As filed with the Securities and Exchange Commission on July 16, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
KOHL'S CORPORATION
(Exact name of Registrant as specified in its charter)
Wisconsin 5311 39-1630919
(State or other jurisdiction (Primary SIC (I.R.S. Employer
of incorporation or organization) Code Number) Identification No.)
N56 W17000 Ridgewood Drive
Menomonee Falls, Wisconsin 53051
(414) 703-7000
(Address, including zip code,
and telephone number, including area code,
of Registrant's principal executive offices)
____________________
William S. Kellogg
R. Lawrence Montgomery
Kohl's Corporation
N56 W17000 Ridgewood Drive
Menomonee Falls, Wisconsin 53051
(414) 703-7000
(Name, address, including zip code, and telephone number,
including area code, of agents for service)
COPY TO:
Peter M. Sommerhauser
Godfrey & Kahn, S.C.
780 North Water Street
Milwaukee, Wisconsin 53202
(414) 273-3500
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO
THE PUBLIC: As soon as practicable after this
Registration Statement is declared 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, please 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, please check the following
box and list the Securities Act registration statement
number of the earlier effective registration statement
for the same offering.[ ]
If this Form is a post-effective amendment filed
pursuant to Rule 462(d) under the Securities Act, check
the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering.[ ]
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
CLASS OF OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER UNIT (1) PRICE FEE
7 1/4% Debentures $200,000,000 100% $200,000,000 $55,600
due June 1, 2029
(1) Calculated based on the book value of the
securities to be received by the registrant in
the exchange in accordance with Rule 457(f)(2)
under the Securities Act of 1933.
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to
delay its effective date until the Registrant shall
file a further amendment which 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
Commission, acting pursuant to said Section 8(a), may
determine.
<PAGE>
The information in this prospectus is not complete and may be changed.
Kohl's 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.
PROSPECTUS SUBJECT TO COMPLETION, DATED ______________ _____, 1999
KOHL'S
Offer to exchange up to $200,000,000 of its
7 1/4% Debentures due June 1, 2029
which have been registered under the Securities Act of
1933
for all of its outstanding
7 1/4% Debentures due June 1, 2029
____________________
* The exchange offer of Kohl's Corporation expires
at 5:00 p.m., New York City time, on ___________ ____ ,
1999, unless extended.
* The exchange offer is not subject to any conditions other than that:
- the exchange offer, or the making of any
exchange by a debenture holder, does not
violate applicable law or any applicable
interpretation of the staff of the SEC,
- no action or proceeding shall have been
instituted or threatened with respect to the
exchange offer which, in our judgment, would
impair our ability to proceed with the
exchange offer, and
- no law, rule or regulation or applicable
interpretations of the staff of the SEC has
been issued or promulgated which, in our good
faith determination, does not permit us to
effect the exchange offer.
* All outstanding debentures that are validly
tendered and not validly withdrawn will be exchanged.
* Tenders of outstanding debentures may be withdrawn
at any time before 5:00 p.m. on the date of expiration
of the exchange offer.
* The exchange of debentures will not be a taxable
exchange for U.S. federal income tax purposes.
* We will not receive any proceeds from the exchange offer.
* The terms of the new debentures to be issued are
substantially identical to your old debentures, except
that the new debentures will not have securities law
transfer restrictions and you will not have
registration rights.
* There is no established trading market for the new
debentures and we do not intend to apply for listing of
the new debentures on any securities exchange.
____________________
Neither the Securities and Exchange Commission nor
any state securities commission has approved or
disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
____________________
The date of this prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
Page
Forward-Looking Statements 4
Prospectus Summary 5
Selected Consolidated Financial Data 11
Use of Proceeds 13
The Exchange Offer 13
Description of Debentures 23
Certain Federal Income Tax Considerations 34
Plan of Distribution 35
Legal Matters 36
Experts 36
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports,
proxy statements and other information with the SEC.
Our SEC filings are available to the public over the
internet at the SEC's web site at http://www.sec.gov.
You may also read and copy any document we file at the
SEC's public reference room located at 450 Fifth
Street, N.W., Washington, D.C. 20549, as well as at the
regional offices of the SEC located at 7 World Trade
Center, New York, New York 10048 and Citicorp Center,
500 West Madison Street, Chicago, Illinois 60661.
Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms and their
copy charges.
Our common stock is listed on the New York Stock
Exchange. You may also inspect the information we file
with the SEC at the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
We are "incorporating by reference" specified
documents that we file with the SEC, which contain
important business and financial information about
Kohl's not included in or delivered with the
prospectus. "Incorporating by reference" means:
* incorporated documents are considered part of this
prospectus,
* we are disclosing important information to you by
referring you to those documents, and
* information we file with the SEC will
automatically update and supercede this prospectus.
We incorporate by reference the documents listed
below and any documents we file in the future with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")
that we file after the date of this prospectus but
before the end of the offering of debentures:
* our annual report on Form 10-K for the fiscal year
ended January 30, 1999;
* our quarterly report on Form 10-Q for the fiscal
quarter ended May 1, 1999; and
* our current report on Form 8-K dated March 9, 1999.
You may also request a copy of these filings
(excluding exhibits), at no cost, by writing or
telephoning our chief financial officer at the following address:
Arlene Meier
Kohl's Corporation
N56 W17000 Ridgewood Drive
Menomonee Falls, Wisconsin 53051
(414) 703-7000
To obtain timely delivery of any of this
information you must make your request at least five
business days prior to the expiration of the exchange
offer. The date by which you must make your request is
, 1999.
____________________
You should rely only on the information contained
or incorporated by reference in this prospectus. We
have not authorized any other person to provide you
with different information. If anyone provides you
with different or inconsistent information, you should
not rely on it. We are not making an offer to sell the
debentures in any jurisdiction except where an offer or
sale is permitted. You should assume that the
information appearing in this prospectus, as well as
information we previously filed with the SEC and are
incorporating by reference, is accurate only as of the
dates on the front of those documents. Our business,
financial condition, results of operations and
prospects may have changed since those dates.
<PAGE>
FORWARD-LOOKING STATEMENTS
Statements in this prospectus or incorporated by
reference in this prospectus that are not statements of
historical fact may be deemed to be "forward-looking
statements," subject to protections under federal law.
We intend words such as "believes," "anticipates,"
"plans," "expects" and similar expressions to identify
forward-looking statements. In addition, statements
covering our future performances and our plans,
objectives, expectations or intentions are forward-
looking statements, such as statements regarding our
debt service requirements, planned capital
expenditures, future store openings and adequacy of
capital resources. There are a number of important
factors that could cause our results to differ
materially from those indicated by the forward-looking
statements, including among others those discussed
under "Management's Discussion and Analysis of
Financial Condition and Results of Operations" sections
of our annual and quarterly reports and as follows:
* heightened competition;
* adverse weather conditions in our retail markets;
* increases in interest rates;
* increases in real estate, construction and development costs;
* inventory imbalances caused by unanticipated fluctuations in
consumer demand;
* trends in the economy which affect consumer
confidence and demand for our merchandise;
* our ability to find suitable store sites that we
can acquire on acceptable terms;
* our ability to continue to hire, train and retain
sufficient numbers of capable and talented associates; and
* interruptions in our business as a result of a
Year 2000 computer problem in our systems or in the
systems of one of our major suppliers.
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety
by the more detailed information included elsewhere or
incorporated by reference in this prospectus. This
summary may not contain all of the information that is
important to you.
Kohl's
We currently operate 231 family oriented,
specialty department stores primarily in the Midwest
and Mid-Atlantic areas of the United States. Our stores
feature quality, national brand merchandise which
provides exceptional value to customers. We sell
moderately priced apparel, shoes, accessories, soft
home products and housewares targeted to middle-income
customers shopping for their families and homes. Our
stores have fewer departments than traditional, full-
line department stores, but offer customers dominant
assortments of merchandise displayed in complete
selections of styles, colors and sizes. Central to our
pricing strategy and overall profitability is a culture
focused on maintaining a low cost structure. Critical
elements of this low cost structure are our unique
store format, lean staffing levels, sophisticated
management information systems and operating
efficiencies resulting from centralized buying,
advertising and distribution.
Since 1986, we have expanded from 40 stores to our
current total of 231 stores both by acquiring and
converting pre-existing stores to our retailing format
and by opening new stores. From fiscal 1994 to fiscal
1998, our net sales increased from $1.6 billion to $3.7
billion and our operating income increased from $123.9
million to $337.9 million.
We believe that we have substantial opportunity
for further growth. We plan to open approximately 44
stores in 1999, including entering new markets in
Denver, St. Louis and Dallas/Ft. Worth. We have already
opened 18 stores this year and plan to open
approximately 26 stores in the second half of the year.
We plan to open 50 to 55 stores in 2000, including 33
locations previously operated by Caldor Corporation in
New York (12 stores), New Jersey (11 stores),
Connecticut (9 stores) and Maryland (1 store). Our
expansion strategy is to open additional stores in
existing markets, where we can leverage advertising,
purchasing, transportation and other regional overhead
expenses; in contiguous markets, where we can extend
regional operating efficiencies; and in new markets
which offer a similar opportunity to implement our
retailing concept successfully.
Our retailing concept has proven to be readily
transferable to new markets. For example, we have
successfully opened new stores in small markets, such
as Kalamazoo and Knoxville; intermediate markets, such
as Kansas City and Charlotte; and large markets, such
as Chicago and Philadelphia. In addition, our concept
has been successful in various retailing formats such
as strip shopping centers, community and regional malls
and free-standing stores. We believe that the
transferability of our retailing strategy, our
experience in acquiring and converting pre-existing
stores and in opening new stores, and our substantial
investment in our management information systems,
centralized distribution and headquarters functions
provide a solid foundation for further expansion.
Our fiscal year ends on the Saturday closest to
January 31. Our principal executive offices are located
at N56 W17000 Ridgewood Drive, Menomonee Falls,
Wisconsin 53051. Our telephone number at this location
is (414) 703-7000.
The Exchange Offer
We sold $200,000,000 of our 7 1/4% Debentures due
June 1, 2029 to the initial purchasers on June 1, 1999.
The initial purchasers resold those debentures (the
"old debentures") in reliance on Rule 144A, Regulation
S and other exemptions under the Securities Act of
1933, as amended (the "Securities Act").
<PAGE>
Registration Rights Agreement We entered into a registration rights
agreement with the initial purchasers on
June 1, 1999 in which we agreed, among
other things, to:
* file a registration statement with the
SEC on or before October 14, 1999
relating to the exchange offer;
* use our reasonable best efforts to
cause the registration statement, which
includes this prospectus, to become
effective on or before November 28,
1999; and
* us our reasonable best efforts to
complete the exchange offer during the
45-day period after the registration
statement becomes effective.
As a result of making this exchange offer,
we will have fulfilled most of our
obligations under the registration rights
agreement. If you do not tender your old
debentures in the exchange offer, you will
not have any further registration rights
under the registration rights agreement or
otherwise unless you were not eligible to
participate in the exchange offer or do not
receive freely transferable new debentures in
the exchange offer. See "The Exchange
Offer--Purpose and Effect; Registration
Rights." If you are eligible to
participate in the exchange offer and do
not tender your old debentures, you will
continue to hold the untendered old
debentures, which will continue to be
subject to restrictions on transfer under
the Securities Act.
New Debentures We are offering registered 7 1/4%
Debentures due June 1, 2029 for your old
debentures. The terms of the new
debentures and your old debentures are
substantially identical except:
* the new debentures will be registered
under the Securities Act;
* the new debentures will not contain
securities law restrictions on
transfer; and
* except in limited circumstances, your
rights, including your right to receive
additional interest under the
registration rights agreement, will
terminate.
The Exchange Offer We are offering to exchange $1,000 in
principal amount of the new debentures
for each $1,000 in principal
amount of your old debentures
(subject to the $100,000 minimum
denomination for the debentures). As of
the date of this prospectus, $200
million aggregate principal amount of the
old debentures are outstanding.
Expiration Date You have until 5:00 p.m., New York City
time, on , 1999, to validly tender your
old debentures if you want to exchange your
old debentures for new debentures. We may
extend that date under certain conditions.
Conditions of the Exchange Offer;
Extensions; Amendments If you validly tender, and do not validly
withdraw, your old debentures, your old
debentures will be exchanged for new
debentures if the following conditions are
met:
<PAGE>
* the exchange offer, or the making of any
exchange by a debenture holder, does not
violate applicable law or any applicable
interpretation of the staff of the SEC,
* no action or proceeding shall have been
instituted or threatened with respect
to the exchange offer which, in our
judgment, would impair our ability to
proceed with the exchange offer, and
* no law, rule or regulation or applicable
interpretations of the staff of the SEC
has been issued or promulgated which,
in our good faith determination, does
not permit us to effect the exchange
offer.
We may delay or extend the exchange offer
and if any of the above conditions are not
met, we may terminate the exchange offer.
You will be notified of any delay,
extension or termination.
We may also waive any condition or amend
the terms of the exchange offer. If we
materially amend the exchange offer, we
will notify you.
Interest You will receive interest on the new
debentures from the date interest was
last paid on your old debentures. If no
interest was paid on your old
debentures, you will receive
interest from June 1, 1999.
Procedures for Tendering Old
Debentures; Special Procedures
for Beneficial Owners. If you want to participate in the
exchange offer, you must transmit a
properly completed and signed letter of
transmittal, and all other documents
required by the letter of transmittal,
to the exchange agent. Please send
these materials to the exchange agent at
the address set forth in the accompanying
letter of transmittal prior to
5:00 p.m., New York City time,
on , 1999.
You must also send either:
* certificates of your old debentures;
* a timely confirmation of book-entry
transfer of your old debentures into
the exchange agent's account at The
Depository Trust Company; or
* the items required by the guaranteed
delivery procedures described below.
If you are a beneficial owner of old
debentures and your old debentures are
registered in the name of a nominee, such
as a broker, dealer, commercial bank or
trust company, and you wish to tender your
old debentures in the exchange offer, you
should instruct your nominee to promptly
tender the old debentures on your behalf.
By executing the letter of transmittal, you
will represent to us that:
* you are not an "affiliate" (as defined
in Rule 405 of the Securities Act) of us;
* if you are a broker-dealer that acquired
your debentures as a result of
market-making or other trading
activities you will deliver a
prospectus in connection with any
resale of new debentures;
<PAGE>
* you will acquire the new debentures 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 the distribution of
the old debentures or the new
debentures; and
* you are not acting on behalf of any
person who could not truthfully make the
foregoing representations.
If your debentures are not accepted for
exchange for any reason, they will be
returned to you at our expense.
Guaranteed Delivery Procedures If you wish to tender your old debentures
and:
* your old debentures are not immediately
available;
* you are unable to deliver your old
debentures or any other documents that
you are required to deliver to
the exchange agent on time; or
* you cannot complete the procedures for
delivery by book-entry transfer on time;
then you may tender your old debentures
according to the guaranteed delivery
procedures that are discussed in the letter
of transmittal and in "The Exchange Offer--
Guaranteed Delivery Procedures."
Withdrawal Rights Tenders of old debentures may be withdrawn
at any time prior to 5:00 p.m., New York
City time, on the expiration date.
The Exchange Agent The Bank of New York is the exchange agent.
Its address and telephone number are set
forth in "The Exchange Offer-The Exchange
Agent; Assistance."
Resales of New Debentures We believe that the new debentures may be
offered for resale, resold and otherwise
transferred by you without further
compliance with the registration and
prospectus delivery requirements of the
Securities Act, if:
* you acquire the new debentures in the
ordinary course of your business;
* you are not participating, and have no
arrangement or understanding with any
person to participate, in a distribution
(within the meaning of the Securities
Act) of the old debentures or the new
debentures;
* you are not an "affiliate" (as defined in
Rule 405 under the Securities Act) of us.
You should read this prospectus under the
heading "The Exchange Offer--Resales of the
New Debentures," for a more complete
<PAGE>
description of why we believe you can freely
transfer new debentures received in the
exchange offer without registration or
delivery of a prospectus.
All broker-dealers who are issued new
debentures for their own accounts in exchange
for old debentures that were acquired as a
result of market-making or other trading
activities must acknowledge that they will
deliver a prospectus meeting the
requirements of the Securities Act in
connection with any resale of the new
debentures. If you are a broker-dealer and
required to deliver a prospectus, you may use
this prospectus for an offer to resell, a
resale or other transfer of the new
debentures.
Federal Income Tax
Consequences The issuance of the new debentures will not
constitute an exchange for federal income tax
purposes. You will not recognize any gain or
loss upon receipt of the new debentures. See
"Certain Federal Income Tax Considerations."
Summary of Terms of the New Debentures
The new debentures will evidence the same debt as
the old debentures and will be governed by the same
indenture under which the old debentures were issued.
Aggregate Principal Amount Up to $200,000,000.
Interest Rate 7 1/4% per year.
Maturity Date June 1, 2029.
Interest Payment Dates June 1 and December 1 of each year,
beginning December 1, 1999.
Interest Calculations Based on 360-day year of twelve 30-day
months.
Ranking The debentures will rank equally with all
other unsecured and unsubordinated
indebtedness of Kohl's Corporation.
Optional Redemption The debentures are redeemable by us prior to
their maturity.
Sinking Fund None.
Minimum Denomination $100,000.
General Indenture Provisions Applicable to the Debentures
Limit on Debt The indenture does not limit the amount of
debt that we may issue or provide
holders any protection should we be involved
in a highly leveraged transaction.
Certain Covenants The indenture governing the debentures
contains covenants that, among other
things, will limit the ability of Kohl's
Corporation and our largest operating
subsidiary, Kohl's Department Stores, Inc.,
to:
* incur, issue, assume or guarantee certain
additional secured indebtedness, and
<PAGE>
* engage in sale and leaseback transactions.
These covenants are subject to important
exceptions and qualifications, which are
described under the heading "Description of
Debentures" in this prospectus.
Events of Default Each of the following is an event of default
under the indenture:
* our failure for 30 days to pay interest
when due on the debentures,
* our failure to pay principal of or
premium, if any, on the debentures when
due,
* our failure to perform covenants with
respect to the debentures for 60 days
after receipt of notice of failure,
* default in the payment of principal or
default and acceleration of at least
$25.0 million in aggregate principal
amount of other debt of Kohl's
Corporation, and
* certain events of bankruptcy, insolvency
or reorganization of Kohl's Corporation.
Remedies If an event of default occurs, the trustee
under the indenture or holders of at
least 25% in aggregate principal amount of
outstanding debentures may declare the
principal immediately due and payable.
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
We derived the selected consolidated financial
data in the following table for each of the five years
in the period ended January 30, 1999 from our
consolidated financial statements, which have been
audited by Ernst & Young LLP, independent auditors. We
derived the selected consolidated financial data for
the three months ended May 2, 1998 and May 1, 1999 from
our unaudited consolidated financial statements, which,
in the opinion of management, include all adjustments,
consisting of normal recurring accruals, necessary for
a fair presentation of the financial position and
results of operations as of the dates and for the
periods presented. The results for the three months
ended May 1, 1999 are not necessarily indicative of
results to be expected for the full fiscal year. You
should read this information in conjunction with our
consolidated financial statements and related notes,
management's discussion and analysis of financial
condition and results of operations and other financial
information incorporated into this offering memorandum.
Our fiscal year ends on the Saturday closest to
January 31. Fiscal 1995 contained 53 weeks.
<TABLE>
<CAPTION>
Fiscal Year Ended Three Months Ended
January 28, February 3, February 1, January 31, January 30, May 2, May 1,
1995 1996 1997 1998 1999 1998 1999
<S> <C> <C> <C> <C> <C> <C>
(Dollars in Thousands) (Unaudited)
Statement of
Operations Data:
Net sales $1,554,100 $1,925,669 $2,388,221 $3,060,065 $3,681,763 $744,571 $910,256 $ $ $ $
Cost of
merchandise
sold. 1,037,740 1,294,653 1,608,688 2,046,468 2,447,301 491,102 597,128
Gross margin 516,360 631,016 779,533 1,013,597 1,234,462 253,469 313,128
Selling,
general and 356,893 436,442 536,226 678,793 810,162 180,353 216,032
administrative
expenses
Depreciation
and amortization 27,402 33,931 44,015 57,380 70,049 16,284 19,877
Preopening
Expenses 8,190 10,712 10,302 18,589 16,388 7,542 7,945
Credit operations,
non-recurring (a) - 14,052 - - - - -
Operating income 123,875 135,879 188,990 258,835 337,863 49,290 69,274
Interest expense,
net 6,424 13,150 17,622 23,772 21,114 5,059 5,132
Income before
income taxes 117,451 122,729 171,368 235,063 316,749 44,231 64,142
Provision for
income taxes 48,939 50,077 68,890 93,790 124,483 17,383 24,823
Net income $ 68,512 $ 72,652 $ 102,478 $ 141,273 $ 192,266 $ 26,848 $ 39,319
Operating Data:
Comparable store
sales growth(b) 6.1% 5.9% 11.3% 10.0% 7.9% 12.0% 10.8%
Net sales per
selling square
foot (c) $ 258 $ 257 $ 261 $ 267 $ 265 $ 57 $ 58
Total square
feet of selling
space (in thousands;
end of period) 6,824 8,378 10,064 12,533 15,111 13,681 16,130
Number of
stores open
(end of period) 108 128 150 182 213 197 226
Capital expenditure
including capitalized
leases and favorable
lease rights $ 132,800 $ 138,797 $ 223,423 $ 202,735 $ 248,878 $ 45,846 $207,344
Balance Sheet
Data (end of period):
Working capital $ 114,637 $ 175,368 $ 229,339 $ 525,251 $ 559,207 $524,592 $670,344
Property and
equipment, net 298,737 409,168 596,227 749,649 933,011 781,325 984,831
Total assets 658,717 805,385 1,122,483 1,619,712 1,936,095 1,679,409 2,195,489
Total long-term
debt 108,777 187,699 312,031 310,366 310,912 311,142 308,878
Shareholders'
equity 334,249 410,638 517,471 954,782 1,162,779 983,066 1,454,728
Other Data:
Ratio of earnings
to fixed
charges(d) 6.91x 4.96x(e) 4.94x 5.06x 5.99x 3.90x 4.68x
(footnotes on next page)
</TABLE>
<PAGE>
(a) Effective September 1, 1995, we terminated our
agreement with Citicorp Retail Services under
which we sold our private label credit card
receivables. At the same time, we established our
own credit card operation. In connection with this
transaction, we incurred a one-time charge of
$14.1 million ($8.3 million after-tax).
(b) Comparable store sales for each period are based
on sales of stores (including relocated or
expanded stores) open throughout the current and
prior year. Comparable store sales growth for
fiscal 1996 compares the 52 weeks of fiscal 1996
to the same 52 week calendar in fiscal 1995 and
excludes the electronics business that we
discontinued in 1996. Comparable store sales
growth for fiscal 1995 has been adjusted to
eliminate the 53rd week in fiscal 1995.
(c) Net sales per selling square foot is calculated
using net sales of stores that have been open for
the full period, divided by their square footage
of selling space.
(d) The ratio of earnings to fixed charges is computed
by dividing earnings by fixed charges. For this
purpose, "earnings" means pre-tax income plus fixed
charges minus capitalized interest. "Fixed charges"
includes interest (expensed or capitalized), the
portion of rent expense representative of interest and
the amortization of deferred financing costs.
(e) Excluding the credit operations non-recurring
expense of $14.1 million, the ratio of earnings to
fixed charges would be 5.40x.
<PAGE>
USE OF PROCEEDS
We will not receive any proceeds from the exchange offer.
THE EXCHANGE OFFER
Purpose and Effect; Registration Rights
We sold the old debentures to Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Morgan Stanley &
Co. Incorporated, BNY Capital Markets, Inc. and Banc
One Capital Markets, Inc., as initial purchasers, on
June 1, 1999. The initial purchasers then resold the
old debentures under an offering memorandum dated May
26, 1999 in reliance on Rule 144A, Regulation S and
other available exemptions under the Securities Act.
On June 1, 1999, we entered into a registration rights
agreement with the initial purchasers. Under the
registration rights agreement, we agreed:
* to file with the SEC a registration statement
relating to the exchange offer under the Securities Act
no later than October 14, 1999;
* to use our reasonable best efforts to cause the
exchange offer registration statement to be declared
effective under the Securities Act on or before
November 28, 1999; and
* to use our reasonable best efforts to cause the
exchange offer to be consummated not later than 45 days
following the date of effectiveness of the exchange
offer registration statement.
If you participate in the exchange offer, you
will, with limited exceptions, receive debentures that
are freely tradable and not subject to restrictions on
transfer. You should read this prospectus under the
heading "--Resales of New Debentures" for more
information relating to your ability to transfer new
debentures.
The exchange offer is not being made to, nor will
we accept tenders for exchange from, holders of old
debentures in any jurisdiction in which the exchange
offer or the acceptance of the exchange offer would not
be in compliance with the securities laws or blue sky
laws of such jurisdiction.
If you are eligible to participate in the exchange
offer and do not tender your old debentures, you will
continue to hold the untendered old debentures, which
will continue to be subject to restrictions on transfer
under the Securities Act.
In the registration rights agreement, we will be
required to file a shelf registration statement only
if:
* after June 1, 1999, there is a change in law or
applicable interpretations of the law by the staff of
the SEC, and as a result we are not permitted to
complete the exchange offer as contemplated by the
registration rights agreement, or
* any holder of the old debentures is not able to
participate in the exchange offer, or
* any holder of the old debentures does not receive
fully transferable new debentures, or
* the exchange offer registration statement is not
declared effective by November 28, 1999 or the exchange
offer is not consummated within 45 days after the
exchange offer registration statement is declared
effective, but we may terminate such shelf registration
statement at any time, without penalty, if the exchange
offer registration statement is declared effective or
the exchange offer is consummated, or
* upon the request of any of the initial purchasers
made within 90 days after the consummation of the
exchange offer with respect to old debentures not
eligible to be exchanged in the exchange offer and held
by it following the consummation of the exchange offer.
<PAGE>
The shelf registration statement will permit only
certain holders to resell their debentures from time to
time. In addition, such holders must:
* provide certain information in connection with the
registration statement, and
* agree in writing to be bound by all provisions of
the registration rights agreement (including the
applicable indemnification obligations).
A holder who sells old debentures pursuant to the
shelf registration statement will be required to be
named as a selling securityholder in the prospectus and
to deliver a copy of the prospectus to purchasers. If
we are required to file a shelf registration statement,
we will provide to each holder of the old debentures
copies of the prospectus that is a part of the shelf
registration statement and notify each such holder when
the shelf registration statement becomes effective.
Such holder will be subject to certain of the civil
liability provisions under the Securities Act in
connection with such sales, and will be bound by the
provisions of the registration rights agreement which
are applicable to such a holder (including the
applicable indemnification obligations).
If a shelf registration statement is required, we
will use our reasonable best efforts to:
* file the shelf registration statement with the SEC
no later than (a) November 28, 1999 or (b) the 60th day
after such filing obligation arises, whichever is
later, and
* cause the shelf registration statement to be
declared effective by the SEC no later than December
28, 1999, and
* keep the shelf registration statement effective
until June 1, 2001, or if earlier until all of the
debentures covered by the shelf registration statement
are sold thereunder or are already freely tradable.
Additional Interest
If a registration default occurs (this term is
defined below under this subheading), then we will be
required to pay additional interest to each holder of
the old debentures. During the first 90-day period
that a registration default occurs, we will pay
additional interest equal to 0.25% per year. At the
beginning of the second and any subsequent 90-day
period that a registration default is continuing, the
amount of additional interest will increase by an
additional 0.25% per year until all registration
defaults have been cured. However, in no event will
the rate of additional interest exceed 0.5% per year.
Such additional interest will accrue only for those
days that a registration default occurs and is
continuing. All accrued additional interest will be
paid to the holders of the debentures in the same
manner as interest payments on the debentures, with
payments being made on the interest payment dates for
the debentures. Following the cure of all registration
defaults, no more additional interest will accrue.
You will not be entitled to receive any additional
interest if you were, at any time while the exchange
offer was pending, eligible to exchange, and did not
validly tender, your old debentures for new debentures
in the exchange offer.
A "registration default" includes if:
* we fail to file any of the registration statements
required by the registration rights agreement on or
before the date specified for such filing, or
* any of such registration statements is not
declared effective by the SEC on or prior to the date
specified for such effectiveness, or
* we fail to complete the exchange offer on or prior
to the date specified for such completion, or
<PAGE>
* the shelf registration statement or the exchange
offer registration statement is declared effective but
thereafter ceases to be effective or usable in
connection with resales of the debentures during the
period specified in the registration rights agreement,
subject to certain exceptions for limited periods of
time with respect to the shelf registration statement.
The exchange offer is intended to satisfy our
exchange offer obligations under the registration
rights agreement. The above summary of the
registration rights agreement is not complete and is
subject to, and qualified by reference to, all the
provisions of the registration rights agreement. A
copy of the registration rights agreement is filed as
an exhibit to the registration statement that includes
this prospectus.
Expiration Date; Extensions
The expiration date at the exchange offer is
, 1999 at 5:00 p.m., New York City time. We, in our
sole discretion, may extend the exchange offer. If we
extend the exchange offer, the expiration date will be
the latest date and time to which the exchange offer is
extended. We will notify the exchange agent of any
extension by oral or written notice and will make a
public announcement of the extension no later than 9:00
a.m., New York City time, on the next business day
after the previously scheduled expiration date.
We expressly reserve the right, in our sole and
absolute discretion:
* to delay accepting any old debentures;
* to extend the exchange offer;
* if any of the conditions under "--Conditions of
the Exchange Offer" have not been satisfied, to
terminate the exchange offer; and
* to waive any condition or otherwise amend the
terms of the exchange offer in any manner.
If the exchange offer is amended in a manner
determined by us to constitute a material change, we
will promptly disclose such amendment by means of a
prospectus supplement that will be distributed to the
registered holders of the old debentures. Any delay in
acceptance, extension, termination or amendment will be
followed promptly by an oral or written notice of the
event to the exchange agent. We will also make a
public announcement of the event. If the announcement
relates to an extension, the announcement will be made
no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled
expiration date. Without limiting the manner in which
we may choose to make any public announcement and
subject to applicable law, we have no obligation to
publish, advertise or otherwise communicate any such
public announcement other than by issuing a release to
a national news service.
Terms of the Exchange Offer
We are offering, upon the terms and subject to the
conditions set forth in this prospectus and in the
accompanying letter of transmittal, to exchange $1,000
in principal amount of new debentures for each $1,000
in principal amount of outstanding old debentures. We
will accept for exchange any and all old debentures
that are validly tendered on or before 5:00 p.m., New
York City time, on the expiration date. Tenders of the
old debentures may be withdrawn at any time before 5:00
p.m., New York City time, on the expiration date. The
exchange offer is not conditioned upon any minimum
principal amount of old debentures being tendered for
exchange. However, the exchange offer is subject to
the registration rights agreement and the satisfaction
of the conditions described under "-Conditions of the
Exchange Offer." Old debentures may be tendered only
in a minimum denomination of $100,000 and integral
multiples of $1,000. Holders may tender less than the
aggregate principal amount represented by their old
debentures if they appropriately indicate this fact on
the letter of transmittal accompanying the tendered old
debentures or indicate this fact pursuant to the
procedures for book-entry transfer described below.
As of the date of this prospectus, $200 million in
aggregate principal amount of the old debentures were
outstanding. Solely for reasons of administration, we
have fixed the close of business on
, 1999, as the
<PAGE>
record date for purposes of determining
the persons to whom this prospectus and the letter of
transmittal will be mailed initially. Only a holder of
the old debentures (or such holder's legal
representative or attorney-in-fact) whose ownership is
reflected in the records of The Bank of New York, as
registrar, or whose debentures are held of record by
The Depository Trust Company ("DTC") may participate in
the exchange offer. There will be no fixed record date
for determining the eligible holders of the old
debentures that are entitled to participate in the
exchange offer.
We will be deemed to have accepted validly
tendered old debentures when, as and if we give oral or
written notice of its acceptance to the exchange agent.
The exchange agent will act as agent for the tendering
holders of old debentures and for purposes of receiving
the new debentures from us. If any tendered old
debentures are not accepted for exchange because of an
invalid tender or otherwise, certificates for the
unaccepted old debentures will be returned, without
expense, to the tendering holder as promptly as
practicable after the expiration date.
Holders of old debentures do not have any
appraisal or dissenters' rights under applicable law or
the indenture as a result of the exchange offer. We
intend to conduct the exchange offer in accordance with
the applicable requirements of the Securities Exchange
Act and the rules and regulations under the Exchange
Act, including Rule 14e-1.
Holders who tender their old debentures 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 old debentures pursuant to the
exchange offer. See "--Fees and Expenses."
Neither we nor our board of directors make any
recommendation to holders of old debentures as to
whether to tender any of their old debentures pursuant
to the exchange offer. In addition, no one has been
authorized to make any such recommendation. Holders of
old debentures must make their own decision whether to
participate in the exchange offer and, if the holder
chooses to participate in the exchange offer, the
aggregate principal amount of old debentures to tender,
after reading carefully this prospectus and the letter
of transmittal and consulting with their advisors.
Conditions of the Exchange Offer
You must tender your old debentures in accordance
with the requirements of this prospectus and the letter
of transmittal in order to participate in the exchange
offer.
Notwithstanding any other provision of the
exchange offer, or any extension of the exchange offer,
we will not be required to accept for exchange any old
debentures, and may terminate or amend the exchange
offer if:
* the exchange offer, or the making of any exchange
by a debenture holder, violates applicable law or any
applicable interpretation of the staff of the SEC,
* any action or proceeding shall have been
instituted or threatened with respect to the exchange
offer which, in our judgment, would impair our ability
to proceed with the exchange offer, or
* any law, rule or regulation or applicable
interpretations of the staff of the SEC has been issued
or promulgated which, in our good faith determination,
does not permit us to effect the exchange offer.
If we determine in our sole discretion that any of
the above events or conditions has occurred, we may,
subject to applicable law, terminate the exchange offer
and return all old debentures tendered for exchange or
may waive any condition or amend the terms of the
exchange offer.
We expect that the above conditions will be
satisfied. The above conditions are for our sole
benefit and may be waived by us at any time in our sole
discretion. Our failure at any time to exercise any of
the above rights will not be a waiver of those rights
and each right will be deemed an ongoing right that may
be asserted at any time. Any determination by us
concerning the events described above will be final and
binding upon all parties.
<PAGE>
Interest
Each new debenture will bear interest from the
most recent date to which interest has been paid or
duly provided for on the old debenture surrendered in
exchange for such new debenture or, if no such interest
has been paid or duly provided for on such old
debenture, from June 1, 1999. Interest on the new
debentures will be payable semi-annually on June 1 and
December 1 of each year.
Procedures for Tendering Old Debentures
The tender of a holder's old debentures and our
acceptance of old debentures will constitute a binding
agreement between the tendering holder and us upon the
terms and conditions of this prospectus and the letter
of transmittal. Unless a holder tenders old debentures
according to the guaranteed delivery procedures or the
book-entry procedures described below, the holder must
transmit the old debentures, together with a properly
completed and executed letter of transmittal and all
other documents required by the letter of transmittal,
to the exchange agent at its address before 5:00 p.m.,
New York City time on the expiration date. The method
of delivery of old debentures, letters of transmittal
and all other required documents is at the election and
risk of the tendering holder. If delivery is by mail,
it is recommended that registered mail, properly
insured, with return receipt requested, be used.
Instead of delivery by mail, it is recommended that
each holder use an overnight or hand delivery service.
In all cases, sufficient time should be allowed to
assure timely delivery.
Any beneficial owner of the old debentures whose
old debentures are registered in the name of a broker,
dealer, commercial bank, trust company or other nominee
and who wishes to tender old debentures in the exchange
offer should contact that registered holder promptly
and instruct that registered holder to tender on its
behalf.
Any financial institution that is a participant in
DTC's Book-Entry Transfer Facility system may make book-
entry delivery of the old debentures by causing DTC to
transfer the old debentures into the exchange agent's
account in accordance with DTC's procedures for such
transfer. To be timely, book-entry delivery of old
debentures requires receipt of a confirmation of a book-
entry transfer before the expiration date. Although
delivery of the old debentures may be effected through
book-entry transfer into the exchange agent's account
at DTC, the letter of transmittal (or facsimile),
properly completed and executed, with any required
signature guarantees and any other required documents
or an agent's message (as described below), must in any
case, be delivered to and received by the exchange
agent at its address on or before the expiration date,
or the guaranteed delivery procedure set forth below
must be complied with.
