As filed with the Securities and Exchange Commission on December 1, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MACYS, INC.
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware |
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13-3324058 |
(State or Other Jurisdiction of
Incorporation or Organization) |
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(I.R.S. Employer
Identification Number) |
7 West Seventh Street
Cincinnati, Ohio 45202
(513) 579-7000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
MACYS RETAIL HOLDINGS, INC.
(Exact Name of Registrant as Specified in Its Charter)
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New York |
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43-0398035 |
(State or Other Jurisdiction of
Incorporation or Organization) |
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(I.R.S. Employer
Identification Number) |
7 West Seventh Street
Cincinnati, Ohio 45202
(513) 579-7000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
Dennis J. Broderick, Esq.
Executive Vice President, General Counsel and Secretary
Macys, Inc.
7 West Seventh Street
Cincinnati, Ohio 45202
(513) 579-7000
and
151 West 34th Street
New York, New York 10001
(212) 494-1602
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code of Agent For Service)
With copies to:
Charles T. Haag, Esq.
Jones Day
2727 North
Harwood Street
Dallas, Texas 75201
(214) 220-3939
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box. ¨
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(c) under the
Securities Act, 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 registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer |
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x |
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Accelerated filer |
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¨ |
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Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered* |
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Amount
to be
Registered(1) |
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Proposed
Maximum
Aggregate Offering Price(1) |
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Amount of Registration
Fee(2) |
Debt Securities of Macys Retail Holdings, Inc. |
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Common Stock, par value $0.01 per share, of Macys, Inc. |
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Preferred Stock, par value $0.01 per share, of Macys, Inc. |
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Depositary Shares of Macys, Inc.(3) |
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Warrants |
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Purchase Contracts |
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Units(4) |
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Guarantees of Debt Securities of Macys Retail Holdings, Inc. by Macys,
Inc.(5) |
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Total |
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* |
Additional securities (including securities to be issued by additional registrants) may be added by automatically effective post-effective amendment pursuant to Rule 413. |
(1) |
An indeterminate number of the securities of each identified class is being registered as may from time to time be offered for sale at indeterminate prices. Separate consideration may or may not be received for
securities that are issuable on exercise, conversion or exchange of other securities or that are issued in units or represented by depositary shares. |
(2) |
Pursuant to Rule 456(b) and Rule 457(r), payment of the registration fee is being deferred. |
(3) |
Each depositary share will be issued under a deposit agreement, will represent an interest in a fractional share or multiple shares of preferred stock of Macys, Inc. and will be evidenced by a depositary receipt.
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(4) |
Each unit will be issued under a unit agreement or indenture and will represent an interest in a combination of any two or more of the securities being registered hereby or debt obligations of third parties, including
U.S. Treasury securities. |
(5) |
Pursuant to Rule 457(n), no additional filing fee is required in connection with the guarantees of the debt securities being registered. |
PROSPECTUS
MACYS, INC.
Common Stock
Preferred
Stock
Depositary Shares
Warrants
Purchase
Contracts
Units
Guarantees of Debt Securities
MACYS RETAIL HOLDINGS, INC.
Debt Securities
Warrants
Purchase
Contracts
Units
Macys,
Inc., referred to as Macys, and/or Macys Retail Holdings, Inc., a wholly owned subsidiary of Macys, referred to as Macys Holdings, may offer from time to time to sell, in one or more series, any
combination of the securities described in this prospectus. Such securities may be offered and sold by us in one or more offerings in amounts, at prices and on other terms to be determined at the time of the offering.
We may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous
or delayed basis.
The principal executive offices of Macys and Macys Holdings are located at 7 West Seventh Street,
Cincinnati, Ohio 45202, and the telephone number for each is (513) 579-7000.
This prospectus describes some of the general terms
that may apply to these securities. The specific terms of any securities to be offered will be described in a supplement to this prospectus.
Neither the
Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is December 1, 2015.
TABLE OF CONTENTS
The registration statement containing this prospectus, including the exhibits to the registration statement, provides additional
information about us and the securities offered under this prospectus. The registration statement, including the exhibits and the documents incorporated herein by reference, can be read on the Securities and Exchange Commission website or at the
Securities and Exchange Commission offices mentioned under the heading Where You Can Find More Information.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, using a
shelf registration process. Under this shelf process, we may sell from time to time the securities described in this prospectus in one or more offerings in amounts, at prices and on other terms to be determined at the time of the
offering.
This prospectus provides you with a general description of the securities. Each time we offer the securities, we will provide a
prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also supplement, modify or supersede other information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with the information incorporated by reference as described below under the heading Incorporation by Reference.
Because we are a well-known seasoned issuer, as defined in Rule 405 under the Securities Act of 1933 (the Securities Act) we may
add to and offer additional securities including secondary securities, by filing a prospectus supplement or term sheet with the SEC at the time of the offer.
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You should rely only on the information provided in this prospectus and in any prospectus
supplement, including the information incorporated by reference. We have not authorized anyone to provide you with different information. We are not offering the securities in any state where the offer is not permitted. You should not assume that
the information in this prospectus, or any supplement to this prospectus, is accurate at any date other than the date indicated on the cover page of these documents.
Unless the context implies otherwise, references in this prospectus to we, us or our are references to
either Macys or Macys Holdings or both.
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WHERE YOU CAN FIND MORE INFORMATION
Macys files annual, quarterly and current reports, proxy statements and other information with the SEC. Macys SEC filings
are available to the public from the SECs website at www.sec.gov or from Macys website at www.macysinc.com. You may also read and copy any document Macys files at the SECs public reference room in
Washington, D.C., located at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Information about Macys is also available at
Macys website at www.macysinc.com. However, the information on that website is not part of this prospectus.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference in this prospectus the information in the
documents that Macys files with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus. Any information
that is part of this prospectus or any prospectus supplement that speaks as of a later date than any other information that is part of this prospectus or any prospectus supplement updates or supersedes such other information. We incorporate by
reference in this prospectus the documents listed below and any future documents or portions thereof that Macys files with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the Exchange
Act) on or after the date of this prospectus until we sell all of the securities that may be offered by this prospectus.
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Macys Annual Report on Form 10-K for the fiscal year ended January 31, 2015; |
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Macys Quarterly Reports on Form 10-Q for the fiscal quarters ended May 2, 2015, August 1, 2015 and October 31, 2015; |
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Macys Current Reports on Form 8-K filed on February 4, 2015, March 27, 2015, May 18, 2015 and November 9, 2015; and |
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Description of Macys common stock, par value $0.01 per share, contained in Macys Registration Statement on Form 8-A filed on December 12, 1994, as updated from time to time by our subsequent
filings with the SEC. |
You may obtain, free of charge, a copy of any of these documents (other than exhibits to these
documents unless the exhibits are specifically incorporated by reference into these documents or referred to in this prospectus) by writing or calling us at the following address and telephone number:
Macys, Inc.
7 West Seventh
Street
Cincinnati, Ohio 45202
Attention: Investor Relations
(513) 579-7028
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FORWARD-LOOKING STATEMENTS
Some of the statements made and information contained in this prospectus and the documents we incorporate by reference, excluding historical
information, are forward-looking statements as defined in the Private Securities Litigation Reform Act of 1995, the Securities Act and the Exchange Act. Such statements are based upon the beliefs and assumptions of, and on information
available to, the management of the Company at the time such statements are made. The following are or may constitute forward-looking statements: (i) statements preceded by, followed by or that include the words may,
will, could, should, believe, expect, future, potential, anticipate, intend, plan, think, estimate or
continue or the negative or other variations thereof, and (ii) statements regarding matters that are not historical facts. Such forward-looking statements are subject to various risks and uncertainties, including risks and
uncertainties relating to:
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the possible invalidity of the underlying beliefs and assumptions; |
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competitive pressures from department and specialty stores, general merchandise stores, manufacturers outlets, off-price and discount stores, and all other retail channels, including the Internet, mail-order
catalogs and television; |
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general consumer-spending levels, including the impact of general economic conditions, consumer disposable income levels, consumer confidence levels, the availability, cost and level of consumer debt, the costs of basic
necessities and other goods and the effects of the weather or natural disasters; |
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conditions to, or changes in the timing of, proposed transactions and changes in expected synergies, cost savings and non-recurring charges; |
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our consideration of transactions involving our real estate portfolio; |
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possible changes or developments in social, economic, business, industry, market, legal and regulatory circumstances and conditions; |
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possible actions taken or omitted to be taken by third parties, including customers, suppliers, business partners, competitors and legislative, regulatory, judicial and other governmental authorities and officials;
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changes in relationships with vendors and other product and service providers; |
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currency, interest and exchange rates and other capital market, economic and geopolitical conditions; |
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severe or unseasonable weather, possible outbreaks of epidemic or pandemic diseases and natural disasters; |
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unstable political conditions, civil unrest, terrorist activities and armed conflicts; |
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the possible inability of Macys manufacturers or transporters to deliver products in a timely manner or meet quality standards; |
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Macys reliance on foreign sources of production, including risks related to the disruption of imports by labor disputes, regional health pandemics, and regional political and economic conditions;
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duties, taxes, and other charges and quotas on imports; and |
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possible system failures and/or security breaches, including any security breach that results in the theft, transfer or unauthorized disclosure of customer, employee or company information, or the failure to comply with
various laws applicable to Macys in the event of such a breach. |
This list of factors is not exhaustive, and new
factors may emerge or changes to these factors may occur that would impact our business. Additional information regarding these and other factors may be contained in Macys filings with the SEC, especially on Forms 10-K, 10-Q and 8-K. All such
risk factors are difficult to predict, contain material uncertainties that may affect actual results and may be beyond our control. No forward-looking statements should be relied upon as continuing to reflect the expectations of management or the
current status of any matter referred to therein as of any date subsequent to the date on which such statements are made.
