UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): May 25, 2011
DSW Inc.
(Exact name of registrant as specified in its charter)
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Ohio
(State or other jurisdiction of
incorporation)
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001-32545
(Commission File Number)
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31-0746639
(IRS Employer
Identification No.)
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810 DSW Drive, Columbus, Ohio
(Address of principal executive offices)
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43219
(Zip Code)
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Registrant’s telephone number, including area code:
(614) 237-7100
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (
see
General
Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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TABLE OF CONTENTS
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Item 1.01
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Entry into a Material Definitive Agreement.
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On May 26, 2011, DSW Inc. (“DSW”) amended that certain Master Separation Agreement, dated July
5, 2005, between DSW and Retail Ventures, Inc. (“Retail Ventures”) to provide for the termination
of the Master Separation Agreement, except for certain provisions that provide registration rights
of DSW common shares to certain affiliates of Retail Ventures, including Jay L. Schottenstein,
chairman of the board of directors of DSW and Retail Ventures, Schottenstein Stores Corporation, a
Delaware corporation, and other privately held entities controlled by Jay L. Schottenstein and
members of his family. The Amendment to Master Separation Agreement was entered into in connection
with the completion of the previously announced merger (the “Merger”) of Retail Ventures with and
into DSW MS LLC, a wholly owned subsidiary of DSW (“Merger Sub”). The foregoing description is
qualified in its entirety by reference to the Amendment to Master Separation Agreement, which is
filed as Exhibit 10.1 and is incorporated by reference.
On May 25, 2011, in connection with the completion of the Merger, Retail Ventures, Merger Sub
and HSBC Bank USA, National Association (“HSBC”) entered into (1) a supplemental indenture (the
“Supplemental Indenture”) to that certain Indenture, dated as of August 16, 2006 (the “Indenture”),
by and between Retail Ventures and HSBC, and (2) an amendment (“Amendment No. 1 to Collateral
Agreement”) to that certain Collateral Agreement, dated as of August 16, 2006 (the “Collateral
Agreement”), by and between Retail Ventures and HSBC. Pursuant to the terms of the Supplemental
Indenture and Amendment No. 1 to Collateral Agreement, Merger Sub assumed, as of the effective time
of the Merger, all of Retail Ventures’ obligations with respect to the 6.625% Mandatorily
Exchangeable Notes due September 15, 2011 (Premium Income Exchangeable Securities or “PIES”). The
foregoing description is qualified in its entirety by reference to the Indenture, the Supplemental
Indenture, the Collateral Agreement and Amendment No. 1 to Collateral Agreement, which are filed as
Exhibits 4.1, 4.2, 4.3 and 4.4, respectively, and are incorporated herein by reference.
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Item 1.02
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Termination of a Material Definitive Agreement.
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On May 26, 2011, in connection with the completion of the previously announced Merger, DSW and
Retail Ventures terminated that certain Amended and Restated Shared Services Agreement, dated March
17, 2008. Under this agreement, DSW provided Retail Ventures and its subsidiaries with services
relating to risk management, tax, financial services, benefits administration, payroll and
information technology.
On May 26, 2011, in connection with the completion of the previously announced Merger, DSW and
Retail Ventures terminated that certain Exchange Agreement, dated July 5, 2005, effective upon the
exchange or settlement of the PIES. The Exchange Agreement provides that Retail
Ventures may exchange all or a portion of the DSW class B common shares, without par value (the
“DSW Class B Common Shares”) that it holds for DSW class A common shares, without par value (the
“DSW Class A Common Shares”). Merger Sub has assumed, as of the effective time of the Merger, by
supplemental indenture and supplemental agreement, all of Retail Ventures’ obligations with respect
to the PIES. After Merger Sub has satisfied such obligations with respect to the PIES, the
Exchange Agreement will terminate.
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Item 2.01
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Completion of Acquisition or Disposition of Assets.
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On May 26, 2011, DSW completed its previously announced Merger with Retail Ventures. Pursuant
to the terms and conditions of the Agreement and Plan of Merger (the “Merger Agreement”), by and
among Retail Ventures, DSW, and Merger Sub, dated February 8, 2011, as amended May 25, 2011, Retail
Ventures merged with and into Merger Sub, with Merger Sub surviving the Merger and continuing as a
wholly owned subsidiary of DSW.
Upon the closing of the Merger, each outstanding Retail Ventures common share was converted
into the right to receive 0.435 DSW Class A Common Shares, unless the holder properly and timely
elected to receive a like amount of DSW Class B Common Shares in lieu of
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DSW Class A Common Shares. Retail Ventures common shares, without par value, which traded
under the symbol “RVI,” have ceased trading on, and are being delisted from, the New York Stock
Exchange.
The foregoing description of the Merger Agreement and the Merger is not complete and is
qualified in it is entirety by reference to the Merger Agreement, which is incorporated by
reference as Exhibit 2.1 to this Current Report on Form 8-K, and Amendment No. 1 to the Agreement
and Plan of Merger, which is incorporated by reference as Exhibit 2.2.
Additional information regarding Retail Ventures and its business can be found in its Annual
Report on Form 10-K filed with the Securities and Exchange Commission
on March 28, 2011, as amended on May 20, 2011.
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Item 3.03
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Material Modification to Rights of Security Holders.
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In connection with the Merger Agreement and as previously approved by DSW shareholders, DSW
has amended and restated its articles of incorporation as of
May 25, 2011, to permit the holders of
DSW Class B Common Shares to convert such shares into DSW Class A Common Shares on a one-for-one
basis. The DSW amended and restated articles of incorporation also delete all references to Retail
Ventures as a related party because, as a result of the Merger, Retail Ventures has ceased to
exist.
The DSW amended and restated articles of incorporation are attached as Exhibit 3.1 to this
Current Report on Form 8-K and are incorporated by reference.
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Item 5.03
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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The disclosure provided under Item 3.03 above is incorporated by reference.
On May 26, 2011, DSW issued a press release announcing that DSW completed its Merger with
Retail Ventures. The press release is attached as Exhibit 99.1 to this Current Report on Form 8-K
and is incorporated by reference.
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Item 9.01
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Financial Statements and Exhibits.
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(a) Financial Statements of Businesses Acquired.
DSW intends to file the financial statements of Retail Ventures required by Item 9.01(a) as
part of an amendment to this Current Report on Form 8-K not later than 71 days after the date this
Current Report is required to be filed.
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(b) Pro Forma Financial Information.
DSW intends to file the pro forma financial information required by Item 9.01(b) as part of an
amendment to this Current Report on Form 8-K not later than 71 days after the date this Current
Report is required to be filed.
(d) Exhibits.
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Exhibit No.
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Description
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2.1
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Agreement and Plan of Merger, dated February 8, 2011, among DSW Inc.,
DSW MS LLC, and Retail Ventures, Inc. (incorporated by reference to DSW’s Form 8-K
filed February 8, 2011, Exhibit 2.1, File No. 001-32545)
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2.2
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Amendment No. 1 to Agreement and Plan of Merger, dated May 25, 2011,
among DSW Inc., DSW MS LLC, and Retail Ventures, Inc. (filed herewith)
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3.1
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Amended and Restated Articles of Incorporation of DSW Inc. dated May
25, 2011 (filed herewith)
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4.1
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Indenture, dated as of August 16, 2006, by and between Retail Ventures, Inc. and HSBC Bank
USA, National Association, as indenture trustee (Form of 6.625% Mandatorily Exchangeable Notes
Due September 15, 2011 filed as Exhibit A thereto) (incorporated by reference to Retail
Ventures’ Form 8-K filed August 22, 2006, Exhibit 4.1, File No. 001-10767)
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4.2
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Supplemental Indenture, dated as of May 25, 2011, by and among Retail Ventures, Inc., DSW MS
LLC and HSBC Bank USA, National Association, as indenture trustee (filed herewith)
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4.3
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Collateral Agreement, dated as of August 16, 2006, by and between Retail Ventures, Inc., as
pledgor, and HSBC Bank USA, National Association, as collateral agent, indenture trustee and
securities intermediary (incorporated by reference to Retail Ventures’ Form 8-K filed on
August 22, 2006, Exhibit 4.2, File No. 001-10767)
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4.4
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Amendment No. 1 to Collateral Agreement, dated as of May 25, 2011, by and among Retail
Ventures, Inc., DSW MS LLC and HSBC Bank USA, National Association, as collateral agent,
indenture trustee and securities intermediary (filed herewith)
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10.1
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Amendment to Master Separation Agreement between DSW Inc. and Retail
Ventures, Inc., dated May 26, 2011 (filed herewith)
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99.1
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Press Release dated May 26, 2011 (filed herewith)
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4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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DSW Inc.
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Date: May 26, 2011
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By:
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/s/
William L. Jordan
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William L. Jordan
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Executive Vice President
General Counsel and Secretary
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5
EXHIBIT INDEX
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Exhibit No.
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Description
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2.1
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Agreement and Plan of Merger, dated February 8, 2011, among DSW Inc.,
DSW MS LLC, and Retail Ventures, Inc. (incorporated by reference to DSW’s Form 8-K
filed February 8, 2011, Exhibit 2.1, File No. 001-32545)
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2.2
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Amendment No. 1 to Agreement and Plan of Merger, dated May 25, 2011,
among DSW Inc., DSW MS LLC, and Retail Ventures, Inc. (filed herewith)
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3.1
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Amended and Restated Articles of Incorporation of DSW Inc. dated May
25, 2011 (filed herewith)
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4.1
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Indenture, dated as of August 16, 2006, by and between Retail Ventures, Inc. and HSBC Bank
USA, National Association, as indenture trustee (Form of 6.625% Mandatorily Exchangeable Notes
Due September 15, 2011 filed as Exhibit A thereto) (incorporated by reference to Retail
Ventures’ Form 8-K filed August 22, 2006, Exhibit 4.1, File No. 001-10767)
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4.2
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Supplemental Indenture, dated as of May 25, 2011, by and among Retail Ventures, Inc., DSW MS
LLC and HSBC Bank USA, National Association, as indenture trustee (filed herewith)
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4.3
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Collateral Agreement, dated as of August 16, 2006, by and between Retail Ventures, Inc., as
pledgor, and HSBC Bank USA, National Association, as collateral agent, indenture trustee and
securities intermediary (incorporated by reference to Retail Ventures’ Form 8-K filed on
August 22, 2006, Exhibit 4.2, File No. 001-10767)
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4.4
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Amendment No. 1 to Collateral Agreement, dated as of May 25, 2011, by and among Retail
Ventures, Inc., DSW MS LLC and HSBC Bank USA, National Association, as collateral agent,
indenture trustee and securities intermediary (filed herewith)
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10.1
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Amendment to Master Separation Agreement between DSW Inc. and Retail
Ventures, Inc., dated May 26, 2011 (filed herewith)
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99.1
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Press Release dated May 26, 2011 (filed herewith)
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Exhibit 2.2
AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER (this “
Amendment
”) is entered
into as of May 25, 2011 by and among DSW Inc., an Ohio corporation (“
DSW
”), DSW MS LLC, an
Ohio limited liability company and a direct wholly-owned subsidiary of DSW (“
Merger Sub
”),
and Retail Ventures, Inc., an Ohio corporation (“
RVI
”).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, DSW, Merger Sub, and RVI (collectively, the “
Parties
”) entered into an
Agreement and Plan of Merger dated as of February 8, 2011 (the “
Agreement
”);
WHEREAS, Section 7.3 of the Agreement permits amendments to the Agreement by action taken or
authorized by the Parties’ respective Boards of Directors if such amendment is in writing and
signed by each of the Parties; and
WHEREAS, the Parties desire to amend the Agreement as provided in this Amendment.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the representations, warranties,
covenants and agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally
bound, hereby agree as follows:
Section 1.
Defined Terms
. Capitalized terms used in this Amendment without separate
definition shall have the respective meanings assigned to them in the Agreement.
Section 2.
Amendment to Section 5.14(a)
. Section 5.14(a) of the Agreement is hereby
amended by deleting the phrase “(ii) that certain Exchange Agreement, dated July 5, 2005, between
RVI and DSW,” and adjusting the roman numerals “(iii)” and “(iv)” appearing thereafter to be “(ii)”
and “(iii)” respectively.
Section 3.
New Section 5.14(b)
. A new Section 5.14(b) of the Agreement is hereby
adopted to read as follows:
(b) From and after the later to occur of (x) the Effective Time, and (y) the exchange or
settlement of the 6.625% Mandatorily Exchangeable Notes due September 15, 2011 in accordance
with the terms of the PIES Indenture, that certain Exchange Agreement, dated July 5, 2005,
between RVI and DSW shall be terminated and no longer effective.
Section 4.
Effect of Amendment
. The Parties agree that except as otherwise set forth
herein, all terms, conditions and provisions of the Agreement shall remain in full force and
effect. In the event of any inconsistency or conflict between the Agreement and this
Amendment, the terms, conditions and provisions of this Amendment shall govern and control.
Section 5.
Entire Agreement
. From and after the execution of this Amendment by the
Parties, any reference to the Agreement shall be deemed to be a reference to the Agreement as
amended hereby.
Section 6.
Governing Law
. This Amendment shall be governed by and construed in
accordance with the Laws of the State of Ohio, without giving effect to any choice or conflict of
law provision or rule.
Section 7.
Counterparts
. This Amendment may be executed in two or more counterparts,
each of which shall constitute an original, and all of which taken together shall constitute one
instrument. Any signature page delivered by a facsimile machine shall be binding to the same
extent as an original signature page.
Section 8.
