<PAGE> 1
As filed with the Securities and Exchange Commission on November 4, 1996
REGISTRATION NO. 333-11539
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
THE MAY DEPARTMENT STORES COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
NEW YORK 43-0398035
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) 611 OLIVE STREET IDENTIFICATION NO.)
ST. LOUIS, MISSOURI 63101-1799
314-342-6300
</TABLE>
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
THE MAY DEPARTMENT STORES COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 43-1104396
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) 611 OLIVE STREET IDENTIFICATION NO.)
ST. LOUIS, MISSOURI 63101-1799
314-342-6300
</TABLE>
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
RICHARD A. BRICKSON, ESQ.
SECRETARY AND SENIOR COUNSEL
THE MAY DEPARTMENT STORES COMPANY
611 OLIVE STREET
ST. LOUIS, MISSOURI 63101-1799
314-342-6300
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPY TO:
MARGARET L. WOLFF, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement,
as market conditions permit.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED TO BE REGISTERED(1) PER UNIT(2) OFFERING PRICE(2) REGISTRATION FEE(2)
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<S> <C> <C> <C> <C>
Debt Securities................................. $500,000,000 100% $500,000,000 $172,413.79(4)
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Guarantee of the Debt Securities................ $500,000,000 (3) (3) None
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</TABLE>
(1) Or, in the case of Debt Securities issued at an original issue discount,
such greater principal amount as shall result in an aggregate public
offering price of the amount set forth below or, in the case of Debt
Securities denominated in a currency other than U.S. dollars or a composite
currency, such U.S. dollar amount as shall result from converting the
aggregate public offering price of such Debt Securities into U.S. dollars at
the spot exchange rate in effect on the date such Debt Securities are
initially offered to the public.
(2) Offering price per unit and aggregate offering price are estimated solely
for the purpose of determining the registration fee.
(3) No separate consideration will be received for the Guarantee.
(4) Previously paid on September 6, 1996.
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.
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<PAGE> 2
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 November 4, 1996
$500,000,000
The May Department Stores Company
DEBT SECURITIES
The May Department Stores Company, a New York corporation (the "Company"),
from time to time may offer its senior debt securities (the "Debt Securities")
in a principal amount sufficient to result in proceeds to the Company of up to
$500,000,000 (or the equivalent in foreign denominated currencies or composite
currencies, based upon the applicable exchange rate at the time of sale). The
Debt Securities will be unconditionally guaranteed (the "Guarantee") by The May
Department Stores Company, a Delaware corporation and the sole shareowner of the
Company (the "Guarantor"). The Debt Securities may be offered as separate series
under one or more Indentures in amounts, at prices and on terms to be set forth
in supplements to this Prospectus. The Company may sell Debt Securities directly
or through agents designated from time to time or to or through one or more
underwriters who will be named in a Prospectus Supplement (the "Prospectus
Supplement"), or an underwriting syndicate including and represented by such
firms. See "Plan of Distribution."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
------------------------
The terms of the Debt Securities, including, where applicable, the specific
designation, aggregate principal amount, denominations, maturity, premium, if
any, interest rate (which may be fixed or variable) and time of payment of
interest, if any, terms for redemption at the option of the Company or the
holder, terms for sinking fund payments, if any, the name of the trustee under
the indenture relating to the Debt Securities, the initial public offering
price, the names of any underwriters or agents, the applicable compensation of
such underwriters or agents and the other terms in connection with the offering
and sale of the Debt Securities in respect of which this Prospectus is being
delivered, will be set forth in an accompanying Prospectus Supplement.
As used herein, Debt Securities shall include securities denominated in
United States dollars or, at the option of the Company if so specified in the
applicable Prospectus Supplement, in any other currency or in composite
currencies or in amounts determined by reference to an index.
------------------------
, 1996
<PAGE> 3
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY THE DEBT SECURITIES OFFERED
BY THIS PROSPECTUS IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY OR THE GUARANTOR SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS
DATE.
------------------------
AVAILABLE INFORMATION
The Guarantor is, and prior to May 24, 1996, the Company was, subject to
the informational requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files or filed, as the
case may be, reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, as well as the following regional offices: Suite
1400, Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661; and
Suite 1300, 7 World Trade Center, New York, New York 10048; and copies of such
material can be obtained from the Public Reference Section of the Commission,
Washington, D.C. 20549 at prescribed rates. The Commission also maintains a Web
site at http://www.sec.gov which contains reports, proxy statements and other
information regarding registrants that file electronically with the Commission.
In addition, certain of the Guarantor's securities are listed on the New York
Stock Exchange and reports, proxy statements and other information concerning
the Company or the Guarantor may be inspected at the office of such Exchange.
------------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company or the
Guarantor are, as of their respective dates, incorporated into this Prospectus
by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
February 3, 1996.
(b) The Company's Quarterly Report on Form 10-Q for the period ended May
4, 1996.
(c) The Guarantor's Quarterly Report on Form 10-Q for the period ended
August 3, 1996.
(d) The Company's Current Report on Form 8-K (date of report, April 24,
1996).
(e) The Company's Current Report on Form 8-K (date of report, May 24,
1996).
(f) The Guarantor's Current Report on Form 8-K (date of report, July 17,
1996).
(g) The Guarantor's Current Report on Form 8-K (date of report, August
20, 1996).
(h) The Guarantor's Current Report on Form 8-K (date of report, August
22, 1996).
(i) The Guarantor's Current Report on Form 8-K (date of report,
September 18, 1996).
(j) The Guarantor's Current Report on Form 8-K (date of report, October
24, 1996).
(k) The Guarantor's Current Report on Form 8-K (date of report, November
4, 1996).
All documents filed by the Company or the Guarantor, as the case may be,
pursuant to Sections 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
Debt 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.
This Prospectus does not contain all information set forth in the registration
statement of which this Prospectus forms a part, and the exhibits thereto, which
the Company and the Guarantor have filed with the Commission and to which
reference is hereby made.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF
THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST OF SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE, OTHER THAN
EXHIBITS TO SUCH DOCUMENTS. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO: THE
MAY DEPARTMENT STORES COMPANY, 611 OLIVE STREET, ST. LOUIS, MISSOURI 63101-1799,
ATTENTION: CORPORATE COMMUNICATIONS DEPARTMENT, OR BY TELEPHONE TO THE CORPORATE
COMMUNICATIONS DEPARTMENT AT 314-342-6300.
