<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 28,
1996 Registration Statement No.:
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
THE MAY DEPARTMENT STORES COMPANY
(Exact Name of Registrant as Specified in its Charter)
Delaware 43-1742586
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation) Identification No.)
611 Olive Street, St. Louis, Missouri 63101-1799
(Address of Principal Executive Offices) (Zip Code)
THE MAY DEPARTMENT STORES COMPANY PROFIT SHARING PLAN
1994 STOCK INCENTIVE PLAN OF THE MAY DEPARTMENT STORES COMPANY
1987 STOCK OPTION PLAN OF THE MAY DEPARTMENT STORES COMPANY
1976 STOCK OPTION PLAN OF THE MAY DEPARTMENT STORES COMPANY
(Full Title of the Plans)
Richard A. Brickson, Esq.
THE MAY DEPARTMENT STORES COMPANY
611 Olive Street
St. Louis, Missouri 63101-1799
(Name and Address of Agent for Service)
(314) 342-6300
(Telephone Number, Including Area Code, of Agent for Service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
Being Registered Registered Offering Price Aggregate Registration
Per Share Offering Price Fee
<S> <C> <C> <C> <C>
N/A* N/A* N/A* N/A* N/A*
* No additional securities are to be registered and the
registration fees were paid at the time the original
Registration Statements were filed (File Nos. 333-00957, 33-
21415, 33-58985 and 33-98045). Therefore, no further
registration fee is required.
<PAGE>
THE MAY DEPARTMENT STORES COMPANY
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENTS ON FORM S-8
Explanatory Note
This Post-Effective Amendment No. 1 (the "Amendment") to
certain Registration Statements on Form S-8 (File Nos. 333-00957,
33-58985, 33-21415 and 33-98045) (the "Registration Statements"),
is being filed pursuant to Rule 414 promulgated under the
Securities Act of 1933, as amended (the "Securities Act") by The
May Department Stores Company, a Delaware corporation (the
"Registrant"), following reincorporation of The May Department
Stores Company, a New York corporation ("May New York"), from New
York to Delaware (the "Reincorporation"). The Reincorporation was
effected by means of a statutory share exchange (the "Share
Exchange") pursuant to an Agreement and Plan of Share Exchange
dated as of May 22, 1996 by and between May New York and the
Registrant (the "Share Exchange Agreement"). At the effective time
(the "Effective Time") of the Share Exchange: (i) each share of
common stock, par value $.50 per share, of May New York (including
the associated preferred stock purchase rights, the "May New York
Common Shares"), outstanding immediately prior to the Effective
Time was exchanged for one fully paid, nonassessable share of
common stock, par value $.50 per share of the Registrant,
(including the associated preferred stock purchase rights, the
"Registrant Common Shares"), (ii) each May New York Common Share
held in May New York's treasury immediately prior to the Effective
Time was cancelled and returned to the status of an authorized but
unissued May New York Common Share, (iii) each ESOP (Employee Stock
Ownership Plan) preference share, par value $.50 per share of May
New York (the "May New York ESOP Shares"), outstanding immediately
prior to the Effective Time was exchanged for one fully paid,
nonassessable ESOP (Employee Stock Ownership Plan) preference
share, par value $.50 per share of the Registrant (the "Registrant
ESOP Shares"), (which series will be substantially identical to the
May New York ESOP Shares), and (iv) each Registrant Common Share
outstanding immediately prior to the Effective Time was cancelled
and restored to the status of an authorized but unissued Registrant
Common Share.
In addition, pursuant to the Share Exchange Agreement, at the
Effective Time, the Registrant assumed each employee benefit plan
of May New York, and options and rights to purchase May New York
Common Shares under such plans which were outstanding at the
Effective Time were converted into options or rights to purchase
the same number of Registrant Common Shares at the same price and
on the same terms and conditions as in effect immediately prior to
the Effective Time.
2
<PAGE>
No additional stock options will be granted under the 1976 and
the 1987 Stock Option Plans of the Registrant. Many previously
granted stock options, however, remain outstanding and subject to
future exercise rights. Registrant's Common Shares may be acquired
(1) pursuant to options granted or to be granted under the 1994
Stock Incentive Plan of the Registrant or (2) in connection with
participants' investments in the May Common Stock Fund and the ESOP
Preference Fund under the Registrant's Profit Sharing Plan.
Except as modified by this Amendment, Registrant, by virtue of
this Amendment, expressly adopts the Registration Statements as its
own registration statements for all purposes of the Securities Act
and the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
3
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and
Exchange Commission (the "Commission") are hereby incorporated by
reference:
(a) May New York's Annual Report on Form 10-K filed for the
fiscal year ended February 3, 1996.
(b) Annual Report on Form 11-K filed by The May Department Stores
Company Profit Sharing Plan (the "Profit Sharing Plan") for
its plan year ended December 31, 1995.
(c) All other reports filed pursuant to Section 13 or 15(d) of
the Exchange Act since the end of the fiscal year covered by
May New York's Annual Report referred to in (a) above,
including May New York's Quarterly Reports on Form 10-Q, if
any.
(d) The description of the Registrant's Common Shares contained
in the Registrant's Registration Statement (File No. 1-00079)
on Form 8-B, dated May 21, 1996 (the "Form 8-B"), filed by
the Registrant pursuant to Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14, and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document all or a portion of
which is incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified
or superseded shall not be deemed, except as so modified and
amended, to constitute part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
4
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware
(the "GCL") empowers a corporation to indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason of
the fact that he is or was a director, officer, employee or agent
of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation or enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to the best interests of the
corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful.
Section 145 also empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities
set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted under
similar standards, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless, and only
to the extent that, the Court of Chancery or the court in which
such action was brought shall determine that despite the
adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem
proper.
Section 145 further provides that (1) to the extent that
a director or officer of a corporation has been successful in the
defense of any action, suit or proceeding referred to above or in
the defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith, (2)
indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be
entitled and (3) the corporation is empowered to purchase and
maintain insurance on behalf of a director or officer of the
corporation against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify
against such liabilities under Section 145.
