As filed with the Securities and Exchange Commission on September 10, 1999
Registration Statement No. 333-[ ]
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-4
REGISTRATION STATEMENT
NO. 333-[ ]
UNDER THE SECURITIES ACT OF 1933
----------------------
JONES APPAREL GROUP, INC.
(Exact name of Registrant as specified in its charter)
JONES APPAREL GROUP HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
JONES APPAREL GROUP USA, INC.
(Exact name of registrant as specified in its charter)
NINE WEST GROUP INC.
(Exact names of registrant as specified in its charter)
---------------------------
<TABLE>
<S> <C> <C>
Pennsylvania 6179 06-0935166
(State or other jurisdiction of (Primary standard industrial (I.R.S. Employer Identification No.)
incorporation or organization) classification code number)
Delaware 6179 51-0384507
(State or other jurisdiction of (Primary standard industrial (I.R.S. Employer Identification No.)
incorporation or organization) classification code number)
Pennsylvania 2330 23-2978516
(State or other jurisdiction or (Primary standard industrial (I.R.S. Employer Identification No.)
incorporation or organization) classification code number)
Delaware 3140 06-1093855
(State or other jurisdiction or (Primary standard industrial (I.R.S. Employer Identification No.)
incorporation or organization) classification code number)
</TABLE>
---------------------------
250 Rittenhouse Circle
Bristol, PA 19007
(215) 785-4000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
---------------------------
Ira M. Dansky, Esq.
Jones Apparel Group, Inc.
1411 Broadway
New York, NY 10018
(212) 536-9526
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------------
Copy to:
Philip J. Boeckman, Esq.
Cravath, Swaine & Moore
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
---------------------------
Approximate date of commencement of proposed sale to public: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box.|_|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. |_|
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
===================================================================================================
<S> <C> <C> <C> <C>
Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
Being Registered Registered Per Unit (1) Price(1) Fee(2)
7.50% Senior Notes 175,000,000 100% $175,000,000 $48,650
due 2004
7.875% Senior Notes 225,000,000 100% $225,000,000 $62,550
due 2006
</TABLE>
(1) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457 of the General Rules and Regulations under the
Securities Act.
(2) Calculated pursuant to Rule 457 of the Securities Act.
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the SEC, acting pursuant to said Section 8(a), may
determine.
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 10, 1999
PROSPECTUS
---------------------------
$400,000,000
Jones Apparel Group, Inc.
Jones Apparel Group Holdings, Inc.
Jones Apparel Group USA, Inc.
Nine West Group Inc.
Offer to Exchange
7.50% Senior Notes due 2004 and 7.875% Senior Notes due 2006 for any and all
outstanding 7.50% Senior Notes due 2004 and 7.875% Senior Notes due 2006
---------------------------
Summary of the Exchange Offer
This Prospectus (and accompanying Letter of Transmittal) relates to our
proposed offer to exchange up to $400,000,000 aggregate principal amount of
new 7.50% Senior Notes due 2004 (the "2004 Notes") and 7.875% Senior Notes due
2006 (the "2006 Notes" and, together with the 2004 Notes, the "Exchange
Notes"), which will be freely transferable, for any and all outstanding 7.50%
Senior Notes due 2004 and 7.875% Senior Notes due 2006 issued in a private
offering on June 15, 1999 (collectively, the "Restricted Notes"), which have
certain transfer restrictions.
- The Exchange Offer expires at 5:00 p.m., New York City time, on [ ],
1999, unless extended.
- The terms of the Exchange Notes are substantially identical to the
terms of the Restricted Notes, except that the Exchange Notes will be
freely transferable and issued free of any covenants regarding
exchange and registration rights.
- All Restricted Notes which are validly tendered and not validly
withdrawn will be exchanged.
- Tenders of Restricted Notes may be withdrawn at any time prior to
expiration of the Exchange Offer.
- We will not receive any proceeds from the Exchange Offer.
- The exchange of Restricted Notes for Exchange Notes should not be a
taxable event for United States Federal income tax purposes.
- Holders of Restricted Notes do not have any appraisal or dissenters'
rights in connection with the Exchange Offer. Restricted Notes not
exchanged in the Exchange Offer will remain outstanding and be
entitled to the benefits of the Indenture (defined below), but except
under certain circumstances will have no further exchange or
registration rights under the Exchange and Registration Rights
Agreement.
- Our "affiliates" (within the meaning of the Securities Act of 1933, as
amended) may not participate in the Exchange Offer.
- All broker-dealers must comply with the registration and prospectus
delivery requirements of the Securities Act. See "Plan of
Distribution" beginning on page 33.
- We do not intend to apply for listing of the Exchange Notes on any
securities exchange or to arrange for them to be quoted on any
quotation system.
---------------------------
Please see "Risk Factors" beginning on page 5 for a discussion of certain
factors you should consider in connection with the Exchange Offer .
---------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the Exchange Notes or determined if
this Prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
We may amend or supplement this Prospectus from time to time by filing
amendments or supplements as required. You should read this entire Prospectus
(and accompanying Letter of Transmittal and related documents) and any
amendments or supplements carefully before making your investment decision.
---------------------------
Our principal executive offices are located at
250 Rittenhouse Circle, Bristol, Pennsylvania 19007.
Our telephone number is (215) 785-4000.
The date of this Prospectus is [ ], 1999 .
<PAGE>
TABLE OF CONTENTS
Page
Where You Can Find More Information....................................... 3
The Company............................................................... 4
Forward-Looking Statements................................................ 5
Risk Factors.............................................................. 5
Ratios of Earnings to Fixed Charges....................................... 10
Exchange Offer............................................................ 11
Description of Notes...................................................... 20
Certain United States Federal Income Tax Considerations................... 29
Book-Entry; Delivery and Form............................................. 30
Plan of Distribution...................................................... 33
Legal Matters............................................................. 34
Experts................................................................... 34
---------------------------
As used in this Prospectus, unless the context requires otherwise, (1)
"JAG" means Jones Apparel Group, Inc., (2) "Jones Holdings" means Jones Apparel
Group Holdings, Inc., (3) "Jones USA" means Jones Apparel Group USA, Inc., (4)
"Nine West" means Nine West Group Inc., (5) "We" means JAG, Jones Holdings,
Jones USA and Nine West, collectively, (6) "Jones" or the "Company" means JAG
and its predecessors and consolidated subsidiaries, (7) "Issuers" means JAG,
Jones, Jones Holdings, Jones USA and Nine West and (8) "Notes" means both the
Restricted Notes and the Exchange Notes. Italicized terms in this Prospectus
indicate trademarks or other protected intellectual property which Jones owns or
licenses.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
In connection with the Exchange Offer, we have filed with the SEC a
Registration Statement under the Securities Act of 1933 (the "Securities Act"),
relating to the Exchange Notes to be issued in the Exchange Offer. As permitted
by SEC rules, this Prospectus omits certain information included in the
Registration Statement. For a more complete understanding of the Exchange Offer,
you should refer to the Registration Statement, including its exhibits.
We also file annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy the Registration
Statement and any other document we file at the SEC's public reference room at
450 Fifth Street, N.W., Washington, D.C. 20549. These documents are also
available at the public reference rooms at the SEC's regional offices in New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms. Our SEC filings are also
available to the public at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those documents. These incorporated documents contain important
business and financial information about us which is not included in or
delivered with this Prospectus. The information incorporated by reference is
considered to be part of this Prospectus, and later information filed with the
SEC will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") prior to [ ], 1999, the date the Exchange Offer expires.
- Annual Report on Form 10-K for the year ended December 31, 1998
as amended by Form 10K/A Numbers 1 and 2 dated August 26, 1999
and September 10, 1999;
- Quarterly Reports on Form 10-Q for the quarters ended April 4,
1999 and July 4, 1999; and
- Current Reports on Form 8-K dated January 1, 1999, January 13,
1999, March 2,1999, April 7, 1999 and June 15, 1999.
These filings are available without charge to holders of Restricted
Notes. You may request a copy of these filings by writing or telephoning us at
the following address:
Chief Financial Officer
Jones Apparel Group, Inc.
250 Rittenhouse Circle
Bristol, Pennsylvania 19007
(215) 785-4000
To obtain timely delivery of any copies of filings requested from us,
please write or telephone us no later than [ ] , 1999.
<PAGE>
THE COMPANY
General
Jones is a leading designer and marketer of better priced women's
sportswear, suits, dresses and jeanswear. Jones has pursued a multi-brand
strategy by marketing its products under several of its nationally known brands,
including Jones New York, Evan-Picone and Rena Rowan, and the licensed brands
Lauren by Ralph Lauren and Ralph by Ralph Lauren. Each label is differentiated
by its own styling and pricing strategy. Jones primarily contracts for the
manufacture of its products through a worldwide network of quality
manufacturers. Jones has capitalized on its nationally known brand names by
entering into 32 licenses for the Jones New York brand name and 14 licenses for
the Evan-Picone brand name with select manufacturers of women's and men's
apparel and accessories.
Recent Transactions
Acquisition of Nine West. On June 15, 1999, JAG completed its
acquisition (the "Acquisition") of Nine West, pursuant to an Agreement and Plan
of Merger dated as of March 1, 1999 with Nine West. In the Acquisition, JAG
indirectly purchased all of the shares of Nine West common stock for a total
purchase price of approximately $463.2 million in cash and approximately 17.1
million shares of JAG common stock. In addition, JAG assumed all of Nine West's
outstanding debt, a portion of which has been or will be refinanced. JAG
financed the Acquisition with the proceeds of the Notes and the new Senior
Credit Facilities (defined below).
Nine West is a leading designer, developer, manufacturer and
marketer of women's footwear and accessories. Nine West markets collections of
casual, career and dress footwear and accessories under multiple brand names
which are targeted to various segments of the women's footwear and accessories
markets. Nine West's footwear and accessories are sold to more than 7,000
department, specialty and independent retail stores and through approximately
1,400 of its own retail locations. In addition to its flagship Nine West
label, Nine West's internationally recognized brands include Amalfi,
Bandolino, Calico, cK/Calvin Klein Shoes and Bags (under license), Easy
Spirit, Enzo Angiolini, Evan-Picone (under license), 9 & Co., Pappagallo,
Pied a Terre, Selby and Westies. Nine West's private label division also
arranges for the purchase of footwear by major retailers and other wholesalers
for sale under the customer's own label.
Offering of Restricted Notes. On June 15, 1999, the Issuers issued
$400.0 million aggregate principal amount of the Restricted Notes in a private
offering exempt from the registration requirements of the Securities Act. The
Restricted Notes were issued pursuant to an indenture dated as of June 15, 1999
(the "Indenture") among the Issuers and The Bank of New York, as trustee (the
"Trustee"). The Restricted Notes were issued as unsecured senior obligations of
the Issuers, ranking equally in right of payment with all existing and future
unsecured senior debt of the Issuers and senior in right of payment to all
future subordinated debt of the Issuers.
JAG received net proceeds of approximately $396.4 million from the
issuance of the Restricted Notes. JAG used the net proceeds from the sale of the
Restricted Notes, together with borrowings under the Senior Credit Facilities,
to finance the cash portion of the Acquisition, to refinance certain existing
indebtedness of Nine West, to pay related expenses and for general corporate
purposes, including working capital.
Senior Credit Facilities. Concurrently with the issuance of the
Restricted Notes, the Issuers entered into $1.2 billion aggregate principal
amount of unsecured revolving credit facilities (the "Senior Credit Facilities")
with a syndicate of banks led by First Union National Bank.
<PAGE>
FORWARD-LOOKING STATEMENTS
This Prospectus includes and incorporates by reference
"forward-looking statements" within the meaning of the Private Securities Reform
Act of 1995. All statements regarding our expected financial position, business
and financing plans are forward-looking statements. The words "believes",
"expects", "plans", "intends" and "anticipates" and similar expressions identify
forward-looking statements. Forward-looking statements also include
representations of our expectations or beliefs concerning future events that
involve risks and uncertainties, including those associated with the effect of
national and regional economic conditions, the overall level of consumer
spending, the performance of our products within the prevailing retail
environment, customer acceptance of both new designs and newly-introduced
product lines, financial difficulties encountered by customers, the effects of
vigorous competition in the markets in which we operate, and the integration of
Nine West, Sun Apparel, Inc. ("Sun"), or other acquired businesses into the
Company's existing operations, the termination or non-renewal of the licenses
with Polo Ralph Lauren Corporation, the Company's extensive foreign operations
and manufacturing, pending litigation and investigations, the failure of
customers or suppliers to achieve Year 2000 compliance, changes in the costs of
raw materials, labor and advertising, and the Company's ability to secure and
protect trademarks and other intellectual property rights. Although we believe
that the expectations reflected in such forward-looking statements are
reasonable, such expectations may prove to be incorrect. Important factors that
could cause actual results to differ materially from such expectations
("cautionary statements") are disclosed in this Prospectus, in conjunction with
the forward-looking statements included in this Prospectus and under "Risk
Factors." All subsequent written and oral forward-looking statements
attributable to us or persons acting on our behalf are expressly qualified in
their entirety by the cautionary statements.
RISK FACTORS
You should consider carefully all the information included or
incorporated by reference in this Prospectus and, in particular, should evaluate
the following risks in connection with the Exchange Offer.
We Face Significant Challenges in Integrating Acquired Businesses, Especially
Nine West
On October 2, 1998, we completed our acquisition of Sun, which was our
first significant acquisition of another company. On June 15, 1999, we completed
our acquisition of Nine West, which was our second significant acquisition of
another company. Every acquisition involves certain risks, including:
- initial reductions in reported operating results;
- diversion of management's attention;
- unanticipated problems or legal liabilities;
- claims by a person that such acquisition violates the terms of a
material agreement; and
- possible reduction in reported earnings due to amortization of
acquired intangible assets.
In addition to these general risks, integrating the organizations and
operations of Jones and Nine West will present significant specific challenges.
Nine West is primarily a footwear designer, marketer and retailer, while Jones
is primarily an apparel designer and marketer. We have little experience with
the footwear industry or with managing a large retail operation such as Nine
West's. We may not be able to retain certain key personnel from Nine West who
may be important in integrating the two companies. Integrating Jones and Nine
West will be complex and time-consuming. The failure to successfully integrate
Nine West and Jones and to successfully manage the challenges presented by the
integration process may prevent us from achieving the anticipated potential
benefits of the acquisition.
Some or all the above items could have a material adverse effect on
us. Nine West or any other company which we might acquire in the future may not
achieve sales and profitability levels that justify our investment.
<PAGE>
The Apparel, Footwear and Accessories Industries are Highly Competitive
Apparel, footwear and accessories companies face competition on many
fronts, including the following:
- establishing and maintaining favorable brand recognition;
- developing products that appeal to consumers;
- pricing products appropriately;
- providing strong marketing support; and
- obtaining access to retail locations and sufficient floor space.
There is intense competition in the sectors of the apparel, footwear
and accessories industries in which we and Nine West participate. We compete
with many other manufacturers and retailers, some of which are larger and have
greater resources than we do. Any increased competition could result in reduced
sales or prices, or both, which would have a material adverse effect on us.
Fashion Trends are Constantly Changing
Customer tastes and fashion trends change rapidly. We may not be able
to anticipate, gauge or respond to such changes in a timely manner. If we
misjudge the market for our products or product groups, we may be faced with a
significant amount of unsold finished goods inventory, which would have a
material adverse effect on us.
The Apparel, Footwear and Accessories Industries are Highly Cyclical
Negative economic trends over which we have no control that depress
the level of consumer spending could have a material adverse effect on us.
Purchases of apparel, footwear and related goods often decline during
recessionary periods when disposable income is low. In such an environment, we
may increase the number of promotional sales, which would further adversely
affect our profitability.
The Concentration of Our Customers Could Adversely Affect Our Business
Our ten largest customers, principally department stores, accounted
for approximately 62% of sales in 1998. While no single customer accounted for
more than 10% of our net sales, certain of our customers are under common
ownership. Department stores owned by the following entities accounted for the
following percentages of Jones' and Nine West's 1998 sales:
Jones
Federated Department Stores, Inc................................. 16%
May Department Store Company..................................... 16%
Remainder of ten largest customers............................... 30%
We believe that purchasing decisions are generally made independently
by individual department stores within a commonly controlled group. There has
been a trend, however, toward more centralized purchasing decisions. As such
decisions become more centralized, the risk to us of such concentration
increases. The loss of any of our largest customers, or the bankruptcy or
material financial difficulty of any customer or any of the companies listed
above, could have a material adverse effect on us. We do not have long-term
contracts with any of our customers, and sales to customers generally occur on
an order-by-order basis. As a result, customers can terminate their
relationships with us at any time or under certain circumstances cancel or delay
orders.
<PAGE>
Significant Portions of Our Sales and Profits Depend on Our License Agreements
with Polo Ralph Lauren Corporation
The termination or non-renewal of our exclusive licenses to
manufacture and market clothing under the Lauren by Ralph Lauren and Polo Jeans
Company trademarks in the United States and elsewhere would have a material
adverse effect on us. Our Lauren by Ralph Lauren line and Polo Jeans Company
business represent significant portions of our sales and profits. We sell
products bearing those trademarks under exclusive licenses from affiliates of
Polo Ralph Lauren Corporation. In addition, we have introduced for Fall 1999 a
line of sportswear directed to younger women under the trademark Ralph by Ralph
Lauren, under an additional exclusive license from Polo Ralph Lauren.
The Lauren by Ralph Lauren license expires on December 31, 2001,
subject to our right to renew through December 31, 2006, if sales of that
product line for the year 2000 exceed a specified level. Although such sales in
1997 and 1998 exceeded the renewal minimum, our sales are made season-to-season,
with customers having no obligation to buy products beyond what they have
already ordered for a particular season. The initial term of the Polo Jeans
Company license expires on December 31, 2000 and may be renewed by us in
five-year increments for up to 30 additional years, if certain minimum sales
levels in certain years are met. Although Polo Jeans Company sales in 1997 and
1998 exceeded the renewal minimum which would be required in 1999 to extend the
term of the license through December 31, 2005, Polo Jeans Company sales are made
season-to-season, with customers having no obligation to buy products beyond
what they have already ordered. In addition, renewal of the Polo Jeans Company
license after 2010 requires a one-time payment by us of $25 million or, at our
option, a transfer of a 20% interest in our Polo Jeans Company business to Polo
Ralph Lauren (with no fees required for subsequent renewals). Polo Ralph Lauren
also has an option, exercisable on or before June 1, 2010, to purchase our Polo
Jeans Company business from us at the end of 2010 for a purchase price, payable
in cash, equal to 80% of the then fair value of the business as a going concern,
assuming the continuation of the Polo Jeans Company license through December 31,
2030. In addition to the provisions described above, the licenses contain
provisions common to trademark licenses which could result in termination of a
license, such as failure to meet payment or advertising obligations.
The Extent of Our Foreign Operations and Manufacturing May Adversely Affect Our
Domestic Business
In 1998, approximately 75% of our products were manufactured outside
North America, primarily in Asia, while the remainder were manufactured in the
United States and Mexico. Nearly all of Nine West's products were manufactured
outside of North America in 1998 as well. The following may adversely affect
foreign operations:
- political instability in countries where contractors and
suppliers are located;
- imposition of regulations and quotas relating to imports;
- imposition of duties, taxes and other charges on imports;
- significant fluctuation of the value of the dollar against
foreign currencies; and
- restrictions on the transfer of funds to or from foreign
countries.
As a result of our substantial foreign operations, our domestic
business is subject to the following risks:
- quotas imposed by bilateral textile agreements between the United
States and certain foreign countries;
- reduced manufacturing flexibility because of geographic distance
between us and our foreign manufacturers, increasing the risk
that we may have to mark down unsold inventory as a result of
misjudging the market for a foreign-made product; and
- violations by foreign contractors of labor and wage standards and
resulting adverse publicity.
In January 1999, 23 unidentified Asian garment workers filed a
purported class-action lawsuit against 22 garment manufacturers with factories
located in Saipan (part of the U.S. Commonwealth of the Northern Mariana
Islands). The lawsuit, filed in federal court in Saipan, alleges violations of
federal labor statutes and other laws. We were named in two companion lawsuits
filed in the United States in connection with the Saipan claims. At this early
stage, we are not in a position to evaluate the likelihood of an unfavorable
outcome.
<PAGE>
Fluctuations in the Price, Availability and Quality of Raw Materials Could Cause
Delay and Increase Costs
Fluctuations in the price, availability and quality of the fabrics or
other raw materials used by us in our manufactured apparel could have a material
adverse effect on our cost of sales or our ability to meet our customers'
demands. We mainly use cotton twill, wool, denim, and synthetic and blended
fabrics. The prices for such fabrics depend largely on the market prices for the
raw materials used to produce them, particularly cotton. The price and
availability of such raw materials and, in turn, the fabrics used in our apparel
may fluctuate significantly, depending on many factors, including crop yields
and weather patterns. We generally enter into denim purchase order contracts at
specified prices for three to six months at a time. Higher cotton prices would
directly affect our costs and could affect our earnings. We may not be able to
pass all or a portion of such higher prices on to our customers.
Our Reliance on Independent Manufacturers Could Cause Delay and Damage Customer
Relationships
We rely upon independent third parties for the manufacture of many of
our products. A manufacturer's failure to ship products to us in a timely manner
or to meet the required quality standards could cause us to miss the delivery
date requirements of our customers for those items. The failure to make timely
deliveries may drive customers to cancel orders, refuse to accept deliveries or
demand reduced prices, any of which could have a material adverse effect on our
business. We do not have long-term written agreements with any of our third
party manufacturers. As a result, any of these manufacturers may unilaterally
terminate their relationships with us at any time.
Antitrust Investigation and Litigation Against Nine West May Result in Damages
The Federal Trade Commission and attorneys general from several states
are conducting an inquiry with respect to Nine West's resale pricing policies to
determine whether Nine West violated antitrust laws by agreeing with others to
set minimum prices at which retailers sell products marketed by Nine West. Nine
West also faces an action in U.S. District Court in New York in which more than
25 putative class action suits alleging antitrust violations by Nine West were
consolidated. Similar suits have been filed in state courts and in federal court
in Pennsylvania. If any of the class action suits is determined adversely, or if
the FTC or state governments successfully pursue antitrust action, Nine West
could be liable for significant damages.
We Depend on Key Personnel to Manage Our Business
Our success depends upon the personal efforts and abilities of Sidney
Kimmel (Chairman), Jackwyn Nemerov (President), Irwin Samelman (Executive Vice
President, Marketing), Eric A. Rothfeld (President of Sun), Mindy Grossman
(President and Chief Executive Officer of Sun's Polo Jeans Company Division)
and, with respect to Nine West, Mark J. Schwartz, who was named Chairman and
Chief Executive Officer of Nine West upon completion of the acquisition. We do
not have employment agreements with Mr. Kimmel, Ms. Nemerov, Mr. Samelman or Mr.
Schwartz. If any of these individuals become unable or unwilling to continue in
their present positions, our business and financial results could be materially
adversely affected.
Our Year 2000 Compliance Initiative May Not Succeed
Certain functions in various types of technology used by us are
designed to use only two digits to identify a year. These programs may fail or
create erroneous results on or after January 1, 2000, if not corrected. We have
assessed and are updating our own systems to insure that they are Year 2000
compliant. We anticipate substantial completion of this process by October 1999.
We may not be able, however, to complete these plans in time. Additionally,
vendors, customers and other third parties with which we do business may not
make their systems Year 2000 compliant. Our business and results of operations
could suffer if we or such third parties fail to make necessary technological
adjustments.
Consequences of a Failure to Exchange Restricted Notes
The Issuers issued the Restricted Notes in a private offering exempt
from the registration requirements of the Securities Act. Therefore, holders of
Restricted Notes may not offer, sell or otherwise transfer their Restricted
Notes except in compliance with the registration requirements of the Securities
Act and applicable state securities laws or pursuant to exceptions from, or in
transactions not subject to, registration requirements. Holders of Restricted
Notes who do not exchange their Restricted Notes for Exchange Notes in the
Exchange Offer will continue to be subject to these transfer restrictions after
the completion of the Exchange Offer. See "The Exchange Offer--Consequences of a
Failure to Exchange Restricted Notes."
<PAGE>
In addition, after completion of the Exchange Offer, holders of
Restricted Notes who do not tender their Restricted Notes in the Exchange Offer
will no longer be entitled to any exchange or registration rights under the
Exchange and Registration Rights Agreement, except under limited circumstances.
To the extent that Restricted Notes are tendered and accepted in the
Exchange Offer, the liquidity of the trading market for untendered Restricted
Notes could be adversely affected.
Absence of a Public Market
Although holders of Exchange Notes (who are not our "affiliates"
within the meaning of the Securities Act) may resell or otherwise transfer their
Exchange Notes without compliance with the registration requirements of the
Securities Act, there is no existing market for the Exchange Notes, and there
can be no assurance as to the liquidity of any markets that may develop for the
Exchange Notes, the ability of holders of Exchange Notes to sell their Exchange
Notes or the prices at which holders would be able to sell their Exchange Notes.
Future trading prices of the Exchange Notes will depend on many factors,
including, among other things, prevailing interest rates, Jones' operating
results and the market for similar securities.
The initial purchasers in the private offering have advised us that
they intend to make a market in the Exchange Notes after the Exchange Offer.
However, they are not obligated to do so, and any market making may be
discontinued at any time without notice. In addition, such market making
activity may be limited during the Exchange Offer.
We do not intend to apply for listing of the Exchange Notes on any
securities exchange or to arrange for them to be quoted on any quotation system.
Accordingly, an active trading market for the Exchange Notes may not
develop, either before, during or after the completion of the Exchange Offer.
The absence of an active trading market may have an adverse effect on the market
price and liquidity of the Exchange Notes.
Exchange Offer Procedures
Each holder of Restricted Notes wishing to accept the Exchange Offer
must deliver the Letter of Transmittal, together with the Restricted Notes to be
exchanged and any other required documentation, to the Exchange Agent, or effect
a tender of Restricted Notes by book-entry transfer into the Exchange Agent's
account, in each case in compliance with the instructions provided in "The
Exchange Offer" section of this Prospectus and in the Letter of Transmittal.
The method of delivery of Restricted Notes and the Letter of
Transmittal and all other required documentation is at the election and risk of
the holders of Restricted Notes. Although we intend to notify tendering holders
of any defects or irregularities with respect to their tenders of Restricted
Notes, none of the Company, the Exchange Agent or any other person shall be
under any duty to give notification of defects or irregularities with respect to
tenders of Restricted Notes, nor shall any of them incur any liability for
failure to give that notification. Tenders of Restricted Notes will not be
deemed to have been made until those irregularities have been cured or waived.
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the unaudited consolidated ratios of
earnings to fixed charges for Jones on a historical basis:
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Pro Forma
for the Pro Forma
Six Months Six Months for the
Ended Ended Year Ended Year Ended December 31,
July 4, July 4, December 31,
1999 1999 1998 1998 1997 1996 1995 1994
Ratio of Earnings to
Fixed Charges... 2.5x 4.5x 1.9x 12.6x 18.1x 14.4x 14.8x 18.7x
</TABLE>
The pro forma ratios illustrate the estimated effect of the Nine West
and Sun acquisitions (the "Acquisitions") and related financings as if they
had occurred at January 1, 1998. The pro forma financial data do not purport
to represent what the financial position and operating results of JAG would
actually have been if the Acquisitions and related financings had occurred on
such dates and do not give effect to costs of integrating Nine West or Sun
following the Acquisitions.