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DESCRIPTION OF DEBT SECURITIES
General
The debt securities that we may
offer by this prospectus consist of unsecured notes, debentures, or other evidences of indebtedness of Macys Holdings, a wholly owned subsidiary of Macys, which securities we refer to as debt securities. Macys Holdings
may issue debt securities in one or more series under an indenture, dated as of November 2, 2006, among Macys Holdings (formerly known as Federated Retail Holdings, Inc.), as issuer, Macys (formerly known as Federated Department
Stores, Inc.), as guarantor, and U.S. Bank National Association, as trustee. A copy of the indenture is filed as Exhibit 4.5 to the registration statement of which this prospectus is a part and is incorporated herein by reference. Except as
otherwise defined in this prospectus, capitalized terms used in this prospectus have the meanings given to them in the indenture.
The
provisions of the indenture will generally be applicable to all of the debt securities. Selected provisions of the indenture are described in this prospectus. Additional or different provisions that are applicable to a particular series of debt
securities will, if material, be described in a prospectus supplement relating to the offering of debt securities of that series. These provisions may include, among other things and to the extent applicable, the following:
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the title of the debt securities; |
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the extent, if any, to which the debt securities are subordinated in right of payment to other indebtedness of Macys Holdings; |
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any limit on the aggregate principal amount of the debt securities; |
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any subordination provisions or other limitations applicable to guarantees of the debt securities; |
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the persons to whom any interest on the debt securities will be payable, if other than the registered holders thereof on the regular record date therefor; |
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the date or dates on which the principal of the debt securities will be payable; |
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the rate or rates at which the debt securities will bear interest, if any, and the date or dates from which interest will accrue; |
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the dates on which interest, if any, will be payable and the regular record dates for interest payment dates; |
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the place or places where the principal of and any premium and interest on the debt securities will be payable; |
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the period or periods, if any, within which, and the price or prices at which, the debt securities may be redeemed, in whole or in part, at the option of Macys Holdings; |
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the obligation, if any, of Macys Holdings to redeem or purchase the debt securities pursuant to sinking fund or similar provisions and the terms and conditions of any such redemption or purchase;
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the denominations in which the debt securities will be issuable, if other than denominations of $1,000 and any integral multiple thereof; |
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the currency, currencies or currency units, if other than currency of the United States of America, in which payment of the principal of and any premium or interest on the debt securities will be payable, and the terms
and conditions of any elections that may be made available with respect thereto; |
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any index or formula used to determine the amount of payments of principal of and any premium or interest on the debt securities; |
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whether the debt securities are to be issued in whole or in part in the form of one or more global securities and, if so, the identity of the depositary, if any, for the global securities; |
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the manner, if any, in which the debt securities will be exchangeable for the common stock or other securities of Macys or any other person; |
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the principal amount (or any portion of the principal amount) of the debt securities which will be payable upon any declaration of acceleration of the maturity of the debt securities pursuant to an event of default;
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certain provisions relating to the rights, privileges and immunities of the trustee; and |
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the applicability to the debt securities of the provisions described under Defeasance below. |
We may issue debt securities at a discount from their stated principal amount. Federal income tax considerations and other special
considerations applicable to any debt security issued with original issue discount (an original issue discount security) may be described in an applicable prospectus supplement.
If the purchase price of any series of the debt securities is payable in a foreign currency or currency unit or if the principal of or any
premium or interest on any series of the debt securities is payable in a foreign currency or currency unit, the restrictions, elections, general tax considerations, specific terms, and other information with respect to the debt securities and the
applicable foreign currency or currency unit will be set forth in an applicable prospectus supplement.
Unless otherwise indicated in an
applicable prospectus supplement:
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the debt securities will be issued only in fully registered form (without coupons) in denominations of $1,000 or integral multiples thereof; and |
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payment of principal and any premium or interest on the debt securities will be payable, and the exchange and transfer of debt securities will be registrable, at Macys Holdings office or agency maintained
for those purposes and at any other office or agency maintained for those purposes. No service charge will be made for any registration of transfer or exchange of the debt securities, but we may require payment of a sum sufficient to cover any tax
or other governmental charge imposed in connection therewith. |
Guarantees
Subject to the limitations described below and except as otherwise disclosed in the applicable prospectus supplement, Macys will fully,
unconditionally and irrevocably guarantee the full and punctual payment when due, whether at maturity, by acceleration, by redemption, by repurchase, or otherwise, of all payment obligations on the debt securities of a series, whether for principal
of, or any premium or interest on, the debt securities or otherwise.
In the case of subordinated debt securities of any series,
Macys guarantee will be subordinated in right of payment to its senior debt on the same basis as the subordinated debt securities of each series are subordinated to Macys Holdings senior debt securities. No payment will be made by
Macys under its guarantee during any period in which payments by Macys Holdings on any subordinated debt securities are suspended by the subordination provisions applicable to such series.
Macys guarantee will be limited in amount to an amount not to exceed the maximum amount that can be guaranteed by Macys without
rendering such guarantee voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
Macys guarantee will be a continuing guarantee and will:
(1) remain in full force and effect until either (a) payment in full of all the applicable debt securities (or such debt securities are
otherwise satisfied and discharged in accordance with the provisions of the applicable indenture) or (b) released in connection with a redemption, if any;
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(2) be binding upon Macys; and
(3) inure to the benefit of and be enforceable by the applicable trustee, the holders and their successors, transferees and assigns.
Global Securities
The debt securities of
a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary or its nominee identified in an applicable prospectus supplement. Unless and until it is exchanged in
whole or in part for debt securities in registered form, a global security may not be registered for transfer or exchange except:
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by the depositary to a nominee of the depositary; |
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by a nominee of the depositary to the depositary or another nominee of the depositary; |
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by the depositary or any nominee of the depositary to a successor depositary or a nominee of the successor depositary; or |
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in any other circumstances described in an applicable prospectus supplement. |
The specific
terms of the depositary arrangement with respect to any debt securities to be represented by a global security will be described in an applicable prospectus supplement. We expect that the following provisions will apply to depositary arrangements.
Unless otherwise specified in an applicable prospectus supplement, any global security that represents debt securities will be registered
in the name of the depositary or its nominee. Upon the deposit of a global security with or on behalf of the depositary for the global security, the depositary will credit, on its book-entry registration and transfer system, the respective principal
amounts of the debt securities represented by the global security to the accounts of institutions that are participants in such system. The accounts to be credited will be designated by the underwriters or agents of the debt securities or by
Macys Holdings, if the debt securities are offered and sold directly by Macys Holdings.
Ownership of beneficial interests in
debt securities represented by a global security will be limited to participants in the book-entry registration and transfer system of the applicable depositary or persons that may hold interests through those participants. Ownership of those
beneficial interests by participants will be shown on, and the transfer of ownership will be effected only through, records maintained by the depositary or its nominee for such global security. Ownership of such beneficial interests by persons that
hold through such participants will be shown on, and the transfer of such ownership will be effected only through, records maintained by the participants. The laws of some jurisdictions require that specified purchasers of securities take physical
delivery of their securities in definitive form. These laws may impair your ability to transfer beneficial interests in a global security.
So long as the depositary for a global security, or its nominee, is the registered owner of the global security, the depositary or the
nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by the global security for all purposes under the indenture. Unless otherwise specified in an applicable prospectus supplement, owners of
beneficial interests in the global security will not be entitled to have any of the debt securities represented by the global security registered in their names, will not receive or be entitled to receive physical delivery of any such debt
securities in certificated form, and will not be considered the owners or holders of the debt securities for any purpose under the indenture. Accordingly, each person owning a beneficial interest in debt securities represented by a global security
must rely on the procedures of the applicable depositary and, if the person is not a participant in the book-entry registration and transfer system of the applicable depositary, on the procedures of the participant through which the person owns its
interest, to exercise any rights of an owner or holder of debt securities under the indenture.
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We understand that, under existing industry practices, if an owner of a beneficial interest in
debt securities represented by a global security desires to give any notice or take any action that an owner or holder of debt securities is entitled to give or take under the indenture:
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the applicable depositary would authorize its participants to give the notice or take the action; and |
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the participants would authorize persons owning the beneficial interests through the participants to give the notice or take the action or would otherwise act upon the instructions of the persons owning the beneficial
interests. |
Principal of and any premium and interest on debt securities represented by a global security will be payable in
the manner described in an applicable prospectus supplement. Payment of principal of, and any premium or interest on, debt securities represented by a global security will be made to the applicable depositary or its nominee, as the case may be, as
the registered owner or the holder of the global security. None of us, the trustee, any paying agent, or the registrar for debt securities represented by a global security will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in those debt securities or for maintaining, supervising, or reviewing any records relating to those beneficial ownership interests.
Certain Covenants of Macys Holdings
Maintenance of Office or Agency. Macys Holdings will be required to maintain an office or agency in each place of payment for each
series of debt securities for notice and demand purposes and for the purposes of presenting or surrendering debt securities for payment, registration of transfer, or exchange.
Paying Agents, Etc. If Macys Holdings acts as its own paying agent with respect to any series of debt securities, on or before
each due date of the principal of or any premium or interest on any of the debt securities of that series, Macys Holdings will be required to segregate and hold in trust for the benefit of the persons entitled to payment a sum sufficient to
pay the amount due and to notify the trustee promptly of Macys Holdings action or failure to act. If Macys Holdings has one or more paying agents for any series of debt securities, prior to each due date of the principal of or any
premium or interest on any debt securities of that series, Macys Holdings will be required to deposit with a paying agent a sum sufficient to pay the amount due and, unless the paying agent is the trustee, to promptly notify the trustee of its
action or failure to act. Subject to applicable abandoned property law, all moneys paid by Macys Holdings to a paying agent for the payment of principal of or any premium or interest on any debt securities that remain unclaimed for two years
after the principal or any premium or interest has become due and payable may be repaid to Macys Holdings, and thereafter the holder of those debt securities may look only to Macys Holdings for payment thereof.
Existence. Macys Holdings will be required to, and will be required to cause its subsidiaries to, preserve and keep in full force
and effect its and their existence, charter rights, statutory rights, and franchises, except to the extent that the failure to do so would not have a Material Adverse Effect.
Restrictive Covenants. Any restrictive covenants applicable to any series of debt securities will be described in an applicable
prospectus supplement.
Events of Default
The following are Events of Default under the indenture with respect to debt securities of any series:
(1) failure to pay principal of or premium, if any, on any debt security of that series when due;
(2) failure to pay any interest on any debt security of that series when due, which failure continues for 30 calendar days;
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(3) failure to make any sinking fund payment in respect of any debt security of that series when
it becomes due and payable;
(4) failure to perform, or breach of, any other of Macys Holdings covenants in the indenture or
supplemental indenture (other than a covenant included in the indenture solely for the benefit of a series of debt securities other than that series), which failure or breach continues for 60 calendar days after written notice thereof has been given
to Macys Holdings as provided in the indenture;
(5) any nonpayment at maturity or other default (beyond any applicable grace
period) under any agreement or instrument relating to any other indebtedness of Macys Holdings, the unpaid principal amount of which is not less than $100 million, which default results in the acceleration of the maturity of the
indebtedness prior to its stated maturity or occurs at the final maturity thereof;
(6) any guarantee of the debt securities of that
series ceases to be in full force and effect (except as contemplated by the terms of the indenture) or is declared in a judicial proceeding to be null and void, or Macys denies or disaffirms in writing its obligations under its guarantee;
(7) specified events of bankruptcy, insolvency, or reorganization involving Macys Holdings or Macys; and
(8) any other Event of Default provided with respect to debt securities of that series.
Pursuant to the Trust Indenture Act of 1939, the trustee is required, within 90 calendar days after the occurrence of a default in respect of
any series of debt securities is known to a responsible officer of the trustee, to give to the holders of the debt securities of that series notice of all uncured defaults known to it, except that:
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in the case of a default in the performance of any covenant of the character contemplated in clause (4) above, no notice will be given until at least 30 calendar days after the occurrence of the default; and
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other than in the case of a default of the character contemplated in clause (1), (2) or (3) above, the trustee may withhold notice if and so long as it in good faith determines that the withholding of
notice is in the interests of the holders of the debt securities of that series. |
If an Event of Default described in
clause (7) above occurs, the principal of, and any premium and accrued interest on the debt securities of that series will become immediately due and payable without any declaration or other act on the part of the trustee or any holder of the
debt securities of that series. If any other Event of Default with respect to debt securities of any series occurs and is continuing, either the trustee or the holders of at least 25% in principal amount of the outstanding debt securities of that
series (with a copy to the trustee if given by the holders) may declare the principal amount of all debt securities of that series to be due and payable immediately. However, at any time after a declaration of acceleration with respect to debt
securities of any series has been made, but before a judgment or decree based on such acceleration has been obtained, the holders of a majority in principal amount of the outstanding debt securities of that series may, under specified circumstances,
rescind and annul such acceleration. See Modification and Waiver below.
Subject to the duty of the trustee to act
with the required standard of care during an Event of Default, the trustee will have no obligation to exercise any of its rights or powers under the indenture at the request or direction of the holders of debt securities, unless holders of debt
securities shall have offered to the trustee reasonable security or indemnity. Subject to the provisions of the indenture, including those requiring security or indemnification of the trustee, the holders of a majority in principal amount of the
debt securities of any series will have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt
securities of that series.
9
No holder of a debt security of any series will have any right to institute any proceeding with
respect to the indenture or for any remedy thereunder unless:
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the holder has previously given to the trustee written notice of a continuing Event of Default with respect to the debt securities of that series; |
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have requested in writing that the trustee institute a proceeding as trustee in respect of the Event of
Default; |
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the holder or holders have offered reasonable indemnity to the trustee to institute the proceeding as trustee; |
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the trustee has not received from the holders of a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with the written request; and |
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the trustee has failed to institute the proceeding within 60 calendar days after receipt of the written request. |
However, the limitations described above do not apply to a suit instituted by a holder of a debt security for enforcement of payment of the
principal of and any premium or interest on such debt security on or after the applicable due dates for the payment of such obligations.
Macys Holdings is required to furnish to the trustee annually a statement as to the performance of its obligations under the indenture
and as to any default in its performance.
Any additional Events of Default with respect to any series of debt securities, and any
variations from the foregoing Events of Default applicable to any series of debt securities, will be described in an applicable prospectus supplement.
Modification and Waiver
In general,
modifications and amendments of the indenture may be made by Macys Holdings, Macys and the trustee with the consent of the holders of not less than a majority in principal amount of the outstanding debt securities of each series affected
thereby. However, no modification or amendment of the indenture may, without the consent of the holder of each outstanding debt security affected thereby:
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change the stated maturity of, or any installment of principal of, or interest on, any debt security; |
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reduce the principal amount of, the rate of interest on, or the premium, if any, payable upon the redemption of, any debt security; |
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reduce the amount of principal of an original issue discount security payable upon acceleration of the maturity thereof; |
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change the place or currency of payment of principal of, and any premium or interest on, any debt security; |
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impair the right to institute suit for the enforcement of any payment on or with respect to any debt security on or after the stated maturity or prepayment date thereof; or |
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reduce the percentage in principal amount of outstanding debt securities of any series required for modification or amendment of the indenture or for waiver of compliance with certain provisions of the indenture or for
waiver of certain defaults. |
10
The holders of at least a majority in principal amount of the outstanding debt securities of any
series may, on behalf of the holders of all debt securities of that series, waive Macys Holdings compliance with specified covenants of the indenture, by notice to Macys Holdings and the trustee. The holders of at least a majority
in principal amount of the outstanding debt securities of any series may, on behalf of the holders of all debt securities of that series, waive any past default under the indenture with respect to that series, except:
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a default in the payment of the principal of, any premium or interest on, any debt security of that series; or |
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a default of a provision of the indenture that cannot be modified or amended without the consent of the holder of each outstanding debt security of that series. |
Defeasance
Unless otherwise specified in
a prospectus supplement applicable to a particular series of debt securities and except as described below, upon compliance with the applicable requirements described below, Macys Holdings:
(1) will be deemed to have been discharged from its obligations with respect to the outstanding debt securities of that series; or
(2) will be released from its obligations to comply with certain covenants described under Certain Covenants of Macys
Holdings above and from certain prohibitions against consolidations, mergers, and the transfer of its assets described under Limitations on Merger and Other Transactions below with respect to the outstanding debt
securities of that series, and the occurrence of an event described in any of clauses (3), (4), (5) and (8) under Events of Default above will no longer be an Event of Default with respect to the debt
securities of that series except to the limited extent described below.
Following any defeasance described in clause (1) or
(2) above, Macys Holdings will continue to have specified obligations under the indenture, including obligations to register the transfer or exchange of debt securities of the applicable series; replace destroyed, stolen, lost, or
mutilated debt securities of the applicable series; maintain an office or agency in respect of the debt securities of the applicable series; hold funds for payment to holders of debt securities of the applicable series in trust; and to compensate
and reimburse the trustee. In the case of any defeasance described in clause (2) above, any failure by Macys Holdings to comply with its continuing obligations may constitute an Event of Default with respect to the debt securities of the
applicable series as described in clause (4) under Events of Defaults above.
In order to effect any
defeasance described in clause (1) or (2) above, Macys Holdings must irrevocably deposit with the trustee, in trust, money or specified government obligations (or depositary receipts therefor) that through the scheduled payment of
principal and interest in accordance with their terms will provide, without reinvestment, money in an amount sufficient to pay all of the principal and any premium and interest on the debt securities of such series on the dates such payments are due
in accordance with the terms of such debt securities. In addition, among other things:
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no Event of Default or event which with the giving of notice or lapse of time, or both, would become an Event of Default under the indenture shall have occurred and be continuing on the date of such deposit;
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no Event of Default or any event described in clause (7) under Events of Default above shall have occurred and be continuing at any time on or prior to the 124th calendar day following the
date of deposit; |
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in the event of any defeasance described in clause (1) above, Macys Holdings shall have delivered to the trustee an opinion of outside
counsel, stating that (a) it has received from, or there has been published by, the United States Internal Revenue Service a ruling or (b) there has been a change in |
11
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applicable federal income tax law, in either case to the effect that, among other things, the holders of the outstanding debt securities of such series will not recognize gain or loss for United
States federal income tax purposes as a result of such deposit or defeasance and will be subject to United States federal income tax in the same manner as if such deposit or defeasance had not occurred; |
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in the event of any defeasance described in clause (2) above, Macys Holdings shall have delivered to the trustee an opinion of outside counsel to the effect that, among other things, the holders of the
outstanding debt securities of such series will not recognize gain or loss for United States federal income tax purposes as a result of such deposit or defeasance and will be subject to United States federal income tax in the same manner as if such
deposit or defeasance had not occurred; |
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Macys Holdings shall have delivered to the trustee an officers certificate to the effect that (a) the debt securities of such series, if then listed on any securities exchange, will not be delisted
solely as a result of such deposit and (b) any defeasance described in clause (1) or (2) above shall not result in a breach or violation of, or constitute a default under, any agreement to which Macys Holdings is a party or
violate any law to which Macys Holdings is subject; |
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Macys Holdings shall have delivered to the trustee a certificate from a nationally recognized firm of independent accountants or other person acceptable to the trustee expressing their opinion that the payments of
principal and interest when due on the deposited government obligations plus any deposited money will provide the cash at such times and in such amounts as will be sufficient to pay the principal of and any premium and interest when due on the debt
securities of such series on the respective maturities or on any earlier date or dates on which the debt securities of such series shall be subject to redemption at the option of the holder thereof. |
If Macys Holdings fails to comply with its remaining obligations under the indenture with respect to the debt securities of the
applicable series following a defeasance described in clause (2) above and the debt securities of that series are declared due and payable because of the occurrence of any undefeased Event of Default, the amount of money and government
obligations on deposit with the trustee may be insufficient to pay amounts due on the debt securities of that series at the time of the acceleration resulting from such Event of Default. However, Macys Holdings will remain liable in respect of
such payments.