5
<PAGE>
In addition, the Registrant intends to enter into
indemnification agreements with each director and certain executive
officers of the Registrant. Each indemnification agreement is
expected to provide, 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 GCL; (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 Registrant
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 Registrant which shall be funded from time to time
at the request of the indemnitee in an amount sufficient to satisfy
the Registrant's 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 Registrant 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 Registrant. In
addition, the Registrant has a directors and officers liability
insurance policy.
Item 7. Exemption from Registration claimed.
Not applicable.
Item 8. Exhibits.
The following Exhibits are filed as part of this
Registration Statement:
4(a) Amended and Restated Certificate of Incorporation of the
Registrant.
4(b) By-Laws of the Registrant (incorporated herein by reference
to Appendix C of Exhibit 2.2 of the Registrant's Form 8-B
dated May 21, 1996).
4(c) Rights Agreement, dated as of August 19, 1994, between May
New York and The Bank of New York, as Rights Agent (the
"Rights Agreement"), which includes as Exhibit A thereto, the
Form of Rights Certificate (incorporated herein by reference
to Exhibit 1 of the Current Report of May New York on Form
8-K dated September 2, 1994).
6
<PAGE>
4(d) Assignment and Assumption of the Rights Agreement dated May
24, 1996, among May New York, the Registrant and The Bank of
New York, as Rights Agent.
5(a) Internal Revenue Service determination letter dated December
16, 1994, determining that the Profit Sharing
Plan is qualified under Section 401(a) of the Internal
Revenue Code.*
5(b) Opinion re compliance of amended provisions of the Profit
Sharing Plan with ERISA requirements pertaining to such pro-
visions.*
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Counsel (included in the opinion filed as Exhibit
5(b) to this Registration Statement).
24(a) Powers of Attorney of John L. Dunham, Eugene S. Kahn and
Anthony J. Torcasio.
24(b) Powers of Attorney of David C. Farrell, Jerome T. Loeb,
Richard L. Battram, Edward H. Meyer, Russell E. Palmer,
Michael R. Quinlan, William P. Stiritz, Robert D. Storey and
Murray L. Weidenbaum.**
_______________________
* Previously filed with Registration Statement on Form S-8
(File No. 333-00957).
** Previously filed with the Registration Statements on Form S-8
(File Nos. 333-00957, 33-58985, 33-21415 and 33-90845).
_______________________
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective
amendment to this Registration Statement and
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;
7
<PAGE>
(2) That, for the purpose of determining any
liability under the Securities Act of 1933,
each 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 Registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act,
each filing of the 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 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 may be permitted to directors, officers,
and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Exchange Act and is, therefore,
unenforceable. In the event that a claim for indemnification (other
than the payment by the Registrant of expenses incurred or paid by
a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer, or controlling person in connection with
the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Exchange Act and will be governed by the
final adjudication of such issue.
8
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized,
in the City of St. Louis, State of Missouri, on the 28th day of
May, 1996.
THE MAY DEPARTMENT STORES COMPANY
By: /s/Richard A. Brickson
Name: Richard A. Brickson
Title: Secretary and Senior Counsel
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated:
Signature Title Date
David C. Farrell* Director, Chairman of the May 28, 1996
David C. Farrell Board and Chief Executive
Officer
Jerome T. Loeb* Director and President May 28, 1996
Jerome T. Loeb
Richard L. Battram* Director and Executive
Vice Chairman May 28, 1996
Richard L. Battram
John L. Dunham* Chief Financial Officer May 28, 1996
John L. Dunham
Eugene S. Kahn* Director and Vice May 28, 1996
Eugene S. Kahn Chairman
Anthony J. Torcasio* Director and President May 28, 1996
Anthony J. Torcasio and Chief Executive
Officer - May
Merchandising Company
Edward H. Meyer* Director May 28, 1996
Edward H. Meyer
Russell E. Palmer* Director May 28, 1996
Russell E. Palmer
9
<PAGE>
Michael R. Quinlan* Director May 28, 1996
Michael R. Quinlan
William P. Stiritz* Director May 28, 1996
William P. Stiritz
Robert D. Storey* Director May 28, 1996
Robert D. Storey
Murray L. Weidenbaum* Director May 28, 1996
Murray L. Weidenbaum
* By: /s/Richard A. Brickson
Richard A Brickson
Attorney-in-Fact
The Plan. Pursuant to the requirements of the Securities Act,
the Administrative Subcommittee of the Profit Sharing Plan has duly
caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of St.
Louis and State of Missouri, on the 28th day of May, 1996.
The May Department Stores Company Profit Sharing Plan
By: /s/Richard A. Brickson
Richard A. Brickson, Member
Administrative Subcommittee
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated:
Signature Title Date
/s/Donald N. Baxter Member, Administrative May 28, 1996
Donald N. Baxter Subcommittee
/s/Richard A. Brickson Member, Administrative May 28, 1996
Richard A. Brickson Subcommittee
/s/ Jan R. Kniffen Member, Administrative May 28, 1996
Jan R. Kniffen Subcommittee
10
<PAGE>
EXHIBIT INDEX
4(a) Amended and Restated Certificate of Incorporation of the
Registrant.
4(b) By-Laws of the Registrant (incorporated herein by reference
to Appendix C of Exhibit 2.2 of the Registrant's Form 8-B
dated May 21, 1996).
4(c) Rights Agreement, dated as of August 19, 1994, between May
New York and The Bank of New York, as Rights Agent (the
"Rights Agreement"), which includes as Exhibit A thereto, the
Form of Rights Certificate (incorporated herein by reference
to Exhibit 1 of the Current Report of May New York on Form
8-K dated September 2, 1994).
4(d) Assignment and Assumption of the Rights Agreement dated May
24, 1996, among May New York, the Registrant and The Bank of
New York, as Rights Agent.