DTC has confirmed that the exchange offer is
eligible for DTC's Automated Tender Offer Program.
Accordingly, participants in DTC's Automated Tender
Offer Program may, instead of physically completing and
signing the applicable letter of transmittal and
delivering it to the exchange agent, electronically
transmit their acceptance of the exchange offer by
causing DTC to transfer old debentures to the exchange
agent in accordance with DTC's Automated Tender Offer
Program procedures for transfer. DTC will then send an
agent's message to the exchange agent.
The term "agent's message" means a message
transmitted by DTC, received by the exchange agent and
forming part of the book-entry confirmation, which
states that DTC has received an express acknowledgment
from a participant in DTC's Automated Tender Offer
Program that is tendering old debentures that are the
subject of such book-entry confirmation, that the
participant has received and agrees to be bound by the
terms of the applicable letter of transmittal or, in
the case of an agent's message relating to guaranteed
delivery, that the participant has received and agrees
to be bound by the applicable notice of guaranteed
delivery, and that we may enforce such agreement
against that participant.
Each signature on a letter of transmittal or a
notice of withdrawal must be guaranteed unless the old
debentures are tendered:
* by a registered holder who has not completed the
box entitled "Special Delivery Instructions"; or
* for the account of an eligible institution (as
described below).
<PAGE>
If a signature on a letter of transmittal or a notice
of withdrawal is required to be guaranteed, the
signature must be guaranteed by a participant in a
recognized Medallion Signature Program (a "Medallion
Signature Guarantor"). If the letter of transmittal is
signed by a person other than the registered holder of
the old debentures, the old debentures surrendered for
exchange must be endorsed by the registered holder,
with the signature guaranteed by a Medallion Signature
Guarantor. If any letter of transmittal, endorsement,
bond power, power of attorney or any other document
required by the letter of transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-
fact, officer of a corporation or other person acting
in a fiduciary or representative capacity, such person
should sign in that capacity when signing. Such person
must submit evidence satisfactory to us, in our sole
discretion, of his authority to so act unless we waive
such requirement.
As used in this prospectus with respect to the old
debentures, a "registered holder" is any person in
whose name the old debentures are registered on the
books of the registrar. An "eligible institution" is a
firm that is a member 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 any other "eligible guarantor institution" as
such term is defined in Rule 17Ad-15 under the Exchange
Act.
All questions as to the validity, form,
eligibility (including time of receipt), acceptance and
withdrawal of old debentures tendered for exchange will
be determined by us in our sole discretion. Our
determination will be final and binding. We reserve
the absolute right to reject old debentures not
properly tendered and to reject any old debentures if
acceptance might, in our judgment or the judgment of
our counsel, be unlawful. We also reserve the absolute
right to waive any defects or irregularities or
conditions of the exchange offer as to particular old
debentures at any time, including the right to waive
the ineligibility of any holder who seeks to tender old
debentures in the exchange offer. The interpretation
by us of the terms and conditions of the exchange
offer, including the letter of transmittal and its
instructions, will be final and binding on all parties.
Unless waived, any defects or irregularities in
connection with tenders of old debentures for exchange
must be cured within such period of time as we
determine. Neither we nor the exchange agent is under
any duty to give notification of defects in such
tenders or will incur any liability for failure to give
such notification. The exchange agent will use
reasonable efforts to give notification of defects or
irregularities with respect to tenders of old
debentures for exchange but will not incur any
liability for failure to give such notification.
Tenders of old debentures will not be deemed to have
been made until such irregularities have been cured or
waived.
By tendering, you will represent to us that, among
other things:
* the new debentures to be received in the exchange
offer are being acquired in the ordinary course of your
business;
* you do not intend to participate, and have no
arrangement or understanding with any person to
participate, in the distribution (within the meaning of
the Securities Act) of the old debentures or the new
debentures;
* if you are a broker-dealer that acquired old
debentures as a result of market-making or other
trading activities, you will deliver a prospectus in
connection with any resale of new debentures acquired
in the exchange offer;
* you are not an "affiliate" (as defined in Rule 405
under the Securities Act) of us; and
* you are not acting on behalf of any person who
could not truthfully make the foregoing
representations.
In connection with a book-entry transfer, each
participant will confirm that it makes the
representations and warranties contained in the letter
of transmittal.
<PAGE>
Guaranteed Delivery Procedures
Holders who wish to tender their old debentures and:
* whose old debentures are not immediately
available, or
* who cannot deliver their old debentures or any
other documents required by the letter of transmittal
to the exchange agent on or before the expiration date
(or complete the procedure for book-entry transfer on a
timely basis),
may tender their old debentures according to the
guaranteed delivery procedures described in the letter
of transmittal. Those procedures require that:
* tenders be made by or through an eligible
institution and a notice of guaranteed delivery must be
signed by such holder;
* on or before the expiration date, the exchange
agent receive from the holder and the eligible
institution a properly completed and executed notice of
guaranteed delivery (by facsimile transmission, mail or
hand delivery) setting forth the name and address of
the holder, the certificate number or numbers of the
tendered old debentures, and the principal amount of
tendered old debentures, which states that the tender
is being made pursuant to the guaranteed delivery
procedures and guaranteeing that, within four business
days after the date of delivery of the notice of
guaranteed delivery, the tendered old debentures in
proper form for transfer or confirmation of a book-
entry transfer of those old debentures into the
exchange agent's account at DTC, a duly executed letter
of transmittal and any other required documents will be
deposited by the eligible institution with the exchange
agent; and
* properly completed and executed documents required
by the letter of transmittal and the tendered old
debentures in proper form for transfer or confirmation
of a book-entry transfer of such old debentures into
the exchange agent's account at DTC be received by the
exchange agent within four business days after the
expiration date.
Any holder who wishes to tender old debentures pursuant
to the guaranteed delivery procedures must ensure that
the exchange agent receives the notice of guaranteed
delivery and letter of transmittal relating to such old
debentures before 5:00 p.m., New York City time, on the
expiration date.
Acceptance of Old Debentures for Exchange; Delivery of
New Debentures
Upon satisfaction or waiver of all the conditions
to the exchange offer, we will accept old debentures
that are properly tendered in the exchange offer prior
to 5:00 p.m., New York City time, on the expiration
date. The new debentures will be delivered promptly
after acceptance of the old debentures. For purposes
of the exchange offer, we will be deemed to have
accepted validly tendered old debentures, when, as and
if we have given notice to the exchange agent.
Withdrawal Rights
Tenders of the old debentures may be withdrawn by
delivery of a written or facsimile transmission notice
to the exchange agent, at its address set forth under
"--The Exchange Agent; Assistance" at any time before
5:00 p.m., New York City time, on the expiration date.
Any such notice of withdrawal must:
* specify the name of the person having deposited
the old debentures to be withdrawn;
* identify the old debentures to be withdrawn
(including the certificate number or numbers and
principal amount of such old debentures), or, in the
case of old debentures transferred by book-entry
transfer, the name and number of the account at DTC to
be credited;
<PAGE>
* be signed by the holder in the same manner as the
original signature on the letter of transmittal by
which old debentures were tendered, including any
required signature guarantees, or be accompanied by a
bond power in the name of the person withdrawing the
tender, in satisfactory form as determined by us in our
sole discretion, executed by the registered holder,
with the signature guaranteed by a Medallion Signature
Guarantor, together with the other documents required
upon transfer by the indenture; and
* specify the name in which the old debentures are
to be re-registered, if different from the person who
deposited the old debentures.
All questions as to the validity, form and eligibility
(including time of receipt) of such notices will be
determined by us, in our sole discretion. The old
debentures withdrawn will be deemed not to have been
validly tendered for exchange for purposes of the
exchange offer. Any old debentures that have been
tendered for exchange but are withdrawn will be
returned to the holder without cost as soon as
practicable after withdrawal. Properly withdrawn old
debentures may be retendered pursuant to the procedures
described under "--Procedures for Tendering Old
Debentures" at any time on or before the expiration
date.
The Exchange Agent; Assistance
The Bank of New York, a New York banking
corporation, is the exchange agent. All tendered old
debentures, executed letters of transmittal and other
related documents should be directed to the exchange
agent. Questions and requests for assistance and
requests for additional copies of the prospectus, the
letter of transmittal and other related documents
should be addressed to the exchange agent as follows:
By Registered or Certified Mail:
The Bank of New York
101 Barclay Street, Floor 7-E
New York, NY 10286
Attention: Reorganization Section
By Hand or Overnight Courier:
The Bank of New York
101 Barclay Street
Corporate Trust Services Window
Ground Level
New York, NY 10286
Attention: Reorganization Section
By Facsimile: (212) 815-6339
Attention: Reorganization Section
Confirm by Telephone (eligible institutions only): (212) 815-5920
Fees and Expenses
We will bear the expenses of soliciting old
debentures for exchange. The principal solicitation is
being made by mail by the exchange agent. Additional
solicitation may be made by telephone, facsimile or in
person by our officers and regular employees and our
affiliates and by persons so engaged by the exchange
agent.
We will pay the exchange agent reasonable and
customary fees for its services and will reimburse it
for its reasonable out-of-pocket expenses in connection
with its services and pay other registration expenses,
including fees and expenses of the trustee under the
indenture, filing fees, blue sky fees and printing and
distribution expenses.
<PAGE>
We have not retained any dealer-manager in
connection with the exchange offer and will not make
any payments to brokers, dealers or others soliciting
acceptance of the exchange offer.
We will pay all transfer taxes, if any, applicable
to the exchange of old debentures pursuant to the
exchange offer. If, however, a transfer tax is imposed
for any reason other than the exchange of old
debentures pursuant to the exchange offer, then the
amount of those transfer taxes, whether imposed on the
registered holder or any other persons, will be payable
by the tendering holder. If satisfactory evidence of
payment of those taxes or exemption is not submitted
with the letter of transmittal, the amount of those
transfer taxes will be billed directly to such
tendering holder.
Accounting Treatment
The new debentures will be recorded at the same
carrying value as the old debentures, as reflected in
our accounting records on the date of the exchange.
Accordingly, we will recognize no gain or loss for
accounting purposes. The expenses of the exchange
offer will be amortized over the term of the new
debentures.
Consequences of Not Exchanging Old Debentures
As a result of this exchange offer, we will have
fulfilled most of its obligations under the
registration rights agreement, and holders who do not
tender their old debentures, except for certain
instances involving the initial purchasers or holders
of old debentures who are not eligible to participate
in the exchange offer or who do not receive freely
transferrable new debentures pursuant to the exchange
offer, will not have any further registration rights
under the registration rights agreement or otherwise
and will not have rights to receive additional
interest. Accordingly, any holder that does not
exchange its old debentures for new debentures will
continue to hold the untendered old debentures and will
be entitled to all the rights and subject to all the
limitations applicable under the indenture, except to
the extent that such rights or limitations, by their
terms, terminate or cease to have further effectiveness
as a result of the exchange offer.
The old debentures that are not exchanged for new
debentures pursuant to the exchange offer will remain
restricted securities within the meaning of the
Securities Act. In general, such old debentures may be
resold only:
* to us or any of our subsidiaries;
* pursuant to an effective registration statement
under the Securities Act;
* to a "qualified institutional buyer" in compliance
with Rule 144A under the Securities Act;
* to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3), or (7) under the
Securities Act), that, prior to such transfer,
furnishes or has furnished on its behalf by a U.S.
broker-dealer to the trustee under the indenture a
signed letter containing certain representations and
agreements relating to the restrictions on transfer of
the old debentures, the form of which letter can be
obtained from the trustee;
* outside the United States in compliance with
Regulation S under the Securities Act; or
* pursuant to any other available exemption from
registration under the Securities Act.
We reserve the right prior to any offer, sale or
other transfer pursuant to the last three bullet points
above to require the delivery of an opinion of counsel,
certificates and/or other information satisfactory to
us to demonstrate that the transaction is permitted.
<PAGE>
Resales of the New Debentures
We are making the exchange offer in reliance on
the position of the staff of the SEC as set forth in
interpretive letters addressed to third parties in
other transactions. However, we have not sought our
own interpretive letter, and there can be no assurance
that the staff of the SEC would make a similar
determination with respect to the exchange offer as it
has in the interpretive letters to third parties.
Based on these interpretations by the staff, and except
as provided below, we believe that new debentures may
be offered for resale, resold and otherwise transferred
by a holder that participates in the exchange offer and
is not a broker-dealer without further compliance with
the registration and prospectus delivery provisions of
the Securities Act. In order to receive new debentures
that are freely tradeable, a holder must acquire the
new debentures in the ordinary course of its business
and may not participate, or have any arrangement or
understanding with any person to participate, in the
distribution (within the meaning of the Securities Act)
of the old debentures or the new debentures. Holders
wishing to participate in the exchange offer must make
the representations described in "--Procedures for
Tendering Old Debentures" above.
Any holder of old debentures:
* who is our "affiliate" (as defined in Rule 405
under the Securities Act);
* who did not acquire the new debentures in the
ordinary course of its business; or
* who intends to participate, or has an arrangement
or understanding with any person to participate, in a
distribution (within the meaning of the Securities Act)
of the old debentures or the new debentures,
will be subject to separate restrictions. Each holder
in any of the above categories:
* will not be able to rely on the interpretations of
the staff of the SEC in the above-mentioned
interpretive letters;
* will not be permitted or entitled to tender old
debentures in the exchange offer; and
* must comply with the registration and prospectus
delivery requirements of the Securities Act in
connection with any sale or other transfer of old
debentures unless such sale is made pursuant to an
exemption from such requirements.
In addition, if you are a broker-dealer holding
old debentures acquired for your own account, then you
may be deemed a statutory "underwriter" within the
meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities
Act in connection with any resales of your new
debentures. Each broker- dealer that receives new
debentures for its own account pursuant to the exchange
offer must acknowledge that it acquired the old
debentures for its own account as a result of market-
making activities or other trading activities and must
agree that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with
any resale of those new debentures. The letter of
transmittal states that by making the above
acknowledgment 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.
Based on the position taken by the SEC staff in the
interpretive letters referred to above, we believe that
broker-dealers who acquired old debentures for their
own accounts, as a result of market-making or other
trading activities ("Participating Broker-Dealers") may
fulfill their prospectus delivery requirements with
respect to the new debentures received upon exchange of
old debentures (other than old debentures which
represent an unsold allotment from the original sale of
the old debentures) with a prospectus meeting the
requirements of the Securities Act, which may be the
prospectus prepared for an exchange offer so long as it
contains a description of the plan of distribution with
respect to the resale of such new debentures.
Accordingly, this prospectus, as it may be amended or
supplemented, may be used by a Participating Broker-
Dealer during the period referred to below in
connection with resales of new debentures received in
exchange for old debentures where such old debentures
were acquired by such Participating Broker-Dealer for
its own account as a result of market-making or other
trading activities. Subject to certain provisions set
forth in the registration rights agreement, we have
agreed that this prospectus may be used by a
Participating Broker-Dealer in connection with resales
of such new debentures. See "Plan of
<PAGE>
Distribution."
However, a Participating Broker-Dealer who intends to
use this prospectus in connection with the resale of
new debentures received in exchange for old debentures
pursuant to the exchange offer must notify us, or cause
us to be notified, on or before the expiration date of
the exchange offer, that it is a Participating Broker-
Dealer. Such notice may be given in the space provided
for that purpose in the letter of transmittal or may be
delivered to the exchange agent at the address set
forth under "--The Exchange Agent; Assistance." Any
Participating Broker-Dealer who is an "affiliate" of us
may not rely on such interpretive letters and must
comply with the registration and prospectus delivery
requirements of the Securities Act in connection with
any resale transaction.
Each Participating Broker-Dealer who tenders old
debentures pursuant to the exchange offer will be
deemed to have agreed, by execution of the letter of
transmittal, that, upon receipt of notice from us of
the occurrence of any event or the discovery of any
fact which makes any statement contained in this
prospectus untrue in any material respect or which
causes this prospectus to omit to state a material fact
necessary in order to make the statements contained
herein, in light of the circumstances under which they
were made, not misleading or of the occurrence of
certain other events specified in the registration
rights agreement, such Participating Broker-Dealer will
suspend the sale of new debentures pursuant to this
prospectus until we have amended or supplemented this
prospectus to correct such misstatement or omission and
has furnished copies of the amended or supplemented
prospectus to such Participating Broker-Dealer or we
have given notice that the sale of the new debentures
may be resumed, as the case may be.
DESCRIPTION OF DEBENTURES
The old debentures were, and the new debentures
will be, issued under an indenture (the "Indenture")
dated as of December 1, 1995, as supplemented and
amended by a First Supplemental Indenture, dated as of
June 1, 1999 between us and The Bank of New York, as
Trustee (the "Trustee"). The form and term of the new
debentures are substantially identical to the form and
term of the old debentures, except that the new
debentures:
* will be registered under the Securities Act;
* will not, except under limited circumstances, have
registration rights or rights to additional interest;
and
* will not bear any securities laws legends
restricting transfer.
The new debentures will be issued solely in exchange
for an equal principal amount of old debentures. As of
the date of this prospectus, $200 million aggregate
principal amount of old debentures is outstanding. See
"The Exchange Offer." As used below, "debentures"
refers to the old debentures and the new debentures.
We have summarized selected provisions of the
Indenture below. The summary is not complete. The
Indenture has been filed as an exhibit to the
registration statement to which this prospectus is a
part and is incorporated herein by reference. You
should read the Indenture for provisions that may be
important to you. Section references below are to the
sections in the Indenture. Capitalized terms have the
meanings assigned to them in the Indenture.
General
The Indenture does not limit the amount of debt
securities that we may issue and we may issue debt
securities under the Indenture from time to time in one
or more series. We have previously issued under the
Indenture $200,000,000 aggregate principal amount of
old debentures, $100,000,000 aggregate principal amount
of our 6.70% notes due 2006 and $100,000,000 aggregate
principal amount of our 7.375% notes due 2011.
The new debentures will be unsecured and
unsubordinated obligations of Kohl's Corporation and
will rank equally and ratably with our other unsecured
and unsubordinated obligations.
<PAGE>
The debentures will mature on June 1, 2029. The
debentures are initially limited to $200,000,000
aggregate principal amount, but we may "reopen" the
debentures series and issue additional debentures.
Interest on the debentures will be computed on the
basis of a 360-day year of twelve 30-day months and
will be payable on each June 1 and December 1 (each an
"Interest Payment Date"), commencing on December 1,
1999. We will pay interest to the person in whose name
a debenture is registered at the close of business on
the May 15 or November 15, as the case may be, before
such Interest Payment Date.
We expect that payments of principal and interest
to owners of book-entry interests (as described below)
will be made in accordance with the procedures of DTC
and its participants in effect from time to time. DTC
shall act as the Depository, as described in the
Indenture.
The provisions of the Indenture relating to
defeasance and covenant defeasance are applicable to
the debentures.
The Indenture does not contain covenants or other
provisions designed to afford holders of the debentures
protection in the event of a highly leveraged
transaction, change in credit rating or other similar
occurrence.
The debentures constitute an obligation of Kohl's
Corporation, not of our subsidiaries. Our
subsidiaries, however, own substantially all of our
consolidated assets and conduct substantially all of
our consolidated operations. As a result, the
debentures are structurally subordinated to the prior
claims of our subsidiaries' creditors (including trade
creditors) and our subsidiaries' preferred
stockholders, if any, except to the extent that Kohl's
Corporation may itself be a creditor with recognized
claims against a subsidiary.
The debentures will be issued in fully registered
book-entry form without coupons in denominations of not
less than $100,000 and integral multiples of $1,000.
We do not intend to apply for the listing of the
debentures on a national securities exchange. No
service charge will be made for any transfer or
exchange of the debentures, but we may require payment
of any tax or other governmental charge payable in
connection with any transfer or exchange. (Sections
2.1, 2.3 and 2.8)
Optional Redemption
We will have the right to redeem the debentures at
any time, in whole or in part, upon at least 30 days
notice mailed to the registered address of each holder
of the debentures. We will pay a redemption price
equal to the greater of (1) 100% of the principal
amount of the debentures to be redeemed or (2) the sum
of the present values of the Remaining Scheduled
Payments 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 plus twenty-
five basis points.
If we redeem any debentures, accrued interest on
those debentures will be payable to the redemption
date.
"Treasury Rate" means, for 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 that
redemption date.
"Comparable Treasury Issue" means the United
States Treasury security, selected by a Reference
Treasury Dealer appointed by us, as having a maturity
comparable to the remaining term of the debentures to
be redeemed that would be utilized, at the time of
selection and in accordance with customary financial
practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term
of those debentures.
"Comparable Treasury Price" means, for any
redemption date, (1) the average of the Reference
Treasury Dealer Quotations for that redemption date
after excluding the highest and lowest of those
Reference Treasury Dealer Quotations, or (2) if the
Trustee obtains fewer than five Reference Treasury
Dealer Quotations, the average of all the quotations.
"Reference Treasury Dealer" means any nationally
recognized investment banking firm that is a primary
U.S. Government securities dealer.
<PAGE>
"Reference Treasury Dealer Quotations" means, for
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
that Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third business day preceding that
redemption date.
"Remaining Scheduled Payments" means, for each
debenture to be redeemed, the remaining scheduled
payments of principal and interest on that debenture
that would be due after the related redemption date but
for that redemption. If that redemption date is not an
interest payment date with respect to that debenture,
the amount of the next succeeding scheduled interest
payment on that debenture will be reduced by the amount
of interest accrued on the debenture to the redemption
date.
On and after the redemption date, interest will
cease to accrue on the debentures or any portion of the
debentures called for redemption (unless we default in
the payment of the redemption price and accrued
interest). On or before the redemption date, we will
deposit with a paying agent (or the Trustee) money
sufficient to pay the redemption price of and accrued
interest on the debentures to be redeemed on that date.
If less than all of the debentures are to be redeemed,
the debentures to be redeemed shall be selected by the
Trustee by any method as the Trustee shall deem fair
and appropriate.
The debentures will not be entitled to the benefit
of any sinking fund or other mandatory redemption
provisions.
Merger and Consolidation
The Indenture provides that we may, without the
consent of the holders of the debentures, consolidate
with or merge into any other corporation, or convey,
transfer or lease our properties and assets
substantially as an entirety to any person, as long as:
* the successor corporation is a domestic
corporation that assumes by a supplemental indenture
our obligations under the Indenture and the debt
securities;
* immediately after the transaction, no Event of
Default shall have happened and be continuing; and
* if an Operating Property would become subject to a
Mortgage which would not be permitted under the
Indenture, the debt securities are secured, equally and
ratably with (or prior to) all Indebtedness so secured.
Upon compliance with these requirements by a
successor corporation (except in the case of a lease),
we would be relieved of our obligations under the
Indenture and the debt securities. (Sections 5.1 and
5.2)
Events of Default
"Event of Default" under the Indenture means any
of the following with respect to debt securities of any
series (Section 6.1):
* default in payment of any interest on any debt
security of that series when due and payable, continued
for 30 days;
* default in payment of all or any part of principal
of or premium, if any, on any debt security of that
series at its maturity;
* default in the deposit of any sinking fund
payment, when and as due by the terms of a debt
security of that series;
<PAGE>
* default in the performance or breach of any other
covenant or warranty in the Indenture (other than a
covenant or warranty a default in whose performance or
whose breach is elsewhere applicable in the Indenture
specifically dealt with or which has been included in
the Indenture solely for the benefit of series of debt
securities other than that series), continued for 60
days after written notice as provided in the Indenture;
* acceleration of any indebtedness, having an
aggregate minimum principal amount of $25 million, for
money borrowed by Kohl's Corporation under the terms of
the instrument under which such indebtedness is issued
or secured, if such acceleration is not discharged
within 10 days after written notice as provided in the
Indenture;
* certain events in bankruptcy, insolvency or
reorganization pertaining to Kohl's Corporation as
described in the Indenture; and
* any other Event of Default provided with respect
to debt securities of that series.
No Event of Default with respect to a particular
series of debt securities issued under the Indenture
(except as to such events in bankruptcy, insolvency or
reorganization) necessarily constitutes an Event of
Default with respect to any other series of debt
securities issued under the Indenture. (Section 6.1)
If an Event of Default for any series of debt
securities occurs and continues, the Trustee or the
holders of at least 25% in principal amount of the debt
securities of that series may, by a notice in writing
to us (and to the Trustee if given by holders), declare
the entire principal of all the debt securities of that
series to be due and payable immediately (or, if the
debt securities of that series are original issue
discount securities, that portion of the principal
amount as may be specified in the terms of that
series). However, at any time after a declaration of
acceleration with respect to debt securities of any
series has been made, but before a judgment or decree
for payment of the money due has been obtained by the
Trustee, the holders of a majority in principal amount
of outstanding debt securities of that series may,
subject to conditions described in the Indenture,
rescind and annul such acceleration if all Events of
Default, other than the non-payment of accelerated
principal, with respect to debt securities of that
series have been cured or waived as provided in the
Indenture. (Section 6.2) For information as to waiver
of defaults, see "Modification and Waiver."
The Indenture provides that the Trustee will be
under no obligation to exercise any of its rights or
powers under the Indenture at the request or discretion
of any of the holders, unless those holders shall have
offered to the Trustee reasonable security and
indemnity. (Section 7.1) Subject to such provisions
for security and indemnification of the Trustee and
certain other rights of the Trustee, the holders of a
majority in principal amount of the outstanding debt
securities of any series shall have the right to direct
the time, method and place of conducting any
proceedings for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee
with respect to the debt securities of that series.
(Section 6.12)
No holder of any debt security of any series will
have any right to institute any proceeding with respect
to the Indenture or for any remedy under the Indenture,
unless:
* the holder shall have previously given to the
Trustee written notice of a continuing Event of Default
with respect to debt securities of that series;
* the holders of at least 25% in principal amount of
the outstanding debt securities of that series shall
have made written request, and offered reasonable
security and indemnity, to the Trustee to institute
such proceeding as trustee; and
* the Trustee shall not have received from the
holders of a majority in principal amount of the
outstanding debt securities of that series a direction
inconsistent with such request and shall have failed to
institute such proceeding within 60 days. (Section 6.7)
<PAGE>
Notwithstanding the foregoing, the holder of any
debt security will have an absolute and unconditional
right to receive payment of the principal of (and
premium, if any) and any interest on the debt security
on or after the due dates expressed in that debt
security and to institute suit for the enforcement of
that payment. (Section 6.8)
We are required to furnish to the Trustee annually
a statement regarding our compliance with the
Indenture. (Section 4.8) The Indenture provides that
the Trustee may withhold notice to the holders of debt
securities of any series of any default (except in
payment of principal, any premium, interest or any
sinking fund payments) with respect to debt securities
of that series if it considers it in the interest of
the holders of debt securities of that series to do so.
(Section 7.5)
Modification and Waiver
We and the Trustee may modify and amend the
Indenture with the consent of the holders of 66 2/3% in
principal amount of the outstanding debt securities of
all affected series. However, without the consent of
each affected holder, no modification may:
* change the stated maturity date of the principal
of, or any installment of principal of or interest on,
any debt security;
* reduce the principal, premium (if any) or any
interest on, any debt security or reduce the amount of
principal of an original issue discount security that
would be due and payable upon acceleration;
* change the place or currency of payment of
principal or interest on any debt security;
* impair the right to institute suit to enforce any
payment after the stated maturity date; or
* reduce the percentage in principal amount of
outstanding debt securities of any series, the consent
of whose holders is required for modification or
amendment of the Indenture, for waiver of compliance
with certain provisions of the Indenture or for waiver
of certain defaults. (Sections 9.2 and 9.3)
The holders of a majority in principal amount of
the outstanding debt securities of any series may, on
behalf of the holders of all debt securities of that
series, waive, insofar as that series is concerned, our
compliance with specified restrictive provisions of the
Indenture. (Section 9.2) The holders of a majority in
principal amount of the outstanding debt securities of
any series may, on behalf of the holders of all debt
securities of that series, waive any past default under
the Indenture with respect to that series. They may
not waive a default in the payment of the principal of
(or premium, if any) or any interest on any debt
security of that series or in respect of a provision
which under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding
debt security of that series affected. (Section 6.13)
Defeasance of Debt Securities or Certain Covenants in Certain Circumstances
Defeasance and Discharge. The Indenture provides
that, unless otherwise provided by the terms of the
applicable series of debt securities, we may be
discharged from any and all obligations with respect to
the debt securities of any series upon the deposit with
the Trustee, in trust, of money and/or U.S. government
obligations, which through the payment of interest and
principal of those U.S. government obligations in
accordance with their terms will provide money in an
amount sufficient to pay any installment of principal
(and premium, if any) and interest on and any mandatory
sinking fund payments in respect of the debt securities
of that series on the stated maturity of such payments
in accordance with the terms of the Indenture and the
debt securities. A discharge may only occur if we have
received from, or there has been published by, the
United States Internal Revenue Service a ruling, or
there has been a change in the federal income tax law,
in each case to the effect that holders of the debt
securities of that series will not recognize income,
gain or loss for United States federal income tax
purposes as a result of such deposit, defeasance and
discharge and will be subject to United States federal
income tax on the same amount and in the same manner
and at the same times as would have been the case if
such deposit, defeasance and discharge had not
occurred. A discharge will not be applicable to any
debt securities of any series then listed on the New
York Stock Exchange or any other securities exchange if
such deposit would cause the debt securities to be
<PAGE>
delisted. In addition, the discharge will not apply to
our obligations to register the transfer or exchange of
debt securities of the series, to replace stolen, lost
or mutilated debt securities of the series, to maintain
paying agencies and to hold moneys for payment in
trust. (Section 8.3)
Defeasance of Certain Covenants. The Indenture
provides that unless otherwise provided by the terms of
the applicable series of debt securities:
* we may omit to comply with certain restrictive
covenants set forth in the Indenture, including the
restrictive covenants described under the caption
"Certain Covenants," and
* a cross acceleration constituting an Event of
Default under the Indenture shall be inapplicable to
such series.
In order to exercise such option, we will be required
to deposit irrevocably with the Trustee money and/or
U.S. government obligations which through the payment
of interest and principal of those U.S. government
obligations in accordance with their terms will provide
money in an amount sufficient to pay principal (and
premium, if any) and interest on and any mandatory
sinking fund payments in respect of the debt securities
of the series on the stated maturity of such payments
in accordance with the terms of the Indenture and the
debt securities. We will also be required to deliver
to the Trustee an opinion of counsel to the effect that
the deposit and related covenant defeasance will not
cause the holders of the debt securities of that series
to recognize income, gain or loss for federal income
tax purposes as a result of our deposit and related
covenant defeasance and will be subject to United
States federal income tax on the same amount and in the
same manner and at the same times as would have been
the case if the deposit and related covenant defeasance
not occurred. (Section 8.4)
Defeasance and Events of Default. In the event we
exercise our option to omit compliance with certain
covenants of the Indenture with respect to any series
of debt securities and the debt securities of that
series are declared due and payable because of the
occurrence of any Event of Default, the amount of money
and U.S. government obligations on deposit with the
Trustee will be sufficient to pay amounts due on the
debt securities of that series at the time of their
stated maturity but may not be sufficient to pay
amounts due on the debt securities of that series at
the time of the acceleration resulting from such Event
of Default. However, we would remain liable for such
payments.
Concerning the Trustee
The Bank of New York is the Trustee under the
Indenture. The Bank of New York maintains normal
banking relations with us, including participating in
and acting as Administrative Agent under our revolving
credit agreement. The Trustee is an affiliate of BNY
Capital Markets, Inc., one of the initial purchasers.
Certain Covenants
Restrictions on Liens. The Indenture contains a
covenant that we will not, and we will not permit any
of our Restricted Subsidiaries to, issue, assume or
guarantee any Indebtedness secured by any Mortgage upon
any Operating Property or Operating Asset of Kohl's
Corporation or any Restricted Subsidiary without
securing the debt securities (and, if we so determine,
any other Indebtedness ranking equally with the debt
securities) equally and ratably with such Indebtedness.
This covenant will not prevent us or any of our
Restricted Subsidiaries from issuing, assuming or
guaranteeing:
* Any purchase money Mortgage on such property
simultaneously with or within 180 days after the later
of (1) the acquisition or completion of construction or
completion of substantial reconstruction, renovation,
remodeling, expansion or improvement (each, a
"substantial improvement") of such property, or (2) the
placing in operation of such property after the
acquisition or completion of any such construction or
substantial improvement;
<PAGE>
* An existing Mortgage on property not previously
owned by Kohl's Corporation or a Restricted Subsidiary,
including in each case Indebtedness incurred for
reimbursement of funds previously expended for any
substantial improvements to or acquisitions of
property. However:
- The Mortgage must be limited to any or all of
(1) such acquired or constructed property or
substantial improvement (including accretions
thereto), (2) the real property on which any
construction or substantial improvement
occurs or (3) with respect to distribution
centers, any equipment used directly in the
operation of, or the business conducted on,
the real property on which any construction
or substantial improvement occurs; and
- The total amount of the Indebtedness secured
by the Mortgage, together with all other
Indebtedness to persons other than Kohl's
Corporation or a Restricted Subsidiary
secured by Mortgages on such property, shall
not exceed the lesser of (1) the total costs
of such Mortgaged property, including any
costs of construction or substantial
improvement, or (2) the fair market value of
the property immediately following the
acquisition, construction or substantial
improvement;
* Any Mortgage on real property or, with respect to
distribution centers, on equipment used directly in the
operation of, or the business conducted on, such
Mortgaged real property, which is the sole security for
Indebtedness:
- Incurred within three years after the latest
of (1) the date of issuance of the first
series of debt securities under the Indenture
(February 6, 1996), (2) the date of the
acquisition of the real property or (3) the
date of the completion of construction or
substantial improvement on such real
property;
- Incurred for the purpose of reimbursing us or
our Restricted Subsidiary for the cost of
acquisition and/or the cost of improvement of
such real property and equipment;
- The amount of which does not exceed the
lesser of the aggregate cost of the real
property, improvements and equipment or the
fair market value of that real property,
improvements and equipment; and
- The holder of which shall be entitled to
enforce payment of such Indebtedness solely
by resorting to the security for such
Mortgage, without any liability on the part
of Kohl's Corporation or a Restricted
Subsidiary for any deficiency;
* Mortgages existing on the date of the Indenture,
Mortgages on assets of a Restricted Subsidiary existing
on the date it became a subsidiary or Mortgages on the
assets of a subsidiary that is newly designated as a
Restricted Subsidiary if the Mortgage would have been
permitted under the provisions of this paragraph if
such Mortgage was created while the Subsidiary was a
Restricted Subsidiary;
* Mortgages in favor of Kohl's Corporation or a
Restricted Subsidiary;
* Mortgages securing only the Indebtedness issued
under the Indenture; and
* Mortgages to secure Indebtedness incurred to
extend, renew, refinance or replace Indebtedness
secured by any Mortgages referred to above, provided
that the principal amount of the extended, renewed,
refinanced or replaced Indebtedness does not exceed the
principal amount of Indebtedness so extended, renewed,
refinanced or replaced, plus transaction costs and
fees, and that any such Mortgage applies only to the
same property or assets subject to the prior permitted
Mortgage (and, in the case of real property,
improvements). (Section 4.5)
<PAGE>
As of May 1, 1999, we had less than $2.0 million
of Indebtedness secured by a Mortgage on an Operating
Property.
Restrictions on Sale and Leaseback Transactions.
The Indenture contains a covenant that we will not, and
will not permit our Restricted Subsidiaries to, enter
into any arrangement with any person providing for the
leasing by Kohl's Corporation or any Restricted
Subsidiary of any Operating Property or Operating Asset
that has been or is to be sold or transferred by Kohl's
Corporation or such Restricted Subsidiary to such
person with the intention of taking back a lease of
such property (a "Sale and Leaseback Transaction")
without equally and ratably securing the debt
securities (and, if we shall so determine, any other
Indebtedness ranking equally with the debt securities),
unless the terms of such sale or transfer have been
determined by our Board of Directors to be fair and
arms'-length and either:
* Within 180 days after the receipt of the proceeds
of the sale or transfer, Kohl's Corporation or any
Restricted Subsidiary, applies an amount equal to the
greater of the net proceeds of the sale or transfer or
the fair value of such Operating Property or Operating
Asset at the time of such sale or transfer to the
prepayment or retirement (other than any mandatory
prepayment or retirement) of our Senior Funded Debt; or
* Kohl's or such Restricted Subsidiary would be
entitled, at the effective date of the sale or
transfer, to incur Indebtedness secured by a Mortgage
on such Operating Property or Operating Assets, in an
amount at least equal to the Attributable Debt in
respect of the Sale and Leaseback Transaction, without
equally and ratably securing the debt securities
pursuant to the "Restrictions on Liens" described
above.
