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FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: May 23, 2000
Date of earliest event reported: May 17, 2000
THE MAY DEPARTMENT STORES COMPANY
(Exact name of Registrant as specified in its charter)
Delaware I-79 43-1104396
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
611 Olive Street, St. Louis, Missouri 63101
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code:
(314) 342-6300
Page 1
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Item 5. Other Events.
On May 22, 2000 , The May Department Stores Company, a New
York corporation ("May-NY"), which is a wholly-owned subsidiary of
the Registrant, completed the sale of $250,000,000 principal amount
of its 8-3/4% Debentures due May 15, 2029, (the "Securities").
The payment of principal of and interest on the Securities are
unconditionally guaranteed by the Registrant. The Securities will
be represented by one or more book-entry securities registered in
the name of the nominee of The Depository Trust Company, which will
act as the Depositary. May-NY intends to use the net proceeds from
the sale of the Securities for stock repurchases, capital
expenditures, working capital needs and other general corporate
purposes, including investments and acquisitions.
The Securities were issued under the terms of an Indenture,
dated as of June 17, 1996, among the Registrant, May-NY and Bank
One Trust Company, National Association (successor in interest to
The First National Bank of Chicago), as Trustee.
Item 7. Financial Statements and Exhibits.
(c) Exhibits. The following documents are filed as Exhibits.
Exhibit No. Exhibit
1.1 Underwriting Agreement, dated
May 17, 2000, among the Registrant,
May-NY, Morgan Stanley & Co. Incorporated,
First Union Securities, Inc. and Salomon
Smith Barney Inc.
4.1 Specimen of global certificate for
8-3/4% Debentures due May 15, 2029
Page 2
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
THE MAY DEPARTMENT STORES COMPANY
Dated: May 23, 2000 By: /s/ Richard A. Brickson
Richard A. Brickson
Secretary and Senior Counsel
Page 3
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INDEX TO EXHIBITS
Exhibit No. Exhibit
1.1 Underwriting Agreement, dated
May 17, 2000, among the Registrant,
May-NY, Morgan Stanley & Co. Incorporated,
First Union Securities, Inc. and Salomon
Smith Barney Inc.
4.1 Specimen of global certificate for
8-3/4% Debentures due May 15, 2029
Page 4
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Exhibit 1.1
May 17, 2000
Morgan Stanley & Co. Incorporated
First Union Securities, Inc.
Salomon Smith Barney Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, N.Y. 10036
Dear Sirs:
The May Department Stores Company, a New York corporation
(hereinafter called the "Company"), proposes to issue
$250,000,000 principal amount of 8-3/4% Debentures Due 2029 (the
"Securities") to be issued pursuant to the provisions of an
Indenture, dated as of June 17, 1996, between the Company, The
May Department Stores Company, a Delaware corporation (the
"Guarantor") and The First National Bank of Chicago, Trustee.
The Securities are to be unconditionally guaranteed (the
"Guarantees") as to payment of principal and interest by the
Guarantor. The Company and the Guarantor have filed with the
Securities and Exchange Commission (the "Commission") a
registration statement (file no. 333-71413) relating to the
Securities which has been declared effective by the Commission;
and the Company and the Guarantor have filed or will file with
the Commission a prospectus supplement specifically relating to
the Securities pursuant to Rule 424 under the Securities Act of
1933, as amended (the "Act"). The term Registration Statement
means the registration statement as amended to the date of this
Agreement. The term Basic Prospectus means the prospectus
included in the Registration Statement. The term Prospectus
means the Basic Prospectus together with the prospectus
supplement specifically relating to the Securities, as filed
with, or mailed for filing to, the Commission pursuant to Rule
424. The term preliminary prospectus means a preliminary
prospectus supplement specifically relating to the Securities
together with the Basic Prospectus. As used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and
"preliminary prospectus" shall include in each case the material,
if any, incorporated by reference therein.
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I.
The Company hereby agrees to sell to the several
Underwriters named below, and the Underwriters, upon the basis of
the representations and warranties herein contained, but subject
to the conditions hereinafter stated, agree to purchase from the
Company, severally and not jointly, the principal amounts of
Securities set forth below opposite their names, at 98.503% of
their principal amount plus accrued interest, if any, from May
15, 2000, in each case to the date of payment and delivery. Such
Securities shall be unconditionally guaranteed as to the payment
of principal and interest by the Guarantor.