5(a) Internal Revenue Service determination letter dated December
16, 1994, determining that the Profit Sharing Plan is
qualified under Section 401(a) of the Internal Revenue Code.*
5(b) Opinion re compliance of amended provisions of the Profit
Sharing Plan with ERISA requirements pertaining to such pro-
visions.*
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Counsel (included in the opinion filed as Exhibit
5(b) to this Registration Statement).
24(a) Powers of Attorney of John L. Dunham, Eugene S. Kahn and
Anthony J. Torcasio.
24(b) Powers of Attorney of David C. Farrell, Jerome T. Loeb,
Richard L. Battram, Edward H. Meyer, Russell E. Palmer,
Michael R. Quinlan, William P. Stiritz, Robert D. Storey and
Murray L. Weidenbaum.**
_______________________
* Previously filed with Registration Statement on Form S-8
(File No. 333-00957).
** Previously filed with the Registration Statements on Form S-8
(File Nos. 333-00957, 33-58985, 33-21415 and 33-90845).
11
</TABLE>
<PAGE>
EXHIBIT 4(a)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THE MAY DEPARTMENT STORES COMPANY
The undersigned, Richard A. Brickson, certifies that he is
the Secretary, of The May Department Stores Company, a
corporation organized under the laws of the State of Delaware
(the "Corporation"), and does hereby further certify as follows:
1. The name of the Corporation is The May Department
Stores Company. The Corporation was originally
incorporated under the name May Properties 1976, Inc.
2. The original Certificate of Incorporation of the
Corporation was filed in the Office of the Secretary
of State of the State of Delaware on May 21, 1976 and
was amended on May 20, 1996.
3. The Amended and Restated Certificate of Incorporation
was duly adopted by shareowner written consent in
accordance with Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware.
4. The text of the Certificate of Incorporation of the
Corporation as amended hereby is restated to read in
its entirety as follows:
FIRST.
The name of the Corporation shall be
THE MAY DEPARTMENT STORES COMPANY.
SECOND.
The address of the Corporation's registered office in the
State of Delaware is 1209 Orange Street, City of Wilmington,
County of New Castle. The name of the Corporation's registered
agent as such address is The Corporation Trust Company.
THIRD.
The purpose for which the Corporation is formed is to engage
in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of
Delaware (the "GCL").
<PAGE>
FOURTH.
The total number of shares of stock which the Corporation
shall have authority to issue is 725,000,000 consisting of
700,000,000 shares of common stock, par value $.50 per share (the
"Common Stock"), and 25,000,000 shares of preference stock, par
value $.50 per share (the "Preference Shares").
The owners of shares of Common Stock shall not have any
preemptive right to purchase shares or other securities to be
issued by the Corporation or subjected to rights or options to
purchase.
The designations, preferences, privileges and voting powers
of the shares of each class, and the restrictions or
qualifications thereof are as follows:
Preference Shares of the Corporation may be issued from time
to time or in one or more class or series, each of which class or
series shall have such distinctive designation or title as shall
be fixed by the Board of Directors of the Corporation (the "Board
of Directors") prior to the issuance of any shares thereof. Each
such class or series of Preference Shares shall have such voting
powers, full or limited, or no voting powers, and such
preferences and relative, participating, optional or other
special rights and such qualifications, limitations or
restrictions thereof, as shall be stated in such resolution or
resolutions providing for the issue of such class or series of
Preference Shares as may be adopted from time to time by the
Board of Directors prior to the issuance of any shares thereof
pursuant to the authority hereby expressly vested in it, all in
accordance with the laws of the State of Delaware.
FIFTH.
Elections of directors at any annual or special meeting of
shareowners shall be by written ballot, unless the By-Laws of the
Corporation provide otherwise.
SIXTH.
The number of directors shall be fixed by the By-Laws. It
shall not be necessary for any director of the Corporation to be
a shareowner thereof.
2
<PAGE>
SEVENTH.
Whenever shareowners are allowed to take any action by vote,
such action may be taken without a meeting on written consent,
setting forth the action so taken, signed by the owners of all
outstanding shares entitled to vote thereon. Written consent
thus given by the owners of all outstanding shares entitled to
vote shall have the same effect as a unanimous vote of
shareowners.
EIGHTH.
Special meetings of shareowners of the Corporation for any
purpose or purposes may be called at any time by a majority of
the entire Board of Directors. Special meetings of shareowners
of the Corporation may not be called by any other person or
persons.
NINTH.
The directors shall have the further power to provide by the
By-Laws or otherwise, for the selection from among their own
number, of an executive committee of such number as they may from
time to time designate, and to delegate to such executive
committee all or any of the powers of the Board of Directors in
so far as the delegation of such power is not contrary to law.
TENTH.
No director of the Corporation shall be personally liable to
the Corporation or its shareowners for monetary damages for any
breach of fiduciary duty by such a director as a director to the
full extent authorized or permitted by law (as now or hereafter
in effect). Notwithstanding the foregoing sentence, a director
shall be liable to the extent provided by applicable law (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) pursuant to Section 174 of the GCL or (iv) for any
transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this Article TENTH shall
apply to or have any effect on the liability or alleged liability
of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such
amendment or repeal.
3
<PAGE>
ELEVENTH.
The officers and directors of the Corporation and such other
persons as authorized by a majority of the entire Board of
Directors consistent with the provisions of the GCL shall be
indemnified by the Corporation to the fullest extent authorized
or permitted by law (as now or hereafter in effect).
TWELFTH.