The foregoing restriction will not apply to:
- Any Sale and Leaseback Transaction for a term
of not more than three years including
renewals;
- Any Sale and Leaseback Transaction with
respect to Operating Property (and, with
respect to distribution centers, equipment
used directly in the operation of, or the
business conducted on, such Operating
Property) if a binding commitment with
respect thereto is entered into within three
years after the latest of (1) the date of
issuance of the first series of debt
securities under the Indenture (February 6,
1996) or (2) the date such Operating Property
was acquired;
- Any Sale and Leaseback Transaction with
respect to Operating Assets if a binding
commitment with respect thereto is entered
into within 180 days after the later of the
date such property was acquired and, if
applicable, the date such property was first
placed in operation; or
- Any Sale and Leaseback Transaction between
Kohl's Corporation and a Restricted
Subsidiary or between Restricted Subsidiaries
provided that the lessor shall be Kohl's
Corporation or a Wholly Owned Restricted
Subsidiary. (Section 4.6).
Exempted Debt. Notwithstanding the restrictions
in the Indenture on Mortgages and Sale and Leaseback
Transactions, Kohl's Corporation or its Restricted
Subsidiaries may, in addition to amounts permitted
under such restrictions, issue, assume or guarantee
Indebtedness secured by Mortgages, or enter into Sale
and Leaseback Transactions, provided that, after giving
effect thereto, the aggregate outstanding amount of all
such Indebtedness secured by Mortgages plus
Attributable Debt resulting from such Sale and
Leaseback Transactions does not exceed 15% of
Consolidated Net Tangible Assets. (Sections 4.5 and 4.6)
Certain Definitions
For purposes of the Indenture:
"Attributable Debt" in respect of a Sale and
Leaseback Transaction means, at the time of
determination, the present value (discounted at the
imputed rate of interest of such transaction determined
in accordance with generally
<PAGE>
accepted accounting
principles) 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).
"Capitalized Lease Obligations" means obligations
created pursuant to leases which are required to be
shown on the liability side of a balance sheet in
accordance with generally accepted accounting
principles.
"Consolidated Net Tangible Assets" means the total
amounts of assets (less depreciation and valuation
reserves and other reserves and items deductible from
gross book value of specific asset accounts under
generally accepted accounting principles) which under
generally accepted accounting principles would be
included on a balance sheet of Kohl's Corporation and
its Restricted Subsidiaries after deducting (1) all
liability items except Funded Debt, Capitalized Lease
Obligations, stockholders' equity and reserves for
deferred income taxes, (2) all goodwill, trade names,
trademarks, patents, favorable lease rights,
unamortized debt discount and expense and other like
intangibles (other than leasehold costs and investments
in so-called safe harbor leases), which in each such
case would be so included on such balance sheet, net of
accumulated amortization, and (3) all amounts which
would be so included on such balance sheet in respect
of Investments (less applicable reserves) in
Unrestricted Subsidiaries in excess of the amount of
such Investments at November 25, 1995 (approximately
$74.3 million).
"Funded Debt" means Indebtedness which matures
more than one year from the date of creation, or which
is extendable or renewable at the sole option of the
obligor so that it may become payable more than one
year from such date. Funded Debt does not include (1)
obligations created pursuant to leases, (2) 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
(3) any Indebtedness for the payment or redemption of
which money in the necessary amount shall have
deposited in trust either at or before the maturity
date thereof.
"Indebtedness" means indebtedness for borrowed
money and indebtedness under purchase money mortgages
or other purchase money liens or conditional sales or
similar title retention agreements, in each case where
such indebtedness has been created, incurred, or
assumed by such person to the extent such indebtedness
would appear as a liability upon a balance sheet of
such person prepared in accordance with generally
accepted accounting principles, guarantees by such
person of such indebtedness, and indebtedness for
borrowed money secured by any mortgage, pledge or other
lien or encumbrance upon property owned by such person,
even though such person has not assumed or become
liable for the payment of such indebtedness.
"Investment" means and includes any investment in
stock, evidences of indebtedness, loans or advances,
however made or acquired, but shall not include
accounts receivable of Kohl's Corporation or of any
Restricted Subsidiary arising from transactions in the
ordinary course of business, or any evidences of
Indebtedness, loans or advances made in connection with
the sale to any Subsidiary of accounts receivable of
Kohl's Corporation or any Restricted Subsidiary arising
from transactions in the ordinary course of business of
Kohl's Corporation or any Restricted Subsidiary.
"Mortgage" means any mortgage, security interest,
pledge, lien or other encumbrance.
"Operating Assets" means all merchandise
inventories, furniture and equipment (including all
transportation and warehousing equipment, store racks
and showcases but excluding office equipment and data
processing equipment) owned by Kohl's Corporation or a
Restricted Subsidiary.
"Operating Property" means all real property and
improvements thereon owned by Kohl's Corporation or a
Restricted Subsidiary and constituting, without
limitation, any store, warehouse, service center or
distribution center wherever located. This term does
not include any store, warehouse, service center or
distribution center that our Board of Directors
declares by resolution not to be of material importance
to the business of Kohl's Corporation and its
Restricted Subsidiaries.
<PAGE>
"Restricted Subsidiary" means Kohl's Department
Stores, Inc. and any other Subsidiary so designated by
the Board of Directors or duly authorized officers of
Kohl's Corporation in accordance with the Indenture
provided that (a) the Board of Directors or duly
authorized officers of Kohl's Corporation may, subject
to certain limitations, designate any Unrestricted
Subsidiary as a Restricted Subsidiary and any
Restricted Subsidiary (other than Kohl's Department
Stores, Inc.) as an Unrestricted Subsidiary and (b) any
Subsidiary of which the majority of the voting stock is
owned directly or indirectly by one or more
Unrestricted Subsidiaries shall be an Unrestricted
Subsidiary. As of the date of this offering memorandum,
Kohl's Department Stores, Inc. is the only Restricted
Subsidiary.
"Senior Funded Debt" means all Funded Debt of
Kohl's Corporation or any person (except Funded Debt,
the payment of which is subordinated to the payment of
the debt securities).
"Subsidiary" means any corporation of which at
least a majority of the outstanding stock having voting
power under ordinary circumstances to elect a majority
of the board of directors of said corporation or
business entity is at the time owned or controlled by
Kohl's Corporation, or by Kohl's Corporation and one or
more Subsidiaries, or by any one or more Subsidiaries.
"Unrestricted Subsidiary" means any Subsidiary
other than a Restricted Subsidiary.
Global Notes and Book-Entry System
Except as described below, the new debentures will
be represented by one or more Global Notes if the old
debentures are so represented. We will deposit the
Global Notes representing these new debentures with
DTC, and the Global Notes will be registered in the
name of DTC or its nominee.
DTC is a limited purpose trust company organized
under the New York Banking Law, a "banking
organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the
Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of
the Securities Exchange Act. DTC holds securities for
its participants and facilitates the clearance and
settlement of securities transactions between
participants through electronic book-entry changes in
accounts of its participants, which eliminates the need
for physical movement of certificates. Participants
include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other
organizations. Indirect access to the DTC system is
available to others such as banks, brokers, dealers and
trust companies that clear through or maintain a direct
or indirect custodial relationship with a participant
("indirect participants"). The rules applicable to DTC
and its participants are on file with the SEC.
Upon the issuance of the Global Notes, DTC or its
custodian will credit, on its internal system, the
respective principal amount of the individual
beneficial interests represented by the Global Notes to
the accounts of the persons who have accounts with DTC.
Ownership of beneficial interests in the Global Notes
will be limited to persons who have accounts with DTC
("participants") or persons who hold interests through
participants. Ownership of beneficial interests in the
Global Notes will be shown on, and the transfer of that
ownership will be effected only through, records
maintained by DTC or its nominee (with respect to
interests of participants) and the records of
participants (with respect to interests of persons
other than participants).
So long as DTC or its nominee is the registered
owner or holder of a Global Note, DTC or such nominee,
as the case may be, will be considered the sole record
owner or holder of the debentures represented by such
Global Note for all purposes under the Indenture and
the debentures. Except as set forth herein, owners of
beneficial interests in the Global Note will not be
entitled to have debentures represented by such Global
Note registered in their names, will not receive or be
entitled to receive physical delivery of debentures in
definitive certificated form, and will not be
considered holders of the debentures for any purposes
under the Indenture. Accordingly, each person owning a
beneficial interest in the Global Note must rely on the
procedures of DTC and, if such person is not a
participant, on the procedures of the participant
through which such person directly or indirectly owns
its interest, to exercise any rights of a holder under
the Indenture. We understand that under existing
industry practices, if we request any action of holders
or any owner of a beneficial interest in the Global
Notes desires to give any notice or take any action
that a holder is entitled to give or take under the
Indenture, DTC would authorize the participants holding
the relevant beneficial interest to give such notice or
take such action, and such participants would authorize
<PAGE>
beneficial owners owning through such participants to
give such notice or take such action or would otherwise
act upon the instructions of beneficial owners owning
through them.
Payments of the principal of, premium, if any, and
interest on the Global Note will be made to DTC or its
nominee, as the case may be, as the registered owner.
Neither we, the Trustee nor any paying agent will have
any responsibility or liability for any aspect of the
records relating to or payments made on account of
beneficial ownership interests in the Global Note or
for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
We expect that DTC or its nominee, upon receipt of
any payment of principal of, premium, if any, or
interest in respect of the Global Note will credit
participants' accounts with payments in amounts
proportionate to their respective beneficial ownership
interests in the principal amount of the Global Note,
as shown on the records of DTC or its nominee. We also
expect that payments by participants to owners of
beneficial interests in the Global Note held through
such participants will be governed by standing
instructions and customary practices, as is now the
case with securities held for the accounts of customers
registered in the names of nominees for such customers.
The participants will be responsible for such payments.
If DTC is at any time unwilling or unable to
continue as depositary or ceases to be a clearing
agency registered under the Exchange Act and we do not
appoint a successor depositary within ninety days, or
if there shall have occurred and be continuing an Event
of Default or an event which, with the giving of notice
or lapse of time, or both, would constitute an Event of
Default with respect to the debentures, then we will
issue in definitive registered form in exchange for the
Global Note representing the debentures. In addition,
we may at any time and in our sole discretion determine
not to have the debentures represented by one or more
Global Notes and, in such event, will issue debentures
in definitive registered form in exchange for all the
Global Notes. In any such instance, an owner of a
beneficial interest in a Global Note will be entitled
to physical delivery in definitive form of debentures
equal in principal amount to its beneficial interest
and to have the debentures registered in its name. We
expect that instructions for registering the debentures
in definitive form would be based upon directions
received from the DTC with respect to ownership of the
beneficial interests in the Global Note.
Although DTC has agreed to the procedures
described above in order to facilitate transfers of
interests in the Global Note among participants of DTC,
it is under no obligation to perform such procedures
and such procedures may be discontinued at any time.
Neither we nor the Trustee will have any responsibility
for the performance by DTC or its participants or
indirect participants of their respective obligations
under the rules and procedures governing their
operations.
We have been informed by DTC that its management
is aware that some computer applications, systems, and
the like for processing data that are dependent upon
calendar dates, including dates before, on, and after
January 1, 2000, may encounter "Year 2000 problems."
We have also been informed by DTC that it has informed
its participants and other members of the financial
community that it has developed and is implementing a
program so that its systems, as the same relate to the
timely payment of distributions (including principal
and income payments) to securityholders, book-entry
deliveries, and settlement of trades within DTC
continue to function appropriately. According to DTC,
this program includes a technical assessment and a
remediation plan, each of which is complete.
Additionally, DTC has informed us that its plan
includes a testing phase, which is expected to be
completed within appropriate time frames.
However, we have been informed by DTC that its
ability to perform properly its services is also
dependent upon other parties, including but not limited
to issuers and their agents, as well as third party
vendors from whom DTC licenses software and hardware,
and third party vendors on whom DTC relies for
information or the provision of services, including
telecommunications and electrical utility service
providers, among others. DTC has informed us that it
is contacting (and will continue to contact) third
party vendors from whom DTC acquires services to: (1)
impress upon them the importance of such services being
Year 2000 compliant; and (2) determine the extent of
their efforts for Year 2000 remediation (and, as
appropriate, testing) of their services. In addition,
DTC has informed us that it is in the process of
developing such contingency plans as it deems appropriate.
<PAGE>
According to DTC, the foregoing information with
respect to DTC has been provided by it for
informational purposes only and is not intended to
serve as a representation, warranty, or contract
modification of any kind.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following discussion summarizes the material
federal income tax considerations of the issuance of
the new debentures and the exchange offer. This
summary does not discuss all aspects of federal income
taxation that may be relevant to particular holders of
new debentures, especially in light of a holder's
personal investment circumstances, or to certain types
of holders subject to special treatment under the
federal income tax laws (for example, life insurance
companies, tax-exempt organizations and foreign
corporations and individuals who are not citizens or
residents of the United States) and does not discuss
any aspects of state, local or foreign taxation. This
discussion is limited to those holders who will hold
the new debentures as "capital assets" (generally,
property held for investment) within the meaning of
Section 1221 of the Internal Revenue Code of 1986, as
amended (the "Code").
This summary is based upon laws, regulations,
rulings and decisions now in effect and upon proposed
regulations, all of which are subject to change
(possibly with retroactive effect) by legislation,
administrative action or judicial decision.
Exchange Offer. The exchange of old debentures
for new debentures pursuant to the exchange offer
should not be treated as a taxable "exchange" because
the new debentures should not be considered to differ
materially in kind or extent from the old debentures.
Rather, the new debentures received by a holder of the
old debentures should be treated as a continuation of
the old debentures. As a result, there should be no
gain or loss to holders exchanging the old debentures
for the new debentures pursuant to the exchange offer.
Interest. A holder will be required to include in
gross income the stated interest on the old debentures
or the new debentures in accordance with the holder's
method of tax accounting. In addition, a holder will
be required to include in gross income amortization of
the original issuance discount attributable to the old
debentures (which is the difference between the face
amount of the old debentures and their original
purchase price). Because the tax basis of the old
debentures carries over to the new debentures
(discussed below), the amortization of the original
issuance discount will apply to the new debentures.
Tax Basis. Generally, a holder's tax basis in a
debenture will initially be the holder's purchase price
for the debenture, and will be increased by the amount
of amortization of original issuance discount, and will
be decreased by the amount of any principal payments
received. If a holder exchanges an old debenture for a
new debenture pursuant to the exchange offer, the tax
basis of the new debenture immediately after such
exchange should equal the holder's tax basis in the old
debenture immediately prior to the exchange.
Sale. The sale, exchange or other disposition of
a debenture (other than pursuant to the exchange offer)
generally will be a taxable event. A holder generally
will recognize gain or loss equal to the difference
between (a) the amount of cash plus the fair market
value of any property received upon such sale, exchange
or other taxable disposition of a debenture (other than
in respect of accrued interest on the debenture) and
(b) the holder's adjusted tax basis in such debenture.
Such gain or loss will be capital gain or loss and
would be long-term capital gain or loss if the notes
were held by the holder for the applicable holding
period (currently more than one year) at the time of
such sale or other disposition. The holding period of
each new debenture would include the holding period of
the old debentures exchanged therefor.
Purchasers of Debentures at Other than Original
Issuance. The above summary does not discuss special
rules which may affect the treatment of purchasers that
acquire debentures other than at original issuance,
including those provisions of the Code relating to the
treatment of "market discount" and "acquisition
premium." Any such purchaser should consult its tax
advisor as to the consequences to him of the
acquisition, ownership and disposition of debentures.
<PAGE>
Backup Withholding. Unless a holder or other
payee provides his correct taxpayer identification
number (employer identification number or social
security number) to us (as payor) and certifies that
such number is correct, under the federal income tax
backup withholding rules, generally 31% of (a) the
interest paid on the debentures, and (b) proceeds of
sale or other disposition of the debentures must be
withheld and remitted to the United States Department
of Treasury. Therefore, each holder should complete
and sign the Substitute Form W-9 so as to provide the
information and certification necessary to avoid backup
withholding. However, certain exchanging holders
(including, among others, certain foreign individuals)
are not subject to these backup withholding and
reporting requirements. In order for a foreign
individual to qualify as an exempt foreign recipient,
that exchanging holder must submit a statement, signed
under penalties of perjury, attesting to that
individual's exempt foreign status.
Withholding is not an additional federal income
tax. Rather, the federal income tax payable by a
person subject to 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.
The foregoing summary is included for general
information only. Each holder of debentures should
consult its tax advisor as to the specific tax
consequences to it of the exchange offer, including the
application of and effect of state, local, foreign and
other tax laws.
PLAN OF DISTRIBUTION
Each broker-dealer that receives new debentures
for its own account as a result of market-making
activities or other trading activities in connection
with the exchange offer must acknowledge that it will
deliver a prospectus in connection with any resale of
such new debentures. 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 new
debentures received in exchange for old debentures
where such old debentures were acquired as a result of
market-making activities or other trading activities.
We will receive no proceeds in connection with the
exchange offer or any sale of new debentures by broker-
dealers. New debentures received by broker-dealers for
their own account pursuant to 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 new
debentures or a combination of such methods of resale,
at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or
negotiated prices. Any such resale 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 any such broker-dealers
or the purchasers of any such new debentures. Any
broker-dealer that resells new debentures that were
received by it for its own account pursuant to the
exchange offer and any broker or dealer that
participates in a distribution of such new debentures
may be deemed to be an "underwriter" within the meaning
of the Securities Act and any profit on any such resale
of new debentures and any commissions or concessions
received by any such 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.
LEGAL MATTERS
Certain legal matters or in connection with the
new debentures will be passed upon for us by Godfrey &
Kahn, S.C., Milwaukee, Wisconsin. Mr. Peter M.
Sommerhauser is a director of Kohl's and a shareholder
and a member of the Management Committee of Godfrey &
Kahn, S.C. As of March 31, 1999, Mr. Sommerhauser had
voting and investment control of 16,721,173 shares of
common stock of Kohl's or 10.3% of the outstanding shares.
<PAGE>
EXPERTS
Ernst & Young LLP, independent auditors, have
audited our consolidated financial statements and
schedule appearing in our Annual Report on Form 10-K
for the year ended January 30, 1999, as set forth in
their report, which is incorporated by reference in
this prospectus and elsewhere in the registration
statement. Our consolidated financial statements and
schedule are incorporated by reference in reliance on
Ernst & Young LLP's report, given on their authority as
experts in accounting and auditing.
<PAGE>
$200,000,000
Exchange Offer
Kohl's Corporation
7 1/4% Debentures due June 1, 2029
____________________
PROSPECTUS
____________________
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
Section 180.0851 of the Wisconsin Business
Corporation Law (the "WBCL") requires the Company to
indemnify a director or officer, to the extent such
person is successful on the merits or otherwise in the
defense of a proceeding for all reasonable expenses
incurred in the proceeding, if such person was a party
to such proceeding because he or she was a director or
officer of the Company unless it is determined that he
or she breached or failed to perform a duty owed to the
Company and such breach or failure to perform
constitutes: (i) a willful failure to deal fairly with
the Company or its shareholders in connection with a
matter in which the director or officer has a material
conflict of interest; (ii) a violation of criminal law,
unless the director or officer had reasonable cause to
believe his or her conduct was unlawful; (iii) a
transaction from which the director or officer derived
an improper personal profit; or (iv) willful
misconduct.
Section 180.0858 of the WBCL provides that subject
to certain limitations, the mandatory indemnification
provisions do not preclude any additional right to
indemnification or allowance of expenses that a
director or officer may have under the article of
incorporation or bylaws of the Company, a written
agreement between the director or officer and the
Company, or a resolution of the Board of Directors or
the shareholders.
Unless otherwise provided in the Company's
articles of incorporation or bylaws, or by written
agreement between the director or officer and the
Company, an officer or director seeking indemnification
is entitled to indemnification if approved in any of
the following manners as specified in Section 180.0855
of the WBCL: (i) by majority vote of a disinterested
quorum of the board of directors; (ii) by independent
legal counsel chosen by a quorum of disinterested
directors or its committee; (iii) by a panel of three
arbitrators (one of which is chosen by a quorum of
disinterested directors); (iv) by the vote of the
shareholders; (v) by a court; or (vi) by any other
method permitted in Section 180.0858 of the WBCL.
Reasonable expenses incurred by a director or
officer who is a party to a proceeding may be
reimbursed by the Company, pursuant to Section 180.0853
of the WBCL, at such time as the director or officer
furnishes to the Company written affirmation of his or
her good faith that he or she has not breached or
failed to perform his or her duties and written
confirmation to repay any amounts advanced if it is
determined that indemnification by the Company is not
required.
Section 180.0859 of the WBCL provides that it is
the public policy of the State of Wisconsin to require
or permit indemnification, allowance of expenses or
insurance to the extent required or permitted under
Sections 180.0850 or 180.0858 of the WBCL for any
liability incurred in connection with a proceeding
involving a federal or state statute, rule or
regulation regulating the offer, sale or purchase of
securities.
As permitted by Section 180.0858, the Company has
adopted indemnification provisions in its By-Laws which
closely track the statutory indemnification provisions
with certain exceptions. In particular, Article VIII
of the Company's By-Laws, among other items, provides
(i) that an individual shall be indemnified unless it
is proven by a final judicial adjudication that
indemnification is prohibited and (ii) payment or
reimbursement of expenses, subject to certain
limitations, will be mandatory rather than permissive.
Through insurance, the officers and directors of
the Company are also insured for acts or omissions
related to the conduct of their duties. The insurance
covers certain liabilities which may arise under the
Securities Act of 1933, as amended.
Under Section 180.0828 of the WBCL, a director of
the Company is not personally liable for breach of any
duty resulting solely from his or her status as a
director, unless it shall be proved that the director's
conduct constituted conduct described in the first
paragraph of this item.
<PAGE>
ITEM 21. Exhibits and Financial Statement Schedules
(a) Exhibits
1 Purchase Agreement, dated as of May
26, 1999, between Kohl's Corporation,
Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated,
Morgan Stanley & Co. Incorporated, BNY
Capital Markets, Inc. and Banc One Capital
Markets, Inc.
4.1 Indenture, dated December 1, 1995, between Kohl's
Corporation and The Bank of New York, as trustee,
incorporated herein by reference to exhibit 4.3 of the
Company's Annual Report on Form 10-K for the fiscal
year ended February 3, 1996.
4.2 First Supplemental Indenture, dated June 1, 1999,
between Kohl's Corporation and The Bank of New York, as
trustee.
4.3 Registration Rights Agreement, dated as of
June 1, 1999, between Kohl's Corporation, Merill
Lynch, Fenner & Smith Incorporated, Morgan Stanley &
Co. Incorporated, BNY Capital Markets, Inc. and Banc
One Capital Markets, Inc.
5 Opinion of Godfrey & Kahn, S.C. as to the legality
of the securities being registered.
12 Computation of Ratio of Earnings to Fixed
Charges, incorporated herein by reference
to exhibit 12.1 of the Company's Quarterly
Report on Form 10-Q for the fiscal quarter
ended May 1, 1999.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Godfrey & Kahn, S.C. (contained in Exhibit 5).
24 Powers of attorney (contained on the
signature page to this Registration Statement).
25 Form T-1 Statement of eligibility under
the Trust Indenture Act of 1939 of The
Bank of New York.
99.1 Form of Letter of Transmittal.
99.2 Form of Letter to Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
99.3 Form of Letter to Clients.
99.4 Form of Notice of Guaranteed Delivery.
(b) Not Applicable.
(c) Not Applicable.
ITEM 22. Undertakings.
The 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;
<PAGE>
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the 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 low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) 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 the Registration Statement or any material
change to such information in the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933,
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.
(4) That for purposes of determining any liability
under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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.
(5) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may
be permitted to directors, officers and
controlling persons of the registrant,
pursuant to the provisions described in Item
20, or otherwise, the registrant has been
advised that in the opinion of the Securities
and Exchange Commission, such indemnification
is against public policy as expressed in the
Act and is, therefore, unenforceable. In the
event that the 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 Act and will be governed
by the final adjudication of such issue.
(6) 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 after the
effective date of this Registration Statement
through the date of responding to the request.
(7) To supply by means of a post-effective amendment
all information concerning a transaction, and the
company being acquired involved therein, that was not
the subject of and included in this Registration
Statement when it became effective.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the registrant has duly caused this
Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City
of Menomonee Falls, State of Wisconsin, on July 15, 1999.
KOHL'S CORPORATION
By: /s/ William S. Kellogg
------------------------
William S. Kellogg
Chairman of the Board
POWER OF ATTORNEY
Each person whose signature appears below appoints
William S. Kellogg, R. Lawrence Montgomery and Kevin
Mansell, and each of them, as his true and lawful
attorney-in-fact and agent with full power of
substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to
sign any or all amendments (including post-effective
amendments), to this Registration Statement (or any
other Registration Statement for the same offering that
is to be effective upon filing pursuant to Rule 462(b)
under the Securities Act of 1933, as amended) and to
file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities
and Exchange Commission, and any other regulatory
authority, granting unto each 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 foregoing, as fully to all
intents and purposes as he might or could do in person,
hereby ratifying and confirming all that each said
attorney-in-fact and agent, or his substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed by
the following persons in the capacities and on the
dates indicated:
/s/William S. Kellogg /s/R. Lawrence Montgomery
- --------------------------- -----------------------------
William S. Kellogg R. Lawrence Montgomery
Chairman and Director Vice Chairman, Chief Executive
Officer and Director
/s/Kevin Mansell /s/Arlene Meier
- -------------------------- -------------------------------------
Kevin Mansell Arlene Meier, Chief Financial Officer
President and Director (Principal Financial and Accounting
Officer)
/s/Jay Baker /s/James Ericson
- ------------------------- -----------------------------------
Jay Baker James Ericson
Director Director
- ------------------------- -----------------------------------
John F. Herma Frank V. Sica
Director Director
/s/Peter M. Sommerhauser
- ------------------------ -----------------------------------
Herbert Simon Peter M. Sommerhauser
Director Director
- -------------------------
R. Elton White
Director
Dated: July 15, 1999
Exhibit 1
EXECUTION COPY
KOHL'S CORPORATION
(a Wisconsin corporation)
7 1/4% Debentures due 2029
PURCHASE AGREEMENT
Dated: May 26, 1999
<PAGE>
Table of Contents
SECTION 1. Representations and Warranties by the Company 2
(a) Representations and Warranties 2
(i) Offering Memorandum 2
(ii) Incorporated Documents 3
(iii) Independent Accountants 3
(iv) Financial Statements 3
(v) No Material Adverse Change in Business 3
(vi) Good Standing of the Company 4
(vii) Good Standing of Designated Subsidiaries 4
(viii) Capitalization 4
(ix) Authorization of Agreement 4
(x) Authorization of the Indenture 4
(xi) Authorization of the Supplemental Indenture 4
(xii) Authorization of the Securities 5
(xiii) Authorization of the Registration Rights Agreement 5
(xiv) Absence of Defaults and Conflicts;
Absence of Further Requirements 5
(xv) Absence of Proceedings 5
(xvi) Possession of Licenses and Permits 6
(xvii) Environmental Laws 6
(xviii)Investment Company Act 6
xix) Similar Offerings 6
(xx) Rule 144A Eligibility 6
(xxi) No General Solicitation 7
(xxii) No Registration Required 7
(xxiii)Reporting Company 7
(xxiv) No Directed Selling Efforts 7
(xxv) No Stabilization or Manipulation 7
(xxvi) Year 2000. 7
(b) Officer's Certificates 8
SECTION 2. Sale and Delivery to Initial Purchasers; Closing 8
(a) Securities 8
(b) Payment 8
(c) Denominations; Registration 8
SECTION 3. Covenants of the Company 9
(a) Offering Memorandum 9
(b) Notice and Effect of Material Events 9
(c) Amendment to Offering Memorandum and Supplements 9
(d) Qualification of Securities for Offer and Sale 9
(e) Rating of Securities 10
(f) DTC 10
<PAGE>
(g) Use of Proceeds 10
(h) Restriction on Sale of Securities 10
SECTION 4. Payment of Expenses 10
(a) Expenses 10
(b) Termination of Agreement 11
SECTION 5. Conditions of Initial Purchasers' Obligations 11
(a) Opinion of Counsel for Company 11
(b) Opinion of General Counsel for Company 11
(c) Opinion of Counsel for Initial Purchasers 11
(d) Officers' Certificate 11
(e) Accountants' Comfort Letter 12
(f) Bring-down Comfort Letter 12
(g) Maintenance of Rating 12
(h) Additional Documents 12
(i) Termination of Agreement 12
SECTION 6. Subsequent Offers and Resales of the Securities 13
(a) Offer and Sale Procedures 13
(i) Offers and Sales only to Qualified Institutional Buyers
and Institutional Accredited Investors 13
(ii) No General Solicitation 13
(iii) No Directed Selling Efforts 13
(iv) Purchases by Non-Bank Fiduciaries 13
(v) Subsequent Purchaser Notification 13
(vi) Minimum Denomination Amount 14
(vii) Restrictions on Transfer 14
(b) Covenants of the Company 14
(i) Integration 14
(ii) Rule 144A Information 14
(iii) Restriction on Resales 14
(c) Qualified Institutional Buyer 15
(d) Resale Pursuant to Rule 903 of Regulation S or Rule 144A 15
SECTION 7. Indemnification and Contribution 15
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery 18
SECTION 9. Termination of Agreement 19
(a) Termination; General 19
(b) Liabilities 19
SECTION 10. Default by One or More of the Initial Purchasers 19
<PAGE>
SECTION 11. Notices 20
SECTION 12. Parties 20
SECTION 13. GOVERNING LAW AND TIME 20
SECTION 14. Effect of Headings 20
SCHEDULES
Schedule A - List of Initial Purchasers Sch A-1
Schedule B - Pricing Information Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel A-1
Exhibit B - Form of Opinion of Company's General Counsel B-1
ANNEXES
Annex A - Form of Accountants' Comfort Letter Annex A-1
<PAGE>
KOHL'S CORPORATION
(a Wisconsin corporation)
$200,000,000
7 1/4% Debentures due 2029
PURCHASE AGREEMENT
May 26, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
BNY Capital Markets, Inc.
Banc One Capital Markets, Inc.
as Representative(s) of the several Initial Purchasers
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Kohl's Corporation, a Wisconsin corporation (the
"Company"), confirms its agreement with Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch") and each of the other Initial
Purchasers named in Schedule A hereto (collectively,
the "Initial Purchasers", which term shall also include
any initial purchaser substituted as hereinafter
provided in Section 11 hereof), for whom Merrill Lynch,
Morgan Stanley & Co. Incorporated, BNY Capital Markets,
Inc. and Banc One Capital Markets, Inc., acting as
representative(s) (in such capacity, the
"Representative(s)"), with respect to the issue and
sale by the Company and the purchase by the Initial
Purchasers, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule
A of $200,000,000 aggregate principal amount of the
Company's 7 1/4% Debentures due 2029 (the "Securities").
The Securities are to be issued pursuant to an
indenture dated as of December 1, 1995 (the
"Indenture") , as amended by the First Supplemental
Indenture dated as of June 1, 1999 (the "Supplemental
Indenture") between the Company and The Bank of New
York, as trustee (the "Trustee"). Securities issued in
book-entry form will be issued to Cede & Co. as nominee
of The Depository Trust Company ("DTC") pursuant to a
letter agreement, to be dated as of the Closing Time
(as defined in Section 2(b)) (the "DTC Agreement"),
among the Company, the Trustee and DTC.
<PAGE>
The Company understands that the Initial
Purchasers propose to make an offering of the
Securities on the terms and in the manner set forth
herein and agrees that the Initial Purchasers may
resell, subject to the conditions set forth herein, all
or a portion of the Securities to purchasers
("Subsequent Purchasers") at any time after this
Agreement has been executed and delivered. The
Securities are to be offered and sold through the
Initial Purchasers without being registered under the
Securities Act of 1933, as amended (the "1933 Act"), in
reliance upon exemptions therefrom. Pursuant to the
terms of the Securities, the Indenture and the
Supplemental Indenture, investors that acquire
Securities may only resell or otherwise transfer such
Securities if such Securities are hereafter registered
under the 1933 Act or if an exemption from the
registration requirements of the 1933 Act is available
(including the exemption afforded by Rule 144A ("Rule
144A") or Regulation S ("Regulation S") of the rules
and regulations promulgated under the 1933 Act by the
Securities and Exchange Commission (the "Commission")).
The Company has prepared and delivered to each
Initial Purchaser copies of a preliminary offering
memorandum dated May 20, 1999 (the "Preliminary
Offering Memorandum") and has prepared and will deliver
to each Initial Purchaser, on the date hereof or the
next succeeding day, copies of a final offering
memorandum dated May 26, 1999 (the "Final Offering
Memorandum"), each for use by such Initial Purchaser in
connection with its solicitation of purchases of, or
offering of, the Securities. "Offering Memorandum"
means, with respect to any date or time referred to in
this Agreement, the most recent offering memorandum
(whether the Preliminary Offering Memorandum or the
Final Offering Memorandum, or any amendment or
supplement to either such document), including exhibits
thereto and any documents incorporated therein by
reference, which has been prepared and delivered by the
Company to the Initial Purchasers in connection with
their solicitation of purchases of, or offering of, the
Securities.
All references in this Agreement to financial
statements and schedules and other information which is
"contained," "included" or "stated" in the Offering
Memorandum (or other references of like import) shall
be deemed to mean and include all such financial
statements and schedules and other information which
are incorporated by reference in the Offering
Memorandum; and all references in this Agreement to
amendments or supplements to the Offering Memorandum
shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the
"1934 Act") which is incorporated by reference in the
Offering Memorandum.
SECTION 1. Representations and Warranties by
the Company.
(a) Representations and Warranties. The Company
represents and warrants to each Initial Purchaser as of
the date hereof and as of the Closing Time referred to
in Section 2(b) hereof, and agrees with each Initial
Purchaser, as follows:
(i) Offering Memorandum. The Offering
Memorandum does not, and at the Closing Time will
not, include an untrue statement of a material
fact or omit to state a
<PAGE>
material fact necessary in
order to make the statements therein, in the light
of the circumstances under which they were made,
not misleading; provided that this representation,
warranty and agreement shall not apply to
statements in or omissions from the Offering
Memorandum made in reliance upon and in conformity
with information furnished to the Company in
writing by any Initial Purchaser through Merrill
Lynch expressly for use in the Offering
Memorandum.
(ii) Incorporated Documents. The Offering
Memorandum as delivered from time to time shall
incorporate by reference the most recent Annual
Report of the Company on Form 10-K filed with the
Commission and each Quarterly Report of the
Company on Form 10-Q and each Current Report of
the Company on Form 8-K filed with the Commission
since the filing of the end of the fiscal year to
which such Annual Report relates. The documents
incorporated or deemed to be incorporated by
reference in the Offering Memorandum at the time
they were or hereafter are filed with the
Commission complied and will comply in all
material respects with the requirements of the
1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act
Regulations"), and, when read together with the
other information in the Offering Memorandum, at
the time the Offering Memorandum was issued and at
the Closing Time, did not and will not include an
untrue statement of a material fact or omit to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading.
(iii) Independent Accountants. The
accountants who certified the financial statements
and supporting schedules included in the Offering
Memorandum are independent public accountants with
respect to the Company and its subsidiaries within
the meaning of Regulation S-X under the 1933 Act.
(iv) Financial Statements. The financial
statements, together with the related schedules
and notes, included in the Offering Memorandum
present fairly the financial position of the
Company and its consolidated subsidiaries at the
dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company
and its consolidated subsidiaries for the periods
specified; said financial statements have been
prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved,
except as stated therein, and, with respect to
interim financial statements, subject to year-end
adjustments and the absence of complete footnotes.
The supporting schedules, if any, included in the
Offering Memorandum present fairly in accordance
with GAAP the information required to be stated
therein. The selected financial data and the
summary financial information included in the
Offering Memorandum present fairly the information
shown therein and have been compiled on a basis
consistent with that of the audited financial
statements included in the Offering Memorandum.