Satisfaction and Discharge
Macys Holdings, at its option, may satisfy and discharge the indenture (except for specified obligations of Macys Holdings and the
trustee, including, among others, the obligations to apply money held in trust and the right for the trustee to receive compensation and reimbursement) when:
(1) all of the debt securities previously authenticated and delivered under the
indenture (subject to specified exceptions relating to debt securities that have otherwise been satisfied or provided for) have been delivered to the trustee for cancellation; or
(2) all of the debt securities not previously delivered to the trustee for cancellation have become due and payable, will become due and
payable at their stated maturity within one year, or are to be called for redemption within one year under arrangements satisfactory to the trustee for the giving of notice of redemption by the trustee, and Macys Holdings has deposited or
caused to be deposited with the trustee as trust funds for such purpose an amount sufficient to pay and discharge the entire indebtedness on such debt securities, for principal and any premium and interest to the date of such deposit (in the case of
debt securities which have become due and payable) or to the stated maturity or redemption date, as the case may be;
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Macys Holdings has paid or caused to be paid all other sums payable by it under the indenture; and |
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Macys Holdings has delivered to the trustee an officers certificate and an opinion of counsel, each to the effect that all conditions precedent relating to the satisfaction and discharge of the indenture
have been satisfied. |
12
Limitations on Merger and Other Transactions
Prior to the satisfaction and discharge of the indenture, Macys Holdings may not consolidate with or merge with or into any other person,
or transfer all or substantially all of its properties and assets to another person unless:
(1) Macys Holdings is the continuing or surviving person in the consolidation or
merger; or
(2) the person (if other than Macys Holdings) formed by the consolidation or into which Macys Holdings is merged
or to which all or substantially all of the properties and assets of Macys Holdings are transferred is a corporation, partnership, limited liability company, business trust, trust or other legal entity organized and validly existing under the
laws of the United States, any State thereof, or the District of Columbia, and expressly assumes, by a supplemental indenture, all of Macys Holdings obligations under the debt securities and the indenture;
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immediately after the transaction and the incurrence or anticipated incurrence of any indebtedness to be incurred in connection therewith, no Default exists; and |
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an officers certificate is delivered to the trustee to the effect that both of the conditions set forth above have been satisfied and an opinion of outside counsel has been delivered to the trustee to the effect
that the first condition set forth above has been satisfied. |
The continuing, surviving, or successor person will succeed to
and be substituted for Macys Holdings with the same effect as if it had been named in the indenture as a party thereto, and thereafter the predecessor person will be relieved of all obligations and covenants under the indenture and the debt
securities.
Governing Law
The
indenture is, and the debt securities will be, governed by, and construed in accordance with, the laws of the State of New York.
Regarding the Trustee
The indenture and the Trust Indenture Act contain specified limitations on the right of the trustee, should it become a creditor of
Macys Holdings within three months of, or subsequent to, a default by Macys Holdings to make payment in full of principal of or interest on any series of debt securities issued pursuant to the indenture when and as the same becomes due
and payable, to obtain payment of claims, or to realize for its own account on property received in respect of any such claim as security or otherwise, unless and until such default is cured. However, the trustees rights as a creditor of
Macys Holdings will not be limited if the creditor relationship arises from, among other things:
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the ownership or acquisition of securities issued under any indenture or having a maturity of one year or more at the time of acquisition by the trustee; |
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specified advances authorized by a receivership or bankruptcy court of competent jurisdiction or by the indenture; |
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disbursements made in the ordinary course of business in its capacity as indenture trustee, transfer agent, registrar, custodian, or paying agent or in any other similar capacity; |
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indebtedness created as a result of goods or securities sold in a cash transaction or services rendered or premises rented; or |
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the acquisition, ownership, acceptance, or negotiation of specified drafts, bills of exchange, acceptances, or other obligations. |
The indenture does not prohibit the trustee from serving as trustee under any other indenture to which Macys Holdings may be a party
from time to time or from engaging in other transactions with Macys Holdings. If the trustee acquires any conflicting interest within the meaning of the Trust Indenture Act and there is an Event of Default with respect to any series of
debt securities, the trustee must eliminate the conflict or resign.
13
DESCRIPTION OF MACYS CAPITAL STOCK
Authorized Capital Stock
Macys is
authorized to issue 1,125 million shares of capital stock, consisting of 1,000 million shares of common stock, par value $0.01 per share, and 125 million shares of preferred stock, par value $0.01 per share.
Common Stock
Holders of Macys
common stock are entitled to one vote for each share held of record on all matters submitted to a vote of stockholders. Upon satisfaction of Macys obligations to preferred stockholders, holders of Macys common stock may receive dividends
when declared by the Macys board of directors. If Macys liquidates, dissolves or winds-up its business, holders of Macys common stock will share equally in the assets remaining after Macys pays all of its creditors and
satisfies all of its obligations to preferred stockholders. Holders of Macys common stock have no conversion, preemptive, subscription or redemption rights. Macys common stock is traded on the New York Stock Exchange under the symbol
M. The registrar and transfer agent for the common stock is Computershare Shareowner Services.
Preferred Stock
The Macys board of directors can, without approval of stockholders, issue one or more series of preferred stock. The board can determine
the number of shares of each series and the rights, preferences and limitations of each series, including dividend rights, voting rights, conversion rights, redemption rights and any liquidation preferences and the terms and conditions of the issue.
In some cases, the issuance of preferred stock could delay, defer or prevent a change in control of Macys and make it harder to remove present management, without further action by Macys stockholders. Under some circumstances, preferred
stock could also decrease the amount of earnings and assets available for distribution to holders of Macys common stock if Macys liquidates or dissolves and could also restrict or limit dividend payments to holders of Macys common
stock.
Macys has not issued any shares of preferred stock to date, and Macys does not plan to issue any shares of preferred
stock.
Purposes and Effects of Certain Provisions of Macys Certificate of Incorporation and By-laws
General
Macys certificate of
incorporation and by-laws contain provisions that could make more difficult the acquisition of control of Macys by means of a tender offer, open market purchases, a proxy contest or otherwise. A description of these provisions is set forth
below.
Removal of Directors
Macys certificate of incorporation provides that, except as may be otherwise provided by the terms of any series of preferred stock, a
director may only be removed at any annual or special meeting of Macys stockholders, the notice of which states that the removal of a director or directors is among the purposes of the meeting, by the affirmative vote of the holders of at
least a majority of the voting stock present or represented by proxy at such meeting and actually voting on such matter, voted together as a single class.
Limitation of Director Liability
Macys certificate of incorporation provides that, to the full extent permitted by the Delaware General Corporation Law or any other
applicable law currently or hereafter in effect, no director will be personally liable to Macys or its stockholders for or with respect to any acts or omissions in the performance of his or her duties
14
as a director of Macys. This provision in Macys certificate of incorporation may have the effect of reducing the likelihood of derivative litigation against Macys directors and
may discourage or deter stockholders or management from bringing a lawsuit against Macys directors for breach of their duty of care, even though such an action, if successful, might otherwise have benefited Macys and its stockholders.
These provisions do not limit or affect a stockholders ability to seek and obtain relief under federal securities laws.
No Stockholder Action
by Written Consent
Macys certificate of incorporation provides that any action required or permitted to be taken by the
Macys stockholders must be effected at a duly called annual or special meeting of stockholders and may not be effected by a written consent of Macys stockholders. This prevents Macys stockholders from initiating or effecting any
action by written consent, thereby limiting the ability of Macys stockholders to take actions opposed by Macys board of directors.
Special Meetings of Stockholders
Macys certificate of incorporation and by-laws provide that special meetings of stockholders may be called only by the chairman of the
Macys board of directors, the secretary of Macys upon receipt of a written request from a majority of directors (assuming no vacancies) or the Macys board of directors upon receipt of a written request from not less than 15% of
Macys voting stock entitled to vote in the election of directors, voting together as a single class.
Section 203 of the Delaware General
Corporation Law
Macys is subject to Section 203, which prohibits publicly held Delaware corporations from engaging in a
business combination with an interested stockholder for a period of three years following the time of the transaction in which the person or entity became an interested stockholder, unless:
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prior to that time, either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder is approved by the board of directors of the corporation; |
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upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the outstanding voting stock of the corporation, excluding for
this purpose shares owned by persons who are directors and also officers of the corporation and by specified employee benefit plans; or |
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at or after such time the business combination is approved by the board of directors of the corporation and by the affirmative vote of at least 66 2⁄3% of the outstanding voting stock which is not owned by the interested stockholder. |
For the purposes of Section 203, a business combination is broadly defined to include mergers, asset sales and other
transactions resulting in a financial benefit to the interested stockholder. An interested stockholder is a person who, together with affiliates and associates, owns or within the immediately preceding three years did own 15% or more of
the corporations voting stock.
15
DESCRIPTION OF DEPOSITARY SHARES
Macys may offer depositary shares (either separately or together with other securities) representing fractional shares of Macys
preferred stock of any series. In connection with the issuance of any depositary shares, Macys will enter into a deposit agreement with a bank or trust company, as depositary, which will be named in the applicable prospectus supplement.
Depositary shares will be evidenced by depositary receipts issued pursuant to the related deposit agreement. Immediately following Macys issuance of the security related to the depositary shares, Macys will deposit the shares of its
preferred stock with the relevant depositary and will cause the depositary to issue, on Macys behalf, the related depositary receipts. Subject to the terms of the deposit agreement, each owner of a depositary receipt will be entitled, in
proportion to the fraction of a share of preferred stock represented by the related depositary share, to all the rights, preferences and privileges of, and will be subject to all of the limitations and restrictions on, the preferred stock
represented by the depositary receipt (including, if applicable, dividend, voting, conversion, exchange, redemption, sinking fund, repayment at maturity, subscription and liquidation rights).
