Exhibit 1.1
February 24, 2000
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Chase Securities 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 $200,000,000
principal amount of 77/8% Debentures Due 2030 (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 statements (file nos. 333-11539;
333-11539-01 with respect to the Guarantees and 333-71413; 333-
71413-01 with respect to the Guarantees) 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 statements 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.
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 99.125% of their principal
amount plus accrued interest, if any, from February 29, 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 $92,000,000
Banc of America Securities LLC $54,000,000
Chase Securities Inc. $54,000,000
Total . . .. . . . . . . . . . . . $200,000,000
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 February 29, 2000, or at such other time on
the same or such other date, not later than March 7, 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.
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
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.
(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.
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.
(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.
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 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.
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 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 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
Accepted, February 29, 2000:
MORGAN STANLEY & CO. INCORPORATED
BANC AMERICA SECURITIES, LLC
CHASE SECURITIES INC.
Acting severally on behalf of themselves
By MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco