hereby ratifies and confirms all that said attorney-in-fact and
agents or their or his substitute or substitutes any 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 below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ R. Brad Martin Chief Executive Officer and May 21, 1997
________________________ Chairman of the Board
R. Brad Martin Principal Executive Officer
/s/ Douglas Coltharp Executive Vice President and May 21, 1997
________________________ Chief Financial Officer
Douglas Coltharp Principal Financial Officer and
Principal Accounting Officer
/s/ Bernard E. Bernstien Director May 21, 1997
_______________________
Bernard E. Bernstein
/s/ Edmond D Cicala
_______________________ Director May 21, 1997
Edmond D. Cicala
/s/ Gerard K. Donnelly
_______________________ Director May 21, 1997
Gerard K. Donnelly
/s/ Donald F. Dunn
_______________________ Director May 21, 1997
Donald F. Dunn
_______________________ Director
Michael S. Gross
_______________________ Director
Donald E. Hess
/s/ David Hurd
_______________________ Director May 21, 1997
G. David Hurd
/s/ Richard D. McRae
_________________________ Director May 21, 1997
Richard D. McRae
/s/ C. Warren Neel
_________________________ Director May 21, 1997
C. Warren Neel
_________________________ Director
Harwell W. Proffitt
_________________________ Director
Marguerite W. Sallee
_________________________ Director
Gerald Tsai, Jr.
/s/ Donald de Waal
_________________________ Director May 21, 1997
Ronald de Waal
INDEX TO EXHIBITS FILED
TO REGISTRATION STATEMENT ON
FORM S-8 OF PROFFITT'S, INC.
Sequentially
Exhibit Numbered
No. Description Page
5.1 Opinion re: Legality (Since the shares
are not original issuance securities,
no Opinion re: Legality is required)
5.2 Undertaking by the Registrant to ensure
the timely request of a Determination
Letter from the Internal Revenue Service
for the Plan.
23.1 Consent of Coopers & Lybrand L.L.P.
(Re: Proffitt's, Inc.)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Coopers & Lybrand L.L.P.
(Re: Parisian, Inc.)
24 Power of Attorney (included at page II-4)
99 G.R. Herberger's, Inc. 401(k) Employee Stock
Purchase Plan and Employee Stock Ownership Plan