A. In addition to any affirmative vote required by law or
this Certificate of Incorporation or the By-Laws of the
Corporation, and except as otherwise expressly provided in
Section B of this Article TWELFTH, a Business Combination (as
hereinafter defined) with, or proposed by or on behalf of, any
Interested Shareowner (as hereinafter defined) or any Affiliate
or Associate (as hereinafter defined) of any Interested
Shareowner or any person who thereafter would be an Affiliate or
Associate of such Interested Shareowner shall require the
affirmative vote of not less than sixty-six and two-thirds
percent (66 2/3%) of the votes entitled to be cast by the owners
of all the then outstanding shares of Voting Stock (as
hereinafter defined), voting together as a single class,
excluding Voting Stock beneficially owned by any Interested
Shareowner or any Affiliate or Associate of such Interested
Shareowner. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a
lesser percentage or separate class vote may be specified, by law
or in any agreement with any national securities exchange or
otherwise.
B. The provisions of Section A of this Article TWELFTH
shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative
vote, if any, as is required by law or by any other provision of
this Certificate of Incorporation or the By-Laws of the
Corporation, or any agreement with any national securities
exchange, if all of the conditions specified in either of the
following Paragraphs 1 or 2 are met or, in the case of a Business
Combination not involving the payment of consideration to the
owners of the Corporation's outstanding Capital Stock (as
hereinafter defined), if the condition specified in the following
Paragraph 1 is met:
1. The Business Combination shall have been approved,
either specifically or as a transaction which is within an
approved category of transactions, by a majority (whether
such approval is made prior to or subsequent to the
4
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acquisition of, or announcement or public disclosure of the
intention to acquire, beneficial ownership of the Voting
Stock that caused the Interested Shareowner to become an
Interested Shareowner) of the Board of Directors prior to
the date on which the Continuing Directors (as hereinafter
defined) comprise less than a majority of the entire Board
of Directors.
2. All of the following conditions shall have been
met:
a. The aggregate amount of cash and the Fair Market
Value (as hereinafter defined), as of the date of the
consummation of the Business Combination, of consideration
other than cash to be received per share by owners of Common
Stock in such Business Combination shall be at least equal
to the highest amount determined under clauses (i), (ii),
(iii) and (iv) below:
(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by or on behalf of
the Interested Shareowner for any share of Common Stock
in connection with the acquisition by the Interested
Shareowner of beneficial ownership of shares of Common
Stock (x) within the two-year period immediately prior
to the first public announcement of the proposed
Business Combination (the "Announcement Date") or (y)
in the transaction in which it became an Interested
Shareowner, whichever is higher, in either case as
adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect
to Common Stock;
(ii) the Fair Market Value per share of Common
Stock on the Announcement Date or on the date on which
the Interested Shareowner became an Interested
Shareowner (the "Determination Date"), whichever is
higher, as adjusted for any subsequent stock split,
stock dividend, subdivision or reclassification with
respect to Common Stock;
(iii) (if applicable) the price per share equal
to the Fair Market Value per share of Common Stock
determined pursuant to the immediately preceding clause
(ii), multiplied by the ratio of (x) the highest per
share price (including any brokerage commission,
transfer taxes and soliciting dealers' fees) paid by or
on behalf of the Interested Shareowner for any share of
Common Stock in connection with the acquisition by the
5
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Interested Shareowner of beneficial ownership of shares
of Common Stock within the two-year period immediately
prior to the Announcement Date, as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to Common Stock to (y)
the Fair Market Value per share of Common Stock on the
first day in such two-year period on which the
Interested Shareowner acquired beneficial ownership of
any share of Common Stock, as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to Common Stock; and
(iv) the Corporation's net income per share of
Common Stock for the four full consecutive fiscal
quarters immediately preceding the Announcement Date,
multiplied by the higher of the then price/earnings
multiple (if any) of such Interested Shareowner or the
highest price/earnings multiple of the Corporation
within the two-year period immediately preceding the
Announcement Date (such price/earnings multiples being
determined as customarily computed and reported in the
financial community).
b. The aggregate amount of cash and the Fair Market
Value, as of the date of the consummation of the Business
Combination, of consideration other than cash to be received
per share by owners of shares of any class or series of
outstanding Capital Stock, other than Common Stock, shall be
at least equal to the highest amount determined under
clauses (i), (ii), (iii) and (iv) below:
(i) (if applicable) the highest per share
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by or on behalf of
the Interested Shareowner for any share of such class
or series of Capital Stock in connection with the
acquisition by the Interested Shareowner of beneficial
ownership of shares of such class or series of Capital
Stock (x) within the two-year period immediately prior
to the Announcement Date or (y) in the transaction in
which it became an Interested Shareowner, whichever is
higher, in either case as adjusted for any subsequent
stock split, stock dividend, subdivision or
reclassification with respect to such class or series
of Capital Stock;
(ii) the Fair Market Value per share of such
class or series of Capital Stock on the Announcement
Date or on the Determination Date, whichever is higher,
as adjusted for any subsequent stock split, stock
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dividend, subdivision or reclassification with respect
to such class or series of Capital Stock;
(iii) (if applicable) the price per share equal
to the Fair Market Value per share of such class or
series of Capital Stock determined pursuant to the
immediately preceding clause (ii), multiplied by the
ratio of (x) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested
Shareowner for any share of such class or series of
Capital Stock in connection with the acquisition by the
Interested Shareowner of beneficial ownership of shares
of such class or series of Capital Stock within the
two-year period immediately prior to the Announcement
Date, as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect
to such class or series of Capital Stock to (y) the
Fair Market Value per share of such class or series of
Capital Stock on the first day in such two-year period
on which the Interested Shareowner acquired beneficial
ownership of any share of such class or series of
Capital Stock, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification
with respect to such class or series of Capital Stock;
and
(iv) (if applicable) the highest preferential
amount per share to which the owners of shares of such
class or series of Capital Stock would be entitled in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the
Corporation regardless of whether the Business
Combination to be consummated constitutes such an
event.
