As filed with the Securities and Exchange Commission on July 16, 1998
REGISTRATION NO. 333-______
333-______
333-______
333-______
333-______
333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DILLARD'S, INC. DELAWARE 73-0388071
DILLARD'S CAPITAL TRUST I DELAWARE To Be Applied For
DILLARD'S CAPITAL TRUST II DELAWARE To Be Applied For
DILLARD'S CAPITAL TRUST III DELAWARE To Be Applied For
DILLARD'S CAPITAL TRUST IV DELAWARE To Be Applied For
DILLARD'S CAPITAL TRUST V DELAWARE To Be Applied For
(Exact name of each Registrant (State or other (I.R.S. Employer
as specified in its charter) jurisdication of Identification No.)
incorporation
or organization)
1600 Cantrell Road
Little Rock, Arkansas 72201
(501) 376-5200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Paul J. Schroeder, Jr. James I. Freeman
1600 Cantrell Road 1600 Cantrell Road
Little Rock, Arkansas 72201 Little Rock, Arkansas 72201
(501) 376-5200 (501) 376-5200
Paul B. Benham III
Friday, Eldredge & Clark
400 West Capitol Avenue, Suite 2000
Little Rock, Arkansas 72201-3493
(501) 376-2011
(Name, address, including zip code, and telephone number,
including area code, of agents for service)
Copy to:
Gary I. Horowitz
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
Approximate date of commencement of proposed sale to the
public: From time to time after this Registration Statement
becomes effective.
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 ("Securities Act"), other
than securities offered only in connection with dividend or
interest reinvestment plans, check the following box.
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule
462(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 delivery of the prospectus is expected to be made pursuant
to Rule 434 under the Securities Act, please check the following
box.
CALCULATION OF REGISTRATION FEE
Proposed
Title of Each Maximum
Class of Aggregate Amount of
Securities to Offering Registration
be Registered(1) Price(2)(3) Fee
Dillard's, Inc.
Debt Securities(4); Class A )
Common Stock, par value )
$.01 per share(5); Preferred )
Stock, par value $.01 per )
share(5) )
Dillard's Capital Trust I )
Capital Securities )
Dillard's Capital Trust II )
Capital Securities )
Dillard's Capital Trust III ) $2,000,000,000 $590,000
Capital Securities )
Dillard's Capital Trust IV )
Capital Securities )
Dillard's Capital Trust V )
Capital Securities )
Guarantees of Dillard's,
Inc. with respect to
Capital Securities(6)
(1) Securities registered hereunder may be sold separately,
together or as units with other securities registered
hereunder.
(2) Or, if any securities are issued with an original issue
discount, such amount that the aggregate initial offering
price of all securities registered hereunder will not exceed
$2,000,000,000 or, if any of the securities registered
hereunder are issued with an offering price payable in a
foreign currency or composite currently, such amount as
shall result in an aggregate initial offering price
equivalent to $2,000,000,000 at the time of the initial
offering.
(3) Estimated solely for the purpose of calculating the
registration fee, in accordance with Rule 457(o). Exclusive
of accrued interest, if any.
(4) Plus such indeterminate amount of Debt Securities as may be
issued in connection with the issuance of Capital Securities
of Dillard's Capital Trust I, Dillard's Capital Trust II,
Dillard's Capital Trust III, Dillard's Capital Trust IV and
Dillard's Capital Trust V (the "Capital Securities"). Such
Debt Securities will be issued for no additional
consideration.
(5) In addition to any Class A Common Stock or Preferred Stock
that may be issued directly under this Registration
Statement, there are being registered hereunder such
indeterminate number of shares of Class A Common Stock as
may be issued upon conversion or exchange of Debt Securities
or Preferred Stock. No additional consideration will be
received for any Class A Common Stock so issued upon
conversion or exchange.
(6) No additional consideration will be received from the
Dillard's, Inc. Guarantees with respect to the Capital
Securities.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE
UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
Information contained herein is subject to completion or
amendment. A registration statement relating to these
securities has been filed with the Securities and Exchange
Commission. These securities may not be sold nor may offers to
buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to
buy nor shall there be any sale of these securities in any
State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the
securities laws of any such State.
PROSPECTUS (SUBJECT TO COMPLETION, ISSUED JULY __, 1998)
$2,000,000,000
DILLARD'S, INC.
DEBT SECURITIES
EQUITY SECURITIES
DILLARD'S CAPITAL TRUST I
DILLARD'S CAPITAL TRUST II
DILLARD'S CAPITAL TRUST III
DILLARD'S CAPITAL TRUST IV
DILLARD'S CAPITAL TRUST V
CAPITAL SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED,
TO THE EXTENT DESCRIBED HEREIN, BY
DILLARD'S, INC.
Dillard's, Inc. (the "Company"), may offer and issue from
time to time, together or separately, (i) its debt securities
("Debt Securities") in one or more series, (ii) shares of its
Class A Common Stock, par value $.01 per share ("Class A Common
Stock") and (iii) shares of its Additional Preferred Stock, par
value $.01 per share ("Preferred Stock" and, together with the
Class A Common Stock, "Equity Securities"), with such terms as
are described herein and in the applicable Prospectus
Supplement.
Dillard's Capital Trust I, Dillard's Capital Trust II,
Dillard's Capital Trust III, Dillard's Capital Trust IV and
Dillard's Capital Trust V, each a trust created under the laws
of the State of Delaware (each an "Issuer Trust," and
collectively, the "Issuer Trusts"), may severally offer and
issue from time to time equity securities (the "Capital
Securities") representing preferred beneficial ownership
interests in such Issuer Trust with such terms as are
described herein and in the applicable Prospectus Supplement.
The Company will be the owner, directly or indirectly, of
the common securities (the "Common Securities" and,
together with the Capital Securities, the "Trust
Securities") representing common beneficial ownership
interests in each Issuer Trust. Payment to holders of Capital
Securities of cash distributions thereon ("Distributions"), and
amounts payable upon redemption thereof, liquidation of the
applicable Issuer Trust or otherwise, will be guaranteed by
the Company to the extent described herein and in the
applicable Prospectus Supplement (each, a "Guarantee"). The
only assets of an Issuer Trust will be Debt Securities
purchased from the Company with the proceeds from the issuance
of its Trust Securities. Each Guarantee will rank pari passu
with the Debt Securities purchased with the proceeds of the
Capital Securities covered by such Guarantee. If
specified in the applicable Prospectus Supplement, such Debt
Securities may be distributed pro rata to holders of Trust
Securities at such times as may be described herein or in such
Prospectus Supplement.
The Debt Securities, Equity Securities, Capital Securities
and Guarantees are sometimes herein referred to individually as
a "Security" and collectively as the "Securities." This
Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
-------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
Securities may be offered through dealers, underwriters or
agents designated from time to time, as set forth in the
accompanying Prospectus Supplement. Net proceeds to the
Company will be the purchase price in the case of sales to a
dealer, the public offering price less discount in the case of
sales to an underwriter or the purchase price less commission in
the case of sales through an agent -- in each case, less
other expenses attributable to issuance and distribution.
See "Plan of Distribution" for possible indemnification
arrangements for dealers, underwriters and agents.
The aggregate initial public offering price of all
Equity Securities, Debt Securities (other than Debt
Securities purchased by Issuer Trusts) and Capital
Securities issued pursuant to the Registration Statement of
which this Prospectus forms a part shall not exceed
$2,000,000,000 or the equivalent thereof in any foreign
currency or composite currency. Unless specified in the
applicable Prospectus Supplement, the Debt Securities and the
Capital Securities will be issued in registered form without
coupons.
Certain specific terms of the Securities in respect of
which this Prospectus is being delivered will be
described in the accompanying Prospectus Supplement,
including without limitation and where applicable, (a) in the
case of the Debt Securities, series designation, ranking,
aggregate principal amount, denominations, maturity date
(including any provisions for the shortening or extension
thereof), interest payment dates, interest rate (which may be
fixed or variable) or method of calculating interest, if any,
interest deferral terms, if any, place or places where and
currency or currency units in which principal, premium, if
any, and interest, if any, will be payable, any terms of
redemption, any sinking fund provisions, terms for any
conversion or exchange into Class A Common Stock or other
securities, initial offering or purchase price, methods of
distribution and any other special terms, and (b) in the case
of Capital Securities, the identity of the Issuer Trust, title,
aggregate stated liquidation amount, number of securities,
Distribution rate or method of calculating such rate,
Distribution payment dates, applicable Distribution deferral
terms, if any, place or places where and currency or currency
units in which Distributions and other amounts will be payable,
any terms of redemption, exchange, initial offering or purchase
price, methods of distribution and any other special terms, and
(c) in the case of Preferred Stock, the specific title and stated
value, any dividend, liquidation, redemption, voting and other
rights, any terms for conversion into Class A Common Stock, the
initial offering or purchase price, methods of distribution and
any other special terms.
The applicable Prospectus Supplement also will contain
information, as applicable, about certain United States
federal income tax consequences relating to the Securities and
will set forth the name of and compensation to each dealer,
underwriter or agent (if any) involved in the sale of the
Securities being offered and the managing underwriters with
respect to any Securities sold to or through underwriters.
No dealer, salesperson or other person has been authorized
in connection with any offering made hereby to give any
information or to make any representations not contained or
incorporated by reference in this Prospectus and, if given or
made, such information or representation must not be
relied upon as having been authorized by the Company or any
underwriter agent or dealer. This Prospectus does not
constitute an offer to sell or a solicitation of an offer
to buy any security other than the Securities offered hereby, nor
does it constitute an offer to sell or a solicitation of an offer
to buy the Securities to any person in any jurisdiction in which
it is unlawful to make such offer or solicitation to such
person. Neither the delivery of this Prospectus nor any sale
made hereunder shall, under any circumstances, create any
implication that the information contained herein is correct as
of any date subsequent to the date hereof or that there has been
no change in the affairs of the Company since the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Act of 1934, as amended (the
"Exchange Act"), and in accordance therewith files reports,
proxy statements and other information with the Securities
and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company with the
Commission can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 or at its Regional Offices
located at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511 and at Seven World Trade Center,
Suite 1300, New York, New York 10048, and copies of such
material can be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Additionally, such material may be accessed at
the Commission's Website (http:/www.sec.gov). Such material can
also be inspected at the offices of the New York Stock Exchange,
20 Broad Street, New York, New York 10005 on which certain of
the Company's securities are listed.
This Prospectus constitutes a part of a Registration
Statement filed by the Company and the Issuer Trusts with the
Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus omits certain of the
information contained in the Registration Statement in
accordance with the rules and regulations of the Commission.
Reference is hereby made to the Registration Statement and to
the related exhibits for further information with respect to
the Company, the Issuer Trusts and the Securities.
Statements contained herein concerning the provisions of any
document are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with
the Commission. Each such statement is qualified in its
entirety by such reference.
No separate financial statements of any Issuer Trust have
been included herein. The Company and the Issuer Trusts
do not consider that such financial statements would be
material to holders of the Capital Securities because each
Issuer Trust is a newly formed special purpose entity, has no
operating history or independent operations and is not engaged
in and does not propose to engage in any activity other than
holding Debt Securities as trust assets and issuing the Trust
Securities. See "The Issuer Trusts," "Description of Capital
Securities," "Description of Debt Securities" and
"Description of Guarantees." In addition, the Company does not
expect that any of the Issuer Trusts will be filing reports
under the Exchange Act with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission under the
Exchange Act by the Company are incorporated herein by
reference:
(a) Annual Report on Form 10-K for the fiscal year ended
January 31, 1998;
(b) Quarterly Report on Form 10-Q for the quarter
ended May 2, 1998;
(c) Current Report on Form 8-K dated May 16, 1998; and
(d) Description of the Company's Class A Common Stock
contained in its Registration Statement on Form 8-A,
dated June 7, 1989.
All documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Prospectus and prior to the termination of
the offering of the Securities shall be deemed to be
incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any
subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Copies of the above documents (excluding exhibits) may be
obtained upon request without charge from the Company, 1600
Cantrell Road, Little Rock, Arkansas 72201, Attention: James I.
Freeman (telephone number 501-376-5200).
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including any documents that are
incorporated by reference as set forth in "Incorporation of
Certain Documents by Reference," contains forward-looking
statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act. Such statements are
indicated by words or phrases such as "anticipates," "estimates,"
"projects," "management believes," "the Company believes" and
similar words or phrases. Such statements involve risks and
uncertainties and are subject to change based on various
important factors. The following factors, among others, could
affect the Company's financial performance and could cause actual
results to differ materially from those expressed or implied in
any such forward-looking statements: economic and weather
conditions in the regions in which the Company's stores are
located and their effect on the buying patterns of the Company's
customers, changes in consumer spending patterns and debt levels,
trends in personal bankruptcies and the impact of competitive
market forces.
THE COMPANY
Dillard's, Inc. is a regional group of traditional
department stores operating, as of January 31, 1998, 270 stores
in Alabama, Arizona, Arkansas, California, Colorado, Florida,
Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Mississippi, Missouri, Nebraska, Nevada, New Mexico, North
Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas,
Virginia, Utah and Wyoming. The stores vary from 30,000 square
feet to 409,000 square feet in size, with the area of typical
stores ranging between 80,000 to 220,000 square feet, and the
average store size being approximately 160,000 square feet. The
stores are owned either by the Company or a wholly owned
subsidiary, with the exception of 66 stores, which are leased
from third parties. The stores feature branded and private label
goods in the middle to upper-middle price ranges and cater to a
broad spectrum of the population. Most of the stores are full-
line department stores and sell quality name-brand and private
label apparel and accessories for men, women and children, as
well as accessories for the home such as linens and domestics,
china, silverware, draperies and housewares. Special emphasis is
placed on fashion-oriented apparel.
The Company is incorporated under the laws of the State of
Delaware. The executive offices of the Company are located at
1600 Cantrell Road, Little Rock, Arkansas 72201, telephone
number: 501-376-5200.
RECENT DEVELOPMENT
The Company has entered into an Agreement and Plan of
Merger, dated as of May 16, 1998 (the "Merger Agreement"),
providing for the acquisition of the stock of Mercantile Stores
Company, Inc. ("Mercantile"). Mercantile is a conventional
department store retailer engaged in the general merchandising
business. Mercantile operates 103 department stores and 16 home
fashion stores under 13 different names in a total of 17 states.
A subsidiary, Mercantile Credit Corp., provides servicing for
Mercantile's private label credit program.
MSC Acquisitions, Inc., a Delaware corporation ("NEWCO") and
a newly formed wholly owned subsidiary of the Company, has
offered to purchase all of the outstanding shares of Common
Stock, par value $.14-2/3 per share (the "Shares"), of Mercantile
at a purchase price of $80 per Share, net to the seller in cash
without interest thereon.
The Merger Agreement provides that, following the completion
of the offer, NEWCO will be merged with and into Mercantile (the
"Acquisition"). Following the Acquisition, Mercantile will
continue as the surviving corporation and become a direct, wholly
owned subsidiary of the Company.
Stockholders of Mercantile representing approximately 40% of
the issued and outstanding Shares have contractually agreed,
among other things, to tender their Shares in the offer, provide
the Company with an irrevocable proxy, grant an option at the $80
offer price and otherwise support the transaction with the
Company.
The offer is conditioned upon, among other things, there
being validly tendered and not properly withdrawn prior to the
expiration date for the offer a number of Shares which, together
with any Shares owned, directly or indirectly, by the Company or
NEWCO, constitutes more than 50% of the voting power (determined
on a fully-diluted basis), on the date of purchase, of all the
securities entitled to vote generally in the election of
directors or in a merger (the "Minimum Condition"). If the
Company purchases not less than that number of Shares needed to
satisfy the Minimum Condition, it will be able to effect the
Acquisition without the affirmative vote of any other stockholder
of Mercantile.
Under the Merger Agreement, the respective obligations of
the Company, NEWCO and Mercantile under the Acquisition shall be
subject to the satisfaction at or prior to the effective time of
the Acquisition of the following conditions (a) as required by
the Delaware General Corporation Law (the "DGCL"), the Merger
Agreement shall have been approved by the affirmative vote of the
stockholders of Mercantile by the requisite vote in accordance
with Mercantile's Certificate of Incorporation and the DGCL
(which Mercantile has represented shall be solely the affirmative
vote of a majority of the outstanding Shares); (b) no statute,
rule, regulation, executive order, decree, ruling, injunction or
other order (whether temporary, preliminary or permanent) shall
have been enacted, entered, promulgated or enforced by any United
States, foreign, federal or state court or governmental authority
which prohibits, restrains, enjoins or restricts the consummation
of the Acquisition; (c) NEWCO shall have purchased Shares
pursuant to the offer and (d) any waiting period applicable to
the Acquisition under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act), shall have
been terminated or expired.
The Company believes that the Acquisition is highly probable
although there can be no assurance that the Acquisition will be
completed.
The Company issued a press release on June 4, 1998,
announcing the receipt of a request by the Federal Trade
Commission (the "FTC") for additional information in connection
with the Company's HSR Act filing. As a result of the request by
the FTC, NEWCO extended the period during which its tender offer
for Shares will remain open to 12:00 Midnight, New York City
Time, on Monday, July 21, 1998.