(v) No Material Adverse Change in Business.
There has not occurred any material adverse
change, or any development involving a prospective
material adverse
<PAGE>
change in the condition,
financial or otherwise, or in the earnings,
business or operations of the Company and its
subsidiaries, taken as a whole ("Material Adverse
Effect"), from
that set forth in the Offering Memorandum
(exclusive of any amendments or supplements
thereto effected subsequent to the date of this
Agreement).
(vi) Good Standing of the Company. The
Company is validly existing as a corporation in
good standing under the laws of the State of
Wisconsin, has the corporate power and authority
to own its property and to conduct its business as
described in the Offering Memorandum and is duly
qualified to transact business and is in good
standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of
property requires such qualification, except to
the extent that the failure to be so qualified or
be in good standing would not have a Material
Adverse Effect.
(vii) Good Standing of Designated
Subsidiaries. Kohl's Department Stores, Inc., a
Delaware corporation, Kohl's Receivables
Corporation, a Wisconsin corporation, Kohl's
Investment Corp., a Delaware corporation, Kohl's
Pennsylvania, Inc., a Pennsylvania corporation and
Kohl's Illinois, Inc., a Nevada corporation, are
the only "significant subsidiaries" of the Company
(as such term is defined under Regulation S-X) and
each is validly existing as a corporation in good
standing under the laws of the State of its
incorporation, has the corporate power and
authority to own its property and to conduct its
business as described in the Offering Memorandum
and is duly qualified to transact business and is
in good standing in each jurisdiction in which the
conduct of its business or its ownership or
leasing of property requires such qualification,
except to the extent that the failure to be so
qualified or be in good standing would not have a
Material Adverse Effect.
(viii) Capitalization. All the
outstanding shares of common stock have been duly
authorized and are validly issued, fully paid and,
subject to Wisconsin Business Corporation Law
180.0622(2)(b), nonassessable.
(ix) Authorization of Agreement. This
Agreement has been duly authorized, executed and
delivered by the Company.
(x) Authorization of the Indenture. The
Indenture has been duly authorized, executed and
delivered by the Company and is a valid and
binding agreement of the Company, enforceable in
accordance with its terms, as limited by (i)
bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws
affecting the enforcement of creditors' rights and
(ii) the effect of general principles of equity
(regardless of whether enforceability is
considered in a proceeding in equity or at law).
(xi) Authorization of the Supplemental
Indenture. The Supplemental Indenture has been
duly authorized by the Company, and, when executed
and delivered by the Company and the Trustee, will
constitute a valid and binding agreement of the
<PAGE>
Company, enforceable in accordance with its terms,
as limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or
similar laws affecting the enforcement of
creditors' rights and (ii) the effect of general
principles of equity (regardless of whether
enforceability is considered in a proceeding in
equity or at law).
(xii) Authorization of the Securities.
The Securities have been duly authorized and, when
executed and authenticated in accordance with the
provisions of the Indenture and the Supplemental
Indenture delivered to and paid for by the Initial
Purchasers in accordance with the terms of the
Purchase Agreement, will be entitled to the
benefits of the Indenture and Supplemental
Indenture and will be valid and binding
obligations of the Company, enforceable in
accordance with their terms, as limited by (i)
bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws
affecting the enforcement of creditors' rights and
(ii) the effect of general principles of equity
(regardless of whether enforceability is
considered in a proceeding in equity or at law).
(xiii) Authorization of the Registration
Rights Agreement. The Registration Rights
Agreement has been duly authorized by the Company,
and, when executed and delivered by the Company,
will constitute a valid and binding agreement of
the Company, enforceable in accordance with its
terms, as limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or
similar laws affecting the enforcement of
creditors' rights and (ii) the effect of general
principles of equity (regardless of whether
enforceability is considered in a proceeding in
equity or at law); provided that no representation
is made with respect to Section 5 of the
Registration Rights Agreement.
(xiv) Absence of Defaults and Conflicts;
Absence of Further Requirements. The execution
and delivery by the Company of, and the
performance by the Company of its obligations
under, this Agreement, the Indenture, the
Supplemental Indenture, the Securities and the
Registration Rights Agreement will not contravene
any provision of applicable federal or state law
or the articles of incorporation or by-laws of the
Company or any agreement or other instrument
binding upon the Company or any of its
subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or any
judgment, order or decree of any federal or state
governmental body, agency or court having
jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order
of or qualification with any federal or state
governmental body or agency is required for the
performance by the Company of its obligations
under this Agreement, the Indenture, the
Supplemental Indenture, the Securities and the
Registration Rights Agreement, except such as may
be required by the securities or Blue Sky laws of
the various states in connection with the offer
and sale of the Securities or by the 1933 Act and
the Trust Indenture Act of 1939, as amended (the
"1939 Act"), in connection with the exchange offer
as contemplated by the Registration Rights
Agreement.
(xv) Absence of Proceedings. There are no
legal or governmental proceedings pending, and the
Company does not know of any proceedings that are
threatened, to
<PAGE>
which the Company or any of its
subsidiaries is a party or to which any of the
properties of the Company or any of its
subsidiaries is subject that are required to be
described in the documents incorporated by
reference in the Offering Memorandum and are not
so described or any statutes, regulations,
material contracts or other documents that are
required to be described in the documents
incorporated by reference in the Offering
Memorandum or to be filed or incorporated by
reference as exhibits to such incorporated
documents that are not described, filed or
incorporated as required.
(xvi) Possession of Licenses and Permits.
Each of the Company and its subsidiaries has all
necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and
has made all declarations and filings with, all
federal, state, local and other governmental,
administrative or regulatory authorities, all self-
regulatory organizations and all courts and other
tribunals, to own, lease, license and use its
properties and assets and to conduct its business
in the manner described in the Offering
Memorandum, except to the extent that the failure
to obtain or file would not have a Material
Adverse Effect.
(xvii) Environmental Laws. The Company
and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and
local laws and regulations relating to the
protection of human health and safety, the
environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received all permits, licenses
or other approvals required of them under
applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance
with all terms and conditions of any such permit,
license or approval, except where such
noncompliance with Environmental Laws, failure to
receive required permits, licenses or other
approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a
Material Adverse Effect.
(xviii) Investment Company Act. The
Company is not an "investment company" or an
entity "controlled" by an "investment company", as
such terms are defined in the Investment Company
Act of 1940, as amended.
(xix) Similar Offerings. Neither the
Company nor any of its affiliates, as such term is
defined in Rule 501(b) under the 1933 Act (each,
an "Affiliate"), has, directly or indirectly,
solicited any offer to buy, sold or offered to
sell or otherwise negotiated in respect of, or
will solicit any offer to buy, sell or offer to
sell or otherwise negotiate in respect of, in the
United States or to any United States citizen or
resident, any security which is or would be
integrated with the sale of the Securities in a
manner that would require the Securities to be
registered under the 1933 Act.
(xx) Rule 144A Eligibility. The Securities
are eligible for resale pursuant to Rule 144A and
will not be, at the Closing Time, of the same
class as securities listed on a
<PAGE>
national securities exchange registered under Section 6
of the 1934 Act, or quoted in a U.S. automated
interdealer quotation system.
(xxi) No General Solicitation. None of
the Company, its Affiliates or any person acting
on its or any of their behalf (other than the
Initial Purchasers, as to whom the Company makes
no representation) has engaged or will engage, in
connection with the offering of the Securities, in
any form of general solicitation or general
advertising within the meaning of Rule 502(c)
under the 1933 Act.
(xxii) No Registration Required. Subject
to compliance by the Initial Purchasers with the
representations, warranties and agreements set
forth in Sections 2 and 6 and the procedures and
agreements set forth in Section 6 hereof, it is
not necessary in connection with the offer, sale
and delivery of the Securities to the Initial
Purchasers and to each Subsequent Purchaser in the
manner contemplated by this Agreement and the
Offering Memorandum to register the Securities
under the 1933 Act or to qualify the Indenture
under the 1939 Act.
(xxiii) Reporting Company. The Company is
subject to the reporting requirements of Section
13 or Section 15(d) of the 1934 Act.
(xxiv) No Directed Selling Efforts. With
respect to those Securities sold in reliance on
Regulation S, (A) none of the Company, its
Affiliates or any person acting on its or their
behalf (other than the Initial Purchasers, as to
whom the Company makes no representation) has
engaged or will engage in any directed selling
efforts within the meaning of Regulation S and (B)
each of the Company and its Affiliates and any
person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company
makes no representation) has complied and will
comply with the offering restrictions requirement
of Regulation S.
(xxv) No Stabilization or Manipulation.
None of the Company, its subsidiaries, or any of
their respective officers, directors or
controlling persons has taken, directly or
indirectly, any action designed to cause or to
result in, or that has constituted or might
reasonably be expected to constitute, the
stabilization or manipulation of the price of any
security of the Company to facilitate the sale or
resale of the Securities.
(xxvi) Year 2000. The Company has reviewed
its operations and that of its subsidiaries to
evaluate the extent to which the business or
operations of the Company or any of its
subsidiaries will be affected by the Year 2000
Problem (that is, any significant risk that
computer hardware or software applications used by
the Company and its subsidiaries will not, in the
case of dates or time periods occurring after
December 31, 1999, function at least as
effectively as in the case of dates or time
periods occurring prior to January 1, 2000); as a
result of such review, (i) the Company has no
reason to believe, and does not believe, that (A)
there are any issues related to the Company's
preparedness to address the Year 2000 Problem that
are of a character required to be described or
<PAGE>
referred to in the documents incorporated by
reference in the Offering Memorandum which have
not been accurately described in such documents or
the Offering Memorandum and (B) the Year 2000
Problem will have a Material Adverse Effect or
result in any material loss or interference with
the business or operations of the Company and its
subsidiaries, taken as a whole; and (ii) the
Company reasonably believes, after due inquiry,
that the suppliers, vendors, customers or other
material third parties used or served by the
Company and such subsidiaries are addressing or
will address the Year 2000 Problem in a timely
manner, except to the extent that a failure to
address the Year 2000 Problem by any supplier,
vendor, customer or material third party would not
have a Material Adverse Effect.
(b) Officer's Certificates. Any certificate
signed by any officer of the Company or any of its
subsidiaries delivered to the Representative(s) or to
counsel for the Initial Purchasers shall be deemed a
representation and warranty by the Company to each
Initial Purchaser as to the matters covered thereby.
SECTION 2. Sale and Delivery to Initial
Purchasers; Closing.
(a) Securities. On the basis of the
representations and warranties herein contained and
subject to the terms and conditions herein set forth,
the Company agrees to sell to each Initial Purchaser,
severally and not jointly, and each Initial Purchaser,
severally and not jointly, agrees to purchase from the
Company, at the price set forth in Schedule B, the
aggregate principal amount of Securities set forth in
Schedule A opposite the name of such Initial Purchaser,
plus any additional principal amount of Securities
which such Initial Purchaser may become obligated to
purchase pursuant to the provisions of Section 10
hereof.
(b) Payment. Payment of the purchase price for,
and delivery of certificates for, the Securities shall
be made at the office of Shearman & Sterling, 599
Lexington Avenue, New York, New York 10022, or at such
other place as shall be agreed upon by the
Representative(s) and the Company, at 9:00 A.M.
(eastern time) on the third business day after the date
hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later
than ten business days after such date as shall be
agreed upon by the Representative(s) and the Company
(such time and date of payment and delivery being
herein called the "Closing Time").
Payment shall be made to the Company by wire
transfer of immediately available funds to a bank
account designated by the Company, against delivery to
the Representative(s) for the respective accounts of
the Initial Purchasers of certificates for the
Securities to be purchased by them. It is understood
that each Initial Purchaser has authorized the
Representative(s), for its account, to accept delivery
of, receipt for, and make payment of the purchase price
for, the Securities which it has agreed to purchase.
Merrill Lynch, individually and not as representative
of the Initial Purchasers, may (but shall not be
obligated to) make payment of the purchase price for
the Securities to be purchased by any Initial Purchaser
whose funds have not been received by the Closing Time,
but such payment shall not relieve such Initial
Purchaser from its obligations hereunder.
<PAGE>
(c) Denominations; Registration. Certificates
for the Securities shall be in such denominations
($100,000 or integral multiples of $1,000 in excess
thereof) and registered in such names as the
Representative(s) may request in writing at least one
full business day before the Closing Time. The
certificates representing the Securities shall be made
available for examination and packaging by the Initial
Purchasers in The City of New York not later than 10:00
A.M. on the last business day prior to the Closing
Time.
SECTION 3. Covenants of the Company. The
Company covenants with each Initial Purchaser as
follows:
(a) Offering Memorandum. The Company, as
promptly as possible, will furnish to each Initial
Purchaser, without charge, such number of copies of the
Preliminary Offering Memorandum, the Final Offering
Memorandum and any amendments and supplements thereto
and documents incorporated by reference therein as such
Initial Purchaser may reasonably request.
(b) Notice and Effect of Material Events. The
Company will immediately notify each Initial Purchaser,
and confirm such notice in writing, of (x) any filing
made by the Company of information relating to the
offering of the Securities with any securities exchange
or any other regulatory body in the United States or
any other jurisdiction, and (y) prior to the completion
of the placement of the Securities by the Initial
Purchasers as evidenced by a notice in writing from the
Initial Purchasers to the Company, any changes, or any
development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations of the Company and its
subsidiaries, taken as a whole, that is material and
adverse and which (i) make any statement in the
Offering Memorandum false or misleading or (ii) are not
disclosed in the Offering Memorandum. In such event or
if during such time any event shall occur as a result
of which it is necessary, in the reasonable opinion of
any of the Company, its counsel, the Initial Purchasers
or counsel for the Initial Purchasers, to amend or
supplement the Final Offering Memorandum in order that
the Final Offering Memorandum not include any untrue
statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein not misleading in the light of the
circumstances then existing, the Company will forthwith
amend or supplement the Final Offering Memorandum by
preparing and furnishing to each Initial Purchaser an
amendment or amendments of, or a supplement or
supplements to, the Final Offering Memorandum (in form
and substance satisfactory in the reasonable opinion of
counsel for the Initial Purchasers) so that, as so
amended or supplemented, the Final Offering Memorandum
will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances existing at the time it is delivered to a
Subsequent Purchaser, not misleading.
(c) Amendment to Offering Memorandum and
Supplements. The Company will advise each Initial
Purchaser promptly of any proposal to amend or
supplement the Offering Memorandum and will not effect
such amendment or supplement without the consent of the
Initial Purchasers. Neither the consent of the Initial
Purchasers, nor the Initial Purchaser's
<PAGE>
delivery of any
such amendment or supplement, shall constitute a waiver
of any of the conditions set forth in Section 5 hereof.
(d) Qualification of Securities for Offer and
Sale. The Company will use its best efforts, in
cooperation with the Initial Purchasers, to qualify the
Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions
as the Representative(s) may reasonably designate and
will maintain such qualifications in effect as long as
required for the sale of the Securities; provided,
however, that the Company shall not be obligated to
file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is
not otherwise so subject.
(e) Rating of Securities. The Company shall
take all reasonable action necessary to enable Standard
& Poor's Ratings Services, a division of McGraw-Hill,
Inc. ("S&P"), and Moody's Investors Service Inc.
("Moody's") to provide their respective credit ratings
of the Securities.
(f) DTC. The Company will cooperate with the
Representative(s) and use its best efforts to permit
the Securities to be eligible for clearance and
settlement through the facilities of DTC.
(g) Use of Proceeds. The Company will use the
net proceeds received by it from the sale of the
Securities in the manner specified in the Offering
Memorandum under "Use of Proceeds".
(h) Restriction on Sale of Securities. During a
period of 60 days from the date of the Offering
Memorandum, the Company will not, without the prior
written consent of Merrill Lynch, directly or
indirectly, issue, sell, offer or agree to sell, grant
any option for the sale of, or otherwise dispose of,
any other debt securities of the Company or securities
of the Company that are convertible into, or
exchangeable for, the Securities or such other debt
securities.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses
incident to the performance of its obligations under
this Agreement, including (i) the preparation,
printing, delivery to the Initial Purchasers and any
filing of the Offering Memorandum (including financial
statements and any schedules or exhibits and any
document incorporated therein by reference) and of each
amendment or supplement thereto, (ii) the preparation,
printing and delivery to the Initial Purchasers of this
Agreement, any Agreement among Initial Purchasers, the
Indenture and such other documents as may be required
in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates
for the Securities to the Initial Purchasers, including
any transfer taxes, any stamp or other duties payable
upon the sale, issuance and delivery of the Securities
to the Initial Purchasers and any charges of DTC in
connection therewith, (iv) the fees and disbursements
of the Company's
<PAGE>
counsel, accountants and other
advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of
Section 3(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the
Initial Purchasers in connection therewith and in
connection with the preparation of the Blue Sky Survey,
any supplement thereto, (vi) the fees and expenses of
the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the
Indenture and the Securities, and (vii) any fees
payable in connection with the rating of the
Securities.
(b) Termination of Agreement. If this Agreement
is terminated by the Representative(s) in accordance
with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Initial
Purchasers for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of
counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers'
Obligations. The obligations of the several Initial
Purchasers hereunder are subject to the accuracy of the
representations and warranties of the Company contained
in Section 1 hereof or in certificates of any officer
of the Company or any of its subsidiaries delivered
pursuant to the provisions hereof, to the performance
by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Opinion of Counsel for Company. At the
Closing Time, the Representative(s) shall have received
the favorable opinion, dated as of the Closing Time, of
Godfrey & Kahn, S.C., counsel for the Company, in form
and substance satisfactory to counsel for the Initial
Purchasers, together with signed or reproduced copies
of such letter for each of the other Initial Purchasers
to the effect set forth in Exhibit A hereto and to such
further effect as counsel to the Initial Purchasers may
reasonably request.
(b) Opinion of General Counsel for Company. At
the Closing Time, the Representative(s) shall have
received the favorable opinion, dated as of the Closing
Date, of Sigrid E. Dynek, Esq., General Counsel for the
Company, in form and substance satisfactory to counsel
for the Initial Purchasers, together with signed or
reproduced copies of such letter for each of the other
Initial Purchasers to the effect set forth in Exhibit B
hereto and to such further effect as counsel to the
Initial Purchasers may reasonably request.
(c) Opinion of Counsel for Initial Purchasers.
At the Closing Time, the Representative(s) shall have
received the favorable opinion, dated as of the Closing
Time, of Shearman & Sterling, counsel for the Initial
Purchasers, together with signed or reproduced copies
of such letter for each of the other Initial Purchasers
with respect to the matters set forth in (iii) through
(vii), inclusive, (xii) and (xiv) of Exhibit A hereto.
In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal
law of the United States, upon the opinions of counsel
satisfactory to the Representative(s). Such counsel
may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public
officials.
<PAGE>
(d) Officers' Certificate. At the Closing Time,
there shall not have been, since the date hereof or
since the respective dates as of which information is
given in the Offering Memorandum, any change, or any
development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations of the Company and its
subsidiaries, taken as a whole, that is material and
adverse, and the Representative(s) shall have received
a certificate of the President or a Vice President of
the Company and of the chief financial or chief
accounting officer of the Company, dated as of the
Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations
and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made
at and as of the Closing Time, and (iii) the Company
has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at
or prior to the Closing Time.
(e) Accountants' Comfort Letter. At the time of
the execution of this Agreement, the Representative(s)
shall have received from Ernst & Young LLP a letter
dated such date, in form and substance satisfactory to
the Representative(s), together with signed or
reproduced copies of such letter for each of the other
Initial Purchasers containing statements and
information of the type ordinarily included in
accountants' "comfort letters" to Initial Purchasers
with respect to the financial statements and certain
financial information contained in the Offering
Memorandum.
(f) Bring-down Comfort Letter. At the Closing
Time, the Representative(s) shall have received from
Ernst & Young LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (d)
of this Section, except that the specified date
referred to shall be a date not more than three
business days prior to the Closing Time.
(g) Maintenance of Rating. At the Closing Time,
the Securities shall be rated at least A3 by Moody's
and BBB+ by S&P, and since the date of this Agreement,
there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the
Company's other securities by any "nationally
recognized statistical rating agency", as that term is
defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such securities
rating agency shall have publicly announced that it has
under surveillance or review, with possible negative
implications, its rating of the Securities or any of
the Company's other securities.
(h) Additional Documents. At the Closing Time,
counsel for the Initial Purchasers shall have been
furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and
substance to the Representative(s) and counsel for the
Initial Purchasers.
(i) Termination of Agreement. If any condition
specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement
may be terminated by the
<PAGE>
Representative(s) by notice to
the Company at any time at or prior to the Closing
Time, and such termination shall be without liability
of any party to any other party except as provided in
Section 4 and except that Sections 1, 7 and 8 shall
survive any such termination and remain in full force
and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures. Each of the
Initial Purchasers and the Company hereby establish and
agree to observe the following procedures in connection
with the offer and sale of the Securities:
(i) Offers and Sales only to Qualified
Institutional Buyers and Institutional Accredited
Investors. Offers and sales of the Securities
have been and shall only be made (A) to persons
whom the offeror or seller reasonably believes to
be qualified institutional buyers, as defined in
Rule 144A under the 1933 Act ("Qualified
Institutional Buyers"), (B) to a limited number of
persons who are institutional accredited
investors, as such term is defined in Rule
501(a)(1), (2), (3) and (7) under the 1933 Act,
that the offeror reasonable believes to be and,
with respect to sales and deliveries, that are
such institutional accredited investors
("Institutional Accredited Investors"), or (C) non-
U.S. persons outside the United States, as defined
in Regulation S under the 1933 Act, to whom the
offeror or seller reasonably believes offers and
sales of the Securities may be made in reliance
upon Regulation S under the 1933 Act. Each
Initial Purchaser severally agrees that it will
not offer, sell or deliver any of the Securities
in any jurisdiction outside the United States
except under circumstances that will result in
compliance with the applicable laws thereof, and
that it will take at its own expense whatever
action is required to permit its purchase and
resale of the Securities in such jurisdictions.
(ii) No General Solicitation. No general
solicitation or general advertising (within the
meaning of Rule 502(c) under the 1933 Act) has
been or will be used in the United States in
connection with the offering or sale of the
Securities.
(iii) No Directed Selling Efforts. With
respect to those Securities sold in reliance on
Regulation S, (A) none of the Initial Purchasers
or any person acting on its behalf has engaged or
will engage in any directed selling efforts within
the meaning of Regulation S and (B) each of the
Initial Purchasers and any person acting on its
behalf has complied and will comply with the
offering restrictions requirement of Regulation S.
(iv) Purchases by Non-Bank Fiduciaries. In
the case of a non-bank Subsequent Purchaser of a
Security acting as a fiduciary for one or more
third parties, each third party shall, in the
judgment of the applicable Initial Purchaser, be a
Qualified Institutional Buyer or an Institutional
Accredited Investor or a non-U.S. person outside
the United States.
<PAGE>
(v) Subsequent Purchaser Notification.
Each Initial Purchaser will take reasonable steps
to inform, and cause each of its U.S. Affiliates
to take reasonable steps to inform, persons
acquiring Securities from such Initial Purchaser
or affiliate, as the case may be, in the United
States that the Securities (A) have not been and
will not be registered under the 1933 Act, (B) are
being sold to them without registration under the
1933 Act in reliance on Rule 144A or in accordance
with another exemption from registration under the
1933 Act, as the case may be, and (C) may not be
offered, sold or otherwise transferred except (1)
to the Company, (2) outside the United States in
accordance with Regulation S, or (3) inside the
United States in accordance with (x) Rule 144A to
a person whom the seller reasonably believes is a
Qualified Institutional Buyer that is purchasing
such Securities for its own account or for the
account of a Qualified Institutional Buyer to whom
notice is given that the offer, sale or transfer
is being made in reliance on Rule 144A or (y)
pursuant to another available exemption from
registration under the 1933 Act.
(vi) Minimum Denomination Amount. No sale
of the Securities to any one Subsequent Purchaser
will be in denominations less than U.S. $100,000
and integral multiples of $1,000. If the
Subsequent Purchaser is a non-bank fiduciary
acting on behalf of others, each person for whom
it is acting must purchase the Securities in
denominations not less than U.S. $100,000 and
integral multiples of $1,000.
(vii) Restrictions on Transfer. The
transfer restrictions and the other provisions set
forth in the Offering Memorandum under the heading
"Notice to Investors", including the legend
required thereby, shall apply to the Securities
except as otherwise agreed by the Company and the
Initial Purchasers.
(b) Covenants of the Company. The Company
covenants with each Initial Purchaser as follows:
(i) Integration. The Company agrees that
it will not and will cause its Affiliates not to,
directly or indirectly, solicit any offer to buy,
sell or make any offer or sale of, or otherwise
negotiate in respect of, securities of the Company
of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the
1933 Act, such offer or sale would render invalid
(for the purpose of (i) the sale of the Securities
by the Company to the Initial Purchasers, (ii) the
resale of the Securities by the Initial Purchasers
to Subsequent Purchasers or (iii) the resale of
the Securities by such Subsequent Purchasers to
others) the exemption from the registration
requirements of the 1933 Act provided by Section
4(2) thereof or by Rule 144A or by Regulation S
thereunder or otherwise.
(ii) Rule 144A Information. The Company
agrees that, in order to render the Securities
eligible for resale pursuant to Rule 144A under
the 1933 Act, while any of the Securities remain
outstanding, it will make available, upon request,
to any holder of Securities or prospective
purchasers of Securities the information specified
in Rule
<PAGE>
144A(d)(4), unless the Company furnishes
information to the Commission pursuant to Section
13 or 15(d) of the 1934 Act.
(iii) Restriction on Resales. Until the
expiration of two years after the original
issuance of the Securities, the Company will not,
and will cause its Affiliates not to, resell any
Securities which are "restricted securities" (as
such term is defined under Rule 144(a)(3) under
the 1933 Act), whether as beneficial owner or
otherwise (except as agent acting as a securities
broker on behalf of and for the account of
customers in the ordinary course of business in
unsolicited broker's transactions).
(c) Qualified Institutional Buyer. Each Initial
Purchaser severally and not jointly represents and
warrants to, and agrees with, the Company that it is a
Qualified Institutional Buyer and an "accredited
investor" within the meaning of Rule 501(a) under the
1933 Act (an "Accredited Investor").
(d) Resale Pursuant to Rule 903 of Regulation S
or Rule 144A. Each Initial Purchaser understands that
the Securities have not been and will not be registered
under the 1933 Act and may not be offered or sold
within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with
Regulation S under the 1933 Act or pursuant to an
exemption from the registration requirements of the
1933 Act. Each Initial Purchaser severally represents
and agrees, that, except as permitted by Section 6(a)
above, it has offered and sold Securities and will
offer and sell Securities (i) as part of their
distribution at any time and (ii) otherwise until forty
days after the later of the date upon which the
offering of the Securities commences and the Closing
Time, only in accordance with Rule 903 of Regulation S,
Rule 144A under the 1933 Act or another applicable
exemption from the registration requirements of the
1933 Act. Accordingly, neither the Initial Purchasers,
their affiliates nor any persons acting on their behalf
have engaged or will engage in any directed selling
efforts with respect to Securities sold hereunder
pursuant to Regulation S, and the Initial Purchasers,
their affiliates and any person acting on their behalf
have complied and will comply with the offering
restriction requirements of Regulation S. Each Initial
Purchaser severally agrees that, at or prior to
confirmation of a sale of Securities pursuant to
Regulation S it will have sent to each distributor,
dealer or person receiving a selling concession, fee or
other remuneration that purchases Securities from it or
through it during the restricted period a confirmation
or notice to substantially the following effect:
"The Securities covered hereby have not
been registered under the United States
Securities Act of 1933 (the "Securities Act")
and may not be offered or sold within the
United States or to or for the account or
benefit of U.S. persons (i) as part of their
distribution at any time and (ii) otherwise
until forty days after the later of the date
upon which the offering of the Securities
commenced and the date of closing, except in
either case in accordance with Regulation S
or Rule 144A under the Securities Act. Terms
used above have the meaning given to them by
Regulation S."
<PAGE>
SECTION 7. Indemnification and Contribution.
The Company agrees to indemnify and hold harmless
each Initial Purchaser and each person, if any, who
controls any Initial Purchaser within the meaning of
either Section 15 of the 1933 Act or Section 20 of the
1934 Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in
connection with defending or investigating any such
action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained
in any Preliminary Offering Memorandum or the Final
Offering Memorandum (as amended or supplemented if the
Company shall have furnished any amendments or
supplements thereto), or caused by any omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused
by any such untrue statement or omission or alleged
untrue statement or omission based upon information
relating to any Initial Purchaser furnished to the
Company in writing by such Initial Purchaser through
you expressly for use therein; provided, however, that
the foregoing indemnity agreement with respect to any
Preliminary Offering Memorandum shall not inure to the
benefit of any Initial Purchaser from whom the person
asserting any such losses, claims, damages or
liabilities purchased Securities, or any person
controlling such Initial Purchaser, if (i) a copy of
the Final Offering Memorandum (as then amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or
given by or on behalf of such Initial Purchaser to such
person, at or prior to the written confirmation of the
sale of the Securities to such person, (ii) such person
maintains a customer account with an address in the
United States, and (iii) the Final Offering Memorandum
(as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or
liabilities.
Each Initial Purchaser agrees, severally and
not jointly, to indemnify and hold harmless the
Company, the directors of the Company, and each person,
if any, who controls the Company within the meaning of
either Section 15 of the 1933 Act or Section 20 of the
1934 Act from and against any and all losses, claims,
damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in
connection with defending or investigating any such
action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained
in any Preliminary Offering Memorandum or the Final
Offering Memorandum (as amended or supplemented if the
Company shall have furnished any amendments or
supplements thereto), or caused by any omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, but only with
reference to information relating to such Initial
Purchaser furnished to the Company in writing by such
Initial Purchaser through you expressly for use in any
Preliminary Offering Memorandum or the Final Offering
Memorandum or any amendments or supplements thereto.
In case any proceeding (including any
governmental investigation) shall be instituted
involving any person in respect of which indemnity may
be sought pursuant to any of the two preceding
paragraphs, such person (the "indemnified party") shall
promptly notify the
<PAGE>
person against whom such indemnity
may be sought (the "indemnifying party") in writing
(but the failure to so notify the indemnifying party
will not relieve it from any liability which it may
have to any indemnified party otherwise than under this
Section 7) and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party
may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding
(including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both parties by the same counsel
would be inappropriate due to actual or potential
differing interests between them. It is understood
that the indemnifying party shall not, in respect of
the legal expenses of any indemnified party in
connection with any proceeding or related proceedings
in the same jurisdiction, be liable for (a) the fees
and expenses of more than one separate firm (in
addition to any local counsel) for all Initial
Purchasers and all persons, if any, who control any
Initial Purchaser within the meaning of either Section
15 of the 1933 Act or Section 20 of the 1934 Act, (b)
the fees and expenses of more than one separate firm
(in addition to any local counsel) for the Company, its
directors, and each person, if any, who controls the
Company within the meaning of either such Section, and
that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate
firm for the Initial Purchasers and such control
persons of Initial Purchasers, such firm shall be
designated in writing by Merrill Lynch, Pierce, Fenner
& Smith Incorporated. In the case of any such separate
firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying
party shall not be liable for any settlement of any
proceeding effected without its written consent, but if
settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and
against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party
shall, without the prior written consent of the
indemnified party, which consent shall not be
unreasonably withheld, effect any settlement of any
pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such
indemnified party, unless such settlement (i) includes
an unconditional release of such indemnified party from
all liability on claims that are the subject matter of
such proceeding and (ii) does not include a statement
as to an admission of fault, culpability or failure to
act by or on behalf of any indemnified party.
<PAGE>
If the indemnification provided for in the
first or second paragraph of this Section 7 is
unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities
(i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or
parties on the one hand and the indemnified party or
parties on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or
parties on the other hand in connection with the
statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative
benefits received by the Company on the one hand and
the Initial Purchasers on the other hand in connection
with the offering of the Securities shall be deemed to
be in the same respective proportions as the net
proceeds from the offering of the Securities (before
deducting expenses) received by the Company and the
total underwriting discounts and commissions received
by the Initial Purchasers, in each case as set forth in
the table on the cover of the Final Offering
Memorandum, bear to the aggregate initial offering
price of the Securities. The relative fault of the
Company on the one hand and the Initial Purchasers on
the other hand shall be determined by reference to,
among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to
information supplied by the Company or the Initial
Purchasers and the parties' relative intent, knowledge,
access to information and opportunity to correct or
prevent such statement or omission. The Initial
Purchasers' respective obligations to contribute
pursuant to this Section 7 are several in proportion to
the respective principal amount of Securities they have
purchased hereunder, and not joint.
The Company and the Initial Purchasers agree
that it would not be just or equitable if contribution
pursuant to this Section 7 were determined by pro rata
allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method
of allocation that does not take account of the
equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject
to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of
this Section 7, no Initial Purchaser shall be required
to contribute any amount in excess of the amount by
which the total price at which the Securities
underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages
that such Initial Purchaser has otherwise been required
to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 7 are not
exclusive and
<PAGE>
shall not limit any rights or remedies
which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution provisions
contained in this Section 7 and the representations and
warranties of the Company contained in this Agreement
shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any
Initial Purchaser or any person controlling any Initial
Purchaser, or the Company, its officers or directors or
any person controlling the Company and (iii) acceptance
of and payment for any of the Securities.
SECTION 8. Representations, Warranties and
Agreements to Survive Delivery. All representations,
warranties and agreements contained in this Agreement
or in certificates of officers of the Company or any of
its subsidiaries submitted pursuant hereto shall remain
operative and in full force and effect, regardless of
any investigation made by or on behalf of any Initial
Purchaser or controlling person, or by or on behalf of
the Company, and shall survive delivery of the
Securities to the Initial Purchasers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative(s)
may terminate this Agreement, by notice to the Company,
at any time at or prior to the Closing Time (i) if
there has been, since the time of execution of this
Agreement or since the respective dates as of which
information is given in the Offering Memorandum, any
change, or any development involving a prospective
change, in the condition, financial or otherwise, or in
the earnings, business affairs or operations of the
Company and its subsidiaries, taken as a whole, that is
material and adverse, or (ii) if there has occurred any
material adverse change in the financial markets in the
United States or the international financial markets,
any outbreak of hostilities or escalation thereof or
other calamity or crisis or any change or development
involving a prospective change in national or
international political, financial or economic
conditions, in each case the effect of which is such as
to make it, in the reasonable judgment of the
Representative(s), impracticable to market the
Securities or to enforce contracts for the sale of the
Securities on the terms and in the manner contemplated
in the Offering Memorandum, or (iii) if trading in any
securities of the Company has been suspended or
materially limited by the Commission or if trading
generally on the American Stock Exchange or the New
York Stock Exchange or in the NASDAQ System has been
suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges
for prices have been required, by any of said exchanges
or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any
other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal or New
York authorities.
(b) Liabilities. If this Agreement is
terminated pursuant to this Section, such termination
shall be without liability of any party to any other
party except as provided in Section 4 hereof, and
provided further that Sections 1, 7 and 8 shall survive
such termination and remain in full force and effect.
<PAGE>
SECTION 10. Default by One or More of the Initial
Purchasers. If one or more of the Initial Purchasers
shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the
Representative(s) shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the
non-defaulting Initial Purchasers, or any other initial
purchasers, to purchase all, but not less than all, of
the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if,
however, the Representative(s) shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities
does not exceed 10% of the aggregate principal
amount of the Securities to be purchased
hereunder, each of the non-defaulting Initial
Purchasers shall be obligated, severally and not
jointly, to purchase the full amount thereof in
the proportions that their respective underwriting
obligations hereunder bear to the underwriting
obligations of all non-defaulting Initial
Purchasers, or
(b) if the number of Defaulted Securities
exceeds 10% of the aggregate principal amount of
the Securities to be purchased hereunder, this
Agreement shall terminate without liability on the
part of any non-defaulting Initial Purchaser.
No action taken pursuant to this Section shall
relieve any defaulting Initial Purchaser from liability
in respect of its default.
In the event of any such default which does not
result in a termination of this Agreement, either the
Representative(s) or the Company shall have the right
to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in
the Offering Memorandum or in any other documents or
arrangements. As used herein, the term "Initial
Purchaser" includes any person substituted for an
Initial Purchaser under this Section.
SECTION 11. Notices. All notices and other
communications hereunder shall be in writing and shall
be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication.
Notices to the Initial Purchasers shall be directed to
the Representative(s) at North Tower, World Financial
Center, New York, New York 10281, attention of Amy
Lane; notices to the Company shall be directed to it at
Kohl's Corporation, N56 W 17000 Ridgewood Drive,
Menomonee Falls, Wisconsin 53051, attention of Arlene
Meier, with a copy to Godfrey & Kahn, S.C., 780 North
Water Street, Milwaukee, Wisconsin 53202-3590,
attention of Peter M. Sommerhauser.
SECTION 12. Parties. This Agreement shall inure
to the benefit of and be binding upon the Initial
Purchasers and the Company and their respective
successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Initial
Purchasers and the Company and their respective
successors and the controlling persons and officers and
directors referred to in Section 7 and their heirs and
legal representatives, any legal or equitable right,
remedy or claim under or in respect of this
<PAGE>
Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the Initial
Purchasers and the Company and their respective
successors, and said controlling persons and officers
and directors and their heirs and legal
representatives, and for the benefit of no other
person, firm or corporation. No purchaser of
Securities from any Initial Purchaser shall be deemed
to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Effect of Headings. The Article and
Section headings herein and the Table of Contents are
for convenience only and shall not affect the
construction hereof.
<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please sign and return
to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a
binding agreement between the Initial Purchasers and
the Company in accordance with its terms.
Very truly yours,
KOHL'S CORPORATION
By: /s/R. Lawrence Montgomery
Name: R.Lawrence Montgomery
Title: Vice Chairman and
Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
BNY CAPITAL MARKETS, INC.
BANC ONE CAPITAL MARKETS, INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ A. Scott Lemone
Authorized Signatory
For itself and as Representative of the other
Initial Purchasers named in Schedule A hereto.
<PAGE>
SCHEDULE A
Principal
Amount of
Name of Initial Purchaser Securities
Merrill Lynch, Pierce, Fenner & Smith Incorporated $124,000,000
Morgan Stanley & Co. Incorporated 64,000,000
BNY Capital Markets, Inc. 6,000,000
Banc One Capital Markets, Inc. 6,000,000
Total $200,000,000
<PAGE>
SCHEDULE B
KOHL'S CORPORATION
$200,000,000 7 1/4% Debentures due 2029
1. The initial public offering price of the
Securities shall be 98.629% of the principal amount
thereof, plus accrued interest, if any, from the date
of issuance.
2. The purchase price to be paid by the Initial
Purchasers for the Securities shall be 97.754% of the
principal amount thereof.
3. The interest rate on the Securities shall be 7 1/4% per annum.
4. The Securities are redeemable prior to
maturity as set forth in the Offering Memorandum.
<PAGE>
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(i) the Company is validly existing as a corporation
in good standing under the laws of the State of
Wisconsin and has the corporate power and authority to
own its property and to conduct its business as
described in the Offering Memorandum;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and (assuming due
authorization, execution and delivery thereof by the
Trustee), constitutes a valid and binding agreement of
the Company, enforceable in accordance with its terms;
(iv) the Supplemental Indenture has been duly
authorized, executed and delivered by the Company and
(assuming due authorization, execution and delivery
thereof by the Trustee), constitutes a valid and
binding agreement of the Company, enforceable in
accordance with its terms;
(v) the Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture and the Supplemental
Indenture, and delivered to and paid for by the Initial
Purchasers in accordance with the terms of the Purchase
Agreement, will be entitled to the benefits of the
Indenture and the Supplemental Indenture and will be
valid and binding obligations of the Company,
enforceable in accordance with their terms;
(vi) the Registration Rights Agreement has been
duly authorized, executed and delivered by the Company
and constitutes a valid and binding agreement of the
Company, enforceable in accordance with its terms;
(vii) the Securities, the Indenture and the
Supplemental Indenture conform in all material respects
to the descriptions thereof contained in the Offering
Memorandum;
(viii) the execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement, the Indenture, the
Supplemental Indenture and the Registration Rights
Agreement will not contravene any provision of the law
of the State of Wisconsin or the federal laws of the
United States applicable to the Company or the articles
of incorporation or by-laws of the Company or, to the
best of such counsel's knowledge, any agreement or
other instrument binding upon the Company or any of its
subsidiaries which has been identified to such counsel
by the Company as one of such agreements or instruments
that is material to the Company and its subsidiaries,
taken as a whole, or, to the best of such counsel's
<PAGE>
knowledge, without independent investigation other than
inquiries of responsible officers of the Company, any
judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization
or order of or qualification with any federal or State
of Wisconsin governmental body or agency is required
for the performance by the Company of its obligations
under this Agreement or the Indenture or the
Supplemental Indenture or the Registration Rights
Agreement, except such as have been obtained or may be
required by securities or Blue Sky laws of the various
states in connection with the offer and sale of the
Securities or by the 1933 Act and the Trust Indenture
Act of 1939, as amended (the "1939 Act"), in connection
with the exchange offer as contemplated by the
Registration Rights Agreement;
(ix) the statements (1) in the Offering Memorandum
under the caption "Description of Debentures" (2) to
such counsel's knowledge, after due inquiry of
responsible officers of the Company, under the caption
"Executive Compensation-Employment Agreements" and
"-Other Agreements" in the Company's Proxy Statement
for the Annual Meeting of Shareholders held on May 25,
1999, in each case insofar as such statements
constitute summaries of the legal matters or documents
referred to therein, fairly present the information
called for with respect to such legal matters and
documents and fairly summarize the matters referred to
therein;
(x) the Company is not an "investment company" or
an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act of
1940, as amended;
(xi) the statements in the Offering Memorandum
under the caption "Certain United States Tax
Consequences to Non-United States Holders" insofar as
such statements constitute a summary of the United
States federal tax laws referred to therein, are
accurate and fairly summarize the United States federal
tax laws referred to therein;
(xii) based upon the representations,
warranties and agreements of the Company and the
Initial Purchasers in the Purchase Agreement, it is not
necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers
under the Purchase Agreement or in connection with the
initial resale of such Securities by the Initial
Purchasers in accordance with the Purchase Agreement to
register the Securities under the 1933 Act or to
qualify the Indenture or the Supplemental Indenture
under the 1939 Act, it being understood that such
counsel need express no opinion as to any subsequent
resales of any Security;
(xiii) each document filed pursuant to the 1934
Act and incorporated by reference in the Offering
Memorandum complied when so filed as to form in all
material respects with the 1934 Act and the applicable
rules and regulations of the Commission thereunder and
such counsel need not express any opinion as to the
financial statements, schedules and other financial
data included in or excluded from such documents filed
pursuant to the 1934 Act and such counsel need not
assume any responsibility for the accuracy,
completeness or fairness of the statements contained in
such documents filed pursuant to the 1934 Act (other
than as specified in
<PAGE>
subparagraph (ix) above insofar
as the statements referred to therein relate to
provisions of documents and other legal matters); and
(xiv) in addition, such opinion shall state that
such counsel has participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants
for the Company, and with your representatives and your
counsel at which the contents of the Offering
Memorandum and related matters were discussed and,
although such counsel need not pass upon or assume any
responsibility for the accuracy, completeness or
fairness of the statements contained in the Offering
Memorandum and need not make any independent check or
verification thereof (other than as specified in
subparagraphs (vii), (ix) and (xi) above insofar as the
captions referred to therein relate to provisions of
documents), on the basis of the foregoing, no facts
have come to the attention of such counsel which have
led such counsel to believe that the Offering
Memorandum, as of its date and as of the Closing Date,
contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in light of the
circumstances under which they were made, not
misleading, except that such counsel need not express
any opinion as to the financial statements, schedules
and other financial data included in or excluded from
the Offering Memorandum. Such counsel may also state in
such opinion that (i) such opinion is limited to the
laws of the United States, the State of Wisconsin and
the General Corporation Law of the State of Delaware,
and (ii) each of subparagraphs (iii), (iv), (v) and
(vi) is limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or
similar laws affecting the enforcement of creditors'
rights and (ii) the effect of general principles of
equity (regardless of whether enforceability is
considered in a proceeding in equity or at law),
including without limitation concepts of materiality,
reasonableness, good faith and fair dealing. In
applying such principles, a court, among other things,
might not allow the Trustee to take action based upon
the occurrence of a default deemed immaterial, and such
counsel may assume that the Trustee will at all times
act in good faith, in a commercially reasonable manner
and in compliance with all laws and regulations. Such
counsel need not express an opinion in subparagraph
(vi) as to the enforceability of Section 5 of the
Registration Rights Agreement. Such counsel may assume
that the laws of the State of New York are identical to
the laws of the State of Wisconsin. (xiv)
<PAGE>
Exhibit B
FORM OF OPINION
FROM GENERAL COUNSEL OF COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) the Company is duly qualified to transact
business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership
or leasing of property requires such qualification,
except to the extent that the failure to be so
qualified or be in good standing would not have a
material adverse effect on the Company and its
subsidiaries taken as a whole;
(ii) each of Kohl's Department Stores, Inc.,
Kohl's Receivables Corporation, Kohl's Investment
Corp., Kohl's Pennsylvania, Inc. and Kohl's Illinois,
Inc. is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property
requires such qualification, except to the extent that
the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(iii) each of Kohl's Department Stores, Inc.,
Kohl's Receivables Corporation, Kohl's Investment
Corp., Kohl's Pennsylvania, Inc. and Kohl's Illinois,
Inc. is validly existing as a corporation in good
standing under the laws of its state of incorporation,
and has the corporate power and authority to own its
property and to conduct its business as described in
the Offering Memorandum;
(iv) the statements, to such counsel's knowledge,
after due inquiry, in "Item 3 - Legal Proceedings" of
the Company's Annual Report on Form 10-K for the fiscal
year ended January 30, 1999, insofar as such statements
constitute summaries of the legal matters or
proceedings referred to therein, fairly present the
information called for with respect to such legal
matters and proceedings and fairly summarize the
matters referred to therein; and
(v) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or
threatened to which the Company or any of its
subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is
subject that is required to be described in the
documents incorporated by reference in the Offering
Memorandum and is not so described or of any statutes,
regulations, material contracts or other documents that
are required to be described in the documents
incorporated by reference in the Offering Memorandum or
to be filed or incorporated by reference as exhibits to
such incorporated documents that are not described,
filed or incorporated as required.
<PAGE>
Annex A
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
Exhibit 4.2
EXECUTION COPY
KOHL'S CORPORATION
AND
THE BANK OF NEW YORK,
Trustee
________________________________________
First Supplemental Indenture
Dated as of June 1, 1999
To
Indenture
Dated as of December 1, 1995
_______________________________________
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as
of June 1, 1999 (this "First Supplemental Indenture"),
between Kohl's Corporation, a corporation duly
organized and existing under the laws of the State of
Wisconsin (herein called the "Company"), having its
principal office at N56 W17000 Ridgewood Drive,
Menomonee Falls, Wisconsin 53051, and The Bank of New
York, a New York banking corporation, as Trustee
(herein called the "Trustee") under the Indenture dated
as of December 1, 1995 between the Company and the
Trustee (the "Original Indenture").
Recitals of the Company
The Company has executed and delivered the
Original Indenture to the Trustee to provide for the
issuance from time to time of its unsecured debentures,
notes or other debt instruments (the "Securities"), to
be issued in one or more series as provided in the
Indenture.
Pursuant to the terms of the Original
Indenture, the Company desires to provide for the
establishment of a new series of its Securities to be
known as its 7 1/4% Debentures due June 1, 2029 (herein
called the "Debentures"), in this First Supplemental
Indenture.
All things necessary to make this First
Supplemental Indenture a valid agreement of the Company
have been done.
Now, Therefore, This First Supplemental
Indenture Witnesseth:
For consideration, the adequacy and
sufficiency of which are hereby acknowledged by the
parties hereto, each party agrees as follows, for the
benefit of the other parties and for the equal and
proportionate benefit of all Holders of the Debentures,
as follows:
ARTICLE ONE
DEFINED TERMS
Section 101. Defined Terms. Except as
otherwise expressly provided in this First Supplemental
Indenture or in the form of or otherwise clearly
required by the context hereof or thereof, all
capitalized terms used and not defined herein or in
said form of that are defined in the Original
Indenture shall have the meanings assigned to them in
the Original Indenture. The Original Indenture, as
supplemented from time to time, including by this First
Supplemental Indenture, is hereafter referred to as the
"Indenture". For all purposes of this First
Supplemental Indenture:
"Closing Date" means June 1, 1999.
"Commission" means the Securities and Exchange Commission.
<PAGE>
"Debentures" means any of the securities, as
defined in the second paragraph of the recitals
hereof, that are authenticated and delivered under
the Indenture. For all purposes of the Indenture,
the term "Debentures" shall include the Debentures
initially issued on the Closing Date, any Exchange
Debentures to be issued and exchanged for any
Debentures pursuant to the Registration Rights
Agreement and the Indenture and any other
Debentures issued after the Closing Date under the
Indenture. For purposes of the Indenture, all
Debentures shall vote together as one series of
Debentures under the Indenture.
"Exchange Debentures" means any securities of
the Company containing terms identical to the
Debentures (except that such Exchange Debentures
shall be registered under the Securities Act and
shall not include the restrictions on transfer)
that are issued and exchanged for the Debentures
pursuant to the Registration Rights Agreement and
the Indenture.
"Exchange Offer Registration Statement" means
the Exchange Offer Registration Statement as
defined in the Registration Rights Agreement.
"Institutional Accredited Investor" means an
institution that is an "accredited investor" as
that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"Non-U.S. Person" means a person who is not a
U.S. Person (as defined in Regulation S).
"Registration Rights Agreement" means the
Registration Rights Agreement, dated June 1, 1999,
between the Company and Merrill Lynch, Pierce,
Fenner & Smith, Morgan Stanley & Co. Incorporated,
BNY Capital Markets, Inc. and Banc One Capital
Markets, Inc. and certain permitted assigns
specified therein.
"Registration Statement" means the
Registration Statement as defined and described in
the Registration Rights Agreement.
"Regulation S" means Regulation S under the
Securities Act.
"Restricted Security" means any Debenture
that has not been (i) exchanged for an Exchange
Debenture or (ii) sold in connection with an
effective Registration Statement pursuant to the
Registration Rights Agreement.
"Rule 144A" means Rule 144A under the
Securities Act.
"Securities Act" means the Securities Act of
1933, as amended from time to time.
"Shelf Registration Statement" means the
Shelf Registration Statement as defined in the
Registration Rights Agreement.
<PAGE>
ARTICLE TWO
TERMS OF THE DEBENTURES
Section 201. Establishment of the
Debentures. There is hereby authorized a series of
Securities designated the 7 1/4% Debentures due June 1,
2029, initially limited in aggregate principal amount
to $200,000,000 (except as provided in Section 2.3.2 of
the Original Indenture, and except that the Company may
issue additional Debentures of this Series). The
Debentures shall be substantially in the form set forth
in Exhibit A hereto and shall include substantially the
legends set forth on the face of the form of so long
as the Debentures are Restricted Securities.
Section 202. Terms of the Debentures. The
Stated Maturity of the Debentures shall be June 1,
2029, and they shall bear interest at the rate of 7 1/4%
per annum, from June 1, 1999 or from the most recent
interest payment date to which interest has been paid
or duly provided for, as the case may be, payable
semiannually (to holders of record of the Debentures at
the close of business on the May 15 and November 15
immediately preceding the interest payment date) on
June 1 and December 1, commencing December 1, 1999
until payment of the principal amount shall have been
made or duly provided for.
The principal of and interest on the
Debentures shall be payable at the office or agency of
the Trustee in New York, New York maintained for such
purpose and at any other office or agency maintained by
the Company for such purpose; provided, however, that
at the option of the Company payment of interest may be
made by wire transfer or by check mailed to the address
of the Person entitled thereto as such address shall
appear in the list of Securityholders.
The Debentures are redeemable prior to
maturity and shall not have the benefit of a sinking
fund.
The Debentures shall not be superior in right
of payment to, and shall rank equal with, all other
unsecured and unsubordinated debt of the Company.
The Debentures shall be subject to defeasance
at the option of the Company as provided in Sections
8.3 and 8.4 of the Original Indenture.
Section 203. Denominations. The Debentures
shall be issued in denominations of $100,000 and
integral multiples of $1,000.
Section 204. Form. Debentures offered and
sold in reliance on Rule 144A shall be issued initially
in the form of one or more permanent global Debentures
in registered form, substantially in the form set forth
in Exhibit A (the "U.S. Global Debentures"), registered
in the name of the nominee of The Depository Trust
Company (the "Depositary" or "DTC"), deposited with the
Trustee, as custodian for the Depositary, duly executed
by the Company and
<PAGE>
authenticated by the Trustee as
provided in Section 2.4 of the Original Indenture. The
aggregate principal amount of the U.S. Global
Debentures may from time to time be increased or
decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its
nominee, in accordance with the instructions given by
the Holder thereof, as hereinafter provided.
Debentures offered and sold in offshore
transactions in reliance on Regulation S shall be
issued initially in the form of one or more permanent
global Debentures in registered form substantially in
the form set forth in Exhibit A (the "Offshore Global
Debentures"), registered in the name of the nominee of
the Depositary, deposited with the Trustee, as
custodian for the Depositary, duly executed by the
Company and authenticated by the Trustee as provided in
Section 2.4 of the Original Indenture. The aggregate
principal amount of the Offshore Global Debentures may
from time to time be increased or decreased by
adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as
hereinafter provided.
Debentures offered and sold to Institutional
Accredited Investors that are not QIBs (excluding non-
U.S. Persons) shall be issued in the form of permanent
certificated Debentures in registered form
substantially in the form set forth in Exhibit A (the
"Physical Debentures").
The U.S. Global Debentures and the Offshore
Global Debentures are sometimes referred to herein as
the "Global Debentures".
The definitive Debentures shall be typed,
printed, lithographed or engraved or produced by any
combination of these methods or may be produced in any
other manner permitted by the rules of any securities
exchange on which the Debentures may be listed, all as
determined by the Officers executing such Debentures,
as evidenced by their execution of such Debentures.
ARTICLE THREE
AMENDMENTS
Section 301. Article Four of the Original
Indenture shall be amended by adding the following
paragraph immediately following the two paragraphs
contained in Section 4.9:
"The Company will take all actions necessary
to permit resales of any Securities sold
pursuant to Rule 144A of the Securities Act
of 1933, as amended (the "Securities Act")
including, without limitation, furnishing
upon request of a Holder of such Security to
such Holder and a prospective purchaser
designated by such Holder financial and other
information of the Company required to be
delivered under Rule 144A(d)(4) of the
Securities Act, if at the time of such
request the Company is not a reporting
company under Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as
amended."
<PAGE>
ARTICLE FOUR
REDEMPTION
Subject to the terms of Article Three of the
Original Indenture, the Company shall have the right to
redeem the Debentures, in whole but not in part, from
time to time and at any time (such redemption, an
"Optional Redemption", and the date thereof, the
"Optional Redemption Date") upon at least 30 days'
notice mailed to the registered address of each holder
of the Debentures, at a redemption price equal to the
sum of (A) the greater of (1) 100% of the principal
amount of the Debentures to be redeemed or (2) the sum
of the present values of the Remaining Scheduled
Payments thereon discounted to the Optional Redemption
Date 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 plus twenty-five basis
points, less the Applicable Accrued Interest Amount
plus (B) the Applicable Accrued Interest Amount.
"Applicable Accrued Interest Amount" means, at the
Optional Redemption Date, the amount of interest
accrued and unpaid from the prior interest payment date
to the Optional Redemption Date on the Debentures
subject to the Optional Redemption determined at the
rate per annum shown in the title thereof, computed on
the basis of a 360-day year of twelve 30-day months.
"Comparable Treasury Issue" means the United
States Treasury security, selected by a Reference
Treasury Dealer appointed by the Company, as having a
maturity comparable to the remaining term of the
Debentures to be redeemed that would be utilized, at
the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining
term of the Debentures to be redeemed pursuant to the
Optional Redemption.
"Comparable Treasury Price" means, with respect to
the Optional Redemption Date, (1) the average of the
Reference Treasury Dealer Quotations for such Optional
Redemption Date after excluding the highest and lowest
of those Reference Treasury Dealer Quotations, or (2)
if the Trustee obtains fewer than five Reference
Treasury Dealer Quotations, the average of all
quotations.
"Reference Treasury Dealer" means any nationally
recognized investment banking firm that is a primary
U.S. Government securities dealer.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any
Optional 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 Optional Redemption Date.
<PAGE>
"Remaining Scheduled Payments" means, for each
Debenture to be redeemed, the remaining scheduled
payments of principal and interest on that Debenture
that would be due after the related Optional Redemption
Date but for that Optional Redemption. If the Optional
Redemption Date is not an interest payment date with
respect to that Debenture, the amount of the next
succeeding scheduled interest payment on that Debenture
will be reduced by the amount of interest accrued on
the Debenture to the Optional Redemption Date.
"Treasury Rate" means, with respect to the
Optional Redemption Date (if any), 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 Optional Redemption Date.
ARTICLE FIVE
ORIGINAL ISSUE OF DEBENTURES
Section 501. Debentures in the aggregate
principal amount of $200,000,000, or in such additional
principal amount as the Company may issue pursuant to
Section 201 of this First Supplemental Indenture, may,
upon execution of this First Supplemental Indenture, or
from time to time thereafter, be executed by the
Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon
authenticate and deliver said Debentures upon a Company
Order without any further action by the Company.
Section 502. Exchange Debentures. Exchange
Debentures may from time to time be executed by the
Company and delivered to the Trustee for authentication
and the Trustee shall thereupon authenticate and
deliver said Exchange Debentures, upon cancellation of
an equal amount of Restricted Securities tendered in
exchange, upon a Company Order without further action
by the Company.
ARTICLE SIX
SPECIAL TRANSFER PROVISIONS
Section 601. Legend on Restricted
Securities. Unless and until a Debenture is exchanged
for an Exchange Debenture or sold in connection with an
effective Registration Statement pursuant to the
Registration Rights Agreement, (i) the U.S. Global
Debentures and Physical Debentures shall bear the
legend set forth on the face of the Debenture and (ii)
the Offshore Global Debentures shall bear the legend
set forth on the face of the Debenture until (A) at
least the 41st day after the Closing Date and (B)
receipt by the Company and the Trustee of a certificate
substantially in the form of Appendix B hereto.
<PAGE>
Except as provided in Section 603 hereof, the
Trustee shall not issue any unlegended Debentures until
it has received an Officers' Certificate from the
Company directing it to do so.
Section 602. Book-Entry Provisions for
Global Debentures. (a) The U.S. Global Debentures and
Offshore Global Debentures initially shall (i) be
registered in the name of the Depositary for such
Global Debentures or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such
Depositary and (iii) bear legends as set forth on the
face of the form of the Debenture.
Members of, or participants in, the
Depositary ("Agent Members") shall have no rights under
this Indenture with respect to any Global Debenture
held on their behalf by the Depositary, or the Trustee
as its custodian, or under such Global Debenture, and
the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as
the absolute owner of such Global Debenture for all
purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee
or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the
operation of customary practices governing the exercise
of the rights of a holder of any Debenture.
(b) Transfers of a Global Debenture shall be
limited as specified in Section 2.15.2 of the Original
Indenture and the provisions of Section 603(b)(ii).
Interests of beneficial owners in Global Debentures may
be transferred in accordance with the rules and
procedures of the Depositary and the provisions of
Section 603. In addition, Physical Debentures shall be
transferred to all beneficial owners in exchange for
their beneficial interests in the U.S. Global
Debentures or Offshore Global Debentures, as the case
may be, as specified in Section 2.15.2 of the Original
Indenture.
(c) Any beneficial interest in one of the
Global Debentures that is transferred to a person who
takes delivery in the form of an interest in another
Global Debenture will, upon transfer, cease to be an
interest in such Global Debenture and become an
interest in such other Global Debenture and,
accordingly, will thereafter be subject to all transfer
restrictions, if any, and other procedures applicable
to beneficial interests in such other Global Debenture
for as long as it remains such an interest.
(d) In connection with any transfer of a
portion of the beneficial interests in a Global
Debenture to beneficial owners pursuant to paragraph
(b) of this Section 602, the Registrar shall reflect on
its books and records the date and a decrease in the
principal amount of such Global Debenture in an amount
equal to the principal amount of the beneficial
interest in such Global Debenture to be transferred,
and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical
Debentures of like tenor and amount.
(e) In connection with the transfer of the
U.S. Global Debentures or the Offshore Global
Debentures, in whole, to beneficial owners pursuant to
paragraph (b) of this Section 602, the U.S. Global
Debentures or Offshore Global Debentures, as the case
may be,
<PAGE>
shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and
deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in
the U.S. Global Debentures or Offshore Global
Debentures, as the case may be, an equal aggregate
principal amount of Physical Debentures of authorized
denominations.
(f) Any Physical Debenture delivered in
exchange for an interest in the U.S. Global Debentures
pursuant to paragraph (b), (d) or (e) of this Section
602 shall, except as otherwise provided by Section 601,
bear the legend regarding transfer restrictions
applicable to the Physical Debenture.
(g) The registered holder of a Global
Debenture may grant proxies and otherwise authorize any
person, including Agent Members and persons that may
hold interests through Agent Members, to take any
action which a Holder is entitled to take under this
Indenture or the Debentures.
Section 603. (a) Transfers to QIBs. The
following provisions shall apply with respect to the
registration of any proposed transfer of a Debenture
constituting a Restricted Security to a qualified
institutional buyer as defined in Rule 144A (a "QIB"):
(i) if the Debenture to be transferred
consists of (x) Physical Debentures, the Registrar
shall register the transfer if such transfer is
being made by a proposed transferor who has
checked the box provided for on the form of
Debenture stating, or has otherwise advised the
Company and the Registrar in writing, that the
sale has been made in compliance with the
provisions of Rule 144A to a transferee who has
signed the certification provided for on the form
of Debenture stating, or has otherwise advised the
Company and the Registrar in writing, that it is
purchasing the Debenture for its own account or an
account with respect to which it exercises sole
investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A,
and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as
it has requested pursuant to Rule 144A or has
determined not to request such information and
that it is aware that the transferor is relying
upon its foregoing representations in order to
claim the exemption from registration provided by
Rule 144A or (y) an interest in the U.S. Global
Debentures, the transfer of such interest may be
effected through the book entry system maintained
by the Depositary; and
(ii) (a) If the proposed transferee is an
Agent Member and the Debentures to be transferred
consist of Physical Debentures which after
transfer are to be evidenced by an interest in the
Global Security, upon receipt by the Registrar of
instructions given in accordance with the
Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records
the date and an increase in the principal amount
of the Global Security in an amount equal to the
principal amount of the Physical Debentures to be
transferred, and the Trustee shall cancel the
Physical Debentures so transferred and (b)(1) if
the proposed transferor is an Agent Member holding
a beneficial interest in the
<PAGE>
Offshore Global
Debentures, upon receipt by the Registrar of
instructions in accordance with the Depositary's
and the Registrar's procedures, the Registrar
shall reflect on its books and records the date
and a decrease in the principal amount of the
Offshore Global Debentures in an amount equal to
the principal amount of the beneficial interest in
the Offshore Global Debentures to be transferred,
and (b)(2) if the proposed transferee is an Agent
Member, upon receipt by the Registrar of
instructions given in accordance with the
Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records
the date and an increase in the principal amount
of the U.S. Global Debentures in an amount equal
to the principal amount of the Offshore Global
Debentures to be transferred and the Trustee shall
decrease the amount of the Offshore Global
Debentures.
(b) Transfers to Non-QIB Institutional
Accredited Investors. The following provisions shall
apply with respect to the registration of any proposed
transfer of a Debenture constituting a Restricted
Security to any Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the
transfer of any Debenture, if the proposed
transferee has delivered to the Registrar (A) a
certificate substantially in the form of Appendix
A hereto and (B) an opinion of counsel acceptable
to the Company that such transfer is in compliance
with the Securities Act.
(ii) If the proposed transferor is an Agent
Member holding a beneficial interest in the Global
Security, upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (i) above
and (y) instructions given in accordance with the
Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records
the date and a decrease in the principal amount of
the Global Security in an amount equal to the
principal amount of the beneficial interest in the
Global Security to be transferred, and the Company
shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Debentures of
like tenor and amount.
(c) Transfers of Interests in the Offshore Global
Debentures. The following provisions shall apply with
respect to any transfer of interests in Offshore Global
Debentures:
(i) until the expiration of the 40-day
distribution compliance period within the meaning
of Rule 903 of Regulation S, any offer or sale of
interests in the Offshore Global Debenture shall
be made (a) outside the United States (1) in
compliance with Rule 903 or 904 under the
Securities Act or (2) to a QIB in compliance with
Rule 144A and (b) in accordance with all
applicable securities laws of the states of the
United States or any other applicable
jurisdiction;
<PAGE>
(ii) prior to the removal of the legend from
the Offshore Global Debentures pursuant to Section
601, the Registrar shall refuse to register such
transfer unless such transfer complies with this
Section 603, and
(iii) after such removal, the Registrar
shall register the transfer of any such Debenture
without requiring any additional certification.
(d) Transfers to Non-U.S. Persons at Any Time.
The following provisions shall apply with respect to
any transfer of a Restricted Security to a Non-U.S.
Person:
(i) The Registrar shall register any
proposed transfer to any Non-U.S. Person if (A)
the Debenture to be transferred is a Physical
Debenture or an interest in U.S. Global
Debentures, (B) the proposed transferor has
delivered to the Registrar a certificate
substantially in the form of Appendix B hereto and
(C) the proposed transferee has delivered to the
Registrar an opinion of counsel acceptable to the
Company that such transfer is in compliance with
the Securities Act..
(ii) (a) If the proposed transferor is
an Agent Member holding a beneficial interest in
the U.S. Global Debentures, upon receipt by the
Registrar of (x) the documents, if any, required
by paragraph (i) and (y) instructions in
accordance with the Depositary's and the
Registrar's procedures, the Registrar shall
reflect on its books and records the date and a
decrease in the principal amount of the U.S.
Global Debentures in an amount equal to the
principal amount of the beneficial interest in the
U.S. Global Debentures to be transferred, and (b)
if the proposed transferee is an Agent Member,
upon receipt by the Registrar of instructions
given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall
reflect on its books and records the date and an
increase in the principal amount of the Offshore
Global Debentures in an amount equal to the
principal amount of the Physical Debentures or the
U.S. Global Debentures, as the case may be, to be
transferred, and the Trustee shall cancel the
Physical Debenture, if any, so transferred or
decrease the amount of the U.S. Global Debentures.
Section 604. General. By its acceptance of
any Debenture bearing the legends set forth on the face
of the form of Debenture, each Holder of such a
Debenture acknowledges the restrictions on transfer of
such Debenture set forth in the Indenture and in such
legends and agrees that it will transfer such Debenture
only as provided in the Indenture.
The Registrar shall retain, in accordance
with its customary procedures, copies of all letters,
notices and other written communications received
pursuant to this Section 604. The Company shall have
the right to inspect and make copies of all such
letters, notices or other written communications at any
reasonable time upon the giving of reasonable written
notice to the Registrar.
<PAGE>
ARTICLE SEVEN
SUNDRY PROVISIONS
Section 701. No exchange of Debentures for
Exchange Debentures pursuant to Section 2.8 of the
Original Indenture shall occur until a Registration
Statement shall have been declared effective by the
Commission and that any Debentures that are exchanged
for Exchange Debentures shall be canceled by the
Trustee.
Section 702. The Original Indenture, as
supplemented by this First Supplemental Indenture, is
in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the
Indenture in the manner and to the extent herein and
therein provided.
<PAGE>
_____________________________________________
This instrument may be executed in any number
of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts
shall together constitute but one and the same
instrument.
In Witness Whereof, the parties hereto have
caused this First Supplemental Indenture to be duly
executed as of the day and year first above written.
KOHL'S CORPORATION
By: /s/R. Lawrence Montgomery
---------------------------
Name: R. Lawrence Montgomery
Title: Vice Chairman of the Board and
Chief Executive Officer
THE BANK OF NEW YORK
as Trustee
By: /s/Mary La Gumina
--------------------
Mary La Gumina
Assistant Vice President
<PAGE>
EXHIBIT A
[Form of Debenture]
[Each Global Security, whether or not an Exchange
Debenture, shall bear the following legend: Unless
this certificate is presented by an authorized
representative of The Depository Trust Company, a New
York corporation ("DTC"), to Kohl's Corporation or its
agent for registration of transfer, exchange or
payment, and any certificate issued is registered in
the name of Cede & Co. or to such other entity or in
such other name as is requested by an authorized
representative of DTC (and any payment hereon is made
to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
[Any Global Security issued hereunder shall bear a
legend in substantially the following form: This
Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in
the name of the Depositary or a nominee of the
Depositary. This Security is exchangeable for
Securities registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and may not
be transferred except as a whole by the Depositary to a
nominee of the Depositary by a nominee of the
Depositary, by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor
Depositary or a nominee of such a successor
Depositary.]
[Unless and until a Debenture is exchanged for an
Exchange Debenture or sold in connection with an
effective Registration Statement pursuant to the
Registration Rights Agreement,(i) the U.S. Global
Debentures and Physical Debentures shall bear the
legend set forth below on the face thereof and (ii) the
Offshore Physical Debentures and Offshore Global
Debentures shall bear the legend set forth below on the
face thereof until at least the 41st day after the
Closing Date and receipt by the Company and the Trustee
of a certificate substantially in the form of Appendix
B hereto: THE DEBENTURES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES
LAWS. NEITHER THIS DEBENTURE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")),
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
<PAGE>
MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) or (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
DEBENTURES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR" FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS DEBENTURE IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION
S, (2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH DEBENTURE PRIOR TO THE DATE WHICH IS THE LATER OF
(X) TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR ANY
PREDECESSOR OF THIS DEBENTURE) AND THE LAST DATE ON
WHICH KOHL'S CORPORATION OR ANY AFFILIATE OF KOHL'S
CORPORATION WAS THE OWNER OF THIS DEBENTURE (OR ANY
PREDECESSOR OF THIS DEBENTURE) AND (Y) SUCH LATER DATE,
IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE
"RESALE RESTRICTION TERMINATION DATE") EXCEPT (A) TO
KOHL'S CORPORATION OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE DEBENTURES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A INSIDE THE UNITED STATES, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALES
TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION WITHIN
THE MEANING AND CONSISTENT WITH THE TERMS AND
CONDITIONS OF REGULATION S UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF SUBPARAGRAPHS (a)(1), (2), (3) or (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
DEBENTURES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR" FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT
IT WILL GIVE TO EACH PERSON TO WHOM THIS DEBENTURE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND; PROVIDED THAT KOHL'S CORPORATION, THE
TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSES (D), (E) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES,
TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE
<PAGE>
OF THIS DEBENTURE IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO KOHL'S
CORPORATION AND THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE
TERMS "UNITED STATES", "OFFSHORE TRANSACTION" AND "U.S.
PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.]
[Each Offshore Global Debenture shall bear the
following legend: PRIOR TO EXPIRATION OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S, THIS DEBENTURE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO A U.S. PERSON OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON.]
<PAGE>
KOHL'S CORPORATION
7 1/4% DebentureS
Due June 1, 2029
CUSIP No. _________
No. _____
$_____________
Principal Amount
Kohl's Corporation, a corporation duly organized
and existing under the laws of the State of Wisconsin
(herein called the "Company", which term includes any
successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to
pay to [________] [Cede & Co.] or registered assigns,
the principal sum of
($ ) on June 1, 2029, and to pay
interest thereon semiannually (to holders of record of
the Debentures at the close of business on the May 15
and November 15 immediately preceding the interest
payment date) on June 1 and December 1 in each year,
commencing December 1, 1999, at the rate of 7 1/4% per
annum, until the principal hereof is paid or made
available for payment.
The interest so payable, and punctually paid or
duly provided for, on any interest payment date, as
provided in the Indenture, shall be paid to the Person
in whose name this Debenture (or one or more
predecessor Debentures) is registered at the close of
business on the May 15 or November 15 (whether or not a
business day), as the case may be, next preceding such
interest payment date. If the Company defaults in a
payment of interest, it will pay the defaulted interest
plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the persons who
are Securityholders on a subsequent special record
date, determined in accordance with the Indenture. The
Company may pay the defaulted interest in any other
lawful manner.