Headings
. The section headings contained in this Amendment are inserted
for convenience only and shall not affect in any way the meaning or interpretation of this
Amendment.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly executed and delivered
as of the date first above written.
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DSW INC.
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By:
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/s/ William L. Jordan
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Name:
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William L. Jordan
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Title:
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Executive Vice President,
General Counsel and Secretary
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DSW MS LLC
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By:
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/s/ William L. Jordan
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Name:
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William L. Jordan
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Title:
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Executive Vice President,
General Counsel and Secretary
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RETAIL VENTURES, INC.
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By:
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James A. McGrady
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Name:
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James A. McGrady
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Title:
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Chief Executive Officer,
Chief Financial Officer,
President and Treasurer
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Exhibit 3.1
www.sos.state.oh.us
e-mail: busserv@sos.state.oh.us
Prescribed by:
The Ohio Secretary of State
Central Ohio: (614) 466-3910
Toll Free: 1-877-SOS-FILE (1-877-767-3453)
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Expedite this Form: (Select One)
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Mail Form to one of the Following:
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¤
Yes
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PO Box
1390
Columbus, OH 43216
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*** Requires an additional fee of $100 ***
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O No
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PO Box 1329
Columbus, OH 43216
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Certificate of Amendment by
Shareholders or Members
(Domestic)
Filing Fee $50.00
(CHECK ONLY ONE (1) BOX)
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(1)
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Domestic for Profit
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PLEASE READ INSTRUCTIONS
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(2
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Domestic Nonprofit
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þ
Amended
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Amendment
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Amended
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Amendment
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(122-AMAP)
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(125-AMDS)
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(126-AMAN)
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(128-AMD)
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Complete the general information in this section for the box checked above.
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Name of Corporation
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DSW Inc.
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Charter Number
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379756
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Name of Officer
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William L. Jordan
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Title
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Secretary
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þ
Please Check if additional provisions attached.
The above named Ohio corporation, does hereby certify that:
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þ
A meeting of the
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þ
shareholders
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directors (
nonprofit only)
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members was duly called and held on
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May 19, 2011
(Date)
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at which meeting a quorum was present in person or by proxy, based upon the quorum present, an affirmative
vote was cast which entitled them to exercise
98.87
% as the voting power of the corporation.
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In a writing signed by all of the
o
shareholders
o
directors
(nonprofit amended articles only)
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members who would be entitled to the notice of a meeting or such other proportion not less than a majority as the
articles of regulations or bylaws permit.
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Clause applies if amended box is checked.
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Resolved, that the following amended articles of incorporations be and the same are hereby adopted to supercede
and take the place of the existing articles of incorporation and all amendments thereto.
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All of the following information must be completed if an amended box is checked.
If an amendment box is checked, complete the areas that apply.
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FIRST:
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The name of the corporation is:
DSW Inc.
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SECOND:
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The place in the State of Ohio where its principal office is located is in the City of:
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Columbus
(city, village or township)
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Franklin
(county)
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THIRD:
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The purposes of the corporation are as follows:
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The purposes for which the Corporation is formed is to engage in any lawful
act or activity for which corporations may be formed under Chapter 1701 of the Ohio Revised Code.
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FOURTH:
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The number of shares which the corporation is authorized to have outstanding is:
370,000,000 (see attached)
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(Does not apply to box (2))
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REQUIRED
Must be authenticated
(signed)
by an authorized
representative
(See Instructions)
Authorized Representative
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William L. Jordan
(Print Name)
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Authorized Representative
ADDITIONAL PROVISIONS TO THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
DSW INC.
FOURTH (Cont’d): The number of shares which the corporation is authorized to have outstanding
is the authorized number of shares of the corporation. One Hundred Seventy Million (170,000,000) of
the authorized number of shares of the corporation shall be Class A Common Shares, without par
value (the “Class A Common Shares”), One Hundred Million (100,000,000) shall be Class B Common
Shares, without par value (the “Class B Common Shares”; and together with the Class A Common
Shares, the “Common Shares”), and One Hundred Million (100,000,000) shall be preferred shares,
without par value (the “Preferred Shares”).
The designations, preferences, privileges and voting powers of shares of each class and the
restrictions or qualifications thereof are as follows:
Section 1. Common Shares. Except as specifically otherwise provided herein, the Class A and
Class B Common Shares shall be identical and shall entitle the holders thereof to the same rights
and privileges.
(a)
Voting Rights.
The voting rights of the Common Shares shall be as follows:
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i.
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each outstanding Class A Common Share shall entitle the holder
thereof to one (1) vote on each matter properly submitted to the shareholders,
or to the holders of the Class A Common Shares, for their vote, consent,
waiver, release or other action;
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ii.
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each outstanding Class B Common Share shall entitle the holder
thereof to eight (8) votes on each matter properly submitted to the
shareholders, or to the holders of the Class B Common Shares, for their vote,
consent, waiver, release or other action; and
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iii.
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the holders of Class A Common Shares and Class B Common Shares
shall vote as a single class upon all matters submitted to the shareholders of
the corporation except as otherwise provided by law.
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(b)
Dividend and Other Rights of Common Shares.
Holders of Class A Common Shares and Class B
Common Shares will share in any dividend declared by the Board of Directors, subject to any
preferential rights of any outstanding Preferred Shares. The corporation shall not subdivide or
combine any of the Common Shares, or pay any dividend or other distribution on any of the Common
Shares, or accord any other payment, benefit or preference to any of the Common Shares, except by
extending such subdivision, combination, distribution, payment, benefit or preference equally to
all Common Shares. If dividends are declared that are payable in Common Shares, such dividends
shall be payable in Class A
Common Shares to holders of Class A Common Shares and in Class B Common Share to holders of
Class B Common Shares.
(c)
Conversion Rights
. The Class A Common Shares have no conversion rights. The conversion
rights of the Class B Common Shares are as follows:
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i.
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The holder of any Class B Common Shares, may, at his or her
option on delivery to the corporation of his or her written notice electing to
convert those Class B Common Shares to Class A Common Shares, and on surrender
at the office of the corporation or office of the transfer agent for those
Class B Common Shares of the certificate or certificates for the Class B Common
Shares, duly endorsed to the corporation, be entitled to receive one Class A
Common Share for each Class B Common Share converted in this manner. Such
conversion will be deemed to have occurred at the close of business on the
business day on which written notice of such voluntary conversion is received
by the corporation, and the corporation and the transfer agent will promptly
deliver evidence of such holder’s ownership of Class A Common Shares in the
form of a share certificate or automated deposit; provided, however, that any
such surrender on any date when the stock transfer books of the corporation
shall be closed shall be deemed to have occurred immediately prior to the close
of business on the next succeeding day on which such stock transfer books are
opened.
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ii.
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The corporation may, as a condition to the transfer or the
registration of transfer of, or the voluntary conversion of, Class B Common
Shares, require the furnishing of such affidavits or other proof as it deems
necessary to establish or verify the ownership of such Class B Common Shares.