THE ISSUER TRUSTS
Each Issuer Trust is a statutory business trust created
under Delaware law pursuant to the filing of a certificate of
trust with the Delaware Secretary of State on July 14, 1998.
Each Issuer Trust will be governed by an amended and restated
trust agreement (each, a "Trust Agreement") among the Company,
as Depositor, Chase Manhattan Bank Delaware, as Delaware
Trustee, The Chase Manhattan Bank, as Property Trustee
(together with the Delaware Trustee, the "Issuer Trustees")
and two individuals selected by the holders of the Common
Securities to act as administrators with respect to such Issuer
Trust (the "Administrators") and the holders, from time to time,
of the Trust Securities. The Company, as the holder of the
Common Securities, intends to select two individuals who are
employees or officers of or affiliated with the Company to
serve as the Administrators. Each Issuer Trust exists for the
exclusive purposes of (i) issuing and selling its Trust
Securities, (ii) using the proceeds from the sale of such
Trust Securities to invest in a series of Debt Securities and
(iii) engaging in only those other activities necessary,
convenient or incidental thereto (such as registering the
transfer of Trust Securities). Accordingly, Debt Securities
will be the sole assets of each Issuer Trust, and payments
under the Debt Securities owned by an Issuer Trust will be
the sole revenue of such Issuer Trust.
All of the Common Securities of each Issuer Trust will be
owned directly or indirectly by the Company. The Common
Securities of an Issuer Trust will rank pari passu, and
payments will be made thereon pro rata, with the Capital
Securities of such Issuer Trust, except that upon the
occurrence and continuance of a Debenture Event of Default (as
defined herein) arising as a result of any failure by the
Company to pay any amounts in respect of the Debt Securities
owned by such Issuer Trust when due, the rights of the
Company as holder of the Common Securities to payment in
respect of Distributions and payments upon liquidation,
redemption or otherwise will be subordinated to the rights of
the holders of the Capital Securities of such Issuer Trust.
See "Description of Capital Securities--Subordination of
Common Securities." Unless otherwise specified in the
applicable Prospectus Supplement, the Company will acquire,
directly or indirectly, Common Securities in an aggregate
liquidation amount equal to at least 3% of the total capital
of each Issuer Trust. Unless otherwise specified in the
applicable Prospectus Supplement, each Issuer Trust will have
a term of approximately 40 years from the date on which it
initially issues its Capital Securities, but may dissolve
earlier as provided in the applicable Trust Agreement and
described in the applicable Prospectus Supplement. Unless
otherwise specified in the applicable Prospectus Supplement,
the name and address of the Delaware Trustee for each Issuer
Trust will be Chase Manhattan Bank Delaware, 1201 Market Street,
Wilmington, Delaware 19801, and the name and address of the
Property Trustee, the Guarantee Trustee and the Debt
Securities Trustee for each Issuer Trust will be The Chase
Manhattan Bank, 450 West 33rd Street, 15th Floor , New York, New
York 10001.
It is anticipated that no Issuer Trust will be subject to
the reporting requirements under the Exchange Act.
USE OF PROCEEDS
The Issuer Trusts will use all proceeds from the
sale of Trust Securities to purchase Debt Securities from
the Company. Unless otherwise set forth in the applicable
Prospectus Supplement, the Company intends to use the net
proceeds from the sale of its Equity Securities and/or Debt
Securities (including Debt Securities issued to the Issuer
Trusts) for general corporate purposes, which may include
additions to working capital, financing of acquisitions, the
repurchase of outstanding Class A Common Stock and the repayment
of indebtedness or for such other purposes as are set forth in
the applicable Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to
fixed charges for the Company for each of the years in the five
year period ended January 31, 1998 and for the three months ended
May 2, 1998 and May 3, 1997. For purposes of computing the
ratio, earnings consist of earnings before income taxes plus
fixed charges (less capitalized interest of preferred stock
dividends), and fixed charges consist of interest expense,
capitalized interest and the interest portion of rent expense
which is approximated at one-third of rent expense.
Three Months Ended Fiscal Year Ended
May 2, May 3, Jan. 31, Feb. 1, Feb. 3, Jan. 28, Jan. 29,
1998 1997 1998 1997 1996* 1995 1994
3.61 3.63 3.69 3.61 2.86 3.72 3.57
__________
*53 weeks
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to
combined fixed charges and preferred stock dividends for the
Company for each of the years in the five year period ended
January 31, 1998 and for the three months ended May 2, 1998 and
May 3, 1997. For purposes of computing the ratio, earnings
consist of earnings before income taxes plus fixed charges (less
capitalized interest) and preferred stock dividends, and fixed
charges consist of interest expense, capitalized interest and the
interest portion of rent expense which is approximated at one-
third of rent expense.
Three Months Ended Fiscal Year Ended
May 2, May 3, Jan. 31, Feb. 1, Feb. 3, Jan. 28, Jan. 29,
1998 1997 1998 1997 1996* 1995 1994
3.61 3.62 3.69 3.61 2.86 3.72 3.57
__________
*53 weeks
DESCRIPTION OF DEBT SECURITIES
The Debt Securities in respect of which this Prospectus is
being delivered (the "Offered Debt Securities") will constitute
either senior or subordinated debt of the Company and will be
issued, in the case of Debt Securities that will be senior debt,
under an Indenture dated as of May 15, 1988, as supplemented by a
First Supplemental Indenture dated as of December 16, 1988, a
Second Supplemental Indenture dated as of September 14, 1990, and
a Third Supplemental Indenture to be entered into (the Indenture,
as supplemented, being referred to herein as the "Senior Debt
Indenture") between the Company and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee, and, in the case
of Debt Securities that will be subordinated debt, under a
Subordinate Indenture to be entered into between the Company and
The Chase Manhattan Bank, as Trustee (the "Subordinated Debt
Indenture"), copies of which are filed as exhibits to the
Registration Statement. The Senior Debt Indenture and
Subordinated Debt Indenture are sometimes hereinafter referred to
individually as an "Indenture" and collectively as the
"Indentures." The following summaries of certain provisions of
the Indentures do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all the
provisions of the Indentures, including the definitions therein
of certain terms. Whenever particular sections of, or terms
defined in, the Indentures are referred to, such sections or
defined terms are incorporated herein by reference.
GENERAL
The Debt Securities will be either unsecured senior or
subordinated obligations of the Company.
Neither Indenture limits the aggregate principal amount of
the Debt Securities or of any particular series of Offered Debt
Securities and provides that Debt Securities may be issued
thereunder from time to time in one or more series. All Debt
Securities of any series need not be issued at the same time or
bear interest at the same rate or mature on the same date.
Reference is made to the Prospectus Supplement (the
"Prospectus Supplement") relating to the Offered Debt Securities
for the following terms thereof: (1) the title of the Offered
Debt Securities; (2) classification as senior or subordinated
Debt Securities; (3) any limit on the aggregate principal amount
of the Offered Debt Securities; (4) the date or dates on which
the Offered Debt Securities will mature; (5) the rate or rates
per annum (or the method of calculating such rates) at which the
Offered Debt Securities will bear interest, if any, and the date
from which such interest, if any, will accrue; (6) the Interest
Payment Dates on which any such interest on the Offered Debt
Securities will be payable and the Regular Record Date for any
interest payable on any Offered Debt Securities on any Interest
Payment Date and the extent to which, or the manner in which, any
interest payable on a global Debt Security (a "Global Note") on
an Interest Payment Date will be paid if other than in the manner
described under "Global Notes" below; (7) the dates, if any, on
which and the price or prices at which the Offered Debt
Securities may, pursuant to any mandatory or optional sinking
fund provisions, be redeemed by the Company and other detailed
terms and provisions of any such sinking funds; (8) the date, if
any, after which and the price or prices at which the Offered
Debt Securities may, pursuant to any optional redemption
provisions, be redeemed at the option of the Company or of the
holder thereof and other detailed terms and provisions of any
such optional redemption; (9) the right of the Company to defease
the Offered Debt Securities or certain covenants under the
Indentures; (10) the currency or currencies, which may be a
composite currency such as the European Currency Unit, of payment
of principal of and premium, if any, and interest on the Offered
Debt Securities, if other than U.S. dollars; (11) whether the
Offered Securities are to be issued with original issue discount
within the meaning of Section 1273(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and the regulations
thereunder; (12) whether the Offered Securities are to be issued
in whole or in part in the form of one or more Global Notes and,
if so, the identity of the depositary, if any, for such Global
Note or Notes; (13) any addition to, or modification or deletion
of, any Events of Default or covenants provided for with respect
to the Offered Securities; (14) any index used to determine the
amount of payments of principal of and premium, if any, and
interest on the Offered Debt Securities; and (15) any other terms
of the Offered Debt Securities not inconsistent with the terms of
the Indentures.
Unless otherwise indicated in the Prospectus Supplement
relating thereto, principal of and any premium and interest on
the Offered Debt Securities will be payable, and the Offered Debt
Securities will be exchangeable and transfers thereof will be
registrable, at the corporate trust office of the Trustee in New
York, New York, provided that, at the option of the Company,
payment of any interest may be made by check mailed to the
address of the person entitled thereto as it appears in the
Security Register. Unless otherwise indicated in the Prospectus
Supplement relating thereto, payment of any interest due on any
Offered Debt Security will be made to the Person in whose name
such Offered Debt Security is registered at the close of business
on the Regular Record Date for such interest. (Indentures,
Sections 301, 305, 307 and 1002)
Unless otherwise indicated in the Prospectus Supplement
relating thereto, the Offered Debt Securities will be issued only
in fully registered form without coupons in denominations of
$1,000 or any integral multiple thereof, and no service charge
will be made for any transfer or exchange of such Offered Debt
Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith. (Indentures, Sections 302 and 305)
Debt Securities may be issued under either Indenture as
Original Issue Discount Securities to be offered and sold at a
substantial discount from the principal amount thereof. Special
Federal income tax, accounting and other considerations
applicable thereto will be described in the Prospectus Supplement
relating to any such Original Issue Discount Securities.
SENIOR DEBT
Debt Securities that will constitute part of the senior
debt of the Company will be issued under the Senior Debt
Indenture and will rank pari passu with all other unsecured
and unsubordinated debt of the Company.
SUBORDINATED DEBT
Debt Securities that will constitute part of the
subordinated debt of the Company will be issued under the
Subordinated Debt Indenture.
Debt Securities issued under the Subordinated Debt
Indenture will be subordinate and junior in right of payment,
to the extent and in the manner set forth in the Subordinated
Debt Indenture, to all "Senior Indebtedness," as defined
therein, of the Company. The Subordinated Debt Indenture
defines "Senior Indebtedness" as obligations (other than
nonrecourse obligations, the Debt Securities issued under the
Subordinated Debt Indenture and any other obligations
specifically designated as being subordinate in right of payment
to such Senior Indebtedness) of, or guaranteed or assumed by,
the Company for borrowed money or evidenced by bonds,
debentures, notes or other similar instruments, and
amendments, renewals, extensions, modifications and refundings
of any such indebtedness or obligations. (Subordinated Debt
Indenture, Section 1.01)
In the event (a) of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization
or other similar proceeding in respect of the Company or a
substantial part of its property, or (b) that (i) a default
shall have occurred with respect to the payment of principal
of (and premium, if any) or any interest on or other monetary
amounts due and payable on any Senior Indebtedness (as defined
in the Subordinated Debt Indenture) or (ii) there shall have
occurred an event of default (other than a default in the
payment of principal, premium, if any, or interest, or other
monetary amounts due and payable) with respect to any
Senior Indebtedness, as defined in the Subordinated Debt
Indenture or in the instrument under which the same is
outstanding, permitting the holder or holders thereof to
accelerate the maturity thereof (with notice or lapse of time,
or both), and such event of default shall have continued
beyond the period of grace, if any, in respect thereof, and
such default or event of default shall not have been cured
or waived or shall not have ceased to exist, or (c) that the
principal of and accrued interest on Debt Securities issued
under the Subordinated Debt Indenture shall have been declared
due and payable upon an Event of Default pursuant to Section
5.01 of the Subordinated Debt Indenture and such declaration
shall not have been rescinded and annulled as provided
therein, then the holders of all Senior Indebtedness (as
defined in the Subordinated Debt Indenture) shall first be
entitled to receive payment of the full amount unpaid thereon,
or provision shall be made for such payment in money or
money's worth, before the holders of any of Debt Securities
issued under the Subordinated Debt Indenture are entitled to
receive a payment on account of the principal of (and premium,
if any) or any interest on the indebtedness evidenced by such
Debt Securities. (Subordinated Debt Indenture, Section 13.01)
If this Prospectus is being delivered in connection with a
series of Debt Securities issued under the Subordinated Debt
Indenture, the accompanying Prospectus Supplement or the
information incorporated herein by reference will set forth
the approximate amount of Senior Indebtedness (as defined in
the Subordinated Debt Indenture) outstanding as of the end of
the most recent fiscal quarter.
CERTAIN COVENANTS OF THE COMPANY
Restrictions on Liens. The Senior Debt Indenture provides
that the Company will not, and will not permit any Restricted
Subsidiary to, issue, assume or guarantee any Indebtedness
secured by any mortgage, security interest, pledge, lien or other
encumbrance (herein referred to as a "Mortgage" or "Mortgages")
upon any Operating Property or Operating Asset of the Company or
any Restricted Subsidiary, whether such assets are now owned or
hereafter acquired, without in any such case effectively
providing that the Debt Securities (together with, if the Company
shall so determine, any other Indebtedness ranking equally with
the Debt Securities) shall be secured equally and ratably with
such Indebtedness except that the foregoing restrictions shall
not apply to (i) the giving, simultaneously with or within 180
days after the latest of May 15, 1988, or the acquisition or
construction of such property, of a purchase money Mortgage on
property acquired or constructed after May 15, 1988, or the
acquisition after May 15, 1988, of property subject to any
Mortgage which is limited to such property and which secures
Indebtedness not in excess of the lesser of the cost or fair
market value of such property, (ii) the giving by the Company or
a Restricted Subsidiary of a Mortgage on real property which is
the sole security for Indebtedness incurred within two years
after the latest of May 15, 1988, the acquisition of the property
or completion of the first substantial improvements thereon,
provided that the Indebtedness does not exceed the lesser of the
cost of the property and improvements or their fair market value
and the holder of such Indebtedness is entitled to enforce its
payment only by resorting to such security, and (iii) Mortgages,
or renewals thereof, existing on the date of the Senior Debt
Indenture or on assets of a Restricted Subsidiary existing on the
date it became a Subsidiary. Notwithstanding the foregoing, the
Company or any Restricted Subsidiary may create or assume
Mortgages in addition to those permitted above, and renew, extend
or replace such Mortgages provided that at the time of such
creation, assumption, renewal, extension or replacement, and
after giving effect thereto, Exempted Debt does not exceed 5% of
Consolidated Net Tangible Assets. (Senior Debt Indenture,
Section 1007) On May 15, 1988, no Operating Properties were
subject to any liens.
Restrictions on Sale and Leaseback Transactions. The Senior
Debt Indenture provides that the Company will not, nor will it
permit any Restricted Subsidiary to, enter into any arrangement
with any person providing for the leasing by the Company or any
Restricted Subsidiary of any Operating Property or Operating
Asset which has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such person (a "Sale and
Leaseback Transaction") unless the net proceeds of such sale or
transfer have been determined by the Company's Board of Directors
to be at least equal to the fair value of such Operating Property
or Operating Assets at the time of such sale and transfer and (i)
within 180 days after the receipt of the proceeds of such sale
and transfer, either the Company or any Restricted Subsidiary
applies an amount equal to such net proceeds to the prepayment or
retirement (other than any mandatory prepayment or retirement) of
Senior Funded Debt of the Company or such Restricted Subsidiary,
or (ii) the Company or such Restricted Subsidiary would be
entitled, at the time of the effective date of such sale or
transfer, to incur indebtedness secured by a Mortgage on such
Operating Property or Operating Assets in an amount at least
equal to the Attributable Debt in respect thereof, without
equally and ratably securing the Debt Securities pursuant to the
"Restrictions on Liens" described above. The foregoing
restriction shall not apply to (i) any Sale and Leaseback
Transaction for a term of not more than two years, including
renewals, (ii) in the case of any Operating Property acquired or
constructed subsequent to May 15, 1986, any Sale and Leaseback
Transaction with respect thereto (including presently owned real
property upon which such Operating Property is to be
constructed) if a binding commitment is entered into within two
years after the later of the acquisition of the property or
completion of the first substantial improvements thereon and
(iii) any Sale and Leaseback Transaction between the Company and
a Restricted Subsidiary or between Restricted Subsidiaries
provided that the lessor shall be the Company or a wholly-owned
Restricted Subsidiary. (Senior Debt Indenture, Section 1008)
Exempted Debt. Notwithstanding the restrictions in the
Senior Debt Indenture on (i) Mortgages and (ii) Sale and
Leaseback Transactions, the Company or its Restricted
Subsidiaries may, in addition to amounts permitted under such
restrictions, create Indebtedness secured by Mortgages, or enter
into Sale and Leaseback Transactions, provided that, after giving
effect thereto, the aggregate outstanding amount of all such
Indebtedness secured by Mortgages plus Attributable Debt
resulting from such Sale and Leaseback Transactions does not
exceed 5% of Consolidated Net Tangible Assets (collectively, the
"Exempted Debt"). (Senior Debt Indenture, Sections 1007(b) and
1008(b))
No Special Protection in the Event of a Highly Leveraged
Transaction. Unless otherwise indicated in the Prospectus
Supplement relating thereto, the terms of the Offered Debt
Securities will not afford the holders special protection in the
event of a highly leveraged transaction.