Name Principal Amounts
Morgan Stanley & Co. Incorporated $115,000,000
First Union Securities, Inc. $67,500,000
Salomon Smith Barney Inc. $67,500,000
Total . . .. . . . . . . . . . . . $250,000,000
II.
The Company and the Guarantor are advised by you that the
Underwriters propose to make a public offering of their
respective portions of the Securities as soon after this
Agreement is entered into as in your judgment is advisable. The
terms of the public offering of the Securities are set forth in
the Prospectus.
III.
Payment for the Securities shall be made by wire transfer of
same day funds to an account specified by the Company not less
than two full business days prior to the date of payment at 10:00
A.M., New York City time, on May 22, 2000, or at such other time
on the same or such other date, not later than May 30, 2000, as
shall be designated by you, upon delivery to you for the
respective accounts of the several Underwriters of the Securities
registered in such names and in such denominations as you shall
request in writing not less than two full business days prior to
the date of delivery. The time and date of such payment and
delivery are herein referred to as the Closing Date.
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IV.
The several obligations of the Underwriters hereunder are
subject to the following conditions:
(a) (i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the
Commission, and there shall have been no material adverse change
in the condition of the Guarantor and its subsidiaries, taken as
a whole, from that set forth in the Registration Statement and
the Prospectus, and you shall have received, on the Closing Date,
a certificate, dated the Closing Date and signed by executive
officers of the Company and the Guarantor, to the foregoing
effect. The officers making such certificate may rely upon the
best of their knowledge as to proceedings pending or threatened;
and
(ii) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have
occurred any downgrading in the rating accorded any of the
Company's or the Guarantor's securities by Moody's Investors
Service, Inc. or Standard & Poor's Corporation.
(b) You shall have received on the Closing Date an opinion
of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Company and the Guarantor, dated the Closing Date, to the effect
that (i) the Company has been duly organized and is subsisting
and in good standing as a corporation under the laws of the State
of New York, (ii) the Guarantor has been duly organized and is
subsisting and in good standing as a corporation under the laws
of the State of Delaware, (iii) the Indenture has been duly
authorized, executed and delivered by each of the Company and the
Guarantor and is a valid and binding agreement, enforceable
against the Company and the Guarantor in accordance with its
terms, except to the extent that enforcement thereof may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity), (iv) the sale and issuance of
the Securities have been duly authorized by all requisite
corporate action on the part of the Company, and the Securities,
when executed and authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be valid and
binding obligations of the Company, entitled to the benefit of
the Indenture and enforceable in accordance with their terms,
except to the extent that enforcement thereof may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium and other
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similar laws now or hereafter in effect relating to creditors'
rights generally and (b) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law or
in equity), (v) the Guarantees have been duly authorized by all
requisite corporate action on the part of the Guarantor and duly
executed and delivered by the Guarantor and constitute valid and
binding obligations of the Guarantor enforceable in accordance
with their terms, except to the extent that enforcement thereof
may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium and other similar laws now or hereafter in effect
relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), (vi) this
Agreement has been duly authorized, executed and delivered by the
Company and the Guarantor, and (vii) the Registration Statement,
as of its effective date, and the Basic Prospectus, as
supplemented by the prospectus supplement, as of the date of the
prospectus supplement, appeared on their face to be appropriately
responsive, in all material respects relevant to the offering of
the Securities, to the requirements of the Act, and the
applicable rules and regulations of the Commission thereunder.
In addition, such counsel shall state that no facts have
come to the attention of such counsel in the course of their
review that have led them to believe that, insofar as relevant to
the offering of the Securities, the Registration Statement, at
the time it became effective, contained an untrue statement of a
material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading or that the Basic Prospectus, as supplemented by the
prospectus supplement, on the date of the prospectus supplement,
contained an untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. Such opinion may state that such counsel
do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration
Statement, any post-effective amendment thereto, the Basic
Prospectus or the prospectus supplement except for those made
under the captions "Description of Debt Securities" in the Basic
Prospectus and "Description of Securities" and "Underwriters" in
the prospectus supplement, insofar as they relate to provisions
of documents therein described, and that they do not express any
opinion or belief as to the financial statements, schedules or
other financial data included or incorporated by reference in or
excluded from the Registration Statement, any post-effective
amendment thereto, the Basic Prospectus or the prospectus
supplement, or as to the statement of the eligibility and
qualification of the Trustee under the Indenture under which the
Securities are being issued.