2
<PAGE> 4
------------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE DEBT
SECURITIES OFFERED HEREBY OR OTHER DEBT SECURITIES OF THE COMPANY AT LEVELS
ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS
MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET
OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
THE COMPANY
The Company is one of the nation's largest retailing companies. The
Company's eight department store divisions operate 364 department stores in 30
states and the District of Columbia under the following trade names and are
headquartered in the following cities: Lord & Taylor, New York City; Hecht's and
Strawbridge's, Washington, D.C.; Foley's, Houston; Robinsons-May, Los Angeles;
Kaufmann's, Pittsburgh; Filene's, Boston; Famous-Barr and L.S. Ayres, St. Louis;
and Meier & Frank, Portland, Oregon.
On July 18, 1996, the Company acquired 13 former Strawbridge & Clothier
department stores in the greater Philadelphia area. At the July closing, the
Company delivered, subject to later adjustment, 4.2 million shares of Guarantor
common stock and assumed approximately $255 million of debt and certain other
liabilities in exchange for the Strawbridge & Clothier department store assets.
The Company has also agreed to issue additional Guarantor common stock in
exchange for any cash proceeds from Strawbridge & Clothier's divestiture of its
other assets, including its Clover discount division, remaining after
satisfaction of all Strawbridge & Clothier liabilities and obligations. The
acquisition was accounted for as a purchase.
The Company was organized under the laws of the State of New York on June
4, 1910. The Company employs approximately 105,000 people in 30 states, the
District of Columbia and eight offices overseas. The Company's principal office
is at 611 Olive Street, St. Louis, Missouri 63101-1799, and the Company's
telephone number is 314-342-6300.
THE GUARANTOR
The Guarantor was incorporated under the laws of the State of Delaware. The
Guarantor became the sole shareowner of the Company pursuant to a share exchange
implemented on May 24, 1996, which resulted in changing the state of
incorporation of the publicly traded company from New York to Delaware. The
Guarantor's principal office is at 611 Olive Street, St. Louis, Missouri
63101-1799, and the Guarantor's telephone number is 314-342-6300.
USE OF PROCEEDS
The net proceeds from the sale of the Debt Securities will be added to the
general funds of the Company and will be available to retire a portion of its
outstanding commercial paper and other short-term indebtedness, to finance its
operations, and for general corporate purposes, including stock repurchases,
investments and acquisitions. Any specific allocation of the net proceeds of an
offering of Debt Securities to a specific purpose will be described in the
applicable Prospectus Supplement.
3
<PAGE> 5
SUMMARY FINANCIAL INFORMATION--HISTORICAL
The following summary financial information presents, for the Guarantor,
historical operating results for the 26 week period ended August 3, 1996 and
historical balance sheet data as of August 3, 1996, and, for the Company,
historical operating results for the 26 week period ended July 29, 1995 and for
each of the five fiscal years in the period ended February 3, 1996 and
historical balance sheet data as of February 3, 1996 and January 28, 1995. The
following financial information should be read in conjunction with the
consolidated financial statements and related notes contained in the Company's
Annual Report on Form 10-K for the fiscal year ended February 3, 1996 and the
Guarantor's Quarterly Report on Form 10-Q for the period ended August 3, 1996,
which are incorporated herein by reference. Operating results of periods which
exclude the Christmas season may not be indicative of the operating results that
may be expected for the full fiscal year.
SUMMARY OF OPERATIONS
<TABLE>
<CAPTION>
26 WEEKS ENDED
------------------
AUGUST FISCAL YEAR(1)
(DOLLARS IN MILLIONS, EXCEPT PER 3, JULY 29, ---------------------------------------------
SHARE) 1996 1995 1995 1994 1993 1992 1991
------ --------- ------- ------- ------ ------ ------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues............................. $5,044 $ 4,543 $10,952 $10,107 $9,562 $9,362 $9,068
Cost and Expenses:
Cost of sales................... 3,528 3,168 7,461 6,879 6,537 6,459 6,275
Selling, general and
administrative expenses....... 1,039 933 2,081 1,916 1,824 1,859 1,861
Interest expense, net........... 128 115 250 233 244 279 315
------ ------ ------- ------- ------ ------ ------
Total Cost and Expenses....... 4,695 4,216 9,792 9,028 8,605 8,597 8,451
------ ------ ------- ------- ------ ------ ------
Earnings From Continuing Operations
Before Income Taxes................ 349 327 1,160 1,079 957 579(2) 617
Provision for Income Taxes........... 141 133 460 429 379 107(2) 213
------ ------ ------- ------- ------ ------ ------
Net Earnings From Continuing
Operations......................... 208 194 700 650 578 472 404
Net Earnings From Discontinued
Operation.......................... 11 61 55 132 133 131 111
------ ------ ------- ------- ------ ------ ------
Net Earnings Before Extraordinary
Loss............................... 219 255 755 782 711 603 515
Extraordinary Loss Related to Early
Extinguishment of Debt, Net of
Income Taxes....................... -- -- (3) -- -- -- --
------ ------ ------- ------- ------ ------ ------
Net Earnings......................... $ 219 $ 255 $ 752 $ 782 $ 711 $ 603 $ 515
====== ====== ======= ======= ====== ====== ======
Primary Earnings per Share:
Continuing Operations.............. $ 0.79 $ 0.74 $ 2.73 $ 2.53 $ 2.24 $ 1.82 $ 1.56
Discontinued Operation............. 0.05 0.24 0.22 0.53 0.53 0.53 0.45
------ ------ ------- ------- ------ ------ ------
Net Earnings Before Extraordinary
Loss............................ 0.84 0.98 2.95 3.06 2.77 2.35 2.01
Extraordinary Loss................. -- -- (0.01) -- -- -- --
------ ------ ------- ------- ------ ------ ------
Primary Earnings per Share........... $ 0.84 $ 0.98 $ 2.94 $ 3.06 $ 2.77 $ 2.35 $ 2.01
====== ====== ======= ======= ====== ====== ======
Fully Diluted Earnings per Share:
Continuing Operations.............. $ 0.77 $ 0.72 $ 2.61 $ 2.43 $ 2.15 $ 1.76 $ 1.52
Discontinued Operation............. 0.04 0.23 0.21 0.49 0.50 0.50 0.41
------ ------ ------- ------- ------ ------ ------
Net Earnings Before Extraordinary
Loss............................ 0.81 0.95 2.82 2.92 2.65 2.26 1.93
Extraordinary Loss................. -- -- (0.01) -- -- -- --
------ ------ ------- ------- ------ ------ ------
Fully Diluted Earnings per Share..... $ 0.81 $ 0.95 $ 2.81 $ 2.92 $ 2.65 $ 2.26 $ 1.93
====== ====== ======= ======= ====== ====== ======
Ratio of Earnings to Fixed
Charges(3)......................... 3.0 2.9 4.3 4.4 3.9 2.5 2.4
====== ====== ======= ======= ====== ====== ======
</TABLE>
- ------------
(1) Fiscal years 1995, 1994, 1993, 1992 and 1991 ended on February 3, 1996,
January 28, 1995, January 29, 1994, January 30, 1993 and February 1, 1992,
respectively. Fiscal year 1995 included 53 weeks.