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of debt securities of Macys Holdings, common stock, preferred stock or depositary shares of
Macys or any combination thereof. Warrants may be issued independently or together with any other securities offered by a prospectus supplement. Warrants may be attached to or separate from such securities. Warrants may be issued under warrant
agreements to be entered into among Macys and/or Macys Holdings and a warrant agent specified in the applicable prospectus supplement. The warrant agent will act solely as an agent of Macys and/or Macys Holdings in connection
with the warrants of a particular series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
The applicable prospectus supplement will describe the terms of the warrants in respect of which this prospectus is being delivered,
including, where applicable, the following:
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the title of such warrants; |
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the aggregate number of such warrants; |
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the price or prices at which such warrants will be issued; |
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the designation, number and terms of the debt securities of Macys Holdings, the common stock, preferred stock or depositary shares of Macys or combination thereof, purchasable upon exercise of such warrants;
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the designation and terms of the other securities, if any, with which such warrants are issued and the number of such warrants issued with each such security; |
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the date, if any, on and after which such warrants and the related underlying securities will be separately transferable; |
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the price at which each underlying security purchasable upon exercise of such warrants may be purchased; |
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the date on which the right to exercise such warrants shall commence and the date on which such right shall expire; |
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the minimum amount of such warrants which may be exercised at any one time; |
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information with respect to book-entry procedures, if any; |
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a discussion of any applicable federal income tax considerations; and |
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any other terms of such warrants, including terms, procedures and limitations relating to the transferability, exchange and exercise of such warrants. |
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DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including contracts obligating holders to purchase from us, and for us to sell to holders, a specific or
varying number of debt securities of Macys Holdings, shares of common stock, preferred stock or depositary shares of Macys, warrants, or securities of an entity unaffiliated with us, or any combination of the above, at a future date or
dates. Alternatively, the purchase contracts may obligate us to purchase from holders, and obligate holders to sell to us, a specific or varying number of debt securities of Macys Holdings, shares of common stock, preferred stock or depositary
shares of Macys, warrants, or other property, or any combination of the above. The price of the securities or other property subject to the purchase contracts may be fixed at the time the purchase contracts are issued or may be determined by
reference to a specific formula described in the purchase contracts. We may issue purchase contracts separately or as a part of units each consisting of a purchase contract and one or more of the other securities of Macys Holdings and/or
Macys described in this prospectus or securities of third parties, including U.S. Treasury securities, securing the holders obligations under the purchase contract. The purchase contracts may require us to make periodic payments to
holders or vice versa and the payments may be unsecured or pre-funded on some basis. The purchase contracts may require holders to secure the holders obligations in a manner specified in the applicable prospectus supplement.
The applicable prospectus supplement will describe the terms of any purchase contracts in respect of which this prospectus is being delivered,
including, to the extent applicable, the following:
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whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell, the securities subject to purchase under the purchase contract, and the nature and amount of each of those
securities, or the method of determining those amounts; |
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whether the purchase contracts are to be prepaid or not; |
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whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of the securities subject to purchase under the purchase contract; |
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any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts; and |
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whether the purchase contracts will be issued in fully registered or global form. |
DESCRIPTION OF UNITS
We may issue units comprising one or more securities of Macys Holdings and/or Macys described in
this prospectus in any combination. Units may also include debt obligations of third parties, such as U.S. Treasury securities. Each unit will be issued so that the holder of the unit also is the holder of each security included in the unit.
Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately at
any time or at any time before a specified date or occurrence.
The applicable prospectus supplement will describe the terms of any units
in respect of which this prospectus is being delivered, including, to the extent applicable, the following:
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the designation and terms of the units and the securities included in the units, including whether and under what circumstances those securities may be held or transferred separately; |
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any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities included in the units; and |
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whether the units will be issued in fully registered or global form. |
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RATIO OF EARNINGS TO FIXED CHARGES
The following table shows Macys historical ratio of earnings to fixed charges for the thirty-nine weeks ended October 31, 2015 and
each of the previous five fiscal years. Macys ratio of earnings to fixed charges for each of the periods set forth below has been computed on a consolidated basis and should be read in conjunction with the consolidated financial statements,
including the notes to those financial statements, and other information set forth in the reports filed by Macys with the SEC.
For
purposes of determining the ratio of earnings (losses) to fixed charges, earnings (losses) consist of income (loss) from continuing operations before income taxes plus fixed charges (excluding interest capitalized). Fixed
charges represent interest incurred, premium on early retirement of debt, if any, amortization of debt expenses, and that portion of rental expenses on operating leases deemed to be the equivalent of interest.
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39 Weeks
Ended
October 31, 2015 |
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Fiscal Year Ended |
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January 31, 2015 |
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February 1, 2014 |
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February 2, 2013 |
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January 28, 2012 |
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January 29, 2011 |
3.2x |
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5.4x |
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5.5x |
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4.1x |
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4.5x |
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2.9x |
USE OF PROCEEDS
We intend to use the net proceeds from the sales of the securities described in this prospectus as set forth in the applicable prospectus
supplement.
CERTAIN LEGAL MATTERS
In connection with particular offerings of the securities in the future, and if stated in the applicable prospectus supplements, the validity
of those securities may be passed upon for us by Macys General Counsel or by Jones Day, as our counsel, and for any underwriters or agents by counsel named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Macys, Inc. as of January 31, 2015 and February 1, 2014, and for each of the years in
the three-year period ended January 31, 2015, and managements assessment of the effectiveness of internal control over financial reporting as of January 31, 2015 have been incorporated by reference herein in reliance upon the report
of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
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MACYS, INC.
Common Stock
Preferred
Stock
Depositary Shares
Warrants
Purchase
Contracts
Units
Guarantees of Debt Securities
MACYS RETAIL HOLDINGS, INC.
Debt Securities
Warrants
Purchase
Contracts
Units
PROSPECTUS
December 1, 2015
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. |
Other Expenses of Issuance and Distribution. |
The following table sets forth the
estimated fees and expenses in connection with the shelf registration of the securities registered under this registration statement, other than any underwriting discounts and commissions. The actual amounts of such fees and expenses will be
determined from time to time.
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SEC registration fee |
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(1 |
) |
Legal fees and expenses |
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(2 |
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Accounting fees and expenses |
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(2 |
) |
Printing and engraving expenses |
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(2 |
) |
Rating agency fees |
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(2 |
) |
Trustees fees and expenses |
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(2 |
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Miscellaneous expenses |
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(2 |
) |
Total |
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(2 |
) |
(1) |
In accordance with Rules 456(b) and 457(r), we are deferring payment of all of the registration fee. |
(2) |
Cannot be estimated at this time. |
Item 15. |
Indemnification of Directors and Officers. |
Sections 721 through 726 of Article 7
of the New York Business Corporation Law, which is applicable to Macys Holdings, provide, in general, that a corporation may indemnify a director or officer made a party to an action (i) by a corporation or in its right in order to
procure a judgment in its favor unless he shall have breached his duties, or (ii) other than an action by or in the right of the corporation in order to procure a judgment in its favor, against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys fees actually and necessarily incurred as a result of such action or proceeding, if such director or officer acted in good faith and in a manner he reasonably believed to be in or, in certain cases, not
opposed to such corporations interest and additionally, in criminal actions, had no reasonable cause to believe his conduct was unlawful. The statutory provisions for indemnification and advancement of expenses are not exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be entitled independently of the applicable statutory provision.
Section 145 of the Delaware General Corporation Law, which is applicable to Macys, provides, in general, that each director and
officer of a corporation may be indemnified against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any threatened, pending or completed legal proceedings
in which he or she is involved by reason of the fact that he or she is or was a director or officer, if he or she acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe that his or her conduct was unlawful. If the legal proceeding, however, is by or in the right of the corporation, the director or
officer may not be indemnified in respect of any claim, issue or matter as to which he or she has been adjudged to be liable to the corporation unless a court determines otherwise.
Macys Holdings by-laws provide for the indemnification of directors and officers of Macys Holdings to the fullest extent
permitted by applicable law. Macys certificate of incorporation and by-laws provide for the indemnification of Macys directors and officers to the fullest extent permitted by applicable law.
II-1
The following documents are filed as exhibits to this registration
statement:
|
|
|
Exhibit No. |
|
Description |
|
|
4.1 |
|
Amended and Restated Certificate of Incorporation of Macys, Inc. (Macys) (incorporated by reference to Exhibit 3.1 to Macys Current Report on Form 8-K (File No. 001-13536) filed on May 18,
2010) |
|
|
4.2 |
|
Certificate of Designations of Series A Junior Participating Preferred Stock (incorporated by reference to Exhibit 3.1.1 to Macys Annual Report on Form 10-K for the fiscal year ended January 28, 1995) |
|
|
4.3 |
|
Article Seventh of the Amended and Restated Certificate of Incorporation of Macys (incorporated by reference to Exhibit 3.1 to Macys Current Report on Form 8-K (File No. 001-13536) filed on May 24, 2011 (the May
24, 2011 Form 8-K)) |
|
|
4.4 |
|
Amended and Restated By-Laws (incorporated by reference to Exhibit 3.2 to the May 24, 2011 Form 8-K) |
|
|
4.5 |
|
Indenture, dated as of November 2, 2006 (the Indenture), by and among Macys Retail Holdings, Inc. (Macys Holdings, and formerly known as Federated Retail Holdings, Inc.), Macys (formerly
known as Federated Department Stores, Inc.) and U.S. Bank National Association (incorporated by reference to Exhibit 4.6 to Macys and Macys Holdings Registration Statement on Form S-3 (File No.: 333-138376) filed on November 2,
2006) |
|
|
*4.6 |
|
Form of debt securities |
|
|
*4.7 |
|
Certificate of designations for preferred stock of Macys |
|
|
*4.8 |
|
Form of depositary receipt |
|
|
*4.9 |
|
Form of depositary agreement |
|
|
*4.10 |
|
Form of warrant |
|
|
*4.11 |
|
Form of warrant agreement |
|
|
*4.12 |
|
Form of purchase contract |
|
|
*4.13 |
|
Form of unit certificate |
|
|
*4.14 |
|
Form of unit agreement |
|
|
5.1 |
|
Opinion of Jones Day |
|
|
12.1 |
|
Statement Regarding Computation of Ratio of Earning to Fixed Charges |
|
|
21.1 |
|
Subsidiary List |
|
|
23.1 |
|
Consent of Jones Day (included in Exhibit 5.1) |
|
|
23.2 |
|
Consent of KPMG LLP |
|
|
24.1 |
|
Powers of Attorney for certain directors and officers of Macys |
|
|
24.2 |
|
Powers of Attorney for certain directors and officers of Macys Holdings |
|
|
25.1 |
|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, by U.S. Bank National Association, the trustee under the Indenture |
* |
To be filed by an amendment or as an exhibit to a report filed under the Exchange Act and incorporated by reference herein. |
II-2
The undersigned registrants hereby undertake:
(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;
(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 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the
effective registration statement; and
(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 (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrants
pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by the registrants pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by
Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date.
II-3
(5) That, for the purpose of determining liability of the registrants under the Securities Act to
any purchaser in the initial distribution of the securities, in a primary offering of securities of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrants will be a seller to the purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrants relating to the offering required to be filed
pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrants
or used or referred to by the undersigned registrants;
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrants or their securities provided by or on behalf of the undersigned registrants; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act, each filing of the registrants annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) 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.
(7) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
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, or otherwise, the registrants has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
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 of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such
issue.
II-4
SIGNATURES
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 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 Cincinnati, State of Ohio, on December 1, 2015.
|
MACYS, INC. |
|
By: /s/ Dennis J. Broderick |
Dennis J. Broderick |
Executive Vice President, General Counsel and Secretary |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed
below by the following persons in the capacities indicated on December 1, 2015.
|
|
|
Signatures |
|
Title |
|
|
*
Terry J. Lundgren |
|
Chairman of the Board,
Chief Executive Officer and Director
(Principal Executive Officer) |
|
|
*
Karen M. Hoguet |
|
Chief Financial Officer
(Principal Financial Officer) |
|
|
*
Joel A. Belsky |
|
Executive Vice President and Controller
(Principal Accounting Officer) |
|
|
Francis S. Blake |
|
Director |
|
|
*
Stephen F. Bollenbach |
|
Director |
|
|
*
John A. Bryant |
|
Director |
|
|
*
Deidre P. Connelly |
|
Director |
|
|
*
Meyer Feldberg |
|
Director |
|
|
*
Leslie D. Hale |
|
Director |
|
|
*
Sara Levinson |
|
Director |
|
|
*
Joseph Neubauer |
|
Director |
II-5
|
|
|
Signatures |
|
Title |
|
|
*
Joyce M. Roché |
|
Director |
|
|
*
Paul C. Varga |
|
Director |
|
|
*
Craig E. Weatherup |
|
Director |
|
|
*
Marna C. Whittington |
|
Director |
|
|
*
Annie Young-Scrivner |
|
Director |
* |
The undersigned, by signing his name hereto, signs and executes this registration statement pursuant to the Powers of Attorney executed by the above-named officers and directors and filed with the Securities and
Exchange Commission. |
|
/s/ Dennis J. Broderick |
Dennis J. Broderick |
Attorney-in-Fact |
II-6
SIGNATURES
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 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 Cincinnati, State of Ohio, on December 1, 2015.
|
MACYS RETAIL HOLDINGS, INC. |
|
By: /s/ Dennis J. Broderick |
Dennis J. Broderick |
President |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed
below by the following persons in the capacities indicated on December 1, 2015.
|
|
|
Signatures |
|
Title |
|
|
/s/ Dennis J. Broderick
Dennis J. Broderick |
|
President and Director
(Principal Executive Officer) |
|
|
*
Karen M. Hoguet |
|
Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer) |
|
|
*
Joel A. Belsky |
|
Director |
* |
The undersigned, by signing his name hereto, signs and executes this registration statement pursuant to the Powers of Attorney executed by the above-named officers and directors and filed with the Securities and
Exchange Commission. |
|
/s/ Dennis J. Broderick |
Dennis J. Broderick |
Attorney-in-Fact |
II-7
EXHIBIT INDEX
|
|
|
Exhibit No. |
|
Description |
|
|
4.1 |
|
Amended and Restated Certificate of Incorporation of Macys, Inc. (Macys) (incorporated by reference to Exhibit 3.1 to Macys Current Report on Form 8-K (File No. 001-13536) filed on May 18,
2010) |
|
|
4.2 |
|
Certificate of Designations of Series A Junior Participating Preferred Stock (incorporated by reference to Exhibit 3.1.1 to Macys Annual Report on Form 10-K for the fiscal year ended January 28, 1995) |
|
|
4.3 |
|
Article Seventh of the Amended and Restated Certificate of Incorporation of Macys (incorporated by reference to Exhibit 3.1 to Macys Current Report on Form 8-K (File No. 001-13536) filed on May 24, 2011 (the May
24, 2011 Form 8-K)) |
|
|
4.4 |
|
Amended and Restated By-Laws (incorporated by reference to Exhibit 3.2 to the May 24, 2011 Form 8-K) |
|
|
4.5 |
|
Indenture, dated as of November 2, 2006 (the Indenture), by and among Macys Retail Holdings, Inc. (Macys Holdings, and formerly known as Federated Retail Holdings, Inc.), Macys (formerly
known as Federated Department Stores, Inc.) and U.S. Bank National Association (incorporated by reference to Exhibit 4.6 to Macys and Macys Holdings Registration Statement on Form S-3 (File No.: 333-138376) filed on November 2,
2006) |
|
|
*4.6 |
|
Form of debt securities |
|
|
*4.7 |
|
Certificate of designations for preferred stock of Macys |
|
|
*4.8 |
|
Form of depositary receipt |
|
|
*4.9 |
|
Form of depositary agreement |
|
|
*4.10 |
|
Form of warrant |
|
|
*4.11 |
|
Form of warrant agreement |
|
|
*4.12 |
|
Form of purchase contract |
|
|
*4.13 |
|
Form of unit certificate |
|
|
*4.14 |
|
Form of unit agreement |
|
|
5.1 |
|
Opinion of Jones Day |
|
|
12.1 |
|
Statement Regarding Computation of Ratio of Earning to Fixed Charges |
|
|
21.1 |
|
Subsidiary List |
|
|
23.1 |
|
Consent of Jones Day (included in Exhibit 5.1) |
|
|
23.2 |
|
Consent of KPMG LLP |
|
|
24.1 |
|
Powers of Attorney for certain directors and officers of Macys |
|
|
24.2 |
|
Powers of Attorney for certain directors and officers of Macys Holdings |
|
|
25.1 |
|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, by U.S. Bank National Association, the trustee under the Indenture |
* |
To be filed by an amendment or as an exhibit to a report filed under the Exchange Act and incorporated by reference herein. |
II-8
Exhibit 5.1
Opinion of Jones Day
December 1, 2015
Macys, Inc.
Macys Retail Holdings, Inc.
7 West Seventh Street
Cincinnati, Ohio 45202
Re: Registration Statement on Form S-3
Filed by Macys, Inc. and Macys Retail Holdings, Inc.
Ladies and Gentlemen:
We have acted as counsel for Macys, Inc., a Delaware corporation (Macys), and Macys Retail Holdings, Inc., a New
York corporation (Macys Holdings), in connection with the authorization of the possible issuance and sale from time to time, on a delayed basis, by Macys and/or Macys Holdings, as applicable, of an indeterminate amount
of: (i) shares of common stock, par value $0.01 per share, of Macys (the Common Stock); (ii) shares of preferred stock, par value $0.01 per share, of Macys (the Preferred Stock), in one or more series,
certain of which may be convertible into or exchangeable for Common Stock; (iii) depositary shares of Macys representing fractional interests in Preferred Stock (the Depositary Shares); (iv) debt securities of Macys
Holdings, in one or more series (Debt Securities), each fully and unconditionally guaranteed by Macys (the Guarantees), certain of which Debt Securities may be exchangeable for Common Stock or other securities of
Macys or any other person; (v) warrants to purchase Common Stock, Preferred Stock, Debt Securities, Depositary Shares or any combination thereof (the Warrants); (vi) purchase contracts for the purchase or sale of Common
Stock, Preferred Stock, Debt Securities, Depositary Shares, Warrants or securities of a third party unaffiliated with Macys or Macys Holdings at a future date or dates (the Purchase Contracts); and (vii) units consisting
of one or more of the securities described in clauses (i) through (vi) above and which may include debt obligations of third parties (the Units), in each case as contemplated by the Registration Statement of Macys and
Macys Holdings on Form S-3 to which this opinion is an exhibit (as the same may be amended from time to time, the Registration Statement). The Common Stock, the Preferred Stock, the Depositary Shares, the Debt Securities, the
Guarantees, the Warrants, the Purchase Contracts, and the Units are collectively referred to herein as the Securities and each, a Security. The Securities are to be issued from time to time pursuant to Rule 415 under the
Securities Act of 1933 (the Securities Act). The Debt Securities and Guarantees are to be issued under an Indenture, dated as of November 2, 2006 (as the same may be supplemented from time to time, the Indenture), among
Macys Holdings, as issuer, Macys, as guarantor, and U.S. Bank National Association, as trustee (the Trustee).
In
connection with the opinions expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of this opinion. Based on the foregoing, and subject to the further limitations,
qualifications and assumptions set forth herein, we are of the opinion that:
1. The shares of Common Stock, upon receipt by Macys of
such lawful consideration therefor having a value not less than the par value thereof as the Macys Board of Directors (or an authorized committee thereof) may determine, will be validly issued, fully paid and nonassessable.
2. The shares of Preferred Stock, upon receipt by Macys of such lawful consideration therefor having a value not less than the par value
thereof as the Macys Board of Directors (or an authorized committee thereof) may determine, will be validly issued, fully paid and nonassessable.
3. The Depositary Shares, upon receipt by Macys of such lawful consideration therefor as the Macys Board of Directors (or an
authorized committee thereof) may determine, will be validly issued, and the depositary receipts representing the Depositary Shares will entitle the holders thereof to the rights specified therein and in the deposit agreement pursuant to which they
are issued.
4. The Debt Securities, when duly executed by Macys Holdings and authenticated by the
Trustee in accordance with the Indenture, issued and sold in accordance with the Registration Statement and delivered to the purchaser or purchasers thereof against receipt by Macys Holdings of such lawful consideration therefor as the
Macys Holdings Board of Directors (or a duly authorized committee thereof) may determine, will constitute valid and binding obligations of Macys Holdings.
5. Upon the execution, authentication, issuance, sale and delivery of the Debt Securities as described above, the Guarantees thereof will
constitute valid and binding obligations of Macys.
6. The Warrants, upon receipt by Macys and/or Macys Holdings, as
applicable, of such lawful consideration therefor as the Board of Directors (or an authorized committee thereof) of Macys and/or Macys Holdings, as applicable, may determine, will constitute valid and binding obligations of Macys
and/or Macys Holdings, as applicable.
7. The Purchase Contracts, upon receipt by Macys and/or Macys Holdings, as
applicable, of such lawful consideration therefor as the Board of Directors (or an authorized committee thereof) of Macys and/or Macys Holdings, as applicable, may determine, will constitute valid and binding obligations of Macys
and/or Macys Holdings, as applicable.