The statements set forth in the restrictive legend
above are an integral part of the terms of this
Debenture and by acceptance hereof each holder of this
Debenture agrees to be subject to and bound by the
terms and provisions set forth in such legend.
Payments of principal and interest on this
Debenture will be made at the office or agency of the
Company maintained for that purpose in New York, New
York, in such coin or currency of the United States of
America as at the time of payment is legal tender for
payment of public and private debts; provided, however,
that at the option of the Company payment of interest
may be made by wire transfer or by check mailed on or
prior to an interest payment date to the address of the
Person entitled thereto as such address shall appear in
the list of Securityholders.
<PAGE>
Any payment of this Debenture due on any day which
is not a business day in New York, New York need not be
made on such day, but may be made on the next
succeeding business day with the same force and effect
as if made on the due date and no interest shall accrue
for the period from and after such date, unless such
payment is a payment at maturity or upon redemption, in
which case interest shall accrue thereon at the stated
rate for such additional days.
This Debenture is one of a duly authorized issue
of securities of the Company, designated 7 1/4% Debentures
due June 1, 2029 (the "Debentures"), issued and to be
issued in one or more series under an Indenture, dated
as of December 1, 1995, as supplemented by the First
Supplemental Indenture, dated as of June 1, 1999 (the
"Indenture"), between the Company and The Bank of New
York, as Trustee (the "Trustee", which term includes
any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the
respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and
the Holders of the Debentures and of the terms upon
which the Debentures are, and are to be, authenticated
and delivered. This Debenture is one of a series
designated on the face hereof, issued initially in the
aggregate principal amount of $200,000,000.
[INCLUDE IF SECURITY IS A GLOBAL DEBENTURE -
This Debenture is a "book-entry" Debenture and is being
registered in the name of Cede & Co. as nominee of The
Depository Trust Company ("DTC"), a clearing agency.
Subject to the terms of the Indenture, this Debenture
will be held by a clearing agency or its nominee, and
beneficial interests will be held by beneficial owners
through the book-entry facilities of such clearing
agency or its nominee in minimum denominations of
$100,000 and integral multiples of $1,000. As long as
this Debenture is registered in the name of DTC or its
nominee, the Trustee will make payments of principal of
and interest on this Debenture by wire transfer of
immediately available funds to DTC or its nominee.
Notwithstanding the above, the final payment on this
Debenture will be made after due notice by the Trustee
of the pendency of such payment and only upon
presentation and surrender of this Debenture at its
principal corporate trust office or such other offices
or agencies appointed by the Trustee for that purpose
and such other locations provided in the Indenture.]
The Holder of this Debenture is entitled to the
benefits of the Registration Rights Agreement, dated as
of June 1, 1999. In the event that (i) the Company
fails to file an Exchange Offer Registration Statement
with respect to the Debentures with the Commission on
or prior to the 135th calendar day following the
Closing Date, (ii) the Commission does not declare such
Exchange Offer Registration Statement effective on or
prior to the 180th calendar day following the Closing
Date, (iii) the Exchange Offer is not consummated on or
prior to the 45th calendar day following the effective
date of the Exchange Offer Registration Statement or
(iv) if required, a Shelf Registration Statement with
respect to the Debentures is not declared effective by
the Commission on or prior to the 210th calendar day
following the Closing Date (each, a "Registration
Default"), the per annum interest rate borne by the
Debentures shall be increased by one-quarter of one
percent (0.25%) per annum from the end of the
applicable period giving rise to such Registration
Default. The interest rate borne by the Debentures
will be increased by an additional one-quarter of one
percent (0.25%) per annum for each subsequent 90-day period
<PAGE>
(or portion thereof) during which any such
Registration Default continues up to a maximum
aggregate increase in the annual interest rate of one-
half of one percent (0.50%) per annum. Following the
cure of all Registration Defaults, the interest rate
borne by the Debentures shall be reduced to the
original interest rate borne by the Debentures. No
increase in the rate shall be payable for any period
during which a Shelf Registration is effective. All
accrued additional interest shall be paid to Holders by
the Company in the same manner as interest is paid
pursuant to the Indenture. All terms used in this
Debenture that are defined in the Registration Rights
Agreement shall have the meanings assigned to them in
the Registration Rights Agreement.
The Debentures do not have the benefit of any
sinking fund obligations.
Subject to the terms of Article Three of the
Indenture, the Company shall have the right to redeem
the Debentures, in whole but not in part, from time to
time and at any time (such redemption, an "Optional
Redemption", and the date thereof, the "Optional
Redemption Date") upon at least 30 days' notice mailed
to the registered address of each holder of the
Debentures, at a redemption price equal to the sum of
(A) the greater of (1) 100% of the principal amount of
the Debentures to be redeemed or (2) the sum of the
present values of the Remaining Scheduled Payments
thereon discounted to the Optional Redemption Date 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 plus twenty-five basis points, less the
Applicable Accrued Interest Amount plus (B) the
Applicable Accrued Interest Amount.
"Applicable Accrued Interest Amount" means, at the
Optional Redemption Date, the amount of interest
accrued and unpaid from the prior interest payment date
to the Optional Redemption Date on the Debentures
subject to the Optional Redemption determined at the
rate per annum shown in the title thereof, computed on
the basis of a 360-day year of twelve 30-day months.
"Comparable Treasury Issue" means the United
States Treasury security, selected by a Reference
Treasury Dealer appointed by the Company, as having a
maturity comparable to the remaining term of the
Debentures to be redeemed that would be utilized, at
the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining
term of the Debentures to be redeemed pursuant to the
Optional Redemption.
"Comparable Treasury Price" means, with respect to
the Optional Redemption Date, (1) the average of the
Reference Treasury Dealer Quotations for such Optional
Redemption Date after excluding the highest and lowest
of those Reference Treasury Dealer Quotations, or (2)
if the Trustee obtains fewer than five Reference
Treasury Dealer Quotations, the average of all
quotations.
"Reference Treasury Dealer" means any nationally
recognized investment banking firm that is a primary
U.S. Government securities dealer.
<PAGE>
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any
Optional 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 Optional Redemption Date.
"Remaining Scheduled Payments" means, for each
Debenture to be redeemed, the remaining scheduled
payments of principal and interest on that Debenture
that would be due after the related Optional Redemption
Date but for that Optional Redemption. If the Optional
Redemption Date is not an interest payment date with
respect to that Debenture, the amount of the next
succeeding scheduled interest payment on that Debenture
will be reduced by the amount of interest accrued on
the Debenture to the Optional Redemption Date.
"Treasury Rate" means, with respect to the
Optional Redemption Date (if any), 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 Optional Redemption Date.
If an Event of Default with respect to Debentures
of this series shall occur and be continuing, the
principal of all the Debentures of this series may be
declared due and payable in the manner and with the
effect provided in the Indenture.
[INCLUDE IF SECURITY IS A GLOBAL SECURITY - In the
event of a deposit or withdrawal of an interest in this
Debenture, including an exchange, transfer, repurchase
or conversion of this Debenture in part only, the
Trustee, as custodian of the Depositary, shall make an
adjustment on its records to reflect such deposit or
withdrawal in accordance with the rules and procedures
of the Depositary.]
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY -
Subject to certain limitations in the Indenture, at any
time when the Company is not subject to Section 13 or
15(d) of the U.S. Securities Exchange Act of 1934, as
amended, upon the request of a Holder of a Restricted
Security, the Company will promptly furnish or cause to
be furnished Rule 144A Information (as defined below)
to such Holder of Restricted Securities, or to a
prospective purchaser of any such security designated
by any such Holder, to the extent required to permit
compliance by any such Holder with Rule 144A under the
Securities Act of 1933, as amended (the "Securities
Act"). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision
thereto).]
The Indenture contains provisions for defeasance
at any time of (a) the entire indebtedness of the
Company under this Debenture and (b) certain
restrictive covenants and the related defaults and
Events of Default applicable to the Company, in each
case, upon compliance by the Company with certain
conditions set forth in the Indenture, which provisions
apply to this Debenture.
<PAGE>
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the
modification of the rights and obligations of the
Company and the rights of the Holders of the Securities
of each series to be affected under the Indenture at
any time by the Company and the Trustee with the
consent of the Holders of at least 66_% in aggregate
principal amount of the Securities at the time
Outstanding of each series to be affected. The
Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of
the Securities of each series at the time Outstanding,
on behalf of the Holders of all Securities of each
series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Debenture shall
be conclusive and binding upon such Holder and upon all
future Holders of this Debenture and of any Debenture
issued upon the registration of transfer thereof or in
exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this
Debenture.
No reference herein to the Indenture and provision
of this Debenture or of the Indenture shall alter or
impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any
premium, and interest on this Debenture at the times,
place and rate, and in the coin or currency, herein
prescribed.
As provided in and subject to the provisions of
the Indenture, the Holder of this Debenture shall not
have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver
or trustee or for any other remedy thereunder, unless
such holder shall have previously given the Trustee
written notice of a continuing Event of Default with
respect to the Debentures of this series, the Holders
of not less than 25% in principal amount of the
Debentures of this series at the time Outstanding shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity
and the Trustee shall not have received from the
Holders of a majority in principal amount of Debentures
of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed
to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity.
The foregoing shall not apply to any suit instituted by
the Holder of this Debenture for the enforcement of any
payment of principal hereof or any interest hereon on
or after the respective due dates expressed herein.
As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of
this Debenture is registrable upon surrender of this
Debenture to the Registrar, for registration of
transfer duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the
Company and the Registrar attached hereto duly executed
by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures, and
of like tenor, of authorized denominations and for the
same aggregate principal amount, shall be issued to the
designated transferee or transferees.
The Debentures of this Series are issuable only in
fully registered form without coupons in denominations
of $100,000 and any integral multiples of $1,000. As
provided in the Indenture and subject to certain
limitations therein set forth, the Debentures of this
Series are exchangeable
<PAGE>
for a like aggregate principal
amount of Debentures of a different authorized
denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such
registration of transfer or exchange of Debentures, but
the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Debenture for
registration of transfer, the Company, the Trustee and
any agent of the Company, or the Trustee may treat the
Person in whose name this Debenture is registered as
the owner hereof for all purposes, whether or not this
Debenture be overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice
to the contrary.
Interest on this Debenture shall be computed on
the basis of a 360-day year of twelve 30-day months.
The Company shall furnish to any Holder of record
of Debentures, upon written request and without charge,
a copy of the Indenture.
The Indenture and this Debenture each shall be
governed by and construed in accordance with the laws
of the State of New York without regard to principles
of conflicts of law.
Unless the certificate of authentication hereon
has been executed by the Trustee by manual signature,
this Debenture shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any
purpose.
All terms used in this Debenture that are defined
in the Indenture shall have the meanings assigned to
them in the Indenture.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of this instrument, shall be
construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
IT TEN - as joint tenants with right of
survivorship and not as tenants in common.
UNIF GIFT MIN ACT - ______________ Custodian _____________
(Cust) (Minor)
under the Uniform Gifts to Minors Act
------------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
<PAGE>
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s),
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------
- ------------------------------------
- ----------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- -----------------------------------------------------------------------------
the within Security and all rights thereunder, hereby
irrevocably constituting and appointing
- -----------------------------------------------------------------------------
attorney to transfer said Security on the books of the
Company, with full power of substitution in the premises.
Date:_______________
--------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the
within instrument in ever particular, without
alteration or enlargement, or any change
whatsoever.
<PAGE>
In Witness Whereof, the Company has caused this
instrument to be duly executed
Dated: June 1, 1999 KOHL'S CORPORATION
By: ____________________________
Attest:
____________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of the Series
originated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:________________________
Authorized Officer
<PAGE>
APPENDIX A
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
_______________
The Bank of New York
101 Barclay Street 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Kohl's Corporation (the "Company")
7 1/4% Debentures due June 1, 2029, (the Debentures)
Ladies and Gentlemen:
In connection with our proposed purchase of
$_________ aggregate principal amount of the 7 1/4%
Debentures due June 1, 2029 (the "Debentures") of
Kohl's Corporation, a Wisconsin corporation ("Kohl's"),
we confirm that:
1. We are an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D under the Securities Act of
1933, as amended (the "Securities Act")),
purchasing for our own account or for the account
of such an institutional "accredited investor,"
and we are acquiring the Debentures for investment
purposes and not with a view to, or for offer or
sale in connection with, any distribution in
violation of the Securities Act or other
applicable securities law and we have such
knowledge and experience in financial and business
matters as to be capable of evaluating the merits
and risks of our investment in the Debentures, and
we and any accounts for which we are acting are
each able to bear the economic risk of our or its
investment.
2. We understand and acknowledge that the
Debentures have not been registered under the
Securities Act or any other applicable securities
law and may not be offered, sold or otherwise
transferred except in compliance with the
registration requirements of the Securities Act or
any other applicable securities law, or pursuant
to an exemption therefrom, or in a transaction not
subject thereto, and in each case in compliance
with the conditions for transfer set forth below.
We agree on our own behalf and on behalf of any
investor account for which we are purchasing
Debentures to offer, sell or otherwise transfer
such Debentures prior to (x) the date which is two
years (or such shorter period of time as permitted
by Rule 144(k) under the Securities Act) after the
later of the date of original issue and the last
date on which Kohl's or any affiliate of Kohl's
was the owner
<PAGE>
of such Debentures (or any
predecessor thereto) and (y) such later date, if
any, as may be required by applicable law (the
"Resale Restriction Termination Date") only (a) to
Kohl's or any of Kohl's subsidiaries, (b) pursuant
to a registration statement which has been
declared effective under the Securities Act, (c)
for so long as the Debentures are eligible for
resale pursuant to Rule 144A under the Securities
Act, to a person we reasonably believe is a
"Qualified Institutional Buyer" within the meaning
of Rule 144A (a "QIB") that purchases for its own
account or for the account of a QIB and to whom
notice is given that the transfer is being made in
reliance on Rule 144A, (d) pursuant to offers and
sales to non-U.S. persons in an offshore
transaction within the meaning and consistent with
the terms and conditions of Regulation S under the
Securities Act, (e) to an institutional
"accredited investor" within the meaning of
subparagraph (a)(1), (2),(3) or (7) of Rule 501
under the Securities Act that is acquiring the
Debentures for its own account or for the account
of such an institutional "accredited investor" for
investment purposes and not with a view to, or for
offer or sale in connection with, any distribution
in violation of the Securities Act or (f) pursuant
to any other available exemption from the
registration requirements of the Securities Act,
subject in each of the foregoing cases to any
requirement of law that the disposition of our
property or the property of such investor account
or accounts be at all times within our or their
control and to compliance with any applicable
state or other securities laws. The foregoing
restrictions on resale will not apply subsequent
to the Resale Restriction Termination Date. If
any resale or other transfer of the Debentures is
proposed to be made pursuant to clause (e) above
prior to the Resale Restriction Termination Date,
the transferor shall deliver to the trustee (the
"Trustee") a letter from the transferee
substantially in the form of this letter, which
shall provide, among other things, that the
transferee is a person or entity as defined in
paragraph 1 of this letter and that it is
acquiring such Debentures for investment purposes
and not for distribution in violation of the
Securities Act. We acknowledge that the Company
and the Trustee reserve the right prior to any
offer, sale or other transfer of the Debentures
pursuant to clauses (d), (e) or (f) above prior to
the Resale Restriction Termination Date to require
the delivery of an opinion of counsel,
certifications and/or other information
satisfactory to Kohl's and the Trustee.
3. We are acquiring the Debentures purchased
by us for our own account or for one or more
accounts as to each of which we exercise sole
investment discretion.
4. You are entitled to rely upon this letter
and you are irrevocably authorized to produce this
letter or a copy hereof to any interested party in
any administrative or legal proceeding or official
inquiry with respect to the matters covered
hereby.
<PAGE>
Very truly yours,
By: (Name of Purchaser)
Date:
Upon transfer the Debentures would be registered
in the name of the new beneficial owner as follows:
Taxpayer ID
Name Address Number
----- ------- -------------
<PAGE>
APPENDIX B
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
________________
Kohl's Corporation
c/o The Bank of New York
101 Barclay Street 21W
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Kohl's Corporation (the "Company")
71/4% Debentures due June 1, 2029 (the "Debentures")
Dear Sirs:
In connection with our proposed sale of U.S.$
aggregate principal amount of the Debentures, we
confirm that such sale has been effected pursuant to
and in accordance with Regulation S under the
Securities Act of 1933 and, accordingly, we represent
that:
(1) the offer of the Debentures was not made
to a person in the United States;
(2) at the time the buy order was
originated, the transferee was outside the United
States or we and any person acting on our behalf
reasonably believed that the transferee was
outside the United States;
(3) no directed selling efforts have been
made by us in the United States in contravention
of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable; and
(4) the transaction is not part of a plan or
scheme to evade the registration requirements of
the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used
in this certificate have the meanings set forth in
Regulation S.
Very truly yours,
[Name of Transferor]
By:______________________
Authorized Signature
Exhibit 4.3
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of June 1, 1999
among
KOHL'S CORPORATION
and
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
MORGAN STANLEY & CO. INCORPORATED
BNY CAPITAL MARKETS, INC.,
BANC ONE CAPITAL MARKETS, INC.
as the Initial Purchasers
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made and entered into as of June 1,
1999, by and among KOHL'S CORPORATION, a Wisconsin
corporation (the "Company"), and MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED, MORGAN STANLEY & CO.
INCORPORATED, BNY CAPITAL MARKETS, INC. and BANC ONE
CAPITAL MARKETS, INC. (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the
Purchase Agreement dated May 26, 1999 by and among the
Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company
to the Initial Purchasers of $200,000,000 aggregate
principal amount of the Company's 7 1/4% Debentures due
2029 (the "Debentures"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to the Initial
Purchasers' obligations thereunder, the Company has
agreed to provide to the Initial Purchasers and their
respective direct and indirect transferees and assigns
the registration rights set forth in this Agreement.
The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the
parties hereto agree as follows:
1. Definitions. As used in this Agreement,
the following capitalized defined terms shall have the
following meanings:
"1933 Act" shall mean the Securities Act of
1933, as amended from time to time, and the rules and
regulations of the SEC promulgated thereunder.
"1934 Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time, and the
rules and regulations of the SEC promulgated
thereunder.
"Closing Time" shall mean the Closing Time as
defined in the Purchase Agreement.
"Company" shall have the meaning set forth in
the preamble and also includes the Company's
successors.
"Depositary" shall mean The Depository Trust
Company, or any other depositary appointed by the
Company, including any agent thereof; provided,
however, that any such depositary must at all times
have an address in the Borough of Manhattan, in The
City of New York.
<PAGE>
"Exchange Debentures" shall mean the 7 1/4%
Debentures due 2029 issued by the Company under the
Indenture, containing terms identical to the Debentures
(except that (i) interest thereon shall accrue from the
last date on which interest was paid on the Debentures
or, if no such interest has been paid, from the Closing
Time, (ii) the transfer restrictions thereon shall be
eliminated and (iii) certain provisions relating to an
increase in the stated rate of interest thereon shall
be eliminated) to be offered to Holders of Registrable
Debentures in exchange for Registrable Debentures
pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange
offer by the Company of Exchange Debentures for
Registrable Debentures pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a
registration under the 1933 Act effected pursuant to
Section 2(a) hereof.
"Exchange Offer Registration Statement" shall
mean an exchange offer registration statement on Form S-
4 covering the Registrable Debentures (or, if
applicable, on another appropriate form), and all
amendments and supplements to such registration
statement, in each case including the Prospectus
contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Holders" shall mean the Initial Purchasers,
for so long as they own any Registrable Debentures, and
each of their respective successors, assigns and direct
and indirect transferees who become registered owners
of Registrable Debentures under the Indenture.
"Indenture" shall mean the Indenture dated as
of December 1, 1995 by and between the Company and The
Bank of New York, as Trustee, as supplemented by the
First Supplemental Indenture dated as of June 1, 1999,
between the Company and the Trustee, in each case
relating to the Debentures and the Exchange Debentures
and as the same may be amended and supplemented from
time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning
set forth in the preamble of this Agreement.
"Majority Holders" shall mean the Holders of
a majority of the aggregate principal amount of
Registrable Debentures outstanding; provided that
whenever the consent or approval of Holders of a
specified percentage of Registrable Debentures is
required hereunder, Registrable Debentures held by the
Company or any of its affiliates (as such term is
defined in Rule 405 under the 1933 Act) (other than the
Initial Purchasers or subsequent holders of Registrable
Debentures) if such subsequent holders are deemed
<PAGE>
to be such affiliates solely by reason of their holding of
such Registrable Debentures shall be disregarded in
determining whether such consent or approval was given
by the Holders of such required percentage or amount.
"NASD" shall mean the National Association of
Securities Dealers, Inc.
"Participating Broker-Dealer" shall have the
meaning set forth in Section 3(f).
"Person" shall mean an individual,
partnership, joint venture, limited liability company,
corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus
included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable
Debentures covered by a Shelf Registration Statement,
and by all other amendments and supplements to a
prospectus, including post-effective amendments, and in
each case including all material incorporated by
reference therein.
"Purchase Agreement" shall have the meaning
set forth in the preamble of this Agreement.
"Registrable Debentures" shall mean the
Debentures; provided, however, that the Debentures
shall cease to be Registrable Debentures when (i) a
Registration Statement with respect to such Debentures
shall have been declared effective under the 1933 Act
and such Debentures shall have been disposed of
pursuant to such Registration Statement, (ii) such
Debentures shall have been sold to the public pursuant
to Rule 144 (or any similar provision then in force,
but not Rule 144A) under the 1933 Act, (iii) such
Debentures shall have ceased to be outstanding or (iv)
such Debentures have been exchanged for Exchange
Debentures upon consummation of the Exchange Offer.
"Registration Expenses" shall mean any and
all expenses incident to performance of or compliance
by the Company with this Agreement, including without
limitation: (i) all SEC, stock exchange or NASD
registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with
state or other securities or blue sky laws and
compliance with the rules of the NASD (including
reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with state or
other securities or blue sky qualification of any of
the Exchange Debentures or Registrable Debentures),
(iii) all expenses of any Persons in preparing,
printing and distributing any Registration Statement,
any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales
agreements, certificates representing the Exchange
Debentures and other documents relating to the performance
<PAGE>
of and compliance with this Agreement, (iv)
all rating agency fees, (v) all fees and expenses
incurred in connection with the listing, if any, of any
of the Exchange Debentures or such Registrable
Debentures, covered by a Shelf Registration Statement,
as applicable, on any securities exchange or exchanges,
(vi) all fees and disbursements relating to the
qualification of the Indenture under applicable
securities laws, (vii) the fees and disbursements of
counsel for the Company and the fees and expenses of
the independent public accountants of the Company,
including the expenses of any special audits or "cold
comfort" letters required by or incident to such
performance and compliance, (viii) the fees and
expenses of a "qualified independent underwriter" as
defined by Conduct Rule 2720 of the NASD (if required
by the NASD rules) in connection with the offering of
the Registrable Debentures, (ix) the reasonable fees
and expenses of the Trustee, any registrar, any
depositary and paying agent, including their respective
counsel, and any escrow agent or custodian and (x) in
the case of an underwritten offering, any fees and
disbursements of the underwriter customarily required
to be paid by issuers or sellers of such securities and
the fees and expenses of any special experts retained
by the Company in connection with any Registration
Statement but excluding (except as otherwise provided
herein) fees of counsel to the underwriters or the
Holders and underwriting discounts and commissions and
any transfer taxes, if any, relating to the sale or
disposition of Registrable Debentures by a Holder.
"Registration Statement" shall mean any
registration statement of the Company relating to any
offering of the Exchange Debentures or Registrable
Debentures pursuant to the provisions of this
Agreement, and all amendments and supplements to any
such Registration Statement, including post-effective
amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange
Commission.
"Shelf Registration" shall mean a
registration effected pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a
"shelf" registration statement of the Company pursuant
to the provisions of Section 2(b) of this Agreement
which covers all of the Registrable Debentures on an
appropriate form under Rule 415 under the 1933 Act, or
any similar rule that may be adopted by the SEC, and
all amendments and supplements to such registration
statement, including post-effective amendments, in each
case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by
reference therein.
"Trustee" shall mean the trustee under the
Indenture.
<PAGE>
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. To the extent not
prohibited by any applicable law or applicable
interpretation of the staff of the SEC, the Company
shall (A) file with the SEC within 135 calendar days
after the Closing Time an Exchange Offer Registration
Statement covering the offer by the Company to the
Holders to exchange all of the Registrable Debentures
for Exchange Debentures, (B) use its reasonable best
efforts to cause such Exchange Offer Registration
Statement to be declared effective by the SEC within
180 calendar days after the Closing Time, (C) use its
reasonable best efforts to cause such Registration
Statement to remain effective until the closing of the
Exchange Offer and (D) use its reasonable best efforts
to consummate the Exchange Offer within 45 calendar
days after the effective date of the Exchange Offer
Registration Statement. The Exchange Debentures will
be issued under the Indenture. Upon the effectiveness
of the Exchange Offer Registration Statement, the
Company shall promptly commence the Exchange Offer, it
being the objective of such Exchange Offer to enable
each Holder (other than Participating Broker-Dealers
(as defined in Section 3(f)) eligible and electing to
exchange Registrable Debentures for Exchange Debentures
(assuming that such Holder is not an affiliate of the
Company within the meaning of Rule 405 under the 1933
Act, acquires the Exchange Debentures in the ordinary
course of such Holder's business and has no
arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of
distributing the Exchange Debentures) to trade such
Exchange Debentures from and after their receipt
without any limitations or restrictions under the 1933
Act and without material restrictions under the
securities laws of a substantial proportion of the
several states of the United States.
In connection with the Exchange Offer, the
Company shall:
(i) mail to each Holder a copy of the
Prospectus forming part of the Exchange Offer
Registration Statement, together with an
appropriate letter of transmittal and related
documents;
(ii) keep the Exchange Offer open for
not less than 20 business days (or longer if
required by applicable federal and state
securities laws) after the date notice thereof is
mailed to the Holders;
(iii) use the services of the Depositary for the
Exchange Offer with respect to Debentures evidenced by
global certificates;
(iv) permit Holders to withdraw tendered Registrable
Debentures at any time prior to the close of business,
New York City time, on the last business day on which
the Exchange Offer shall remain open, by sending to the
institution specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Registrable
Debentures delivered for exchange, and a statement that
such Holder is withdrawing its election to have such
Debentures exchanged; and
<PAGE>
(v) otherwise comply in all material
respects with all applicable federal and state
securities laws relating to the Exchange Offer.
As soon as practicable after the close of the
Exchange Offer, the Company shall:
(i) accept for exchange Registrable
Debentures duly tendered and not validly withdrawn
pursuant to the Exchange Offer in accordance with
the terms of the Exchange Offer Registration
Statement and the letter of transmittal which is
an exhibit thereto;
(ii) deliver, or cause to be delivered,
to the Trustee for cancellation all Registrable
Debentures so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to
authenticate and deliver Exchange Debentures to
each Holder of Registrable Debentures equal in
principal amount to the principal amount of the
Registrable Debentures of such Holder so accepted
for exchange.
Interest on each Exchange Note will accrue
from the last date on which interest was paid on the
Registrable Debentures surrendered in exchange therefor
or, if no interest has been paid on the Registrable
Debentures, from the Closing Time. The Exchange Offer
shall not be subject to any conditions, other than (i)
that the Exchange Offer, or the making of any exchange
by a Holder, does not violate applicable law or any
applicable interpretation of the staff of the SEC, (ii)
that no action or proceeding shall have been instituted
or threatened in any court or before any governmental
agency with respect to the Exchange Offer which, in the
Company's judgment, would impair the ability of the
Company to proceed with the Exchange Offer, (iii) that
no law, rule or regulation or applicable
interpretations of the staff of the SEC has been issued
or promulgated which, in the good faith determination
of the Company, does not permit the Company to effect
the Exchange Offer and (iv) that the Holders tender the
Registrable Debentures to the Company in accordance
with the Exchange Offer. Each Holder of Registrable
Debentures (other than Participating Broker-Dealers)
who wishes to exchange such Registrable Debentures for
Exchange Debentures in the Exchange Offer shall have
represented that (i) it is not an affiliate (as defined
in Rule 405 under the 1933 Act) of the Company or, if
it is an affiliate, it will comply with the
registration and prospectus delivery requirements of
the 1933 Act, to the extent applicable, (ii) any
Exchange Debentures to be received by it will be
acquired in the ordinary course of business, (iii) at
the time of the commencement of the Exchange Offer, it
has no arrangement with any Person to participate in
the distribution (within the meaning of the 1933 Act)
of the Debentures or the Exchange Debentures, (iv) it
is not acting on behalf of any person who could not
truthfully make the foregoing representations and (v)
it shall have made such other representations as may be
reasonably necessary under applicable SEC rules,
<PAGE>
regulations or interpretations to render the use of
Form S-4 or another appropriate form under the 1933 Act
available or for the Exchange Offer Registration
Statement to be declared effective. To the extent
permitted by law, the Company shall inform the Initial
Purchasers of the names and addresses of the Holders to
whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders
and otherwise facilitate the tender of Registrable
Debentures in the Exchange Offer.
(b) Shelf Registration. (i) If, because of
any change in law or applicable interpretations thereof
by the Staff of the SEC, the Company is not permitted
to effect the Exchange Offer as contemplated by Section
2(a) hereof, or (ii) if for any other reason the
Exchange Offer Registration Statement is not declared
effective within 180 calendar days following the
Closing Time or the Exchange Offer is not consummated
within 45 days after effectiveness of the Exchange
Offer Registration Statement (provided that if the
Exchange Offer Registration Statement shall be declared
effective after such 180-day period or if the Exchange
Offer shall be consummated after such 45-day period,
then the Company's obligations under this clause (ii)
arising from the failure of the Exchange Offer
Registration Statement to be declared effective within
such 180-day period or the failure of the Exchange
Offer to be consummated within such 45-day period,
respectively, shall terminate), or (iii) if any Holder
(other than an Initial Purchaser) is not eligible to
participate in the Exchange Offer or elects to
participate in the Exchange Offer but does not receive
fully tradeable Exchange Debentures pursuant to the
Exchange Offer or (iv) upon the written request of any
of the Initial Purchasers within 90 days following the
consummation of the Exchange Offer; provided that such
Initial Purchaser shall hold Registrable Debentures
that it acquired directly from the Company and if such
Initial Purchaser is not permitted, in the opinion of
counsel to such Initial Purchaser, pursuant to
applicable law or applicable interpretation of the
staff of the SEC, to participate in the Exchange Offer,
the Company shall, at its cost:
(A) as promptly as practicable, but no
later than (a) the 180th day after the Closing
Time or (b) the 60th day after such filing
obligations arises, whichever is later, file with
the SEC a Shelf Registration Statement relating to
the offer and sale of the Registrable Debentures
by the Holders from time to time in accordance
with the methods of distribution elected by the
Majority Holders of such Registrable Debentures
and set forth in such Shelf Registration
Statement;
(B) use its reasonable best efforts to
cause such Shelf Registration Statement to be
declared effective by the SEC as promptly as
practicable, but in no event later than the 210th
day after the Closing Time (or within 30 days of a
request of any Initial Purchaser); provided that,
with respect to Exchange Debentures received by a
broker-dealer in exchange for any securities that
were acquired by such broker-dealer as a result of
market-making or other trading activities, the
Company may, if permitted by current
interpretations by the staff of the SEC, file a
post-effective amendment to the Exchange Offer
Registration Statement containing the information
required by Regulation S-K Items 507 and/or 508,
as applicable, in satisfaction of its obligations under
<PAGE>
paragraph (A) solely with respect to broker-
dealers who acquired their Securities as a result
of market-making or other trading activities, and
any such Exchange Offer Registration Statement, as
so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a
Shelf Registration Statement. In the event that
the Company is required to file a Shelf
Registration Statement upon the request of any
Holder (other than an Initial Purchaser) not
eligible to participate in the Exchange Offer
pursuant to clause (iii) above or upon the request
of any Initial Purchaser pursuant to clause (iv)
above, the Company shall file and use its
reasonable best efforts to have declared effective
by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to
all Registrable Debentures and a Shelf
Registration Statement (which may be a combined
Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and
sales of Registrable Debentures held by such
Holder or such Initial Purchaser, as applicable,
after completion of the Exchange Offer;
(C) use its reasonable best efforts to
keep the Shelf Registration Statement continuously
effective, supplemented and amended as required,
in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of
two years after its effective date or such shorter
period which will terminate when all of the
Registrable Debentures covered by the Shelf
Registration Statement (i) have been sold pursuant
to the Shelf Registration Statement, (ii) cease to
be outstanding or (iii) become eligible for resale
pursuant to Rule 144 under the 1934 Act without
volume restrictions; and
(D) notwithstanding any other
provisions hereof, use its best efforts to ensure
that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming a
part thereof and any supplement thereto complies
in all material respects with the 1933 Act and the
rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto
does not, when it becomes effective, contain an
untrue statement of a material fact or omit to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement,
and any supplement to such Prospectus (as amended
or supplemented from time to time), does not
include an untrue statement of a material fact or
omit to state a material fact necessary in order
to make the statements, in light of the
circumstances under which they were made, not
misleading; provided, however, clauses (ii) and
(iii) shall not apply to any information relating
to any Initial Purchaser or any Holder furnished
to the Company in writing by such Initial
Purchaser or Holder expressly for use in the Shelf
Registration Statement.
The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement if
reasonably requested by the Majority Holders with
respect to information relating to the Holders and
otherwise as required by Section 3(b) below, to
<PAGE>
use its reasonable best efforts to cause any such amendment to
become effective and such Shelf Registration Statement
to become usable as soon as practicable thereafter and
to furnish to the Holders of Registrable Debentures
copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
(c) Expenses. The Company shall pay
all Registration Expenses in connection with the
registration pursuant to Section 2(a) and 2(b)
and, in the case of any Shelf Registration
Statement, will reimburse the Holders or the
Initial Purchasers for the reasonable fees and
disbursements of one counsel (in addition to any
local counsel) designated in writing by the
Majority Holders to act as counsel for the Holders
of the Registrable Debentures in connection
therewith. Each Holder shall pay all expenses of
its counsel other than as set forth in the
preceding sentence, underwriting discounts and
commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder's
Registrable Debentures pursuant to a Shelf
Registration Statement.
(d) Effective Registration Statement.
(i) The Company shall be deemed not to have used
its reasonable best efforts to cause the Exchange
Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to
become, or to remain, effective during the
requisite periods set forth herein if the Company
voluntarily takes any action that could reasonably
be expected to result in any such Registration
Statement not being declared effective or
remaining effective or in the Holders of
Registrable Debentures covered thereby not being
able to exchange or offer and sell such
Registrable Debentures during that period unless
(A) such action is required by applicable law or
(B) such action is taken by the Company in good
faith and for valid business reasons (but not
including avoidance of the Company's obligations
hereunder), including the acquisition or
divestiture of assets or a material corporate
transaction or event so long as the Company
promptly complies with the requirements of Section
3(k) hereof, if applicable.
(ii) An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a
Shelf Registration Statement pursuant to Section
2(b) hereof shall not be deemed to have become
effective unless it has been declared effective by
the SEC; provided, however, that if, after it has
been declared effective, the offering of
Registrable Debentures pursuant to a Registration
Statement is interfered with by any stop order,
injunction or other order or requirement of the
SEC or any other governmental agency or court,
such Registration Statement shall be deemed not to
have been effective during the period of such
interference, until the offering of Registrable
Debentures pursuant to such Registration Statement
may legally resume.
(iii) During any 365-day period, the
Company may suspend the availability of a Shelf
Registration Statement and the use of the related
Prospectus, as provided in Section 3(e)(vi) and
the last paragraph of Section 3 hereof, for up to
four periods of up to 45 consecutive days (except for the
<PAGE>
consecutive 45-day period immediately
prior to maturity of the Debentures), but no more
than an aggregate 90 days during any 365-day
period, if any event shall occur (A) as set forth
in Section 2(d)(i) or (B) as a result of which it
shall be necessary, in the good faith
determination of the board of directors of the
Company, to amend the Shelf Registration Statement
or amend or supplement any prospectus or
prospectus supplement thereunder in order that
each such document not include any untrue
statement of fact or omit to state a material fact
necessary to make the statements therein not
misleading in light of the circumstances under
which they were made.