A good faith determination by the Board of Directors that ownership of Class B
Common Shares cannot be established will be conclusive and binding on a holder
of shares of the corporation.
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iii.
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Neither fractional shares, nor scrip or other certificates
evidencing fractional shares, will be issued by the corporation on conversion
of the Class B Common Shares, but the corporation will pay in lieu of these
fractional shares the full value in cash to the holders who would but for this
provision be entitled to receive fractions of shares.
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iv.
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Class B Common Shares converted pursuant to the articles of the
corporation will be retired.
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v.
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The corporation will at all times reserve and keep available
out of its authorized but unissued Class A Common Shares solely for the purpose
of effecting conversion of its Class B Common Shares the full number of Class A
Common Shares deliverable on conversion of all Class B Common Shares from time
to time outstanding.
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2
Section 2. Preferred Shares
(a) The directors of the corporation are authorized to adopt amendments to the Articles of
Incorporation in respect of any unissued Preferred Shares and thereby to fix or change, to the full
extent now or hereafter permitted by Ohio law, the express terms of the Preferred Shares, or of any
one or more series of the Preferred Shares, including without limitation, the division of such
shares into series and the designation and authorized number of shares of each series; dividend or
distribution rights; redemption rights and price; liquidation rights, preferences and price;
sinking fund requirements; voting rights; conversion rights; and restrictions on the issuance of
shares of the same series or of any other class or series.
(b) All shares of each series of the Preferred Shares shall be identical with each other in
all respects.
FIFTH: No shareholder of the corporation shall have, as a matter of right, the pre-emptive
right to purchase, subscribe for or otherwise acquire any shares of any class, now or hereafter
authorized, or to purchase, subscribe for or otherwise acquire securities or other obligations
convertible into or exchangeable for any such shares or which by warrants or otherwise entitle the
holders thereof to purchase, subscribe for or otherwise acquire any such shares.
SIXTH:
Section 1. Authority of the Corporation to Deal in its Securities. The directors of the
corporation shall have the power to cause the corporation from time to time and at any time to
purchase, hold, sell, transfer or otherwise deal with (i) any shares issued by it, (ii) any
security or other obligation of the corporation that confers upon the holder thereof the right to
convert the same into shares authorized by the articles of the corporation, and (iii) any security
or other obligation that confers upon the holder thereof the right to purchase shares authorized by
the articles of the corporation. The corporation shall have the right to repurchase, if and when
any shareholder desires to sell, or on the happening of any event is required to sell, any shares
issued by the corporation.
Section 2. Limitation on Authority to Issue Class B Common Shares. The authority granted in
this Article SIXTH shall not limit the plenary authority of the directors to purchase, hold, sell,
transfer or otherwise deal with any shares or other securities issued by the corporation or
authorized by its Articles. Notwithstanding the foregoing, to the extent that any of the Class B
Common Shares are hereafter surrendered in exchange for Class A Common Shares, the Class B Common
Shares so surrendered shall be retired. Except in connection with a subdivision of, or dividend or
other distribution on, the Class B Common Shares, the directors of the corporation shall not have
the power to cause the corporation to reissue, sell, transfer or otherwise deal with such retired
Class B Common Shares.
SEVENTH:
Section 1. Definitions. For purposes of this Article SEVENTH:
3
(a) The “corporation” shall include all subsidiary corporations and all partnerships, joint
ventures, associations and other entities in which the corporation owns (directly or indirectly)
fifty percent or more of the outstanding voting shares, voting power, partnership interests or
similar ownership interests.
(b) “SSC” means Schottenstein Stores Corporation, a Delaware corporation, and all successors
to SSC by merger, consolidation or otherwise, and all subsidiary corporations and all partnerships,
joint ventures, associations and other entities in which SSC owns (directly or indirectly) fifty
percent or more of the outstanding voting shares, voting power, partnership interests or similar
ownership interests, but shall not include the corporation and its subsidiaries.
(c) “Family Trust” means one or more trusts established for the benefit of any of Jay L.
Schottenstein, Susan S. Diamond, Ann S. Deshe, Lori Schottenstein, Geraldine Schottenstein, any of
their respective spouses, children or lineal descendants, or any person controlled by any such
trust or trusts.
(d) “Related Entities” means SSC and its subsidiaries.
(e) “Related Persons” means directors of the corporation and directors of one or more of the
Related Entities and corporations, partnerships, associations or other organizations in which one
or more of such directors has a financial interest.
Section 2. Corporate Opportunity
(a) In anticipation that SSC will remain a substantial shareholder of the corporation, and the
Related Entities may engage in the same or similar activities or lines of business and have
interests in the same areas of corporate opportunities, and in recognition of the benefits to be
derived by the corporation through its continued contractual, corporate and business relations with
SSC (including services of officers and directors of SSC as officers and directors of the
corporation), the provisions of this Section 2 are set forth to regulate and define the conduct of
certain affairs of the corporation as they may involve the Related Entities and their respective
officers and directors, and the powers, rights, duties and liabilities of the corporation and its
officers, directors and shareholders in connection therewith.
(b) The Related Entities shall have the right to, and shall have no duty not to, (i) engage in
the same or similar activities or lines of business as the corporation, (ii) do business with any
supplier or customer of the corporation, and (iii) unless restricted by contract, employ or
otherwise engage any officer or employee of the corporation, and neither the Related Entities nor
any of their respective officers or directors (except as provided in Paragraph (c) of this Section
2) shall be liable to the corporation or its shareholders for breach of any fiduciary duty by
reason of any such activities of the Related Entities or of such person’s participation therein.
In the event that a Related Entity acquires knowledge of a potential transaction or matter which
may be a corporate opportunity for both the corporation and such Related Entity, the Related Entity
shall have no duty to communicate or offer such corporate opportunity to the corporation and shall
not be liable to the corporation or its shareholders for breach of any fiduciary duty as a
shareholder of the corporation by reason of the fact that it pursues or acquires such corporate
4
opportunity for itself, directs such corporate opportunity to another person or entity, or
does not communicate information regarding such corporate opportunity to the corporation.
(c) In the event that a director or officer of the corporation who is also a director or
officer of a Related Entity acquires knowledge of a potential transaction or matter which may be a
corporate opportunity for both the corporation and such Related Entity, such director or officer of
the corporation shall not be liable to the corporation or its shareholders by reason of the fact
that the Related Entity pursues or acquires such corporate opportunity for itself or directs such
corporate opportunity to another person or does not communicate information regarding such
corporate opportunity to the corporation, if such director or officer acts in a manner consistent
with the following policy:
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i.
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a corporate opportunity offered to any person who is an officer
of the corporation, and who is also a director but not an officer of a Related
Entity, shall belong to the corporation, unless such opportunity is expressly
offered to such person in writing solely in his capacity as a director of the a
Related Entity, in which case such opportunity shall belong to such Related
Entity;
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ii.