8. The Units, upon receipt by Macys and/or Macys Holdings, as applicable, of such
lawful consideration therefor as the Board of Directors (or an authorized committee thereof) of Macys and/or Macys Holdings, as applicable, may determine, will constitute valid and binding obligations of Macys and/or Macys
Holdings, as applicable.
In rendering the foregoing opinions, we have assumed that: (i) the Registration Statement, and any
amendments thereto, will have become effective (and will remain effective at the time of issuance of any Securities thereunder); (ii) a prospectus supplement describing each class and/or series of Securities offered pursuant to the Registration
Statement, to the extent required by applicable law and relevant rules and regulations of the Securities and Exchange Commission (the Commission), will be timely filed with the Commission; (iii) the definitive terms of each
class and/or series of Securities will have been established in accordance with the authorizing resolutions adopted by the Board of Directors of Macys or Macys Holdings (or an authorized committee thereof), as applicable, and, as
applicable, the Macys and/or Macys Holdings restated certificate of incorporation and applicable law; (iv) Macys or Macys holdings, as applicable, will issue and deliver the applicable Securities in the manner
contemplated by the Registration Statement and any Securities that consist of shares of capital stock will have been authorized and reserved for issuance, in each case within the limits of the then remaining authorized but unissued and unreserved
amounts of such capital stock; (v) the resolutions authorizing Macys and Macys Holdings to issue, offer and sell the Securities will have been adopted by the Board of Directors Macys and/or Macys Holdings (or an
authorized committee thereof), as applicable, and will be in full force and effect at all times at which the Securities are offered or sold by Macys or Macys Holdings, as applicable; (vi) all Securities will be issued in compliance
with applicable federal and state securities laws; and (vii) any Indenture, Deposit Agreement, Warrant Agreement, Purchase Contract Agreement (each as defined below) or unit agreement will be governed by and construed in accordance with the
laws of the State of New York and will constitute a valid and binding obligation of each party thereto other than Macys or Macys Holdings, as applicable.
With respect to any Securities consisting of any series of Debt Securities and the Guarantees, we have further assumed that (i) the
Indenture is, and any supplemental indenture will be, a valid and binding obligation of the Trustee; (ii) all terms of the Debt Securities or Guarantees not provided for in the Indenture will have been established in accordance with the
provisions of the Indenture and reflected in appropriate documentation approved by us and, if applicable, duly executed and delivered by Macys, Macys Holdings and the Trustee; and (iii) the Debt Securities will be duly executed,
authenticated, issued and delivered in accordance with the provisions of the Indenture.
With respect to any Securities consisting of
Preferred Stock, we have further assumed that Macys will issue and deliver the shares of Preferred Stock being issued and delivered after the filing with the Secretary of State of the State of Delaware of a certificate of amendment to
Macys restated certificate of incorporation, approved by us, establishing the designations, preferences and rights of the class or series of Preferred Stock being issued and delivered.
With respect to any Securities consisting of Depositary Shares, we have further assumed that the Depositary Shares will be: (i) issued
and delivered after authorization, execution and delivery of the deposit agreement, approved by us, relating to the Depositary Shares to be entered into between Macys and an entity (the Depositary) selected by Macys to act as
depositary (the Deposit Agreement), and (ii) issued after Macys deposits with the Depositary shares of the Preferred Stock to be represented by such Depositary Shares that are authorized, validly issued, fully paid and
nonassessable as contemplated by the Registration Statement and the Deposit Agreement.
With respect to any Securities consisting of Warrants, we have further assumed that (i) the
warrant agreement, approved by us, relating to the Warrants (the Warrant Agreement) to be entered into between Macys and/or Macys Holdings, as applicable, and an entity selected by Macys and/or Macys Holdings to
act as the warrant agent (the Warrant Agent) will have been authorized, executed and delivered by Macys and/or Macys Holdings, as applicable, and the Warrant Agent, and (ii) the Warrants will be authorized, executed and
delivered by Macys and/or Macys Holdings, as applicable, and the Warrant Agent in accordance with the provisions of the Warrant Agreement.
With respect to any Securities consisting of Purchase Contracts, we have further assumed that (i) the purchase contract agreement,
approved by us, relating to the Purchase Contracts (the Purchase Contract Agreement) to be entered into between Macys and/or Macys Holdings, as applicable, and an entity selected by Macys and/or Macys Holdings to
act as the purchase contract agent (the Purchase Contract Agent) will have been authorized, executed and delivered by Macys and/or Macys Holdings and the Purchase Contract Agent and (ii) the Purchase Contracts will be
authorized, executed and delivered by Macys and/or Macys Holdings, as applicable, and the Purchase Contract Agent in accordance with the provisions of the Purchase Contract Agreement.
With respect to any Securities consisting of Units, we have further assumed that each component of such Unit will be authorized, validly
issued, fully paid and nonassessable (to the extent applicable) and will constitute a valid and binding obligation of Macys and/or Macys Holdings, as applicable, or any third party (to the extent applicable) as contemplated by the
Registration Statement and the applicable unit agreement, if any.
The opinions expressed herein are limited by bankruptcy, insolvency,
reorganization, fraudulent transfer and fraudulent conveyance, voidable preference, moratorium or other similar laws and related regulations and judicial doctrines from time to time in effect relating to or affecting creditors rights
generally, and by general equitable principles and public policy considerations, whether such principles and considerations are considered in a proceeding at law or at equity.
As to facts material to the opinions and assumptions expressed herein, we have relied upon oral or written statements and representations of
officers and other representatives of Macys, Macys Holdings and others.
The opinions expressed herein are limited to the laws
of the State of New York and the Delaware General Corporation Law, in each case as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to Jones Day under the
caption Certain Legal Matters in the prospectus constituting a part of such Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly
yours,
/s/ Jones Day
Exhibit 12.1
Macys, Inc.
Computation of Historical Ratios of Earnings to Fixed Charges(a)
(in millions, except ratio data)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39 Weeks Ended 10/31/2015 |
|
|
Fiscal Year Ended |
|
|
|
|
1/31/2015 |
|
|
2/1/2014 |
|
|
2/2/2013 |
|
|
1/28/2012 |
|
|
1/29/2011 |
|
Income (loss) from continuing operations before income taxes |
|
$ |
835 |
|
|
$ |
2,390 |
|
|
$ |
2,290 |
|
|
$ |
2,102 |
|
|
$ |
1,968 |
|
|
$ |
1,320 |
|
Add: Interest Expense |
|
|
269 |
|
|
|
412 |
|
|
|
390 |
|
|
|
562 |
|
|
|
447 |
|
|
|
579 |
|
Portion of rents representative of the interest factor |
|
|
90 |
|
|
|
114 |
|
|
|
104 |
|
|
|
106 |
|
|
|
106 |
|
|
|
105 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted Income (loss) |
|
$ |
1,194 |
|
|
$ |
2,916 |
|
|
$ |
2,784 |
|
|
$ |
2,770 |
|
|
$ |
2,521 |
|
|
$ |
2,004 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed Charges: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Expense |
|
$ |
269 |
|
|
$ |
412 |
|
|
$ |
390 |
|
|
$ |
562 |
|
|
$ |
447 |
|
|
$ |
579 |
|
Capitalized Interest |
|
|
13 |
|
|
|
13 |
|
|
|
11 |
|
|
|
15 |
|
|
|
8 |
|
|
|
5 |
|
Portion of rents representative of the interest factor |
|
|
90 |
|
|
|
114 |
|
|
|
104 |
|
|
|
106 |
|
|
|
106 |
|
|
|
105 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fixed Charges |
|
$ |
372 |
|
|
$ |
539 |
|
|
$ |
505 |
|
|
$ |
683 |
|
|
$ |
561 |
|
|
$ |
689 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of earnings (losses) to fixed charges |
|
|
3.2 |
x |
|
|
5.4 |
x |
|
|
5.5 |
x |
|
|
4.1 |
x |
|
|
4.5 |
x |
|
|
2.9 |
x |
(a) |
For purposes of determining the ratio of earnings (losses) to fixed charges, earnings (losses) consist of income (loss) from continuing operations before income taxes plus fixed charges (excluding interest capitalized).
Fixed charges represent interest incurred, premium on early retirement of debt, if any, amortization of debt expenses, and that portion of rental expenses on operating leases deemed to be the equivalent of interest. |
Exhibit 21.1
Macys, Inc.
Subsidiary List as of November 30, 2015
|
|
|
|
|
|
|
Corporate Name |
|
|
|
State of
Incorporation/Formation |
|
Trade Name(s) |
Advertex Communications, Inc. |
|
|
|
New York |
|
Macys Marketing |
Bloomingdales.com, LLC |
|
|
|
Ohio |
|
|
Bloomingdales, Inc. |
|
|
|
Ohio |
|
|
Bloomingdales The Outlet Store, Inc. |
|
|
|
Ohio |
|
Bloomingdales Outlet |
Bluemercury, Inc. |
|
|
|
Delaware |
|
|
FDS Bank |
|
|
|
N/A |
|
|
FDS Thrift Holding Co., Inc.
Macys Backstage, Inc.