The provisions of this Paragraph 2 shall be required to
be met with respect to every class or series of outstanding
Capital Stock, whether or not the Interested Shareowner has
previously acquired beneficial ownership of any shares of a
particular class or series of Capital Stock.
c. The consideration to be received by owners of a
particular class or series of outstanding Capital Stock
shall be in cash or in the same form as previously has been
paid by or on behalf of the Interested Shareowner in
connection with its direct or indirect acquisition of
beneficial ownership of shares of such class or series of
Capital Stock. If the consideration so paid for shares of
any class or series of Capital Stock varied as to form, the
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form of consideration for such class or series of Capital
Stock shall be either cash or the form used to acquire
beneficial ownership of the largest number of shares of such
class or series of Capital Stock previously acquired by the
Interested Shareowner.
d. After the Determination Date and prior to the
consummation of such Business Combination: (i) there shall
have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not
cumulative) payable in accordance with the terms of any
outstanding Capital Stock; (ii) there shall have been no
reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any stock split, stock
dividend or subdivision of the Common Stock); (iii) there
shall have been an increase in the annual rate of dividends
paid on the Common Stock as necessary to reflect any
reclassification (including any reverse stock split,
recapitalization, reorganization or any similar transaction
that has the effect of reducing the number of outstanding
shares of Common Stock); and (iv) such Interested Shareowner
shall not have become the beneficial owner of any additional
shares of Capital Stock except as part of the transaction
that results in such Interested Shareowner becoming an
Interested Shareowner and except in a transaction that,
after giving effect thereto, would not result in any
increase in the Interested Shareowner's percentage
beneficial ownership of any class or series of Capital
Stock.
e. A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (the
"Act") (or any subsequent provisions replacing such Act,
rules or regulations) shall be mailed to all shareowners of
the Corporation at least 30 days prior to the consummation
of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to
such Act or subsequent provisions). The proxy or information
statement shall contain on the first page thereof, in a
prominent place, any statement as to the advisability (or
inadvisability) of the Business Combination that the
Continuing Directors, or any of them, may choose to make
and, if deemed advisable by a majority of the Continuing
Directors, the opinion of an investment banking firm
selected by a majority of the Continuing Directors as to the
fairness (or not) of the terms of the Business Combination
from a financial point of view to the owners of the
outstanding shares of Capital Stock other than the
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Interested Shareowner and its Affiliates or Associates, such
investment banking firm to be paid a reasonable fee for its
services by the Corporation.
f. Such Interested Shareowner shall not have made any
major change in the Corporation's business or equity capital
structure.
C. The following definitions shall apply with respect to
this Article TWELFTH:
1. The term "Business Combination" shall mean:
a. any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with (i) any
Interested Shareowner or (ii) any other company (whether or
not itself an Interested Shareowner) which is or after such
merger or consolidation would be an Affiliate or Associate
of an Interested Shareowner; or
b. any sale, lease, exchange, mortgage, pledge,
transfer or other disposition or security arrangement,
investment, loan, advance, guarantee, agreement to purchase,
agreement to pay, extension of credit, joint venture
participation or other arrangement (in one transaction or a
series of transactions) with or for the benefit of any
Interested Shareowner or any Affiliate or Associate of any
Interested Shareowner involving any assets, securities or
commitments of the Corporation, any Subsidiary or any
Interested Shareowner or any Affiliate or Associate of any
Interested Shareowner which (except for any arrangement,
whether as employee, consultant or otherwise, other than as
a director, pursuant to which any Interested Shareowner or
any Affiliate or Associate thereof shall directly or
indirectly, have any control over or responsibility for the
management of any aspect of the business or affairs of the
Corporation, with respect to which arrangements the value
tests set forth below shall not apply), together with all
such other arrangements (including all contemplated future
events), has an aggregate Fair Market Value and/or involves
aggregate commitments of $10,000,000 or more or constitutes
more than 5 percent of the book value of the total assets
(in the case of transactions involving assets or commitments
other than Capital Stock) or 5 percent of the Shareowners'
equity (in the case of transactions in Capital Stock) of the
entity in question (the "Substantial Part"), as reflected in
the most recent fiscal year-end consolidated balance sheet
of such entity existing at the time the shareowners of the
Corporation would be required to approve or authorize the
Business Combination involving the assets, securities and/or
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commitments constituting any Substantial Part, except for
transactions made in the ordinary course of the
Corporation's business, consistent with past practices; or
c. the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation or for any
amendment to the Corporation's By-Laws; or
d. any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other
transaction (whether or not with or otherwise involving an
Interested Shareowner) that has the effect, directly or
indirectly, of increasing the proportionate share of any
class or series of Capital Stock, or any securities
convertible into Capital Stock or into equity securities of
any Subsidiary, that is beneficially owned by any Interested
Shareowner or any Affiliate or Associate of any Interested
Shareowner; or
e. any agreement, contract or other arrangement
providing for any one or more of the actions specified in
the foregoing clauses (a) to (d).
2. The term "Capital Stock" shall mean all capital
stock of the Corporation authorized to be issued from time
to time under Article FOURTH of this Certificate of
Incorporation, and the term "Voting Stock" shall mean all
Capital Stock which by its terms may be voted on all matters
submitted to shareowners of the Corporation generally.
3. The term "person" shall mean any individual, firm,
company or other entity and shall include any group
comprised of any person and any other person with whom such
person or any Affiliate or Associate of such person has any
agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or
disposing of Capital Stock.
4. The term "Interested Shareowner" shall mean any
person (other than the Corporation or any Subsidiary and
other than any profit-sharing, employee stock ownership or
other employee benefit plan of the Corporation or any
Subsidiary or any trustee of or fiduciary with respect to
any such plan when acting in such capacity) who (a) is or
has announced or publicly disclosed a plan or intention to
become the beneficial owner of Voting Stock representing ten
percent (10%) or more of the votes entitled to be cast by
the owners of all then outstanding shares of Voting Stock;
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or (b) is an Affiliate or Associate of the Corporation and
at any time within the two-year period immediately prior to
the date in question was the beneficial owner of Voting
Stock representing ten percent (10%) or more of the votes
entitled to be cast by the owners of all then outstanding
shares of Voting Stock.