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a corporate opportunity offered to any person who is a director
but not an officer of the corporation, and who is also a director or officer of
a Related Entity, shall belong to the corporation only if such opportunity is
expressly offered to such person in writing solely in his or her capacity as a
director of the corporation, and otherwise shall belong to the Related Entity;
and
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iii.
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a corporate opportunity offered to any person who is an
officer, whether or not such person is also a director, of both the corporation
and a Related Entity shall belong to the corporation only if such opportunity
is expressly offered to such person in writing solely in his or her capacity as
an officer or director of the corporation, and otherwise shall belong to the
Related Entity.
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(d) For the purposes of this Section 2, a “corporate opportunity” shall include, but not be
limited to, any business opportunity which the corporation is financially able to undertake, is,
from its nature, in the line of the corporation’s business and is of practical advantage to it, and
is one in which the corporation has an interest or a reasonable expectancy, where the circumstances
are such that the self-interest of the Related Entity or the officer or directors, as the case may
be, would be brought into conflict with that of the corporation if the Related Entity should
embrace the opportunity.
(e) If any contract, agreement, arrangement or transaction between the corporation and a
Related Entity involves a corporate opportunity and is approved in accordance with the procedures
set forth in Section 3 of this Article SEVENTH, the Related Entity and its officers and directors
shall be deemed to have fulfilled their fiduciary duties to the corporation and its shareholders
with respect thereto under this Section 2. Any such contract, agreement, arrangement or transaction
involving a corporate opportunity not so approved shall not by reason thereof result in any breach
of any fiduciary duty, but shall be governed by the other provisions
5
of this Section 2, these Articles and the code of regulations of the corporation (the
“Regulations”) and Chapter 1701 of the Ohio Revised Code.
Section 3. Contract, Action or Transaction Not Voidable
(a) In anticipation that (i) the corporation will have continued contractual, corporate and
business relations with the Related Entities, and in anticipation that the corporation may enter
into contracts or otherwise transact business with the Related Entities and that the corporation
may derive benefits therefrom and (ii) the corporation may from time to time enter into
contractual, corporate or business relations with one or more of the Related Persons, the
provisions of this Section 3 are set forth to regulate and define certain contractual relations and
other business relations of the corporation as they may involve Related Entities and Related
Persons, and the powers, rights, duties and liabilities of the corporation and its officers,
directors and shareholders in connection therewith. The provisions of this Section 3 are in
addition to, and not in limitation of, the provisions of Chapter 1701 of the Ohio Revised Code and
the other provisions of these Articles of Incorporation. Any contract or business relation which
does not comply with the procedures set forth in this Section 3 shall not by reason thereof be
deemed void or voidable or result in any breach of any fiduciary duty, but shall be governed by the
provisions of these Articles, the Regulations and Chapter 1701 of the Ohio Revised Code.
(b) No contract, action or transaction (or any amendment, modification or termination thereof)
between the corporation and one or more of the Related Entities or between the corporation and one
or more of the Related Persons shall be void or voidable solely for the reason that any Related
Entity or any Related Person are parties thereto, or solely because any Related Person is present
at or participates in the meeting of the Board of Directors or committee thereof which authorizes
the contract or transaction, or solely because such Related Person’s votes are counted for such
purpose, and the Related Entity or Related Person shall not be liable to the corporation or its
shareholders by reason of entering into, performance or consummation of any such contract, action,
or transaction if:
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i.
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the material facts as to his or their relationship or interest
and as to the contract, action or transaction are disclosed or are known to the
Board of Directors or the committee thereof and the Board of Directors or
committee thereof, in good faith reasonably justified by such facts, authorizes
the contract, action, or transaction by the affirmative vote of a majority of
the disinterested directors, even though the disinterested directors constitute
less than a quorum of the directors or committee;
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ii.
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the material facts as to his or their relationship or interest
and as to the contract, action or transaction are disclosed or are known to the
shareholders entitled to vote thereon and the contract, action or transaction
is specifically approved at a meeting of the shareholders held for such purpose
by the affirmative vote of the holders of shares entitling them to exercise a
majority of the voting power of the corporation held by persons not interested
in the contract, action or transaction; or
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iii.
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the contract, action or transaction is fair as to the
corporation as of the time it is authorized or approved by the Board of
Directors, a committee of the Board of Directors, or the shareholders;
provided, however, that nothing contained in this Section 3 shall limit or
otherwise affect the liability of directors under Section 1701.95 of the Ohio
Revised Code.
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(c) Directors of the corporation who are also directors or officers of any Related Entity or
Related Person may be counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract, agreement, arrangement or transaction.
Section 4. The directors, by the affirmative vote of a majority of those in office, and
irrespective of any financial or personal interest in any of them, shall have the authority to
establish reasonable compensation, which may include pension, disability, and death benefits, for
services to the corporation by directors and officers, or to delegate such authority to one or more
officers or directors.
Section 5. Any person or entity purchasing or otherwise acquiring any interest in shares of
the corporation shall be deemed to have notice of and to have consented to the provisions of this
Article SEVENTH.
Section 6. This Article SEVENTH shall remain in effect so long as SSC and the Family Trusts
(or any of them) shall hold (as a group) shares of the corporation entitled to ten percent (10%) or
more of the combined voting power of all shares of the corporation regularly entitled to vote for
the election of directors.
Section 7. Neither the alteration, amendment or repeal of this Article SEVENTH, nor the
adoption of any provision inconsistent with this Article SEVENTH, shall eliminate or reduce the
effect of this Article SEVENTH in respect of any matter occurring, or any cause of action, suit or
claim that, but for this Article SEVENTH would accrue or arise, prior to such alteration,
amendment, repeal or adoption.
EIGHTH: None of the provisions of Section 1701.831 of the Ohio Revised Code relating to
control share acquisitions, shall be applicable to this corporation.
NINTH: None of the provisions of Chapter 1704 of the Ohio Revised Code relating to
transactions affecting control shall be applicable to this corporation.
TENTH: Notwithstanding any provision of the Ohio Revised Code requiring for any purpose the
vote, consent, waiver or release of the holders of shares of the corporation entitling them to
exercise two-thirds, or any other proportion (but less than all), of the voting power of the
corporation or of any class or classes of shares thereof, for such purpose the vote, consent,
waiver or release of the holders of shares entitling them to exercise not less than a majority of
the voting power of the corporation, or of such class or classes shall be required.
ELEVENTH: Notwithstanding any provision of the Ohio Revised Code now or hereafter in
effect, no shareholder shall have the right to vote cumulatively in the election of
directors.