CERTAIN DEFINITIONS
Set forth below are certain significant terms which are
defined in Section 101 of the Senior Debt Indenture:
"Attributable Debt" in respect of a Sale and Leaseback
Transaction means, at the time of determination, the present
value (discounted at the actual rate of interest of such
transaction) of the obligation of the lessee for net rental
payments during the remaining term of the lease included in such
Sale and Leaseback Transaction (including any period for which
such lease has been extended or may, at the option of the lessor,
be extended).
"Capitalized Lease Obligations" means obligations created
pursuant to leases which are required to be shown on the
liability side of a balance sheet in accordance with generally
accepted accounting principles.
"Consolidated" when used with respect to any of the terms
defined in the Senior Debt Indenture, refers to such terms as
reflected in a consolidation of the accounts of the Company and
its Restricted Subsidiaries in accordance with generally accepted
accounting principles.
"Funded Debt" means indebtedness which matures more than one
year from the date of computation, or which is extendable or
renewable at the sole option of the obligor so that it may become
payable more than one year from such date, but, generally, shall
not include obligations created pursuant to leases.
"Indebtedness" means, generally, all obligations for
borrowed money, including obligations secured by liens on
property owned by a person whether or not such person is directly
liable therefor.
"Investment" means and includes any investment in stock,
evidences of indebtedness, loans or advances, however made or
acquired, but shall not include accounts receivable of the
Company or of any Restricted Subsidiary arising from transactions
in the ordinary course of business, or any evidences of
indebtedness, loans or advances made in connection with the sale
to any Subsidiary of accounts receivable of the Company or any
Restricted Subsidiary arising from transactions in the ordinary
course of business of the Company or any Restricted Subsidiary.
"Net Tangible Assets" means the total amounts of assets
(less depreciation and valuation reserves and other reserves and
items deductible from gross book value of specific asset accounts
under generally accepted accounting principles) which under
generally accepted accounting principles would be included on a
balance sheet after deducting therefrom (i) all liability items
except Funded Debt, Capitalized Lease Obligations, stockholders'
equity and reserves for deferred income taxes, (ii) all goodwill,
trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, which in each such case would
be so included on such balance sheet, (iii) Investments (less
applicable reserves) in, or equity in the net assets of,
Non-Restricted Subsidiaries in excess of the amount of such
Investments and equity in net assets on January 30, 1988, and
(iv) capitalized property rights created pursuant to Capitalized
Lease Obligations. As of January 30, 1988, the amount of
Investments in, or equity in the net assets of, Non-Restricted
Subsidiaries totaled approximately $308,320,000.
"Operating Assets" means all merchandise inventories,
furniture, fixtures and equipment (including all transportation
and warehousing equipment but excluding office equipment and data
processing equipment) owned by the Company or a Restricted
Subsidiary.
"Operating Property" means all real property and
improvements thereon owned by the Company or a Restricted
Subsidiary and constituting, without limitation, any store,
warehouse, service center or distribution center wherever
located; provided that such term shall not include any store,
warehouse, service center or distribution center which the
Company's Board of Directors declares by resolution not to be of
material importance to the business of the Company and its
Restricted Subsidiaries.
"Restricted Subsidiaries" means all Subsidiaries other than
Non-Restricted Subsidiaries. "Non-Restricted Subsidiaries" means
(i) any Subsidiary so designated by the Board of Directors of the
Company in accordance with the Indenture, and (ii) any other
Subsidiary of which the majority of the voting stock is owned
directly or indirectly by one or more Non-Restricted
Subsidiaries. The Senior Debt Indenture provides that the
Company's Board of Directors may change the designations of
Restricted Subsidiaries and Non-Restricted Subsidiaries. (Senior
Debt Indenture, Section 1009) Initially the Company will have no
Restricted Subsidiaries.
"Senior Funded Debt" means all Funded Debt of the Company or
any person (except Funded Debt, the payment of which is
subordinated to the payment of the Debt Securities).
"Subsidiary" means any corporation of which at least a
majority of the outstanding stock having voting power under
ordinary circumstances to elect a majority of the board of
directors of said corporation or business entity is at the time
owned or controlled by the Company, or by the Company and one or
more Subsidiaries, or by any one or more Subsidiaries.
MERGER AND CONSOLIDATION
Each Indenture provides that the Company may, without the
consent of the Holders of the Debt Securities, consolidate with
or merge into any other corporation, or convey, transfer or lease
its properties and assets substantially as an entirety to any
person, provided that in any such case (i) the successor
corporation shall be a domestic corporation and such corporation
shall assume by a supplemental indenture the Company's
obligations under such Indenture and the Debt Securities, (ii)
immediately after such transaction, no Event of Default shall
have happened and be continuing, and (iii) if as a result of any
such merger, consolidation, or such conveyance, transfer or lease
an Operating Property of the Company would become subject to a
Mortgage which would not be permitted under "Restrictions on
Liens" described above, the senior Debt Securities would be
secured, equally and ratably with (or prior to) all indebtedness
so secured. Upon compliance with these provisions by a successor
corporation, the Company (except in the case of a lease) would be
relieved of its obligations under each Indenture and the Debt
Securities. (Indentures, Sections 801 and 802)
EVENTS OF DEFAULT
The following will be Events of Default under each Indenture
with respect to Debt Securities of any series: (a) default in
payment of principal of or premium, if any, on any Debt Security
of that series when due; (b) default in payment of any interest
on any Debt Security of that series when due, continued for 30
days; (c) default in the deposit of any sinking fund payment,
when due, in respect of any Debt Security of that series; (d)
default in the performance or breach of any other covenant or
warranty of the Company in such Indenture (other than a covenant
or warranty a default in whose performance or whose breach is
elsewhere in such Indenture specifically dealt with or which has
been included in such Indenture solely for the benefit of series
of Debt Securities other than that series), continued for 60 days
after written notice as provided in such Indenture; (e) if so
specified in the Prospectus Supplement accompanying this
Prospectus that this clause (e) shall apply to the Debt
Securities of that series (and set forth in the Prospectus
Supplement relating to the Debt Securities of that series),
acceleration of any indebtedness for money borrowed by the
Company under the terms of the instrument under which such
indebtedness is issued or secured in an aggregate principal
amount exceeding $20 million, if such acceleration is not
discharged within 10 days after written notice as provided in
such Indenture, or failure by the Company to pay any such
indebtedness at the later of final maturity or upon expiration of
any applicable period of grace with respect to such principal
amount, and such failure to pay shall not have been cured by the
Company within 30 days after such failure; (f) bankruptcy,
insolvency or reorganization; and (g) any other Event of Default
provided with respect to Debt Securities of that series. No
Event of Default with respect to a particular series of Debt
Securities issued under such Indenture (except as to such events
in bankruptcy, insolvency or reorganization) necessarily
constitutes an Event of Default with respect to any other series
of Debt Securities issued thereunder. (Indentures, Section 501)
If an Event of Default (other than an Event of Default
specified in clause (f) above) with respect to Debt Securities of
any series at the time Outstanding shall occur and be continuing,
then and in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Debt
Securities of that series may, by a notice in writing to the
Company (and to the Trustee if given by Holders), declare to be
due and payable immediately the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the
terms of that series) of all Debt Securities of that series.
However, at any time after such a declaration of acceleration
with respect to Debt Securities of any series has been made, but
before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Holders of a majority in principal
amount of Outstanding Debt Securities of that series may, subject
to certain conditions, rescind and annul such acceleration if all
Events of Default, other than the non-payment of accelerated
principal, with respect to Debt Securities of that series have
been cured or waived as provided in such Indenture. (Indentures,
Section 502) For information as to waiver of defaults, see
"Modification and Waiver" herein. Reference is made to the
Prospectus Supplement relating to any series of Offered Debt
Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of a portion of
the principal amount of such Original Issue Discount Securities
upon the occurrence of an Event of Default and the continuation
thereof. If an Event of Default specified in clause (f) above
occurs, the principal amount (or, if the Debt Securities of that
series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of that
series) of all Debt Securities then outstanding shall ipso facto
become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder.
Subject to the provisions of the Indentures relating to the
duties of the Trustee in case an Event of Default shall occur and
be continuing, each Indenture provides that the Trustee will be
under no obligation to exercise any of its rights or powers under
such Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Trustee reasonable
security and indemnity. (Indentures, Sections 601 and 603)
Subject to such provisions for security and indemnification of
the Trustee and certain other rights of the Trustee, the Holders
of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time,
method and place of conducting any proceedings 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. (Indentures, Section 512)
No Holder of any Debt Security of any series will have any
right to institute any proceeding with respect to either
Indenture or for any remedy thereunder, unless such Holder shall
have previously given to the Trustee written notice of a
continuing Event of Default with respect to Debt Securities of
that series and unless also the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that
series shall have made written request, and offered reasonable
security and indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series a direction
inconsistent with such request and shall have failed to institute
such proceeding within 60 days. (Indentures, Section 507)
Notwithstanding the foregoing, the Holder of any Debt Security
will have an absolute and unconditional right to receive payment
of the principal of (and premium, if any) and any interest on
such Debt Security on or after the due dates expressed in such
Debt Security and to institute suit for the enforcement of any
such payment. (Indentures, Section 508)
Each Indenture requires the Company to furnish to the
Trustee annually a statement as to compliance with such
Indenture. (Indentures, Section 1011) Each Indenture provides
that the Trustee may withhold notice to the Holders of Debt
Securities of any series of any default (except in payment of
principal, any premium, interest or any sinking fund payments)
with respect to Debt Securities of such series if it considers it
in the interest of the Holders of Debt Securities of such series
to do so. (Indentures, Section 602)
MODIFICATION AND WAIVER
Modifications and amendments of each Indenture may be made
by the Company and the Trustee with the consent of the Holders of
66-2/3% in principal amount of the Outstanding Debt Securities of
each series affected by such modifications or amendments;
provided, however, that no such modification or amendment may,
without the consent of the Holder of each Outstanding Debt
Security affected thereby, (a) change the stated maturity date of
the principal of, or any installment of principal of or interest
on, any Debt Security, (b) reduce the principal amount of, or the
premium (if any) or any interest on, any Debt Security or reduce
the amount of principal of an Original Issue Discount Security
that would be due and payable upon acceleration, (c) change the
place or currency of payment of principal of, or premium (if any)
or interest on, any Debt Security, (d) impair the right to
institute suit for the enforcement of any payment on or with
respect to any Debt Security after the stated maturity date, or
(e) reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of whose Holders is
required for modification or amendment of such Indenture, for
waiver of compliance with certain provisions of such Indenture or
for waiver of certain defaults. (Indentures, Section 902)
The Holders of 66-2/3% 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, insofar as
that series is concerned, compliance by the Company with certain
restrictive provisions of the applicable Indenture.
(Indentures, Section 1012) The Holders of 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 applicable Indenture with
respect to that series except a default in the payment of the
principal of (or premium, if any) or any interest on any Debt
Security of that series or in respect of a provision which under
such Indenture cannot be modified or amended without the consent
of the Holder of each Outstanding Debt Security of that series
affected. (Indentures, Section 513)
The Subordinated Debt Indenture may not be amended to alter
the subordination of any outstanding Debt Securities issued
thereunder without the written consent of each holder of Senior
Indebtedness (as defined therein) then outstanding that would be
adversely affected thereby. (Subordinated Debt Indenture,
Section 8.06)
DEFEASANCE OF OFFERED DEBT SECURITIES OR CERTAIN COVENANTS IN
CERTAIN CIRCUMSTANCES
Defeasance and Discharge. Each Indenture provides that the
Board of Directors of the Company may provide by resolution that
the Company will be discharged from any and all obligations in
respect of the Debt Securities of any series (except for certain
obligations to register the transfer or exchange of Debt
Securities of such series, to replace stolen, lost or mutilated
Debt Securities of such series, to maintain paying agencies and
hold moneys for payment in trust) upon the deposit with the
Trustee, in trust, of money and/or U.S. Government Obligations
(as defined), which through the payment of interest and principal
thereof in accordance with their terms will provide money in an
amount sufficient to pay any installment of principal (and
premium, if any) and interest on and any mandatory sinking fund
payments in respect of the Debt Securities of such series on the
stated maturity of such payments in accordance with the terms of
such Indenture and such Debt Securities. Such discharge may only
occur if (i) the Company has received from, or there has been
published by, the United States Internal Revenue Service a ruling
to the effect that such a discharge will not be deemed, or result
in, a taxable event with respect to Holders of the Debt
Securities of such series; and such discharge will not be
applicable to any Debt Securities of such series then listed on
the New York Stock Exchange or any other securities exchange if
the provision would cause said Debt Securities to be de-listed as
a result thereof (Indentures, Section 403), and (ii) in the case
of the Subordinated Debt Indenture (a) no event or condition
shall exist that would prevent the Company from making payments
of principal of (and premium, if any) and interest on the Debt
Securities issued pursuant to the Subordinated Debt Indenture at
the date of the irrevocable deposit referred to above or at any
time during the period ending on the 91st day after such deposit
date and (b) the Company delivers to the Debt Securities Trustee
for the Subordinated Debt Indenture an opinion of counsel to the
effect that (1) the trust funds will not be subject to any rights
of holders of Senior Indebtedness (as defined for purposes of the
Subordinated Debt Indenture) and (2) after the 91st day following
the deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally, except that if a
court were to rule under any such law in any case or proceeding
that the trust funds remained property of the Company, then the
relevant Debt Securities Trustee and the holders of such Debt
Securities would be entitled to certain rights as secured
creditors in such trust funds.
Defeasance of Certain Covenants. Each Indenture provides
that the Board of Directors of the Company may by resolution
provide that the terms of any series of Debt Securities may
provide the Company with the option to omit to comply with
certain restrictive covenants described in Sections 1007 through
1009 of the Indentures. The Company, in order to exercise such
option, will be required to deposit with the Trustee money and/or
U.S. Government Obligations (as defined) which through the
payment of interest and principal thereof in accordance with
their terms will provide money in an amount sufficient to pay
principal (and premium, if any) and interest on and any mandatory
sinking fund payments in respect of the Debt Securities of such
series on the stated maturity of such payments in accordance with
the terms of such Indenture and such Debt Securities. The
Company will also be required to deliver to the Trustee an
opinion of counsel to the effect that the deposit and related
covenant defeasance will not cause the Holders of the Debt
Securities of such series to recognize income, gain or loss for
Federal income tax purposes. (Indentures, Section 1010)
Defeasance and Events of Default. In the event the Company
exercises its option to omit compliance with certain covenants of
an Indenture with respect to any series of Debt Securities and
the Debt Securities of such series are declared due and payable
because of the occurrence of any Event of Default, the amount of
money and U.S. Government Obligations on deposit with the Trustee
will be sufficient to pay amounts due on the Debt Securities of
such series at the time of their Stated Maturity but may not be
sufficient to pay amounts due on the Debt Securities of such
series at the time of the acceleration resulting from such Event
of Default. However, the Company shall remain liable for such
payments.
The Prospectus Supplement will state if any defeasance
provision will apply to the Offered Debt Securities.
CONCERNING THE TRUSTEE
The Chase Manhattan Bank (formerly known as Chemical Bank)
("Chase") is the Trustee under the Senior Debt Indenture and will
be the Trustee under and is also the trustee under prior
indentures between the Company and Chase. Chase maintains normal
banking relations with the Company, including participating in
and acting as Agent for a credit agreement for the Company and
Dillard Investment Co., Inc., a wholly owned subsidiary of the
Company ("DIC"). Chase also is the trustee under indentures
between DIC and Chase.
GOVERNING LAW
The Debt Securities and the Indentures will be governed by
and construed in accordance with the laws of the State of New
York.
DESCRIPTION OF CAPITAL STOCK
The following description of the Company's capital stock is
qualified in its entirety by the provisions of the Company's
Restated Certificate of Incorporation, as amended, which is an
exhibit to the registration statement of which this Prospectus is
a part.
GENERAL
The authorized capital stock of the Company consists of
5,000 shares of 5% Cumulative Preferred Stock (the "5% Preferred
Stock"), par value $100 per share; 289,000,000 shares of Class A
Common Stock, par value $.01 per share (the "Class A Common
Stock"); 11,000,000 shares of Class B Common Stock, par value
$.01 per share (the "Class B Common Stock"); and 10,000,000
shares of Additional Preferred Stock, par value $.01 per share
(the "Additional Preferred Stock"). At July 14, 1998, 4,400
shares of the authorized 5% Preferred Stock were issued and
outstanding, 102,797,508 shares of the authorized Class A Common
Stock were issued and outstanding, 4,016,929 shares of the Class
B Common Stock were issued and outstanding, and no shares of
Additional Preferred Stock were issued and outstanding.