(e) Increase in Interest Rate. In the
event that (i) the Exchange Offer Registration
Statement is not filed with the SEC on or prior to
the 135th calendar day following the date hereof,
(ii) the Exchange Offer Registration Statement is
not declared effective on or prior to the 180th
calendar day following the date hereof, (iii) the
Exchange Offer is not consummated on or prior to
the 45th calendar day following the effective date
of the Exchange Offer Registration Statement, or
(iv) if required, a Shelf Registration Statement
with respect to the Registrable Debentures is not
declared effective on or prior to the 210th
calendar day following the date hereof, the per
annum interest rate borne by the Registrable
Debentures shall be increased by one-quarter of
one percent (0.25%) per annum following such 135-
day period in the case of clause (i) above,
following such 180-day period in the case of
clause (ii) above, following such 45-day period in
the case of clause (iii) above, or following such
210-day period in the case of (iv) above, which
rate will be increased by an additional quarter of
one percent (0.25%) per annum for each 90-day
period that any additional interest continues to
accrue; provided that the aggregate increase in
such annual interest rate may in no event exceed
one-half of one percent (0.50%) per annum. Upon
(w) the filing of the Exchange Offer Registration
Statement after the 135-day period described in
clause (i) above, (x) the effectiveness of the
Exchange Offer Registration Statement after the
180-day period described in clause (ii) above, (y)
the consummation of the Exchange Offer after the
45-day period described in clause (iii) above, or
(z) the effectiveness of a Shelf Registration
Statement, after the 210-day period described in
clause (iv) above, the interest rate borne by the
Debentures from the date of such filing,
effectiveness or consummation, as the case may be,
shall be reduced to the original interest rate if
the Company is otherwise in compliance with this
paragraph; provided, however, that, if after any
such reduction in interest rate, a different event
specified in clause (i), (ii), (iii) or (iv) above
occurs, the interest rate shall again be increased
pursuant to the foregoing provisions. No increase
in the rate under (i), (ii) or (iii) above shall
be payable for any period during which a Shelf
Registration is effective.
(f) Specific Enforcement. Without
limiting the remedies available to the Initial
Purchasers and the Holders, the Company
acknowledges that any failure by the Company to
comply with its obligations under Sections 2(a)
and 2(b) hereof may result in material irreparable
injury to the Initial
<PAGE>
Purchasers or the Holders
for which there is no adequate remedy at law, that
it will not be possible to measure damages for
such injuries precisely and that, in the event of
any such failure, the Initial Purchasers or any
Holder may obtain such relief as may be required
to specifically enforce the Company's obligations
under Sections 2(a) and 2(b).
3. Registration Procedures. In connection
with the obligations of the Company with respect to the
Registration Statements pursuant to Sections 2(a) and
2(b) hereof, the Company shall:
(a) prepare and file with the SEC a
Registration Statement, within the time periods
specified in Section 2, on the appropriate form under
the 1933 Act, which form (i) shall be selected by the
Company, (ii) shall, in the case of a Shelf
Registration Statement, be available for the sale of
the Registrable Debentures by the selling Holders
thereof and (iii) shall comply as to form in all
material respects with the requirements of the
applicable form and include or incorporate by reference
all financial statements required by the SEC to be
filed therewith, and use its reasonable best efforts to
cause such Registration Statement to become effective
and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such
amendments and post-effective amendments to each
Registration Statement as may be necessary under
applicable law to keep such Registration Statement
effective for the applicable period; cause each
Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the 1933 Act; and
comply with the provisions of the 1933 Act with respect
to the disposition of all Debentures covered by each
Registration Statement during the applicable period in
accordance with the intended method or methods of
distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i)
notify each Holder of Registrable Debentures, at least
ten business days prior to filing, that a Shelf
Registration Statement with respect to the Registrable
Debentures is being filed and advising such Holders
that the distribution of Registrable Debentures will be
made in accordance with the method elected by the
Majority Holders; (ii) furnish to each Holder of
Registrable Debentures, to counsel for the Initial
Purchasers, to counsel for the Holders and to each
underwriter of an underwritten offering of Registrable
Debentures, if any, without charge, as many copies of
each Prospectus, including each preliminary Prospectus,
and any amendment or supplement thereto and such other
documents as such Holder or underwriter may reasonably
request, including financial statements and schedules
and, if the Holder so requests, all exhibits (including
those incorporated by reference) in order to facilitate
the public sale or other disposition of the Registrable
Debentures; and (iii) subject to the last paragraph of
this Section 3, hereby consent to the use of the
Prospectus, including each preliminary Prospectus, or
any amendment or supplement thereto by each of the
selling Holders of Registrable Debentures in connection
with the offering and sale of the Registrable
Debentures covered by the Prospectus or any amendment or
<PAGE>
supplement thereto;
(d) use its reasonable best efforts to
register or qualify the Registrable Debentures under
all applicable state securities or "blue sky" laws of
such jurisdictions as any Holder of Registrable
Debentures covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable
Debentures shall reasonably request by the time the
applicable Registration Statement is declared effective
by the SEC, to cooperate with the Holders in connection
with any filings required to be made with the NASD,
keep each such registration or qualification effective
during the period such Registration Statement is
required to be effective and do any and all other acts
and things which may be reasonably necessary or
advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such
Registrable Debentures owned by such Holder; provided,
however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section
3(d) or (ii) take any action which would subject it to
general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration,
notify each Holder of Registrable Debentures and
counsel for such Holders promptly and, if requested by
such Holder or counsel, confirm such advice in writing
promptly (i) when a Registration Statement has become
effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority
for post-effective amendments and supplements to a
Registration Statement and Prospectus or for additional
information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any
state securities authority of any stop order suspending
the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv)
if, between the effective date of a Registration
Statement and the closing of any sale of Registrable
Debentures covered thereby, the representations and
warranties of the Company contained in any underwriting
agreement, securities sales agreement or other similar
agreement, if any, relating to such offering cease to
be true and correct in all material respects, (v) of
the receipt by the Company of any notification with
respect to the suspension of the qualification of the
Registrable Debentures for sale in any jurisdiction or
the initiation or threatening of any proceeding for
such purpose, (vi) of the happening of any event or the
discovery of any facts during the period a Shelf
Registration Statement is effective (including as
contemplated in Section 2(d)(iii) hereof) which (A) is
contemplated in Section 2(d)(i) or (B) makes any
statement made in such Shelf Registration Statement or
the related Prospectus untrue in any material respect
or which requires the making of any changes in such
Shelf Registration Statement or Prospectus in order to
make the statements therein not misleading and (vii) of
any determination by the Company that a post-effective
amendment to a Registration Statement would be
appropriate;
(f) (A) in the case of an Exchange Offer,
(i) include in the Exchange Offer Registration
Statement a "Plan of Distribution" section covering the
use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who
<PAGE>
have exchanged their Registrable Debentures for Exchange
Debentures for the resale of such Exchange Debentures,
(ii) furnish to each broker-dealer who desires to
participate in the Exchange Offer, without charge, as
many copies of each Prospectus included in the Exchange
Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as
such broker-dealer may reasonably request, (iii)
include in the Exchange Offer Registration Statement a
statement that any broker-dealer who holds Registrable
Debentures acquired for its own account as a result of
market-making activities or other trading activities (a
"Participating Broker-Dealer"), and who receives
Exchange Debentures for Registrable Debentures pursuant
to the Exchange Offer, may be a statutory underwriter
and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such
Exchange Debentures, (iv) subject to the last paragraph
of this Section 3, hereby consent to the use of the
Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement
thereto, by any broker-dealer in connection with the
sale or transfer of the Exchange Debentures covered by
the Prospectus or any amendment or supplement thereto,
and (v) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer the
following provision:
"If the undersigned is not a broker-dealer,
the undersigned represents that it is not engaged in,
and does not intend to engage in, a distribution of
Exchange Debentures. If the undersigned is a broker-
dealer that will receive Exchange Debentures for its
own account in exchange for Registrable Debentures, it
represents that the Registrable Debentures to be
exchanged for Exchange Debentures were acquired by it
as a result of market-making activities or other
trading activities and acknowledges that it will
deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of such Exchange
Debentures pursuant to the Exchange Offer; 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 1933 Act;"
(B) to the extent any Participating
Broker-Dealer participates in the Exchange Offer,
the Company shall use its best efforts to cause to
be delivered at the request of an entity
representing the Participating Broker-Dealers
(which entity shall be Merrill Lynch, Pierce,
Fenner & Smith Incorporated, unless it elects not
to act as such representative) any "cold comfort"
letters with respect to the Prospectus in the form
existing on the last date for which exchanges are
accepted pursuant to the Exchange Offer and with
respect to each subsequent amendment or
supplement, if any, effected during the period
specified in clause (C) below;
(C) to the extent any Participating
Broker-Dealer participates in the Exchange Offer,
the Company shall use its reasonable best efforts
to maintain the effectiveness of the Exchange
Offer Registration Statement for a period of 180
days following the closing of the Exchange Offer
or such shorter period which will terminate when
the Participating Broker-Dealers have completed
all resales
<PAGE>
subject to applicable prospectus delivery requirements; and
(D) the Company shall not be required
to amend or supplement the Prospectus contained in
the Exchange Offer Registration Statement as would
otherwise be contemplated by Section 3(b) hereof,
or take any other action as a result of this
Section 3(f), for a period exceeding 180 days
after the last date for which exchanges are
accepted pursuant to the Exchange Offer (as such
period may be extended by the Company) and
Participating Broker-Dealers shall not be
authorized by the Company to, and shall not,
deliver such Prospectus after such period in
connection with resales contemplated by this
Section 3;
(g) (i) in the case of an Exchange Offer,
furnish counsel for the Initial Purchasers and (ii) in
the case of a Shelf Registration, furnish counsel for
the Holders of Registrable Debentures copies of any
request by the SEC or any state securities authority
for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain
the withdrawal of any order suspending the
effectiveness of a Registration Statement as soon as
practicable and provide immediate notice to each Holder
of the withdrawal of any such order;
(i) in the case of a Shelf Registration,
furnish to each Holder of Registrable Debentures,
without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(j) in the case of a Shelf Registration,
cooperate with the selling Holders of Registrable
Debentures to facilitate the timely preparation and
delivery of certificates representing Registrable
Debentures to be sold and not bearing any restrictive
legends; and cause such Registrable Debentures to be in
such denominations (consistent with the provisions of
the Indenture) in a form eligible for deposit with the
Depositary and registered in such names as the selling
Holders or the underwriters, if any, may reasonably
request in writing at least one business day prior to
the closing of any sale of Registrable Debentures;
(k) in the case of a Shelf Registration,
upon the occurrence of any event or the discovery of
any facts, each as contemplated by Section 3(e)(vi)
hereof, use its best efforts to prepare a supplement or
post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated
therein by reference or file any other required
document so that, as thereafter delivered to the
purchasers of the Registrable Debentures, such
Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading. The Company
agrees to notify each Holder to suspend use of the
Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby
<PAGE>
agrees to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to
correct such misstatement or omission. At such time as
such public disclosure is otherwise made or the Company
determines that such disclosure is not necessary, in
each case to correct any misstatement of a material
fact or to include any omitted material fact, the
Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such numbers
of copies of the Prospectus, as amended or
supplemented, as such Holder may reasonably request;
(l) obtain CUSIP numbers for all Exchange
Debentures, or Registrable Debentures, as the case may
be, not later than the effective date of a Registration
Statement, and provide the Trustee with printed
certificates for the Exchange Debentures or Registrable
Debentures, as the case may be, in a form eligible for
deposit with the Depositary;
(m) (i) cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended (the
"TIA"), in connection with the registration of the
Exchange Debentures, or Registrable Debentures, as the
case may be, (ii) cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in
accordance with the terms of the TIA and (iii) execute,
and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents
required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration,
enter into agreements (including underwriting
agreements) and take all other customary and
appropriate actions (including those reasonably
requested by the holders of a majority in principal
amount of the Registrable Debentures being sold) in
order to expedite or facilitate the disposition of such
Registrable Debentures and in such connection, whether
or not an underwriting agreement is entered into and
whether or not the registration is an underwritten
registration, in a manner that is reasonable and
customary:
(i) make such representations and
warranties to the Holders of such Registrable
Debentures and the underwriters, if any, in form,
substance and scope as are customarily made by
issuers to underwriters in similar underwritten
offerings as may be reasonably requested by such
Holders and underwriters;
(ii) obtain opinions of counsel to the
Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing
underwriters, if any, and the Holders of a
majority in principal amount of the Registrable
Debentures being sold) addressed to each selling
Holder and the underwriters, if any, covering the
matters customarily covered in opinions requested
in sales of securities or underwritten offerings
and such other matters as may be reasonably
requested by such Holders and underwriters;
<PAGE>
(iii) obtain "cold comfort" letters
and updates thereof from the Company's independent
certified public accountants addressed to the
underwriters, if any, and will use best efforts to
have such letters addressed to the selling Holders
of Registrable Debentures, such letters to be in
customary form and covering matters of the type
customarily covered in "cold comfort" letters to
underwriters in connection with similar
underwritten offerings;
(iv) enter into a securities sales
agreement with the Holders and an agent of the
Holders providing for, among other things, the
appointment of such agent for the selling Holders
for the purpose of soliciting purchases of
Registrable Debentures, which agreement shall be
in form, substance and scope customary for similar
offerings;
(v) if an underwriting agreement is
entered into in the case of an underwritten
offering, cause the same to set forth
indemnification provisions and procedures
substantially equivalent to the indemnification
provisions and procedures set forth in Section 5
hereof with respect to the underwriters and all
other parties to be indemnified pursuant to
Section 5 hereof; and
(vi) deliver such documents and
certificates as may be reasonably requested and as
are customarily delivered in similar offerings.
The above shall be done at (i) the
effectiveness of such Registration Statement (and, if
appropriate, each post-effective amendment thereto) and
(ii) each closing under any underwriting or similar
agreement as and to the extent required thereunder. In
the case of any underwritten offering, the Company
shall provide written notice to the Holders of all
Registrable Debentures of such underwritten offering at
least thirty days prior to the filing of a prospectus
supplement for such underwritten offering. Such notice
shall (x) offer each such Holder the right to
participate in such underwritten offering, (y) specify
a date, which shall be no earlier than ten days
following the date of such notice, by which such Holder
must inform the Company of its intent to participate in
such underwritten offering and (z) include the
instructions such Holder must follow in order to
participate in such underwritten offering;
(o) in the case of a Shelf Registration,
make available for inspection by representatives of the
Holders of the Registrable Debentures and any
underwriters participating in any disposition pursuant
to a Shelf Registration Statement and any U.S. counsel
or accountant retained by such Holders or underwriters,
all financial and other records, pertinent corporate
documents and properties of the Company reasonably
requested by any such Persons, and cause the respective
officers, directors, employees, and any other agents of
the Company to supply all information reasonably
requested by any such representative, underwriter,
special counsel or accountant in connection with a
Registration Statement; provided, that any such
records, documents, properties and such information
that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such
records, documents, properties or information shall be kept
<PAGE>
confidential by any such representative,
underwriter, counsel or accountant and shall be used
only in connection with such Shelf Registration
Statement, unless such information has become available
(not in violation of this Agreement) to the public
generally or through a third party without an
accompanying obligation of confidentiality, and except
that such representative, underwriter, counsel or
accountant shall have no liability, and shall not be in
breach of this provision, if disclosure of such
confidential information is made in connection with a
court proceeding or required by law, and the Company
shall be entitled to request that such representative,
underwriter, counsel or accountant sign a
confidentiality agreement to the foregoing effect.
Each such person will be required to agree that
information obtained by it as a result of such
inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions
in the securities of the Company unless and until such
is made generally available to the public through no
fault or action of such person. Each selling Holder of
such Registrable Debentures will be required to further
agree that it will, upon learning that disclosure of
confidential information is necessary, give notice to
the Company to allow the Company at its expense to
undertake appropriate action to prevent disclosure of
the confidential information;
(p) (i) in the case of an Exchange Offer, a
reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a
part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to a
Prospectus, provide copies of such document to the
Initial Purchasers, and make such changes in any such
document prior to the filing thereof as the Initial
Purchasers or their counsel may reasonably request;
(ii) in the case of a Shelf Registration, a reasonable
time prior to filing any Shelf Registration Statement,
any Prospectus forming a part thereof, any amendment to
such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such
document to the Holders of Registrable Debentures, to
the Initial Purchasers, to counsel on behalf of the
Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Debentures, if
any, and make such changes in any such document prior
to the filing thereof as counsel to the Initial
Purchasers or any underwriter may reasonably request;
and (iii) cause the representatives of the Company to
be available for discussion of such document as shall
be reasonably requested by the Holders of Registrable
Debentures, the Initial Purchasers on behalf of such
Holders or any underwriter, and shall not at any time
make any filing of any such document of which such
Holders, the Initial Purchasers on behalf of such
Holders, their counsel or any underwriter shall not
have previously been advised and furnished a copy or to
which such Holders, the Initial Purchasers on behalf of
such Holders, their counsel or any underwriter shall
reasonably object within a reasonable time period;
(q) in the case of a Shelf Registration, use
its reasonable best efforts to cause all Registrable
Debentures to be listed on any securities exchange on
which similar debt securities issued by the Company are
then listed if requested by the Majority Holders or by
the underwriter or underwriters of an underwritten
offering of Registrable Debentures, if any;
<PAGE>
(r) in the case of a Shelf Registration, use
its reasonable best efforts to cause the Registrable
Debentures to be rated with the appropriate rating
agencies, if so requested by the holders of a majority
in principal amount of Registrable Debentures or by the
underwriter or underwriters of an underwritten
offering, unless the Registrable Debentures are already
so rated;
(s) otherwise use its reasonable best
efforts to comply with all applicable rules and
regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an
earnings statement covering at least twelve months
which shall satisfy the provisions of Section 11(a) of
the 1933 Act and Rule 158 thereunder; and
(t) cooperate and assist in any filings
required to be made with the NASD and in the
performance of any due diligence investigation by any
underwriter and its counsel.
In the case of a Shelf Registration
Statement, the Company may (as a documents required
undcondition to such Holder's participation in the
Shelf Registration) require each Holder of Registrable
Debentures to furnish to the Company such information
regarding such Holder and the proposed distribution by
such Holder of such Registrable Debentures as the
Company may from time to time reasonably request and
agree in writing to be bound by the Agreement,
including the indemnification provisions.
In the case of a Shelf Registration
Statement, each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event
or the discovery of any facts, each of the kind
described in Sections 2(d)(i) and 3(e)(ii)-(vii)
hereof, such Holder will forthwith discontinue
disposition of Registrable Debentures pursuant to a
Registration Statement until such Holder's receipt of
(i) the copies of the supplemented or amended
Prospectus contemplated by Section 3(k) hereof or (ii)
written notice from the Company that the Shelf
Registration Statement is once again effective and that
no supplement or amendment is required. If so directed
by the Company, such Holder will deliver to the Company
(at the Company's expense) all copies in its
possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering
such Registrable Debentures current at the time of
receipt of such notice.
If the Company shall give any such notice to
suspend the disposition of Registrable Debentures
pursuant to a Shelf Registration Statement as a result
of the happening of any event or the discovery of any
facts, each of the kind described in Sections 2(d)(i)
and 3(e)(vi) hereof, the Company shall be deemed to
have used its reasonable best efforts to keep the Shelf
Registration Statement effective during such period of
suspension; provided that (i) such period of suspension
shall not exceed the time periods provided in Section
2(d)(iii) hereof and (ii) the Company shall, if
necessary, use its reasonable best efforts to file and
have declared effective (if an amendment) as
<PAGE>
soon as practicable an amendment or supplement to the Shelf
Registration Statement and shall extend the period
during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the
number of days during the period from and including the
date of the giving of such notice to and including the
date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume
such dispositions.
4. Underwritten Registrations. If any of
the Registrable Debentures covered by any Shelf
Registration are to be sold in an underwritten
offering, the investment banker or investment bankers
and manager or managers that will manage the offering
will be selected by the Majority Holders of such
Registrable Debentures included in such offering and
shall be reasonably acceptable to the Company.
No Holder of Registrable Debentures may
participate in any underwritten registration hereunder
unless such Holder (a) agrees to sell such Holder's
Registrable Debentures on the basis provided in any
underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and
other er the terms of such underwriting arrangements.
5. Indemnification and Contribution. (a)
The Company agrees to indemnify and hold harmless each
Initial Purchaser, each Holder, including Participating
Broker-Dealers, each underwriter who participates in an
offering of Registrable Debentures, their respective
affiliates, and their respective directors, officers,
employees, agents, and each Person, if any, who
controls any Initial Purchaser or any Holder within the
meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act, from and against any and all
losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses
reasonably incurred by the Initial Purchaser, any
Holder or any such controlling or affiliated Person in
connection with defending or investigating any such
action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained
in any Registration Statement or any amendment thereof,
pursuant to which Exchange Debentures or Registrable
Debentures were registered under the 1933 Act,
including all documents incorporated therein by
reference, or caused by any omission or alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading, or caused by any untrue
statement or alleged untrue statement of a material
fact contained in any Prospectus (as amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a
material fact necessary to make the statements therein
in light of the circumstances under which they were
made not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue
statement or omission based upon information relating
to any Initial Purchaser or any Holder furnished to the
Company in writing by such Initial Purchaser through
you or by or relating to any Holder or underwriter who
participates in an offering of Registrable Debentures,
in each case expressly for use therein.
<PAGE>
(b) Each Holder agrees, severally and not
jointly, to indemnify and hold harmless the Company,
each Initial Purchaser, each underwriter who
participates in an offering of Registrable Debentures,
and the other selling Holders, and each of their
respective directors and officers (including each
director and officer of the Company who signed the
Registration Statement) and each person, if any, who
controls the Company, any Initial Purchaser, any
underwriter or any other selling Holder within the
meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act from and against any and all losses,
claims, damages and liabilities (including, without
limitation, any legal or other expenses described in
the indemnity contained in Section 5(a), as incurred,
but only with reference to information relating to such
Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement
or any amendment thereof or any Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any
governmental investigation) shall be instituted
involving any Person in respect of which indemnity may
be sought pursuant to either paragraph (a) or paragraph
(b) above, such Person (the "indemnified party") shall
promptly notify the person against whom such indemnity
may be sought (the "indemnifying party") in writing
(but the failure to so notify the indemnifying party
will not relieve it from any liability which it may
have to any indemnified party otherwise than under this
Section 5) and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party
may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding
(including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both parties by the same counsel
would be inappropriate due to actual or potential
differing interests between them. It is understood
that the indemnifying party shall not, in respect of
the legal expenses of any indemnified party in
connection with any proceeding or related proceedings
in the same jurisdiction, be liable for (a) the fees
and expenses of more than one separate firm (in
addition to any local counsel) for the Initial
Purchasers and all Persons, if any, who control any
Initial Purchaser within the meaning of either Section
15 of the 1933 Act or Section 20 of the 1934 Act, (b)
the fees and expenses of more than one separate firm
(in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration
Statement and each Person, if any, who controls the
Company within the meaning of either such Section and
(c) the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Holders
and all Persons, if any, who control any Holders within
the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for
the Initial Purchasers and such control Persons of
Initial Purchasers, such firm shall be designated in
writing by Merrill Lynch. In the case of any such
separate firm for the
<PAGE>
Holders and such Persons who
control Holders, such firm shall be designated in
writing by the Majority Holders. In all other cases,
such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without
its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel
as contemplated by the second and third sentences of
this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding
effected without its written consent if (i) such
settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No
indemnifying party shall, without the prior written
consent of the indemnified party, which consent shall
not be unreasonably withheld, effect any settlement of
any pending or threatened proceeding in respect of
which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement (i)
includes an unconditional release of such indemnified
party from all liability on claims that are the subject
matter of such proceeding and (ii) does not include a
statement as to an admission of fault, culpability or
failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in
paragraph (a) or paragraph (b) of this Section 5 is
unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities
in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on
the one hand and of the indemnified party or parties on
the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable
considerations. The relative fault of such
indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand shall be
determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a
material fact relates to information supplied by such
indemnifying party or parties or such indemnified party
or parties, and the parties' relative intent,
knowledge, access to information and opportunity to
correct or prevent such statement or omission. The
Company, Initial Purchasers, and the Holders of
Registrable Debentures respective obligations to
contribute pursuant to this Section 5 are several in
proportion to the respective number of Debentures they
have purchased hereunder, and not joint.
(e) The Company, the Initial Purchasers, and
each Holder of Registrable Debentures agree that it
would not be just or equitable if contribution
<PAGE>
pursuant to this Section 5 were determined by pro rata
allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method
of allocation that does not take account of the
equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred
by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no
Holder shall be required to indemnify or contribute any
amount in excess of the amount by which the total price
at which Registrable Debentures were sold by such
Holder exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f)
of the 1933 Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5,
each Person, if any, who controls an Initial Purchaser
or Holder within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same
rights to contribution as such Initial Purchaser or
Holder, and each director of the Company, each officer
of the Company who signed the Registration Statement,
and each Person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights
to contribution as the Company. The remedies provided
for in this Section 5 are not exclusive and shall not
limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions
contained in this Section 5 shall remain operative and
in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation
made by or on behalf of any Initial Purchaser or any
Holder, or any Person controlling any Initial Purchaser
or any Holder, or by or on behalf of the Company, its
officers or directors or any Person controlling the
Company, (iii) acceptance of any of the Exchange
Debentures and (iv) any sale of Registrable Debentures
pursuant to a Shelf Registration Statement.
6. Miscellaneous. (a) Rule 144 and Rule
144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the 1934
Act, the Company covenants that it will file the
reports required to be filed by it under Section 13(a)
or 15(d) of the 1934 Act and the rules and regulations
adopted by the SEC thereunder, that if it ceases to be
so required to file such reports, it will upon the
request of any Holder of Registrable Debentures (i)
make publicly available or cause to be made publicly
available such information as is necessary to permit
sales pursuant to Rule 144 under the 1933 Act, (ii)
deliver or cause to be delivered such information to a
prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and it will
take such further action as any Holder of Registrable
Debentures may reasonably request, and (iii) take such
further action that is reasonable in the circumstances,
in each case, to the extent required from time to time
to enable such Holder to sell its Registrable
Debentures without registration under the 1933 Act
within the limitation of the
<PAGE>
exemptions provided by (x)
Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (y) Rule 144A under the 1933
Act, as such Rule may be amended from time to time, or
(z) any similar rules or regulations hereafter adopted
by the SEC. Upon the written request of any Holder of
Registrable Debentures, the Company will deliver to
such Holder a written statement as to whether it has
complied with such requirements.
(b) No Inconsistent Agreements. The Company
has not entered into nor will the Company on or after
the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the
Holders of Registrable Debentures in this Agreement or
otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other
issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers. The provisions
of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the
provisions hereof may not be given unless the Company
has obtained the written consent of Holders of at least
a majority in aggregate principal amount of the
outstanding Registrable Debentures affected by such
amendment, modification, supplement, waiver or
departure.
(d) Notices. All notices and other
communications provided for or permitted hereunder
shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder
(other than an Initial Purchaser), at the most current
address set forth on the records of the Registrar under
the Indenture, (ii) if to an Initial Purchaser, at the
most current address given by such Initial Purchaser to
the Company by means of a notice given in accordance
with the provisions of this Section 6(d), which address
initially is the address set forth in the Purchase
Agreement; and (iii) if to the Company, initially at
the address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is
given in accordance with the provisions of this Section
6(d).
All such notices and communications shall be
deemed to have been duly given: at the time delivered
by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if
mailed; when receipt is acknowledged, if telecopied;
and on the next business day if timely delivered to an
air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other
communications shall be concurrently delivered by the
Person giving the same to the Trustee, at the address
specified in the Indenture.
(e) Successors and Assigns. This Agreement
shall inure to the benefit of and be binding upon the
successors, assigns and transferees of each of the
parties, including, without limitation and without the
need for an express assignment, subsequent Holders;
provided that nothing herein shall be deemed to permit
any assignment, transfer
<PAGE>
or other disposition of
Registrable Debentures in violation of the terms hereof
or of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable
Debentures, in any manner, whether by operation of law
or otherwise, such Registrable Debentures shall be held
subject to all of the terms of this Agreement, and by
taking and holding such Registrable Debentures, such
Person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and
provisions of this Agreement, including the
restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such Person
shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiary. The Holders
shall be third party beneficiaries to the agreements
made hereunder between the Company on the one hand, and
the Initial Purchasers, on the other hand, and shall
have the right to enforce such agreements directly to
the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be
executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and
all of which taken together shall constitute one and
the same agreement.
(h) Headings. The headings in this
Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one
or more of the provisions contained herein, or the
application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in
every other respect and of the remaining provisions
contained herein shall not be affected or impaired
thereby.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first written
above.
KOHL'S CORPORATION
By: /s/ R. Lawrence Montgomery
------------------------------
Name: R.Lawrence Montgomery
Title: Vice Chairman of the Board and
Chief Executive Officer
Confirmed and Accepted,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
MORGAN STANLEY & CO. INCORPORATED
BNY CAPITAL MARKETS, INC.
BANC ONE CAPITAL MARKETS, INC.
By: MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Cynthia Bates
--------------------
Name: Cynthia Bates
Title: Vice President
GODFREY & KAHN, S.C.
780 North Water Street
Milwaukee, Wisconsin 53202-3590
TEL (414) 273-3500
July 16, 1999
Kohl's Corporation
N56 W17000 Ridgewood Drive
Menomonee Falls, Wisconsin 53051
RE: Registration Statement on Form S-4
$200 million aggregate principal amount
7 1/4% Debentures due June 1, 2029
Ladies and Gentlemen:
We have acted as special counsel to Kohl's
Corporation, a Wisconsin corporation (the "Company"),
in connection with the Company's registration of
$200,000,000 aggregate principal amount of its 7 1/4%
Debentures due June 1, 2029 (the "New Debentures") on a
Registration Statement on Form S-4 (the "Registration
Statement") to be filed on or about July 16, 1999 with
the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"). The
New Debentures will be offered in exchange (the
"Exchange Offer") for any and all of the Company's
outstanding 7 1/4% Debentures due June 1, 2029 (the
"Old Debentures"). The Old Debentures were issued, and
the New Debentures will be issued, pursuant to the
Indenture between the Company and The Bank of New York,
as Trustee, dated as of December 1, 1995 as
supplemented by a First Supplemental Indenture, dated
as of June 1, 1999 (the "Indenture"). In our role as
special counsel, we have examined such corporate and
other records, instruments, certificates and documents
as we considered necessary to enable us to express this
opinion.
Based on the foregoing, it is our opinion that,
upon completion of the Exchange Offer, the New
Debentures will have been duly authorized for issuance
and, when the New Debentures are duly executed,
authenticated, issued and delivered in accordance with
the Indenture, the New Debentures will constitute valid
and legally binding obligations of the Company,
entitled to the benefits of the Indenture, subject to
bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general
applicability relating to or affecting creditors'
rights and to general equity principles (whether
considered in proceeding at law or in equity),
including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing. In
applying such principles, a court, among other things,
might not allow the Trustee to take action based upon
the occurrence of a default deemed immaterial, and we
assume that the Trustee will at all time act in good
faith, in a commercially reasonable manner and in
compliance with all laws and regulations.
<PAGE>
The foregoing opinions are limited to the laws of
the State of Wisconsin, and we express no opinion with
respect to any other laws. The Indenture and the New
Debentures state that they are governed by New York
law. For purposes of our opinion above, we have
assumed that the laws of the State of New York are
identical to the laws of the State of Wisconsin.
We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement and to being
named in the related prospectus under the caption
"Legal Matters" with respect to the matters stated
therein. In giving such consent, we do not admit that
we are in the category of persons whom consent is
required under Section 7 of the Act.
Mr. Peter M. Sommerhauser is an affiliate of the
Company and a shareholder and member of the Management
Committee of Godfrey & Kahn, S.C.
Very truly yours,
/s/Godfrey & Kahn, S.C.
GODFREY & KAHN, S.C.
LDL:ica
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the
captions "Selected Consolidated Financial Data" and
"Experts" in the Registration Statement (Form S-4) and
related Prospectus of Kohl's Corporation for the
registration of $200,000,000 of 7.25% Debentures and to
the incorporation by reference therein of our report
dated March 5, 1999, except for Note 12 for which the
date is March 18, 1999, with respect to the
consolidated financial statements and schedule of
Kohl's Corporation included in its Annual Report (Form
10-K) for the year ended January 30, 1999, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Milwaukee, Wisconsin
July 14, 1999
Exhibit 25
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
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 (Zip code)
offices)
___________________________
KOHL'S CORPORATION
(Exact name of obligor as specified in its charter)
Wisconsin 39-1630919
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
N56 W17000 Ridgewood Drive
Menomonee Falls, Wisconsin 53051
(Address of principal executive (Zip code)
offices)
___________________________
7 1/4% Debentures due June 1, 2029
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
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 2 Rector Street, New York, N.Y.
State of New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
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.)
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>
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 6th day of July, 1999.
THE BANK OF NEW YORK
By: /s/MICHELE L. RUSSO
------------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
<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 March 31, 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.
ASSETS Dollar Amounts
In Thousands
Cash and balances due from
depository institutions:
Noninterest-bearing balances and currency $4,508,742
and coin
Interest-bearing balances 4,425,071
Securities:
Held-to-maturity securities 836,304
Available-for-sale securities 4,047,851
Federal funds sold and Securities purchased
under agreements to resell 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned
income.........39,349,679
LESS: Allowance for loan and
lease losses......603,025
LESS: Allocated transfer risk
reserve............15,906
Loans and leases, net of unearned income,
allowance, and reserve 38,730,748
Trading Assets 1,571,372
Premises and fixed assets
(including capitalized leases) 685,674
Other real estate owned 10,331
Investments in unconsolidated
subsidiaries and associated companies 182,449
Customers' liability to this bank
on acceptances outstanding 1,184,882
Intangible assets 1,129,636
Other assets 2,632,309
Total assets $61,688,578
<PAGE>
LIABILITIES
Deposits:
In domestic offices $25,731,036
Noninterest-bearing 10,252,589
Interest-bearing 15,478,447
In foreign offices, Edge and
Agreement subsidiaries, and IBFs 18,756,302
Noninterest-bearing 111,386
Interest-bearing 18,644,916
Federal funds purchased and
Securities sold under agreements to repurchase 3,276,362
Demand notes issued to the U.S. Treasury 230,671
Trading liabilities 1,554,493
Other borrowed money:
With remaining maturity of one
year or less 1,154,502
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 1,185,364
Subordinated notes and debentures 1,308,000
Other liabilities 2,743,590
Total liabilities 55,971,865
EQUITY CAPITAL
Common stock 1,135,284
Surplus 764,443
Undivided profits and capital reserves 3,807,697
Net unrealized holding gains (losses)
on available-for-sale securities 44,106
Cumulative foreign currency
translation adjustments (34,817)
Total equity capital 5,716,713
Total liabilities and equity capital $61,688,578
<PAGE>
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.
Thomas J. Mastro
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
Exhibit 99.1
LETTER OF TRANSMITTAL
FOR TENDERS OF
$200,000,000 Aggregate Principal Amount of
7 1/4% Debentures due June 1, 2029
KOHL'S CORPORATION
Pursuant to the Prospectus
dated , 1999 of Kohl's Corporation
THE EXCHANGE OFFER WILL EXPIRE 5:00 P.M., NEW YORK CITY
TIME, ON JULY , 1999, UNLESS EXTENDED (THE
"EXPIRATION DATE''). TENDERED OLD DEBENTURES MAY BE WITHDRAWN
AT ANY TIME PRIOR TO 5:00 P.P., NEW YORK CITY TIME, ON THE EXPIRATION
DATE.