7
Exhibit 4.2
SUPPLEMENTAL INDENTURE
Dated as of May 25, 2011
among
RETAIL VENTURES, INC.,
DSW MS LLC
and
HSBC Bank USA, National Association, as Indenture Trustee
SUPPLEMENTAL INDENTURE, dated as of May 25, 2011 (this “
Supplemental Indenture
”), among Retail
Ventures, Inc., an Ohio corporation (the “
Initial Issuer
”), DSW MS LLC, an Ohio limited liability
company (the “
Successor
”), and HSBC Bank USA, National Association, a national banking association,
acting as indenture trustee (the “
Indenture Trustee
”). Capitalized terms used and not otherwise
defined in this Supplemental Indenture shall have the meanings ascribed to such terms in the
Indenture.
RECITALS
WHEREAS, the Initial Issuer and the Indenture Trustee entered into the Indenture, dated as of
August 16, 2006 (the “
Indenture
”), providing, among other things, for the issuance of the Initial
Issuer’s 6.625% Mandatorily Exchangeable Notes due September 15, 2011, or PIES (Premium Income
Exchangeable Securities
SM
) (the “
Notes
”);
WHEREAS, the Initial Issuer, DSW Inc., an Ohio Corporation (“
DSW
”), and the Successor have
executed definitive documentation, that provides for the merger of the Initial Issuer with and into
the Successor (the “
Merger
”), in accordance with the applicable provisions of the Ohio General
Corporation Law (the “
OGCL
”) and the Ohio Limited Liability Company Law (the “
OLLCL
”);
WHEREAS, the Merger shall become effective upon the filing of a Certificate of Merger with the
Secretary of State of the State of Ohio or at such time thereafter as is agreed upon in writing by
DSW and the Initial Issuer and provided for in the Certificate of Merger (the “
Merger Effective
Time
”);
WHEREAS, at the Merger Effective Time, the Initial Issuer shall be merged with and into the
Successor and the separate existence of the Initial Issuer shall cease and the Successor shall
continue as the surviving entity in the Merger;
WHEREAS, Section 8.01 of the Indenture provides that the Initial Issuer and the Indenture
Trustee may, without the consent of the Holders of the Notes, enter into a supplemental indenture
for the purpose of evidencing the succession of another Person to the Initial Issuer’s obligations
under the Indenture;
WHEREAS, Section 9.01 of the Indenture provides, among other things, that the Initial Issuer
may merge with or into any other Person if (i) the successor entity (if other than the Initial
Issuer) is a corporation or limited liability company organized and validly existing under the laws
of the United States of America, any state of the United States of America or the District of
Columbia and, upon any such merger, expressly assumes all of the Initial Issuer’s obligations under
the Notes, the Indenture and the Collateral Agreement by supplemental indenture in a form
satisfactory to the Indenture Trustee; (ii) immediately after giving effect to the merger, no
default or Event of Default has occurred or is continuing under the Notes, the Indenture or the
Collateral Agreement, as applicable; and (iii) the Initial Issuer shall have delivered to the
Indenture Trustee an Officers’ Certificate and an Opinion of Counsel;
WHEREAS, Section 10(a)(i) of the Collateral Agreement provides that the Initial Issuer, the
Collateral Agent, the Indenture Trustee and the Securities Intermediary may, without the consent of
the Holders, amend the Collateral Agreement to evidence the succession of
another Person to the Initial Issuer and the assumption by any such successor of the covenants
of the Initial Issuer;
WHEREAS, the Merger will comply with the aforementioned requirements of Section 9.01 of the
Indenture, and all documentation required under the Indenture to be delivered to the Indenture
Trustee in connection with the Merger and this Supplemental Indenture has been so delivered;
WHEREAS, each of the Initial Issuer, the Successor and the Indenture Trustee have been duly
authorized to enter into this Supplemental Indenture to evidence the Successor’s succession to the
Initial Issuer’s obligations under the Indenture; and
WHEREAS, all acts, conditions precedent and requirements necessary to make this Supplemental
Indenture a valid, binding and legal agreement enforceable in accordance with its terms for the
purposes expressed herein, have been duly done and performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the covenants and agreements contained herein,
and for other good and valuable consideration the receipt of which is hereby acknowledged, the
Initial Issuer, the Successor and the Indenture Trustee hereby agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
Section 1.01.
The Successor represents and warrants to the Indenture Trustee as follows:
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(i)
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It is duly organized, validly existing and in good
standing under the laws of the State of Ohio; and
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(ii)
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The execution, delivery and performance by it of this
Supplemental Indenture have been authorized and approved by all necessary
limited liability company action.
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Section 1.02.
Each of the Initial Issuer and the Successor represents and warrants to the
Indenture Trustee that the Merger shall become effective at the Merger Effective Time, and the
Successor shall, in accordance with the OGCL and the OLLCL, possess (i) all assets and property of
every description of the Initial Issuer and every interest in the assets and property of the
Initial Issuer, wherever the assets, property, and interests are located; (ii) the rights,
privileges, immunities, powers, franchises, and authority, whether of a public or a private nature,
of the Initial Issuer; and (iii) all obligations belonging or due to the Initial Issuer.
ARTICLE II
ASSUMPTION AND AGREEMENT OF THE SUCCESSOR
Section 2.01.
In accordance with Sections 8.01 and 9.01 of the Indenture, effective as of the
Merger Effective Time, the Successor hereby expressly assumes all the obligations of the Initial
Issuer under the Notes, the Indenture and the Collateral Agreement.
Section 2.02.
In accordance with Section 9.02 of the Indenture, effective as of the Merger
Effective Time, the Successor shall succeed to, and be substituted for, and may exercise every
right and power of, the Issuer under the Indenture and the Notes with the same effect as if the
Successor had been named as “Issuer” in the Indenture and the Notes.
ARTICLE III
MISCELLANEOUS
Section 3.01.
This Supplemental Indenture shall become effective as of the Merger Effective
Time.
Section 3.02.
Except as expressly amended hereby, the Indenture and the Notes are in all
respects ratified and confirmed, and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of Notes heretofore or hereafter authenticated shall be bound hereby.
Section 3.03.
This Supplemental Indenture shall be governed by, and construed in accordance
with, the laws of the State of New York.
Section 3.04.
In case any provision in this Supplemental Indenture shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and
thereof shall not in any way be affected or impaired thereby.
Section 3.05.
This Supplemental Indenture may be executed in any number of counterparts by the
parties hereto on separate counterparts, each of which, when so executed and delivered, shall be
deemed an original, but all such counterparts shall together constitute one and the same
instrument.
Section 3.06.
The Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
Section 3.07.
The Indenture Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Initial Issuer and the
Successor.
[
Signature page follows
]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the date first written above.
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RETAIL VENTURES, INC.