(2) Pretax earnings include a net charge of $187 million from special and
nonrecurring items, and income taxes include a tax benefit of $187 million from
special and nonrecurring items.
(3) For purposes of computing the ratios of earnings to fixed charges for the
Guarantor and its subsidiaries or the Company and its subsidiaries, earnings
have been calculated by adding to pretax earnings (a) fixed
4
<PAGE> 6
charges (excluding capitalized interest and the pretax equivalent of preferred
stock dividend requirements) and (b) the total of adjustments to recognize only
distributed earnings for less than 50% owned persons accounted for under the
equity method and amortization of previously capitalized interest and then
subtracting dividends on ESOP Preference Shares. Fixed charges have been
calculated by adding gross interest expense (including interest on long-term,
short-term and ESOP debt, and amortization of debt discount and debt issue
expense), that portion of rent expense deemed representative of the interest
factor in such rent expense, preferred stock dividend requirements (pretax
equivalent) and the Guarantor's or the Company's proportionate share of interest
of unconsolidated 50% owned persons and the Guarantor's or the Company's
proportionate share of interest of a less than 50% owned person for which a
subsidiary of the Guarantor or the Company has guaranteed the debt.
CONSOLIDATED BALANCE SHEET DATA
<TABLE>
<CAPTION>
(IN MILLIONS)
AS OF AS OF AS OF
AUGUST 3, 1996 FEBRUARY 3, 1996 JANUARY 28, 1995
-------------- ---------------- ----------------
(UNAUDITED)
<S> <C> <C> <C>
Net Current Assets of Discontinued Operation........ $ -- $ 232 $ 243
Total Current Assets................................ 4,898 5,097 4,718
Total Current Liabilities........................... 1,781 1,602 1,689
Working Capital..................................... 3,117 3,495 3,029
Net Noncurrent Assets of Discontinued Operation..... -- 521 551
Total Assets........................................ 9,818 10,122 9,237
Long-Term Debt...................................... 3,430 3,333 2,864
Deferred Income Taxes............................... 390 378 340
Other Liabilities................................... 211 204 192
ESOP Preference Shares.............................. 354 366 374
Unearned Compensation............................... (331) (346) (357)
Shareowners' Equity................................. 3,983 4,585 4,135
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under one or more substantially
identical indentures with one or more trustees. The indentures may include an
Indenture dated as of June 17, 1996 (the "Indenture") with The First National
Bank of Chicago, as trustee (the "Trustee"), which provides that the amount of
Debt Securities issuable thereunder is unlimited.
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Debt Securities"), the
trustee with respect to the Offered Debt Securities and the extent, if any, to
which such general provisions may apply to the Offered Debt Securities will be
described in the Prospectus Supplement relating to such Offered Debt Securities.
The Indenture contains, among other things, the following provisions. Except as
otherwise specified, all of the provisions described below appear in the
Indenture. The following summaries of certain provisions of the Indenture do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all provisions of the Indenture, including the definitions
therein of certain terms. Wherever particular sections or defined terms of the
Indenture are referred to it is intended that such sections or defined terms
shall be incorporated herein by reference.
GENERAL
The Indenture provides for the issuance of Debt Securities from time to
time, in one or more series. Reference is made to the Prospectus Supplement
which will describe the following terms of the Offered Debt Securities: (a) the
designation of the Offered Debt Securities; (b) any limit on the aggregate
principal amount of the Offered Debt Securities; (c) the date or dates on which
the Offered Debt Securities will mature; (d) the rate or rates (which may be
fixed or variable) per annum at which the Offered Debt Securities will bear
interest, if any, and the date from which such interest will accrue; (e) the
dates on which such interest, if any, will be payable and the Regular Record
Dates for such Interest Payment Dates; (f) any
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<PAGE> 7
mandatory or optional sinking fund or purchase fund or analogous provisions; (g)
if applicable, the date after which and the price or prices at which the Offered
Debt Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed at the option of the Company or the Holder thereof and
the other detailed terms and provisions of such optional or mandatory
redemption; (h) the place or places of payment of principal of (and premium, if
any) and interest on the Offered Debt Securities; (i) whether the Offered Debt
Securities are issuable as Bearer Securities and, if so, whether Registered
Securities are issuable; (j) special provisions relating to the issuance of any
Bearer Securities of any series; (k) the currency in Dollars, Foreign Currency
or any composite currency of any series; (l) any deletions from, changes in or
additions to Events of Default or covenants of the Company in the Indenture; (m)
the form of Debt Securities, Guarantee and Coupons, if any; and (n) any other
terms of the Offered Debt Securities. (Section 301)
The Debt Securities will be issuable as Registered Securities, as Bearer
Securities or both. Debt Securities of a series may be issuable in global form,
as described below under "Global Securities." Unless the Prospectus Supplement
relating thereto specifies otherwise, Registered Securities denominated in U.S.
dollars will be issued only in denominations of $1,000 or any integral multiple
thereof, and Bearer Securities denominated in U.S. dollars will be issued only
in denominations of $5,000. The Prospectus Supplement relating to a series of
Debt Securities denominated in a foreign or composite currency will specify the
denomination thereof. (Section 302)
At the option of the Holder and subject to the terms of the Indenture,
Bearer Securities (with all unmatured coupons, except as provided below) of any
series will be exchangeable into an equal aggregate principal amount of
Registered Securities or Bearer Securities of the same series (with the same
interest rate and maturity date) of any authorized denominations, and Registered
Securities of any series will be exchangeable into an equal aggregate principal
amount of Registered Securities of the same series (with the same interest rate
and maturity date) of any authorized denominations. If a Holder surrenders
Bearer Securities in exchange for Registered Securities between a Regular Record
Date or, in certain circumstances, a Special Record Date and the relevant
interest payment date, such Holder will not be required to surrender the coupon
relating to such interest payment date. Registered Securities may not be
exchanged for Bearer Securities. (Section 305)
Debt Securities may be presented for exchange, and Registered Securities
(other than a Book-Entry Security) may be presented for registration of transfer
(with the form of transfer endorsed thereon duly executed), at the office of any
transfer agent or at the office of the Security Registrar, without service
charge and upon payment of any taxes and other governmental charges as described
in the Indenture. Such registration of transfer or exchange will be effected
upon the transfer agent or the Security Registrar, as the case may be, being
satisfied with the documents of title and identity of the person making the
request. Bearer Securities will be transferable by delivery. (Section 305)
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be offered and sold at a substantial discount from the
principal amount thereof. If the Offered Debt Securities are Original Issue
Discount Securities, the special Federal income tax, accounting and other
considerations applicable thereto will be described in the Prospectus Supplement
relating thereto. "Original Issue Discount Security" means any security which
provides for an amount less than the principal amount thereof to be due and
payable upon the declaration of acceleration of the maturity thereof upon the
occurrence of an Event of Default and the continuation thereof. (Section 502)
Unless otherwise indicated in a Prospectus Supplement, the covenants
contained in the Indenture and the Debt Securities would not necessarily afford
Holders of the Debt Securities protection in the event of a highly leveraged or
other transaction involving the Company that may adversely affect Holders.
GUARANTEE
The Debt Securities will be unconditionally guaranteed by the Guarantor as
to the payment of the principal of, sinking fund payment, if any, premium, if
any, interest and any Redemption Price with respect to the Debt Securities when
and as the same shall become due and payable, whether at maturity, upon
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<PAGE> 8
acceleration or redemption or otherwise, pursuant to the terms of the Debt
Securities and of the Indenture. Such a Guarantee will be endorsed on each Debt
Security. (Section 1201) The Company, the Guarantor and the Trustee may, without
the consent of any Holders, enter into a supplemental indenture to, among other
things, add any additional Guarantor with respect to all or any series of Debt
Securities. (Section 801)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, sinking fund payment, if any, premium, if any, interest and any
Redemption Price on Registered Securities will be made in the designated
currency at the office of such Paying Agent or Paying Agents as the Company may
designate from time to time, except that at the option of the Company payment of
any interest may be made (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or (ii)
by wire transfer to an account maintained by the Person entitled thereto as
specified in the Security Register. Unless otherwise indicated in an applicable
Prospectus Supplement, payment of any installment of interest on Registered
Securities will be made to the Person in whose name such Registered Security is
registered at the close of business on the Regular Record Date for such
interest. (Sections 307 and 902)
Payment of principal of and premium, if any, and interest on Bearer
Securities will be payable in the currency and in the manner designated in the
Prospectus Supplement, subject to any applicable laws and regulations, at such
paying agencies outside the United States as the Company may appoint from time
to time. The paying agents outside the United States initially appointed by the
Company for a series of Debt Securities will be named in the Prospectus
Supplement. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agents, except that, if Securities of a
series are issuable as Registered Securities, the Company will be required to
maintain at least one paying agent in each Place of Payment for such series and,
if Securities of a series are issuable as Bearer Securities, the Company will be
required to maintain a Paying Agent in a Place of Payment outside the United
States where Debt Securities of such series and any coupons appertaining thereto
may be presented and surrendered for payment; provided that if the Securities of
such series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, for the Securities of such series. (Section 902)
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in global
form ("Global Securities") that will be deposited with, or on behalf of, a
Depositary identified in the applicable Prospectus Supplement relating to such
series. Global Securities, if any, issued in the United States are expected to
be deposited with The Depository Trust Company, as Depositary. Global Securities
may be issued in fully registered form and may be issued in either temporary or
permanent form. Unless and until a Global Security is exchanged in whole or in
part for the individual Debt Securities represented thereby, it may not be
transferred except as a whole by the Depositary for such Global Security to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any nominee of
such Depositary to a successor Depositary or any nominee of such successor.
(Section 203)
The specific terms of the depositary arrangement with respect to particular
Debt Securities will be described in the Prospectus Supplement relating to such
Debt Securities. The Company expects that unless otherwise indicated in the
applicable Prospectus Supplement, the following provisions will apply to
depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary ("Participants"). Such accounts will be designated
by the underwriters, dealers or agents with
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<PAGE> 9
respect to such Debt Securities or by the Company if such Debt Securities are
offered directly by the Company. Ownership of beneficial interests in such
Global Security will be limited to Participants or persons that may hold
interests through Participants. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of that ownership will be effected
only through, records maintained by the Depositary for such Global Security or
its nominee (with respect to beneficial interests of Participants) and records
of Participants (with respect to beneficial interests of persons who hold
through Participants). The laws of some states require that certain purchasers
of securities take physical delivery of such securities in definitive form. Such
limits and laws may impair the ability to own, pledge or transfer beneficial
interests in a Global Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes. Except as
described below or in the applicable Prospectus Supplement, owners of beneficial
interests in a Global Security will not be entitled to have any of the
individual Debt Securities represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of any
such Debt Securities in definitive form and will not be considered the Owners or
Holders thereof.