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(c) You shall have received on the Closing Date an opinion
of Alan E. Charlson, Chief Counsel for the Company and the
Guarantor, dated the Closing Date, to the effect that (i) each of
the Company and the Guarantor is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or the ownership or leasing of
property requires such qualification, (ii) the performance of
this Agreement will not contravene any provision of the
certificate of incorporation or by-laws of the Company or the
Guarantor or, to the actual knowledge of such counsel, any
agreement or other instrument binding upon either the Company or
the Guarantor and no consent, approval or authorization of any
governmental body is required for the performance of this
Agreement, except such as are specified and have been obtained,
and such consents, approvals or authorizations as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters,
and (iii) the documents filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") incorporated by
reference in the Prospectus, when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder; and he
has no reason to believe that any of such documents when so filed
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such documents were so filed, not misleading. Such
opinion may state that such counsel does not express any opinion
or belief as to the financial statements or other financial data
contained therein.
(d) You shall have received on the Closing Date from Davis
Polk & Wardwell, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the validity of
the Indenture, the Securities, the Guarantees, this Agreement,
the Registration Statement, the Prospectus, and other related
matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
(e) You shall have received on the Closing Date, a letter
dated the Closing Date, in form and substance satisfactory to
you, from Arthur Andersen LLP, independent public accountants,
containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained in or incorporated by reference in the
Prospectus.
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V.
In further consideration of the agreements of the
Underwriters herein contained, the Company and the Guarantor,
jointly and severally, covenant as follows:
(a) To furnish to you without charge three conformed
copies of the Registration Statement (including exhibits and
documents incorporated by reference) and to each other
Underwriter a copy of the Registration Statement (without
exhibits but including documents incorporated by reference)
and, during the period mentioned in paragraph (c) below, to
furnish to each Underwriter as many copies of the Prospectus
and any supplements and amendments thereto and any documents
incorporated by reference as you may reasonably request.
The terms "supplement" and "amendment" or "amend" as used in
this Agreement include or refer to all documents filed by
the Company and/or the Guarantor with the Commission
subsequent to the date of the Basic Prospectus pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act which
are deemed to be incorporated by reference in the Prospectus
from the date of filing such documents in accordance with
Form S-3.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish you a copy of each
such proposed amendment or supplement.
(c) If, during such period after the first date of the
public offering of the Securities as in the opinion of your
counsel the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event
shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or
if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its
own expense, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to
which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law.
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(d) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to pay all
expenses (including fees not exceeding $10,000 and
disbursements of counsel) in connection with such
qualification and in connection with the determination of
the eligibility of the Securities for investment under the
laws of such jurisdictions as you may designate.
(e) To make generally available to the Company's
security holders as soon as practicable an earnings
statement covering the twelve month period beginning after
the date of this Agreement, which shall satisfy the
provisions of Section 11(a) of the Act.
(f) During the period beginning on the date of this
Agreement and continuing to and including the Closing Date,
not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company substantially similar to
the Securities, without your prior written consent.
VI.
The Company and the Guarantor, jointly and severally,
represent and warrant to each Underwriter that (i) each document,
if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with such Act and
the rules and regulations thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not
contain any untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, (iii) each preliminary
prospectus, if any, filed pursuant to Rule 424 under the Act
complied when so filed in all material respects with such Act and
the applicable rules and regulations thereunder, (iv) the
Registration Statement and the Prospectus comply and, as amended
or supplemented, if applicable, will comply in all material
respects with the Act and the applicable rules and regulations
thereunder and (v) the Registration Statement and the Prospectus
do not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; except that these representations
and warranties do not apply to statements or omissions in the
Registration Statement, any preliminary prospectus or the
Prospectus based upon information furnished to the Company in
writing by or on behalf of any Underwriter expressly for use
therein.
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The Company and the Guarantor, jointly and severally, agree
to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus (if used within the period set forth in paragraph (c)
of Article V hereof and as amended or supplemented if the Company
or the Guarantor shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any
Underwriter expressly for use therein; provided that the
foregoing indemnification with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or
to the benefit of any person controlling such Underwriter) to the
extent that any such loss, claim, damage or liability of such
Underwriter results from the fact that such Underwriter sold
Securities to a person to whom there was not sent or given, if
required by the Act, at or prior to the written confirmation of
the sale of such Securities to such person, a copy of the
Prospectus (excluding documents incorporated by reference)
correcting the untrue statement or omission of a material fact if
the Company has previously furnished copies thereof to such
Underwriter.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantor, their
respective directors, their respective officers who sign the
Registration Statement and any person controlling the Company or
the Guarantor to the same extent as the foregoing indemnity from
the Company and the Guarantor to each Underwriter, but only with
reference to information relating to such Underwriter furnished
in writing by or on behalf of such Underwriter through you
expressly for use in the Registration Statement, the Prospectus
or any preliminary prospectus.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either of
the two preceding paragraphs, such person (the "indemnified
party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified
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party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel necessary for
appearing in any proceeding) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by you in the
case of parties indemnified pursuant to the second preceding
paragraph and by the Company in the case of parties indemnified
pursuant to the immediately preceding paragraph. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is
entered into more than 30 business days after receipt by such
indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the
subject matter of such proceeding.