We computed these ratios by dividing fixed charges into the sum of
earnings (after certain adjustments) and fixed charges. Earnings used in
computing the ratio of earnings to fixed charges consist of income before
income taxes and fixed charges excluding capitalized interest. Fixed charges
consist of interest expensed and capitalized, amortization of debt expense and
that portion of rental expense representative of interest.
<PAGE>
EXCHANGE OFFER
Purpose of the Exchange Offer
We initially sold the Restricted Notes in a private offering on June
15, 1999 to Bear, Stearns & Co. Inc., Chase Securities Inc., Merrill Lynch,
Pierce Fenner & Smith Incorporated, Salomon Smith Barney Inc., BancBoston
Robertson Stephens Inc. , Banc of America Securities LLC, ING Baring Furman Selz
LLC, Lazard Freres & Co. LLC, Tucker Anthony Cleary Gull, Brean Murray & Co.,
Inc. and The Buckingham Research Group Incorporated (collectively, the "Initial
Purchasers") pursuant to a Purchase Agreement dated June 9, 1999 between the
Issuers and the Initial Purchasers. The Initial Purchasers subsequently resold
the Restricted Notes to qualified institutional buyers in reliance on, and
subject to the restrictions imposed under, Rule 144A under the Securities Act
and outside the United States in accordance with the provisions of Regulation S
under the Securities Act.
In connection with the private offering of the Restricted Notes, the
Issuers and the Initial Purchasers entered into an Exchange and Registration
Rights Agreement dated June 15, 1999, in which the Issuers agreed, among other
things:
- to file with the SEC on or before September 13, 1999, a
registration statement relating to an exchange offer for the
Restricted Notes (the "Exchange Offer Registration Statement");
- to use their reasonable best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the
Securities Act on or before December 12, 1999;
- upon the effectiveness of the Exchange Offer Registration
Statement, to offer the holders of the Restricted Notes the
opportunity to exchange their Restricted Notes in the Exchange
Offer for a like principal amount of Exchange Notes;
- to keep the Exchange Offer open for at least 30 days (or longer,
if required by applicable law) after notice of the Exchange Offer
is mailed to holders of Restricted Notes; and
- to use its reasonable best efforts to complete the Exchange Offer
on or before January 10, 2000.
We also agreed, under certain circumstances:
- to use our reasonable best efforts to file a shelf registration
statement relating to the offer and sale of the Restricted Notes
by the holders of the Restricted Notes (a "Shelf Registration
Statement");
- to use our reasonable best efforts to cause the Shelf
Registration Statement to be declared effective; and
- to use our reasonable best efforts to keep the Shelf Registration
Statement effective until June 15, 2001 or until the Restricted
Notes covered by the Shelf Registration Statement have been sold
or until those Restricted Notes become eligible for resale
without volume restrictions pursuant to Rule 144 under the
Securities Act.
The Exchange Offer being made by this Prospectus is intended to
satisfy your exchange and registration rights under the Exchange and
Registration Rights Agreement. If we fail to fulfill those registration and
exchange obligations, you, as a holder of outstanding Restricted Notes, are
entitled to receive additional interest, at a rate of 0.25% per year, determined
daily, as liquidated damages for that default.
For a more complete understanding of your exchange and registration
rights, you should refer to the Exchange and Registration Rights Agreement,
which is included as Exhibit 4.1 to the Registration Statement that relates to
this Prospectus.
Effect of the Exchange Offer
Based on certain no-action letters issued by the staff of the SEC to
third parties in unrelated transactions, we believe that you may offer for
resale, resell or otherwise transfer any Exchange Notes issued to you in the
<PAGE>
Exchange Offer in exchange for Restricted Notes without compliance with the
registration and prospectus delivery requirements of the Securities Act, if:
- you are acquiring the Exchange Notes issued in the Exchange Offer
in the ordinary course of your business;
- you are not participating, do not intend to participate and have
no arrangement or understanding with any person to participate,
in a distribution of the Exchange Notes;
- you are not our "affiliate" (as defined in Rule 405 under the
Securities Act); and
- you are not an Initial Purchaser who acquired Restricted Notes
directly from the Issuers in the initial offering to resell
pursuant to Rule 144A, Regulation S or any other available
exemption under the Securities Act.
If you are an "affiliate" or an Initial Purchaser or if you have any
arrangement or understanding with any person to participate in a distribution of
the Exchange Notes:
- you will not be able to rely on the interpretations of the staff
of the SEC, in connection with any offer for resale, resale or
other transfer of Exchange Notes; and
- you must comply with the registration and prospectus delivery
requirements of the Securities Act, or have an exemption
available to you, in connection with any offer for resale, resale
or other transfer of the Exchange Notes.
In addition, we are not making this Exchange Offer to, nor will we
accept surrenders of Restricted Notes from, holders of Restricted Notes in any
state in which this Exchange Offer would not comply with the applicable
securities laws or "blue sky" laws of such state.
Use of Proceeds
We will not receive any cash proceeds from the issuance of the
Exchange Notes. As consideration for the Exchange Notes, we will receive in
exchange an equivalent principal amount of outstanding Restricted Notes, the
terms of which are substantially identical to the terms of the Exchange Notes,
except that the Exchange Notes will be freely transferable and issued free of
any covenants regarding exchange and registration rights.
We will retire and cancel the Restricted Notes surrendered in exchange
for the Exchange Notes. Accordingly, the issuance of the Exchange Notes under
the Exchange Offer will not result in any change in our outstanding aggregate
indebtedness.
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth in this
Prospectus and in the accompanying Letter of Transmittal, we will accept all
Restricted Notes validly tendered and not withdrawn prior to 5:00 p.m., New York
City time, on the Expiration Date (defined below in "--Expiration Date;
Extensions; Amendments"). After authentication of the Exchange Notes by the
Trustee or an authenticating agent, we will issue and deliver $1,000 principal
amount of Exchange Notes in exchange for each $1,000 principal amount of
outstanding Restricted Notes accepted in the Exchange Offer. Holders may tender
some or all of their Restricted Notes pursuant to the Exchange Offer in
denominations of $1,000 and integral multiples thereof.
By tendering Restricted Notes in exchange for Exchange Notes and by
executing the Letter of Transmittal, each holder of Restricted Notes will
represent to us that, among other things:
- any Exchange Notes to be received by it will be acquired in the
ordinary course of its business;
- it has no arrangement or understanding with any person to
participate in the distribution of the Exchange Notes; and
- it is not our "affiliate" (as defined in Rule 405 under the
Securities Act), or, if it is an affiliate, that it will comply
with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable.
<PAGE>
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Restricted Notes, where such Restricted Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of those Exchange Notes. See "Plan of Distribution."
The form and terms of the Exchange Notes are identical in all material
respects to the form and terms of the outstanding Restricted Notes, except that
- the offering of the Exchange Notes has been registered under the
Securities Act;
- the Exchange Notes will not be subject to transfer restrictions;
and
- the Exchange Notes will be issued free of any covenants regarding
exchange and registration rights.
The Exchange Notes will be issued under and entitled to the benefits
of the Indenture that governs the Restricted Notes.
As of the date of this Prospectus, $400.0 million aggregate principal
amount of the Restricted Notes is outstanding. In connection with the issuance
of the Restricted Notes, we arranged for the Restricted Notes to be issued and
transferable in book-entry form through the facilities of The Depository Trust
Company ("DTC"), acting as a depositary. The Exchange Notes will also be
issuable and transferable in book-entry form through DTC.
This Prospectus, together with the accompanying Letter of Transmittal,
is initially being sent to all registered holders of Restricted Notes at the
close of business on [ ], 1999. The Exchange Offer is not conditioned upon any
minimum aggregate principal amount of Restricted Notes being tendered. However,
the Exchange Offer is subject to certain customary conditions which may be
waived by us, and to the terms and provisions of the Exchange and Registration
Rights Agreement. See "--Conditions to the Exchange Offer."
We will be deemed to have accepted validly tendered Restricted Notes
when, as and if we have given oral or written notice of acceptance to the
Exchange Agent. See "--Exchange Agent." The Exchange Agent will act as agent for
the tendering holders of Restricted Notes for the purpose of receiving Exchange
Notes from us and delivering Exchange Notes to those holders.
If any tendered Restricted Notes are not accepted for exchange because
of an invalid tender or the occurrence of certain other events described in this
Prospectus, certificates for those unaccepted Restricted Notes will be returned,
at our expense, to the tendering holder as promptly as practicable after the
Expiration Date.
Holders who tender Restricted Notes in the Exchange Offer will not be
required to pay brokerage commissions or fees or, subject to the instructions in
the Letter of Transmittal, transfer taxes with respect to the exchange of
Restricted Notes pursuant to the Exchange Offer. We will pay all charges and
expenses, other than certain applicable taxes, in connection with the Exchange
Offer. See "--Solicitation of Tenders, Fees and Expenses."
Expiration Date; Extensions; Amendments
The term "Expiration Date" means 5:00 p.m., New York City time, on [
], 1999, unless we, in our sole discretion, extend the Exchange Offer, in which
case the term "Expiration Date" means the latest date to which the Exchange
Offer is extended. We may extend the Exchange Offer at any time and from time to
time by giving oral or written notice to the Exchange Agent and by timely public
announcement.
We expressly reserve the right, in our sole discretion, to amend the
terms of the Exchange Offer in any manner. Without limiting the generality of
that reservation of rights, if any of the conditions described in this
Prospectus under "--Termination" occur and are not waived by us (if permitted to
be waived by us), we expressly reserve the right, in our sole discretion, by
giving oral or written notice to the Exchange Agent, to:
- delay acceptance of, or refuse to accept, any Restricted Notes
not previously accepted;
- extend the Exchange Offer; or
- terminate the Exchange Offer.
Any such delay in acceptance, extension, termination or amendment will be
followed as promptly as practicable by our oral or written notice to the
registered holders of the Restricted Notes. If we amend the Exchange Offer in
a manner which we determine to constitute a material change, we will promptly
disclose that amendment in a manner
<PAGE>
reasonably calculated to inform the holders of that amendment and we will
extend the Exchange Offer to the extent required by law.
Without limiting the manner in which we may choose to make public
announcements of any delay in acceptance, extension, termination or amendment of
the Exchange Offer, we have no obligation to publish, advise, or otherwise
communicate those public announcements, other than by making a timely press
release for that purpose.
Interest on the Exchange Notes
Interest on the Exchange Notes will accrue from the last interest
payment date on which interest was paid on the Restricted Notes surrendered in
exchange therefor or, if no interest has been paid on the Restricted Notes, from
June 15, 1999. The Exchange Notes will bear interest at an annual rate of 7.50%
for the 2004 Notes and 7.875% for the 2006 Notes. Interest on the Exchange Notes
will be payable semi-annually on June 15 and December 15 of each year, beginning
on December 15, 1999.
Procedures for Tendering
Each holder of Restricted Notes wishing to accept the Exchange Offer
must complete, sign and date the Letter of Transmittal, or a facsimile of the
Letter of Transmittal, in accordance with the instructions contained in this
Prospectus and in the Letter of Transmittal, and mail or otherwise deliver such
Letter of Transmittal, or such facsimile, together with the Restricted Notes to
be exchanged and any other required documentation, to The First National Bank of
Chicago, as Exchange Agent, at the address set forth under "--Exchange Agent" in
this Prospectus and in the Letter of Transmittal or effect a tender of
Restricted Notes pursuant to the procedures for book-entry transfer as provided
for under "--Book-Entry Transfer" in this Prospectus and in the Letter of
Transmittal.
By tendering Restricted Notes in exchange for Exchange Notes and by
executing the Letter of Transmittal, each holder of Restricted Notes will
represent to us that, among other things:
- any Exchange Notes to be received by it will be acquired in the
ordinary course of its business;
- it has no arrangement or understanding with any person to
participate in the distribution of the Exchange Notes; and
- it is not our "affiliate" (as defined in Rule 405 under the
Securities Act), or, if it is an affiliate, that it will comply
with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable.
Any financial institution that is a participant in DTC's system may
make book-entry delivery of the Restricted Notes by causing DTC to transfer the
Restricted Notes into the Exchange Agent's account in accordance with DTC's
procedure for such transfer. Although delivery of Restricted Notes may be
effected through book-entry transfer into the Exchange Agent's account at DTC,
the Letter of Transmittal (or a facsimile of the Letter of Transmittal), with
any required signature guarantees and any other required documents, must, in any
case, be transmitted to and received by the Exchange Agent at its address set
forth herein under "--Exchange Agent" prior to 5:00 p.m., New York City time, on
the Expiration Date.
Delivery of documents to DTC in accordance with DTC's procedures does
NOT constitute delivery to the Exchange Agent.
Only a holder of Restricted Notes may tender its Restricted Notes in
the Exchange Offer. To tender in the Exchange Offer, a holder must complete,
sign and date the Letter of Transmittal or a facsimile of the Letter of
Transmittal, have the signatures guaranteed if required by the Letter of
Transmittal, and mail or otherwise deliver the Letter of Transmittal or the
facsimile, together with the Restricted Notes (unless the tender is being
effected pursuant to the procedure for book-entry transfer) and other required
documents, to the Exchange Agent, prior to 5:00 p.m., New York City time, on the
Expiration Date.
The tender by a holder of Restricted Notes will constitute an
agreement between that holder, the Exchange Agent and us in accordance with the
terms and subject to the conditions set forth in this Prospectus and in the
Letter of Transmittal. If less than all of the Restricted Notes held by a holder
of Restricted Notes are tendered, the holder should fill in the amount of
Restricted Notes being tendered in the appropriate box in the Letter of
Transmittal. The entire amount of Restricted Notes delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated.
<PAGE>
In the case of a broker-dealer that receives Exchange Notes for its
own account in exchange for Restricted Notes that were acquired by it as a
result of market-making or other trading activities, the Letter of Transmittal
will also include an acknowledgment that the broker-dealer will deliver a copy
of this Prospectus in connection with the resale by it of Exchange Notes
received pursuant to the Exchange Offer; however, by so acknowledging and by
delivering a Prospectus, the broker-dealer will not be deemed to admit that it
is an "underwriter" (within the meaning of the Securities Act). See "Plan of
Distribution."
The method of delivery of Restricted Notes and the Letter of
Transmittal and all other required documents to the Exchange Agent is at the
election and risk of the holders of Restricted Notes. Instead of delivery by
mail, we recommend that holders of Restricted Notes use an overnight or hand
delivery service. In all cases, you should allow sufficient time to ensure
delivery to the Exchange Agent prior to the Expiration Date. No Letter of
Transmittal or Restricted Notes should be sent to us.
Any beneficial owner whose Restricted Notes are registered in the name
of a broker, dealer, commercial bank, trust company or other nominee and who
wishes to tender Restricted Notes in the Exchange Offer should contact the
registered holder promptly and instruct the registered holder to tender on the
beneficial owner's behalf. If the beneficial owner wishes to tender on its own
behalf, the beneficial owner must, prior to completing and executing the Letter
of Transmittal and delivering its Restricted Notes, either make appropriate
arrangements to register ownership of the Restricted Notes in the beneficial
owner's own name or obtain a properly completed bond power from the registered
holder of the Restricted Notes. This transfer of record ownership may take
considerable time.
Signatures on a Letter of Transmittal or a notice of withdrawal, as
the case may be, must be guaranteed by a member firm of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.,
a commercial bank or trust company having an office or correspondent in the
United States or an "eligible guarantor institution" within the meaning of Rule
17Ad-15 under the Exchange Act (each, an "Eligible Institution"), unless the
Restricted Notes tendered in connection with the Letter of Transmittal are
tendered:
- by a registered holder who has not completed the box entitled
"Special Registration Instructions" or the box entitled "Special
Delivery Instructions" on the Letter of Transmittal; or
- for the account of an Eligible Institution.
If the Letter of Transmittal is signed by a person other than the registered
holder listed in the Letter of Transmittal, those Restricted Notes must be
endorsed or accompanied by appropriate bond powers which authorize that person
to tender the Restricted Notes on behalf of the registered holder of the
Restricted Notes, in either case signed as the name of the registered holder or
holders appears on the Restricted Notes. If the Letter of Transmittal or any
Restricted Notes or bond powers are signed or endorsed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers or corporations or others
acting in a fiduciary or representative capacity, those persons should so
indicate when signing, and unless waived by us, submit evidence satisfactory to
us of their authority to so act with the Letter of Transmittal.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of the tendered Restricted Notes will be
determined by us in our sole discretion, which determination will be final and
binding. We reserve the absolute right to reject any and all Restricted Notes
not properly tendered or any Restricted Notes our acceptance of which would, in
the opinion of our counsel, be unlawful. We also reserve the absolute right to
waive any irregularities or conditions of tender as to particular Restricted
Notes. Our interpretation of the terms and conditions of the Exchange Offer
(including the instructions in the Letter of Transmittal) will be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Restricted Notes must be cured within such time as we
shall determine. Although we intend to notify tendering holders of defects or
irregularities with respect to tenders of Restricted Notes, none of us, the
Exchange Agent or any other person shall be under any duty to give notification
of defects or irregularities with respect to tenders of Restricted Notes, nor
will any of us or them incur any liability for failure to give that
notification. Tenders of Restricted Notes will not be deemed to have been made
until those irregularities have been cured or waived. Any Restricted Notes
received by the Exchange Agent that we determine are not properly tendered or
the tender of which is otherwise rejected by us and as to which the defects or
irregularities have not been cured or waived by us will be returned by the
Exchange Agent to the tendering holder unless otherwise provided in the Letter
of Transmittal, as soon as practicable following the Expiration Date.
<PAGE>
In addition, we reserve the right in our sole discretion:
- to purchase or make offers for any Restricted Notes that
remain outstanding after the Expiration Date;
- to terminate the Exchange Offer, as set forth in " --
Termination"; and
- to the extent permitted by applicable law, to purchase
Restricted Notes in the open market, in privately negotiated
transactions or otherwise.
The terms of any such purchases or offers may differ from the terms of the
Exchange Offer.
Book-Entry Transfer
The Exchange Agent will make a request promptly after the date of this
Prospectus to establish accounts with respect to the Restricted Notes at DTC to
facilitate the Exchange Offer. If those accounts are established, any financial
institution that is a participant in DTC's system may make book-entry delivery
of Restricted Notes by causing DTC to transfer those Restricted Notes into the
Exchange Agent's account with respect to the Restricted Notes in accordance with
DTC's Automated Tender Offer Program procedures for that transfer. However, the
exchange for the Restricted Notes so tendered will only be made after a timely
confirmation of a book-entry transfer of those Restricted Notes into the
Exchange Agent's account, and timely receipt by the Exchange Agent of an Agent's
Message and any other documents required by the Letter of Transmittal.
The term "Agent's Message" means a message, transmitted by DTC and
received by the Exchange Agent and forming part of the confirmation of a
book-entry transfer, which states that DTC has received an express
acknowledgment from a participant tendering Restricted Notes and that
participant has received the Letter of Transmittal and agrees to be bound by the
terms of the Letter of Transmittal, and we may enforce that agreement against
the participant.
Although delivery of Restricted Notes may be effected through DTC into
the Exchange Agent's account at DTC, an appropriate Letter of Transmittal
properly completed and duly executed with any required signature guarantee and
all other required documents must in each case be transmitted to and received or
confirmed by the Exchange Agent at its address set forth under "--Exchange
Agent" in this Prospectus or in the Letter of Transmittal on or prior to the
Expiration Date, or, if the guaranteed delivery procedures described below are
complied with, within the time period provided under those procedures. Delivery
of documents to DTC without proper confirmation or compliance does not
constitute delivery to the Exchange Agent.
Guaranteed Delivery Procedures
Holders who wish to tender their Restricted Notes and (1) whose
Restricted Notes are not immediately available, or (2) who cannot deliver their
Restricted Notes, the Letter of Transmittal or any other required documents to
the Exchange Agent prior to the Expiration Date, or (3) who cannot complete the
procedure for book-entry transfer on a timely basis, may effect a tender if:
- the tender is made through an Eligible Institution;
- prior to the Expiration Date, the Exchange Agent receives from an
Eligible Institution a properly completed and duly executed
Notice of Guaranteed Delivery (by facsimile transmittal, mail or
hand delivery) setting forth the name and address of the holder,
the certificate number or numbers of that holder's Restricted
Notes and the principal amount of the Restricted Notes tendered,
stating that the tender is being made thereby, and guaranteeing
that, within three business days after the Expiration Date, the
Letter of Transmittal (or facsimile thereof), together with the
certificate(s) representing the Restricted Notes to be tendered
in proper form for transfer (or confirmation of a book-entry
transfer into the Exchange Agent's account at DTC of Restricted
Notes delivered electronically) and any other documents required
by the Letter of Transmittal, will be deposited by the Eligible
Institution with the Exchange Agent; and
- a properly completed and executed Letter of Transmittal (or
facsimile thereof), together with the certificate(s) representing
all tendered Restricted Notes in proper form for transfer (or
confirmation of a book-entry transfer into the Exchange Agent's
account at DTC of Restricted Notes delivered electronically) and
all other documents required by the Letter of Transmittal are
received by the Exchange Agent within three business days after
the Expiration Date.
<PAGE>
Upon request to the Exchange Agent, a Notice of Guaranteed Delivery
will be sent to holders who wish to tender their Restricted Notes according to
the guaranteed delivery procedures set forth above.
Withdrawal of Tenders
Except as otherwise provided herein, tenders of Restricted Notes may
be withdrawn at any time prior to 5:00 p.m., New York City time, on the
Expiration Date.
For a withdrawal to be effective, a written or facsimile transmission
notice of withdrawal must be received by the Exchange Agent at its address set
forth under "--Exchange Agent" in this Prospectus prior to 5:00 p.m., New York
City time, on the Expiration Date.
Any notice of withdrawal must:
- specify the name of the person having deposited the Restricted
Notes to be withdrawn (the "Depositor");
- identify the Restricted Notes to be withdrawn (including the
certificate number or numbers and principal amount of those
Restricted Notes or, in the case of Restricted Notes transferred
by book-entry transfer, the name and number of the account at DTC
to be credited);
- be signed by the Depositor in the same manner as the original
signature on the Letter of Transmittal by which those Restricted
Notes were tendered (including any required signature guarantee)
or be accompanied by documents of transfer sufficient to permit
the registrar to register the transfer of those Restricted Notes
into the name of the Depositor withdrawing the tender; and
- specify the name in which any of the Restricted Notes are to be
registered, if different from that of the Depositor.
All questions as to the validity, form and eligibility (including time
of receipt) of the withdrawal notices will be determined by us in our sole
discretion and our determination will be final and binding on all parties. Any
Restricted Notes so withdrawn will be deemed not to have been validly tendered
for purposes of the Exchange Offer, and no Exchange Notes will be issued with
respect to them unless the Restricted Notes so withdrawn are validly retendered.
Any Restricted Notes that have been tendered but are not accepted for exchange
will be returned to the holder thereof without cost to that holder as soon as
practicable after withdrawal, rejection of tender or termination of the Exchange
Offer. Properly withdrawn Restricted Notes may be retendered by following one of
the procedures described above under "--Procedures for Tendering" at any time
prior to the Expiration Date.
Conditions to the Exchange Offer
Notwithstanding any other term of the Exchange Offer, we will not be
required to accept for exchange, or to exchange Exchange Notes for, any
Restricted Notes, and may terminate or amend the Exchange Offer before the
acceptance of the Restricted Notes if, in our judgment, any of the following
conditions has occurred or exists or has not been satisfied:
- the Exchange Offer, or the making of any exchange by a holder of
Restricted Notes, violates applicable interpretations of the SEC
staff;
- any action or proceeding is instituted or threatened in any court
or by or before any governmental agency or body with respect to
the Exchange Offer; or
- there has been adopted or enacted any law, statute, rule or
regulation that can reasonably be expected to impair our ability
to proceed with the Exchange Offer.
If we determine that we may terminate the Exchange Offer for any of
the reasons set forth above, we may (1) refuse to accept any Restricted Notes
and return any Restricted Notes that have been tendered to the tendering
holders, (2) extend the Exchange Offer and retain all Restricted Notes tendered
prior to the Expiration Date of the Exchange Offer, subject to the rights of the
holders of the tendered Restricted Notes to withdraw their Restricted Notes, or
(3) waive the termination event with respect to the Exchange Offer and accept
the properly tendered Restricted Notes that have not been withdrawn. If we
determine that a waiver constitutes a material change in the Exchange Offer, we
will promptly disclose that change in a manner reasonably calculated to inform
the holders of that change and we will extend the Exchange Offer to the extent
required by law.
<PAGE>
The foregoing conditions are for our sole benefit and we may assert
any condition regardless of the circumstances giving rise to that condition or
may waive the condition in whole or in part at any time and from time to time in
our sole discretion. Our failure at any time to exercise any of the foregoing
rights will not be deemed a waiver of any right and each right will be deemed an
ongoing right which may be asserted at any time and from time to time.
Exchange Agent
The First National Bank of Chicago has been appointed as Exchange
Agent for the Exchange Offer. In such capacity, the Exchange Agent has no
fiduciary duties and will be acting solely on the basis of our directions.
Requests for assistance and requests for additional copies of this Prospectus or
of the Letter of Transmittal should be directed to the Exchange Agent addressed
as follows:
By Mail, Overnight Delivery The First National Bank of Chicago
or Hand Delivery: 153 West 51st Street
5th Floor, Suite 4015
New York, New York 10019
Attention: Corporate Trust
Administration
Facsimile Transmission: (212) 373-1383
Attention: Corporate Trust
Administration
Information or Confirmation
by Telephone: (212) 373-1339
Delivery to an address or facsimile other than those listed above will
not constitute a valid delivery.
Solicitation of Tenders; Fees and Expenses
We will bear all expenses of soliciting tenders pursuant to the
Exchange Offer. The principal solicitation pursuant to the Exchange Offer is
being made by mail. Additional solicitations may be made by officers and regular
employees of the Company and its affiliates in person or by telegraph, telephone
or facsimile transmission.
We have not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers or other
persons soliciting acceptances of the Exchange Offer. We will, however, pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
the Exchange Agent for its reasonable out-of-pocket costs and expenses and will
indemnify the Exchange Agent for all losses and claims incurred by it as a
result of the Exchange Offer. We may also pay brokerage houses and other
custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding copies of this Prospectus, Letters of Transmittal
and related documents to the beneficial owners of the Restricted Notes and in
handling or forwarding tenders for exchange.
We will pay all expenses incurred in connection with the Exchange
Offer, including fees and expenses of the Exchange Agent and Trustee, accounting
and legal fees (including the expense of one counsel to the holders of the
Restricted Notes) and printing costs.
We will pay any transfer taxes applicable to the exchange of
Restricted Notes pursuant to the Exchange Offer. If, however, a transfer tax is
imposed for any reason other than the exchange of Restricted Notes pursuant to
the Exchange Offer, then the amount of those transfer taxes (whether imposed on
the registered holder thereof or any other person) will be payable by the
tendering holder. For example, the tendering holder will pay transfer taxes if:
- certificates representing Exchange Notes for principal amounts
not tendered or accepted for exchange are to be delivered to, or
are to be registered or issued in the name of, any person other
than the registered holder of the Restricted Notes tendered; or
- tendered Restricted Notes are registered in the name of any
person other than the person signing the Letter of Transmittal.
If satisfactory evidence of payment of the taxes or exemption from the payment
at taxes is not submitted with the Letter of Transmittal, we will bill the
amount of the transfer taxes directly to the tendering holder.
<PAGE>
Accounting Treatment
The Exchange Notes will be recorded at the same carrying value as the
Restricted Notes, as reflected in our accounting records on the date of the
exchange. Accordingly, we will not recognize any gain or loss for accounting
purposes as a result of the consummation of the Exchange Offer. We will amortize
the expense of the Exchange Offer over the term of the Exchange Notes.
Consequences of a Failure to Exchange Restricted Notes
As a result of the making of, and upon acceptance for exchange of all
validly tendered Restricted Notes pursuant to the terms of, this Exchange Offer,
we will have fulfilled various covenants contained in the Exchange and
Registration Rights Agreement. Holders of Restricted Notes who do not tender
their Restricted Notes in the Exchange Offer will continue to hold their
Restricted Notes and will be entitled to all the rights, and subject to the
limitations applicable thereto, under the Indenture and the Exchange and
Registration Rights Agreement, except for any rights under the Exchange and
Registration Rights Agreement that by their terms terminate or cease to have
further effect as a result of the consummation of this Exchange Offer.
All untendered Restricted Notes will continue to be subject to the
restrictions on transfer set forth in the Indenture. Accordingly, after the
completion of the Exchange Offer, you will only be able to offer for sale, sell
or otherwise transfer untendered Restricted Notes as follows:
- to us;
- pursuant to a registration statement that has been declared
effective under the Securities Act;
- for so long as the Restricted Notes are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person you
reasonably believe is a qualified institutional buyer ("QIB")
within the meaning of Rule 144A, that purchases for its own
account or for the account of a QIB to whom notice is given that
the transfer is being made in reliance on the exemption from the
registration requirements of the Securities Act provided by Rule
144A;
- pursuant to offers and sales that occur outside the United States
to foreign persons in transactions complying with the provisions
of Regulation S under the Securities Act;
- to an "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act that is an institutional
investor (an "Institutional Accredited Investor") purchasing for
its own account or for the account of an Institutional Accredited
Investor, in each case in a minimum principal amount of the
Restricted Notes of $250,000; or
- pursuant to any other available exemption from the registration
requirements of the Securities Act.
To the extent that Restricted Notes are tendered and accepted in the
Exchange Offer, the liquidity of the trading market for untendered Restricted
Notes could be adversely affected.
<PAGE>
DESCRIPTION OF NOTES
General
The Restricted Notes were issued and the Exchange Notes will be
issued, as separate series, under the Indenture among the Issuers and the
Trustee. The term "Notes" as used in this "Description of Notes" refers to all
notes issued or to be issued under the Indenture and includes the Restricted
Notes and the Exchange Notes. Capitalized terms used and not otherwise defined
have the meanings set forth under "--Certain Definitions".
The following summary of certain provisions of the Indenture and the
Notes does not purport to be complete and is subject to, and is qualified in its
entirety by reference to, all the provisions of the Indenture, including the
definitions of certain terms in the Indenture and those terms made a part of the
Indenture by the TIA. For a more complete understanding of the terms of the
Notes, you should refer to the Indenture, which is included as Exhibit 4.2 to
the Registration Statement that relates to this Prospectus.
The Notes will be unsecured senior obligations of the Issuers, ranking
equally in right of payment to each other, and with all existing and future
senior debt of the Issuers and senior in right of payment to all future
subordinated debt of the Issuers.
Principal of, premium, if any, and interest on the Notes will be
payable, at the office or agency of Jones in the Borough of Manhattan, The City
of New York (which initially shall be the corporate trust office of the Trustee,
at 101 Barclay Street, 7th Floor, New York, New York 10286), except that, at the
option of Jones, payment of interest may be made by check mailed to the
registered holders of the Notes at their registered addresses.
The Notes may be exchanged or transferred at the office or agency of
Jones in the City of Chicago, which initially shall be the corporate trust
administration office of the Exchange Agent, at One First National Plaza, Suite
0216, Chicago, Illinois 60670-0216.
The Notes will be issued only in fully registered form, without
coupons, in denominations of $1,000 and any integral multiple of $1,000. The
registered holder of a Note will be treated as the owner of that Note for all
purposes. No service charge will be made for any registration of transfer or
exchange of Notes, but Jones may require payment of a sum sufficient to cover
any transfer tax or other similar governmental charge payable in connection with
any transfer or exchange. See "Exchange Offer --Solicitation of Tenders; Fees
and Expenses".
Terms of the Notes
The Notes will have the following terms:
Principal Amount Interest Rate Maturity Date
2004 Notes............. $175,000,000 7.50% June 15, 2004
2006 Notes............. $225,000,000 7.875% June 15, 2006
Each Note will bear interest from June 15, 1999, or from the most
recent date to which interest has been paid or provided for, payable
semiannually to holders of record at the close of business on June 1 or December
1 immediately preceding the interest payment date on June 15 and December 15 of
each year, commencing December 15, 1999. Interest will be computed on the basis
of a 360-day year consisting of twelve 30-day months. Jones USA is expected to
be the primary payor on the Notes.
Exchange and Registration Rights
The terms of the Exchange Notes are substantially identical to the
terms of the Restricted Notes, except that the Exchange Notes will be freely
transferable and issued free of any covenants regarding exchange and
registration rights. Restricted Notes not exchanged in the Exchange Offer will
remain outstanding and be entitled to the benefits of the Indenture, but, except
under certain circumstances, will have no further exchange or registration
rights under the Exchange and Registration Rights Agreement.
Optional Redemption
The Notes will be redeemable as a whole or in part, at the option of
the Issuers at any time or from time to time, at a redemption price equal to the
greater of (1) 100% of their principal amount or (2) the sum of the present
values of the Remaining Scheduled Payments (as defined below) discounted, on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
a rate equal to the sum of the Treasury Rate (as defined below) and 25 basis
points.
<PAGE>
In the case of each of clause (1) and (2), accrued interest will be
payable to the redemption rate.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes 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 such Notes. "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by Jones.
"Comparable Treasury Price" means, with respect to any redemption
date, (1) the average of the Reference Treasury Dealer Quotations for such
redemption date after excluding the highest and lowest of 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 Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and 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 such Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Bear, Stearns & Co. Inc.,
Chase Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Salomon Smith Barney Inc., BancBoston Robertson Stephens, Inc. and Banc of
America Securities LLC and their respective successors. If any of the foregoing
shall cease to be a primary U.S. Government securities dealer (a "Primary
Treasury Dealer"), we shall substitute another nationally recognized investment
banking firm that is a Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to each Note to be
redeemed, the remaining scheduled payments of principal of and interest on such
Note that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with respect
to such Note, the amount of the next succeeding scheduled interest payment on
such Note will be reduced by the amount of interest accrued on such Note to such
redemption date.
Holders of Notes to be redeemed will receive notice thereof by
first-class mail at least 30 and not more than 60 days prior to the date fixed
for redemption. In the case of any partial redemption, selection of the Notes
for redemption will be made by the Trustee on a pro rata basis, by lot or by
such other method as the Trustee in its sole discretion shall deem to be fair
and appropriate, although no Note of $1,000 in original principal amount or less
will be redeemed in part. If any Note is to be redeemed in part only, the notice
of redemption relating to such Note shall state the portion of the principal
amount thereof to be redeemed. A new Note of the same series in principal amount
equal to the unredeemed portion thereof will be issued in the name of the holder
thereof upon cancelation of the original Note. On and after the redemption date,
interest will cease to accrue on Notes or portions thereof called for redemption
so long as the Issuers have deposited with the paying agent funds sufficient to
pay the principal of, premium (if any), plus accrued and unpaid interest, if
applicable, and liquidated damages (if any) on, the Notes to be redeemed.
Certain Covenants
The Indenture contains covenants including, among others, the
following:
Restrictions on Liens. Except as provided below under "-Exempted
Debt," the Issuers will not, and will not permit any Restricted Subsidiary to,
create or suffer to exist any mortgage, lien, pledge, charge, security interest
or encumbrance (a "Lien" or "Liens") to secure any Indebtedness of any Issuer or
Restricted Subsidiary on any Principal Property of any Issuer or Restricted
Subsidiary, without making, or causing such Restricted Subsidiary to make,
effective provision to secure all of the Notes offered hereunder and then
outstanding by such Lien, equally and ratably with any and all other such
Indebtedness thereby secured, so long as such other Indebtedness is so secured,
except that the foregoing restrictions shall not apply to:
(1) Liens on property of a Person existing at the time such
Person is merged into or consolidated with any Issuer or Restricted
Subsidiary or at the time of sale, lease or other disposition of the
properties of such Person (or a division thereof) as an entirety or
substantially as an entirety to any Issuer or Restricted Subsidiary;
<PAGE>
(2) Liens on property of a Person existing at the time such
Person becomes a Restricted Subsidiary or existing on property prior
to the acquisition thereof by any Issuer or Restricted Subsidiary;
(3) Liens securing Indebtedness between a Restricted Subsidiary
and an Issuer or between Restricted Subsidiaries or Issuers;
(4) Liens on any property created, assumed or otherwise brought
into existence in contemplation of the sale or other disposition of
the underlying property, whether directly or indirectly, by way of
share disposition or otherwise, provided that the applicable Issuer or
Restricted Subsidiary must have disposed of such property within 180
days after the creation of such Liens, and any Indebtedness secured by
such Liens shall be without recourse to any Issuer or Restricted
Subsidiary;
(5) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or
in favor of any country, or any political subdivision thereof, to
secure partial, progress, advance or other payments, or performance of
any other similar obligations, including, without limitation, Liens to
secure pollution control bonds or industrial revenue or other similar
types of bonds;
(6) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens and other similar Liens arising in the ordinary
course of business which secure obligations not more than 60 days past
due or are being contested in good faith and by appropriate
proceedings;
(7) Liens incurred in the ordinary course of business to secure
performance of obligations with respect to statutory or regulatory
requirements, performance or return-of-money bonds, surety bonds or
other obligations of a like nature, in each case which are not
incurred in connection with the borrowing of money, the obtaining of
advances or credit or the payment of the deferred purchase price of
property and which do not in the aggregate impair in any material
respect the use of property in the operation of the business of the
Issuers and their respective Subsidiaries taken as a whole;
(8) Liens incurred to secure appeal bonds and judgment and
attachment Liens, in each case in connection with litigation or legal
proceedings which are being contested in good faith by appropriate
proceedings so long as reserves have been established to the extent
required by generally accepted accounting principles as in effect at
such time;
(9) pledges or deposit under workmen's compensation laws,
unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for
the payment of Indebtedness) or leases to which any Issuer or
Restricted Subsidiary is a party, or deposits to secure public or
statutory obligations of any Issuer or Restricted Subsidiary or
deposits for the payment of rent, in each case incurred in the
ordinary course of business;
(10) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character;
(11) Liens granted to any bank or other institution on the
payments to be made to such institution by an Issuer or Subsidiary of
an Issuer pursuant to any interest rate swap or similar agreement or
foreign currency hedge, exchange or similar agreement designed to
provide protection against fluctuations in interest rates and currency
exchange rates, respectively, provided that such agreements are
entered into in, or are incidental to, the ordinary course of
business;
(12) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set off or similar
rights and remedies, in each case as to deposit accounts or other
funds maintained with a creditor depository institution, provided that
such deposit account is not (A) a dedicated cash collateral account
and is not subject to restrictions against access by the applicable
Issuer or Restricted Subsidiary in excess of those set forth by
regulations promulgated by the Federal Reserve Board, and (B) intended
by such Issuer or Restricted Subsidiary to provide collateral to the
depository institution;
(13) Liens arising from Uniform Commercial Code financing
statements regarding leases;
(14) the giving, simultaneously with or within 180 days after the
latest of the date of the Indenture, or the acquisition, construction,
improvement, development or expansion of such property, of a purchase
money Lien on property acquired, constructed, improved, developed or
expanded after the date
<PAGE>
of the Indenture, or the acquisition, construction, improvement,
development or expansion after the date of the Indenture, of property
subject to any Lien which is limited to such property;
(15) the giving of a Lien on real property which is the sole
security for Indebtedness incurred within two years after the latest
of the date of the Indenture, or the acquisition, construction,
improvement, development or expansion of the property, provided that
the holder of such Indebtedness is entitled to enforce its payment
only by resorting to such security;
(16) Liens arising by the terms of letters of credit entered into
in the ordinary course of business to secure reimbursement obligations
thereunder;
(17) Liens existing on the date of the Indenture;
(18) Liens for taxes, assessments and other governmental charges
or levies not yet due or as to which the period of grace, if any,
related thereto has not expired or which are being contested in good
faith and by appropriate proceedings if adequate reserves are
maintained to the extent required by generally accepted accounting
principles; and
(19) extension, renewal, replacement or refunding of any Lien
existing on the date of the Indenture or referred to in clauses (1) to
(11) and (14) to (15) and (17), provided that the principal amount of
Indebtedness secured thereby and not otherwise authorized by clauses
(1) to (11) and (14) to (15) and (17) shall not exceed the principal
amount of Indebtedness, plus any premium or fee payable in connection
with any such extension, renewal, replacement or refunding, so secured
at the time of such extension, renewal, replacement or refunding.
Restrictions on Sale and Leaseback Transactions. Except as provided
below under "-Exempted Debt," the Issuers will not, and will not permit any
Restricted Subsidiary to, after the date hereof, enter into any arrangement with
any Person providing for the leasing by any such Issuer or Restricted Subsidiary
of any Principal Property now owned or hereafter acquired which has been or is
to be sold or transferred by such Issuer or Restricted Subsidiary to such Person
with the intention of taking back a lease of such Principal Property (a "Sale
and Leaseback Transaction"), unless the net proceeds of such sale or transfer
have been determined by the Board of Directors to be at least equal to the fair
market value of such Principal Property or asset at the time of such sale and
transfer and either (1) such Issuer or Restricted Subsidiary applies or causes
to be applied an amount equal to the net proceeds of such sale or transfer,
within 180 days of receipt thereof, to the retirement or prepayment (other than
any mandatory retirement or prepayment, except mandatory retirements or
prepayments required as a result of such Sale and Leaseback Transaction) of
Funded Debt of any Issuer or Restricted Subsidiary that is senior to or pari
passu with the Notes or to the purchase, construction or development of property
or assets to be used in the ordinary course of business, or (2) such Issuer or
Restricted Subsidiary would, on the effective date of such sale or transfer, be
entitled, pursuant to the Indenture, to issue, assume or guarantee Indebtedness
secured by a Lien upon such Principal Property at least equal in amount to the
Attributable Debt in respect of such Sale and Leaseback Transaction without
equally and ratably securing the Notes. The foregoing restriction will not apply
to any Sale and Leaseback Transaction (1) between an Issuer and a Restricted
Subsidiary or between Restricted Subsidiaries or Issuers, provided that the
lessor shall be an Issuer or Wholly Owned Restricted Subsidiary, (2) which has a
lease of less than three years in length, (3) entered into within 180 days after
the later of the purchase, construction or development of such Principal
Property or asset or the commencement of operation of such Principal Property,
or (4) involving Jones' distribution warehouse at South Hill, Virginia.
Exempted Debt. Notwithstanding the restrictions in the Indenture on
(1) Liens and (2) Sale and Leaseback Transactions, any Issuer or Restricted
Subsidiary may, in addition to amounts permitted under such restrictions, create
Indebtedness secured by Liens, or enter into Sale and Leaseback Transactions,
provided that, at the time of such transactions and after giving effect thereto,
the aggregate outstanding amount of all such Indebtedness secured by Liens plus
Attributable Debt resulting from such Sale and Leaseback Transactions does not
exceed 20% of Consolidated Stockholders' Equity.
Corporate Existence. Each Issuer will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, material rights (charter and statutory) and material franchises;
provided, however, that such Issuer shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation of such rights and franchises is no longer desirable in the conduct
of the business of the Issuers and Restricted Subsidiaries considered as a
whole.
No Special Protection in the Event of a Highly Leveraged Transaction.
The terms of the Notes will not afford the holders special protection in the
event of a highly leveraged transaction.
<PAGE>
Merger and Consolidation
The Indenture provides that none of the Issuers will consolidate with
or merge with or into, or convey, transfer or lease all or substantially all its
assets to, any Person (other than a merger of a Wholly Owned Restricted
Subsidiary into an Issuer or another Wholly Owned Restricted Subsidiary or a
merger of one Issuer into another), unless:
(1) the resulting, surviving or transferee Person (the "Successor
Company" ) will be a corporation organized and existing under the laws
of the United States of America, any State thereof or the District of
Columbia and the Successor Company (if not such Issuer) will expressly
assume, by a supplemental Indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of
such Issuer under the Notes and the Indenture;
(2) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company, any other Issuer or any Restricted Subsidiary as a result of
such transaction as having been incurred by the Successor Company or
such Issuer or Restricted Subsidiary at the time of such transaction),
no Event of Default shall have occurred and be continuing;
(3) such Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental Indenture (if
any) comply with the Indenture; and
(4) if, as a result of any such consolidation, merger or
transfer, Principal Property of such Issuer would become subject to a
Lien which would not be permitted by the Indenture, such Issuer or the
Successor Company, as the case may be, shall take such steps as shall
be necessary effectively to secure the Notes equally and ratably with
(or prior to) all Indebtedness secured thereby.
The Indenture provides that the Successor Company will succeed to, and
be substituted for, and may exercise every right and power of, the applicable
Issuer under the Indenture, but the predecessor Issuer in the case of a lease of
all or substantially all its assets will not be released from the obligation to
pay the principal of and interest on the Notes.
Defaults
An Event of Default with respect to any series of Notes is defined in
the Indenture as:
(1) a default in any payment of interest or liquidated damages on
any Note of that series when due and payable, continued for 30 days,
(2) a default in the payment of principal of or any premium on
any Note of that series when due and payable at maturity, upon
declaration or otherwise,
(3) the failure by any Issuer to comply with its obligations
under the covenant described under "--Merger and Consolidation" above,
(4) the failure by any Issuer to comply for 30 days after notice
with any of its obligations under the covenants described under
"--Certain Covenants" above,
(5) the failure by any Issuer to comply for 60 days after notice
with its other covenants or agreements contained in the Notes or the
Indenture,
(6) a default under any Indebtedness by any Issuer or Restricted
Subsidiary (other than the Notes), whether such Indebtedness now
exists or shall hereafter be created, which default shall have
resulted in Indebtedness in excess of $25.0 million or its foreign
currency equivalent becoming due and payable prior to the date on
which it would otherwise have become due and payable, without such
Indebtedness having been discharged or such acceleration having been
rescinded or annulled within 30 days after notice (the "cross
acceleration provision"),
(7) the rendering of any judgment or decree for the payment of
money in excess of $25.0 million or its foreign currency equivalent
against an Issuer or Restricted Subsidiary if (A) an enforcement
proceeding thereon is commenced by any creditor or (B) such judgment
or decree remains outstanding for a period of 60 days following such
judgment and is not discharged, waived or stayed (the "judgment
default provision"),
<PAGE>
(8) the guarantee or co-obligation of any Additional Obligor
shall cease to be in full force and effect (except as contemplated by
the terms thereof) or any Additional Obligor or Person acting by or on
behalf of such Additional Obligor shall deny or disaffirm its
obligations under the Indenture or any such guarantee or
co-obligation, or
(9) certain events of bankruptcy, insolvency or reorganization of
an Issuer or Restricted Subsidiary (the "bankruptcy provisions").
A default under one series of Notes will not necessarily be a default
under another series. The foregoing will constitute Events of Default whatever
the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
However, a default with respect to Notes of any series under clause
(4), (5) or (6) will not constitute an Event of Default until the Trustee or the
holders of at least 25% in principal amount of the outstanding Notes of that
series notify the Issuers of the default and the Issuers do not cure such
default within the time specified in clause (4), (5) or (6) hereof after receipt
of such notice.
If an Event of Default with respect to Notes of any series (other than
an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of an Issuer) occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the outstanding Notes of that
series by notice to the Issuers may declare the principal of and accrued but
unpaid interest on all the Notes of that series to be due and payable. Upon such
a declaration, such principal and interest will be due and payable immediately.
If an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of an Issuer occurs, the principal of and interest on all the
Notes will become immediately due and payable without any declaration or other
act on the part of the Trustee or any holders. Under certain circumstances, the
holders of a majority in principal amount of the outstanding Notes of any series
may rescind any such acceleration with respect to such series.
Subject to the provisions of the Indenture relating to the duties of
the Trustee, in case an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the holders unless such holders
have offered to the Trustee indemnity or security satisfactory to it against any
loss, liability or expense. Except to enforce the right to receive payment of
principal, premium (if any) or interest when due, no holder may pursue any
remedy with respect to the Indenture or the Notes of any series unless
(1) such holder has previously given the Trustee notice that an
Event of Default for that series is continuing,
(2) holders of at least 25% in principal amount of the
outstanding Notes of that series have requested the Trustee in writing
to pursue the remedy,
(3) such holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense,
(4) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or
indemnity and
(5) the holders of a majority in principal amount of the
outstanding Notes of that series have not given the Trustee a
direction inconsistent with such request within such 60-day period.
Subject to certain restrictions, the holders of a majority in principal amount
of the outstanding Notes of each series will be given the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to Notes of such series. The Trustee, however, may refuse to follow any
direction that conflicts with law or the Indenture or that the Trustee
determines is unduly prejudicial to the rights of any other holder or that would
involve the Trustee in personal liability. Prior to taking any action under the
Indenture, the Trustee will be entitled to indemnification satisfactory to it in
its sole discretion against all losses and expenses caused by taking or not
taking such action.
The Indenture provides that if a Default with respect to Notes of any
series occurs and is continuing and is known to the Trustee, the Trustee must
mail to each holder of Notes of that series notice of the Default within 90 days
after it occurs. Except in the case of a Default in the payment of principal of,
premium (if any) or interest on any Note of any series (including payments
pursuant to the redemption provisions of such Note), the Trustee may withhold
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding notice is
<PAGE>
in the interests of the noteholders of such series. In addition, Jones will be
required to deliver to the Trustee, within 120 days after the end of each
fiscal year, a certificate indicating whether the signers thereof know of any
Default that occurred during the previous year.
Amendments and Waivers
Subject to certain exceptions, the Indenture or the Notes may be
amended with the written consent of the holders of a majority in principal
amount of the Notes then outstanding of each series affected by such amendment
and any past default or compliance with any provisions may be waived with the
consent of the holders of a majority in principal amount of the Notes then
outstanding of each series affected by such waiver. However, without the consent
of each holder of an outstanding Note affected, no amendment may, among other
things,
(1) reduce the amount of Notes whose holders must consent to an
amendment,
(2) reduce the rate of or extend the time for payment of interest
or any liquidated damages on any Note,
(3) reduce the principal of or extend the stated maturity of any
Note,
(4) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed as described under
"-Optional Redemption" above,
(5) make any Note payable in money other than that stated in the
Note,
(6) impair the right of any holder to receive payment of
principal of, and interest or any liquidated damages on, such holder's
Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such holder's Notes,
(7) make any change in the amendment provisions which require
each holder's consent or in the waiver provisions, or
(8) make any change in any guarantee or co-obligation of any
Additional Obligor that would adversely affect the holders.
Without the consent of any holder, the Issuers and the Trustee may
amend the Indenture to cure any ambiguity, omission, defect or inconsistency, to
provide for the assumption by a successor corporation of the obligations of the
Issuers under the Indenture, to provide for uncertificated Notes in addition to
or in place of certificated Notes (provided that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code, or in a
manner such that the uncertificated Notes are described in Section 163(f)(2)(B)
of the Code), to secure the Notes, to add guarantees or co-obligors with respect
to the Notes, to add to the covenants of the Issuers for the benefit of the
noteholders or to surrender any right or power conferred upon the Issuers, to
make any change that does not adversely affect the rights of any holder, subject
to the provisions of the Indenture, to provide for the issuance of the Exchange
Notes or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA.
The Senior Credit Facilities contain a covenant which, following a
default or event of default under the Senior Credit Facilities, prohibits the
Issuers from making material amendments to debt instruments, including the
Indenture for the Notes, without the consent of a majority of the lenders under
the Senior Credit Facilities.
The consent of noteholders is not necessary under the Indenture to
approve the particular form of any proposed amendment. It will be sufficient if
such consent approves the substance of the proposed amendment.
After an amendment under the Indenture becomes effective, the Issuers
will be required to mail to noteholders a notice briefly describing such
amendment. However, the failure to give such notice to all noteholders, or any
defect therein, will not impair or affect the validity of the amendment.
Transfer and Exchange
A noteholder will be able to transfer or exchange Notes of any series
for other Notes of the same series, the same total principal amount and the same
terms but in different authorized denominations in accordance with the
Indenture. Upon any transfer or exchange, the Registrar and the Trustee may
require a noteholder, among other things, to furnish appropriate endorsements
and transfer documents and the Issuers may require a noteholder to pay any taxes
required by law or permitted by the Indenture. The Issuers will not be required
to
<PAGE>
transfer or exchange any Note selected for redemption or to transfer or exchange
any Note for a period of 15 days prior to a selection of Notes to be redeemed.
The Notes will be issued in registered form and the registered holder of a Note
will be treated as the owner of such Note for all purposes.
Defeasance
The Indenture provides that the Issuers at any time may terminate all
their obligations under any series of the Notes and the Indenture ("legal
defeasance"), except for certain obligations, including those respecting the
defeasance trust and obligations to register the transfer or exchange of the
Notes, to replace mutilated, destroyed, lost or stolen Notes and to maintain a
registrar and paying agent in respect of the Notes. In addition, the Indenture
providse that the Issuers at any time may terminate their obligations under the
covenants described under "Certain Covenants," the cross acceleration provision,
the bankruptcy provisions with respect to Restricted Subsidiaries and the
judgment default provision described under "- Defaults" above and the
limitations contained in clauses (3) and (4) under "- Merger and Consolidation"
above ("covenant defeasance").
The Issuers may exercise their legal defeasance option notwithstanding
their prior exercise of their covenant defeasance option. If the Issuers
exercise their legal defeasance option with respect to any series, payment of
the Notes of that series may not be accelerated because of an Event of Default
with respect thereto. If the Issuers exercise their covenant defeasance option,
payment of the Notes may not be accelerated because of an Event of Default
specified in clause (4), (6) or clause (7) (with respect only to Restricted
Subsidiaries) under "Defaults" above or because of the failure of the Issuers to
comply with clause (3) or (4) under "- Merger and Consolidation" above.
In order to exercise either defeasance option with respect to any
series, the Issuers must irrevocably deposit in trust (the "defeasance trust")
with the Trustee money or U.S. Government Obligations for the payment of
principal, premium (if any) and interest on the Notes of that series to
redemption or maturity, as the case may be, and must comply with certain other
conditions, including delivery to the Trustee of an Opinion of Counsel to the
effect that holders of the Notes of that series will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit and
defeasance and will be subject to Federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred (and, in the case of legal defeasance
only, such Opinion of Counsel must be based on a ruling of the Internal Revenue
Service or a change in applicable Federal income tax law).
Concerning the Trustee
The Bank of New York is the Trustee under the Indenture and has been
appointed by the Issuers as Registrar and Paying Agent with regard to the Notes.
Governing Law
The Indenture provides that it and the Notes will be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to applicable principles of conflicts of law to the extent that the
application of the law of another jurisdiction would be required thereby.
Certain Definitions
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at the time of determination, the present value (discounted at the actual
rate of interest of such transaction) of the obligation of the lessee for net
rental payments during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). The term "net rental
payments" under any lease for any period shall mean the sum of the rental and
other payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges required
to be paid by such lessee thereunder or any amounts required to be paid by such
lessee thereunder contingent upon the amount of sales, maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges. In the case of
any lease which is terminable by the lessee upon the payment of a penalty, such
net amount shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated without payment of such penalty.
"Board of Directors" means the Board of Directors of the applicable
Issuer or any committee thereof duly authorized to act on behalf of the Board of
Directors of such Issuer.
<PAGE>
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any preferred
stock, but excluding any debt securities convertible into such equity.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consolidated Net Tangible Assets" means, as of any date of
determination, the total amount of assets of the Issuers and their respective
Subsidiaries (less applicable reserves and other properly deductible items)
after deducting (1) all current liabilities (excluding the amount of those which
are by their terms extendable or renewable at the option of the obligor to a
date more than 12 months after the date as of which the amount is being
determined and excluding all intercompany items between an Issuer and any of its
wholly owned Subsidiaries or between Issuers or wholly owned Subsidiaries of
Issuers) and (2) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangible assets, all as determined on
a consolidated basis in accordance with generally accepted accounting
principles.
"Consolidated Stockholders' Equity" means consolidated stockholders'
equity of the Issuers and their respective Subsidiaries as determined in
accordance with generally accepted accounting principles and reflected on the
Issuers' most recent balance sheet.
"Funded Debt" means Indebtedness, whether incurred, assumed or
guaranteed, maturing by its terms more than one year from the date of creation
thereof or which is extendable or renewable at the sole option of the obligor in
such manner that it may become payable more than one year from the date of
creation thereof; provided, however, that Funded Debt shall not include
obligations created pursuant to leases, or any Indebtedness or portion thereof
maturing by its terms within one year from the time of any computation of the
amount of outstanding Funded Debt unless such Indebtedness shall be extendable
or renewable at the sole option of the obligor in such manner that it may become
payable more than one year from such time, or any Indebtedness for the payment
or redemption of which money in the necessary amount shall have been deposited
in trust either at or before the maturity or redemption date thereof.
"Indebtedness" of a Person means indebtedness for borrowed money and
all indebtedness under purchase money mortgages or other purchase money liens or
conditional sales or similar title retention agreements (but excluding trade
accounts payable in the ordinary course of business) in each case where such
indebtedness has been created, incurred, assumed or guaranteed by such Person or
where such Person is otherwise liable therefore and indebtedness for borrowed
money secured by any Lien upon property owned by such Person even though such
Person has not assumed or become liable for the payment of such indebtedness;
provided that if the obligation so secured has not been assumed in full by such
Person or is otherwise not such Person's legal liability in full, the amount of
such obligation for the purposes of this definition shall be limited to the
lesser of the amount of such obligation secured by such Lien or the fair market
value of the property securing such Lien.
"Legal Holiday" means a Saturday, Sunday or other day on which banking
institutions in New York State are authorized or required by law to close.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the applicable Issuer.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the applicable Issuer or the
Trustee.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Principal" of a note means the principal of the note plus the
premium, if any, payable on the note which is due or overdue or is to become due
at the relevant time.
"Principal Property" means any property owned or leased by any Issuer
or Restricted Subsidiary, the net book value of which exceeds one percent of
Consolidated Net Tangible Assets of the Issuers and their respective
Subsidiaries.
<PAGE>
"Restricted Subsidiary" means, at any time, any Subsidiary of an
Issuer which would be a "Significant Subsidiary" at such time, as such term is
defined in Regulation S-X promulgated by the SEC, as in effect on the date of
the Indenture.
"SEC" means the Securities and Exchange Commission.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date of the Indenture.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Wholly Owned Restricted Subsidiary" means a Restricted Subsidiary,
100% of the outstanding Capital Stock of which (other than Capital Stock
constituting directors' qualifying shares or interests held by directors or
shares or interests required to be held by foreign nationals, in each case to
the extent mandated by applicable law) is directly or indirectly owned by an
Issuer or by one or more Wholly Owned Restricted Subsidiaries.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of certain United States Federal
income tax consequences of the Exchange Offer to holders of Restricted Notes,
but does not purport to be a complete analysis of all potential tax effects. The
discussion set forth below is based upon currently existing provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), existing and proposed
Treasury regulations promulgated thereunder and current administrative rulings
and judicial decisions, all of which are subject to change, possibly on a
retroactive basis. This summary does not discuss all aspects of United States
Federal income taxation that may be relevant to certain types of holders subject
to special treatment under the United States Federal income tax laws such as
tax-exempt organizations, dealers in securities, financial institutions and life
insurance companies. This summary applies only to a holder that acquired
Restricted Notes at original issue for cash and holds Restricted Notes as a
capital asset as defined in section 1221 of the Code. This summary also does not
discuss any aspect of state, local or foreign taxation. Holders of Restricted
Notes considering the Exchange Offer should consult their own tax advisors
concerning the United States Federal income tax consequences in light of their
particular situations as well as any consequences arising under the laws of any
other taxing jurisdiction.
An exchange of Restricted Notes for Exchange Notes pursuant to the
Exchange Offer should not be treated as a taxable exchange or other taxable
event for United States Federal income tax purposes. Accordingly, there should
be no United States Federal income tax consequences to holders of Restricted
Notes who exchange Restricted Notes for Exchange Notes in the Exchange Offer,
and any such holder should have the same adjusted tax basis and holding period
in the Exchange Notes as it had in the Restricted Notes immediately before the
exchange.
THE FOREGOING DISCUSSION OF CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSIDERATIONS DOES NOT CONSIDER THE FACTS AND CIRCUMSTANCES OF ANY PARTICULAR
HOLDER'S SITUATION OR STATUS. ACCORDINGLY, EACH HOLDER OF RESTRICTED NOTES
SHOULD CONSULT ITS OWN TAX ADVISOR WITH RESPECT TO THE TAX CONSEQUENCES OF THE
EXCHANGE OFFER TO IT, INCLUDING THOSE UNDER THE STATE, FOREIGN AND OTHER TAX
LAWS.
<PAGE>
BOOK-ENTRY; DELIVERY AND FORM
The Global Notes
The certificates representing the Restricted Notes were issued, and
the certificates representing the Exchange Notes will be issued, in fully
registered form, without coupons. The Restricted Notes are represented by global
certificates in definitive, fully registered form without interest coupons in
the aggregate amount of $400.0 million (collectively, the "Initial Global
Notes"). Except as described under "Certificated Exchange Notes", the Exchange
Notes initially will be represented by one or more permanent global certificates
in definitive, fully registered form (collectively, the "Global Notes") and (i)
will be deposited with, or on behalf of, DTC, and registered in the name of Cede
& Co., as DTC's nominee or (ii) will remain in the custody of the Trustee
pursuant to a FAST Balance Certificate Agreement between DTC and the Trustee or
(iii) will be deposited with, or on behalf of, a custodian of DTC for credit to
the respective accounts of the purchasers (or to such accounts as they may
direct) at Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System ("Euroclear"), or Cedel Bank, societe anonyme
("Cedel"). If any holder of Restricted Notes whose interest in the Restricted
Notes is represented by the Initial Global Notes fails to tender in the Exchange
Offer, we may issue and deliver to that holder a separate certificate
representing that holder's Restricted Notes in registered form without interest
coupons.
Certain Book-Entry Procedures for the Global Notes
The descriptions of the operations and procedures of DTC, Euroclear
and Cedel set forth below are provided solely as a matter of convenience. These
operations and procedures are solely within the control of the respective
settlement systems and are subject to change by them from time to time. The
Issuers do not take any responsibility for these operations or procedures, and
investors are urged to contact the relevant system or its participants directly
to discuss these matters.
DTC has advised the Issuers that it is (i) a limited purpose trust
company organized under the laws of the State of New York, (ii) a "banking
organization" within the meaning of the New York Banking Law, (iii) a member of
the Federal Reserve System, (iv) a "clearing corporation" within the meaning of
the Uniform Commercial Code, as amended, and (v) a "clearing agency" registered
pursuant to Section 17A of the Exchange Act. DTC was created to hold securities
for its participants (collectively, the "Participants") and facilitates the
clearance and settlement of securities transactions between Participants through
electronic book-entry changes to the accounts of its Participants, thereby
eliminating the need for physical transfer and delivery of certificates. DTC's
Participants include securities brokers and dealers (including the Initial
Purchasers), banks and trust companies, clearing corporations and certain other
organizations. Indirect access to DTC's system is also available to other
entities such as banks, brokers, dealers and trust companies (collectively, the
"Indirect Participants") that clear through or maintain a custodial relationship
with a Participant, either directly or indirectly. Investors who are not
Participants may beneficially own securities held by or on behalf of DTC only
through Participants or Indirect Participants.
Upon deposit of each Global Note, DTC credited the accounts of
Participants designated by the Initial Purchasers with an interest in each
Global Note. The Issuers expect that pursuant to procedures established by DTC,
ownership of the Exchange Notes will be shown on, and the transfer of ownership
will be effected only through, records maintained by DTC (with respect to the
interests of Participants) and the records of Participants and the Indirect
Participants (with respect to the interests of persons other than Participants).
The laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of the securities in definitive form.
Accordingly, the ability to transfer interests in the Exchange Notes represented
by a Global Note to those persons may be limited. In addition, because DTC can
act only on behalf of its Participants, who in turn act on behalf of persons who
hold interests through Participants, the ability of a person having an interest
in the Exchange Notes represented by a Global Note to pledge or transfer that
interest to persons or entities that do not participate in DTC's system, or to
otherwise take actions in respect of that interest, may be affected by the lack
of a physical definitive security in respect of that interest.
So long as DTC or its nominee is the registered owner of a Global
Note, DTC or the nominee, as the case may be, will be considered the sole owner
or holder of the Exchange Notes represented by the Global Note for all purposes
under the Indenture. Except as provided below, owners of beneficial interests in
a Global Note will not be entitled to have Exchange Notes represented by that
Global Note registered in their names, will not receive or be entitled to
receive physical delivery of Certificated Notes, and will not be considered the
owners or holders of Certified Notes under the Indenture for any purpose,
including giving any direction, instruction or approval to the Trustee.
Accordingly, each holder owning a beneficial interest in a Global Note must rely
on the procedures of DTC and, if that holder is not a Participant or an Indirect
Participant, on the procedures of the Participant through which that holder owns
its interest, to exercise any rights of a holder of Exchange Notes under the
Indenture or that Global Note. The Issuers understand that under existing
industry practice, in the event that the Issuers request any
<PAGE>
action of holders of Exchange Notes, or a holder that is an owner of a
beneficial interest in a Global Note desires to take any action that DTC, as
the holder of that Global Note, is entitled to take, DTC would authorize the
Participants to take the action and the Participants would authorize holders
owning through those Participants to take the action or would otherwise act
upon the instruction of those holders. Neither the Issuers nor the Trustee
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of Exchange Notes by DTC, or for
maintaining, supervising or reviewing any records of DTC relating to the
Exchange Notes.
Payments with respect to the principal of, and premium, if any,
liquidated damages, if any, and interest on, any Exchange Notes represented by a
Global Note registered in the name of DTC or its nominee on the applicable
record date will be payable by the Trustee to or at the direction of DTC or its
nominee in its capacity as the registered holder of the Global Note representing
the Exchange Notes under the Indenture. Under the terms of the Indenture, Jones
and the Trustee may treat the persons in whose names the Exchange Notes,
including the Global Notes, are registered as the owners of the Exchange Notes
for the purpose of receiving payment on the Exchange Notes and for any and all
other purposes whatsoever. Accordingly, neither the Issuers nor the Trustee has
or will have any responsibility or liability for the payment of those amounts to
owners of beneficial interests in a Global Note (including principal, premium,
if any, liquidated damages, if any, and interest). Payments by the Participants
and the Indirect Participants to the owners of beneficial interests in a Global
Note will be governed by standing instructions and customary industry practice
and will be the responsibility of the Participants or the Indirect Participants
and DTC.
Transfers between Participants in DTC will be effected in accordance
with DTC's procedures, and will be settled in same-day funds. Transfers between
participants in Euroclear or Cedel will be effected in the ordinary way in
accordance with their respective rules and operating procedures.
Cross-market transfers of Exchange Notes between the Participants in
DTC, on the one hand, and Euroclear or Cedel participants, on the other hand,
will be effected through DTC in accordance with DTC's rules on behalf of
Euroclear or Cedel, as the case may be, by its respective depositary. However,
those cross-market transactions will require delivery of instructions to
Euroclear or Cedel, as the case may be, by the counterparty in that system in
accordance with the rules and procedures and within the established deadlines
(Brussels time) of that system. Euroclear or Cedel, as the case may be, will, if
the transaction meets its settlement requirements, deliver instructions to its
respective depositary to take action to effect final settlement on its behalf by
delivering or receiving interests in the relevant Global Notes in DTC, and
making or receiving payment in accordance with normal procedures for same-day
funds settlement applicable to DTC. Euroclear participants and Cedel
participants may not deliver instructions directly to the depositaries for
Euroclear or Cedel.
Because of time zone differences, the securities account of a
Euroclear or Cedel participant purchasing an interest in a Global Note from a
Participant in DTC will be credited, and any such crediting will be reported to
the relevant Euroclear or Cedel participant, during the securities settlement
processing day (which must be a business day for Euroclear and Cedel)
immediately following the settlement date of DTC. Cash received in Euroclear or
Cedel as a result of sales of interest in a Global Security by or thorough a
Euroclear or Cedel participant to a Participant in DTC will be received with
value on the settlement date of DTC but will be available in the relevant
Euroclear or Cedel cash account only as of the business day for Euroclear or
Cedel following DTC's settlement date.
Although DTC, Euroclear and Cedel have agreed to the foregoing
procedures to facilitate transfers of interests in the Global Notes among
participants in DTC, Euroclear and Cedel, they are under no obligation to
perform or to continue to perform those procedures, and those procedures may be
discontinued at any time. Neither the Issuers nor the Trustee will have any
responsibility for the performance by DTC, Euroclear or Cedel or their
respective participants or indirect participants of their respective obligations
under the rules and procedures governing their operations.
<PAGE>
Certificated Exchange Notes
If (i) the Issuers notify the Trustee in writing that DTC is no longer
willing or able to act as a depositary or DTC ceases to be registered as a
clearing agency under the Exchange Act and a successor depositary is not
appointed within 90 days of that notice or cessation, (ii) the Issuers, at their
option, notify the Trustee in writing that they elect to cause the issuance of
Exchange Notes in definitive form under the Indenture or (iii) certain other
events as provided in the Indenture occur, then, upon surrender by DTC of the
Global Notes, Certificated Notes will be issued to each person that DTC
identifies as the beneficial owner of the Exchange Notes represented by the
Global Notes. Upon any issuance of this kind, the Trustee is required to
register those Certificated Notes in the name of that person or persons (or
their nominee) and cause the Certificated Notes to be delivered.
Neither the Issuers nor the Trustee shall be liable for any delay by
DTC or any Participant or Indirect Participant in identifying the beneficial
owners of the Exchange Notes and each such person may conclusively rely on, and
shall be protected in relying on, instructions from DTC for all purposes
(including with respect to the registration and delivery, and the respective
principal amounts, of the Exchange Notes to be issued).
<PAGE>
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account in
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of those Exchange Notes. This Prospectus, as it may
be amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Notes received in exchange for the
Restricted Notes where such Notes were acquired as a result of market-making
activities or other trading activities. We have agreed that, starting on the
date of this Prospectus and ending on the close of business on the earlier to
occur of (i) the date on which all Exchange Notes held by broker-dealers
eligible to use the Prospectus to satisfy their prospectus delivery obligations
under the Securities Act have been sold and (ii) the date 180 days after the
completion of the Exchange Offer, we will make this Prospectus, as amended or
supplemented, available to any broker-dealer that requests such documents in the
Letter of Transmittal for use in connection with any such resale. In addition,
until [ ], 1999, all dealers effecting transactions in the Exchange Notes may be
required to deliver a prospectus.
We will not receive any proceeds from any sale of Exchange Notes by
broker-dealers. Exchange Notes received by broker-dealers for their own account
in the Exchange Offer may be sold from time to time in one or more transactions
in the over-the-counter market, in negotiated transactions, through the writing
of options on the Exchange Notes or a combination of those methods of resale, at
market prices prevailing at the time of resale, at prices related to prevailing
market prices or at negotiated prices. Any resale of this kind may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from the broker-dealer or
the purchasers of the Exchange Notes. Any broker-dealer that resells Exchange
Notes that were received by it for its own account in the Exchange Offer and any
broker or dealer that participates in a distribution of these Exchange Notes may
be deemed to be an "underwriter" within the meaning of the Securities Act and
any profit on the resale of Exchange Notes and any commission or concessions
received by any persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it
will deliver and by delivering a Prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
<PAGE>
LEGAL MATTERS
Ira M. Dansky, Esq., General Counsel of Jones, has passed upon the
validity of the Exchange Notes offered by this Prospectus. With respect to
certain matters concerning Pennsylvania and Delaware law, he has relied on
Mesirov Gelman Jaffe Cramer & Jamieson, LLP, Philadelphia, Pennsylvania. Mr.
Dansky owns 8,226 shares of Jones' common stock and holds options entitling him
to purchase an additional 128,226 shares.
EXPERTS
The consolidated financial statements and financial statement schedule
of Jones incorporated by reference in this Prospectus have been audited by BDO
Seidman, LLP, independent certified public accountants, to the extent and for
the periods set forth in their reports incorporated herein by reference, and are
incorporated herein in reliance upon such reports given upon the authority of
said firm as experts in accounting and auditing.
The consolidated financial statements of Nine West as of January 31,
1998 and February 1, 1997 and for the 52 weeks ended January 31, 1998 and
February 1, 1997 and the 53 weeks ended February 3, 1996 appearing in Jones'
Current Report on Form 8-K dated April 7, 1999, have been audited by Deloitte
& Touche LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon
such report given upon the authority of said firm as experts in accounting and
auditing.
<PAGE>
========================================== ==================================
We have not authorized any dealer,
salesperson or other person to give any
information or to make any representations
not contained in this Prospectus in
connection with the Exchange Offer made by $400,000,000
this Prospectus and you must not rely on
any such information or representations as
having been authorized by us. Neither the Jones Apparel Group, Inc.
delivery of this Prospectus nor any sale Jones Apparel Group Holdings, Inc.
made hereunder will, under any circumstances, Jones Apparel Group USA, Inc.
create any implication that there has been no Nine West Group Inc.
change in our affairs since the date as of
which information is given in this Prospectus.
This Prospectus is not an offer to sell these
securities and it is not soliciting an offer
to buy these securities in any state where
the offer or sale is not permitted.
-------------------------
Offer to Exchange
7.50% Senior Notes due 2004
7.875% Senior Notes due 2006
Dealer Prospectus Delivery Obligation
Until [ ], 1999, all broker dealers
that effect transactions in the Exchange
Notes, whether or not participating in the
Exchange Offer, may be required to deliver
a Prospectus. This is in addition to the
obligation of broker-dealers to deliver a
Prospectus when acting as underwriters and
with respect to any unsold allotments or
subscriptions.
---------------------------
PROSPECTUS
---------------------------
[ ], 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Pennsylvania Business Corporation Law of 1988 (the
"Pennsylvania Business Corporation Law"), Section 8.1 of the By-laws of Jones
Apparel Group, Inc. and Section 7.1 of the By-laws of Jones Apparel Group USA,
Inc. provide that a director shall not be personally liable for monetary damages
for any action taken or failed to be taken, other than as expressly provided in
the Pennsylvania Business Corporation Law. Furthermore, such By-laws provide
that the applicable corporation shall indemnify each officer and director to the
full extent permitted by the Pennsylvania Business Corporation Law, and shall
pay and advance expenses for any matters covered by such indemnification.
Section 1741 of the Pennsylvania Business Corporation Law provides
that a corporation shall have the power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that he or she is or was a representative of the corporation,
or is or was serving at the request of the corporation as a representative of
another domestic or foreign corporation for profit or not-for-profit,
partnership, joint venture, trust judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with the
action or proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The termination of any action
or proceeding by judgment, order, settlement or conviction or upon a plea of
nolo contendere or its equivalent shall not of itself create a presumption that
the person did not act in good faith and in a manner that he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal proceeding, had reasonable cause to believe that
his or her conduct was unlawful.
Section 1742 of the Pennsylvania Business Corporation Law provides
that a corporation shall have the power to indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed action by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he or she is or was a representative of the
corporation or is or was serving at the request of the corporation as a
representative of another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection with the defense or settlement of the action if he or she
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interest of the corporation. Indemnification shall not
be made under Section 1742 in respect of any claim, issue or matter as to which
the person has been adjudged to be liable to the corporation unless and only to
the extent that the court of common pleas of the judicial district embracing the
county in which the registered office of the corporation is located or the court
in which the action was brought determines upon application, that, despite the
adjudication of liability but in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for the expenses that the
court of common pleas or other court deems proper.
The Certificate of Incorporation of Jones Apparel Group Holdings,
Inc., a Delaware corporation ("Jones Holdings") and the Certificate of
Incorporation of Nine West Group Inc., a Delaware corporation ("Nine West"),
provides that no director of Jones Holdings or Nine West shall be personally
liable to Jones Holdings, Nine West or their stockholders for monetary damages
for breach of a fiduciary duty other than as expressly provided in Section
102(b)(7) of the General Corporation Law of Delaware (the "DGCL"), which
eliminates liability except (1) for any breach of the director's duty of loyalty
to Jones Holdings, Nine West or their stockholders, (2) for acts or omissions
not in good faith or which involve intentional misconduct or knowing violation
of law, (3) under Section 174 of the DGCL or (4) for any transaction from which
the director derives an improper personal benefit. Furthermore, the Certificate
of Incorporation and By-laws of Jones Holdings and Nine West each provide that
Jones Holdings and Nine West shall indemnify their officers, directors,
employees and agents to the full extent permitted by the DGCL, and shall pay and
advance expenses for any matters covered by such indemnification.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he or she is or was a
director, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or their enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
cause to believe that his or her conduct was unlawful.
<PAGE>
Subsection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification may be made in respect any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
or suit was brought shall determine that despite the adjudication of liability
such person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
Section 145 of the DGCL further provides that (1) to the extent a
director, officer, employee or agent of a corporation has been successful in the
defense of any action, suit or proceeding referred to in subsections (a) and (b)
or in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith; (2) indemnification or
advancement of expenses provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and (3) the corporation shall have the power to purchase and maintain insurance
on behalf of a director, officer, employee or agent of the corporation against
any liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT NO. DESCRIPTION
3.1 Certificate of Incorporation of Jones Apparel Group Holdings,
Inc. (filed as Exhibit 3.1 to the Company's Registration
Statement on Form S-4 (File No. 333-68587) filed with the
SEC on January 25, 1999)*
3.2 By-laws of Jones Apparel Group Holdings, Inc. (filed as
Exhibit 3.2 to the Company's Registration Statement on Form
S-4 (File No. 333-68587) filed with the SEC on January 25,
1999)*
3.3 Articles of Incorporation of Jones Apparel Group USA, Inc.
(filed as Exhibit 3.3 to the Company's Registration
Statement on Form S-4 (File No. 333-68587) filed with the
SEC on January 25, 1999)*
3.4 By-laws of Jones Apparel Group USA, Inc. (filed as Exhibit
3.4 to the Company's Registration Statement on Form S-4
(File No. 333-68587) filed with the SEC on January 25,
1999)*
3.5 Amended and Restated Articles of Incorporation of Jones
Apparel Group, Inc. (filed as Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1998)*
3.6 By-laws of Jones Apparel Group, Inc. (filed as Exhibit 3.3
to the Company's Registration Statement on Form S-1
(File No. 39742) filed with the Commission on April 3, 1991*
3.7 Certificate of Incorporation of Nine West Group Inc.
(formerly known as Jack Asset Sub Inc.)**
3.8 By-laws of Nine West Group Inc. (formerly known as Jack
Asset Sub Inc.)**
3.9 Change of corporate name from Jack Asset Sub Inc. to Nine
West Group Inc**
4.1 Exchange and Note Registration Rights Agreement dated
June 15, 1999 among Jones Apparel Group, Inc., Jones Apparel
Group Holdings, Inc., Jones Apparel Group USA, Inc., Nine
West Group Inc. and Chase Securities Inc., Merrill Lynch,
Pierce Fenner & Smith Incorporated, Bear, Stearns & Co, Inc.,
Salomon Smith Barney Inc., BancBoston Robertson Stephens
Inc., Banc of America Securities LLC, ING Baring Furman
Selz LLC, Lazard Freres & Co. LLC, Tucker Anthony Cleary
Gull, Brean Murray & Co., Inc. and The Buckingham Research
Group Incorporated (filed as Exhibit 4.5 to the Company's
Quarterly Report on Form 10-Q for the quarter ended July 4,
1999)*
<PAGE>
4.2 Senior Note Indenture dated as of June 15, 1999 among Jones
Apparel Group, Inc., Jones Apparel Group Holdings, Inc.,
Jones Apparel Group USA, Inc., Nine West Group Inc. and The
Bank of New York, as trustee (filed as Exhibit 4.6 to the
Company's Quarterly Report on Form 10-Q for the quarter
July 4, 1999)*
4.3 Form of 7.50% Exchange Note due 2004 (included in Exhibit
4.2)
4.4 Form of 7.875% Exchange Note due 2006 (included in Exhibit
4.2)
5.1 Form of opinion of Ira M. Dansky, Esq.**
5.2 Form of opinion of Mesirov Gelman Jaffe Cramer & Jamieson,
LLP**
10.1 Agreement and Plan of Reorganization dated as of January 1,
1999, among Jones Apparel Group, Inc., Jones Apparel Group
Holdings, Inc. and Jones Apparel Group USA, Inc. (filed as
Exhibit 10.1 to the Company's Registration Statement on
Form S-4 (File No. 333-68587) filed with the SEC on
January 25, 1999)*
10.2 Master Joinder Agreement, dated as of January 1, 1999, to
the Credit Agreements referred to therein, entered into by
and among Jones Apparel Group, Inc., Jones Apparel Group,
USA, Inc., Jones Apparel Group Holdings, Inc., as Credit
Parties, and First Union National Bank, as Administrative
Agent on behalf of the Lenders (filed as Exhibit 10.2 to the
Company's Registration Statement on Form S-4 (File No.
333-68587) filed with the SEC on January 25, 1999)*
10.3 Agreement and Plan of Merger dated as of March 1, 1999, by
and among Jones Apparel Group, Inc., Jill Acquisition Sub
Inc. and Nine West Group Inc. (filed as Exhibit 2.1 to the
Company's Current Report on Form 8-K filed with the SEC on
March 2, 1999)*
10.4 Second Amended and Restated 364-Day Credit Agreement dated
as of June 15, 1999 among Jones Apparel Group USA, Inc. and
the Additional Obligors referred to therein, the Lenders
referred to therein, and First Union National Bank, as
Administrative Agent (filed as Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended
July 4, 1999)*
10.5 Five-Year Credit Agreement dated as of June 15, 1999 among
Jones Apparel Group USA, Inc. and the Additional Obligors
referred to therein, the Lenders referred to therein, and
First Union National Bank, as Administrative Agent (filed as
Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q
for the quarter ended July 4, 1999)*
12.1 Computation of Ratios of Earnings to Fixed Charges**
21.1 List of Subsidiaries**
23.1 Consent of BDO Seidman, LLP**
23.2 Consent of Deloitte & Touche LLP**
23.3 Consent of Ira M. Dansky, Esq. (included in opinion filed
as Exhibit 5.1)
23.4 Consent of Mesirov Gelman Jaffe Cramer & Jamieson, LLP
(included in opinion filed as Exhibit 5.2)
24.1 Power of Attorney (included in signature page)
25.1 Form T-1 Statement of Eligibility of Trustee**
99.1 Form of Letter of Transmittal**
99.2 Form of Notice of Guaranteed Delivery**
*Incorporated by reference.
**Filed herewith.
<PAGE>
ITEM 22. UNDERTAKINGS.
(a) Each undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the maximum aggregate offering price may be reflected in the
form of prospectus filed with the SEC pursuant to Rule 424(b) under the
Securities Act, if in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act of 1934 the
(the "Exchange Act") and incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) Each undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, each
Registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) Each undersigned Registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the prospectus
pursuant to Items 4, 10(b), 11 or 13 of this Form, within one business day of
receipt of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the Registration Statement
through the date of responding to request.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, each of the
Registrants has duly caused this Registration Statement to be signed on its
behalf by the undersigned thereunto duly authorized, in the City of New York,
State of New York, on September 10, 1999.
JONES APPAREL GROUP, INC., Registrant
by /s/ Wesley R. Card
Wesley R. Card
Chief Financial Officer
JONES APPAREL GROUP HOLDINGS, INC., Registrant
by /s/ Ira M. Dansky
Ira M. Dansky
President
JONES APPAREL GROUP USA, INC., Registrant
by /s/ Wesley R. Card
Wesley R. Card
Chief Financial Officer
NINE WEST GROUP INC., Registrant
by /s/ Mark J. Schwartz
Mark J. Schwartz
Chairman and Chief Executive Officer
<PAGE>
SIGNATURES
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Ira
M. Dansky, Wesley R. Card and Patrick M. Farrell and each of them, his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments to this Registration
Statement, any Registration Statement filed pursuant to Rule 462(b) under the
Securities Act, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact,
agent, or his substitute may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
SIGNATURE TITLE DATE
JONES APPAREL GROUP, INC.
/s/ Sidney Kimmel Chairman and Director September 10, 1999
- -------------------- (Principal Executive Officer)
Sidney Kimmel
/s/ Jackwyn Nemerov President and Director September 10, 1999
- --------------------
Jackwyn Nemerov
/s/ Wesley R. Card Chief Financial Officer September 10, 1999
- ---------------------- (Principal Financial Officer)
Wesley R. Card
/s/ Patrick M. Farrell Vice President and Corporate September 10, 1999
- ---------------------- Controller
Patrick M. Farrell (Principal Accounting Officer)
/s/ Irwin Samelman Executive Vice President, September 10, 1999
- ---------------------- Marketing, and Director
Irwin Samelman
/s/ Eric A. Rothfield Director September 10, 1999
- ----------------------
Eric A. Rothfeld
/s/ Mark J. Schwartz Director September 10, 1999
- ----------------------
Mark J. Schwartz
<PAGE>
SIGNATURE TITLE DATE
JONES APPAREL GROUP HOLDINGS, INC.
/s/ Ira M. Dansky President and Treasurer and Director September 10, 1999
- ---------------------- (Principal Executive Officer)
Ira M. Dansky
/s/ Joseph T. Donnalley Vice President/Finance and September 10, 1999
- ---------------------- Assistant Secretary (Principal
Joseph T. Donnalley Financial Officer and
Principal Accounting Officer)
/s/ Norman Shuman Vice President and Secretary September 10, 1999
- ---------------------- and Director
Norman Shuman
JONES APPAREL GROUP USA, INC.
/s/ Sidney Kimmel Chairman and Director September 10, 1999
- ---------------------- (Principal Executive Officer)
Sidney Kimmel
/s/ Jackwyn Nemerov President and Director September 10, 1999
---------------------
Jackwyn Nemerov
/s/ Wesley R. Card Chief Financial Officer September 10, 1999
- ---------------------- (Principal Financial Officer)
Wesley R. Card
/s/ Patrick M. Farrell Vice President and Corporate September 10, 1999
- ---------------------- Controller (Principal Accounting
Patrick M. Farrell Officer)
/s/ Irwin Samelman Executive Vice President, September 10, 1999
- ---------------------- Marketing, and Director
Irwin Samelman
NINE WEST GROUP INC.
/s/ Mark J. Schwartz Chairman and Chief Executive September 10, 1999
- ---------------------- Officer and Director
Mark J. Schwartz (Principal Executive Officer)
/s/ Jeffrey K. Howald Senior Vice President--Finance September 10, 1999
- ---------------------- and Assistant Secretary
Jeffrey K. Howald (Principal Financial Officer and
Principal Accounting Officer)
/s/ Sidney Kimmel Director September 10, 1999
- ----------------------
Sidney Kimmel
/s/ Jackwyn Nemerov Director September 10, 1999
- ----------------------
Jackwyn Nemerov
/s/ Wesley R. Card Director September 10, 1999
- ----------------------
Wesley R. Card
/s/ Irwin Samelman Director September 10, 1999
- ----------------------
Irwin Samelman
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
3.1 Certificate of Incorporation of Jones Apparel Group
Holdings, Inc. (filed as Exhibit 3.1 to the Company's
Registration Statement on Form S-4 (File No. 333-68587)
filed with the SEC on January 25, 1999)*
3.2 By-laws of Jones Apparel Group Holdings, Inc. (filed as
Exhibit 3.2 to the Company's Registration Statement on Form
S-4 (File No. 333-68587) filed with the SEC on January 25,
1999)*
3.3 Articles of Incorporation of Jones Apparel Group USA, Inc.
(filed as Exhibit 3.3 to the Company's Registration Statement
on Form S-4 (File No. 333-68587) filed with the SEC on
January 25, 1999)*
3.4 By-laws of Jones Apparel Group USA, Inc. (filed as Exhibit
3.4 to the Company's Registration Statement on Form S-4 (File
No. 333-68587) filed with the SEC on January 25, 1999)*
3.5 Amended and Restated Articles of Incorporation of Jones
Apparel Group, Inc. (filed as Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1998)*
3.6 By-laws of Jones Apparel Group, Inc. (filed as Exhibit 3.3 to
the Company's Registration Statement on Form S-1 (File No.
39742) filed with the Commission on April 3, 1991*
3.7 Certificate of Incorporation of Nine West Group Inc.
(formerly known as Jack Asset Sub Inc.)**
3.8 By-laws of Nine West Group Inc. (formerly known as Jack Asset
Sub Inc.)**
3.9 Change of corporate name from Jack Asset Sub Inc. to Nine
West Group Inc.**
4.1 Exchange and Note Registration Rights Agreement dated June
15, 1999 among Jones Apparel Group, Inc., Jones Apparel Group
Holdings, Inc., Jones Apparel Group USA, Inc., Nine West
Group Inc. and Chase Securities Inc., Merrill Lynch, Pierce
Fenner & Smith Incorporated, Bear, Stearns & Co, Inc.,
Salomon Smith Barney Inc., BancBoston Robertson Stephens
Inc., Banc of America Securities LLC, ING Baring Furman Selz
LLC, Lazard Freres & Co. LLC, Tucker Anthony Cleary Gull,
Brean Murray & Co., Inc. and The Buckingham Research Group
Incorporated (filed as Exhibit 4.5 to the Company's Quarterly
Report on Form 10-Q for the quarter ended July 4, 1999)*
4.2 Senior Note Indenture dated as of June 15, 1999 among Jones
Apparel Group, Inc., Jones Apparel Group Holdings, Inc.,
Jones Apparel Group USA, Inc., Nine West Group Inc. and The
Bank of New York, as trustee (filed as Exhibit 4.6 to the
Company's Quarterly Report on Form 10-Q for the quarter ended
July 4, 1999)*
4.3 Form of 7.50% Exchange Note due 2004 (included in Exhibit
4.2)
4.4 Formof 7.875% Exchange Note due 2006 (included in Exhibit
4.2)
5.1 Form of opinion of Ira M. Dansky, Esq.**
5.2 Form of opinion of Mesirov Gelman Jaffe Cramer & Jamieson,
LLP**
10.1 Agreement and Plan of Reorganization dated as of January 1,
1999, among Jones Apparel Group, Inc., Jones Apparel Group
Holdings, Inc. and Jones Apparel Group USA, Inc. (filed as
Exhibit 10.1 to the Company's Registration Statement on Form
S-4 (File No. 333-68587) filed with the SEC on January 25,
1999)*
10.2 Master Joinder Agreement, dated as of January 1, 1999, to the
Credit Agreements referred to therein, entered into by and
among Jones Apparel Group, Inc., Jones Apparel Group,
<PAGE>
USA, Inc., Jones Apparel Group Holdings, Inc., as Credit
Parties, and First Union National Bank, as Administrative
Agent on behalf of the Lenders (filed as Exhibit 10.2 to the
Company's Registration Statement on Form S-4 (File No.
333-68587) filed with the SEC on January 25, 1999)*
10.3 Agreement and Plan of Merger dated as of March 1, 1999, by
and among Jones Apparel Group, Inc., Jill Acquisition Sub
Inc. and Nine West Group Inc. (filed as Exhibit 2.1 to the
Company's Current Report on Form 8-K filed with the SEC on
March 2, 1999)*
10.4 Second Amended and Restated 364-Day Credit Agreement dated as
of June 15, 1999 among Jones Apparel Group USA, Inc. and the
Additional Obligors referred to therein, the Lenders referred
to therein, and First Union National Bank, as Administrative
Agent (filed as Exhibit 10.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended July 4, 1999)*
10.5 Five-Year Credit Agreement dated as of June 15, 1999 among
Jones Apparel Group USA, Inc. and the Additional Obligors
referred to therein, the Lenders referred to therein, and
First Union National Bank, as Administrative Agent (filed as
Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q
for the quarter ended July 4, 1999)*
12.1 Computation of Ratios of Earnings to Fixed Charges**
21.1 List of Subsidiaries**
23.1 Consent of BDO Seidman, LLP**
23.2 Consent of Deloitte & Touche LLP**
23.3 Consent of Ira M. Dansky, Esq. (included in opinion filed as
Exhibit 5.1)
23.4 Consent of Mesirov Gelman Jaffe Cramer & Jamieson, LLP
(included in opinion filed as Exhibit 5.2)
24.1 Power of Attorney (included in signature page)
25.1 Form T-1 Statement of Eligibility of Trustee**
99.1 Form of Letter of Transmittal**
99.2 Form of Notice of Guaranteed Delivery**
*Incorporated by reference.
**Filed herewith.
CERTIFICATE OF INCORPORATION
OF
JACK ASSET SUB INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of
the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code
and acts amendatory thereof and supplemental thereto, and known, as
identified, and referred to as the "General Corporation Law of the State of
Delaware"), hereby certifies that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is Jack Asset Sub Inc.
SECOND: The address, including street, number, city, and county, of
the registered office of the corporation in the State of Delaware is 1013
Centre Road, Wilmington, Delaware 19805, County of New Castle; and the name of
the registered agent of the corporation in the State of Delaware at such
address is Corporation Service Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation
shall have authority to issue is one thousand, with a par value of $.01 per
share. All such shares are of one class and are shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator are as
follows:
NAME MAILING ADDRESS
Nigel D.J. Wilson Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between
this corporation and its creditors or any
<PAGE>
2
class of them and/or between this corporation and its stockholders or any
class of them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of this corporation or of
any creditor or stockholder thereof or on the application of any receiver or
receivers appointed for this corporation under the provisions of ss.291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution
or of any receiver or receivers appointed for this corporation under the
provisions of ss.279 of Title 8 of the Delaware Code, order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three
fourths in value of the creditors or class of creditors and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
EIGHTH: For the management of the business and for the conduct of
the affairs of the corporation, and in further definition, limitation, and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of
the corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
fixed by, or in the manner provided in, the Bylaws. The phrase "whole
Board" and the phrase "total number of directors" shall be deemed to have
the same meaning, to wit, the total number of directors which the
corporation would have if there were no vacancies. No election of
directors need be by written ballot.
2. After the original or other Bylaws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of ss.109 of the General Corporation Law of the State of
Delaware, and, after the corporation has received any payment for any of
its stock, the power to adopt, amend, or repeal the Bylaws of the
corporation may be
<PAGE>
3
exercised by the Board of Directors of the corporation; provided,
however, that any provision for the classification of directors of the
corporation for staggered terms pursuant to the provisions of subsection
(d) of ss.141 of the General Corporation Law of the State of Delaware
shall be set forth in an initial Bylaw or in a Bylaw adopted by the
stockholders entitled to vote of the corporation unless provisions for
such classification shall be set forth in this certificate of
incorporation.
3. Whenever the corporation shall be authorized to issue only one
class of stock, each outstanding share shall entitle the holder thereof
to notice of, and the right to vote at, any meeting of stockholders.
Whenever the corporation shall be authorized to issue more than one class
of stock, no outstanding share of any class of stock which is denied
voting power under the provisions of the certificate of incorporation
shall entitle the holder thereof to the right to vote at any meeting of
stockholders except as the provisions of paragraph (2) of subsection (b)
of ss.242 of the General Corporation Law of the State of Delaware shall
otherwise require; provided, that no share of any such class which is
otherwise denied voting power shall entitle the holder thereof to vote
upon the increase or decrease in the number of authorized shares of said
class.
NINTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by the provisions of
paragraph (7) of subsection (b) of ss.102 of the General Corporation Law of
the State of Delaware, as the same may be amended and supplemented.
TENTH: The corporation shall, to the fullest extent permitted by the
provisions of ss.145 of the General Corporation Law of the State of Delaware,
as the same may be amended and supplemented, indemnify any and all persons
whom it shall have power to indemnify under said section from and against any
and all of the expenses, liabilities, or other matters referred to in or
covered by said section, and the indemnification provided for herein shall not
be deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office, and shall continue as to
a person who has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and administrators of such
a person.
<PAGE>
4
ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered, or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted in the manner and at the time prescribed by
said laws, and all rights at any time conferred upon the stockholders of the
corporation by this certificate of incorporation are granted subject to the
provisions of this Article ELEVENTH.
THE UNDERSIGNED, the sole incorporator of the corporation, hereby
certifies under the penalty of perjury that the facts stated in this
certificate of incorporation are true as of this 18th day of May, 1999.
/s/ Nigel D.J. Wilson
-----------------------------
Nigel D.J. Wilson
Incorporator
BYLAWS OF JACK ASSET SUB INC.
ARTICLE I
Meetings of Stockholders; Stockholders'
Consent in Lieu of Meeting
SECTION 1.01. Annual Meeting. The annual meeting of the stockholders
for the election of directors, and for the transaction of such other business
as may properly come before the meeting, shall be held at such place, date and
hour as shall be fixed by the Board of Directors and designated in the notice
or waiver of notice thereof; except that no annual meeting need be held if all
actions, including the election of directors, required by the General
Corporation Law of the State of Delaware to be taken at a stockholders' annual
meeting are taken by written consent in lieu of meeting pursuant to Section
1.03 of this Article.
SECTION 1.02. Special Meetings. A special meeting of the
stockholders for any purpose or purposes may be called by the Board of
Directors, the Chairman of the Board of Directors, the President or the
Secretary of the corporation or a stockholder or stockholders holding of
record at least a majority of the shares of Common Stock of the corporation
issued and outstanding, such meeting to be held at such place, date and hour
as shall be designated in the notice or waiver of notice thereof.
SECTION 1.03. Stockholders' Consent in Lieu of Meeting. Any action
required by the laws of the State of
<PAGE>
2
Delaware to be taken at any annual or special meeting of the stockholders of
the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action
so taken, shall be signed by all the stockholders.
SECTION 1.04. Quorum and Adjournment. Except as otherwise provided
by law, by the Certificate of Incorporation of the corporation or by these
Bylaws, the presence, in person or by proxy, of the holders of a majority of
the aggregate voting power of the stock issued and outstanding, entitled to
vote thereat, shall be requisite and shall constitute a quorum for the
transaction of business at all meetings of stockholders. If, however, such a
quorum shall not be present or represented at any meeting of stockholders, the
stockholders present, although less than a quorum, shall have the power to
adjourn the meeting.
SECTION 1.05. Majority Vote Required. When a quorum is present at
any meeting of stockholders, the affirmative vote of the majority of the
aggregate voting power of the shares present in person or represented by proxy
at the meeting and entitled to vote on the subject matter shall constitute the
act of the stockholders, unless
<PAGE>
3
by express provision of law, the Certificate of Incorporation or these Bylaws
a different vote is required, in which case such express provision shall
govern and control.
SECTION 1.06. Manner of Voting. At each meeting of stockholders,
each stockholder having the right to vote shall be entitled to vote in person
or by proxy. Proxies need not be filed with the Secretary of the corporation
until the meeting is called to order, but shall be filed before being voted.
Each stockholder shall be entitled to vote each share of stock having voting
power registered in his or her name on the books of the corporation on the
record date fixed, as provided in Section 6.07 of these Bylaws, for the
determination of stockholders entitled to vote at such meeting. No election of
directors need be by written ballot.
ARTICLE II
Board of Directors
SECTION 2.01. General Powers. The management of the affairs of the
corporation shall be vested in the Board of Directors, which may exercise all
such powers of the corporation and do all such lawful acts and things as are
<PAGE>
4
not by law or by the Certificate of Incorporation directed or required to be
exercised or done by the stockholders.
SECTION 2.02. Number and Term of Office. The number of directors
which shall constitute the whole Board of Directors shall be fixed from time
to time by a vote of a majority of the whole Board of Directors. The term
"whole Board of Directors" is used herein to refer to the total number of
directors which the corporation would have if there were no vacancies.
Directors need not be stockhold ers. Each director shall hold office until his
successor is elected and qualified, or until his earlier death or resig nation
or removal in the manner hereinafter provided.
SECTION 2.03. Resignation, Removal and Vacancies. Any director may
resign at any time by giving written notice of his resignation to the Board of
Directors, the Chairman of the Board of Directors, the President or the
Secretary of the corporation. Such resignation shall take effect at the time
specified therein or, if the time be not specified, upon receipt thereof; and,
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
Any director or the entire Board of Directors may be removed, with
or without cause, at any time by the holders of a majority of the shares then
entitled to vote at
<PAGE>
5
an election of directors or by written consent of the stockholders pursuant to
Section 1.03 of Article I hereof.
Vacancies in the Board of Directors and newly created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director.
SECTION 2.04. Meetings. (a) Annual Meeting. As soon as practicable
after each annual election of directors, the Board of Directors shall meet for
the purpose of organization and the transaction of other business, unless it
shall have transacted all such business by written consent pursuant to Section
2.05 of this Article.
(b) Other Meetings. Other meetings of the Board of Directors shall
be held at such times and places as the Board of Directors, the Chairman of
the Board of Directors or the President shall from time to time determine.
(c) Notice of Meetings. The Secretary of the corporation shall give
notice to each director of each meeting, including the time, place and purpose
of such meeting. Notice of each such meeting shall be mailed to each director,
addressed to him at his residence or usual place of business, at least two
days before the day on which such meeting is to be held, or shall be sent to
him at such
<PAGE>
6
place by telegraph, cable, wireless or other form of recorded communication,
or be delivered personally or by telephone not later than the day before the
day on which such meeting is to be held, but notice need not be given to any
director who shall attend such meeting. A written waiver of notice, signed by
the person entitled thereto, whether before or after the time of the meeting
stated therein, shall be deemed equivalent to notice.
(d) Place of Meetings. The Board of Directors may hold its meetings
at such place or places within or without the State of Delaware as the Board
of Directors may from time to time determine, or as shall be designated in the
respective notices or waivers of notice thereof.
(e) Quorum and Manner of Acting. One-third of the total number of
directors then in office (but not less than two) shall be present in person at
any meeting of the Board of Directors in order to constitute a quorum for the
transaction of business at such meeting, and the vote of a majority of those
directors present at any such meeting at which a quorum is present shall be
necessary for the passage of any resolution or act of the Board of Directors,
except as otherwise expressly required by law or these Bylaws. In the absence
of a quorum for any such meeting, a majority of
<PAGE>
7
the directors present thereat may adjourn such meeting from time to time until
a quorum shall be present.
(f) Organization. At each meeting of the Board of Directors, one of
the following shall act as chairman of the meeting and preside, in the
following order of precedence:
(i) the Chairman of the Board of Directors;
(ii) the President;
(iii) any director chosen by a majority of the directors present.
The Secretary of the corporation or, in the case of his absence, any person
(who shall be an Assistant Secretary of the corporation, if an Assistant
Secretary of the corporation is present) whom the Chairman of the Board of
Directors shall appoint shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 2.05. Directors' Consent in Lieu of Meeting. Action required
or permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board
of Directors or committee, as the case may be, consent thereto in writing and
the writing or writings are filed with the minutes or the proceedings of the
Board of Directors or committee.
<PAGE>
8
SECTION 2.06. Action by Means of Conference Telephone or Similar
Communications Equipment. Any one or more members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors or any such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
ARTICLE III
Committees of the Board
SECTION 3.01. Appointment of Executive Committee. The Board of
Directors may from time to time by resolution passed by a majority of the
whole Board of Directors designate from its members an Executive Committee to
serve at the pleasure of the Board of Directors. The Chairman of the Executive
Committee shall be designated by the Board of Directors. The Board of
Directors may designate one or more directors as alternate members of the
Executive Committee, who may replace any absent or disqualified member or
members at any meeting of the Executive Committee. The Board of Directors
shall have power at any time to change the
<PAGE>
9
membership of the Executive Committee, to fill all vacancies in it and to
discharge it, either with or without cause.
SECTION 3.02. Procedures of Executive Committee. The Executive
Committee, by a vote of a majority of its mem bers, shall fix by whom its
meetings may be called and the manner of calling and holding its meetings,
shall determine the number of its members requisite to constitute a quorum for
the transaction of business and shall prescribe its own rules of procedure, no
change in which shall be made except by a majority vote of its members or by
the Board of Directors.
SECTION 3.03. Powers of Executive Committee. During the intervals
between the meetings of the Board of Directors, unless otherwise determined
from time to time by resolution passed by the whole Board of Directors, the
Executive Committee shall possess and may exercise all the powers and
authority of the Board of Directors in the management and direction of the
business and affairs of the corporation to the extent permitted by the General
Corporation Law of Delaware, and may authorize the seal of the corporation to
be affixed to all papers which may
<PAGE>
10
require it, except that the Executive Committee shall not have power or
authority in reference to:
(a) amending the Certificate of Incorporation;
(b) adopting an agreement of merger or consolida tion;
(c) recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets;
(d) recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution;
(e) submitting to shareholders of any action which pursuant to the
General Corporation Law of the State of Delaware requires shareholders'
approval;
(f) filling vacancies in the Board of Directors or in any committee
or fixing compensation of members of the Board of Directors for serving
on the Board of Directors or on any committee;
(g) amending or repealing the Bylaws; (h) declaring a dividend or
authorizing the issuance of stock; or
(i) amending or repealing any resolution of the Board of Directors
which by its terms is not so amendable or repealable.
<PAGE>
11
SECTION 3.04. Reports of Executive Committee. The Executive
Committee shall keep regular minutes of its proceedings, and all action by the
Executive Committee shall be reported promptly to the Board of Directors. Such
action shall be subject to review by the Board of Directors, provided that no
rights of third parties shall be affected by such review.
SECTION 3.05. Other Committees. The Board of Directors, by
resolution adopted by a majority of the whole Board of Directors, may
designate from among its members one or more other committees, each of which
shall have such authority of the Board of Directors as may be specified in the
resolution of the Board of Directors designating such committee; provided,
however, that any such committee so designated shall not have any powers not
allowed to the Executive Committee under Section 3.03 of this Article III. The
Board of Directors shall have power at any time to change the members of any
such committee, designate alternate members of any such committee and fill
vacancies therein; and any such committee shall serve at the pleasure of the
Board of Directors.
<PAGE>
12
ARTICLE IV
Officers
SECTION 4.01. Executive Officers. The executive officers of the
corporation shall be a President, a Secre tary and a Treasurer and may include
a Chairman of the Board of Directors, one or more Vice Presidents and one or
more Assistant Secretaries or Assistant Treasurers. Any two or more offices
may be held by the same person.
SECTION 4.02. Authority and Duties. All offi cers, as between
themselves and the corporation, shall have such authority and perform such
duties in the management of the corporation as may be provided in these Bylaws
or, to the extent not so provided, by the Board of Directors.
SECTION 4.03. Term of Office, Resignation and Removal. All officers
shall be elected or appointed by the Board of Directors and shall hold office
for such term as may be prescribed by the Board of Directors. The Chairman of
the Board of Directors, if any, and the President shall be elected or
appointed from among the members of the Board of Directors. Each officer shall
hold office until his successor has been elected or appointed and qualified or
his earlier death or resignation or removal in the manner hereinafter
provided. The Board of Directors may require
<PAGE>
13
any officer to give security for the faithful performance of his duties.
Any officer may resign at any time by giving written notice to the
President or the Secretary of the corporation, and such resignation shall take
effect at the time specified therein or, if the time when it shall become
effective is not specified therein, at the time it is accepted by action of
the Board of Directors. Except as aforesaid, the acceptance of such
resignation shall not be necessary to make it effective.
All officers and agents elected or appointed by the Board of
Directors shall be subject to removal at any time by the Board of Directors
with or without cause.
SECTION 4.04. Vacancies. If an office becomes vacant for any reason,
the Board of Directors shall fill such vacancy. Any officer so appointed or
elected by the Board of Directors shall serve only until such time as the
unexpired term of his predecessor shall have expired unless reelected or
reappointed by the Board of Directors.
SECTION 4.05. Chairman of the Board of Directors. If there shall be
a Chairman of the Board of Directors, he shall preside at meetings of the
Board of Directors and of the stockholders at which he is present, and shall
give counsel and advice to the Board of Directors and the
<PAGE>
14
officers of the corporation on all subjects touching the welfare of the
corporation and the conduct of its business. He shall perform such other
duties as the Board of Directors may from time to time determine. Except as
otherwise provided by resolution of the Board of Directors he shall be ex
officio a member of all committees of the Board of Directors.
SECTION 4.06. The President. The President shall be the Chief
Executive Officer of the corporation and, unless the Chairman of the Board of
Directors be present or the Board of Directors has provided otherwise by
resolution, he shall preside at all meetings of the Board of Directors and the
stockholders at which he is present. He shall have general and active
management and control of the business and affairs of the corporation subject
to the control of the Board of Directors and the Executive Committee, if any,
and shall see that all orders and resolutions of the Board of Directors and
the Executive Committee, if any, are carried into effect.
SECTION 4.07. Vice Presidents. The Vice Presi dent or, if there be
more than one, the Vice Presidents in the order of their seniority or in any
other order deter mined by the Board of Directors, shall, in the absence or
disability of the President, perform the duties and exercise
<PAGE>
15
the powers of the President, and shall generally assist the President and
perform such other duties as the Board of Directors or the President shall
prescribe.
SECTION 4.08. The Secretary. The Secretary of the corporation shall,
to the extent practicable, attend all meetings of the Board of Directors and
all meetings of the stockholders and shall record all votes and the minutes of
all proceedings in a book to be kept for that purpose, and shall perform like
duties for the standing committees when required. He shall give, or cause to
be given, notice of all meetings of the stockholders and of the Board of
Directors, and shall perform such other duties as may be prescribed by the
Board of Directors or the President, under whose supervision he shall perform
such duties. He shall keep in safe custody the seal of the corporation and
affix the same to any duly authorized instrument requiring it and, when so
affixed, it shall be attested by his signature or by the signature of the
Treasurer or an Assistant Secretary or Assistant Treasurer. He shall keep in
safe custody the certificate books and stockholder records and such other
books and records as the Board of Directors may direct and shall perform all
other duties as from time to time may be assigned to him by the Chairman of
the Board of Directors, the President or the Board of Directors.
<PAGE>
16
SECTION 4.09. Assistant Secretaries. The Assis tant Secretaries of
the corporation, if any, in order of their seniority or in any other order
determined by the Board of Directors shall, in the absence or disability of
the Secretary of the corporation, perform the duties and exercise the powers
of the Secretary of the corporation and shall perform such other duties as the
Board of Directors or the Secretary of the corporation shall prescribe.
SECTION 4.10. The Treasurer. The Treasurer shall have the care and
custody of the corporate funds and other valuable effects, including
securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation, and shall deposit all
moneys and other valuable effects to the name and to the credit of the
corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and directors, at the regular
meetings of the Board of Directors, or whenever they may require it, an
account of all his transactions as Treasurer and of the financial condition of
the corporation; and, in general, perform all the duties incident to the
office of Treasurer and such other duties as from time to
<PAGE>
17
time may be assigned to him by the President or the Board of Directors.
SECTION 4.11. Assistant Treasurers. The Assis tant Treasurers, if
any, in the order of their seniority or in any other order determined by the
Board of Directors, shall in the absence or disability of the Treasurer
perform the duties and exercise the powers of the Treasurer and shall perform
such other duties as the Board of Directors or the Treasurer shall prescribe.
ARTICLE V
Contracts, Checks, Drafts, Bank Accounts, etc.
SECTION 5.01. Execution of Documents. The Board of Directors shall
designate the officers, employees and agents of the corporation who shall have
power to execute and deliver deeds, contracts, mortgages, bonds, debentures,
checks, drafts and other orders for the payment of money and other documents
for and in the name of the corporation, and may authorize such officers,
employees and agents to delegate such power (including authority to
redelegate) by written instrument to other officers, employees or agents of
the corporation; and, unless so designated or expressly authorized by these
Bylaws, no officer or agent or employee shall have any power or authority to
bind the corporation by
<PAGE>
18
any contract or engagement or to pledge its credit or to render it liable
pecuniarily for any purpose or to any amount.
SECTION 5.02. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
or otherwise as the Board of Directors or Treasurer or any other officer of
the corporation to whom power in this respect shall have been given by the
Board of Directors shall select.
SECTION 5.03. Proxies in Respect of Stock or Other Securities of
Other Corporations. The Board of Directors shall designate the officers of the
corporation who shall have authority from time to time to appoint an agent or
agents of the corporation to exercise in the name and on behalf of the
corporation the powers and rights which the corporation may have as the holder
of stock or other securities in any other corporation, and to vote or consent
in respect of such stock or securities; such designated officers may instruct
the person or persons so appointed as to the manner of exercising such powers
and rights; and such designated officers may execute or cause to be executed
in the name and on behalf of the corporation and under its corporate seal, or
otherwise, such written proxies, powers of attorney or other instruments as
they may deem necessary
<PAGE>
19
or proper in order that the corporation may exercise its said powers and
rights.
ARTICLE VI
Shares and Their Transfer; Fixing Record Date
SECTION 6.01. Certificates for Shares. Every owner of stock of the
corporation shall be entitled to have a certificate certifying the number and
class of shares owned by him in the corporation, which shall otherwise be in
such form as shall be prescribed by the Board of Directors. Certificates of
each class shall be issued in consecutive order and shall be numbered in the
order of their issue, and shall be signed by, or in the name of the
corporation by the Chairman of the Board of Directors, the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or
an Assistant Secretary of the corporation.
SECTION 6.02. Record. A record (herein called the stock record) in
one or more counterparts shall be kept of the name of the person, firm or
corporation owning the shares represented by each certificate for stock of the
corporation issued, the number of shares represented by each such certificate,
the date thereof and, in the case of cancelation, the date of cancelation.
Except as otherwise expressly required by law, the person in whose name shares
<PAGE>
20
of stock stand on the stock record of the corporation shall be deemed the
owner thereof for all purposes as regards the corporation.
SECTION 6.03. Registration of Stock. Registra tion of transfers of
shares of the corporation shall be made only on the books of the corporation
upon request of the registered holder thereof, or of his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the corporation, and upon the surrender of the certificate or certificates for
such shares properly endorsed or accompanied by a stock power duly executed.
SECTION 6.04. Addresses of Stockholders. Each stockholder shall
designate to the Secretary of the corporation an address at which notices of
meetings and all other corporate notices may be served or mailed to him, and,
if any stockholder shall fail to designate such address, corporate notices may
be served upon him by mail directed to him at his post office address, if any,
as the same appears on the share record books of the corporation or at his
last known post office address.
SECTION 6.05. Lost, Destroyed and Mutilated Certificates. The Board
of Directors or a committee designated thereby with power so to act may, in
its discretion, cause to be issued a new certificate or
<PAGE>
21
certificates for stock of the corporation in place of any certificate issued
by it and reported to have been lost, destroyed or mutilated, upon the
surrender of the mutilated certificates or, in the case of loss or destruction
of the certificate, upon satisfactory proof of such loss or destruction, and
the Board of Directors or such committee may, in its discretion, require the
owner of the lost or destroyed certificate or his legal representative to give
the corporation a bond in such sum and with such surety or sureties as it may
direct to indemnify the corporation against any claim that may be made against
it on account of the alleged loss or destruction of any such certificate.
SECTION 6.06. Regulations. The Board of Directors may make such
rules and regulations as it may deem expedient, not inconsistent with these
Bylaws, concerning the issue, transfer and registration of certificates for
stock of the corporation.
SECTION 6.07. Fixing Date for Determination of Stockholders of
Record. In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled
<PAGE>
22
to exercise any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than 50 nor less
than 10 days before the date of such meeting, nor more than 50 days prior to
any other action. A determination of stockholders entitled to notice of or to
vote at a meeting of the stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
ARTICLE VII
Seal
The Board of Directors shall provide a corporate seal, which shall
be in the form of a circle and shall bear the full name of the corporation and
the words and figures "Corporate Seal Delaware 1999".
ARTICLE VIII
Fiscal Year
The fiscal year of the corporation shall end on the 31st day of
December in each year unless changed by resolution of the Board of Directors.
<PAGE>
23
ARTICLE IX
Indemnification and Insurance
To the fullest extent permitted by the laws of the State of
Delaware:
SECTION 9.01. Indemnification. (a) The corporation shall indemnify
any person (and his heirs, executors or administrators) who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (brought in the right of the corporation or
otherwise), whether civil, criminal, administrative or investigative, and
whether formal or informal, including appeals, by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, for and against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person or such heirs, executors or administrators in
connection with such action, suit or proceeding, including appeals.
(b) The corporation shall pay expenses incurred in defending any
action, suit or proceeding described in
<PAGE>
24
subsection (a) of this Section in advance of the final disposition of such
action, suit or proceeding, including appeals, upon receipt of an undertaking
by or on behalf of such person seeking indemnification under this Article to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the corporation.
SECTION 9.02. Insurance for Indemnification. The corporation may
purchase and maintain insurance on behalf of any person described in
subsection (a) of Section 9.01 against any liability asserted against him,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this Article or otherwise.
SECTION 9.03. Scope of this Article. The provisions of this Article
shall be applicable to all actions, claims, suits or proceedings made or
commenced after the adoption hereof, whether arising from acts or omissions to
act occurring before or after its adoption. The provisions of this Article
shall be deemed to be a contract between the corporation and each director,
officer, employee or agent who serves in such capacity at any time while this
Article and the relevant provisions of the laws of the State of Delaware and
other applicable law, if any, are in effect, and any repeal or modification
thereof shall
<PAGE>
25
not affect any rights or obligations then existing with respect to any state
of facts or any action, suit or proceeding then or theretofore existing, or
any action, suit or proceeding thereafter brought or threatened based in whole
or in part on any such state of facts. If any provision of this Article shall
be found to be invalid or limited in application by reason of any law or
regulation, it shall not affect the validity of the remaining provisions
hereof. The rights of indemnification provided in this Article shall neither
be exclusive of, nor be deemed in limitation of, any rights to which any such
officer, director, employee or agent may otherwise be entitled or permitted by
contract, the Certificate of Incorporation, vote of stockholders or directors
or otherwise, or as a matter of law, both as to actions in his official
capacity and actions in any other capacity while holding such office, it being
the policy of the corporation that indemnification of the specified
individuals shall be made to the fullest extent permitted by law.
SECTION 9.04. Definitions. For purposes of this Article, references
to "other enterprise" shall include any employee benefit plan; references to
"fines" shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the
<PAGE>
26
request of the corporation" shall include any service as a director, officer,
employee or agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries.
ARTICLE X
Waiver of Notice
Whenever any notice whatever is required to be given by these Bylaws
or the Certificate of Incorporation of the corporation or the laws of the
State of Delaware, the person entitled thereto may, in person or by attorney
thereunto authorized, in writing or by telegraph, cable or other form of
recorded communication, waive such notice, whether before or after the meeting
or other matter in respect of which such notice is given, and in such event
such notice need not be given to such person and such waiver shall be deemed
equivalent to such notice.
ARTICLE XI
Amendments
Any Bylaw (including these Bylaws) may be adopted, amended or
repealed by the Board of Directors in any manner not inconsistent with the
laws of the State of Delaware or the Certificate of Incorporation.
CERTIFICATE OF AMENDMENT OF THE
CERTIFICATE OF INCORPORATION
OF
JACK ASSET SUB INC.
Jack Asset Sub Inc., organized and existing under and by virtue of
the General Corporation Law of the State of Delaware ("DGCL"), does hereby
certify that:
1. The name of the corporation (hereinafter called the
"corporation") is:
Jack Asset Sub Inc.
2. The certificate of incorporation of the corporation is hereby
amended in the following particulars:
Article FIRST shall be deleted in its entirety and the
following substituted in lieu thereof:
"FIRST: The name of the corporation (hereinafter called
the "corporation") is Nine West Group Inc."
Article NINTH shall be deleted in its entirety and the
following substituted in lieu thereof:
"NINTH: The liability of the directors for monetary
damages shall be eliminated or limited to the fullest
extent permitted by the laws of the State of Delaware, as
amended from time to time. This Article NINTH shall not
eliminate or limit the liability of a director for any act
or omission occurring prior to the date on which this
Article NINTH becomes effective. Any repeal or
modification of this Article NINTH shall not adversely
affect any right or protection of a director of the
corporation existing hereunder with respect to any act or
omission occurring prior to the time of such repeal or
modification."
<PAGE>
2
Article TENTH shall be deleted in its entirety and the
following substituted in lieu thereof:
"TENTH: The corporation shall, to the full extent
permitted by the laws of the State of Delaware, as amended
from time to time, indemnify, and advance expenses to,
each of its now acting and former directors, officers,
employees and agents, whenever any such currently acting
or former director, officer, employee or agent is made a
party or threatened to be made a party in any action, suit
or proceeding by reason of his service as such with the
corporation."
3. The sole stockholder of the corporation has given written consent
to said amendment in accordance with the provisions of Section 228 of the
DGCL.
4. The amendment of the certificate of incorporation herein
certified has been duly adopted in accordance with the provisions of Sections
228 and 242 of the DGCL.
Signed and attested to on June 15, 1999
\s\ Ira M. Dansky
-----------------------
Name: Ira M. Dansky
Title: President
ATTEST:
\s\ Janet I. Fitzpatrick
- ---------------------------------
Name: Janet I. Fitzpatrick
Title: Assistant Secretary
September 10, 1999
Board of Directors of each of
Jones Apparel Group, Inc.,
Jones Apparel Group Holdings, Inc.
Jones Apparel Group USA, Inc. and
Nine West Group Inc.
250 Rittenhouse Circle
Bristol, Pennsylvania 19007
Ladies and Gentlemen:
I have acted as counsel for each of Jones Apparel Group USA, Inc., a
Pennsylvania corporation (the "Company"), Jones Apparel Group Holdings, Inc.,
a Delaware corporation ("Holdco"), Jones Apparel Group, Inc., a Pennsylvania
corporation ("Jones") and Nine West Group Inc., a Delaware corporation ("Nine
West" and, together with the Company, Holdco and Jones the "Credit Parties"
and, each, a "Credit Party"), in connection with the filing by the Credit
Parties with the Securities and Exchange Commission (the "SEC") of a
registration statement on Form S-4 (the "Registration Statement"), which is
being filed on September 8, 1999, under the Securities Act of 1933, as amended
(the "Act"), relating to the proposed issuance, in exchange (the "Exchange
Offer") for any and all outstanding 7.50% Senior Notes due 2004 and 7.875%
Senior Notes due 2006, which have certain transfer restrictions (the
"Restricted Notes"), of up to $400,000,000 aggregate principal amount of 7.50%
Senior Notes due 2004 and 7.875% Senior Notes due 2006, which will be freely
transferable (the "Exchange Notes" and, together with the Restricted Notes,
the "Notes"). The Exchange Notes are to be issued pursuant to the indenture
dated as of June 15, 1999 (the "Indenture") among the Credit Parties, as
issuers, and The Bank of New York, as trustee (the "Trustee").
In that connection, I have examined originals, or copies certified
or otherwise identified to my satisfaction, of such documents, corporate
records and other instruments as I have deemed necessary for purposes of this
opinion, including the Indenture.
Based on the foregoing, I am of opinion as follows:
1. The Indenture has been duly authorized, executed and delivered by
each Credit Party and, assuming the due authorization, execution and delivery
thereof by the Trustee, the Indenture constitutes a legal, valid and binding
obligation of each Credit Party enforceable against
<PAGE>
2
such Credit Party in accordance with its terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether such
enforceability is considered in a proceeding in equity or at law).
2. The Exchange notes have been duly authorized by each Credit
Party, and when executed and authenticated in accordance with the provisions
of the Indenture and delivered in exchange for the Restricted Notes pursuant
to the Exchange offer, will constitute valid and binding, joint and several
obligations of each Party, enforceable against such Credit Party in accordance
with their terms and entitled to the benefits of the Indenture (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether such enforceability is considered in a proceeding in equity or at
law). In expression the opinion set forth in this paragraph 2, I have assumed
that the form of the Exchange Notes will conform to that included in the
Indenture.
I am admitted to practice in the State of New York, and I express no
opinion as to any matters governed by any law other than the law of the State
of New York and the Federal law of the United States of America.
In rendering this opinion, I have relied upon the opinion dated
September 8, 1999, of Mesirov Gelman Jaffe Cramer & Jamieson, LLP, a copy of
which appears as Exhibit 5.2 to the Registration Statement, as to all matters
of law covered therein relating to the laws of the Commonwealth of
Pennsylvania and the General Corporation Law of the State of Delaware.
I hereby consent to the reference to me under the heading "Legal
Matters" in the Registration Statement and in the related Prospectus and to
the filing of this opinion as an Exhibit to the Registration Statement. In
giving this consent, I do not thereby admit that I am included in the category
of persons whose consent is required under Section 7 of the Act or the rules
and regulations of the Commission.
<PAGE>
3
This opinion is being delivered to you in my capacity as counsel to
the Credit Parties and solely for the purpose of being included as an exhibit
to the Registration Statement. This opinion addresses matters only as of the
date hereof and is solely for the benefit of the addressees hereof and may not
be relied upon in any manner for any other purpose without my prior written
consent.
Sincerely,
/s/ Ira M. Dansky
----------------------------
Ira M. Dansky
General Counsel
Jones Apparel Group, Inc.
September 10, 1999
Ira M. Dansky, Esquire
JONES APPAREL GROUP, INC.
1411 Broadway
New York, NY 10018
Re: Jones Apparel Group, Inc.,
Jones Apparel Group Holdings, Inc., and
Jones Apparel Group USA, Inc.
Registration Statement on Form S-4
Dear Mr. Dansky:
As special counsel to Jones Apparel Group, Inc., a Pennsylvania
corporation, Jones Apparel Group Holdings, Inc., a Delaware corporation, and
Jones Apparel Group USA, Inc., a Pennsylvania corporation (collectively, the
"Jones Companies"), we have been requested to render this opinion in
connection with the Jones Companies' Registration Statement on Form S-4 (the
"Registration Statement"), which is being filed with the Securities and
Exchange Commission (the "SEC") on September 8, 1999, under the Securities Act
of 1933, as amended.
The Registration Statement relates to the proposed offer to exchange
(the "Exchange Offer") up to $400,000,000 aggregate principal amount of new
7.50% Senior Notes due 2004 and 7.875% Senior Notes due 2006 (the "Exchange
Notes"), which will be freely transferable, for any and all outstanding 7.50%
Senior Notes due 2004 and 7.875% Senior Notes due 2006 issued in a private
offering by the Jones Companies on June 15, 1999 (the "Restricted Notes"),
which have certain transfer restrictions.
For purposes of this opinion we have examined the Registration
Statement; the Consents of the Board of Directors of the Jones Companies dated
May 18, 1999; the Indenture dated June 15, 1999, among the Jones Companies and
The Bank of New York, as trustee (the "Trustee") (the "Indenture"); and such
other documents as we deem necessary for the purpose of rendering this
opinion. With respect to the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals and the conformity to originals of all documents submitted to
us as certified or reproduced copies.
As special counsel to the Jones Companies, we are not necessarily
familiar with all of the Jones Companies' affairs. As a further basis for this
opinion, we have made such inquiry of the Jones Companies as we have deemed
necessary or appropriate for the purpose of rendering this opinion.
Based on the foregoing, we are of the opinion that the Exchange
Notes have been duly authorized and when executed and authenticated in
accordance with the provisions of the Indenture and the Exchange Offer, will
constitute valid and binding obligations of each of the Jones Companies
enforceable in accordance with their terms, and will be entitled to the
benefits of the Indenture. In expressing the opinion set forth in this letter,
we have assumed that the form of the Exchange Notes will conform to that
included in the Indenture.
<PAGE>
Our opinion set forth in this letter is subject to the affect of (i)
bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent
conveyance or other similar laws relating to or affecting the rights of
creditors generally, and (ii) limitations imposed by general principles of
equity, regardless of whether the relevant matter is considered in proceedings
at law or in equity, including with respect to certain covenants and
provisions of the Indenture, where the Trustee's enforcement of such covenants
or provisions under the circumstances or, in the specified manner, would
violate a creditor's or secured party's implied covenant of good faith and
fair dealing or would be commercially unreasonable. Enforceability of the
Indenture may also be limited to the extent that remedies are sought for a
breach that a court concluded is immaterial or does not affect the Trustee.
We are members of the Bar of the Commonwealth of Pennsylvania and do
not hold ourselves out as being experts on laws other than the laws of the
United States of America, the laws of the Commonwealth of Pennsylvania, and
the corporate law of the State of Delaware.
This opinion is given as of the date hereof and is limited to the
facts, circumstances and matters set forth herein and to laws currently in
effect. No opinion may be inferred or is implied beyond matters expressly set
forth herein, and we do not undertake and assume no obligation to update or
supplement this opinion to reflect any facts or circumstances which may
hereinafter come to our attention or any change in law which may hereafter
occur.
This opinion is furnished for your benefit and the benefit of the
holders of the Exchange Notes referred to in the Registration Statement and
may not be used or relied upon by any other person or entity or in connection
with any other transaction without our prior written consent.
We hereby consent to the reference to this Firm under the heading
"Legal Matters" in the Registration Statement and in the related Prospectus
and to the filing of this opinion as an Exhibit to the Registration Statement.
Sincerely,
/s/ Mesirov Gelman Jaffe
Cramer & Jamieson LLP
JONES APPAREL GROUP, INC.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Six
months
ended Year Ended December 31,
-------- ---------------------------------------------------
7/4/1999 1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C> <C>
Income before income taxes . $ 86,285 $251,811 $194,609 $127,763 $ 99,668 $ 87,345
Fixed charges
Interest expense and .... 18,569 11,845 3,584 3,040 1,908 1,212
amortization of financing
costs
Portion of rent expense . 6,161 9,116 7,379 6,290 5,115 3,715
representing interest
-------- -------- -------- -------- -------- --------
Total fixed charges
excluding capitalized
interest ................ 24,730 20,961 10,963 9,330 7,023 4,927
Capitalized interest ....... -- 671 370 181 181 20
-------- -------- -------- -------- -------- --------
Total fixed charges ........ 24,730 21,632 11,333 9,511 7,204 4,947
-------- -------- -------- -------- -------- --------
Income before income taxes
and fixed charges .......... $111,015 $272,772 $205,572 $137,093 $106,691 $ 92,272
======== ======== ======== ======== ======== ========
Ratio of earnings to fixed . 4.5 12.6 18.1 14.4 14.8 18.7
charges
======== ======== ======== ======== ======== ========
</TABLE>
EXHIBIT 21.1
<TABLE>
<CAPTION>
Jones Apparel Group, Inc.
Legal Entity Listing
State/Country Of
Incorporation
<S> <C> <C>
Parent Company: Jones Apparel Group, Inc. Pennsylvania
First Tier Subsidiary Company: Jones Apparel Group Holdings, Inc. Delaware
(1) Jones Apparel Group Holdings, Inc. (formerly
Jill Acquisition Sub, Inc.)
Second Tier Subsidiary
Companies: Jones Apparel Group USA, Inc. (2) Pennsylvania
Nine West Group Inc. (3) Delaware
Melru Corporation New Jersey
Jones Investment Co., Inc. Delaware
Jones Holding Corporation (4) Delaware
Jones Management Service Company Delaware
Jones Factor Co. Delaware
Sun Apparel, Inc. (formerly SAI Acquisition
Corp.) (5) Delaware
(2) Jones Apparel Group USA, Inc.
Third Tier Subsidiary Companies: Camisas de Juarez, S.A. de C.V. Mexico
Vestamex, S.A. de C.V. Mexico
(3) Nine West Group Inc. (formerly Jack Asset
Sub Inc.)
Third Tier Subsidiary Companies: Nine West Boot Corporation Delaware
Nine West Development Corporation Delaware
Nine West Distribution Corporation (6) Delaware
Nine West Footwear Corporation Delaware
Nine West Funding Corporation Delaware
Nine West Manufacturing Corporation (7) Delaware
The Shops for Pappagallo, Inc. (8) Ohio
Nine West Canada Corporation Canada
Conca Del Sol International Cayman Islands
Nine West - Honduras Cayman Islands
Nine West Accessories (HK) Limited - 50.0% Hong Kong
Nine West Asia Ltd. - 67.0% (9) Bermuda
Nine West Melbourne Pty Ltd. - 1% (10) Australia
Nine West UK Holdings Limited (11) United Kingdom
Nine West Servicos de Assessoria de Compras
Ltda Brazil
Nine West Group Italy S.r.1. Italy
(4) Jones Holding Corporation
Third Tier Subsidiary Companies: Jones Apparel Group Canada, Inc. Canada
Jones International Limited (12) Hong Kong
(5) Sun Apparel, Inc. (formerly SAI Acquisition
Corp.)
Third Tier Subsidiary Companies: Sun Apparel, Inc. (13) Delaware
Lone Star Selling Group, Inc. New York
R.L. Management, Inc. Delaware
Import Technology of Texas, Inc. (14) Texas
(6) Nine West Distribution Corporation
Fourth Tier Subsidiary Companies: Nine West Accessories (HK) Limited - 50.0% Hong Kong
Nine West Melbourne Pty Ltd. -1% Australia
(7) Nine West Manufacturing Corporation
Fourth Tier Subsidiary Company: Nine West Manufacturing II Corporation Delaware
(8) The Shops for Pappagallo, Inc.
Fourth Tier Subsidiary Companies: Compania de Calzados de Exportacion, S.L. Spain
(9) Nine West Asia Ltd. - 67.0%
</TABLE>
<PAGE>
2
<TABLE>
<CAPTION>
Jones Apparel Group, Inc.
Legal Entity Listing
State/Country Of
Incorporation
<S> <C> <C>
Fourth Tier Subsidiary Companies: Nine West Hong Kong Limited Hong Kong
Nine West Japan Co., Ltd. Japan
Nine West Singapore Pte Ltd. (15) Singapore
(10) Nine West Melbourne Pty Ltd.
Fourth Tier Subsidiary Company: Nine West Australia Pty Ltd. Australia
(11) Nine West UK Holdings Limited
Fourth Tier Subsidiary Companies: Nine West France S.A.R.L. France
Nine West UK Limited United Kingdom
The Shoe Studio Group Limited (16) United Kingdom
Pied a Terre Group Limited United Kingdom
(12) Jones International Limited
Fourth Tier Subsidiary Companies: Jones Far East Limited Hong Kong
Bongal Company Limited Hong Kong
Jones Apparel Group (HK) Limited Hong Kong
(13) Sun Apparel, Inc.
Fourth Tier Subsidiary Companies: Sun Apparel of Texas, Ltd. - 99.5% Texas
Maquilas Paml S.A. de C.V. - 1.0% Mexico
CNC West Division S.A. de C.V. - 1.0% Mexico
(14) Import Technology of Texas, Inc.
Fourth Tier Subsidiary Companies: Sun Apparel of Texas, Ltd. - 0.5% Texas
Maquilas Paml S.A. de C.V. - 99.0% Mexico
CNC West Division S.A. de C.V. - 99.0% Mexico
(15) Nine West Singapore Pte Ltd.
Fifth Tier Subsidiary Company: Nine West (Malaysia) Sdn Bhd - 50.0% Malaysia
(16) The Shoe Studio Group Limited
Fifth Tier Subsidiary Companies: Cable & Co (UK) Limited United Kingdom
Rayne Shoes (1994) Limited United Kingdom
Vivaldi Shoes Limited United Kingdom
</TABLE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Jones Apparel Group, Inc.
New York, New York
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of the Registration Statement on Form S-4 of our reports
dated February 5, 1999, except as to Note 18, which is as of March 2, 1999,
relating to the consolidated financial statements and schedule of Jones
Apparel Group, Inc. and subsidiaries appearing in the Company's Annual Report
on Form 10-K for the year ended December 31, 1998.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, LLP
New York, New York
September 10, 1999
INDEPENDENT AUDITORS CONSENT
We consent to the incorporation by reference in this Registration Statement of
Jones Apparel Group, Inc. on Form S-4 of our report dated March 16, 1999 on
the consolidated financial statements of Nine West Group Inc., appearing in
the Current Report on Form 8-K dated April 7, 1999, filed by Jones Apparel
Group, Inc. We also consent to the reference to us under the heading "Experts"
in such Registration Statement.
/S/ Deloitte & Touche LLP
New York, New York
September 8, 1999
EXHIBIT 25.1
==============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
JONES APPAREL GROUP, INC.
(Exact name of obligor as specified in its charter)
Pennsylvania 06-0935166
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
JONES APPAREL GROUP HOLDINGS, INC.
(Exact name of obligor as specified in its charter)
Delaware 51-0384507
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
<PAGE>
2
JONES APPAREL GROUP USA, INC.
(Exact name of obligor as specified in its charter)
Pennsylvania 23-2978516
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
NINE WEST GROUP INC.
(Exact name of obligor as specified in its charter)
Delaware 06-1093855
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
250 Rittenhouse Circle
Bristol, PA 19007
(Address of principal executive offices) (Zip code)
----------------------
7.50% Senior Notes due 2004
7.875% Senior Notes due 2006
(Title of the indenture securities)
==============================================================================
<PAGE>
3
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza,
New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
<PAGE>
4
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
<PAGE>
5
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York,
and State of New York, on the 27th day of August, 1999.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
--------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
ASSETS Dollar Amounts
In Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and $5,597,807
coin..........................................................
Interest-bearing balances..................................... 4,075,775
Securities:
Held-to-maturity securities................................... 785,167
Available-for-sale securities................................. 4,159,891
Federal funds sold and Securities purchased under 2,476,963
agreements to resell..........................................
Loans and lease financing receivables:
Loans and leases, net of unearned
income..............................................38,028,772
LESS: Allowance for loan and
lease losses...........................................568,617
LESS: Allocated transfer risk
reserve.................................................16,352
Loans and leases, net of
unearned income, allowance, and reserve....................... 37,443,803
Trading Assets................................................ 1,563,671
Premises and fixed assets (including capitalized
leases)....................................................... 683,587
Other real estate owned....................................... 10,995
Investments in unconsolidated subsidiaries and
associated companies.......................................... 184,661
Customers' liability to this bank on acceptances
outstanding................................................... 812,015
Intangible assets............................................. 1,135,572
Other assets.................................................. 5,607,019
Total assets.................................................. $64,536,926
<PAGE>
2
LIABILITIES
Deposits:
In domestic offices........................................... $26,488,980
Noninterest-bearing.................................10,626,811
Interest-bearing....................................15,862,169
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................................ 20,655,414
Noninterest-bearing....................................156,471
Interest-bearing....................................20,498,943
Federal funds purchased and Securities sold under
agreements to repurchase...................................... 3,729,439
Demand notes issued to the U.S.Treasury....................... 257,860
Trading liabilities........................................... 1,987,450
Other borrowed money:
With remaining maturity of one year or less................... 496,235
With remaining maturity of more than one year
through three years........................................... 465
With remaining maturity of more than three years.............. 31,080
Bank's liability on acceptances executed and
outstanding................................................... 822,455
Subordinated notes and debentures............................. 1,308,000
Other liabilities............................................. 2,846,649
Total liabilities............................................. 58,624,027
EQUITY CAPITAL
Common stock.................................................. 1,135,284
Surplus....................................................... 815,314
Undivided profits and capital reserves........................ 4,001,767
Net unrealized holding gains (losses) on
available-for-sale securities................................. (7,956)
Cumulative foreign currency translation
adjustments................................................... (31,510)
Total equity capital.......................................... 5,912,899
Total liabilities and equity capital.......................... $64,536,926
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
/s/ Thomas J. Mastro
<PAGE>
3
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
Thomas A. Reyni Directors
Alan R. Griffith
Gerald L. Hassell
LETTER OF TRANSMITTAL
JONES APPAREL GROUP, INC.
JONES APPAREL GROUP HOLDINGS, INC.
JONES APPAREL GROUP USA, INC. AND
NINE WEST GROUP INC.
OFFER TO EXCHANGE
7.50% SENIOR NOTES DUE 2004 AND
7.875% SENIOR NOTES DUE 2006
FOR ANY AND ALL OUTSTANDING 7.50% SENIOR NOTES DUE 2004 AND
7.875% SENIOR NOTES DUE 2006
PURSUANT TO THE PROSPECTUS, DATED [.............], 1999
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
[..............], 1999, UNLESS THE EXCHANGE OFFER IS EXTENDED.
TO: The First National Bank of Chicago (The "Exchange Agent")
By Mail, Overnight Mail or Hand Delivery before 4:30 p.m.:
The First National Bank of Chicago
153 West 51st Street, Suite 4015
5th Floor
New York, New York 10019
Attention: Corporate Trust Administration
By Facsimile:
(212) 373-1383
Attention: Corporate Trust Administration
For Information or Confirmation by Telephone:
(212) 373-1339
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OR TRANSMISSION TO A FACSIMILE
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. THE
METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES, IS AT THE RISK OF
THE HOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. YOU SHOULD READ THE INSTRUCTIONS
ACCOMPANYING THIS LETTER OF TRANSMITTAL CAREFULLY BEFORE YOU COMPLETE THIS
LETTER OF TRANSMITTAL.
The undersigned acknowledges that he or she has received the Prospectus,
dated September [ ], 1999 (the "Prospectus") of Jones Apparel Group, Inc., a
Pennsylvania corporation, Jones Apparel Group Holdings, Inc., a Delaware
corporation, Jones Apparel Group USA, Inc., a Pennsylvania corporation and
Nine West Group Inc., a Delaware corporation (collectively, the "Company"),
and this Letter of Transmittal and the instructions hereto (the "Letter of
Transmittal"), which together constitute the Company's offer (the "Exchange
Offer") to exchange $1,000 principal amount of each of its 7.50% Senior Notes
due 2004 and 7.875% of Senior Notes due 2006 (the "Exchange Notes") the
offering of which has been registered under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to a Registration Statement of which
the Prospectus is a part, for each $1,000 principal amount of its outstanding
7.50% Senior Notes due 2004 and 7.875% Senior Notes due 2006 (the "Restricted
Notes"), of which $400,000,000 aggregate principal amount is outstanding, upon
the terms and subject to the conditions set forth in the Prospectus. The term
"Expiration Date" shall mean 5:00 p.m., New York City time, on [ ], 1999,
unless the Company, in its sole discretion, extends the Exchange Offer, in
which case the term shall mean the latest date and time to which the Exchange
Offer is extended by the Company. Capitalized terms used but not defined
herein have the meaning given to them in the Prospectus.
This Letter of Transmittal is to be used if either (1) certificates
representing Restricted Notes are to be physically delivered to the Exchange
Agent herewith by Holders (as defined below), (2) tender of Restricted Notes
is to be made by book-entry transfer to an account maintained by the Exchange
Agent at The Depository Trust Company ("DTC"), pursuant to the procedures set
forth in "Exchange Offer--Procedures for Tendering" in the Prospectus by
any financial institution that is a participant in DTC and whose name appears
on a security position listing as the owner of Restricted Notes or (3) tender
of Restricted Notes is to be made according to the
<PAGE>
guaranteed delivery procedures set forth in the Prospectus under "Exchange
Offer--Guaranteed Delivery Procedures." Delivery of this Letter of Transmittal
and any other required documents must be made to the Exchange Agent.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The term "Holder" as used herein means any person in whose name
Restricted Notes are registered on the books of the Company or any other
person who has obtained a properly completed bond power from the registered
holder.
All Holders of Restricted Notes who wish to tender their Restricted Notes
must, prior to the Expiration Date: (1) complete, sign, and deliver this
Letter of Transmittal, or a facsimile thereof, to the Exchange Agent, in
person or to the address set forth above; and (2) tender (and not withdraw)
his or her Restricted Notes or, if a tender of Restricted Notes is to be made
by book-entry transfer to the account maintained by the Exchange Agent at DTC,
confirm such book-entry transfer (a "Book-Entry Confirmation"), in each case
in accordance with the procedures for tendering described in the Instructions
to this Letter of Transmittal. Holders of Restricted Notes whose certificates
are not immediately available, or who are unable to deliver their certificates
or Book-Entry Confirmation and all other documents required by this Letter of
Transmittal to be delivered to the Exchange Agent on or prior to the
Expiration Date, must tender their Restricted Notes according to the
guaranteed delivery procedures set forth under the caption "Exchange
Offer--Guaranteed Delivery Procedures" in the Prospectus. (See Instruction 2.)
Upon the terms and subject to the conditions of the Exchange Offer, the
acceptance for exchange of the Restricted Notes validly tendered and not
withdrawn and the issuance of the Exchange Notes will be made promptly
following the Expiration Date. For the purposes of the Exchange Offer, the
Company shall be deemed to have accepted for exchange validly tendered
Restricted Notes when, as and if the Company has given written notice thereof
to the Exchange Agent.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with
respect to the Exchange Offer.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY
BEFORE CHECKING ANY BOX BELOW. THE INSTRUCTIONS INCLUDED IN THIS LETTER OF
TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR
ADDITIONAL COPIES OF THE PROSPECTUS, THIS LETTER OF TRANSMITTAL AND THE NOTICE
OF GUARANTEED DELIVERY MAY BE DIRECTED TO THE EXCHANGE AGENT. SEE INSTRUCTION
12.
HOLDERS WHO WISH TO ACCEPT THE EXCHANGE OFFER AND TENDER THEIR RESTRICTED
NOTES MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY AND COMPLY WITH
ALL OF ITS TERMS.
2
<PAGE>
List below the Restricted Notes to which this Letter of Transmittal
relates. If the space provided below is inadequate, the Certificate Numbers
and Principal Amounts should be listed on a separate signed schedule, attached
hereto. The minimum permitted tender is $1,000 in principal amount of each of
the 6.25% Senior Notes due 2001. All other tenders must be in integral
multiples of $1,000.
<TABLE>
<CAPTION>
BOX I
- -------------------------------------------------------------------------------------------------------------
DESCRIPTION OF 7.50% SENIOR NOTES DUE 2004 AND 7.875% SENIOR NOTES DUE 2006
- -------------------------------------------------------------------------------------------------------------
(A) (B)
- -------------------------------------------------------------------------------------------------------------
Aggregate Principal
Name(s) and Address(es) of Registered Holder(s)* Certificate Amount Tendered
(Please fill in, if blank) Number(s) (If Less Than All)**
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
Total Principal
Amount of Restricted
Notes
- -------------------------------------------------------------------------------------------------------------
* Need not be completed by book-entry Holders.
** Need not be completed by Holders who wish to tender all Restricted Notes listed.
- -------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE>
PLEASE READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS
BOX II BOX III
SPECIAL REGISTRATION INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4, 5 and 6) (See Instructions 4, 5 and 6)
To be completed ONLY if certificates To be completed ONLY if certificates
for Restricted Notes in a principal for Restricted Notes in a principal
amount not tendered or Exchange Notes amount not tendered, or Exchange Notes
issued in exchange for Restricted issued in exchange for Restricted
Notes accepted for exchange, are to Notes accepted for exchange, are to
be issued in the name of someone be delivered to someone other than
other than the undersigned than undersigned
Issue certificate(s) to: Deliver certificate(s) to:
Name: Name:
-------------------------------- --------------------------------
(Please Print) (Please Print)
- ------------------------------------- -------------------------------------
(Please Print) (Please Print)
Address: Address:
----------------------------- -----------------------------
- ------------------------------------- -------------------------------------
(Including Zip Code) (Including Zip Code)
- ------------------------------------- -------------------------------------
(Taxpayor Identification or Social (Taxpayor Identification or Social
Security Number) Security Number)
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER WITH THE
CERTIFICATE(S) FOR RESTRICTED NOTES OR A CONFIRMATION OF BOOK-ENTRY
TRANSFER OF SUCH RESTRICTED NOTES AND ALL OTHER REQUIRED DOCUMENTS)
OR, IF GUARANTEED DELIVERY PROCEDURES ARE TO BE COMPLIED WITH, A
NOTICE OF GUARANTEED DELIVERY, MUST BE RECEIVED BY THE EXCHANGE
AGENT ON OR PRIOR TO THE EXPIRATION DATE.
4
<PAGE>
[ ] CHECK HERE IF RESTRICTED NOTES ARE BEING DELIVERED BY DTC TO AN ACCOUNT
MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
------------------------------------------
[ ] The Depository Trust Company
Account Number
---------------------------------------------------------
Transaction Code Number
------------------------------------------------
Holders whose Restricted Notes are not immediately available or who
cannot deliver their Restricted Notes and all other documents required
hereby to the Exchange Agent on or prior to the Expiration Date may
tender their Restricted Notes according to the guaranteed delivery
procedures set forth in the Prospectus under the caption "Exchange
Offer--Guaranteed Delivery Procedures." (See Instruction 2.)
[ ] CHECK HERE IF RESTRICTED NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Tendering Holder(s)
-----------------------------------------
Date of Execution of Notice of Guaranteed Delivery
---------------------
Name of Institution which Guaranteed Delivery
--------------------------
Transaction Code Number
------------------------------------------------
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO:
Name:
------------------------------------------------------------------
Address:
---------------------------------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents
that (1) it is acquiring the Exchange Notes in the ordinary course of its
business, (2) it has no arrangements or understanding with any person, nor
does it intend to engage in, a distribution (as that term is interpreted by
the SEC) of Exchange Notes and (3) it is not an affiliate (as that term is
interpreted by the SEC) of the Company. If the undersigned is a broker-dealer
that will receive Exchange Notes for its own account in exchange for
Restricted Notes that were acquired as a result of market-making activities or
other trading activities, it acknowledges that it will deliver a prospectus in
connection with any resale of such Exchange Notes; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
5
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the
undersigned hereby tenders to Jones Apparel Group, Inc., Jones Apparel Group
Holdings, Inc., Jones Apparel Group USA Inc. and Nine West Group Inc.
(collectively, the "Company") the principal amount of Restricted Notes
indicated above.
Subject to and effective upon the acceptance for exchange of the
principal amount of Restricted Notes tendered hereby in accordance with this
Letter of Transmittal, the undersigned sells, assigns and transfers to, or
upon the order of, the Company all right, title and interest in and to the
Restricted Notes tendered hereby. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent also acts as the agent of the
Company and as Trustee and Registrar under the Indenture for the Restricted
Notes and the Exchange Notes) with respect to the tendered Restricted Notes
with full power of substitution (such power of attorney being deemed an
irrevocable power coupled with an interest), subject only to the right of
withdrawal described in the Prospectus, to (1) deliver certificates for such
Restricted Notes to the Company or transfer ownership of such Restricted Notes
on the account books maintained by DTC, together, in either such case, with
all accompanying evidences of transfer and authenticity to, or upon the order
of, the Company and (2) present such Restricted Notes for transfer on the
books of the Company and receive all benefits and otherwise exercise all
rights of beneficial ownership of such Restricted Notes, all in accordance
with the terms of the Exchange Offer.
The undersigned acknowledges that the Exchange Offer is being made in
reliance upon interpretative advice given by the staff of the SEC to third
parties in connection with transactions similar to the Exchange Offer, so that
the Exchange Notes issued pursuant to the Exchange Offer in exchange for the
Restricted Notes may be offered for resale, resold and otherwise transferred
by holders thereof (other than a broker-dealer who purchased such Restricted
Notes directly from the Company for resale pursuant to Rule 144A, Regulation S
or any other available exemption under the Securities Act or a person that is
an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such Exchange Notes
are acquired in the ordinary course of such holders' business and such holders
are not participating, do not intend to participate and have no arrangement or
understanding with any person to participate, in the distribution of such
Exchange Notes.
The undersigned agrees that acceptance of any tendered Restricted Notes
by the Company and the issuance of Exchange Notes in exchange therefor shall
constitute performance in full by the Company of its obligations under the
Exchange and Registration Rights Agreement (as defined in the Prospectus) and
that, upon the issuance of the Exchange Notes, the Company will have no
further obligations or liabilities thereunder (except in certain limited
circumstances).
The undersigned represents and warrants that (1) the Exchange Notes
acquired pursuant to the Exchange Offer are being acquired in the ordinary
course of business of the person receiving Exchange Notes (which shall be the
undersigned unless otherwise indicated in the box entitled "Special Delivery
Instructions" above) (the "Recipient"), (2) neither the undersigned nor the
Recipient (if different) is engaged in, intends to engage in or has any
arrangement or understanding with any person to participate in the
distribution (as that term is interpreted by the SEC) of such Exchange Notes,
and (3) neither the undersigned nor the Recipient (if different) is an
"affiliate" of the Company as defined in Rule 405 under the Securities Act.
If the undersigned is a broker-dealer, the undersigned further (1)
represents that it acquired Restricted Notes for the undersigned's own account
as a result of market-making activities or other trading activities, (2)
represents that it has not entered into any arrangement or understanding with
the Company or any "affiliate" of the Company (within the meaning of Rule 405
under the Securities Act) to distribute the Exchange Notes to be received in
the Exchange Offer and (3) acknowledges that it will deliver a prospectus
meeting the requirements of the Securities Act (for which purposes, the
delivery of the Prospectus, as the same may be hereafter supplemented or
amended, shall be sufficient) in connection with any resale of Exchange Notes
received in the Exchange Offer. Such a broker-dealer will not be deemed,
solely by reason of such acknowledgment and prospectus delivery, to admit that
it is an "underwriter" within the meaning of the Securities Act.
The undersigned understands and agrees that the Company reserves the
right not to accept tendered Restricted Notes from any tendering holder if the
Company determines, in its sole and absolute discretion, that such acceptance
could result in a violation of applicable securities laws.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, assign and transfer the
Restricted Notes tendered hereby and to acquire Exchange Notes issuable upon
the exchange of such tendered Restricted Notes, and that, when the same are
accepted for exchange, the Company will acquire good and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances
6
<PAGE>
and not subject to any adverse claim. The undersigned also warrants that it
will, upon request, execute and deliver any additional documents deemed to be
necessary or desirable by the Exchange Agent or the Company in order to
complete the exchange, assignment and transfer of tendered Restricted Notes or
transfer of ownership of such Restricted Notes on the account books maintained
by a book-entry transfer facility.
The undersigned understands and acknowledges that the Company reserves
the right in its sole discretion to purchase or make offers for any Restricted
Notes that remain outstanding subsequent to the Expiration Date or, as set
forth in the Prospectus under the caption "Exchange Offer--Procedures for
Tendering," to terminate the Exchange Offer and, to the extent permitted by
applicable law, purchase Restricted Notes in the open market, in privately
negotiated transactions or otherwise. The terms of any such purchases or
offers could differ from the terms of the Exchange Offer.
The undersigned understands that the Company may accept the undersigned's
tender by delivering written notice of acceptance to the Exchange Agent, at
which time the undersigned's right to withdraw such tender will terminate. For
purposes of the Exchange Offer, the Company shall be deemed to have accepted
validly tendered Restricted Notes when, as and if the Company has given oral
(which shall be confirmed in writing) or written notice thereof to the
Exchange Agent.
The undersigned understands that the first interest payment following the
Expiration Date will include unpaid interest on the Restricted Notes accrued
through the date of issuance of the Exchange Notes.
The undersigned understands that tenders of Restricted Notes pursuant to
the procedures described under the caption "Exchange Offer--Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned, the Company and the Exchange Agent
in accordance with the terms and subject to the conditions of the Exchange
Offer.
If any tendered Restricted Notes are not accepted for exchange pursuant
to the Exchange Offer for any reason, certificates for any such unaccepted
Restricted Notes will be returned (except as noted below with respect to
tenders through DTC), at the Company's cost and expense, to the undersigned at
the address shown below or at a different address as may be indicated herein
under "Special Delivery Instructions" as promptly as practicable after the
Expiration Date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding on the undersigned's heirs, personal
representatives, successors and assigns. This tender may be withdrawn only in
accordance with the procedures set forth in this Letter of Transmittal.
By acceptance of the Exchange Offer, each broker-dealer that receives
Exchange Notes pursuant to the Exchange Offer hereby acknowledges and agrees
that upon the receipt of notice by the Company of the happening of any event
that makes any statement in the Prospectus untrue in any material respect or
that requires the making of any changes in the Prospectus in order to make the
statements therein not misleading (which notice the Company agrees to deliver
promptly to such broker-dealer), such broker-dealer will suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission and has furnished copies of the amended
or supplemented prospectus to such broker-dealer.
Unless otherwise indicated under "Special Registration Instructions,"
please issue the certificates representing the Exchange Notes issued in
exchange for the Restricted Notes accepted for exchange and return any
certificates for Restricted Notes not tendered or not exchanged, in the
name(s) of the undersigned (or, in either such event in the case of Restricted
Notes tendered by DTC, by credit to the account at DTC). Similarly, unless
otherwise indicated under "Special Delivery Instructions," please send the
certificates representing the Exchange Notes issued in exchange for the
Restricted Notes accepted for exchange and any certificates for Restricted
Notes not tendered or not exchanged (and accompanying documents, as
appropriate) to the undersigned at the address shown below the undersigned's
signature(s), unless, in either event, tender is being made through DTC. In
the event that both "Special Registration Instructions" and "Special Delivery
Instructions" are completed, please issue the certificates representing the
Exchange Notes issued in exchange for the Restricted Notes accepted for
exchange in the name(s) of, and return any certificates for Restricted Notes
not tendered or not exchanged to, the person(s) so indicated. The undersigned
understands that the Company has no obligations pursuant to the "Special
Registration Instructions" or "Special Delivery Instructions" to transfer any
Restricted Notes from the name of the registered Holder(s) thereof if the
Company does not accept for exchange any of the Restricted Notes so tendered.
Holders who wish to tender the Restricted Notes and (1) whose Restricted
Notes are not immediately available or (2) who cannot deliver their Restricted
Notes, this Letter of Transmittal or any other documents required hereby to
the Exchange Agent prior to the Expiration Date, may tender their Restricted
Notes according to the guaranteed delivery procedures set forth in the
Prospectus under the caption "Exchange Offer--Guaranteed Delivery Procedures."
See Instruction 1 regarding the completion of the Letter of Transmittal.
7
<PAGE>
PLEASE SIGN HERE WHETHER OR NOT
RESTRICTED NOTES ARE BEING PHYSICALLY TENDERED HEREBY
AND WHETHER OR NOT TENDER IS TO BE MADE
PURSUANT TO THE GUARANTEED DELIVERY PROCEDURES
This Letter of Transmittal must be signed by the registered holder(s) as
their name(s) appear on the Restricted Notes or, if tendered by a participant
in DTC, exactly as such participant's name appears on a security listing as
the owner of Restricted Notes, or by person(s) authorized to become registered
holder(s) by a properly completed bond power from the registered holder(s), a
copy of which must be transmitted with this Letter of Transmittal. If
Restricted Notes to which this Letter of Transmittal relate are held of record
by two or more joint holders, then all such Holders must sign this Letter of
Transmittal. If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a
fiduciary or representative capacity, then such person must (1) set forth his
or her full title below and (2) unless waived by the Company, submit evidence
satisfactory to the Company of such person's authority so to act. (See
Instruction 4.)
X Date:
----------------------------------------- ------------------------------
X Date:
----------------------------------------- ------------------------------
Signature(s) of Holder(s) or
Authorized Signatory
Name(s): Address:
---------------------------------- ---------------------------
Name(s): Address:
---------------------------------- ---------------------------
Please Print Including Zip Code
Capacity: Telephone Number:
--------------------------------- -------------------
Including Area Code
Social Security No.
----------------------
PLEASE COMPLETE SUBSTITUTE FORM W-9 HEREIN
8
<PAGE>
BOX IV
SIGNATURE GUARANTEE (SEE INSTRUCTION 1)
CERTAIN SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION
-----------------------------------------------------------------------------
(Name of Eligible Institution Guaranteeing Signatures)
-----------------------------------------------------------------------------
(Firm Address (including zip code) and Telephone No. (including area code))
-----------------------------------------------------------------------------
(Authorized Signature)
-----------------------------------------------------------------------------
(Printed Name)
-----------------------------------------------------------------------------
(Title)
-----------------------------------------------------------------------------
Date:___________________
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Guarantee of Signatures.
Signatures on this Letter of Transmittal need not be guaranteed if (a)
this Letter of Transmittal is signed by the registered holder(s) of the
Restricted Notes tendered herewith and such holder(s) have not completed the
box set forth herein entitled "Special Registration Instructions" or the box
entitled "Special Delivery Instructions" or (b) such Restricted Notes are
tendered for the account of a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office or correspondent in the
United States (each, an "Eligible Institution"). (See Instruction 6.)
Otherwise, all signatures on this Letter of Transmittal or a notice of
withdrawal, as the case may be, must be guaranteed by an Eligible Institution.
All signatures on bond powers and endorsements on certificates must also be
guaranteed by an Eligible Institution.
2. Delivery of this Letter of Transmittal and Restricted Notes.
Certificates for all physically delivered Restricted Notes or
confirmation of any book-entry transfer to the Exchange Agent at DTC of
Restricted Notes tendered by book-entry transfer, as well as, in each case
(including cases where tender is effected by book-entry transfer), a properly
completed and duly executed copy of this Letter of Transmittal or facsimile
hereof and any other documents required by this Letter of Transmittal, must be
received by the Exchange Agent at its address set forth herein prior to 5:00
p.m., New York City time, on the Expiration Date. The method of delivery of
the tendered Restricted Notes, this Letter of Transmittal and all other
required documents to the Exchange Agent is at the election and risk of the
Holder and the delivery will be deemed made only when actually received by the
Exchange Agent. If Restricted Notes are sent by mail, registered mail with
return receipt requested, properly insured, is recommended. In all cases,
sufficient time should be allowed to ensure timely delivery. No Letter of
Transmittal or Restricted Notes should be sent to the Company.
The Exchange Agent will make a request to establish an account with
respect to the Restricted Notes at DTC for purposes of the Exchange Offer
promptly after receipt of this Prospectus, and any financial institution that
is a participant in DTC may make book-entry delivery of Restricted Notes by
causing DTC to transfer such Restricted Notes into the Exchange Agent's
account at DTC in accordance with DTC's procedures for transfer. However,
although delivery of Restricted Notes may be effected through book-entry
transfer at DTC, the Letter of Transmittal, with any required signature
guarantees or an Agent's Message (as defined in the next paragraph) in
connection with a book-entry transfer and any other required documents, must,
in any case, be transmitted to and received by the Exchange Agent at the
address specified on the cover page of the Letter of Transmittal on or prior
to the Expiration Date or the guaranteed delivery procedures described below
must be complied with.
A Holder may tender Restricted Notes that are held through DTC by
transmitting its acceptance through DTC's Automatic Tender Offer Program, for
which the transaction will be eligible, and DTC will then edit and verify the
9
<PAGE>
acceptance and send an Agent's Message to the Exchange Agent for its
acceptance. The term "Agent's Message" means a message transmitted by DTC to,
and received by, the Exchange Agent and forming part of the Book-Entry
Confirmation, which states that DTC has received an express acknowledgment
from each participant in DTC tendering the Restricted Notes and that such
participant has received the Letter of Transmittal and agrees to be bound by
the terms of the Letter of Transmittal and the Company may enforce such
agreement against such participant.
Holders who wish to tender their Restricted Notes and (1) whose
Restricted Notes are not immediately available, or (2) who cannot deliver
their Restricted Notes, this Letter of Transmittal or any other documents
required hereby to the Exchange Agent on or prior to the Expiration Date or
comply with book-entry transfer procedures on a timely basis must tender their
Restricted Notes according to the guaranteed delivery procedures set forth in
the Prospectus. See "Exchange Offer--Guaranteed Delivery Procedures." Pursuant
to such procedure: (1) such tender must be made by or through an Eligible
Institution; (2) on or prior to the Expiration Date, the Exchange Agent must
have received from the Eligible Institution a properly completed and duly
executed Notice of Guaranteed Delivery (by facsimile transmission, overnight
courier, mail or hand delivery) setting forth the name and address of the
Holder of the Restricted Notes, the certificate number or numbers of such
Restricted Notes and the principal amount of Restricted Notes tendered,
stating that the tender is being made thereby and guaranteeing that, within
three New York Stock Exchange trading days after the Expiration Date, this
Letter of Transmittal (or facsimile hereof) together with the certificate(s)
representing the Restricted Notes and any other required documents will be
deposited by the Eligible Institution with the Exchange Agent; and (3) such
properly completed and executed Letter of Transmittal (or facsimile hereof),
as well as all other documents required by this Letter of Transmittal and the
certificate(s) representing all tendered Restricted Notes in proper form for
transfer (or a confirmation of book-entry transfer of such Restricted Notes
into the Exchange Agent's account at DTC), must be received by the Exchange
Agent within three New York Stock Exchange trading days after the Expiration
Date, all in the manner provided in the Prospectus under the caption "Exchange
Offer--Guaranteed Delivery Procedures." Any Holder who wishes to tender his or
her Restricted Notes pursuant to the guaranteed delivery procedures described
above must ensure that the Exchange Agent receives the Notice of Guaranteed
Delivery prior to 5:00 p.m., New York City time, on the Expiration Date. Upon
request to the Exchange Agent, a Notice of Guaranteed Delivery will be sent to
Holders who wish to tender their Restricted Notes according to the guaranteed
delivery procedures set forth above.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance of tendered Restricted Notes, and withdrawal of tendered
Restricted Notes will be determined by the Company in its sole discretion,
which determination will be final and binding. All tendering Holders, by
execution of this Letter of Transmittal (or facsimile thereof), shall waive
any right to receive notice of the acceptance of the Restricted Notes for
exchange. The Company reserves the absolute right to reject any and all
Restricted Notes not properly tendered or any Restricted Notes the Company's
acceptance of which would, in the opinion of counsel for the Company, be
unlawful. The Company also reserves the right to waive any irregularities or
conditions of tender as to particular Restricted Notes. The Company's
interpretation of the terms and conditions of the Exchange Offer (including
the instructions in this Letter of Transmittal) shall be final and binding on
all parties. Unless waived, any defects or irregularities in connection with
tenders of Restricted Notes must be cured within such time as the Company
shall determine. Neither the Company, the Exchange Agent nor any other person
shall be under any duty to give notification of defects or irregularities with
respect to tenders of Restricted Notes, nor shall any of them incur any
liability for failure to give such notification. Tenders of Restricted Notes
will not be deemed to have been made until such defects or irregularities have
been cured to the Company's satisfaction or waived. Any Restricted Notes
received by the Exchange Agent that are not properly tendered and as to which
the defects or irregularities have not been cured or waived will be returned
by the Exchange Agent to the tendering Holders pursuant to the Company's
determination, unless otherwise provided in this Letter of Transmittal as soon
as practicable following the Expiration Date. The Exchange Agent has no
fiduciary duties to the Holders with respect to the Exchange Offer and is
acting solely on the basis of directions of the Company.
3. Inadequate Space.
If the space provided is inadequate, the certificate numbers and/or the
number of Restricted Notes should be listed on a separate signed schedule
attached hereto.
4. Tender by Holder.
Only a Holder of Restricted Notes may tender such Restricted Notes in the
Exchange Offer. Any beneficial owner of Restricted Notes who is not the
registered Holder and who wishes to tender should arrange with such registered
Holder to execute and deliver this Letter of Transmittal on such beneficial
owner's behalf or must, prior to completing and executing this Letter of
Transmittal and delivering his or her Restricted Notes, either make
appropriate arrangements to register ownership of the Restricted Notes in such
beneficial owner's name or obtain a properly completed bond power from the
registered Holder or properly endorsed certificates representing such
Restricted Notes.
5. Partial Tenders; Withdrawals.
10
<PAGE>
Tenders of Restricted Notes will be accepted only in integral multiples
of $1,000. If less than the entire principal amount of any Restricted Notes is
tendered, the tendering Holder should fill in the principal amount tendered in
the third column (B) of the box entitled "Description of 7.50% Senior Notes
due 2004 and 7.875% Senior Notes due 2006" above. The entire principal amount
of any Restricted Notes delivered to the Exchange Agent will be deemed to have
been tendered unless otherwise indicated. If the entire principal amount of
all Restricted Notes is not tendered, then Restricted Notes for the principal
amount of Restricted Notes not tendered and a certificate representing
Exchange Notes issued in exchange for any Restricted Notes accepted will be
sent to the Holder at his or her registered address, unless a different
address is provided in the "Special Delivery Instructions" box above on this
Letter of Transmittal or unless tender is made through DTC, promptly after the
Restricted Notes are accepted for exchange.
Except as otherwise provided herein, tenders of Restricted Notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the
Expiration Date. To withdraw a tender of Restricted Notes in the Exchange
Offer, a written or facsimile transmission notice of withdrawal must be
received by the Exchange Agent at its address set forth herein prior to 5:00
p.m., New York City time, on the Expiration Date. Any such notice of
withdrawal must (1) specify the name of the person having deposited the
Restricted Notes to be withdrawn (the "Depositor"), (2) identify the
Restricted Notes to be withdrawn (including the certificate number or numbers
and principal amount of such Restricted Notes, or, in the case of Restricted
Notes transferred by book-entry transfer, the name and number of the account
at DTC to be credited), (3) be signed by the Depositor in the same manner as
the original signature on the Letter of Transmittal by which such Restricted
Notes were tendered (including any required signature guarantees) or be
accompanied by documents of transfer sufficient to have the Registrar with
respect to the Restricted Notes register the transfer of such Restricted Notes
into the name of the person withdrawing the tender and (4) specify the name in
which any such Restricted Notes are to be registered, if different from that
of the Depositor. All questions as to the validity, form and eligibility
(including time of receipt) of such notices will be determined by the Company,
whose determination shall be final and binding on all parties. Any Restricted
Notes so withdrawn will be deemed not to have been validly tendered for
purposes of the Exchange Offer and no Exchange Notes will be issued with
respect thereto unless the Restricted Notes so withdrawn are validly
retendered. Any Restricted Notes which have been tendered but which are not
accepted for exchange by the Company will be returned to the Holder thereof
without cost to such Holder as soon as practicable after withdrawal, rejection
of tender or termination of the Exchange Offer. Properly withdrawn Restricted
Notes may be retendered by following one of the procedures described in the
Prospectus under "Exchange Offer--Procedures for Tendering" at any time prior
to the Expiration Date.
6. Signatures on the Letter of Transmittal; Bond Powers and Endorsements.
If this Letter of Transmittal (or facsimile hereof) is signed by the
registered Holder(s) of the Restricted Notes tendered hereby, the signature
must correspond with the name(s) as written on the face of the Restricted Note
without alteration, enlargement or any change whatsoever. If any of the
Restricted Notes tendered hereby are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal.
If a number of Restricted Notes registered in different names are
tendered, it will be necessary to complete, sign and submit as many copies of
this Letter of Transmittal as there are different registrations of Restricted
Notes.
If this Letter of Transmittal (or facsimile hereof) is signed by the
registered Holder or Holders (which term, for the purposes described herein,
shall include a book-entry transfer facility whose name appears on a security
listing as the owner of the Restricted Notes) of Restricted Notes tendered and
the certificate or certificates for Exchange Notes issued in exchange therefor
is to be issued (or any untendered principal amount of Restricted Notes to be
reissued) to the registered Holder, then such Holder need not and should not
endorse any tendered Restricted Notes, nor provide a separate bond power. In
any other case, such Holder must either properly endorse the Restricted Notes
tendered or transmit a properly completed separate bond power with this Letter
of Transmittal with the signatures on the endorsement or bond power guaranteed
by an Eligible Institution.
If this Letter of Transmittal (or facsimile hereof) is signed by a person
other than the registered Holder or Holders of any Restricted Notes listed,
such Restricted Notes must be endorsed or accompanied by appropriate bond
powers in each case signed as the name of the registered Holder or Holders
appears on the Restricted Notes. If this Letter of Transmittal (or facsimile
hereof) or any Restricted Notes or bond powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, or officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and unless waived by the Company,
evidence satisfactory to the Company of their authority so to act must be
submitted with this Letter of Transmittal.
Endorsements on Restricted Notes or signatures on bond powers required by
this Instruction 6 must be guaranteed by an Eligible Institution.
7. Special Registration and Delivery Instructions.
11
<PAGE>
Tendering Holders should indicate, in the applicable box or boxes, the
name and address to which Exchange Notes or substitute Restricted Notes for
principal amounts not tendered or not accepted for exchange are to be issued
or sent, if different from the name and address of the person signing this
Letter of Transmittal. In the case of issuance in a different name, the
taxpayer identification or social security number of the person named must
also be indicated.
8. Backup Federal Income Tax Withholding and Substitute Form W-9.
Under the federal income tax laws, payments that may be made by the
Company on account of Exchange Notes issued pursuant to the Exchange Offer may
be subject to backup withholding at the rate of 31%. In order to avoid such
backup withholding, each tendering Holder should compete and sign the
Substitute Form W-9 included in this Letter of Transmittal and either (a)
provide the correct taxpayer identification number ("TIN") and certify, under
penalties of perjury, that the TIN provided is correct and that (1) the Holder
has not been notified by the Internal Revenue Service (the "IRS") that the
Holder is subject to backup withholding as a result of failure to report all
interest or dividends or (2) the IRS has notified the Holder that the Holder
is no longer subject to backup withholding; or (b) provide an adequate basis
for exemption. If the tendering Holder has not been issued a TIN and has
applied for one, or intends to apply for one in the near future, such Holder
should write "Applied For" in the space provided for the TIN in Part I of the
Substitute Form W-9, sign and date the Substitute Form W-9 and sign the
Certificate of Payee Awaiting Taxpayer Identification Number. If "Applied For"
is written in Part I, the Company (or the Paying Agent under the Indenture
governing the Exchange Notes) shall retain 31% of payments made to the
tendering Holder during the 60-day period following the date of the Substitute
Form W-9. If the Holder furnishes the Exchange Agent or the Company with its
TIN within 60 days after the date of the Substitute Form W-9, the Company (or
the Paying Agent) shall remit such amounts retained during the 60-day period
to the Holder and no further amounts shall be retained or withheld from
payments made to the Holder thereafter. If, however, the Holder has not
provided the Exchange Agent or the Company with its TIN within such 60-day
period, the Company (or the Paying Agent) shall remit such previously retained
amounts to the IRS as backup withholding. In general, if a Holder is an
individual, the TIN is the social security number of such individual. If the
Exchange Agent or the Company are not provided with the correct TIN, the
Holder may be subject to a $50 penalty imposed by the IRS. Certain Holders
(including, among others, all corporations and certain foreign individuals)
are not subject to these backup withholding and reporting requirements. In
order for a foreign individual to qualify as an exempt recipient, such Holder
must submit a statement (generally, IRS Form W-8), signed under penalties of
perjury, attesting to that individual's exempt status. Such statements can be
obtained from the Exchange Agent. For further information concerning backup
withholding and instructions for completing the Substitute Form W-9 (including
how to obtain a taxpayer identification number if you do not have one and how
to complete the Substitute Form W-9 if Restricted Notes are registered in more
than one name), consult the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9. Failure to complete the
Substitute Form W-9 will not, by itself, cause Restricted Notes to be deemed
invalidly tendered, but may require the Company (or the Paying Agent) to
withhold 31% of the amount of any payments made on account of the Exchange
Notes. Backup withholding is not an additional federal income tax. Rather, the
federal income tax liability of a person subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained from the IRS.
9. Transfer Taxes.
The Company will pay all transfer taxes, if any, applicable to the
exchange of Restricted Notes pursuant to the Exchange Offer. If, however,
certificates representing Exchange Notes or Restricted Notes for principal
amounts not tendered or accepted for exchange are to be delivered to, or are
to be registered in the name of, any person other than the registered Holder
of the Restricted Notes tendered hereby, or if tendered Restricted Notes are
registered in the name of a person other than the person signing this Letter
of Transmittal, or if a transfer tax is imposed for any reason other than the
exchange of Restricted Notes pursuant to the Exchange Offer, then the amount
of any such transfer taxes (whether imposed on the registered Holder or on any
other persons) will be payable by the tendering Holder. If satisfactory
evidence of payment of such taxes or exemption therefrom is not submitted with
this Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering Holder. See the Prospectus under "Exchange
Offer--Solicitation of Tenders; Fees and Expenses."
Except as provided in this Instruction 9, it will not be necessary for
transfer tax stamps to be affixed to the Restricted Notes listed in this
Letter of Transmittal.
10. Waiver of Conditions.
The Company reserves the right, in its sole discretion, to amend, waive
or modify specified conditions in the Exchange Offer in the case of any
Restricted Notes tendered.
11. Mutilated, Lost, Stolen or Destroyed Restricted Notes.
12
<PAGE>
Any tendering Holder whose Restricted Notes have been mutilated, lost,
stolen or destroyed should contact the Exchange Agent at the address indicated
herein for further instructions.
12. Requests for Assistance, Copies.
Requests for assistance and requests for additional copies of the
Prospectus or this Letter of Transmittal may be directed to the Exchange Agent
at the address specified in the Prospectus. Holders may also contact their
broker, dealer, commercial bank, trust company or other nominee for assistance
concerning the Exchange Offer.
13
<PAGE>
(DO NOT WRITE IN SPACE BELOW)
-----------------------------------------------------------------------------
Certificate Surrendered | Restricted Notes Tendered | Restricted Notes Accepted
-----------------------|---------------------------|-------------------------
| |
-----------------------|---------------------------|-------------------------
| |
-----------------------------------------------------------------------------
Received
----------------------------
Accepted by
-------------------------
Checked by
--------------------------
Delivery Prepared by
----------------
Checked by
--------------------------
Date
--------------------------------
IMPORTANT TAX INFORMATION
Under federal income tax laws, a Holder whose tendered Restricted Notes
are accepted for payment is required to provide the Exchange Agent (as payer)
with such Holder's correct TIN on Substitute Form W-9 below or otherwise
establish a basis for exemption from backup withholding. If such Holder is an
individual, the TIN is his social security number. If the Exchange Agent is
not provided with the correct TIN, a $50 penalty may be imposed by the
Internal Revenue Service, and payments made pursuant to the Exchange Offer may
be subject to backup withholding.
Certain Holders (including, among others, all corporations and certain
foreign persons) are not subject to these backup withholding and reporting
requirements. Exempt Holders should indicate their exempt status on Substitute
Form W-9. A foreign person may qualify as an exempt recipient by submitting to
the Exchange Agent a properly completed Internal Revenue Service Form W-8,
signed under penalties of perjury, attesting to that Holder"s exempt status. A
Form W-8 can be obtained from the Exchange Agent. See the enclosed "Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9"
for additional instructions.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any payments made to the Holder or other payee. Backup withholding is
not an additional federal income tax. Rather, the federal income tax liability
of persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to the
Exchange Offer, the Holder is required to provide the Exchange Agent with
either (a) the Holder's correct TIN by completing the form below, certifying
that the TIN provided on Substitute Form W-9 is correct (or that such Holder
is awaiting a TIN) and that (1) the Holder has been notified by the Internal
Revenue Service that the Holder is subject to backup withholding as a result
of failure to report all interest or dividends or (2) the Internal Revenue
Service has notified the Holder that the Holder is no longer subject to backup
withholding or (b) an adequate basis for exemption.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered Holder of
the Restricted Notes. If the Restricted Notes are held in more than one name
or are held not in the name of the actual owner, consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional guidance on which number to report.
14
<PAGE>
TO BE COMPLETED BY ALL TENDERING HOLDERS
(See Instruction 5)
PAYOR'S NAME: THE CHASE MANHATTAN BANK
- -------------------------------------------------------------------------------
SUBSTITUTE Part I--Taxpayer Identification
Form W-9 Number ("TIN"). Enter your TIN --------------------
in the appropriate box. For Social Security
individuals, this is your Number
Social Security Number (SSN).
For sole proprietors, see the or
Instructions in the enclosed
Department of the Guidelines. For other entities, --------------------
Treasury Internal it is your Employer Identification Employer
Revenue Service Number (EIN). If you do not have Identification
number, see how to get a TIN in Number
the enclosed Guidelines.
-------------------------------------------------------
Part II--For Payees exempt for backup withholding (see
Part II of instructions in the enclosed Guidelines.
NOTE: If the account is in more than one name, see the
chart on Page 2 of the enclosed guidelines on whose
number to enter.
-------------------------------------------------------
Request for Taxpayer Part III--CERTIFICATION--UNDER PENALTIES OF PERJURY,
Identification Number I CERTIFY THAT:
and Certification
(1) the number shown on this form is my correct
Taxpayer Identification Number (or I am waiting for
a number to be issued to me),
(2) I am not subject to backup withholding because:
(a) I am exempt from backup withholding, or (b) I
have not been notified by the Internal Revenue
Service (the "IRS") that I am subject to backup
withholding as a result of a failure to report all
interest or dividends, or (c) the IRS has notified
me that I am no longer subject to backup
withholding.
Signature Date
----------------------- ----------------
- -------------------------------------------------------------------------------
CERTIFICATION INSTRUCTIONS--You must cross out item 2 above if you have been
notified by the IRS that you are currently subject to backup withholding
because of underreporting interest or dividends on your tax return. For real
estate transactions, item 2 does not apply. For mortgage interest paid, the
acquisition or abandonment of secured property, cancelation of debt,
contributions to an individual retirement arrangement (IRA), and general
payments other than interest and dividends, you are not required to sign the
Certification, but you must provide your correct TIN.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CERTIFICATION OF PAYEE AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify, under penalties of perjury, that a Taxpayer Identification
Number has not been issued to me, and that I mailed or delivered an
application to receive a Taxpayer Identification Number to the appropriate
Internal Revenue Service Center or Social Security Administration Office (or I
intend to mail or deliver an application in the near future). I understand
that if I do not provide a Taxpayer Identification Number to the payor, 31% of
all payments made to me on account of the Exchange Notes shall be retained
until I provide a Taxpayer Identification Number within 60 days, such retained
amounts shall be remitted to the Internal Revenue Service as backup
withholding and 31% of all reportable payments made to me thereafter will be
withheld and remitted to the Internal Revenue Service until I provide a
Taxpayer Identification Number.
- ------------------------------------------------ --------------------------
Signature Date
- -------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU ON ACCOUNT OF THE EXCHANGE
NOTES. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
15
NOTICE OF GUARANTEED DELIVERY
FOR
7.50% SENIOR NOTES DUE 2004 AND
7.875% SENIOR NOTES DUE 2006
OF
JONES APPAREL GROUP, INC.,
JONES APPAREL GROUP HOLDINGS, INC.
JONES APPAREL GROUP USA, INC. AND
NINE WEST GROUP INC.
As set forth in the Prospectus dated [ ], (the "Prospectus") of Jones
Apparel Group, Inc., Jones Apparel Group Holdings, Inc., Jones Apparel Group
USA, Inc. and Nine West Group Inc. (collectively, the "Company") and in the
Letter of Transmittal (the "Letter of Transmittal"), this form or a form
substantially equivalent to this form must be used to accept the Exchange
Offer (as defined below) if the certificates for the outstanding 7.50% Senior
Notes due 2004 and the 7.875% Senior Notes due 2006 (the "Restricted Notes")
of the Company and all other documents required by the Letter of Transmittal
cannot be delivered to the Exchange Agent by the expiration of the Exchange
Offer or compliance with book-entry transfer procedures cannot be effected on
a timely basis. Such form may be delivered by hand or transmitted by facsimile
transmission or mail to the Exchange Agent no later than the Expiration Date,
and must include a signature guarantee by an Eligible Institution as set forth
below. Capitalized terms used herein but not defined herein have the meanings
ascribed thereto in the Prospectus.
To: The First National Bank of Chicago (The "Exchange Agent")
By Mail, Overnight Mail or Hand Delivery before 4:30 p.m.:
The First National Bank of Chicago
153 West 51st Street, Suite 4015
5th Floor
New York, New York 10019
Attention: Corporate Trust Administration
By Facsimile:
(212) 373-1383
Attention: Corporate Trust Administration
For Information or Confirmation by Telephone:
(212) 373-1339
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OR TRANSMISSION TO A FACSIMILE
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. THE
METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES, IS AT THE RISK OF
THE HOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. YOU SHOULD READ THE INSTRUCTIONS
ACCOMPANYING THE LETTER OF TRANSMITTAL CAREFULLY BEFORE YOU COMPLETE THIS
NOTICE OF GUARANTEED DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an Eligible Institution under the instruction thereto, such
signature must appear in the applicable space provided on the Letter of
Transmittal for Guarantee of Signature(s).
<PAGE>
Ladies and Gentlemen:
The undersigned acknowledges receipt of the Prospectus and the related
Letter of Transmittal which describes the Company's offer (the "Exchange
Offer") to exchange $1,000 in principal amount of new 7.50% Senior Notes due
2004 and 7.875% Senior Notes due 2006 (the "Exchange Notes") for each $1,000
in principal amount of Restricted Notes.
The undersigned hereby tenders to the Company the aggregate principal
amount of Restricted Notes set forth below on the terms and conditions set
forth in the Prospectus and the related Letter of Transmittal pursuant to the
guaranteed delivery procedure set forth in the "Exchange Offer--Guaranteed
Delivery Procedures" section in the Prospectus and the accompanying Letter of
Transmittal.
The undersigned understands that no withdrawal of a tender of Restricted
Notes may be made after 5:00 p.m., New York City time, on the Expiration Date.
The undersigned understands that for a withdrawal of a tender of Restricted
Notes to be effective, a written notice of withdrawal that complies with the
requirements of the Exchange Offer must be timely received by the Exchange
Agent its address specified on the cover of this Notice of Guaranteed Delivery
prior to 5:00 p.m., New York City time, on the Expiration Date.
The undersigned understands that the exchange of Restricted Notes for
Exchange Notes pursuant to the Exchange Offer will be made only after timely
receipt by the Exchange Agent of (1) such Restricted Notes (or Book-Entry
Confirmation of the transfer of such Restricted Notes into the Exchange
Agent's account at The Depository Trust Company ("DTC")) and (2) a Letter of
Transmittal (or facsimile thereof) with respect to such Restricted Notes,
properly completed and duly executed, with any required signature guarantees,
this Notice of Guaranteed Delivery and any other documents required by the
Letter of Transmittal or a properly transmitted Agent's Message. The term
"Agent's Message" means a message transmitted by DTC to, and received by, the
Exchange Agent and forming part of the confirmation of a book-entry transfer,
which states that DTC has received an express acknowledgment from a
participant in DTC tendering the Restricted Notes and that such participant
has received the Letter of Transmittal and agrees to be bound by the terms of
the Letter of Transmittal and the Company may enforce such agreement against
such participant.
All authority conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall not be affected by, and shall survive, the death or
incapacity of the undersigned, and every obligation of the undersigned under
this Notice of Guaranteed Delivery shall be binding on the heirs, executors,
administrators, trustees in bankruptcy, personal and legal representatives,
successors and assigns of the undersigned.
PLEASE COMPLETE
Principal Amount of Restricted If Restricted Notes will be delivered by
Notes Tendered: book-entry transfer at DTC, insert
Depository Account No.:
______________________________ __________________________________________
Certificate No.(s) of Restricted
Notes (if available):
________________________________
<PAGE>
PLEASE SIGN AND PRINT NAME(S) AND ADDRESS(ES)
Signature(s) of Registered Holder(s) or Name(s) of Registered Holder(s)
Authorized Signatory:_______________________ _______________________________
____________________________________________ _______________________________
____________________________________________ _______________________________
Date:_______________________________________ Address(es):___________________
_______________________________
Area Code and Telephone No.:
_______________________________
This Notice of Guaranteed Delivery must be signed by the registered
Holder(s) of Restricted Notes exactly as its (their) name(s) appear on
certificates for Restricted Notes or on a security position listing as the
owner of Restricted Notes, or by person(s) authorized to become registered
Holder(s) by endorsements and documents transmitted with this Notice of
Guaranteed Delivery. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must provide the following information.
Name(s):______________________________________________________________________
______________________________________________________________________________
Capacity:_____________________________________________________________________
Address(es):__________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
DO NOT SEND RESTRICTED NOTES WITH THIS FORM. RESTRICTED NOTES SHOULD BE SENT
TO THE EXCHANGE AGENT TOGETHER WITH A PROPERLY COMPLETED AND DULY EXECUTED
LETTER OF TRANSMITTAL.
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office or a correspondent in the
United States, or otherwise an "eligible guarantor institution" within the
meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), hereby (1) represents that each holder of Restricted
Notes on whose behalf this tender is being made "own(s)" the Restricted Notes
covered hereby within the meaning of Rule 13d-3 under the Exchange Act (2)
represents that such tender of Restricted Notes complies with Rule 14e-4 of
the Exchange Act and (3) guarantees that, within three New York Stock Exchange
trading days from the expiration date of the Exchange Offer, a properly
completed and duly executed Letter of Transmittal (or a facsimile thereof),
together with certificates representing the Restricted Notes covered hereby in
proper form for transfer (or confirmation of the book-entry transfer of such
Restricted Notes into the Exchange Agent's account at DTC, pursuant to the
procedure for book-entry transfer set forth in the Prospectus) and required
documents will be deposited by the undersigned with the Exchange Agent.
The undersigned acknowledges that it must deliver the Letter of
Transmittal and Restricted Notes tendered hereby to the Exchange Agent within
the time period set forth above and the failure to do so could result in
financial loss to the undersigned.
______________________________________________________________________________
Name of Firm
______________________________________________________________________________
Address
Area Code and Telephone No.:_____________________________________
_________________________________________________________________
Authorized Signature
_________________________________________________________________
Title
Name:____________________________________________________________
(Please Type or Print)
Dated:___________________________________________________________
PLEASE DO NOT SEND CERTIFICATES FOR RESTRICTED NOTES WITH THIS FORM.
CERTIFICATES FOR RESTRICTED NOTES SHOULD ONLY BE SENT WITH YOUR LETTER OF
TRANSMITTAL.