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By
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/s/ James A. McGrady
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Name:
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James A. McGrady
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Title:
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Chief Executive Officer,
Chief Financial Officer,
President and Treasurer
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DSW MS LLC
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By
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/s/ William L. Jordan
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Name:
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William L. Jordan
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Title:
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Executive Vice President,
General Counsel and Secretary
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HSBC BANK USA, NATIONAL ASSOCIATION, as
Indenture Trustee
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By
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/s/ Ignazio Tamburello
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Name:
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Ignazio Tamburello
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Title:
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Vice President
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Exhibit 4.4
AMENDMENT NO. 1 TO
COLLATERAL AGREEMENT
This Amendment No. 1 (this “
Amendment
”), is made and entered into as of May 25, 2011, among
Retail Ventures, Inc., an Ohio corporation (the “
Pledgor
”), DSW MS LLC, an Ohio limited liability
company (the “
Successor
”), HSBC Bank USA, National Association, as collateral agent (in such
capacity, the “
Collateral Agent
”), HSBC Bank USA, National Association, as indenture trustee under
the Indenture (in such capacity, with its successors in such capacity, the “
Indenture Trustee
”) and
HSBC Bank USA, National Association, as securities intermediary (in such capacity, the “
Securities
Intermediary
”), and amends, as provided herein, the Collateral Agreement, dated as of August 16,
2006, among the Pledgor, the Collateral Agent, the Indenture Trustee and the Securities
Intermediary (the “
Agreement
”). Capitalized terms used and not otherwise defined in this Amendment
shall have the meanings ascribed to such terms in the Agreement.
WHEREAS, the Pledgor, DSW Inc., an Ohio corporation (“
DSW
”), and the Successor have executed
definitive documentation, that provides for the merger of the Pledgor with and into the Successor
(the “
Merger
”), in accordance with the applicable provisions of the Ohio General Corporation Law
and the Ohio Limited Liability Company Law;
WHEREAS, the Merger shall become effective upon the filing of a Certificate of Merger with the
Secretary of State of the State of Ohio or at such time thereafter as is agreed upon in writing by
DSW and the Pledgor and provided for in the Certificate of Merger (the “
Merger Effective Time
”);
WHEREAS, at the Merger Effective Time, the Pledgor shall be merged with and into the Successor
and the separate existence of the Pledgor shall cease and the Successor shall continue as the
surviving entity in the Merger;
WHEREAS, Section 5(e) of the Agreement provides, among other things, that the Pledgor shall
not merge with or into any other Person except as permitted pursuant to Article 9 of the Indenture;
WHEREAS, Section 10(a)(i) of the Agreement provides that the Pledgor, the Collateral Agent,
the Indenture Trustee and the Securities Intermediary may, without the consent of the Holders,
amend the Agreement to evidence the succession of another Person to the Pledgor and the assumption
by any such successor of the covenants of the Pledgor;
WHEREAS, the Merger will comply with the aforementioned requirements of Section 5(e) of the
Agreement and Article 9 of the Indenture, and all documentation required under the Agreement to be
delivered to the Indenture Trustee in connection with the Merger and this Amendment has been so
delivered;
WHEREAS, all acts, conditions precedent and requirements necessary to make this Amendment a
valid, binding and legal agreement enforceable in accordance with its terms for the purposes
expressed herein, have been duly done and performed.
NOW, THEREFORE, in consideration of the promises and the respective covenants, agreements and
conditions hereinafter set forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree, as follows:
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1.
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Assumption and Agreement of the Successor
. In accordance with Sections 5(e) and
10(a)(i) of the Agreement, the Successor hereby expressly assumes all the obligations of the
Pledgor under the Agreement, and effective as of the Merger Effective Time, the Successor
shall succeed to, and be substituted for, and may exercise every right and power of, the
Pledgor under the Agreement.
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2.
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Miscellaneous
. Except as specifically amended by this Amendment, the Agreement shall
continue to be, and shall remain, in full force and effect in accordance with its terms. In
case of any conflict between the terms of this Amendment and the Agreement, the terms of this
Amendment shall govern. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to constitute a single agreement.
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[
Signature page follows
]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, all as
of the date first written above.
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RETAIL VENTURES, INC.
|
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By
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/s/ James A. McGrady
|
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Name:
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James A. McGrady
|
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Title:
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Chief Executive Officer,
Chief Financial Officer,
President and Treasurer
|
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DSW MS LLC
|
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By:
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/s/ William L. Jordan
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Name:
|
William L. Jordan
|
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|
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Title:
|
Executive Vice President,
General Counsel and Secretary
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HSBC BANK USA, NATIONAL ASSOCIATION, as
Collateral Agent
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By
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/s/ Ignazio Tamburello
|
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Name:
|
Ignazio Tamburello
|
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|
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Title:
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Vice President
|
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HSBC BANK USA, NATIONAL ASSOCIATION, as
Indenture Trustee
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By
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/s/ Ignazio Tamburello
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Name:
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Ignazio Tamburello
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Title:
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Vice President
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HSBC BANK USA, NATIONAL ASSOCIATION, as
Securities Intermediary
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By
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/s/ Ignazio Tamburello
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Name:
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Ignazio Tamburello
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Title:
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Vice President
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Exhibit 10.1
AMENDMENT TO MASTER SEPARATION AGREEMENT
This
AMENDMENT TO MASTER SEPARATION AGREEMENT
(this “
Agreement
”) is made and entered
into as of May 25, 2011, by and between
DSW INC.
(“
DSW
”), and
RETAIL VENTURES, INC.
(“
Retail Ventures
”).
Background
A. In connection with DSW’s initial public offering in July 2005, DSW and Retail Ventures
entered into a Master Separation Agreement, dated July 5, 2005 (the “
Master Separation
Agreement
”).
B. Pursuant to the Agreement and Plan of Merger, dated February 8, 2011, as amended (the
“
Merger Agreement
”), among Retail Ventures, DSW, and DSW MS LLC, an Ohio limited liability
company and a wholly owned subsidiary of DSW (“
Merger LLC
”), Retail Ventures will merge
with and into Merger LLC, effective May 26, 2011 (the “
Effective Time
”), with Merger LLC
continuing after the merger as the surviving entity and a wholly owned subsidiary of DSW (the
“
Merger
”).
C. As of the Effective Time, each issued and outstanding Retail Ventures common share, no par
value (“
Retail Ventures Common Share
” and, collectively, “
Retail Ventures Common
Shares
”) (other than Retail Ventures Common Shares owned directly or indirectly by DSW or
Merger LLC or held by Retail Ventures or any of its subsidiaries, which will be cancelled as a
result of the Merger), will automatically convert into the right to receive 0.435 DSW class A
common shares, unless the holder properly and timely elects to receive a like amount of DSW class B
common shares in lieu of DSW class A common shares (such DSW class A common shares and DSW class B
common shares, together with any cash paid in respect of fractional shares in accordance with the
Merger Agreement, the “
Merger Consideration
”).
D. Merger LLC will assume, as of the Effective Time of the Merger, all of Retail Ventures’
obligations with respect to the Master Separation Agreement. Certain provisions of the Master
Separation Agreement are no longer applicable and other provisions are modified as a result of the
Merger as provided herein.