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If the indemnification provided for in this Article VI is
unavailable to an indemnified party under the second or third
paragraphs hereof or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Guarantor
on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Company and the Guarantor on the one hand and of the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company
and the Guarantor on the one hand and the Underwriters on the
other in connection with the offering of the Securities shall be
deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of
the Company and the Guarantor on the one hand and of the
Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Guarantor and the Underwriters agree that
it would not be just and equitable if contribution pursuant to
this Article VI were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Article VI, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which
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the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Article
VI are several in proportion to their respective underwriting
percentages (as defined in the Agreement Among Underwriters) and
not joint.
The indemnity and contribution agreements contained in this
Article VI and the representations and warranties of the Company
and the Guarantor in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on
behalf of the Company or the Guarantor, their respective
directors or officers or any person controlling the Company or
the Guarantor and (iii) acceptance of and payment for any of the
Securities.
VII.
This Agreement shall be subject to termination in your
absolute discretion, by notice given to the Company, if prior to
the Closing Date (i) trading in securities generally on the New
York Stock Exchange or the American Stock Exchange shall have
been suspended or materially limited, (ii) a general moratorium
on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iii)
there shall have occurred any material outbreak or escalation of
hostilities or any material adverse change in financial markets
or any calamity or crisis the effect of which is such as to make
it, in your judgment, impracticable to market the Securities.
VIII.
If any one or more of the Underwriters shall fail or refuse
to purchase Securities which it or they have agreed to purchase
hereunder, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate
principal amount of the Securities, the other Underwriters shall
be obligated severally in the proportions which the amounts of
Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you
may specify, to purchase the Securities which such defaulting
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Underwriter or Underwriters agreed but failed or refused to
purchase; provided that in no event shall the principal amount of
Securities which any Underwriter has agreed to purchase pursuant
to Article I hereof be increased pursuant to this Article VIII by
an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Underwriter. If
any Underwriter or Underwriters shall fail or refuse to purchase
Securities which it or they have agreed to purchase hereunder,
and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate
principal amount of the Securities and arrangements satisfactory
to you and the Company for the purchase of such Securities are
not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting
Underwriter or of the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of
the Company or the Guarantor to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any
reason the Company or the Guarantor shall be unable to perform
its obligations under this Agreement, the Company and the
Guarantor will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such
Underwriters in connection with the Securities.
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Very truly yours,
THE MAY DEPARTMENT STORES COMPANY,
a New York corporation
By: /s/ Jan. R. Kniffen
THE MAY DEPARTMENT STORES COMPANY,
a Delaware corporation
By: /s/ Jan. R. Kniffen
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Accepted, May 22, 2000:
MORGAN STANLEY & CO. INCORPORATED
FIRST UNION SECURITIES, INC.
SALOMON SMITH BARNEY INC.
Acting severally on behalf of themselves
By MORGAN STANLEY & CO. INCORPORATED
By: /s/ Hal Hendershot
<PAGE>
Exhibit 4.1
This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name
of the Depositary or a nominee of the Depositary. This Security
is exchangeable for Securities registered in the name of a person
other than the Depositary or its nominee only in the limited
circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company (as defined below) or its
agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EXCEPT AS OTHERWISE PROVIDED IN THE INDENTURE, THIS SECURITY MAY
BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO A NOMINEE OF
THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY, TO THE
DEPOSITARY OR TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
THE MAY DEPARTMENT STORES COMPANY
8-3/4% DEBENTURE DUE 2029
CUSIP 577778 BL 6
$250,000,000
R-1
THE MAY DEPARTMENT STORES COMPANY, a corporation duly
organized and existing under the laws of the State of New York
(herein called the "Company", which term includes any successor
corporation under the Indenture herein referred to), for value
received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of TWO HUNDRED FIFTY MILLION DOLLARS
($250,000,000) on May 15, 2029, and to pay interest thereon from
May 15, 2000 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually
on March 1 and September 1 of each year, commencing May 15, 2000,
at the rate of 8-3/4% per annum, until the principal hereof is
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fully paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
fifteenth day of February or August (whether or not a Business
Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Debentures of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in such Indenture.