5. A person shall be a "beneficial owner" of any
Capital Stock (a) which such person or any of its Affiliates
or Associates beneficially owns, directly or indirectly; (b)
which such person or any of its Affiliates or Associates
has, directly or indirectly, (i) the right to acquire
(whether such right is exercisable immediately or subject
only to the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding; or (c) which is
beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing
of any shares of Capital Stock. For the purposes of
determining whether a person is an Interested Shareowner
pursuant to Paragraph 4 of this Section C, the number of
shares of Capital Stock deemed to be outstanding shall
include shares deemed beneficially owned by such person
through application of this Paragraph 5, but shall not
include any other shares of Capital Stock that may be
issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
6. The terms "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in Rule 12b-2
under the Act, as amended and in effect as of the date
hereof (the term "registrant" in said Rule 12b-2 meaning in
this case the Corporation).
7. The term "Subsidiary" means any company of which a
majority of any class of equity security is beneficially
owned by the Corporation; provided, however, that for the
purposes of the definition of Interested Shareowner set
forth in Paragraph 4 of this Section C, the term
"Subsidiary" shall mean only a company of which a majority
of each class of equity security is beneficially owned by
the Corporation.
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8. The term "Continuing Director" means any member of
the Board of Directors, while such person is a member of the
Board of Directors, who is not an Affiliate or Associate or
representative of the Interested Shareowner and was a member
of the Board of Directors prior to the time that the
Interested Shareowner became an Interested Shareowner, and
any successor of a Continuing Director while such successor
is a member of the Board of Directors, who is not an
Affiliate or Associate or representative of the Interested
Shareowner and is recommended or elected to succeed the
Continuing Director by a majority of Continuing Directors.
9. The term "Fair Market Value" means (a) in the case
of cash, the amount of such cash; (b) in the case of stock,
the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of
such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or, if
such stock is not listed on such Exchange, on the principal
United States securities exchange registered under the Act
on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during the
30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations
System or any similar system then in use, or if no such
quotations are available, the fair market value on the date
in question of a share of such stock as determined by a
nationally recognized investment banking firm selected by a
majority of the Continuing Directors; and (c) in the case of
property other than cash or stock, the fair market value of
such property on the date in question as determined by a
nationally recognized investment banking firm selected by a
majority of the Continuing Directors.
10. In the event of any Business Combination in which
the Corporation survives, the phrase "consideration other
than cash to be received" as used in Paragraphs 2.a and 2.b
of Section B of this Article TWELFTH shall include the
shares of Common Stock and/or the shares of any other class
or series of Capital Stock retained by the owners of such
shares.
D. The Board of Directors shall have the power and duty to
determine for the purposes of this Article TWELFTH, on the basis
of information known to them after reasonable inquiry, all
questions arising under this Article TWELFTH, including, without
limitation, (a) whether a person is an Interested Shareowner, (b)
the number of shares of Capital Stock or other securities
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<PAGE>
beneficially owned by any person, (c) whether a person is an
Affiliate or Associate of another, (d) whether a Proposed Action
is with, or proposed by, or on behalf of an Interested Shareowner
or an Affiliate or an Associate of an Interested Shareowner, (e)
whether the assets that are the subject of any Business
Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $10,000,000 or more, and (f) whether the assets
or securities that are the subject of any Business Combination
constitutes a Substantial Part. Any such determination made in
good faith shall be binding and conclusive on all parties.
E. Nothing contained in this Article TWELFTH shall be
construed to relieve any Interested Shareowner from any fiduciary
obligation imposed by law.
F. The fact that any Business Combination complies with
the provisions of Section B of this Article TWELFTH shall not be
construed to impose any fiduciary duty, obligation or
responsibility on the Board of Directors, or any member thereof,
to approve such Business Combination or recommend its adoption or
approval to the shareowners of the Corporation, nor shall such
compliance limit, prohibit or otherwise restrict in any manner
the Board of Directors, or any member thereof, with respect to
evaluations of or actions and responses taken with respect to
such Business Combination.
G. For the purposes of this Article TWELFTH, a Business
Combination or any proposal to amend, repeal or adopt any
provision of this Certificate of Incorporation inconsistent with
this Article TWELFTH (collectively "Proposed Action") is presumed
to have been proposed by, or on behalf of, an Interested
Shareowner or an Affiliate or Associate of an Interested
Shareowner or a person who thereafter would become such if (1)
after the Interested Shareowner became such, the Proposed Action
is proposed following the election of any director of the
Corporation who, with respect to such Interested Shareowner,
would not qualify to serve as a Continuing Director or (2) such
Interested Shareowner, Affiliate, Associate or person votes for
or consents to the adoption of any such Proposed Action, unless
as to such Interested Shareowner, Affiliate, Associate or person
a majority of the Continuing Directors make a good faith
determination that such Proposed Action is not proposed by or on
behalf of such Interested Shareowner, Affiliate, Associate or
person, based on information known to them after reasonable
inquiry.
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H. Notwithstanding any other provisions of this
Certificate of Incorporation or the By-Laws of the Corporation
(and notwithstanding the fact that a lesser percentage or
separate class vote may be specified by law, this Certificate of
Incorporation or the By-Laws of the Corporation), any proposal to
amend, repeal or adopt any provision of this Certificate of
Incorporation inconsistent with this Article TWELFTH which is
proposed by or on behalf of an Interested Shareowner or an
Affiliate or Associate of an Interested Shareowner shall require
the affirmative vote of the owners of not less than sixty-six and
two-thirds percent (66 2/3%) of the votes entitled to be cast by
the owners of all the then outstanding shares of Voting Stock,
voting together as a single class, excluding Voting Stock
beneficially owned by any Interested Shareowner; provided,
however, that prior to the time such number of persons
constituting a quorum of the Board of Directors are nominated by
or on behalf of the Interested shareowner and elected to the
Board of Directors, this Section H shall not apply to, and such
sixty-six and two-thirds percent (66 2/3%) vote shall not be
required for, any amendment, repeal or adoption recommended by a
majority of the Board of Directors prior to the date on which the
Continuing Directors comprise less than a majority of the Board
of Directors.
THIRTEENTH.
The business and affairs of the Corporation shall be managed
under the direction of a Board of Directors consisting of not
less than three nor more than twenty-one directors, the exact
number of directors shall be fixed by the By-laws. The directors
shall be divided into three classes, designated Class I, Class II
and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors
constituting the entire Board of Directors. At each annual
meeting of shareowners, beginning in 1997, successors to the
class of directors whose term expires at that annual meeting
shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any
additional director of any class elected to fill a vacancy
resulting from an increase in such class shall hold office for
the remainder of the term of the Class to which such director was
appointed and until his successor has been elected and qualified,
but in no case will a decrease in the number of directors shorten
the term of any incumbent director. A director shall hold office
until the annual meeting for the year in which his term expires
and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Any vacancy on the
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Board of Directors that results from an increase in the number of
directors may be filled by a majority of the Board of Directors
then in office, provided that a quorum is present, and any other
vacancy occurring in the Board of Directors may be filled by a
majority of the directors then in office, even if less than a
quorum, or by a sole remaining director. A director or the entire
Board of Directors may be removed only for cause.
Notwithstanding the foregoing, whenever the owners of any
class or series of stock (other than Common Stock) issued by the
Corporation shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of
shareowners, the election, term of office, filling of vacancies
and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation applicable thereto,
and such directors so elected shall not be divided into classes
pursuant to this Article THIRTEENTH unless expressly provided by
such terms.
FOURTEENTH.
In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors, by vote of two-thirds of the
entire Board of Directors, is expressly authorized to adopt,
repeal, alter, amend or rescind the By-Laws of the Corporation at
any meeting of the Board of Directors, provided that the
substance of the proposed amendment or addition or the subject
matter thereof shall have been submitted in writing at a
preceding meeting of the Board of Directors or notice thereof
shall have been given to the directors; waiver of notice by any
director being deemed equivalent to such notice to him.
The By-Laws may also be amended at any general or special
meeting of shareowners, provided notice of the proposed amendment
shall have been given in the call for such meeting.
FIFTEENTH.
The Corporation reserves the right to repeal, alter, amend
or rescind any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred on shareowners herein are
granted subject to this reservation.
5. This restatement of the Certificate of Incorporation of
The May Department Stores Company was adopted in
accordance with Sections 242 and 245 of the Delaware
General Corporation Law.
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IN WITNESS WHEREOF, The May Department Stores Company has
caused this Amended and Restated Certificate of Incorporation to
be signed by Richard A. Brickson, its Secretary, this 22nd day of
May, 1996.
THE MAY DEPARTMENT STORES COMPANY
/s/ Richard A. Brickson
----------------------------------
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EXHIBIT 4(d)
ASSIGNMENT AND ASSUMPTION AGREEMENT
Assignment and Assumption Agreement (the "Agreement"),
dated as of May 24, 1996, among The May Department Stores Company,
a New York corporation (the "Assignor"), The May Department Stores
Company, a Delaware corporation (the "Assignee"), and The Bank of
New York, a banking company organized under the laws of New York
(the "Rights Agent").
WHEREAS, Assignor and the Rights Agent are parties to the
Rights Agreement, dated as of August 19, 1994 (the "Rights
Agreement"), pursuant to which Assignor originally distributed one
right (a "Right") for each share of common stock of Assignor, par
value $.50 per share (the "Assignor Common Stock"), each Right
initially representing the right to purchase one four-hundredth of
a Junior Participating Preference Share of the Assignor having the
rights, powers and preferences set forth in the Certificate of
Incorporation of the Assignor, upon the terms and subject to the
conditions set forth in the Rights Agreement providing for the
issuance of common stock purchase rights to the holders of shares
of Assignor Common Stock; and
WHEREAS, pursuant to the Agreement and Plan of Share Ex-
change dated as of May 22, 1996, between May New York and May
Delaware (the "Share Exchange Agreement"), which in effect provides
that by means of a statutory share exchange (the "Share Exchange"),
May New York will reincorporate from New York to Delaware (the
"Reincorporation"), and subject to the exercise and perfection of
dissenting shareowners' appraisal rights, at the effective time
(the "Effective Time") of the Share Exchange: (i) each share of
Assignor Common Stock and associated preferred stock purchase right
outstanding immediately prior to the Effective Time will be
exchanged for one fully paid, nonassessable share of common stock,
par value $.50 per share, of May Delaware (the "Assignee Common
Stock"), together with its associated preferred stock purchase
right; (ii) each share of Assignor Common Stock (and associated
preferred stock purchase right) held in Assignor's treasury immedi-
ately prior to the Effective Time will be cancelled and restored to
the status of an authorized but unissued share of Assignor Common
Stock; (iii) each ESOP (Employee Stock Ownership Plan) preference
share, par value $.50 per share, of Assignor (the "Assignor ESOP
Shares") outstanding immediately prior to the Effective Time will
be exchanged for one fully paid, nonassessable ESOP (Employee Stock
Ownership Plan) preference share, par value $.50 per share (the
"Assignee ESOP Shares"), of Assignee (which series will be substan-
tially identical to the Assignor ESOP Shares); and (iv) each share
of Assignee Common Stock outstanding immediately prior to the
Effective Time will be cancelled and restored to the status of an
authorized but unissued share of Assignee Common Stock, and as a
result of the Share Exchange, Assignor will become a wholly owned
subsidiary of Assignee; and
<PAGE>
WHEREAS, pursuant to the Share Exchange Agreement,
Assignor has agreed to assign, and Assignee has agreed to assume,
all of the rights and obligations of Assignor under the Rights
Agreement; and
WHEREAS, in order to facilitate the assignment and
assumption being implemented by this Agreement, the parties wish to
make certain conforming amendments to the Rights Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth and intending to be legally
bound hereby, the parties hereby agree as follows:
1. Assignment and Assumption. Assignor hereby conveys,
assigns, transfers and delivers to Assignee all Assignor's right,
title and interest as of the Effective Time in and to, and all of
its rights as of the Effective Time arising out of, the Rights
Agreement. Effective as of the Effective Time, Assignee hereby
assumes, undertakes and will perform, pay or otherwise discharge,
and will indemnify and hold Assignor harmless against, all
obligations, liabilities, duties, claims, damages, costs and
expenses arising out of or pursuant to the Rights Agreement.