E. The parties to this Agreement desire to memorialize the modification of the Master
Separation Agreement, effective as provided below.
Agreement
In consideration of the mutual covenants, promises, and agreements contained herein, the
receipt and sufficiency of which are hereby acknowledged, the parties agree that as follows,
effective upon the Effective Time:
1
1.
Modification of Article VIII
: Article VIII of the Master Separation Agreement is
modified by deleting the following defined terms and replacing the same with the following in lieu
thereof:
“Holders” shall mean collectively, Schottenstein Stores Corporation (“SSC”) and its
Affiliated Companies (other than DSW) who from time to time own Registrable Securities, and
Jay Schottenstein. Each of such persons or entities separately is sometimes referred to
herein as a “Holder.”
“Registrable Securities” shall mean (i) the DSW class B common shares received by a Holder
as Merger Consideration, (ii) any other securities issued or distributed to a Holder in
respect of the DSW class B common shares by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, reorganization, merger,
consolidation or otherwise, and (iii) any other successor securities received by the Holder
in respect of any of the foregoing; PROVIDED that in the event that any Registrable
Securities (as defined without giving effect to this proviso) are being registered pursuant
hereto, the Holder may include in such registration (subject to the limitations of this
Agreement otherwise applicable to the inclusion of Registrable Securities) any DSW class B
common shares or securities acquired in respect thereof thereafter acquired by such Holder,
which shall also be deemed to be “Shares” and accordingly Registrable Securities, for
purposes of such registration. As to any particular Registrable Securities, such Registrable
Securities shall cease to be Registrable Securities when (w) a registration statement with
respect to the sale by the Holder shall have been declared effective under the Securities
Act and such Shares shall have been disposed of in accordance with such registration
statement, (x) they shall have been distributed to the public in accordance with Rule 144,
(y) they shall have been otherwise transferred by the Holder to an entity or Person that is
not Jay Schottenstein or an Affiliated Company of SSC, new certificates for them not bearing
a legend restricting further transfer shall have been delivered by DSW and subsequent
disposition of them shall not require registration or qualification of them under the
Securities Act or any state securities or blue sky law then in effect or (z) they shall have
ceased to be outstanding.
2.
Modification of Article IV
: Except as expressly modified by this Agreement, Article
IV shall continue to be of full force and effect. In Section 4.5, the term “Retail Ventures” shall
be replaced with “SSC”.
3.
Deletion of Articles I, II, III, V, VI, and VII
: Articles I, II, III, V, VI, and
VII shall be of no further force or effect.
4.
Binding Agreement
: This Agreement will be binding upon and will inure to the
benefit of the successors and assigns of the parties.
5.
Governing Law
: This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio, without giving effect to any choice or conflict of law provision or
rule.
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6.
Counterparts
: This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, and all of which taken together shall constitute one
instrument.
[SIGNATURES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set
forth above.
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DSW INC.
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RETAIL VENTURES, INC.
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By:
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/s/ William L. Jordan
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By:
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/s/ James A. McGrady
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Name: William L. Jordan
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Name: James A. McGrady
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Title: Executive Vice President,
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Title: Chief Executive Officer,
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General Counsel and Secretary
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Chief Financial Officer, President and
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Treasurer
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[Signature Page to Amendment to Master Separation Agreement]
Exhibit 99.1
DSW Inc. Completes Merger with Retail Ventures, Inc
.
COLUMBUS, Ohio, May 26, 2011 — DSW Inc. (NYSE: DSW), a leading branded footwear specialty retailer,
announced today the completion of the previously-announced merger between its largest shareholder,
Retail Ventures, Inc. (NYSE: RVI), and a wholly owned subsidiary of DSW.
On February 8, 2011, DSW and Retail Ventures, Inc. announced the two companies had signed a
definitive merger agreement providing for RVI to become a wholly-owned subsidiary of DSW in an
exchange of shares at an exchange ratio of 0.435 DSW shares per RVI share. The merger was approved
by DSW and RVI shareholders on May 19, 2011. As a result of the closing of the merger, Retail
Ventures common shares have ceased trading on, and are being delisted from, the New York Stock
Exchange. Additionally, after completion of the transaction, prior period financial information
presented in the DSW consolidated financial statements will generally reflect the historical
activity of RVI. For more information, please refer to the Form 8-K filed on May 26, 2011, which
can be found on the Investor Relations portion of DSW’s website at
www.dswinc.com
.
“The completion of our merger with RVI represents a milestone for our Company and brings a
number of expected benefits to DSW, including a simplified corporate structure and a significant
increase in our public float,” stated Mike MacDonald, President and Chief Executive Officer, DSW
Inc. “As we look ahead, our strategies remain unchanged. We will continue to execute the
strategies that led to our strong performance in fiscal 2010 and the first quarter of 2011. We
remain confident that our differentiated operating model, growing national awareness of the DSW
brand, and the focused execution of our growth initiatives have us positioned to sustain our
current performance momentum.”
About DSW Inc.
DSW Inc. is a leading branded footwear specialty retailer that offers a wide selection of brand
name and designer dress, casual and athletic footwear for women and men, as well as accessories.
As of April 30, 2011, DSW operated 318 stores in 39 states and operated an e-commerce site,
www.dsw.com
. DSW also supplied footwear to 352 leased locations in the United States. For
store locations and additional information about DSW,
http://www.dswinc.com/
.
Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995
Any statements in this release that are not historical facts, including the statements made in our
“Outlook,” are forward-looking statements and are made pursuant to the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. These statements are based on the Company’s
current expectations and involve known and unknown risks, uncertainties and other factors that may
cause actual results, performance or achievements to be materially different from any future
results, performance or achievements expressed or implied by the forward-looking statements. These
factors include, but are not limited to: our success in opening and operating new stores on a
timely and profitable basis; continuation of supply agreements and the financial condition of our
leased business partners; maintaining good relationships with our vendors; our ability to
anticipate and respond to
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fashion trends; fluctuation of our comparable sales and quarterly financial performance; disruption
of our distribution operations; failure to retain our key executives or attract qualified new
personnel; our competitiveness with respect to style, price, brand availability and customer
service; uncertain general economic conditions; risks inherent to international trade with
countries that are major manufacturers of footwear; risks related to our cash and investments;
RVI’s lease of an office facility; and risks related to the merger of DSW and RVI. Additional
factors that could cause our actual results to differ materially from our expectations are
described in the Company’s latest annual or quarterly report, as filed with the SEC. All
forward-looking statements speak only as of the time when made. The Company undertakes no
obligation to revise the forward-looking statements included in this press release to reflect any
future events or circumstances.
SOURCE: DSW Inc.
Company Contact:
DSW Inc.
Jennie Wilson
Senior Vice President Finance & Controller
(855) 893-5691
Investor Contacts:
ICR, Inc.
Allison Malkin / Anne Rakunas
(203) 682-8200 / (310) 954-1113
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