Payment of the principal of and interest on this
Security will be made at the office or agency of the Company
maintained for that purpose in The City of New York, New York, in
such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the
Security Register.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET
FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
Instrument to be duly executed under its corporate seal.
<PAGE>
Dated: May 22, 2000
THE MAY DEPARTMENT STORES COMPANY
a New York corporation
[Seal]
By:________________________________
Richard A. Brickson
Secretary
Attest: ____________________________
Linda J. Balicki
Assistant Secretary
This is one of the Securities of the series designated therein
issued under the within-mentioned Indenture.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
By: _______________________________
Authorized Officer
<PAGE>
REVERSE OF Debenture
THE MAY DEPARTMENT STORES COMPANY
8-3/4% Debenture Due 2029
This Security is one of a duly authorized series of
guaranteed debt securities of the Company (herein called the
"Debentures"), issued under an Indenture, dated as of June 17,
1996 (herein called the "Indenture"), among the Company, The May
Department Stores Company, a Delaware corporation (the
"Guarantor") and Bank One Trust Company, National Association
(formerly The First National Bank of Chicago), as Trustee (herein
called the "Trustee", which term includes any successor trustee
under the Indenture), which provides for the issuance by the
Company from time to time of debt securities of the Company
(herein called the "Debt Securities") in one or more series, to
which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Debentures and of the
terms upon which the Debentures are, and are to be, authenticated
and delivered. This Debenture is one of the series designated on
the face hereof, limited in aggregate principal amount to
$250,000,000.
This Debenture will be redeemable, in whole or from time
to time in part, at the option of the Company on any date (a
"Redemption Date"), at a redemption price equal to the greater of
(1) 100 percent of the principal amount of the Debentures to be
redeemed and (2) the sum of the present values of the remaining
scheduled payments of principal and interest thereon (exclusive
of interest accrued to that Redemption Date) discounted to that
Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 25
basis points, plus, in either case, accrued and unpaid interest
on the principal amount being redeemed to that Redemption Date;
provided that installments of interest on the Debentures which
are due and payable on an interest payment date falling on or
prior to the relevant Redemption Date shall be payable to the
holders of those Debentures, registered as such at the close of
business on the relevant record date according to their terms and
the provisions of the Indenture.
"Treasury Rate" means, with respect to any Redemption
Date for the Debentures, (1) the yield, under the heading which
represents the average for the immediately preceding week,
appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve
System and which establishes yields on actively traded United
<PAGE>
States Treasury securities adjusted to constant maturity under
the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the Maturity Date, yields for
the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Treasury
Rate shall be interpolated or extrapolated from those yields on a
straight line basis, rounding to the nearest month) or (2) if
that release (or any successor release) is not published during
the week preceding the calculation date or does not contain those
yields, the rate per annum equal to the semi-annual equivalent
yield to maturity the Comparable Treasury Issue, calculated using
a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable
Treasury Price for that Redemption Date. The Treasury Rate shall
be calculated on the third Business Day preceding the Redemption
Date.
"Comparable Treasury Issue" means the United States
Treasury security selected by the Independent Investment Banker
as having a maturity comparable to the remaining term of the
Debentures to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Debentures.
"Independent Investment Banker" means Morgan Stanley &
Co. Incorporated or, if that firm is unwilling or unable to
select the Comparable Treasury Issue, an independent investment
banking institution of national standing appointed by the Trustee
after consultation with the Company.
"Comparable Treasury Price" means with respect to any
Redemption Date for the Debentures (1) the average of five
Reference Treasury Dealer Quotations for that Redemption Date,
after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (2) if the Trustee obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all
such quotations.
"Reference Treasury Dealer" means each of Morgan Stanley
& Co. Incorporated, First Union Securities, Inc., and Salomon
Smith Barney Inc., and their respective successors, provided,
however, that if any of the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means with
respect to each Reference Treasury Dealer and any Redemption
Date, the average, as determined by the Trustee, of the bid and
<PAGE>
asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing
to the Trustee by that Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding that
Redemption Date.