2. Rights Agreement Amendment. Effective as of the
Effective Time, the Rights Agreement shall be amended as follows:
(a) The term "Company" shall mean and refer for all
times after the Effective Time to The May Department Stores
Company, a Delaware corporation.
(b) The term "Common Stock" shall mean and refer to the
common stock, par value $.50 per share, of The May Department
Stores Company, a Delaware corporation, except the term "Common
Stock" when used with reference to any Person other than the
Company shall mean the capital stock of such Person with the
greatest voting power, or the equity securities or other equity
interest having power to control or direct the management, of such
Person.
(c) The term "Preferred Stock" shall mean and refer to
the Junior Participating Preference Shares, par value $.50 per
share, of The May Department Stores Company, a Delaware
corporation.
(d) The law governing the Rights Agreement and related
matters as provided in Section 31 of the Rights Agreement shall be
Delaware, and effective from the Effective Time all references in
Section 31 of the Rights Agreement to the State of New York shall
be deemed references to the State of Delaware.
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(e) The term "Agreement" as used in the Rights Agreement
shall mean and refer to the Rights Agreement as amended hereby.
3. Defined Terms. All capitalized terms used in this
Agreement and not defined herein shall be defined as set forth in
the Rights Agreement.
4. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware.
5. Binding Agreement. This Agreement shall be binding
upon, and shall inure to the benefit of, the successors and assigns
of the parties hereto, and the Rights Agreement, as amended hereby,
shall remain in full force and effect in accordance therewith and
herewith and shall be binding upon the parties thereto.
6. Effectiveness of this Agreement. This Agreement
shall take effect at the Effective Time of the Share Exchange
Agreement; provided, however, that this Agreement shall be null and
void and of no effect if the Share Exchange does not become
effective at the Effective Time in accordance with the applicable
provisions of the laws of the State of New York.
7. Counterparts. This Agreement may be executed in any
number of counterparts, all of which when taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
THE MAY DEPARTMENT STORES COMPANY
a New York corporation
By: /s/ Jan R. Kniffen
Name: Jan R. Kniffen
Title: Senior Vice President & Treasurer
THE MAY DEPARTMENT STORES COMPANY
a Delaware corporation
By: /s/ Richard A. Brickson
Name: Richard A. Brickson
Title: Secretary
THE BANK OF NEW YORK
a New York banking company
By: /s/ John I. Sivertsen
Name: John I. Sivertsen
Title: Vice President
4
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EXHIBIT 23 (a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Post-Effective Amendment No. 1
to the Company's registration statements on Form S-8 (Registration
Nos. 333-00957, 33-58985, 33-21415 and 33-98045) 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 our report dated April 24, 1996, included in The
May Department Stores Company Profit Sharing Plan Form 11-K for the
year ended December 31, 1995, and to all references to our firm
included in this registration statement.
ARTHUR ANDERSEN LLP
St. Louis, Missouri
May 24, 1996
<PAGE>
EXHIBIT 24(a)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints Richard A. Brickson, Louis J. Garr, Jr.,
and Jerome T. Loeb, and each or any one of them acting alone, as
his true and lawful attorney-in-fact and agent, with full power of
substitution for him and in his name, place and stead, in any and
all capacities, to sign any and all registration statements,
amendments thereto and post-effective amendments thereto with
respect to The May Department Stores Company Profit Sharing Plan,
the 1994 Stock Incentive Plan of The May Department Stores Company,
the 1987 Stock Option Plan of The May Department Stores Company,
and the 1976 Stock Option Plan of The May Department Stores Company
and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises to
perfect and complete such filing(s), as fully to all the intents
and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his
substitute may lawfully do or cause to be done by virtue thereof.
Dated this 24th day of May, 1996.
/s/ John L. Dunham
John L. Dunham
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints Richard A. Brickson, Louis J. Garr, Jr.,
and Jerome T. Loeb, and each or any one of them acting alone, as
his true and lawful attorney-in-fact and agent, with full power of
substitution for him and in his name, place and stead, in any and
all capacities, to sign any and all registration statements,
amendments thereto and post-effective amendments thereto with
respect to The May Department Stores Company Profit Sharing Plan,
the 1994 Stock Incentive Plan of The May Department Stores Company,
the 1987 Stock Option Plan of The May Department Stores Company,
and the 1976 Stock Option Plan of The May Department Stores Company
and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises to
perfect and complete such filing(s), as fully to all the intents
and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his
substitute may lawfully do or cause to be done by virtue thereof.
Dated this 24th day of May, 1996.
/s/Eugene S. Kahn
Eugene S. Kahn
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
constitutes and appoints Richard A. Brickson, Louis J. Garr, Jr.,
and Jerome T. Loeb, and each or any one of them acting alone, as
his true and lawful attorney-in-fact and agent, with full power of
substitution for him and in his name, place and stead, in any and
all capacities, to sign any and all registration statements,
amendments thereto and post-effective amendments thereto with
respect to The May Department Stores Company Profit Sharing Plan,
the 1994 Stock Incentive Plan of The May Department Stores Company,
the 1987 Stock Option Plan of The May Department Stores Company,
and the 1976 Stock Option Plan of The May Department Stores Company
and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises to
perfect and complete such filing(s), as fully to all the intents
and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his
substitute may lawfully do or cause to be done by virtue thereof.
Dated this 24th day of May, 1996.
/s/ Anthony J. Torcasio
Anthony J. Torcasio