Payment with respect to Debt Securities represented by a Global Security
registered in the name of a Depositary or its nominee will be made to the
Depositary or its nominee, as the case may be, as the registered owner of the
Global Security. None of the Company, the Guarantor, any Trustee, any Paying
Agent, the Security Registrar or any transfer agent for Debt Securities
represented by a Global Security will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests in the Global Security for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
OPTIONAL REDEMPTION
Reference is made to the Prospectus Supplement relating to each series of
Offered Debt Securities for any optional redemption provisions relating to such
Offered Debt Securities.
SINKING FUND
Reference is made to the Prospectus Supplement relating to each series of
Offered Debt Securities for any sinking fund provisions relating to such Offered
Debt Securities.
RESTRICTED AND UNRESTRICTED SUBSIDIARIES; CERTAIN DEFINITIONS
The restrictive provisions of the Indenture applicable to the Company, the
Guarantor and the Restricted Subsidiaries do not apply to Unrestricted
Subsidiaries. The assets and indebtedness of Unrestricted Subsidiaries are not
consolidated with those of the Company and its Restricted Subsidiaries in
calculating Consolidated Net Tangible Assets, Funded Debt or Secured
Indebtedness under the Indenture. Investments by the Company or by its
Restricted Subsidiaries in Unrestricted Subsidiaries are excluded in computing
Consolidated Net Tangible Assets.
"Subsidiary" means a corporation more than 50% of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company, by one or more
other Subsidiaries or by the Company and one or more other Subsidiaries.
"Unrestricted Subsidiaries" are those Subsidiaries defined as such by the
Indenture, i.e., certain finance Subsidiaries acquired or formed subsequent to
the date of the Indenture, certain foreign Subsidiaries, certain real estate
Subsidiaries and those Subsidiaries which are designated as Unrestricted
Subsidiaries by the Board of Directors from time to time pursuant to the
Indenture (in each case, unless and until designated as Restricted Subsidiaries
by the Board of Directors pursuant to the Indenture). "Restricted Subsidiaries"
are all Subsidiaries other than Unrestricted Subsidiaries. A "Wholly-owned
Restricted Subsidiary" is a Restricted Subsidiary all of the outstanding Funded
Debt and capital stock of which (except directors' qualifying shares) is owned
by the Company and its other Wholly-owned Restricted Subsidiaries. (Section 101)
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<PAGE> 10
"Consolidated Net Tangible Assets" means the total amount of assets of the
Company and its Restricted Subsidiaries (less applicable reserves and other
properly deductible items and after excluding Investments made in Unrestricted
Subsidiaries or in corporations while they are Unrestricted Subsidiaries but
which are not Subsidiaries at the time of computation) after deducting (i) all
liabilities and liability items (including amounts in respect of capitalized
leases), except Funded Debt, capital stock and surplus, surplus reserves,
deferred income taxes and deferred investment tax credits, and (ii) goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles. (Section 101)
"Funded Debt" includes indebtedness maturing more than 12 months after the
time of computation of the amount thereof or which is extendible or renewable at
the option of the obligor on such indebtedness to a time more than 12 months
after the time of the computation of the amount thereof, guarantees of such
indebtedness or of such obligations of others or of dividends (except guarantees
in connection with the sale or discount of accounts receivable, trade
acceptances and other paper arising in the ordinary course of business and
except guarantees of such indebtedness or such obligations which are otherwise
included in the definition of Funded Debt), and in the case of any Subsidiary
all Preferred Stock of such Subsidiary. Funded Debt does not include any
obligations in respect of lease rentals whether or not such obligations would be
included as liabilities on a consolidated balance sheet of the Company and its
Restricted Subsidiaries. The Company or any Restricted Subsidiary shall be
deemed to have assumed Funded Debt secured by any Mortgage upon any of its
properties or assets whether or not it has actually done so. (Section 101)
"Secured Indebtedness" means any Indebtedness which is secured by a
Mortgage upon any assets of the Company or a Restricted Subsidiary, including in
such assets, without limitation, shares of stock or indebtedness of any
Subsidiary owned by the Company or a Restricted Subsidiary, provided that
Indebtedness secured by a Mortgage incurred or assumed in connection with an
issuance of revenue bonds the interest on which is exempt from Federal income
tax pursuant to Section 103 of the Internal Revenue Code of 1986, as amended,
shall not be deemed Secured Indebtedness. (Section 101)
LIMITATION ON LIENS
Unless the aggregate principal amount of all outstanding Secured
Indebtedness of the Company and its Restricted Subsidiaries, the unsecured
Funded Debt of the Restricted Subsidiaries (exclusive of any unsecured Funded
Debt or Secured Indebtedness owed to the Company or a Wholly-owned Restricted
Subsidiary), and the Indebtedness to be secured does not exceed 15% of
Consolidated Net Tangible Assets, the Company may not, and may not permit any
Restricted Subsidiary to, mortgage, pledge or create (by merger or otherwise)
any lien, security interest, conditional sale or other title retention agreement
or other similar encumbrance on any of the assets of the Company or any of its
Restricted Subsidiaries (except to secure Indebtedness to the Company or any of
its Wholly-owned Restricted Subsidiaries) without making effective provision to
secure the Debt Securities at least equally and ratably with such Indebtedness,
so long as such Indebtedness is so secured. The foregoing provision, however,
does not prevent certain purchase money mortgage liens or the refunding or
extension thereof, certain non-recourse liens on real property to reimburse the
Company or any of its Restricted Subsidiaries for the cost or acquisition of or
improvements to such real property, existing Mortgages, tax liens and other
liens incurred in the ordinary course of business which do not materially limit
the use of the property subject thereto in the operation of the business of the
Company or of any Restricted Subsidiary or impair the value of such property for
the purposes of such business, Mortgages on assets of a Restricted Subsidiary
existing on the date it became a Subsidiary, or any refundings or extensions
thereof not exceeding the principal amount of the Indebtedness so refunded, or
extended, and applying only to the same property or assets. (Section 905)
RESTRICTIONS ON MERGERS
Neither the Company nor the Guarantor may consolidate or merge with or into
any other corporation or sell, lease or transfer all or substantially all of its
properties and assets to another corporation, unless (i) the successor
corporation is a corporation organized and existing under the laws of the United
States of America or a state thereof or the District of Columbia and assumes
payment of the principal of (and premium, if any) and interest, if any, on the
Debt Securities and the performance and observance of the Indenture and (ii)
such
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<PAGE> 11
successor corporation shall not, immediately after such merger or consolidation,
or such sale or conveyance, be in default in the performance of any covenant or
condition of the Indenture. (Section 701)
WAIVER, MODIFICATION AND AMENDMENT