VOTING RIGHTS
The holders of the Class A and the Class B Common Stock have
the right to one vote per share upon all matters which may come
before stockholders' meetings, except that the holders of Class A
Common Stock are empowered as a class to elect one-third of the
members of the Board of Directors and the holders of Class B
Common Stock are empowered as a class to elect two-thirds of the
members of the Board of Directors. The entire Board of Directors
is elected annually.
The affirmative vote of the holders of four-fifths of both
the Class A and Class B Common Stock considered as one class is
required (i) for the adoption of any agreement for the merger or
consolidation of the Company with or into any other corporation,
(ii) to authorize the sale, lease or exchange of all or
substantially all of the assets of the Company, or any sale,
lease or exchange of assets to the Company or any subsidiary of
the Company in exchange for securities of the Company, or (iii)
to authorize the dissolution or liquidation of the Company. Such
vote, however, is not required (i) if the Board of Directors
shall have approved a memorandum of understanding with respect to
such transaction, or (ii) in the event of a merger or
consolidation of the Company with, or any sale, lease or exchange
to the Company or any subsidiary of any of the assets of, any
corporation of which a majority of the outstanding voting
securities is owned of record or beneficially by the Company and
its subsidiaries.
Since holders of Class A and Class B Common Stock do not
have cumulative voting rights, holders of more than 50% of the
Class A Common Stock voting for the election of Directors can
elect one- third of the Board of Directors and the holders of
more than 50% of the Class B Common Stock voting for the election
of Directors can elect two-thirds of the Board of Directors. In
such event, holders of the remaining shares voting for the
election of the Directors will be unable to elect Directors. W.D.
Company, Inc. ("W.D. Company") owns 99.2% of the Company's Class
B Common Stock and can therefore elect two-thirds of the
Company's Board of Directors. William Dillard, Chairman of the
Board of Directors of the Company, William Dillard II, Chief
Executive Officer, Alex Dillard, President, and Mike Dillard,
Executive Vice President, are directors and officers of W.D.
Company and own 21.3%, 25.1%, 23.3% and 22.0%, respectively, of
the outstanding voting stock of W.D. Company.
The holders of the 5% Preferred Stock have no voting rights,
except as provided by Section 242 of the Delaware General
Corporation Law, which states that the holders of the outstanding
shares of any class of capital stock shall be entitled to vote as
a class upon any proposed amendment to the certificate of
incorporation, whether or not entitled to vote thereon by the
certificate of incorporation, if the amendment would increase or
decrease the aggregate number of authorized shares of such class
(subject to certain conditions), increase or decrease the par
value of the shares of such class, or alter or change the powers,
preferences, or special rights of the shares of such class so as
to affect them adversely.
The Company's Restated Certificate of Incorporation, as
amended, authorizes the Board of Directors to fix by resolution
the designations, preferences, and relative rights,
qualifications and limitations, of shares of Additional Preferred
Stock, including, among other things, (a) the number of shares
and the distinctive designation of each series, if any, and
whether the shares of any series would rank prior to, junior to,
or on a parity with, the shares of another series; (b) the
dividend rate, conditions and preferences over the Company's
Common Stock, if any, and the date on which any dividends would
be declared and paid; (c) whether, and to what extent, the
holders would have voting rights in addition to those prescribed
by statute; (d) whether, and upon what terms, the shares would be
convertible into or exchangeable for other securities; (e)
whether, and upon what terms, the shares would be redeemable; (f)
whether or not a sinking fund would be provided for the
redemption of the securities, and, if so, the terms and
conditions thereof; and (g) preference, if any, to which the
class or series thereof would be entitled in the event of
voluntary or involuntary liquidation, dissolution or winding up
of the Company.
CONVERSION AND PRE-EMPTIVE RIGHTS
Shares of Class B Common Stock are convertible at any time
at the option of any holder thereof into shares of Class A Common
Stock at the rate of one share of Class B Common Stock for one
share of Class A Common Stock. Under Delaware law and the
Company's Restated Certificate of Incorporation, no holder of
capital stock has pre-emptive rights.
DIVIDENDS
Holders of 5% Preferred Stock are entitled to receive
dividends at the rate of 5% per annum, payable February 1 and
August 1 of each year, before any dividends may be paid on Class
A and Class B Common Stock. Dividends on the 5% Preferred Stock
shall be cumulative from year to year if not paid and all accrued
and unpaid dividends must be paid on the 5% Preferred Stock
before any dividends may be paid upon the Common Stock in any
year. Holders of Class A and Class B Common Stock are entitled
to receive equally, share for share, any dividends which may be
declared upon Common Stock. No dividend may be declared on
Common Stock of either class unless a similar dividend is
declared on Common Stock of the other class. However, in the
case of dividends in stock of the Company or stock splits,
holders of each class of Common Stock are entitled to receive
only shares of the same class.
LIQUIDATION AND REDEMPTION RIGHTS
Upon final liquidation of the Company, holders of 5%
Preferred Stock are entitled to receive $100 per share plus
accrued dividends before any distribution to holders of Common
Stock, and holders of Common Stock are entitled to share equally,
share for share, in the distribution of the remaining assets of
the Company. The Company may redeem all or any part of the 5%
Preferred Stock at par value plus accrued dividends at any time.
The Common Stock is not subject to redemption.
OTHER
All outstanding shares of the Company's capital stock are
fully paid and nonassessable.
The transfer agent and registrar for the Class A Common
Stock is ChaseMellon, Ridgefield Park, New Jersey.
DESCRIPTION OF CAPITAL SECURITIES
Each Issuer Trust will issue only one series of Capital
Securities and one series of Common Securities. The Trust
Agreement for each Issuer Trust will be qualified as an
indenture under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). The Capital Securities will have such
terms and will be subject to such conditions as shall be set
forth in the Trust Agreement or made a part thereof by the
Trust Indenture Act. This summary of certain provisions of
the Capital Securities and each Trust Agreement does not
purport to be complete and is subject to, and qualified in its
entirety by reference to, all the provisions of each Trust
Agreement, including the definitions therein of certain terms.
Wherever particular defined terms of a Trust Agreement are
referred to herein, such defined terms are incorporated herein
by reference. A copy of the form of the Trust Agreement is
available upon request from the Issuer Trustees.
GENERAL
The Capital Securities will represent preferred undivided
beneficial interests in the assets of the applicable Issuer
Trust. The only assets of an Issuer Trust, and its only
source of its revenues, will be the Debt Securities purchased
by such Issuer Trust with the proceeds from the issuance of its
Trust Securities. Accordingly, Distributions and other payment
dates for such Trust Securities will correspond with the
interest and other payment dates for such Debt Securities. See
"Description of Debt Securities" in this Prospectus and in the
applicable Prospectus Supplement for a description of such Debt
Securities. If the Company does not make payments on such
Debt Securities in accordance with their terms, such Issuer
Trust will not have funds available to pay Distributions or
other amounts payable on the Trust Securities issued by such
Issuer Trust in accordance with their terms. The Capital
Securities issued by an Issuer Trust will rank pari passu,
and payments thereon will be made thereon pro rata, with the
Common Securities issued by such Issuer Trust except as
described below under "--Subordination of Common Securities"
and in the applicable Prospectus Supplement. Capital
Securities will be fully and unconditionally guaranteed by the
Company, to the extent described herein under "Description of
Guarantees" and in the applicable Prospectus Supplement.
Reference is made to the applicable Prospectus
Supplement for the following terms of and information relating
to the Capital Securities offered hereby and thereby (to the
extent such terms are applicable to such Capital Securities):
(i) the specific designation, stated amount per Capital Security
(the "Liquidation Amount"), number to be issued by the
applicable Issuer Trust and purchase price; (ii) the currency or
units based on or relating to currencies in which Distributions
and other payments thereon will or may be payable; (iii) the
Distribution rate or rates (or the method by which such rate or
rates will be determined), if any; (iv) the date or dates on
which any such Distributions will be payable; (v) any
provisions relating to deferral of Distribution payments;
(vi) the place or places where Distributions and other
amounts payable on such Capital Securities will be payable;
(vii) any repayment, redemption, prepayment or sinking
fund provisions; (viii) the voting rights, if any, of
holders of such Capital Securities; (ix) the terms and
conditions, if any, upon which the assets of such Issuer Trust
may be distributed to holders of such Capital Securities; (x)
any applicable United States federal income tax consequences;
and (xi) any other specific terms of such Capital Securities.
DISTRIBUTIONS
Distributions on the Capital Securities will be
cumulative. Distributions will accumulate from the date of
original issuance and will be payable on such dates as
specified in the applicable Prospectus Supplement. The amount
of Distributions payable for any period less than a full
Distribution period will be computed on the basis of a 360-day
year of twelve 30-day months and the actual days elapsed in a
partial month in such period, unless otherwise specified in
the applicable Prospectus Supplement. Distributions payable
for each full Distribution period will be computed by dividing
the rate per annum by four, unless otherwise specified in
the applicable Prospectus Supplement.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and other amounts payable under
the Capital Securities and Common Securities issued by an
Issuer Trust shall be made pro rata based on the Liquidation
Amount of such Capital Securities and Common Securities.
However, unless otherwise provided in the applicable Prospectus
Supplement, if on any date on which Distributions or other
amounts are payable with respect to such Capital Securities
and Common Securities, an "Event of Default" with respect to
the Debt Securities owned by such Issuer Trust (a "Debenture
Event of Default") has occurred and is continuing as a result
of any failure by the Company to pay any amounts in respect of
such Debt Securities when due, no payment of any Distribution on
or other amounts payable under such Common Securities shall be
made unless payment in full in cash of all accumulated amounts
then due and payable with respect to all of such Issuer
Trust's outstanding Capital Securities shall have been made or
provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full
in cash of all Distributions on, and all other amounts with
respect to, Capital Securities then due and payable.
In the case of any Capital Securities Event of Default
(as defined below) resulting from a Debenture Event of
Default, the holders of the applicable Issuer Trust's Common
Securities will be deemed to have waived any right to act with
respect to any such Capital Securities Event of Default under
the applicable Trust Agreement until the effects of such
Debenture Event of Default with respect to such Capital
Securities have been cured, waived or otherwise eliminated.
See "--Capital Securities Events of Default; Notice" and
"Description of Debt Securities--Events of Default." Until all
such Capital Securities Events of Default have been so
cured, waived or otherwise eliminated, the Property Trustee
will act solely on behalf of the holders of the Capital
Securities and not on behalf of the holders of the Common
Securities, and only the holders of the Capital Securities will
have the right to direct the Property Trustee to act on their
behalf.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
The amount payable on Capital Securities in the event of any
liquidation of an Issuer Trust will be the stated amount per
Capital Security or such other amount as specified in the
applicable Prospectus Supplement plus accumulated and unpaid
Distributions, which, if specified in the applicable
Prospectus Supplement, may be in the form of a distribution
of the Debt Securities owned by such Issuer Trust.
The holders of all the outstanding Common Securities of an
Issuer Trust will have the right at any time to dissolve such
Issuer Trust and, after satisfaction of liabilities to
creditors of such Issuer Trust as provided by applicable law,
cause the Debt Securities owned by such Issuer Trust to be
distributed to the holders of the Capital Securities and Common
Securities in liquidation of such Issuer Trust as described in
the applicable Prospectus Supplement. Other terms for the
dissolution of an Issuer Trust and the distribution or
liquidation of its assets to holders of Trust Securities will be
set forth in the applicable Prospectus Supplement.
CAPITAL SECURITIES EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of
Default" under a Trust Agreement (a "Capital Securities Event
of Default") with respect to the Capital Securities issued
pursuant thereto (whatever the reason for such Capital
Securities Event of Default and whether it is voluntary
or involuntary or effected by operation of law or pursuant
to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of an Event of Default with respect
to the Debt Securities in which the proceeds of the Capital
Securities have been invested (a "Debenture Event of Default")
(see "Description of Debt Securities--Events of Default" and
the applicable Prospectus Supplement); or
(ii) default by the applicable Issuer Trust or the
Property Trustee in the payment of any Distribution on such
Capital Securities when it becomes due and payable, and
continuation of such default for a period of 30 days; or
(iii) default by an Issuer Trust or the Property Trustee
in the payment of any redemption price of any Trust Security
issued pursuant to such Trust Agreement when it becomes due and
payable; or
(iv) default in the performance, or breach, in any
material respect, of any covenant or warranty of the
applicable Issuer Trustees (other than a covenant or warranty,
a default in the performance of which or the breach of which is
dealt with in clause (ii) or (iii) above), and continuation of
such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to such Issuer
Trustees and the Company by the holders of at least 25% in
aggregate Liquidation Amount of such Capital Securities
outstanding, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is
a "Notice of Default" under the applicable Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or
insolvency with respect to the Property Trustee or all or
substantially all of its property if a successor Property
Trustee has not been appointed within 90 days thereof.
Within ten Business Days after the occurrence of any
Capital Securities Event of Default actually known to the
Property Trustee, the Property Trustee will transmit notice of
such Event of Default to the holders of the applicable
Trust Securities and the Administrators, unless such Capital
Securities Event of Default has been cured or waived. The
Company, as Depositor, and the Administrators are required to
file annually with the Property Trustee a certificate as to
whether or not they are in compliance with all the conditions
and covenants applicable to them under each Trust Agreement.
If a Debenture Event of Default has occurred and is
continuing as a result of any failure by the Company to pay
any amounts in respect of the Debt Securities owned by an
Issuer Trust when due, the Capital Securities issued by such
Issuer Trust will have a preference over the Common Securities
issued by such Issuer Trust with respect to payments of any
amounts in respect of such Capital Securities as described
above. See "--Subordination of Common Securities."
REMOVAL OF ISSUER TRUSTEES; APPOINTMENT OF SUCCESSORS
The holders of at least a majority in aggregate
Liquidation Amount of the outstanding Capital Securities may
remove an Issuer Trustee for cause or, if a Debenture Event of
Default has occurred and is continuing, with or without
cause. If an Issuer Trustee is removed by the holders of
the outstanding Capital Securities, the successor may be
appointed by the holders of at least 25% in Liquidation Amount
of Capital Securities. If an Issuer Trustee resigns, such
Issuer Trustee will appoint its successor. If an Issuer
Trustee fails to appoint a successor, the holders of at least
25% in Liquidation Amount of the outstanding Capital
Securities may appoint a successor. If a successor has not
been appointed by the holders, any holder of Capital
Securities or Common Securities or another Issuer Trustee may
petition a court of competent jurisdiction to appoint a
successor. Any Delaware Trustee must meet the applicable
requirements of Delaware law. Any Property Trustee must be a
national- or state-chartered bank, and at the time of
appointment have capital and surplus of at least
$50,000,000. No resignation or removal of an Issuer
Trustee and no appointment of a successor trustee shall be
effective until the acceptance of appointment by the successor
trustee in accordance with the provisions of the applicable
Trust Agreement.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any entity into which an Issuer Trustee may be merged or
converted or with which it may be consolidated, or any entity
resulting from any merger, conversion or consolidation to
which such Issuer Trustee is a party, or any entity succeeding
to all or substantially all the corporate trust business of such
Issuer Trustee, will be the successor of such Issuer Trustee
under each Trust Agreement, provided such entity is otherwise
qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE
ISSUER TRUSTS
An Issuer Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to, any
entity, except as described below or as otherwise set forth in
the applicable Trust Agreement. An Issuer Trust may, at the
request of the holders of the Common Securities and with the
consent of the holders of at least a majority in aggregate
Liquidation Amount of its outstanding Capital Securities, merge
with or into, consolidate, amalgamate, or be replaced by or
convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under
the laws of any State, so long as (i) such successor entity
either (a) expressly assumes all the obligations of the Issuer
Trust with respect to the Issuer Trust's Capital Securities
or (b) substitutes for the Issuer Trust's Capital
Securities other securities having substantially the same terms
as the Issuer Trust's Capital Securities (the "Successor
Securities") so long as the Successor Securities have the
same priority as the Issuer Trust's Capital Securities with
respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) a trustee of such successor
entity, possessing the same powers and duties as the Property
Trustee, is appointed to hold the corresponding Debt
Securities, (iii) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does
not cause the Issuer Trust's Capital Securities (including any
Successor Securities) to be downgraded by any nationally
recognized statistical rating organization, (iv) such merger,
consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and
privileges of the holders of the Issuer Trust's Capital
Securities (including any Successor Securities) in any material
respect, (v) such successor entity has a purpose substantially
identical to that of the Issuer Trust, (vi) prior to such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Issuer Trust has received an opinion
from independent counsel experienced in such matters to
the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of
the holders of the Issuer Trust's Capital Securities (including
any Successor Securities) in any material respect and (b)
following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Issuer
Trust nor such successor entity will be required to register as
an investment company under the Investment Company Act, and
(vii) the Company or any permitted successor or assignee
owns, directly or indirectly, all the common securities of
such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to
the extent provided by the related Guarantee. Notwithstanding
the foregoing, an Issuer Trust may not, except with the
consent of holders of 100% in aggregate Liquidation Amount
of the Issuer Trust's Capital Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as
an entirety to, any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Issuer Trust or
the successor entity to be taxable as a corporation for
United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENTS
Except as provided below and under "--Removal of
Issuer Trustees; Appointment of Successors" and "Description
of Guarantees--Amendments and Assignment" and as otherwise
required by law and the applicable Trust Agreement, the
holders of the Capital Securities will have no voting rights.
Each Trust Agreement may be amended from time to time by
the holders of a majority in aggregate Liquidation Amount of
the Common Securities and the Property Trustee, without the
consent of the holders of the Capital Securities, (i) to
cure any ambiguity, correct or supplement any provisions in
such Trust Agreement that may be inconsistent with any other
provision, or to make any other provisions with respect to
matters or questions arising under such Trust Agreement,
provided that any such amendment does not adversely affect
in any material respect the interests of any holder of Trust
Securities, or (ii) to modify, eliminate or add to any
provisions of such Trust Agreement to such extent as may be
necessary to ensure that the Issuer Trust will not be taxable
as a corporation for United States federal income tax purposes
at any time that any Trust Securities are outstanding or to
ensure that the Issuer Trust will not be required to
register as an "investment company" under the Investment
Company Act, and any such amendments of such Trust
Agreement will become effective when notice of such amendment
is given to the holders of Trust Securities. Each Trust
Agreement may be amended by the holders of a majority in
aggregate Liquidation Amount of the Common Securities and the
Property Trustee with (i) the consent of holders representing
not less than a majority in aggregate Liquidation Amount of the
outstanding Capital Securities and (ii) receipt by the Issuer
Trustees of an opinion of counsel to the effect that such
amendment or the exercise of any power granted to the Issuer
Trustees in accordance with such amendment will not cause the
Issuer Trust to be taxable as a corporation for United States
federal income tax purposes or affect the Issuer Trust's
exemption from status as an "investment company" under the
Investment Company Act, except that, without the consent of
each holder of Trust Securities affected thereby, a Trust
Agreement may not be amended to (i) change the amount or
timing of any Distribution on the Trust Securities or
otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of
a specified date or (ii) restrict the right of a holder of
Trust Securities to institute suit for the enforcement of any
such payment on or after such date.
So long as any Debt Securities are held by an Issuer Trust,
the Property Trustee will not (i) direct the time, method and
place of conducting any proceeding for any remedy available
to the Debt Securities Trustee, or execute any trust or
power conferred on the Property Trustee with respect to the
Debt Securities, (ii) waive any past default that may be
waived under Section 5.10 of such applicable Indenture,
(iii) exercise any right to rescind or annul a declaration
that the principal amount of such Debt Securities shall be
due and payable or (iv) consent to any amendment,
modification or termination of such Indenture or Debt
Securities, where such consent shall be required, without, in
each case, obtaining the prior approval of the holders of at
least a majority in aggregate Liquidation Amount of the
outstanding Capital Securities, except that, if a consent under
such Indenture would require the consent of each holder of
such Debt Securities affected thereby, no such consent will
be given by the Property Trustee without the prior consent
of each holder of such Capital Securities. The Property
Trustee may not revoke any action previously authorized or
approved by a vote of the holders of such Capital Securities
except by subsequent vote of the holders of Capital Securities
issued by such Issuer Trust. The Property Trustee will notify
each holder of such Capital Securities of any notice of default
with respect to such Debt Securities. In addition to obtaining
the foregoing approvals of the holders of such Capital
Securities, before taking any of the foregoing actions, the
Property Trustee will obtain an opinion of counsel experienced
in such matters to the effect that the Issuer Trust will not be
taxable as a corporation for United States federal income tax
purposes on account of such action.
Any required approval of holders of Capital Securities may
be given at a meeting of holders of Capital Securities
convened for such purpose or pursuant to written consent.
The Property Trustee will cause a notice of any meeting at which
holders of Capital Securities are entitled to vote, or of any
matter upon which action by written consent of such holders
is to be taken, to be given to each registered holder of
Capital Securities in the manner set forth in each Trust
Agreement.
No vote or consent of the holders of Capital Securities will
be required to redeem and cancel Capital Securities in
accordance with the applicable Trust Agreement.
Notwithstanding that holders of Capital Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Capital Securities that are owned
by the Company, the Issuer Trustees or any affiliate of
the Company or any Issuer Trustees, will, for purposes of such
vote or consent, be treated as if they were not outstanding.
EXPENSES AND TAXES
In connection with the Debt Securities owned by an
Issuer Trust, the Company, as borrower, will agree to pay all
debts and other obligations (other than with respect to the
Capital Securities issued by such Issuer Trust) and all costs
and expenses of such Issuer Trust (including costs and expenses
relating to the organization of such Issuer Trust, the fees
and expenses of the Issuer Trustees for such Issuer Trust and
the costs and expenses relating to the operation of such
Issuer Trust) and to pay any and all taxes and all costs and
expenses with respect thereto (other than United States
withholding taxes) to which such Issuer Trust might become
subject. The foregoing obligations of the Company under the
Debt Securities owned by an Issuer Trust are for the benefit of,
and shall be enforceable by, any person to whom any such debts,
obligations, costs, expenses and taxes are owed (a "Creditor")
whether or not such Creditor has received notice thereof. Any
such Creditor may enforce such obligations of the Company
directly against the Company, and the Company will irrevocably
waive any right or remedy to require that any such Creditor
take any action against such Issuer Trust or any other person
before proceeding against the Company. The Company will also
agree in the Debt Securities owned by an Issuer Trust to
execute such additional agreements as may be necessary or
desirable to give full effect to the foregoing.
PAYMENT AND PAYING AGENCY
The applicable Prospectus Supplement will specify the
manner in which payments in respect of the Capital Securities
will be made. The paying agent (the "Paying Agent") for
Capital Securities will initially be the Property Trustee and
any co-paying agent chosen by the Property Trustee and acceptable
to the Administrators. The Paying Agent will be permitted
to resign as Paying Agent upon 30 days' written notice to
the Property Trustee and the Administrators. If the Property
Trustee is no longer the Paying Agent, the Property Trustee
will appoint a successor (which must be a bank or trust
company reasonably acceptable to the Administrators) to act as
Paying Agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable Prospectus
Supplement, the Property Trustee will act as registrar and
transfer agent for the Capital Securities.
Registration of transfers of Capital Securities will be
effected without charge by or on behalf of each Issuer Trust,
but upon payment of any tax or other governmental charges
that may be imposed in connection with any transfer or
exchange. The Issuer Trusts will not be required to register or
cause to be registered the transfer of their Capital Securities
after such Capital Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and
continuance of a Capital Securities Event of Default,
undertakes to perform only such duties as are specifically set
forth in each Trust Agreement and, after such Capital
Securities Event of Default, must exercise the same degree of
care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision,
the Property Trustee is under no obligation to exercise any of
the powers vested in it by the applicable Trust Agreement at
the request of any holder of Capital Securities unless it is
offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred thereby.
For information concerning the relationship between the
Property Trustee and the Company, see "Description of Debt
Securities--Concerning the Trustee."
MISCELLANEOUS
The Administrators and the Property Trustee are authorized
and directed to conduct the affairs of and to operate the Issuer
Trusts in such a way that the Issuer Trusts will not be deemed
to be an "investment company" required to be registered under
the Investment Company Act or taxable as a corporation for
United States federal income tax purposes and so that the Debt
Securities owned by the Issuer Trusts will be treated as
indebtedness of the Company for United States federal income
tax purposes. In this connection, the Property Trustee and the
holders of Common Securities are authorized to take any
action, not inconsistent with applicable law, the certificate
of trust of each Issuer Trust or each Trust Agreement, that the
Property Trustee and the holders of Common Securities determine
in their discretion to be necessary or desirable for such
purposes, as long as such action does not materially
adversely affect the interests of the holders of the
related Capital Securities.
Holders of the Capital Securities have no preemptive or
similar rights.
The Issuer Trusts may not borrow money or issue debt or
mortgage or pledge any of their assets.
GOVERNING LAW
Each Trust Agreement will be governed by and construed
in accordance with the laws of the State of Delaware.
GLOBAL SECURITIES
The registered Debt Securities and Capital Securities of
any series may be issued in the form of one or more fully
registered global Securities (a "Registered Global Security")
that will be deposited with a depository (a "Depository") or
with a nominee for a Depository identified in the Prospectus
Supplement relating to such series and registered in the
name of such Depository or nominee thereof. In such case,
one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of
the aggregate principal or face amount of outstanding
registered Securities of the series to be represented by
such Registered Global Securities. Unless and until it is
exchanged in whole for Securities in definitive registered
form, a Registered Global Security may not be transferred
except as a whole by the Depository for such Registered Global
Security to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of
such Depository or by such Depository or any such nominee to
a successor of such Depository or a nominee of such successor.
The specific terms of the depository arrangement with
respect to any portion of a series of Securities to be
represented by a Registered Global Security will be described
in the Prospectus Supplement relating to such series. The
Company anticipates that the following provisions will apply to
all depository arrangements.
Ownership of beneficial interests in a Registered Global
Security will be limited to persons that have accounts
with the Depository for such Registered Global Security
("participants") or persons that may hold interests through
participants. Upon the issuance of a Registered Global
Security, the Depository for such Registered Global Security
will credit, on its book-entry registration and transfer
system, the participants' accounts with the respective
principal or face amounts of the Securities represented by such
Registered Global Security beneficially owned by such
participants. The accounts to be credited shall be designated
by any dealers, underwriters or agents participating in the
distribution of such Securities. Ownership of beneficial
interests in such Registered Global Security will be shown on,
and the transfer of such ownership interests will be
effected only through, records maintained by the Depository
for such Registered Global Security (with respect to
interests of participants) and on the records of
participants (with respect to interests of persons
holding through participants). The laws of some states may
require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits
and such laws may impair the ability to own, transfer or pledge
beneficial interests in Registered Global Securities.
So long as the Depository for a Registered Global
Security, or its nominee, is the registered owner of such
Registered Global Security, such Depository or such nominee,
as the case may be, will be considered the sole owner or
holder of the Securities represented by such Registered
Global Security for all purposes under the applicable Indenture
or Trust Agreement. Except as set forth below, owners of
beneficial interests in a Registered Global Security will not
be entitled to have the Securities represented by such
Registered Global Security registered in their names, will not
receive or be entitled to receive physical delivery of such
Securities in definitive form and will not be considered the
owners or holders thereof under the applicable Indenture or
Trust Agreement. Accordingly, each person owning a beneficial
interest in a Registered Global Security must rely on the
procedures of the Depository for such Registered Global Security
and, if such person is not a participant, on the procedures
of the participant through which such person owns its interest,
to exercise any rights of a holder under the applicable
Indenture or Trust Agreement. The Company understands that
under existing industry practices, if it requests any action of
holders or if an owner of a beneficial interest in a Registered
Global Security desires to give or take any action which a
holder is entitled to give or take under the applicable
Indenture or Trust Agreement, the Depository for such
Registered Global Security would authorize the participants
holding the relevant beneficial interests to give or take such
action, and such participants would authorize beneficial owners
owning through such participants to give or take such action or
would otherwise act upon the instructions of beneficial owners
holding through them.
Principal, premium, if any, and interest payments on Debt
Securities, and any payments to holders with respect to
Capital Securities, represented by a Registered Global Security
registered in the name of a Depository or its nominee will be
made to such Depository or its nominee, as the case may be, as
the registered owner of such Registered Global Security.
None of the Company, the Debt Securities Trustees, the Issuer
Trustees or any other agent of the Company, agent of the
applicable Issuer Trust or agent of any such Trustees, as the
case may be, will have any responsibility or liability for any
aspect of the records relating to or payments made on
account of beneficial ownership interests in such Registered
Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company and the Issuer Trusts expect that the
Depository for any Securities represented by a Registered
Global Security, upon receipt of any payment of principal,
premium, interest or other distribution of underlying
securities to holders in respect of such Registered Global
Security, will immediately credit participants' accounts in
amounts proportionate to their respective beneficial interests
in such Registered Global Security as shown on the records of
such Depository. The Company and the Issuer Trusts also
expect that payments by participants to owners of beneficial
interests in such Registered Global Security held through
such participants will be governed by standing customer
instructions and customary practices, as is now the case with
the securities held for the accounts of customers in bearer
form or registered in "street name", and will be the
responsibility of such participants.
If the Depository for any Securities represented by a
Registered Global Security is at any time unwilling or unable
to continue as Depository or ceases to be a clearing agency
registered under the Exchange Act, and a successor Depository
registered as a clearing agency under the Exchange Act is not
appointed by the Company or the applicable Issuer Trust, as the
case may be, within 90 days, the Company or the applicable
Issuer Trust, as the case may be, will issue such Securities
in definitive form in exchange for such Registered Global
Security. In addition, the Company or the applicable Issuer
Trust, as the case may be, may at any time and in its sole
discretion determine not to have any of the Securities of a
series represented by one or more Registered Global Securities
and, in such event, will issue Securities of such series in
definitive form in exchange for all of the Registered Global
Security or Securities representing such Securities. Any
Securities issued in definitive form in exchange for a
Registered Global Security will be registered in such name or
names as the Depository shall instruct the relevant Trustee
or other relevant agent of the Company, the applicable
Issuer Trust or such Trustee. It is expected that such
instructions will be based upon directions received by the
Depository from participants with respect to ownership of
beneficial interests in such Registered Global Security.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Company
concurrently with the issuance by each Issuer Trust of its
Capital Securities for the benefit of the holders from time
to time of such Capital Securities. This summary of certain
provisions of the Guarantees does not purport to be
complete and is subject to, and qualified in its entirety by
reference to, all the provisions of each Guarantee, including
the definitions therein of certain terms. A copy of the form
of the Guarantee is available upon request from the Guarantee
Trustee. The Guarantee Trustee will hold each Guarantee for
the benefit of the holders of the related Issuer Trust's
Capital Securities.
GENERAL
Pursuant to a Guarantee, the Company will
irrevocably and unconditionally agree to pay in full, to the
extent set forth therein, the Guarantee Payments (as defined
below) to the holders of the Capital Securities covered
by such Guarantee, as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer Trust
that issued such Capital Securities may have or assert other
than the defense of payment. The following payments with respect
to Capital Securities, to the extent not paid by or on behalf
of the Issuer Trust that issued such Capital Securities (the
"Guarantee Payments"), will be subject to the Guarantee thereon:
(i) any accumulated and unpaid Distributions required to be
paid on such Capital Securities, to the extent that such
Issuer Trust has funds on hand available therefor at such time,
if any, (ii) the redemption price with respect to any Capital
Securities called for redemption, including all accumulated
and unpaid Distributions thereon (the "Redemption Price"), to
the extent that such Issuer Trust has funds on hand
available therefor at such time, and (iii) upon a voluntary
or involuntary dissolution, winding-up or liquidation of such
Issuer Trust (unless the Debt Securities owned by such Issuer
Trust are distributed to holders of such Capital Securities in
accordance with the terms thereof), the lesser of (a) the
aggregate of the Liquidation Amount and all accumulated and
unpaid Distributions to the date of payment, and (b) the amount
of assets of such Issuer Trust remaining available for
distribution to holders of Capital Securities on liquidation
of such Issuer Trust. The Company's obligation to make a
Guarantee Payment may be satisfied by direct payment of the
required amounts by the Company to the holders of the Capital
Securities or by causing the applicable Issuer Trust to pay
such amounts to such holders.
Each Guarantee will be an irrevocable guarantee of the
related Issuer Trust's obligations under the Capital
Securities covered thereby, but will apply only to the extent
that such Issuer Trust has funds sufficient to make such
payments, and is not a guarantee of collection.
If the Company does not make payments on the Debt Securities
owned by an Issuer Trust, such Issuer Trust will not be able to
pay any amounts payable in respect of its Capital
Securities and will not have funds legally available
therefor and, in such event, holders of the Capital
Securities would not be able to rely upon the Guarantee for
payment of such amounts. Each Guarantee will have the same
ranking as the Debt Securities owned by the Issuer Trust that
issues the Capital Securities covered thereby. See "--Status
of the Guarantees." No Guarantee will limit the incurrence
or issuance of other secured or unsecured debt of the Company.
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of
the Company and will rank pari passu in right of payment with
the Debt Securities owned by the Issuer Trust that issues the
Capital Securities covered thereby.
Each Guarantee will constitute a guarantee of payment
and not of collection (i.e., the guaranteed party may
institute a legal proceeding directly against the Company
to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other person or
entity). Each Guarantee will be held by the Guarantee
Trustee for the benefit of the holders of the related
Capital Securities. Each Guarantee will not be discharged
except by payment of the Guarantee Payments in full to the
extent not paid by the Issuer Trust or, if applicable,
distribution to the holders of the Capital Securities of the
Debt Securities owned by such Issuer Trust.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not
materially adversely affect the rights of holders of the
Capital Securities issued by an Issuer Trust (in which case no
vote will be required), the Guarantee that covers such
Capital Securities may not be amended without the prior approval
of the holders of not less than a majority of the aggregate
Liquidation Amount of such Capital Securities outstanding.