Macys China Limited (65% owned) |
|
|
|
Ohio Ohio
Hong Kong |
|
|
Macys Corporate Services, Inc. |
|
|
|
Ohio |
|
|
Macys Credit and Customer Services, Inc. |
|
|
|
Ohio |
|
|
Macys Credit Operations, Inc. |
|
|
|
Ohio |
|
|
Macys Florida Stores, LLC |
|
|
|
Ohio |
|
Macys |
Macys Gift Card, LLC |
|
|
|
Ohio |
|
|
Macys Merchandising Corporation |
|
|
|
New York |
|
|
Macys Merchandising Group (Hong Kong) Limited |
|
|
|
Hong Kong |
|
|
Macys Merchandising Group International (Hong Kong) Limited |
|
|
|
Hong Kong |
|
|
Macys Merchandising Group International, LLC |
|
|
|
Delaware |
|
|
Macys Merchandising Group Procurement, LLC |
|
|
|
Delaware |
|
|
Macys Merchandising Group, Inc. |
|
|
|
New York |
|
|
Macys Puerto Rico, Inc. |
|
|
|
Puerto Rico |
|
|
Macys Retail Holdings, Inc. |
|
|
|
New York |
|
Macys |
Macys Systems and Technology, Inc. |
|
|
|
Ohio |
|
|
Macys West Stores, Inc. |
|
|
|
Ohio |
|
Macys |
Macys.com, LLC |
|
|
|
Ohio |
|
|
West 34th Street Insurance Company |
|
|
|
Vermont |
|
|
West 34th Street Insurance Company New York |
|
|
|
New York |
|
|
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors
Macys, Inc.:
We consent to the use of our report dated April 1, 2015, with respect to the consolidated balance sheets of Macys, Inc. and
subsidiaries as of January 31, 2015 and February 1, 2014, and the related consolidated statements of income, comprehensive income, cash flows, and changes in shareholders equity for each of the years in the three-year period ended
January 31, 2015, and the effectiveness of internal control over financial reporting as of January 31, 2015, incorporated herein by reference and to the reference to our firm under the heading Experts in the prospectus.
/s/ KPMG LLP
Cincinnati, Ohio
December 1, 2015
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE
PRESENTS, that each of the undersigned directors and/or officers of MACYS, INC., a Delaware corporation (Macys), hereby constitutes and appoints DENNIS J. BRODERICK, ANN MUNSON STEINES, CHRISTOPHER M. KELLY and LINDA J.
BALICKI, or any of them, his or her true and lawful attorney or attorneys-in-fact, with full power of substitution and resubstitution, to do any and all acts and things and execute any and all instruments or documents which said attorney or
attorneys-in-fact, or any of them, may deem necessary or advisable or which may be required in connection with the filing with the Securities and Exchange Commission (SEC) of a Registration Statement on Form S-3 (the Registration
Statement) (and any abbreviated registration statement relating thereto permitted pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the Securities Act)) for the purposes of registering guarantees by Macys
of debt securities of Macys Retail Holdings, Inc., common stock, preferred stock, depositary shares, warrants, purchase contracts and/or units of Macys, or any combination of the foregoing securities, and to sign any and all amendments,
including any or all post-effective amendments and supplements to the Registration Statement (and any such abbreviated registration statement), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the
SEC, granting unto said attorney or attorneys-in-fact, or each of them with or without the others, full power and authority to do and perform each and every act and thing requisite and necessary to be done in order to accomplish the foregoing, as
fully to all intents and purposes as he or she might or could in person, hereby ratifying and confirming all that said attorneys-in-fact, or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
|
|
|
|
|
|
|
|
/s/ Joel A. Belsky
Joel A. Belsky |
|
/s/ Stephen F. Bollenbach
Stephen F. Bollenbach |
|
/s/ John A. Bryant
John A. Bryant |
|
|
|
|
|
/s/ Deirdre P. Connelly
Deirdre P. Connelly |
|
/s/ Meyer Feldberg
Meyer Feldberg |
|
/s/ Leslie D. Hale
Leslie D. Hale |
|
|
|
|
|
/s/ Karen M. Hoguet
Karen M. Hoguet |
|
/s/ Sara Levinson
Sara Levinson |
|
/s/ Terry J. Lundgren
Terry J. Lundgren |
|
|
|
|
|
/s/ Joseph Neubauer
Joseph Neubauer |
|
/s/ Joyce M. Roché
Joyce M. Roché |
|
/s/ Paul C. Varga
Paul C. Varga |
|
|
|
|
|
/s/ Craig E. Weatherup
Craig E. Weatherup |
|
/s/ Marna C. Whittington
Marna C. Whittington |
|
/s/ Annie Young-Scrivner
Annie Young-Scrivner |
|
|
Dated: October 23, 2015
Exhibit 24.2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE
PRESENTS, that each of the undersigned directors and/or officers of MACYS RETAIL HOLDINGS, INC., a New York corporation (Macys Holdings), hereby constitutes and appoints DENNIS J. BRODERICK, ANN MUNSON STEINES, CHRISTOPHER M.
KELLY and LINDA J. BALICKI, or any of them, his or her true and lawful attorney or attorneys-in-fact, with full power of substitution and resubstitution, to do any and all acts and things and execute any and all instruments or documents which said
attorney or attorneys-in-fact, or any of them, may deem necessary or advisable or which may be required in connection with the filing with the Securities and Exchange Commission (SEC) of a Registration Statement on Form S-3 (the
Registration Statement) (and any abbreviated registration statement relating thereto permitted pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the Securities Act)) for the purposes of registering debt
securities, warrants, purchase contracts and/or units of Macys Holdings, or any combination of the foregoing securities, and to sign any and all amendments, including any or all post-effective amendments and supplements to the Registration
Statement (and any such abbreviated registration statement), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorney or attorneys-in-fact, or each of them with or
without the others, full power and authority to do and perform each and every act and thing requisite and necessary to be done in order to accomplish the foregoing, as fully to all intents and purposes as he or she might or could in person, hereby
ratifying and confirming all that said attorneys-in-fact, or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
|
|
|
|
|
|
|
|
/s/ Dennis J. Broderick
Dennis J. Broderick |
|
/s/ Karen M. Hoguet
Karen M. Hoguet |
|
/s/ Joel A. Belsky
Joel A. Belsky |
|
|
Dated: October 23, 2015
Exhibit 25.1
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF
ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
¨ |
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK
NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S.
Employer Identification No.
|
|
|
800 Nicollet Mall
Minneapolis, Minnesota |
|
55402 |
(Address of principal executive offices) |
|
(Zip Code) |
Carolina D. Altomare
U.S. Bank National Association
1 Federal Street 3rd Floor
Boston, MA 02110
(617)
603-6574
(Name, address and telephone number of agent for service)
MACYS, INC.
(Issuer with respect to the Securities)
|
|
|
Delaware |
|
13-3324058 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
|
|
7 West Seventh Street
Cincinnati, Ohio |
|
45202 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
MACYS RETAIL HOLDINGS, INC.
(Issuer with respect to the Securities)
|
|
|
New York |
|
43-0398035 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
|
|
7 West Seventh Street
Cincinnati, Ohio |
|
45202 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
DEBT SECURITIES and GUARANTEES of DEBT SECURITIES
(Title of the Indenture Securities)
FORM T-1
Item 1. |
GENERAL INFORMATION. Furnish the following information as to the Trustee. |
|
a) |
Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
|
b) |
Whether it is authorized to exercise corporate trust powers. |
Yes
Item 2. |
AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
Items 3-15 |
Items 3-15 are not applicable because to the best of the Trustees knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
Item 16. |
LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
|
1. |
A copy of the Articles of Association of the Trustee.* |
|
2. |
A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
|
3. |
A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
|
4. |
A copy of the existing bylaws of the Trustee.** |
|
5. |
A copy of each Indenture referred to in Item 4. Not applicable. |
|
6. |
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
|
7. |
Report of Condition of the Trustee as of September 30, 2015 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
* |
Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005. |
** |
Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Boston,
Commonwealth of Massachusetts on the 1st of December, 2015.
|
|
|
By: |
|
/s/ Carolina D. Altomare |
|
|
Carolina D. Altomare |
|
|
Vice President |
3
Exhibit 2
|
|
|
|
|
|
|
Office of the Comptroller
of the Currency |
|
|
|
|
|
Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE
I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and
control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. U.S. Bank National
Association, Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.
IN TESTIMONY WHEREOF, today,
July 3, 2015, I have hereunto subscribed
my name and caused my seal of office to
be affixed to these presents at the U.S.
Department of the Treasury, in the City
of Washington, District of Columbia.
|
|
|
|
|
|
|
Comptroller of the Currency |
4
Exhibit 3
|
|
|
|
|
|
|
Office of the Comptroller
of the Currency |
|
|
|
|
|
Washington, DC 20219 |
CERTIFICATION OF FIDUCIARY POWERS
I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that:
l. The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession,
custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. U.S. Bank
National Association, Cincinnati, Ohio (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved
September 28, 1962, 76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.
IN TESTIMONY WHEREOF, today,
July 3, 2015, I have hereunto subscribed my
name and caused my seal of office to be
affixed to these presents at the U.S.
Department of the Treasury, in the City of
Washington, District of Columbia.
|
|
|
|
|
|
|
Comptroller of the Currency |
5
Exhibit 6
CONSENT
In accordance
with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: December 1, 2015
|
|
|
By: |
|
/s/ Carolina D. Altomare |
|
|
Carolina D. Altomare |
|
|
Vice President |
6
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 9/30/2015
($000s)
|
|
|
|
|
|
|
9/30/2015 |
|
Assets |
|
|
|
|
Cash and Balances Due From Depository Institutions |
|
$ |
10,415,443 |
|
Securities |
|
|
104,656,800 |
|
Federal Funds |
|
|
100,570 |
|
Loans & Lease Financing Receivables |
|
|
254,216,913 |
|
Fixed Assets |
|
|
4,639,396 |
|
Intangible Assets |
|
|
12,997,753 |
|
Other Assets |
|
|
23,862,998 |
|
|
|
|
|
|
Total Assets |
|
$ |
410,889,873 |
|
Liabilities |
|
|
|
|
Deposits |
|
$ |
305,185,303 |
|
Fed Funds |
|
|
1,491,858 |
|
Treasury Demand Notes |
|
|
0 |
|
Trading Liabilities |
|
|
1,227,900 |
|
Other Borrowed Money |
|
|
45,698,345 |
|
Acceptances |
|
|
0 |
|
Subordinated Notes and Debentures |
|
|
3,150,000 |
|
Other Liabilities |
|
|
11,782,630 |
|
|
|
|
|
|
Total Liabilities |
|
$ |
368,536,036 |
|
Equity |
|
|
|
|
Common and Preferred Stock |
|
|
18,200 |
|
Surplus |
|
|
14,266,400 |
|
Undivided Profits |
|
|
27,210,891 |
|
Minority Interest in Subsidiaries |
|
|
858,346 |
|
|
|
|
|
|
Total Equity Capital |
|
$ |
42,353,837 |
|
|
|
Total Liabilities and Equity Capital |
|
$ |
410,889,873 |
|
7
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