Notice of any redemption by the Company will be mailed
at least 30 days but not more than 60 days before any Redemption
Date to each holder of the Debentures to be redeemed. If less
than all the Debentures are to be redeemed at the Company's
option, the Trustee shall select, in such manner as it shall deem
fair and appropriate, the Debentures to be redeemed in whole or
in part.
If an Event of Default with respect to the Debentures
shall occur and be continuing, the principal amount of the
Debentures may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Debentures under the Indenture and the waiver of
compliance by the Company with certain provisions of the
Indenture at any time with the consent of the Holders of a
majority in aggregate principal amount of the Debt Securities at
the time Outstanding (or, in case less than all of the several
series of Debt Securities then Outstanding are affected, of the
Holders of a majority in principal amount of the Debt Securities
at the time Outstanding of each affected series). The Indenture
also permits the Holders of a majority in principal amount of the
Debentures at the time Outstanding, on behalf of the Holders of
all the Debentures, to waive certain past defaults under the
Indenture and their consequences. Any such consent or waiver by
the Holder of this Debenture shall be conclusive and binding upon
such Holder and upon all future Holders of this Debenture and of
any Debenture issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Debenture.
The Indenture contains provisions for defeasance at any
time of (1) the entire indebtedness of the Debentures and (2)
certain restrictive covenants and certain Events of Default
applicable to the Debentures, upon compliance by the Company with
certain conditions set forth in the Indenture and in an Officers'
Certificate issued pursuant to the Indenture.
As provided in and subject to the provisions of the
Indenture, any Holder of these Debentures shall not have the
right to institute any proceeding, judicial or otherwise, with
respect to the Indenture or for the appointment of a receiver or
<PAGE>
trustee or for any other remedy hereunder, unless such Holder
shall have previously given the Trustee written notice of a
continuing Event of Default with respect to the Debentures, the
Holders of not less than 25% in principal amount of the
Debentures at the time outstanding shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default as trustee and offered the Trustee
reasonable indemnity and the Trustee shall not have received from
the Holders of a majority in principal amount of the Debentures
at the time outstanding a direction inconsistent with such
request and shall have failed to institute any such proceedings,
for 60 days after receipt of such notice, request and offer of
indemnity.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Debenture at the
times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Debenture is
registrable in the Debenture Register, upon surrender of this
Debenture for registration of transfer at the office or agency of
the Company maintained for that purpose in The City of New York,
New York, or at any other office or agency designated for that
purpose by the Company pursuant to the Indenture, duly endorsed
by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Debenture Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures, of authorized
denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
The Debentures are issuable only in registered form
without coupons in denominations of $1,000 and any multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Debentures are exchangeable
for a like aggregate principal amount of Debentures of a
different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for
registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name
<PAGE>
this Debenture is registered as the owner hereof for all
purposes, whether or not this Debenture be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this Debenture which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
GUARANTEE
For good and valuable consideration, receipt of which is
acknowledged, and intending to be legally bound, the Guarantor
hereby unconditionally guarantees the due and punctual payment of
the principal of, sinking fund payment, if any, premium, if any,
and interest on, and any Redemption Price with respect to this
Debenture, when and as the same shall become due and payable,
whether at maturity, upon acceleration or redemption or
otherwise, in accordance with the terms of this Debenture and the
Indenture.
THE MAY DEPARTMENT STORES COMPANY
a Delaware corporation
[Seal]
By: _______________________________
Richard A. Brickson
Secretary
Attest: ____________________________
Linda J. Balicki
Assistant Secretary
<PAGE>
(FORM OF ASSIGNMENT)
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of this Debenture, shall be construed as
though they were written out in full according to applicable laws
or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ______(Cust) Custodian ______(Minor)
under Uniform Gifts to Minors Act ___________________ (State)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
FOR VALUE RECEIVED ___________________________ hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please Print or Typewrite Name and Address of Assignee)
the within Debenture and all rights thereunder, hereby
irrevocably constituting and appointing
_____________________________________________ Attorney to
transfer said Debenture on the books of the Company, with full
power of substitution in the premises.
Dated: _________________________________
Notice: The signature to this assignment must correspond with the
name as written upon the face of this Debenture in every
particular, without alteration or enlargement or any change
whatever.
Signature Guaranteed:
_________________________________________________
Notice: Signature(s) must be guaranteed by an "eligible guarantor
institution" that is a member or participant in a "signature
guarantee program" (e.g., the Securities Transfer Agents
Medallion Program, the Stock Exchange Medallion Program or the
New York Stock Exchange, Inc. Medallion Signature Program).