The manner of obtaining any such approval will be as set forth
under "Description of the Capital Securities--Voting Rights;
Amendment of Trust Agreements" and in the applicable
Prospectus Supplement. All guarantees and agreements
contained in each Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the
Company and shall inure to the benefit of the holders of the
covered Capital Securities then outstanding.
EVENTS OF DEFAULT
An event of default under each Guarantee will occur upon
the failure of the Company to perform any of its payment
obligations thereunder, or to perform any non-payment
obligation if such non-payment default remains unremedied
for 30 days. The holders of not less than a majority in
aggregate Liquidation Amount of the outstanding Capital
Securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of such Guarantee or to direct the
exercise of any trust or power conferred upon the Guarantee
Trustee under such Guarantee.
Any registered holder of Capital Securities may
institute a legal proceeding directly against the Company
to enforce its rights under the Guarantee thereon without
first instituting a legal proceeding against the Issuer Trust,
the Guarantee Trustee or any other person or entity.
The Company, as guarantor, is required to file
annually with the Guarantee Trustee a certificate as to
whether or not the Company is in compliance with all the
conditions and covenants applicable to it under the Guarantees.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and
continuance of a default by the Company in the performance of
any Guarantee, undertakes to perform only such duties as are
specifically set forth in the Guarantee and, after the
occurrence of an event of default with respect to the
Guarantee, must exercise the same degree of care and skill as
a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the Guarantee
Trustee is under no obligation to exercise any of the powers
vested in it by any Guarantee at the request of any holder of the
Capital Securities covered thereby unless it is offered
reasonable indemnity against the costs, expenses and liabilities
that might be incurred thereby.
For information concerning the relationship between the
Guarantee Trustee and the Company, see "Description of Debt
Securities--Concerning the Trustee."
TERMINATION OF THE GUARANTEE
Each Guarantee will terminate and be of no further force and
effect upon full payment of the Redemption Price of the
Capital Securities covered thereby, upon full payment of the
amounts payable with respect to such Capital Securities upon
liquidation of the related Issuer Trust or upon distribution
of the Debt Securities owned by such Issuer Trust to the holders
of such Capital Securities. Each Guarantee will continue to be
effective or will be reinstated, as the case may be, if at
any time any holder of such Capital Securities must repay
any sums with respect to such Capital Securities or such
Guarantee.
GOVERNING LAW
Each Guarantee will be governed by and construed in
accordance with the laws of the State of New York.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities and Equity Securities
and an Issuer Trust may sell the Capital Securities being
offered hereby in three ways: (i) through agents, (ii) through
underwriters and (iii) through dealers.
Offers to purchase Securities may be solicited by agents
designated by the Company and/or an Issuer Trust, as the case
may be, from time to time. Any such agent, who may be deemed
to be an underwriter as that term is defined in the
Securities Act, involved in the offer or sale of the
Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to
such agent will be set forth, in the Prospectus Supplement.
Any such agent will be acting on a reasonable efforts basis for
the period of its appointment or, if indicated in the
applicable Prospectus Supplement, on a firm commitment basis.
If any underwriters are utilized in the sale of the
Securities in respect of which this Prospectus is delivered,
the Company and/or an Issuer Trust, as the case may be, will
enter into an underwriting agreement with such underwriters
at the time of the sale to them and the names of the
underwriters and the terms of the transaction will be set
forth in the Prospectus Supplement, which will be used by the
underwriters to make resales of the Securities in respect of
which this Prospectus is delivered to the public.
If a dealer is utilized in the sale of the Securities in
respect of which the Prospectus is delivered, the Company
and/or an Issuer Trust, as the case may be, will sell such
Securities to the dealer, as principal. The dealer may then
resell such Securities to the public at varying prices to be
determined by such dealer at the time of resale.
In order to facilitate the offering of the Securities, the
underwriters may engage in transactions that stabilize, maintain
or otherwise affect the price of the Securities or any other
securities the prices of which may be used to determine
payments on such Securities. Specifically, the
underwriters may overallot in connection with the offering,
creating a short position in the Securities for their own
accounts. In addition, to cover overallotments or to
stabilize the price of the Securities or of any such other
securities, the underwriters may bid for, and purchase, the
Securities or any such other securities in the open market.
Finally, in any offering of the Securities through a
syndicate of underwriters, the underwriting syndicate may
reclaim selling concessions allowed to an underwriter or a
dealer for distributing the Securities in the offering if
the syndicate repurchases previously distributed Securities
in transactions to cover syndicate short positions, in
stabilization transactions or otherwise. Any of these
activities may stabilize or maintain the market price of
the Securities above independent market levels. The
underwriters are not required to engage in these activities,
and may end any of these activities at any time.
If so indicated in the Prospectus Supplement, the
Company and/or an Issuer Trust, as the case may be, will
authorize agents, underwriters or dealers to solicit offers
by certain purchasers to purchase Securities from the Company
at the public offering price set forth in the Prospectus
Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such
contracts will be subject to only those conditions set forth
in the Prospectus Supplement, and the Prospectus Supplement
will set forth the commission payable for solicitation of such
offers.
Any underwriter, agent or dealer utilized in the initial
offering of Securities will not confirm sales to accounts
over which it exercises discretionary authority without the
prior specific written approval of its customer.
VALIDITY OF SECURITIES
The validity of the Capital Securities will be passed on
for the Issuer Trusts by Richards, Layton & Finger, P.A. The
validity of the Equity Securities, the Debt Securities and the
Guarantees will be passed upon for the Company by Friday,
Eldredge & Clark, Little Rock, Arkansas. Certain legal matters
relating to the Securities will be passed upon for the
Underwriters by Simpson Thacher & Bartlett, 425 Lexington Avenue,
New York, New York 10017. William H. Sutton and Paul B. Benham
III, partners in Friday, Eldredge & Clark, beneficially own 4,000
and 2,000 shares, respectively, of the Company's Class A Common
Stock either directly or indirectly through segregated accounts
in a retirement plan maintained by the law firm. Additionally,
Mr. Sutton is a director of the Company. Simpson Thacher &
Bartlett from time to time acts as counsel in various matters for
the Company.
EXPERTS
The consolidated financial statements incorporated by
reference in this prospectus and the related financial statement
schedules incorporated by reference in this registration
statement have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports incorporated by reference in
this registration statement (which express an unqualified opinion
and include an explanatory paragraph relating to a change in
accounting for the impairment of long-lived assets and for long-
lived assets to be disposed of), and have been so included in
reliance upon the reports of such firm given upon their authority
as experts in accounting and auditing.
The consolidated financial statements of Mercantile Stores
Company, Inc. which are incorporated by reference in this Prospectus
have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and
are included herein in reliance upon the authority of said firm as
experts in giving said report.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and
distribution of the securities being registered, other than
underwriting compensation, are:
Securities and Exchange Commission Registration Fee .$ 590,000
Printing and Engraving Expenses . . . . . . . . . . 20,000
Legal Fees and Expenses . . . . . . . . . . . . .. 150,000
Accounting Fees and Expenses . . . . . . . . . . . . 40,000
Trustee Fees and Expenses . . . . . . . . . . . . 30,000
Rating Agency Fees and Expenses . . . . . . . . . 35,000
Blue Sky Fees and Expenses . . . . . . . . . . . . . 20,000
Miscellaneous . . . . . . . . . . . . . . . . . . . 15,000
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Total . . . . . . . . . . . . . . . . . . . .. . .$900,000
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law contains
detailed provisions for indemnification of directors and officers
of Delaware corporations against expenses, judgments, fines and
settlements in connection with litigation. Article NINTH,
Section 7 of the Company's Certificate of Incorporation and
Article III, Section 5 of the Company's By-Laws provide for
indemnification of the directors and officers of the Company
against certain liabilities.
ITEM 16. EXHIBITS.
Number Description
**1-a Form of Underwriting Agreement
Standard Provisions for Equity Securities,
Debt Securities and Capital Securities.
1-b Agency Agreement (to be filed on Form 8-K)
*4-a Restated Certificate of
Incorporation, as amended (previously filed
as an exhibit to Dillard's, Inc.'s Form 10-Q
for the quarter ended May 3, 1997 in 1-6140).
*4-b Bylaws as currently in effect
(previously filed as an exhibit to Dillard's,
Inc.'s Form 10-K for the fiscal year ended
January 30, 1993).
4-c Certificate of Trust of Dillard's Capital Trust I.
4-d Certificate of Trust of Dillard's Capital Trust II.
4-e Certificate of Trust of Dillard's Capital Trust III.
4-f Certificate of Trust of Dillard's Capital Trust IV.
4-g Certificate of Trust of Dillard's Capital Trust V.
4-h Trust Agreement of Dillard's Capital Trust I.
4-i Trust Agreement of Dillard's Capital Trust II.
4-j Trust Agreement of Dillard's Capital Trust III.
4-k Trust Agreement of Dillard's Capital Trust IV.
4-l Trust Agreement of Dillard's Capital Trust V.
**4-m Form of Amended and Restated Trust
Agreement to be used in connection with the
issuance of the Capital Securities.
*4-n Indenture dated as of May 15, 1988,
between the Company and The Chase Manhattan
Bank (formerly known as Chemical Bank),
Trustee (previously filed as an exhibit to
Dillard's, Inc.'s Registration Statement on
Form S-3, Registration No. 33-21671).
*4-o First Supplemental Indenture dated
as of December 16, 1988, between the Company
and The Chase Manhattan Bank (formerly known
as Chemical Bank), Trustee (previously filed
as an exhibit to Dillard's, Inc.'s
Registration Statement on Form S-3,
Registration No. 33-25114).
*4-p Second Supplemental Indenture dated
as of September 14, 1990, between the Company
and The Chase Manhattan Bank (formerly known
as Chemical Bank), Trustee (previously filed
as an exhibit to Dillard's, Inc.'s Current
Report on Form 8-K dated September 26, 1990
in 1-6140).
**4-q Form of Third Supplemental
Indenture between the Company and The Chase
Manhattan Bank.
**4-r Form of Subordinated Indenture
between the Company and The Chase Manhattan
Bank, Trustee, to be used in connection with
the issuance of the Subordinated Debentures
and the Capital Securities.
**4-s Form of Capital Security (included
in Exhibit 4-k).
**4-t Form of Subordinated Debenture.
**4-u Form of Capital Securities
Guarantee.
5-a Opinion of Friday, Eldredge & Clark.
**5-b Opinion of Richards, Layton &
Finger, P.A. with respect to Dillard's
Capital Trust I.
**5-c Opinion of Richards, Layton &
Finger, P.A. with respect to Dillard's
Capital Trust II.
**5-d Opinion of Richards, Layton &
Finger, P.A. with respect to Dillard's
Capital Trust III.
**5-e Opinion of Richards, Layton &
Finger, P.A. with respect to Dillard's
Capital Trust IV.
**5-f Opinion of Richards, Layton &
Finger, P.A. with respect to Dillard's
Capital Trust V.
**8 Tax Opinion of Simpson Thacher & Bartlett.
*12-a Statement regarding computation of
ratio of earnings to fixed charges of the
Company (previously filed as an exhibit to
Dillard's, Inc.'s Form 10-Q for the quarter
ended May 2, 1998 in 1-6140).
12-b Statement regarding
computation of ratio of earnings to fixed
charges and preferred stock dividends.
23-a Consent of Deloitte & Touche LLP.
23-b Consent of Arthur Andersen LLP
23-c Consent of Friday, Eldredge & Clark
(included in Exhibit 5-a).
23-d Consents of Richards, Layton & Finger, P.A.
(included in Exhibits 5-b to 5-f).
23-e Consent of Simpson Thacher & Bartlett
(included in Exhibit 8).
24 Powers of Attorney for the Company.
**25-a Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Senior Debt Indenture
**25-b Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Subordinated Debt Indenture.
**25-c Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Amended and Restated Trust Agreement of
Dillard's Capital Trust I.
**25-d Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Amended and Restated Trust Agreement of
Dillard's Capital Trust II.
**25-e Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Amended and Restated Trust Agreement of
Dillard's Capital Trust III.
**25-f Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Amended and Restated Trust Agreement of
Dillard's Capital Trust IV.
**25-g Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Amended and Restated Trust Agreement of
Dillard's Capital Trust V.
**25-h Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Capital Securities Guarantee of Dillard's,
Inc. with respect to the Capital Securities
of Dillard's Capital Trust I.
**25-i Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Capital Securities Guarantee of Dillard's,
Inc. with respect to the Capital Securities
of Dillard's Capital Trust II.
**25-j Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Capital Securities Guarantee of Dillard's,
Inc. with respect to the Capital Securities
of Dillard's Capital Trust III.
**25-k Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Capital Securities Guarantee of Dillard's,
Inc. with respect to the Capital Securities
of Dillard's Capital Trust IV.
**25-l Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Capital Securities Guarantee of Dillard's,
Inc. with respect to the Capital Securities
of Dillard's Capital Trust V.
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*Incorporated herein by reference as indicated.
**To be filed by amendment.
ITEM 17. UNDERTAKINGS.
a. 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 of 1933; (ii) to reflect in the
prospectus any facts or events arising after the effective date
of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement
(notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement); 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 (1)(i) and (1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those items is contained in
periodic reports filed with the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
b. The undersigned registrants hereby undertake that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 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.
c. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrants
pursuant to the foregoing provisions, or otherwise, the
registrants have been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is
against public policy as expressed in said Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by a registrant of expenses incurred or paid by a
director, officer or controlling person of such 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, such
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question
whether such indemnification by it is against policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
d. The undersigned registrants hereby undertake to
provide to the underwriters at the closing specified in
the underwriting agreements, certificates in such
denominations and registered in such names as required by the
underwriters to permit prompt delivery to each purchaser.
e. The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the registrants pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part
of this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933,
as amended, the Registrant certifies that it has reasonable
grounds to believe that it meets all 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 Little Rock, Arkansas, on this 15th
day of July, 1998.
DILLARD'S, INC.
By: /s/ James I. Freeman
James I. Freeman
Senior Vice President and
Chief Financial Officer
Pursuant to the requirement of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the
following persons in the capacities indicated on this 15th day of
July, 1998.
* Chairman of the Board and Director
(William Dillard)
* Director
(Calvin N. Clyde, Jr.)
* Director
(Robert C. Connor)
* Director
(Drue Corbusier)
* Director
(Will D. Davis)
* President and Director
(Alex Dillard)
* Executive Vice President and Director
(Mike Dillard)
* Chief Executive Officer and Director
(William Dillard II) (Principal Executive Officer)
/s/ James I. Freeman Senior Vice President, Chief
(James I. Freeman) Financial Officer and Director
(Principal Financial and
Accounting Officer)
* Director
(John Paul Hammerschmidt)
* Director
(William B. Harrison, Jr.)
* Director
(John H. Johnson)
* Director
(E. Ray Kemp, Jr.)
* Director
(Jackson T. Stephens)
* Director
(William H. Sutton)
*By: /s/ James I. Freeman
James I. Freeman
(Attorney-in-Fact)
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Dillard's Capital Trust I, Dillard's Capital Trust II, Dillard's
Capital Trust III, Dillard's Capital Trust IV and Dillard's
Capital Trust V each 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 Amendment to the registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Little Rock,
Arkansas this 15th day of July, 1998.
DILLARD'S CAPITAL TRUST I
By: Dillard's, Inc.
By: /s/ James I. Freeman
Senior Vice President and
Chief Financial Officer
DILLARD'S CAPITAL TRUST II
By: Dillard's, Inc.
By: /s/ James I. Freeman
Senior Vice President and
Chief Financial Officer
DILLARD'S CAPITAL TRUST III
By: Dillard's, Inc.
By: /s/ James I. Freeman
Senior Vice President and
Chief Financial Officer
DILLARD'S CAPITAL TRUST IV
By: Dillard's, Inc.
By: /s/ James I. Freeman
Senior Vice President and
Chief Financial Officer
DILLARD'S CAPITAL TRUST V
By: Dillard's, Inc.
By: /s/ James I. Freeman
Senior Vice President and
Chief Financial Officer
EXHIBIT INDEX
Number Description
**1-a Form of Underwriting Agreement
Standard Provisions for Equity Securities,
Debt Securities and Capital Securities.
1-b Agency Agreement (to be filed on
Form 8-K)
*4-a Restated Certificate of
Incorporation, as amended (previously filed
as an exhibit to Dillard's, Inc.'s Form 10-Q
for the quarter ended May 3, 1997 in 1-6140).
*4-b Bylaws as currently in effect
(previously filed as an exhibit to Dillard's,
Inc.'s Form 10-K for the fiscal year ended
January 30, 1993).
4-c Certificate of Trust of Dillard's Capital Trust I.
4-d Certificate of Trust of Dillard's Capital Trust II.
4-e Certificate of Trust of Dillard's Capital Trust III.
4-f Certificate of Trust of Dillard's Capital Trust IV.
4-g Certificate of Trust of Dillard's Capital Trust V.
4-h Trust Agreement of Dillard's Capital Trust I.
4-i Trust Agreement of Dillard's Capital Trust II.
4-j Trust Agreement of Dillard's Capital Trust III.
4-k Trust Agreement of Dillard's Capital Trust IV.
4-l Trust Agreement of Dillard's Capital Trust V.
**4-m Form of Amended and Restated Trust
Agreement to be used in connection with the
issuance of the Capital Securities.
*4-n Indenture dated as of May 15, 1988,
between the Company and The Chase Manhattan
Bank (formerly known as Chemical Bank),
Trustee (previously filed as an exhibit to
Dillard's, Inc.'s Registration Statement on
Form S-3, Registration No. 33-21671).
*4-o First Supplemental Indenture dated
as of December 16, 1988, between the Company
and The Chase Manhattan Bank (formerly known
as Chemical Bank), Trustee (previously filed
as an exhibit to Dillard's, Inc.'s
Registration Statement on Form S-3,
Registration No. 33-25114).
*4-p Second Supplemental Indenture dated
as of September 14, 1990, between the Company
and The Chase Manhattan Bank (formerly known
as Chemical Bank), Trustee (previously filed
as an exhibit to Dillard's, Inc.'s Current
Report on Form 8-K dated September 26, 1990
in 1-6140).
**4-q Form of Third Supplemental
Indenture between the Company and The Chase
Manhattan Bank.
**4-r Form of Subordinated Indenture
between the Company and The Chase Manhattan
Bank, Trustee, to be used in connection with
the issuance of the Subordinated Debentures
and the Capital Securities.
**4-s Form of Capital Security (included in Exhibit 4-k).
**4-t Form of Subordinated Debenture.
**4-u Form of Capital Securities Guarantee.
5-a Opinion of Friday, Eldredge & Clark.
**5-b Opinion of Richards, Layton &
Finger, P.A. with respect to Dillard's
Capital Trust I.
**5-c Opinion of Richards, Layton &
Finger, P.A. with respect to Dillard's
Capital Trust II.
**5-d Opinion of Richards, Layton &
Finger, P.A. with respect to Dillard's
Capital Trust III.
**5-e Opinion of Richards, Layton &
Finger, P.A. with respect to Dillard's
Capital Trust IV.
**5-f Opinion of Richards, Layton &
Finger, P.A. with respect to Dillard's
Capital Trust V.
**8 Tax Opinion of Simpson Thacher & Bartlett.
*12-a Statement regarding computation of
ratio of earnings to fixed charges of the
Company (previously filed as an exhibit to
Dillard's, Inc.'s Form 10-Q for the quarter
ended May 2, 1998 in 1-6140).
12-b Statement regarding
computation of ratio of earnings to fixed
charges and preferred stock dividends.
23-a Consent of Deloitte & Touche LLP.
23-b Consent of Arthur Andersen LLP
23-c Consent of Friday, Eldredge & Clark
(included in Exhibit 5-a).
23-d Consents of Richards, Layton & Finger, P.A.
(included in Exhibits 5-b to 5-f).
23-e Consent of Simpson Thacher &
Bartlett (included in Exhibit 8).
24 Powers of Attorney for the Company.
**25-a Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Senior Debt Indenture
**25-b Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Subordinated Debt Indenture.
**25-c Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Amended and Restated Trust Agreement of
Dillard's Capital Trust I.
**25-d Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Amended and Restated Trust Agreement of
Dillard's Capital Trust II.
**25-e Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Amended and Restated Trust Agreement of
Dillard's Capital Trust III.
**25-f Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Amended and Restated Trust Agreement of
Dillard's Capital Trust IV.
**25-g Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Amended and Restated Trust Agreement of
Dillard's Capital Trust V.
**25-h Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Capital Securities Guarantee of Dillard's,
Inc. with respect to the Capital Securities
of Dillard's Capital Trust I.
**25-i Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Capital Securities Guarantee of Dillard's,
Inc. with respect to the Capital Securities
of Dillard's Capital Trust II.
**25-j Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Capital Securities Guarantee of Dillard's,
Inc. with respect to the Capital Securities
of Dillard's Capital Trust III.
**25-k Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Capital Securities Guarantee of Dillard's,
Inc. with respect to the Capital Securities
of Dillard's Capital Trust IV.
**25-l Statement of Eligibility of The
Chase Manhattan Bank, Trustee under the
Capital Securities Guarantee of Dillard's,
Inc. with respect to the Capital Securities
of Dillard's Capital Trust V.
- ------------------------------
*Incorporated herein by reference as indicated.
**To be filed by amendment.
Exhibit 4-c
CERTIFICATE OF TRUST OF
DILLARD'S CAPITAL TRUST I
THIS Certificate of Trust of Dillard's Capital Trust I
(the "Trust") is being duly executed and filed on behalf of the
Trust by the undersigned, as trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. C. Sec 3801 et seq.)
(the "Act").
1. Name. The name of the business trust formed by
this Certificate of Trust is Dillard's Capital Trust I.
2. Delaware Trustee. The name and business address
of the trustee of the Trust in the State of Delaware are Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware
19801, Attention: Corporate Trustee Administration.
3. Effective Date. This Certificate of Trust shall
be effective upon filing.
IN WITNESS WHEREOF, the undersigned has duly executed
this Certificate of Trust in accordance with Section 3811(a)(1)
of the Act.
CHASE MANHATTAN BANK DELAWARE, not
in its individual capacity but
solely as Delaware Trustee
By: /s/ Denis Kelly
Name: Denis Kelly
Title: Trust Officer
Exhibit 4-d
CERTIFICATE OF TRUST OF
DILLARD'S CAPITAL TRUST II
THIS Certificate of Trust of Dillard's Capital Trust II
(the "Trust") is being duly executed and filed on behalf of the
Trust by the undersigned, as trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. C. Sec 3801 et seq.)
(the "Act").
1. Name. The name of the business trust formed by
this Certificate of Trust is Dillard's Capital Trust II.
2. Delaware Trustee. The name and business address
of the trustee of the Trust in the State of Delaware are Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware
19801, Attention: Corporate Trustee Administration.
3. Effective Date. This Certificate of Trust shall
be effective upon filing.
IN WITNESS WHEREOF, the undersigned has duly executed
this Certificate of Trust in accordance with Section 3811(a)(1)
of the Act.
CHASE MANHATTAN BANK DELAWARE, not
in its individual capacity but
solely as Delaware Trustee
By: /s/ Denis Kelly
Name: Denis Kelly
Title: Loan Officer
Exhibit 4-e
CERTIFICATE OF TRUST OF
DILLARD'S CAPITAL TRUST III
THIS Certificate of Trust of Dillard's Capital Trust III
(the "Trust") is being duly executed and filed on behalf of the
Trust by the undersigned, as trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. C. Sec 3801 et seq.)
(the "Act").
1. Name. The name of the business trust formed by
this Certificate of Trust is Dillard's Capital Trust III.
2. Delaware Trustee. The name and business address
of the trustee of the Trust in the State of Delaware are Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware
19801, Attention: Corporate Trustee Administration.
3. Effective Date. This Certificate of Trust shall
be effective upon filing.
IN WITNESS WHEREOF, the undersigned has duly executed
this Certificate of Trust in accordance with Section 3811(a)(1)
of the Act.
CHASE MANHATTAN BANK DELAWARE, not
in its individual capacity but
solely as Delaware Trustee
By: /s/ Denis Kelly
Name: Denis Kelly
Title: Loan Officer
Exhibit 4-f
CERTIFICATE OF TRUST OF
DILLARD'S CAPITAL TRUST IV
THIS Certificate of Trust of Dillard's Capital Trust IV
(the "Trust") is being duly executed and filed on behalf of
the Trust by the undersigned, as trustee, to form a business
trust under the Delaware Business Trust Act (12 Del. C. Sec 3801 et
seq.) (the "Act").
1. Name. The name of the business trust formed by
this Certificate of Trust is Dillard's Capital Trust IV.
2. Delaware Trustee. The name and business address
of the trustee of the Trust in the State of Delaware are Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware
19801, Attention: Corporate Trustee Administration.
3. Effective Date. This Certificate of Trust shall
be effective upon filing.
IN WITNESS WHEREOF, the undersigned has duly executed
this Certificate of Trust in accordance with Section 3811(a)(1)
of the Act.
CHASE MANHATTAN BANK DELAWARE, not
in its individual capacity but
solely as Delaware Trustee
By: /s/ Denis Kelly
Name: Denis Kelly
Title: Trust Officer
Exhibit 4-g
CERTIFICATE OF TRUST OF
DILLARD'S CAPITAL TRUST V
THIS Certificate of Trust of Dillard's Capital Trust V
(the "Trust") is being duly executed and filed on behalf of the
Trust by the undersigned, as trustee, to form a business trust
under the Delaware Business Trust Act (12 Del. C. Sec 3801 et seq.)
(the "Act").
1. Name. The name of the business trust formed by
this Certificate of Trust is Dillard's Capital Trust V.
2. Delaware Trustee. The name and business address
of the trustee of the Trust in the State of Delaware are Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware
19801, Attention: Corporate Trustee Administration.
3. Effective Date. This Certificate of Trust shall
be effective upon filing.
IN WITNESS WHEREOF, the undersigned has duly executed
this Certificate of Trust in accordance with Section 3811(a)(1)
of the Act.
CHASE MANHATTAN BANK DELAWARE, not
in its individual capacity but
solely as Delaware Trustee
By: /s/ Denis Kelly
Name: Denis Kelly
Title: Trust Officer
Exhibit 4-h
TRUST AGREEMENT
TRUST AGREEMENT, dated as of July 14, 1998 (the "Trust
Agreement"), between Dillard's, Inc., a Delaware corporation (the
"Depositor"), and Chase Manhattan Bank Delaware, a Delaware
banking corporation, as Delaware Trustee (the "Delaware
Trustee"). The Depositor and the Delaware Trustee hereby agree
as follows:
1. The trust created hereby (the "Trust") shall be known as
"Dillard's Capital Trust I" in which name the Delaware Trustee,
or the Depositor to the extent provided herein, may engage in the
transactions contemplated hereby, make and execute contracts, and
sue and be sued.
2. The Depositor hereby assigns, transfers conveys and sets
over to the Delaware Trustee the sum of $10. The Delaware
Trustee hereby acknowledges receipt of such amount in trust from
the Depositor, which amount shall constitute the initial trust
estate. The Delaware Trustee hereby declares that it will hold
the trust estate in trust for the Depositor. It is the intention
of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. Sec 3801, et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust.
The Delaware Trustee is hereby authorized and directed to execute
and file a certificate of trust in the form of exhibit A attached
hereto with the Delaware Secretary of State in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Delaware Trustee will enter into an
amended and restated Trust Agreement, satisfactory to each such
party and substantially in the form included as an exhibit to the
1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and
the issuance of the Capital Securities and Common Securities
referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Delaware Trustee shall
not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Delaware Trustee hereby authorize and
direct the Depositor, as the sponsor of the Trust, (i) to file
with the Securities and Exchange Commission (the "Commission")
and execute, in each case on behalf of the Trust, (a) the
Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to
the registration under the Securities Act of 1933, as amended, of
the Capital Securities of the Trust and possibly certain other
securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the
registration of the Capital Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with
the New York Stock Exchange or any other national stock exchange
or The Nasdaq National Market (each, an "Exchange") and execute
on behalf of the Trust one or more listing applications and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the
Capital Securities to be listed on any of the Exchanges; (iii) to
file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as
shall be necessary or desirable to register the Capital
Securities under the securities or blue sky laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable and (iv) to execute on behalf of the Trust
that certain Underwriting Agreement relating to the Capital
Securities, among the Trust, the Depositor and the several
Underwriters named therein, substantially in the form included as
an exhibit to the 1933 Act Registration Statement. In the event
that any filing referred to in clauses (i), (ii) and (iii) above
is required by the rules and regulations of the Commission, an
Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by the Delaware Trustee, the Delaware
Trustee, in its capacity as a Trustee of the Trust, is hereby
authorized and, to the extent so required, directed to join in
any such filing and to execute on behalf of the Trust any and all
of the foregoing, it being understood that the Delaware Trustee,
in its capacity as a Trustee of the Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws.
In connection with the filings referred to above, the Depositor,
hereby constitutes and appoints James I. Freeman, as its true and
lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act
Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Commission, the Exchange and administrators of state securities
or blue sky laws, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor might or
could to in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be one (1) and
thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of Trustees;
provided, however, that to the extent required by the Business
Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any
time. The Delaware Trustee may resign upon thirty (30) days'
prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without
regard to conflict of laws of principles).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
DILLARD'S, INC., as Depositor
By: /s/ John Hawkins
Name: John Hawkins
Title: Vice President,
Treasurer and
Assistant Secretary
CHASE MANHATTAN BANK
DELAWARE, as Delaware Trustee
By: /s/ Denis Kelly
Name: Denis Kelly
Title: Trust Officer
Exhibit 4-i
TRUST AGREEMENT
TRUST AGREEMENT, dated as of July 14, 1998 (the "Trust
Agreement"), between Dillard's, Inc., a Delaware corporation (the
"Depositor"), and Chase Manhattan Bank Delaware, a Delaware
banking corporation, as Delaware Trustee (the "Delaware
Trustee"). The Depositor and the Delaware Trustee hereby agree
as follows:
1. The trust created hereby (the "Trust") shall be known as
"Dillard's Capital Trust II" in which name the Delaware Trustee,
or the Depositor to the extent provided herein, may engage in the
transactions contemplated hereby, make and execute contracts, and
sue and be sued.
2. The Depositor hereby assigns, transfers conveys and sets
over to the Delaware Trustee the sum of $10. The Delaware
Trustee hereby acknowledges receipt of such amount in trust from
the Depositor, which amount shall constitute the initial trust
estate. The Delaware Trustee hereby declares that it will hold
the trust estate in trust for the Depositor. It is the intention
of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. Sec 3801, et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust.
The Delaware Trustee is hereby authorized and directed to execute
and file a certificate of trust in the form of exhibit A attached
hereto with the Delaware Secretary of State in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Delaware Trustee will enter into an
amended and restated Trust Agreement, satisfactory to each such
party and substantially in the form included as an exhibit to the
1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and
the issuance of the Capital Securities and Common Securities
referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Delaware Trustee shall
not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Delaware Trustee hereby authorize and
direct the Depositor, as the sponsor of the Trust, (i) to file
with the Securities and Exchange Commission (the "Commission")
and execute, in each case on behalf of the Trust, (a) the
Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to
the registration under the Securities Act of 1933, as amended, of
the Capital Securities of the Trust and possibly certain other
securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the
registration of the Capital Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with
the New York Stock Exchange or any other national stock exchange
or The Nasdaq National Market (each, an "Exchange") and execute
on behalf of the Trust one or more listing applications and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the
Capital Securities to be listed on any of the Exchanges; (iii) to
file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as
shall be necessary or desirable to register the Capital
Securities under the securities or blue sky laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable and (iv) to execute on behalf of the Trust
that certain Underwriting Agreement relating to the Capital
Securities, among the Trust, the Depositor and the several
Underwriters named therein, substantially in the form included as
an exhibit to the 1933 Act Registration Statement. In the event
that any filing referred to in clauses (i), (ii) and (iii) above
is required by the rules and regulations of the Commission, an
Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by the Delaware Trustee, the Delaware
Trustee, in its capacity as a Trustee of the Trust, is hereby
authorized and, to the extent so required, directed to join in
any such filing and to execute on behalf of the Trust any and all
of the foregoing, it being understood that the Delaware Trustee,
in its capacity as a Trustee of the Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws.
In connection with the filings referred to above, the Depositor,
hereby constitutes and appoints James I. Freeman, as its true and
lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act
Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Commission, the Exchange and administrators of state securities
or blue sky laws, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor might or
could to in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be one (1) and
thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of Trustees;
provided, however, that to the extent required by the Business
Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any
time. The Delaware Trustee may resign upon thirty (30) days'
prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without
regard to conflict of laws of principles).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
DILLARD'S, INC., as Depositor
By: /s/ John Hawkins
Name: John Hawkins
Title: Vice President,
Treasurer and
Assistant Secretary
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ Denis Kelly
Name: Denis Kelly
Title: Trust Officer
Exhibit 4-j
TRUST AGREEMENT
TRUST AGREEMENT, dated as of July 14, 1998 (the "Trust
Agreement"), between Dillard's, Inc., a Delaware corporation (the
"Depositor"), and Chase Manhattan Bank Delaware, a Delaware
banking corporation, as Delaware Trustee (the "Delaware
Trustee"). The Depositor and the Delaware Trustee hereby agree
as follows:
1. The trust created hereby (the "Trust") shall be known as
"Dillard's Capital Trust III" in which name the Delaware Trustee,
or the Depositor to the extent provided herein, may engage in the
transactions contemplated hereby, make and execute contracts, and
sue and be sued.
2. The Depositor hereby assigns, transfers conveys and sets
over to the Delaware Trustee the sum of $10. The Delaware
Trustee hereby acknowledges receipt of such amount in trust from
the Depositor, which amount shall constitute the initial trust
estate. The Delaware Trustee hereby declares that it will hold
the trust estate in trust for the Depositor. It is the intention
of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. Sec 3801, et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust.