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any particular series may waive certain past defaults. (Section
511) The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities (voting as a class and not by individual series) or, in case
less than all of the several series of Outstanding Debt Securities are affected,
the Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of each series affected, may waive the Company's and the Guarantor's
compliance with certain restrictive provisions. (Section 911) In order to
determine the aggregate principal amount of any Outstanding Debt Securities not
payable in U.S. dollars, the principal amount of the Debt Securities shall be
deemed to be that amount of Dollars that could be obtained for such principal
amount on the basis of the spot rate of exchange for such Foreign Currency or
such currency unit as determined by the Company or by an authorized exchange
rate agent. (Section 101)
Modification and amendment of the Indenture may be made by the Company, the
Guarantor and the Trustee with the consent (i) of the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities (voting as a class
and not by individual series), or (ii) in case less than all of the several
series of Debt Securities then Outstanding are affected by the modification or
amendment, of the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of each series so affected, provided that no such
modification or amendment may, without the consent of the Holder of each Debt
Security affected thereby, (a) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any Debt Security; (b) reduce
the principal amount of, or the rate of interest, if any, on, or any premium
payable upon the redemption of any Debt Security, or reduce the amount of the
principal of a Discounted Debt Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof; (c) change the place or
currency of payment of principal or premium 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; or (e) reduce the percentages of Holders of
Debt Securities or of Holders of Debt Securities of any particular series
specified in this or the preceding paragraph. Any modification or amendment
which changes or eliminates any covenant or other provision of the Indenture
which has expressly been included solely for the benefit of one or more
particular series of Debt Securities, or which modifies the rights of the
Holders of Debt Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under the Indenture of the
Holders of Debt Securities of any other series. (Section 802)
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to any
particular series of Debt Securities: (a) failure to pay the principal of (or
premium, if any, on) any Debt Security of that series, or to make any sinking
fund payment on any Debt Security of that series, when due; (b) failure to pay
any interest installment on any Debt Security of that series when due, continued
for 30 days; (c) failure to perform any other covenant of the Company or the
Guarantor (in each case other than a covenant included in the Indenture solely
for the benefit of series of Debt Securities other than that series), continued
for 60 days after written notice; (d) certain events of bankruptcy, insolvency,
or reorganization; and (e) any other defaults provided with respect to Debt
Securities of that series. (Section 501)
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding shall occur and be continuing, then and in every such case
(unless the principal of all the Debt Securities of that series shall have
already become due and payable) the Trustee or the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that series may declare
to be due and payable immediately by a notice in writing to the Company (and to
the Trustee if given by Holders) the entire principal amount, or, in the case of
Original Issue Discount Securities, such portion of the principal amount as may
be provided for in such Debt Securities, of all the Debt Securities of that
series. At any time after such declaration of acceleration 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 the Outstanding
Debt Securities of that series, by written notice
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<PAGE> 12
to the Company and the Trustee, may, in certain circumstances, rescind and annul
such declaration. (Section 502)
No Holder of any Debt Securities of any particular series shall have any
right to institute any proceeding with respect to the Indenture or for any
remedy thereunder, unless such Holder previously shall have given to the Trustee
written notice of a default with respect to that series and unless also the
Holders of at least 25% of the principal amount of Outstanding Debt Securities
of that series shall have made written request upon the Trustee, and have
offered reasonable indemnity, to institute such proceeding as trustee, and the
Trustee shall not have received direction inconsistent with such request in
writing by the Holders of a majority in principal amount of Outstanding Debt
Securities of that series and shall have neglected or refused to institute such
proceeding within 60 days. However, the right of any Holder of any Debt Security
to enforce the payment of principal and interest due on such Debt Security on or
after the dates expressed in such Debt Security, may not be impaired or
affected. (Sections 506 and 509)
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides, if such provision is made applicable to the Debt
Securities of any series pursuant to Section 301 of the Indenture, that the
Company may elect either (A) to defease and be discharged from any and all
obligations with respect to such Debt Securities (except as otherwise provided
in the applicable Indenture) ("Defeasance") or (B) to be released from its
obligations with respect to such Securities described above under "Limitations
on Liens," and "Restrictions on Mergers" ("Covenant Defeasance"), upon the
irrevocable deposit with the Trustee, in trust for such purpose, of money,
and/or U.S. Government Obligations or Foreign Government Securities (each as
defined) which through the payment of principal and interest in accordance with
their terms will provide money, in an amount sufficient to pay the principal of
(and premium, if any) and interest on such Debt Securities, and any mandatory
sinking fund or analogous payments thereon, on the scheduled due dates therefor.
The Prospectus Supplement may further describe the provisions, if any,
permitting such Defeasance or Covenant Defeasance with respect to the Debt
Securities of a particular series and the effect of such Defeasance or Covenant
Defeasance under Federal tax law. (Section 403)
REGARDING THE TRUSTEE
The Company engages in banking transactions in the ordinary course of
business with The First National Bank of Chicago.
PLAN OF DISTRIBUTION
General. The Company may sell Debt Securities directly or to or through one
or more underwriters, agents or dealers who will be named in the Prospectus
Supplement or an underwriting syndicate, represented by one or more managing
underwriters, that will be named in the Prospectus Supplement relating to an
issue of Offered Debt Securities.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities to underwriters,
underwriters may receive compensation in the form of discounts, concessions or
commissions from the Company or from purchasers of Debt Securities for whom they
may act as agents. Underwriters and dealers that participate in the distribution
of Debt Securities may be deemed to be underwriters, and any discounts or
commissions received by them and any profit on the resale of Debt Securities by
them may be deemed to be underwriting discounts and commissions, under the
Securities Act of 1933, as amended (the "Act"). Any such underwriter will be
identified, and any such compensation will be described, in the Prospectus
Supplement.
Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Debt 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
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the Prospectus Supplement. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
As one of the means of direct issuance of the Debt Securities, the Company
may utilize the services of CapitaLink Bond Auctions, Inc. to conduct an
electronic "dutch auction" of the Debt Securities among potential purchasers who
are eligible to participate in the auction of such Debt Securities, if so
described in the Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters,
agents and dealers who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Act.
The Debt Securities are a new issue of securities with no established
trading market. In the event that Debt Securities of a series offered hereunder
are not listed on a national securities exchange, certain broker-dealers may
make a market in the Debt Securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given that any broker-dealer will make a market in the Debt Securities of any
series or as to the liquidity of the trading market for the Debt Securities.
EXPERTS
The consolidated financial statements and schedules of the Company included
or incorporated by reference in its Annual Report on Form 10-K for the fiscal
year ended February 3, 1996, incorporated by reference in this Prospectus and
elsewhere in the Registration Statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with respect
thereto and are included herein in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
VALIDITY OF THE OFFERED DEBT SECURITIES
The validity of the Offered Debt Securities and the Guarantee will be
passed upon for the Company and the Guarantor, respectively, by Skadden, Arps,
Slate, Meagher & Flom LLP, New York, New York, and for the underwriters or
agents by counsel to be identified in the Prospectus Supplement. A member of
Skadden, Arps, Slate, Meagher & Flom LLP beneficially owns 4,000 shares of the
Guarantor's common stock, $.50 par value per share (together with the associated
preferred stock purchase rights, the "Common Stock"). Mrs. Helene Kaplan, Esq.,
of counsel to Skadden, Arps, Slate, Meagher & Flom LLP, is a member of the
Guarantor's board of directors and owns 8,910 shares of Common Stock.
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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 discounts and
commissions, will be paid by the Company and are:
<TABLE>
<S> <C>
Filing Fee for Registration Statement.............................. $172,414
Rating Agency Fees................................................. 45,000
Legal Fees and Expenses............................................ 60,000
Accounting Fees and Expenses....................................... 30,000
Blue Sky Fees and Expenses......................................... 25,000
Printing and Engraving Fees........................................ 5,000
Trustee's Fees..................................................... 6,000
Miscellaneous...................................................... 4,000
--------
$347,414
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 7 of the New York Business Corporation Law ("NYBCL") and a
provision of the Company's By-Laws provide for indemnification of directors and
officers under certain conditions including the possibility of indemnification
against liabilities under the Securities Act of 1933 (the "Act"). In addition,
the Company has entered into indemnification agreements with each director and
certain executive officers of the Company. Each indemnification agreement
provides, among other things, (i) for indemnification to the fullest extent
permitted by law against all expenses, judgments, fines, penalties incurred in
connection with, and amounts paid in settlement of, any claim against the
indemnified party, provided it is determined pursuant to the agreement that the
indemnitee is entitled to be indemnified under the applicable standard of
conduct under the NYBCL; (ii) for advancement of expenses to the indemnitee in
connection with the indemnitee's defense of any threatened or pending claim,
provided that if it is determined pursuant to the agreement that the indemnitee
would not be permitted to be indemnified under applicable law, the Company shall
be entitled to be reimbursed by the indemnitee for all such amounts previously
paid; (iii) for the creation of a trust for the benefit of the indemnitee in the
event of a potential change in control of the Company which shall be funded from
time to time at the request of the indemnitee in an amount sufficient to satisfy
the Company's indemnification obligations under the agreement; and (iv) that no
legal action be brought and no cause of action be asserted by or on behalf of
the Company against the indemnitee after the expiration of the earlier of the
applicable statute of limitations or two years from the date of accrual of such
cause of action. Similar indemnification agreements may be entered into from
time to time with additional officers of the Company.
In addition, the Company has a directors' and officers' liability insurance
policy. Paragraph VI of the Underwriting Agreement will provide for
indemnification of directors and officers under certain circumstances.
Section 145 of the Delaware General Corporation Law ("DGCL") provides
generally and in pertinent part that a Delaware corporation may indemnify its
directors and officers against expenses, judgments, fines and settlements
actually and reasonably incurred by them in connection with any civil suit or
action, except actions by or in the right of the corporation, or any
administrative or investigative proceeding, if, in connection with the matters
in issue, they acted in good faith and in a manner they reasonably believed to
be in, or not opposed to, the best interests of the corporation, and in
connection with any criminal suit or proceeding, if in connection with the
matters in issue, they had no reasonable cause to believe their conduct was
unlawful. Section 145 further provides that, in connection with the defense or
settlement of any action by or in the right of the corporation, a Delaware
corporation may indemnify its directors and officers against expenses actually
and reasonably incurred by them if, in connection with the matters in issue,
they acted in good faith in a manner they reasonably believed to be in, or not
opposed to, the best interests of the corporation, and without negligence or
misconduct in the performance of their duties to the corporation. Section 145
further permits a
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Delaware corporation to grant its directors and officers additional rights of
indemnification through by-law provisions and otherwise.
Article Eleventh of the Amended and Restated Certificate of Incorporation
of the Guarantor (the "Guarantor Charter") and Article VI of Guarantor's By-Laws
provide that the Guarantor shall indemnify its directors and officers to the
fullest extent permitted by the DGCL. Section 102(b)(7) of the DGCL provides
that a certificate of incorporation may contain a provision eliminating or
limiting the personal liability of a director to the corporation or its
shareowners for monetary damages for breach of fiduciary duty as a director
provided that such provision shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the corporation
or its shareowners; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii) under
Section 174 of the DGCL (relating to liability for unauthorized acquisitions or
redemptions of or dividends on, capital stock); or (iv) for any transaction from
which the director derived an improper personal benefit. Article Tenth of the
Guarantor Charter contains such a provision.
