Exhibit 1.1
May 31, 2000
Morgan Stanley & Co. Incorporated
Banc One Capital Markets, 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
$200,000,000 principal amount of 8-1/2% Debentures Due 2019 (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 Banc One Trust Company, National Association, as
successor in interest to 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.
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 98.931% of
their principal amount plus accrued interest, if any, from June
5, 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 One Capital Markets, Inc. $54,000,000
Salomon Smith Barney 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 June 5, 2000, or at such other time
on the same or such other date, not later than June 12, 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, May 31, 2000:
MORGAN STANLEY & CO. INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
SALOMON SMITH BARNEY INC.
Acting severally on behalf of themselves
By MORGAN STANLEY & CO. INCORPORATED
By: /s/ Hal Hendershot