The Delaware Trustee is hereby authorized and directed to execute
and file a certificate of trust in the form of exhibit A attached
hereto with the Delaware Secretary of State in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Delaware Trustee will enter into an
amended and restated Trust Agreement, satisfactory to each such
party and substantially in the form included as an exhibit to the
1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and
the issuance of the Capital Securities and Common Securities
referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Delaware Trustee shall
not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Delaware Trustee hereby authorize and
direct the Depositor, as the sponsor of the Trust, (i) to file
with the Securities and Exchange Commission (the "Commission")
and execute, in each case on behalf of the Trust, (a) the
Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to
the registration under the Securities Act of 1933, as amended, of
the Capital Securities of the Trust and possibly certain other
securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the
registration of the Capital Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with
the New York Stock Exchange or any other national stock exchange
or The Nasdaq National Market (each, an "Exchange") and execute
on behalf of the Trust one or more listing applications and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the
Capital Securities to be listed on any of the Exchanges; (iii) to
file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as
shall be necessary or desirable to register the Capital
Securities under the securities or blue sky laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable and (iv) to execute on behalf of the Trust
that certain Underwriting Agreement relating to the Capital
Securities, among the Trust, the Depositor and the several
Underwriters named therein, substantially in the form included as
an exhibit to the 1933 Act Registration Statement. In the event
that any filing referred to in clauses (i), (ii) and (iii) above
is required by the rules and regulations of the Commission, an
Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by the Delaware Trustee, the Delaware
Trustee, in its capacity as a Trustee of the Trust, is hereby
authorized and, to the extent so required, directed to join in
any such filing and to execute on behalf of the Trust any and all
of the foregoing, it being understood that the Delaware Trustee,
in its capacity as a Trustee of the Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws.
In connection with the filings referred to above, the Depositor,
hereby constitutes and appoints James I. Freeman, as its true and
lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act
Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Commission, the Exchange and administrators of state securities
or blue sky laws, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor might or
could to in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be one (1) and
thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of Trustees;
provided, however, that to the extent required by the Business
Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any
time. The Delaware Trustee may resign upon thirty (30) days'
prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without
regard to conflict of laws of principles).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
DILLARD'S, INC., as Depositor
By: /s/ John Hawkins
Name: John Hawkins
Title: Vice President,
Treasurer and
Assistant Secretary
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ Denis Kelly
Name: Denis Kelly
Title: Trust Officer
Exhibit 4-k
TRUST AGREEMENT
TRUST AGREEMENT, dated as of July 14, 1998 (the "Trust
Agreement"), between Dillard's, Inc., a Delaware corporation (the
"Depositor"), and Chase Manhattan Bank Delaware, a Delaware
banking corporation, as Delaware Trustee (the "Delaware
Trustee"). The Depositor and the Delaware Trustee hereby agree
as follows:
1. The trust created hereby (the "Trust") shall be known as
"Dillard's Capital Trust IV" in which name the Delaware Trustee,
or the Depositor to the extent provided herein, may engage in the
transactions contemplated hereby, make and execute contracts, and
sue and be sued.
2. The Depositor hereby assigns, transfers conveys and sets
over to the Delaware Trustee the sum of $10. The Delaware
Trustee hereby acknowledges receipt of such amount in trust from
the Depositor, which amount shall constitute the initial trust
estate. The Delaware Trustee hereby declares that it will hold
the trust estate in trust for the Depositor. It is the intention
of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. Sec 3801, et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust.
The Delaware Trustee is hereby authorized and directed to execute
and file a certificate of trust in the form of exhibit A attached
hereto with the Delaware Secretary of State in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Delaware Trustee will enter into an
amended and restated Trust Agreement, satisfactory to each such
party and substantially in the form included as an exhibit to the
1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and
the issuance of the Capital Securities and Common Securities
referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Delaware Trustee shall
not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Delaware Trustee hereby authorize and
direct the Depositor, as the sponsor of the Trust, (i) to file
with the Securities and Exchange Commission (the "Commission")
and execute, in each case on behalf of the Trust, (a) the
Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to
the registration under the Securities Act of 1933, as amended, of
the Capital Securities of the Trust and possibly certain other
securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the
registration of the Capital Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with
the New York Stock Exchange or any other national stock exchange
or The Nasdaq National Market (each, an "Exchange") and execute
on behalf of the Trust one or more listing applications and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the
Capital Securities to be listed on any of the Exchanges; (iii) to
file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as
shall be necessary or desirable to register the Capital
Securities under the securities or blue sky laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable and (iv) to execute on behalf of the Trust
that certain Underwriting Agreement relating to the Capital
Securities, among the Trust, the Depositor and the several
Underwriters named therein, substantially in the form included as
an exhibit to the 1933 Act Registration Statement. In the event
that any filing referred to in clauses (i), (ii) and (iii) above
is required by the rules and regulations of the Commission, an
Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by the Delaware Trustee, the Delaware
Trustee, in its capacity as a Trustee of the Trust, is hereby
authorized and, to the extent so required, directed to join in
any such filing and to execute on behalf of the Trust any and all
of the foregoing, it being understood that the Delaware Trustee,
in its capacity as a Trustee of the Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws.
In connection with the filings referred to above, the Depositor,
hereby constitutes and appoints James I. Freeman, as its true and
lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act
Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Commission, the Exchange and administrators of state securities
or blue sky laws, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor might or
could to in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be one (1) and
thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of Trustees;
provided, however, that to the extent required by the Business
Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any
time. The Delaware Trustee may resign upon thirty (30) days'
prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without
regard to conflict of laws of principles).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
DILLARD'S, INC., as Depositor
By: /s/ John Hawkins
Name: John Hawkins
Title: Vice President,
Treasurer and
Assistant Secretary
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ Denis Kelly
Name: Denis Kelly
Title: Trust Officer
Exhibit 4-l
TRUST AGREEMENT
TRUST AGREEMENT, dated as of July 14, 1998 (the "Trust
Agreement"), between Dillard's, Inc., a Delaware corporation (the
"Depositor"), and Chase Manhattan Bank Delaware, a Delaware
banking corporation, as Delaware Trustee (the "Delaware
Trustee"). The Depositor and the Delaware Trustee hereby agree
as follows:
1. The trust created hereby (the "Trust") shall be known as
"Dillard's Capital Trust V" in which name the Delaware Trustee,
or the Depositor to the extent provided herein, may engage in the
transactions contemplated hereby, make and execute contracts, and
sue and be sued.
2. The Depositor hereby assigns, transfers conveys and sets
over to the Delaware Trustee the sum of $10. The Delaware
Trustee hereby acknowledges receipt of such amount in trust from
the Depositor, which amount shall constitute the initial trust
estate. The Delaware Trustee hereby declares that it will hold
the trust estate in trust for the Depositor. It is the intention
of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. Sec 3801, et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust.
The Delaware Trustee is hereby authorized and directed to execute
and file a certificate of trust in the form of exhibit A attached
hereto with the Delaware Secretary of State in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Delaware Trustee will enter into an
amended and restated Trust Agreement, satisfactory to each such
party and substantially in the form included as an exhibit to the
1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and
the issuance of the Capital Securities and Common Securities
referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Delaware Trustee shall
not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Delaware Trustee hereby authorize and
direct the Depositor, as the sponsor of the Trust, (i) to file
with the Securities and Exchange Commission (the "Commission")
and execute, in each case on behalf of the Trust, (a) the
Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to
the registration under the Securities Act of 1933, as amended, of
the Capital Securities of the Trust and possibly certain other
securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the
registration of the Capital Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with
the New York Stock Exchange or any other national stock exchange
or The Nasdaq National Market (each, an "Exchange") and execute
on behalf of the Trust one or more listing applications and all
other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the
Capital Securities to be listed on any of the Exchanges; (iii) to
file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as
shall be necessary or desirable to register the Capital
Securities under the securities or blue sky laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable and (iv) to execute on behalf of the Trust
that certain Underwriting Agreement relating to the Capital
Securities, among the Trust, the Depositor and the several
Underwriters named therein, substantially in the form included as
an exhibit to the 1933 Act Registration Statement. In the event
that any filing referred to in clauses (i), (ii) and (iii) above
is required by the rules and regulations of the Commission, an
Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by the Delaware Trustee, the Delaware
Trustee, in its capacity as a Trustee of the Trust, is hereby
authorized and, to the extent so required, directed to join in
any such filing and to execute on behalf of the Trust any and all
of the foregoing, it being understood that the Delaware Trustee,
in its capacity as a Trustee of the Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws.
In connection with the filings referred to above, the Depositor,
hereby constitutes and appoints James I. Freeman, as its true and
lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act
Registration Statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Commission, the Exchange and administrators of state securities
or blue sky laws, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor might or
could to in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be one (1) and
thereafter the number of Trustees shall be such number as shall
be fixed from time to time by a written instrument signed by the
Depositor which may increase or decrease the number of Trustees;
provided, however, that to the extent required by the Business
Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any
time. The Delaware Trustee may resign upon thirty (30) days'
prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without
regard to conflict of laws of principles).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Trust Agreement to be duly executed as of the day and year first
above written.
DILLARD'S, INC., as Depositor
By: /s/ John Hawkins
Name: John Hawkins
Title: Vice President,
Treasurer and
Assistant Secretary
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ Denis Kelly
Name: Denis Kelly
Title: Trust Officer
EXHIBIT 5-a
[Letterhead of Friday, Eldredge & Clark]
July 15, 1998
Dillard's, Inc.
1600 Cantrell Road
Little Rock, Arkansas 72201
Re: Dillard's, Inc.
Dillard's Capital Trust I, Dillard's Capital Trust II,
Dillard's Capital Trust III, Dillard's Capital Trust IV
and Dillard's Capital Trust V
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Dillard's, Inc., a Delaware
corporation (the "Company") and depositor of Dillard's Capital
Trust I, Dillard's Capital Trust II, Dillard's Capital Trust III,
Dillard's Capital Trust IV and Dillard's Capital Trust V, each a
statutory business trust formed under the laws of the State of
Delaware (each, an "Issuer Trust" and, collectively, the
Issuer Trusts), in connection with a Registration Statement
(the "Registration Statement") on Form S-3 filed by the Company
and the Issuer Trusts on the date hereof with the Securities
and Exchange Commission pursuant to the Securities Act of
1933, as amended (the "Securities Act"), relating to the
registration of shares of Class A Common Stock and Preferred
Stock of the Company (the "Equity Securities"), Debt Securities
of the Company (the "Debt Securities"), Capital Securities
of the Issuer Trusts (the "Capital Securities") and
Guarantees of the Company with respect to the Capital
Securities (the "Guarantees").
The Debt Securities are to be issued from time to time as
either (a) senior indebtedness of the Company under an
indenture dated as of May 15, 1988, as supplemented by a First
Supplemental Indenture dated as of December 16, 1988, a Second
Supplemental Indenture dated as of September 14, 1990, and a
Third Supplemental Indenture to be entered into (the "Third
Supplemental Indenture"), between the Company and The Chase
Manhattan Bank (formerly known as Chemical Bank), as trustee
(the "Senior Debt Trustee") (such indenture as so supplemented
the "Senior Indenture"), and (b) subordinated indebtedness of
the Company under an indenture to be entered into between the
Company and The Chase Manhattan Bank, as trustee (the
"Subordinated Indenture" and, together with the Senior
Indenture, the "Indentures").
The Capital Securities of each Issuer Trust will be issued
pursuant an Amended and Restated Trust Agreement (the "Trust
Agreement") of such Issuer Trust to be entered into among the
Company, as depositor of such Issuer Trust, The Chase
Manhattan Bank, as property trustee, Chase Manhattan Bank
Delaware, as Delaware trustee, two individuals selected by the
holders of
the Common Securities issued by such Issuer Trust as
administrators with respect to such Issuer Trust and the holders
of the Common Securities and the Capital Securities of such
Issuer Trust.
The forms of the Indentures, the Trust Agreements, the
Guarantees and the Debt Securities are filed or incorporated by
reference as exhibits to the Registration Statement.
In rendering this opinion, we have examined the originals
or copies, certified to our satisfaction, of such corporate
records and other documents and certificates as we deemed
necessary. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to the original
documents of all documents submitted to us as copies and the
authenticity of the originals of all such latter documents. In
addition, in rendering this opinion, we have assumed the
authorization, execution and delivery of the Indentures, the
Trust Agreements and the Guarantees by all parties other than the
Company. As to any facts material to this opinion, we have,
when relevant facts were not independently established by us,
relied upon the aforesaid records, certificates and documents.
Based upon the foregoing, and having regard for
such legal considerations as we have deemed relevant, we are of
the opinion that:
(i) when an Equity Security has been duly paid for by the
purchaser thereof in the manner and on the terms described in the
Registration Statement (after it is declared effective), all
required corporate action of the Company will have been taken
with respect to the issuance and sale of such Equity Security,
and such Equity Security will be validly issued, fully paid and
non-assessable;
(ii) the Third Supplemental Indenture, the
Subordinated Indenture, the Debt Securities and the Guarantees
have been duly authorized by the Company;
(iii) when a Debt Security has been duly executed
and issued in accordance with the provisions of the applicable
Indenture, and duly paid for by the purchaser thereof in the
manner and on the terms described in the Registration
Statement (after it is declared effective), all required
corporate action of the Company will have been taken with
respect to the issuance and sale of such Debt Security, and
such Debt Security will have been validly issued and will
constitute a valid and binding obligation of the Company,
enforceable in accordance with its terms; and
(iv) when a Guarantee has been duly executed and
delivered by the Company, all corporate actions of the
Company will have been taken with respect to the issuance of
such Guarantee, and such Guarantee will constitute a valid and
binding agreement of the Company, enforceable in accordance with
its terms.
We are members of the Arkansas Bar and do not hold ourselves
out as experts on the laws of any other State.
We hereby consent to the use of this opinion as an exhibit
to the Registration Statement, as it may be amended, and consent
to such references to our firm as are made therein.
Very truly yours,
/s/ Friday, Eldredge & Clark
FRIDAY, ELDREDGE & CLARK
STATEMENT RE: COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
(UNAUDITED)
<TABLE>
Three Months Ended Fiscal Year Ended
May 2 May 3 January 31February 1 February 3January 28January 29
1998 1997 1998 1997 1996 * 1995 1994
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated pretax income $100,115 $92,473 $410,035 $378,761 $269,653 $406,110 $399,534
Fixed charges (less capitalized
interest) 37,095 34,011 147,501 139,223 139,701 145,956 152,603
EARNINGS $137,210 $126,484 $557,536 $517,984 $409,354 $552,066 $552,137
Interest $33,656 $30,459 $129,237 $120,599 $120,054 $124,282 $130,915
Capitalized interest 898 884 3,644 4,420 3,567 2,545 1,882
Preferred stock dividends 9 9 35 35 35 35 35
Interest factor in rent expense 3,430 3,543 18,229 18,589 19,612 21,639 21,653
FIXED CHARGES $37,993 $34,895 $151,145 $143,643 $143,268 $148,501 $154,485
Ratio of earnings to combined fixed
charges & preferred stock dividends 3.61 3.62 3.69 3.61 2.86 3.72 3.57
* 53 Weeks
</TABLE>
EXHIBIT 23a
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Dillard's, Inc. and subsidiaries on Form S-3 of our
reports (which express an unqualified opinion and include an
explanatory paragraph relating to a change in accounting for the
impairment of long-lived assets and for long-lived assets to be
disposed of) dated February 23, 1998, appearing in and
incorporated by reference in the Annual Report on Form 10-K of
Dillard's, Inc. and subsidiaries for the year ended January 31,
1998 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
July 15, 1998
Exhibit 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on
Form S-3 of our report dated April 3, 1998, appearing in the
Current Report on Form 8-K dated May 16, 1998 filed by
Dillard's, Inc., and to all references to our Firm included
in this Registration Statement.
ARTHUR ANDERSEN LLP
Cincinnati, Ohio
July 15, 1998
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ Calvin N. Clyde, Jr.
Calvin N. Clyde, Jr.
Director
Date: 7-3-98
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ Robert C. Conner
Robert C. Conner
Director
Date: 7/12/98
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ Will D. Davis
Will D. Davis
Director
Date: 7/6/98
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ Alex Dillard
Alex Dillard
Director
Date: 7-7-98
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ Mike Dillard
Mike Dillard
Director
Date: 7-6-98
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ William Dillard
William Dillard
Director
Date: July 7, 1998
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ William Dillard II
William Dillard, II
Director
Date: 7/7/98
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ Drue Corbusier
Drue Corbusier
Director
Date: 7-7-98
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ William H. Sutton
William H. Sutton
Director
Date: 7-6-98
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ John Paul Hammerschmidt
John Paul Hammerschmidt
Director
Date: 7/7/98
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ William B. Harrison, Jr.
William B. Harrison, Jr.
Director
Date: 7/7/98
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ Jackson T. Stephens
Jackson T. Stephens
Director
Date: 7/6/98
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ John H. Johnson
John H. Johnson
Director
Date: 7-8-98
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints James I. Freeman and John Hawkins,
and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign the Dillard's, Inc. Registration
Statement on Form S-3 pertaining to the offering of
Securities consisting of Debentures, Notes, and/or Capital
Securities in one or more series at an aggregate initial
offering price not to exceed $3,000,000,000 and to sign any
and all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
/s/ E. Ray Kemp, Jr.
E. Ray Kemp, Jr.
Director
Date: 7-5-98