The Guarantor and the Company have entered into indemnification agreements
with their respective directors and certain executive officers. Each
indemnification agreement provides, among other things, (1) for indemnification
to the fullest extent permitted by law against all expenses, judgments, fines
and penalties incurred in connection with, and amounts paid in settlement of,
any claim against the indemnified party, provided it is determined pursuant to
the agreement that the indemnitee is entitled to be indemnified under the
applicable standard of conduct under the DGCL, in the case of the Guarantor, and
under the NYBCL, in the case of the Company; (2) for advancement of expenses to
the indemnitee in connection with the indemnitee's defense of any threatened or
pending claim, provided that if it is determined pursuant to the agreement that
the indemnitee would not be permitted to be indemnified under applicable law,
the Guarantor or the Company, as applicable, shall be entitled to be reimbursed
by the indemnitee for all such amounts previously paid; (3) for the creation of
a trust for the benefit of the indemnitee in the event of a potential change in
control of the Guarantor or the Company, as applicable, which shall be funded
from time to time at the request of the indemnitee in an amount sufficient to
satisfy the Guarantor's or the Company's, as applicable, indemnification
obligations under the agreement; and (4) that no legal action be brought and no
cause of action be asserted by or on behalf of the Guarantor, or the Company, as
applicable, against the indemnitee after the expiration of the earlier of the
applicable statute of limitations or two years after the date of accrual of such
cause of action. Similar indemnification agreements may be entered into from
time to time with additional officers of the Guarantor or the Company, as
applicable. In addition, the Guarantor has a directors' and officers' liability
insurance policy.
ITEM 16. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<S> <C>
1.1. Form of Distribution Agreement (incorporated herein by reference to Exhibit 1 to
the Company's Current Report on Form 8-K, File No. 1-79, dated February 8, 1991).
1.2. Form of Underwriting Agreement (incorporated herein by reference to Exhibit 1.1
to the Guarantor's Current Report on Form 8-K, File No. 1-79, dated November 4,
1996).
4.1. Conformed copy of Indenture dated as of June 17, 1996 among the Company, the
Guarantor and The First National Bank of Chicago, as Trustee (incorporated herein
by reference to Exhibit 4.1 to Registration Statement No. 333-06171).
5. Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.*
12. Computation of Ratio of Earnings to Fixed Charges (incorporated herein by
reference to Exhibit 12 to the Guarantor's Quarterly Report on Form 10-Q, File
No. 1-79, for the period ended August 3, 1996).
23.1. Consent of Arthur Andersen LLP.
23.2. Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in their opinion
filed as Exhibit 5 to this Registration Statement).
24. Powers of Attorney.*
25.1. Statement of Eligibility of Trustee (The First National Bank of Chicago)
(incorporated herein by reference to Exhibit 25.1 to Registration Statement No.
333-06171).
</TABLE>
- -------------------------
* Previously filed.
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The form or forms of Debt Securities with respect to each particular
offering of securities registered hereunder will be filed as an exhibit to a
report on Form 8-K and incorporated herein by reference.
ITEM 17. UNDERTAKINGS
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, 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 hereby which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Act,
each filing of a Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of each of the
Registrants pursuant to the foregoing provisions, or otherwise, each of the
Registrants has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the respective Registrant of
expenses incurred or paid by a director, officer or controlling person of the
respective Registrant in the successful defense of any action, suit or
proceeding) is asserted against the respective Registrant by such director,
officer or controlling person in connection with the securities being
registered, the respective Registrant will, unless in the opinion of its
respective counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 17
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 2 TO
THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF ST. LOUIS, STATE OF MISSOURI, ON THE
4TH DAY OF NOVEMBER, 1996.
THE MAY DEPARTMENT STORES COMPANY
(a New York corporation)
By /S/ RICHARD A. BRICKSON
----------------------------------
RICHARD A. BRICKSON
SECRETARY
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 2 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ------------------------------ -------------------
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* Chairman and Chief Executive November 4, 1996
- --------------------------------------------- Officer
DAVID C. FARRELL
* Director and President November 4, 1996
- ---------------------------------------------
JEROME T. LOEB
PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER:
* Director and Chief Financial November 4, 1996
- --------------------------------------------- Officer
JOHN L. DUNHAM
* Director, Senior Vice November 4, 1996
- --------------------------------------------- President and Treasurer
JAN R. KNIFFEN
</TABLE>
*By /S/ RICHARD A. BRICKSON
------------------------------
RICHARD A. BRICKSON
ATTORNEY-IN-FACT
II-4
<PAGE> 18
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 2 TO
THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF ST. LOUIS, STATE OF MISSOURI, ON THE
4TH DAY OF NOVEMBER, 1996.
THE MAY DEPARTMENT STORES COMPANY
(a Delaware corporation)
By /S/ RICHARD A. BRICKSON
----------------------------------
RICHARD A. BRICKSON
SECRETARY
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 2 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ---------------------------- -------------------
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
* Director, Chairman of the November 4, 1996
- --------------------------------------------- Board and Chief Executive
DAVID C. FARRELL Officer
* Director and President November 4, 1996
- ---------------------------------------------
JEROME T. LOEB
* Director and Executive November 4, 1996
- --------------------------------------------- Vice Chairman
RICHARD L. BATTRAM
* Director and Vice Chairman November 4, 1996
- ---------------------------------------------
EUGENE S. KAHN
* Director and President and November 4, 1996
- --------------------------------------------- Chief Executive Officer
ANTHONY J. TORCASIO of May Merchandising
Company
PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER:
* Chief Financial Officer November 4, 1996
- ---------------------------------------------
JOHN L. DUNHAM
* Director November 4, 1996
- ---------------------------------------------
HELENE L. KAPLAN
* Director November 4, 1996
- ---------------------------------------------
EDWARD H. MEYER
* Director November 4, 1996
- ---------------------------------------------
RUSSELL E. PALMER
* Director November 4, 1996
- ---------------------------------------------
MICHAEL R. QUINLAN
* Director November 4, 1996
- ---------------------------------------------
WILLIAM P. STIRITZ
* Director November 4, 1996
- ---------------------------------------------
ROBERT D. STOREY
</TABLE>
*By /S/ RICHARD A. BRICKSON
------------------------------
RICHARD A. BRICKSON
ATTORNEY-IN-FACT
II-5
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Amendment No. 2 to the Form S-3 registration statement of our
report dated February 26, 1996, incorporated by reference in The May Department
Stores Company's Form 10-K for the year ended February 3, 1996, and to all
references to our firm included in this registration statement.
ARTHUR ANDERSEN LLP
St. Louis, Missouri
November 4, 1996