Deliver to: The Bank of New York, Exchange Agent:
By Registered or Certified Mail: By Overnight Courier or Hand:
The Bank of New York The Bank of New York
101 Barclay Street 101 Barclay Street
Floor 7-E Corporate Trust Services Window
New York, NY 10286 Ground Level
Attention: Reorganization Section New York, NY 10286
Attention: Reorganization Section
By Facsimile:
(212) 815-6339
Confirm by Telephone for Eligible Institutions:
(212) 815-5920
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE, OR TRANSMISSION OF
INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH
ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges that he or she has
received the prospectus, dated
, 1999 (the "Prospectus"), of Kohl's Corporation, a
Wisconsin corporation (the "Company"), and this Letter
of Transmittal, which may be amended from time to time
(this "Letter"), which together constitute the
Company's offer (the "Exchange Offer") to exchange up
to $200 million aggregate principal amount of 7 1/4%
Debentures due June 1, 2029 which have been registered
under the Securities Act of 1933, as amended (the "New
Debentures"), of the Company for a like principal
amount of the Company's issued and outstanding 7 1/4%
Debentures due June 1, 2029 (the "Old Debentures" and
sometimes collectively with the New Debentures, the
"Debentures"), with the Holders thereof.
As used herein, ``Holder" shall mean the owner of
any Old Debentures as reflected in the records of The
Bank of New York as registrar for the Old Debentures
(in such capacity, the "Registrar''), or any person
whose Old Debentures are held of record by DTC (as
defined below).
<PAGE>
For each Old Debenture accepted for exchange, the
Holder of such Old Debenture will receive a New
Debenture having a principal amount equal to that of
the surrendered Old Debenture. Each New Debenture will
bear interest from the most recent date to which
interest has been paid or duly provided for on the Old
Debenture surrendered in exchange for such New
Debenture or, if no such interest has been paid or duly
provided for on such Old Debenture, from June 1, 1999.
Holders of the Old Debentures whose Old Debentures are
accepted for exchange will not receive accrued interest
on such Old Debentures for any period from and after
the last interest payment date to which interest has
been paid or duly provided for on such Old Debentures
or, if no such interest has been paid or duly provided
for, from and after June 1, 1999.
This Letter is to be used: (a) by all Holders who
are not members of the Automated Tender Offering
Program ("ATOP") at the Depository Trust Company
("DTC"); (b) by Holders who are ATOP members but choose
not to use ATOP; or (c) if the Old Debentures are to be
tendered in accordance with the guaranteed delivery
procedures set forth in "The Exchange Offer-Guaranteed
Delivery Procedures" section of the Prospectus. See
Instruction 2. Delivery of this Letter to DTC does not
constitute delivery to the Exchange Agent.
Subject to the terms of the Exchange Offer, the
Company will accept for exchange any and all Old
Debentures validly tendered on or prior to 5:00 p.m.,
New York City time, on , 1999, unless
the Exchange Offer is extended by the Company (the
"Expiration Date"). Tenders of Old Debentures may be
withdrawn at any time prior to 5:00 p.m., New York City
time, on the Expiration Date.
IMPORTANT: HOLDERS WHO WISH TO TENDER OLD
DEBENTURES IN THE EXCHANGE OFFER MUST COMPLETE THIS
LETTER OF TRANSMITTAL AND TENDER THE OLD DEBENTURES TO
THE EXCHANGE AGENT AND NOT TO THE COMPANY.
The Exchange Offer is not conditioned upon any
minimum principal amount of Old Debentures being
tendered for exchange. However, the Exchange Offer is
subject to certain conditions. Please see the
Prospectus under "The Exchange Offer-Conditions of the
Exchange Offer."
The Exchange Offer is not being made to, nor will
tenders be accepted from or on behalf of, Holders of
Old Debentures in any jurisdiction in which the making
or acceptance of the Exchange Offer would not be in
compliance with the laws of such jurisdiction.
The instructions included with this Letter of
Transmittal must be followed in their entirety.
Questions and requests for assistance or for additional
copies of the Prospectus or this Letter of Transmittal
may be directed to the Exchange Agent at the address
listed on the front page hereof.
APPROPRIATE SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
LADIES AND GENTLEMEN:
The undersigned hereby tenders to the Company the
principal amount of Old Debentures indicated below
under "Description of Old Debentures," in accordance
with and upon the terms and subject to the conditions
set forth in the Prospectus, receipt of which is hereby
acknowledged, and in this Letter of Transmittal, for
the purpose of exchanging each $1,000 principal amount
of Old Debentures designated herein held by the
undersigned and tendered hereby for $1,000 principal
amount of the New Debentures. New Debentures will be
issued only in a minimum denomination of $100,000 and
integral multiples of $1,000 to each tendering Holder
of Old Debentures whose Old Debentures are accepted in
the Exchange Offer. Subject to the foregoing, Holders
may tender all or a portion of their Old Debentures
pursuant to the Exchange Offer.
Subject to, and effective upon, the acceptance for
exchange of the Old Debentures tendered herewith in
accordance with the terms of the Exchange Offer, the
undersigned hereby sells, assigns and transfers to, or
upon the order of, the Company all right, title and
interest in and to all such Old Debentures that are
being tendered hereby and that are being accepted for
exchange pursuant to the Exchange Offer. The
undersigned hereby irrevocably
<PAGE>
constitutes and appoints
the Exchange Agent as the true and lawful agent and
attorney-in-fact of the undersigned (with full
knowledge that the Exchange Agent also acts as the
agent of the Company), with respect to the Old
Debentures tendered hereby and accepted for exchange
pursuant to the Exchange Offer with full power of
substitution (such power of attorney being deemed to be
an irrevocable power coupled with an interest) to
deliver the Old Debentures tendered hereby to the
Company (together with all accompanying evidences of
transfer and authenticity) for transfer or cancellation
by the Company.
All authority conferred or agreed to be conferred
in this Letter of Transmittal shall not be affected by,
and shall survive, the death or incapacity of the
undersigned and any obligation of the undersigned
hereunder shall be binding upon the heirs, executors,
administrators, legal representatives, successors and
assigns of the undersigned. Any tender of Old
Debentures hereunder may be withdrawn only in
accordance with the procedures set forth in the
instructions contained in this Letter of Transmittal.
See Instruction 4 hereto.
The undersigned hereby represents and warrants
that he or she has full power and authority to tender,
exchange, assign and transfer the Old Debentures
tendered hereby and that the Company will acquire good
and unencumbered title thereto, free and clear of all
liens, restrictions, charges and encumbrances and not
subject to any adverse claim. The undersigned will,
upon request, execute and deliver any additional
documents deemed by the Company to be necessary or
desirable to complete the assignment and transfer of
the Old Debentures tendered. The undersigned has read
and agrees to all of the terms of the Exchange Offer.
The undersigned will, upon request, execute and
deliver any additional documents deemed by the Company
to be necessary or desirable to complete the sale,
assignment and transfer of the Old Debentures tendered
hereby. All authority conferred or agreed to be
conferred in this Letter and every obligation of the
undersigned hereunder shall be binding upon the
successors, assigns, heirs, executors, administrators,
trustees in bankruptcy and legal representatives of the
undersigned and shall not be affected by, and shall
survive, the death or incapacity of the undersigned.
This tender may be withdrawn only in accordance with
the procedures set forth in "The Exchange
Offer-Withdrawal Rights" section of the Prospectus.
The name(s) and address(es) of the registered
Holder(s) should be printed herein under "Description
of Old Debentures" (unless a label setting forth such
information appears thereunder), exactly as they appear
on the Old Debentures tendered hereby. The certificate
number(s) and the principal amount of Old Debentures to
which this Letter of Transmittal relates, together with
the principal amount of such Old Debentures that the
undersigned wishes to tender, should be indicated in
the appropriate boxes herein under "Description of Old
Debentures."
The undersigned understands that the tender of Old
Debentures pursuant to one of the procedures described
in the Prospectus under "The Exchange Offer-Procedures
for Tendering Old Debentures" and the Instructions
hereto will constitute the tendering Holder's
acceptance of the terms and the conditions of the
Exchange Offer. The Company's acceptance for exchange
of Old Debentures tendered pursuant to the Exchange
Offer will constitute a binding agreement between the
tendering Holder and the Company upon the terms and
subject to the conditions herein and in the Prospectus.
The undersigned acknowledges that the Company is
making the Exchange Offer in reliance on the position
of the staff of the Securities and Exchange Commission
(the "SEC") as set forth in certain interpretive
letters addressed to third parties in other
transactions. However, the Company has not sought its
own interpretive letter, and there can be no assurance
that the staff of the SEC would make a similar
determination with respect to the Exchange Offer as it
has in the interpretive letters to third parties.
Based on these interpretations by the staff of the SEC,
and except as provided below, the Company believes that
New Debentures issued pursuant to the Exchange Offer to
a Holder in exchange for Old Debentures may be offered
for resale, resold and otherwise transferred by a
Holder that participates in the Exchange Offer and is
not a broker-dealer, without further compliance with
the registration and prospectus delivery provisions of
the Securities Act of 1933, as amended (the "Securities
Act"). In order to receive New Debentures that are
freely tradable, a Holder must acquire the New
Debentures in the ordinary course of its business and
may not participate, or have any arrangement or
understanding with any person to participate, in the
distribution (within the meaning of the Securities Act)
of the Old Debentures or the New Debentures. Holders
wishing to participate in the Exchange Offer must make
the representations described below.
<PAGE>
Any Holder of Old
Debentures (a) who is the Company's "affiliate" (as
defined in Rule 405 under the Securities Act); (b) who
did not acquire the New Debentures in the ordinary
course of its business; or (c) who intends to
participate in the distribution (within the meaning, of
the Securities Act) of the Old Debentures or the New
Debentures, will be subject to separate restrictions.
Each Holder in any of the above categories (x) will not
be able to rely on the interpretations of the SEC staff
in the above-mentioned interpretive letters; (y) will
not be permitted or entitled to tender Old Debentures
in the Exchange Offer; and (z) must comply with the
registration and prospectus delivery requirements of
the Securities Act in connection with any sale or other
transfer of Old Debentures unless such sale is made
pursuant to an exemption from such requirements.
If the undersigned is a broker-dealer that
receives New Debentures for its own account pursuant to
the Exchange Offer, it acknowledges that it acquired
the Old Debentures for its own account as a result of
market-making activities or other trading activities
and agrees that it will deliver a prospectus meeting
the requirements of the Securities Act in connection
with any resale of such New Debentures. By so
acknowledging 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.
Based on the position taken by the staff of the SEC in
the interpretive letters referred to above, the Company
believes that broker-dealers who acquired Old
Debentures for their own accounts, as a result of
market-making or other trading activities
("Participating Broker-Dealers") may fulfill their
prospectus delivery requirements with respect to the
New Debentures received upon exchange of Old Debentures
(other than Old Debentures which represent an unsold
allotment from the original sale of the Old Debentures)
with a prospectus meeting the requirements of the
Securities Act, which may be the prospectus prepared
for the Exchange Offer so long as it contains a
description of the plan of distribution with respect to
the resale of such New Debentures. Accordingly, the
Prospectus, as it may be amended or supplemented from
time to time, may be used by a Participating
Broker-Dealer during the period referred to below in
connection with resales of New Debentures received in
exchange for Old Debentures where such Old Debentures
were acquired by such Participating Broker-Dealer for
its own account as a result of market-making or other
trading activities. The Company has agreed that the
Prospectus may be used by a Participating Broker-Dealer
in connection with resales of such New Debentures. See
the Prospectus under "Plan of Distribution." However,
a Participating Broker-Dealer who intends to use the
Prospectus in connection with the resale of New
Debentures received in exchange for Old Debentures
pursuant to the Exchange Offer must notify the Company,
or cause the Company to be notified, on or prior to the
Expiration Date, that it is a Participating
Broker-Dealer. Such notice may be given in the space
provided for that purpose below or may be delivered to
the Exchange Agent at the address set forth on the
first page hereof. Any Participating Broker-Dealer who
is an "affiliate" of the Company may not rely on such
interpretive letters and must comply with the
registration and prospectus delivery requirements of
the Securities Act in connection with any resale
transaction.
If the undersigned is a Participating
Broker-Dealer who tenders Old Debentures pursuant to
the Exchange Offer, it agrees that, upon receipt of
notice from the Company of the occurrence of any event
or the discovery of any fact which makes any statement
contained in the Prospectus untrue in any material
respect or which causes the Prospectus to omit to state
a material fact necessary in order to make the
statements contained in the Prospectus, in light of the
circumstances under which they were made, not
misleading or of the occurrence of certain other events
specified in the Registration Rights Agreement dated
June 1, 1999 among the Company and the initial
purchasers of the Old Debentures, such Participating
Broker-Dealer will suspend the sale of New Debentures
pursuant to 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
Participating Broker-Dealer or the Company has given
notice that the sale of the New Debentures may be
resumed, as the case may be.
The undersigned hereby represents and warrants to
the Company that (a) the New Debentures to be acquired
in connection with the Exchange Offer by it and each
beneficial owner of the Old Debentures that it
represents (a ``Beneficial Owner") are being acquired
by the Holder and such Beneficial Owner in the ordinary
course of business of the Holder and such Beneficial
Owner, (b) it and such Beneficial Owner are not
participating, do not intend to participate, and have
no arrangement or understanding with any person to
participate, in the distribution (within the meaning of
the Securities Act) of the Old Debentures or the New
Debentures, (c) that if it is a Participating
Broker-Dealer, it will deliver a prospectus in
connection with any resale of New Debentures acquired
<PAGE>
in the Exchange Offer, and (d) neither it nor any such
Beneficial Owner is an "affiliate," as defined under
Rule 405 under the Securities Act, of the Company.
The undersigned understands that the New
Debentures issued in consideration of Old Debentures
accepted for exchange, and/or any principal amount of
Old Debentures not tendered or not accepted for
exchange, will only be issued in the name of the
Holder(s) appearing herein under "Description of Old
Debentures." Unless otherwise indicated under "Special
Delivery Instructions," please mail the New Debentures
issued in consideration of Old Debentures accepted for
exchange, and/or any principal amount of Old Debentures
not tendered or not accepted for exchange (and
accompanying documents, as appropriate), to the
Holder(s) at the address(es) appearing herein under
"Description of Old Debentures." In the event that the
Special Delivery Instructions are completed, please
mail the New Debentures issued in consideration of Old
Debentures accepted for exchange, and/or any Old
Debentures for any principal amount not tendered or not
accepted for exchange, in the name of the Holder(s)
appearing herein under "Description of Old Debentures,"
and send such New Debentures and/or Old Debentures to
the address(es) so indicated. Any transfer of Old
Debentures to a different holder must be completed
according to the provisions on transfer of Old
Debentures contained in the Indenture, dated as of
December 1, 1995 as amended by a First Supplemental
Indenture dated as of June 1, 1999, between the Company
and The Bank of New York, as trustee (the "Indenture"),
or on the Old Debenture.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED
"DESCRIPTION OF OLD DEBENTURES" BELOW AND SIGNING THIS
LETTER, WILL BE DEEMED TO HAVE TENDERED THE OLD
DEBENTURES AS SET FORTH IN SUCH BOX BELOW.
INSTRUCTIONS
Forming Part of the Terms and Conditions
of the Exchange Offer
1. Guarantee of Signatures. Each signature on
this Letter of Transmittal or a notice of withdrawal
(as described in Instruction 4), as the case may be,
must be guaranteed unless the Old Debentures
surrendered for exchange are tendered (a) by a Holder
of the Old Debentures who has not completed the box
entitled "Special Delivery Instructions," or (b) for
the account of an Eligible Institution (as defined
below). If a signature on a Letter of Transmittal or a
notice of withdrawal, as the case may be, is required
to be guaranteed, such signature must be guaranteed by
a participant in a recognized Medallion Signature
Program (a "Medallion Signature Guarantor"). If the
Letter of Transmittal is signed by a person other than
the Holder of the Old Debentures, the Old Debentures
surrendered for exchange must be endorsed by the
Holder, with the signature thereon guaranteed by a
Medallion Signature Guarantor. The term "Eligible
Institution" means a firm which is a member 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 any other
"eligible guarantor institution" as such term is
defined in Rule 17Ad-15 under the Securities Exchange
Act of 1934, as amended.
2. Delivery of this Letter of Transmittal and Old
Debentures; Guaranteed Delivery Procedures. This
Letter of Transmittal is to be used: (a) by all Holders
who are not ATOP members, (b) by Holders who are ATOP
members but choose not to use ATOP or (c) if the Old
Debentures are to be tendered in accordance with the
guaranteed delivery procedures set forth in the
Prospectus under "The Exchange Offer-Guaranteed
Delivery Procedures." Except as set forth below, a
Holder who wishes to tender Old Debentures for exchange
pursuant to the Exchange Offer must transmit such Old
Debentures, together with a properly completed and duly
executed Letter of Transmittal, including all other
documents required by this Letter of Transmittal, to
the Exchange Agent at the address set forth on the
front page of this Letter of Transmittal prior to 5:00
p.m., New York City time on the Expiration Date. THE
METHOD OF DELIVERY OF OLD DEBENTURES, LETTERS OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE
ELECTION AND RISK OF THE TENDERING HOLDER. IF SUCH
DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT REGISTERED
MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED,
BE USED. INSTEAD OF DELIVERY BY MAIL, IT IS
RECOMMENDED THAT EACH HOLDER USE AN OVERNIGHT OR HAND
DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD
BE ALLOWED TO ASSURE TIMELY DELIVERY.
<PAGE>
The "Expiration Date" shall be , 1999 at 5:00 p.m.,
New York City time, unless the Company, in its sole
discretion, extends the Exchange Offer, in which case
the Expiration Date shall be the latest date and time
to which the Exchange Offer is extended. In order to
extend the Exchange Offer, the Company will notify the
Exchange Agent of any extension by oral or written
notice and will make a public announcement thereof,
each prior to 9:00 a.m., New York City time, on the
next business day after the previously scheduled
Expiration Date.
LETTERS OF TRANSMITTAL SHOULD NOT BE SENT TO THE
COMPANY OR TO DTC.
Any financial institution that is a participant in
DTC's Book-Entry Transfer Facility system may make book
entry delivery of the Old Debentures by causing DTC to
transfer the Old Debentures into the Exchange Agent's
account in accordance with DTC's procedures for such
transfer. To be timely, book-entry delivery of Old
Debentures requires receipt of a confirmation of a
book-entry transfer before the expiration date.
Although delivery of the Old Debentures may be effected
through book-entry transfer into the Exchange Agent's
account at DTC, this Letter of Transmittal (or
facsimile), properly completed and executed, with any
required signature guarantees and any other required
documents or an agent's message (as described below),
must in any case, be delivered to and received by the
Exchange Agent at its address on or before the
Expiration Date, or the guaranteed delivery procedure
set forth below must be complied with.
DTC has confirmed that the Exchange Offer is
eligible for ATOP. Accordingly, participants in ATOP
may, instead of physically completing and signing the
Letter of Transmittal and delivering it to the Exchange
Agent, electronically transmit their acceptance of the
Exchange Offer by causing DTC to transfer Old
Debentures to the Exchange Agent in accordance with
DTC's ATOP procedures for transfer. DTC will then send
an agent's message to the Exchange Agent.
The term "agent's message" means a message
transmitted by DTC, received by the Exchange Agent and
forming part of the book-entry confirmation, which
states that DTC has received an express acknowledgment
from a participant in ATOP that is tendering Old
Debentures that are the subject of such book-entry
confirmation, that the participant has received and
agrees to be bound by the terms of the Letter of
Transmittal or, in the case of an agent's message
relating to guaranteed delivery, that the participant
has received and agrees to be bound by the Notice of
Guaranteed Delivery, and that the Company may enforce
such agreement against that participant.
Holders who wish to tender their Old Debentures
and (a) whose Old Debentures are not immediately
available or (b) who cannot deliver their Old
Debentures or any other documents required by this
Letter of Transmittal to the Exchange Agent prior to
the Expiration Date (or complete the procedure for
book-entry transfer on a timely basis), may tender
their Old Debentures according to the following
guaranteed delivery procedures: (1) such tender must be
made by or through an Eligible Institution and a Notice
of Guaranteed Delivery must be signed by such Holder,
(2) on or prior to the Expiration Date, the Exchange
Agent must have received from the Holder and the
Eligible Institution a properly completed and duly
executed Notice of Guaranteed Delivery (by facsimile
transmission, mail or hand delivery) setting forth the
name and address of the Holder, the certificate number
or numbers of the tendered Old Debentures, and the
principal amount of tendered Old Debentures, stating
that the tender is being made thereby and guaranteeing
that, within four business days after the date of
delivery of the Notice of Guaranteed Delivery, the
tendered Old Debentures, a duly executed Letter of
Transmittal and any other required documents will be
deposited by the Eligible Institution with the Exchange
Agent, and (3) such properly completed and executed
documents required hereby and the tendered Old
Debentures in proper form for transfer (or confirmation
of a book-entry transfer of such Old Debentures into
the Exchange Agent's account at DTC) must be received
by the Exchange Agent within four business days after
the Expiration Date. Any Holder who tenders Old
Debentures pursuant to the guaranteed delivery
procedures described above must deliver the Notice of
Guaranteed Delivery and Letter of Transmittal relating
to such Old Debentures to the Exchange Agent prior to
5:00 p.m., New York City time, on the Expiration Date.
Any Beneficial Owner of the Old Debentures whose
Old Debentures are registered in the name of a broker,
dealer, commercial bank, trust company or other nominee
and who wishes to tender Old Debentures in the Exchange
Offer should contact such registered holder promptly
and instruct such registered holder to tender on such
Beneficial Owner's behalf. If such Beneficial Owner
wishes to tender directly, such Beneficial Owner must, prior
<PAGE>
to completing and executing this Letter of
Transmittal and tendering Old Debentures, make
appropriate arrangements to register ownership of the
Old Debentures in such Beneficial Owner's name.
Beneficial Owners should be aware that the transfer of
registered ownership may take considerable time.
No alternative, conditional or contingent tenders
will be accepted. All tendering Holders, by execution
of this Letter of Transmittal (or facsimile hereof),
waive any right to receive notice of acceptance of
their Old Debentures for exchange.
3. Inadequate Space. If the space provided
herein is inadequate, the certificate numbers and
principal amount of the Old Debentures to which this
Letter of Transmittal relates should be listed on a
separate signed schedule attached hereto.
4. Withdrawal of Tender. Tenders of Old
Debentures may be withdrawn at any time prior to 5:00
p.m. New York City time, on the Expiration Date.
Tenders of the Old Debentures may be withdrawn by
delivery of a written or facsimile transmission notice
to the Exchange Agent, at its address set forth on the
first page hereof, at any time prior to 5:00 p.m., New
York City time, on the Expiration Date. Any such
notice of withdrawal must (a) specify the name of the
person having deposited the Old Debentures to be
withdrawn (the "Depositor"), (b) identify the Old
Debentures to be withdrawn (including the certificate
number or numbers and principal amount of such Old
Debentures) or, in the case of Old Debentures
transferred by book-entry transfer, the name and number
of the account at DTC to be credited, (c) be signed by
the Holder in the same manner as the original signature
on the Letter of Transmittal by which such Old
Debentures were tendered (including any required
signature guarantees) or be accompanied by a bond power
in the name of the person withdrawing the tender, in
satisfactory form as determined by the Company in its
sole discretion, duly executed by the Holder, with the
signature thereon guaranteed by a Medallion Signature
Guarantor together with the other documents required
upon transfer by the Indenture or the Old Debentures,
and (4) specify the name in which such Old Debentures
are to be re-registered, if different from the
Depositor. All questions as to the validity, form and
eligibility (including time of receipt) of such notices
will be determined by the Company, in its sole
discretion. The Old Debentures so withdrawn will be
deemed not to have been validly tendered for exchange
for purposes of the Exchange Offer. Any Old Debentures
which have been tendered for exchange but which are
withdrawn will be returned to the applicable Holder
without cost to such Holder as soon as practicable
after withdrawal. Properly withdrawn Old Debentures
may be retendered by following one of the procedures
described in the Prospectus under "The Exchange
Offer-Procedures for Tendering Old Debentures" at any
time on or prior to the Expiration Date.
5. Partial Tenders; Pro Rata Effect. Tenders of
the Old Debentures will be accepted only in a minimum
denomination of $100,000 and integral multiples of
$1,000. If less than the entire principal amount
evidenced by any Old Debentures is to be tendered, fill
in the principal amount that is to be tendered in the
box entitled "Principal Amount Tendered" below. The
entire principal amount of all Old Debentures delivered
to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
6. Signatures on this Letter of Transmittal; Bond
Powers and Endorsements. If this Letter of Transmittal
is signed by the registered Holders of the Old
Debentures tendered hereby, the signature must
correspond with the name as written on the face of the
certificate representing such Old Debentures without
alteration, enlargement or any change whatsoever.
If any of the Old Debentures tendered hereby are
owned of record by two or more joint owners, all such
owners must sign this Letter of Transmittal.
If any of the Old Debentures tendered hereby are
registered in different names, it will be necessary to
complete, sign and submit as many separate copies of
this Letter of Transmittal and any necessary
accompanying documents as there are different
registrations.
<PAGE>
When this Letter of Transmittal is signed by the
Holder(s) of Old Debentures listed and tendered hereby,
no endorsements or separate bond powers are required.
If this Letter of Transmittal, or any endorsement,
bond power, power of attorney or any other document
required by the Letter of Transmittal is signed by a
trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other
person acting in a fiduciary or representative
capacity, such person should so indicate when signing,
and, unless waived by the Company, proper evidence
satisfactory to the Company, in the sole discretion of
the Company, of such person's authority to so act must
be submitted.
7. Special Delivery Instructions. Tendering
Holders should indicate in the applicable box the name
and address to which New Debentures issued in
consideration of Old Debentures accepted for exchange,
or Old Debentures for principal amounts not exchanged
or not tendered, are to be sent, if different from the
name and address of the person signing this Letter of
Transmittal.
8. Waiver of Conditions. The Company reserves
the absolute right to waive any of the specified
conditions in the Exchange Offer, in whole at any time
or in part from time to time, in the case of any Old
Debentures tendered hereby. See "The Exchange Offer
Conditions to the Exchange Offer," in the Prospectus.
9. Transfer Taxes. The Company will pay all
transfer taxes, if any, applicable to the exchange of
Old Debentures pursuant to the Exchange Offer. If,
however, a transfer tax is imposed for any reason other
than the exchange of Old Debentures pursuant to the
Exchange Offer, then the amount of any such transfer
taxes (whether imposed on the registered holder or any
other persons) will be payable by the tendering Holder.
If satisfactory evidence of payment of such taxes or
exemption is not submitted with the Letter of
Transmittal, the amount of such transfer taxes will be
billed directly to such tendering Holder.
10. Irregularities. All questions as to the
validity, form, eligibility (including time of
receipt), acceptance and withdrawal of Old Debentures
tendered for exchange will be determined by the Company
in its sole discretion, which determination shall be
final and binding. The Company reserves the absolute
right to reject any and all Old Debentures not properly
tendered and to reject any Old Debentures the
acceptance of which might, in the judgment of the
Company or its counsel, be unlawful. The Company also
reserves the absolute right to waive any defects or
irregularities or conditions of the Exchange Offer as
to particular Old Debentures either before or after the
Expiration Date (including the right to waive the
ineligibility of any Holder who seeks to tender Old
Debentures in the Exchange Offer). The interpretation
of the terms and conditions of the Exchange Offer
(including the Letter of Transmittal and its
instructions) by the Company shall be final and binding
on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old
Debentures for exchange must be cured within such
period of time as the Company shall determine. Neither
the Company nor the Exchange Agent shall be under any
duty to give notification of defects in such tenders or
shall incur any liability for failure to give such
notification. The Exchange Agent will use reasonable
efforts to give notification of defects or
irregularities with respect to tenders of Old
Debentures for exchange but shall not incur any
liability for failure to give such notification.
Tenders of Old Debentures will not be deemed to have
been made until such irregularities have been cured or
waived.
11. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering, as
well as requests for additional copies of the
Prospectus and this Letter of Transmittal, may be
directed to the Exchange Agent at the address and
telephone number set forth above.
12. Mutilated, Lost, Stolen or Destroyed
Certificates. Holders whose certificates for Old
Debentures have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the
address indicated above for further instructions.
13. Tax Identification Number. A tendering
Holder whose Old Debentures are accepted for exchange
should provide the Exchange Agent with such Holder's
correct Taxpayer Identification Number ("TIN") on the
Substitute Form W-9 below, which, in the case of a
tendering Holder who is an individual, is his or her
social security number. If the Company is not provided
with the current TIN or an adequate basis for an
exemption, such
<PAGE>
tendering Holder may be subject to a
$50 penalty imposed by the Internal Revenue Service.
In addition, all reportable payments made on New
Debentures after the exchange may be subject to backup
withholding in an amount equal to 31%. If withholding
results in an overpayment of taxes, a refund may be
obtained.
Exempt Holders of Old Debentures (including, among
others, all corporations and certain foreign
individuals) are not subject to these backup
withholding and reporting requirements. See the
enclosed Guidelines of Certification of Taxpayer
Identification Number on Substitute Form W-9 (the "W-9
Guidelines") for additional instructions.
To prevent backup withholding on reportable
payments made on New Debentures after the exchange,
each tendering Holder of Old Debentures should provide
its correct TIN by completing the "Substitute Form W-9"
below, certifying that the TIN provided is correct (or
that such Holder is awaiting a TIN) and that (a) the
Holder is exempt from backup withholding, (b) the
Holder has not been notified by the Internal Revenue
Service that such Holder is subject to backup
withholding as a result of a failure to report all
interest or dividends or (c) the Internal Revenue
Service has notified the Holder that such Holder is no
longer subject to backup withholding. If the tendering
Holder of Old Debentures is a nonresident alien or
foreign entity not subject to backup withholding, such
Holder should give the Company a completed Form W-8,
Certificate of Foreign Status. These forms may be
obtained from the Exchange Agent. If the Old
Debentures are in more than one name or are not in the
name of the actual owner, such Holder should consult
the W-9 Guidelines for information on which TIN to
report. If such Holder does not have a TIN, such
Holder should consult the W-9 Guidelines for
instructions on applying for a TIN, check the box in
Part 3 of the Substitute Form W-9 and write "applied
for" in lieu of its TIN. Note: checking this box and
writing "applied for" on the form means that such
Holder has already applied for a TIN or that such
Holder intends to apply for one in the near future. If
such Holder does not provide its TIN to the Company
within 60 days, backup withholding will begin and
continue until such Holder furnishes its TIN to the
Company.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR
FACSIMILE HEREOF), TOGETHER WITH ALL REQUIRED
DOCUMENTS, OR A NOTICE OF GUARANTEED DELIVERY, MUST BE
RECEIVED BY THE EXCHANGE AGENT PRIOR TO THE EXPIRATION
DATE.
<PAGE>
TO BE COMPLETED BY ALL TENDERING HOLDERS
(see Instruction 13)
PAYOR'S NAME: KOHL'S CORPORATION
SUBSTITUTE Part 1--PLEASE Social Security Number
FORM W-9 PROVIDE YOUR TIN IN OR
THE BOX AT RIGHT AND Employer ID Number
CERTIFY BY SIGNING ____________________
AND DATING BELOW.
Department of the Part 2--Certification-Under penalties of
Treasury perjury, I certify that:
Internal Revenue (1) The number shown on this form is my
Service correct Taxpayer Identification Number (or
I am waiting for a number to be issued to
me) and
Payor's Request for (2) I am not subject to backup withholding
Taxpayer's either because: (a) I am exempt from backup
Identification Number withholding, or (b) I have not been
(TIN) 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 withholding.
CERTIFICATION Part 3
INSTRUCTIONS-You must cross
out item (2) above if you Awaiting TIN []
have been notified by the IRS
that you are currently
subject to backup withholding
because of underreporting
interest or dividends on your
tax return. However, if
after being notified by the
IRS that you were subject to
backup withholding, you
received another notification
from the IRS that you are no
longer subject to backup
withholding, do not cross out
item (2).
SIGNATURE _______________________
DATE_____________________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY
PAYMENTS MADE TO YOU ON THE DEBENTURES. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE
FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either (1) I
have mailed or delivered an application to receive a taxpayer
identification number to the appropriate Internal Revenue Service
Center or Social Security Administration Office or (2) I intend to
mail or deliver an application in the near future. I understand
that if I do not provide a taxpayer identification number by the
time of payment, 31% of all reportable payments made to me will be
withheld, but that such amounts will be refunded to me if I then
provide a Taxpayer Identification Number within sixty (60) days.
Signature ___________________________ Date ______________________
<PAGE>
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1 and 7)
To be completed ONLY if the New Debentures issued in
consideration of Old Debentures exchanged, or
certificates for Old Debentures in a principal
amount not surrendered for exchange are to be mailed
to someone other than the undersigned or to the
undersigned at an address other than that below.
Mail to: ______________________________________
Name: _________________________________________
(Please Print)
Address: ______________________________________
(Zip Code)
DESCRIPTION OF OLD DEBENTURES
(See Instructions 2 and 7)
Name(s) and Address(es) Certificate(s)
of Registered Holders(s) (Attach additional signed list, if necessary)
(Please fill in, if blank)
Principal Amount
Aggregate of Old Debentures
Principal Tendered (must be
Amount of Old a minimum of
Debentures $100,000 and
Certificate Evidenced by integral multiples
Number(s) Certificate(s) of $1,000)
----------- -------------- ---------------
----------- -------------- ---------------
Total
(Boxes below to be checked by Eligible Institutions only)
[] CHECK HERE IF TENDERED OLD DEBENTURES ARE BEING
DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT
MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER
FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution ________________________________________
DTC Account Number ___________________________________________________
Transaction Code Number ______________________________________________
<PAGE>
[] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF
GUARANTEED DELIVERY IF TENDERED OLD DEBENTURES ARE BEING
DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY
PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Holder(s) ______________________________________
Window Ticket Number (if any) ________________________________________
Date of Execution of Notice of Guaranteed Delivery ___________________
Name of Institution which Guaranteed Delivery _______________________
If Guaranteed Delivery is to be made by Book-Entry
Transfer:
Name of Tendering Institution _________________________________________
DTC Account Number ____________________________________________________
Transaction Code Number _______________________________________________
[] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND
NON-EXCHANGED OLD DEBENTURES ARE TO BE RETURNED BY CREDITING
THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
[] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE
OLD DEBENTURES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET
MAKING OR OTHER TRADING ACTIVITIES (A "PARTICIPATING
BROKER-DEALER") AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name: ______________________________________________________________
Address: ___________________________________________________________
____________________________________________________________________
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
<PAGE>
PLEASE SIGN HERE
WHETHER OR NOT OLD DEBENTURES ARE BEING
PHYSICALLY TENDERED HEREBY
X ____________________________________ _____________________
X ____________________________________ _____________________
Signature(s) of Owner(s) Dated
of Authorized Signatory
Area Code and Telephone Number: __________________________________
This box must be signed by registered holder(s) of Old
Debentures as their name(s) appear(s) on certificate(s) for
Old Debentures hereby tendered or on a security position
listing, or by any person(s) authorized to become
registered holder(s) by endorsement and documents
transmitted with this Letter of Transmittal (including such
opinions of counsel, certifications and other information
as may be required by the Company or the Trustee for the
Old Debentures to comply with the restrictions on transfer
applicable to the Old Debentures). If signature is by an
attorney-in-fact, trustee, executor, administrator,
guardian, officer or other person acting in a fiduciary or
representative capacity, such person must set forth his or
her full title below.
Name(s) _________________________________________________________________
_________________________________________________________________________
(Please Print)
Capacity (full title) ___________________________________________________
Address _________________________________________________________________
(Include Zip Code)
Tax Identification or Social Security Number(s) _________________________
_________________________________________________________________________
Guarantee of Signature(s)
(See Instructions 1 and 6 to determine if required)
Authorized Signature ____________________________________________________
Name ____________________________________________________________________
Name of Firm ____________________________________________________________
Title ___________________________________________________________________
Address _________________________________________________________________
Area Code and Telephone Number __________________________________________
Exhibit 99.2
KOHL'S CORPORATION
Offer for all Outstanding
7 1/4% Debentures due June 1, 2029
Which Have Been Registered Under the
Securities Act of 1933
in Exchange for
7 1/4% Debentures due June 1, 2029
THE EXCHANGE OFFER WILL EXPIRE 5:00 P.M., NEW YORK CITY
TIME, ON JULY , 1999, UNLESS EXTENDED (THE
"EXPIRATION DATE''). TENDERED OLD DEBENTURES MAY BE WITHDRAWN
AT ANY TIME PRIOR TO 5:00P.M., NEW YORK CITY TIME, ON THE EXPIRATION
DATE.
To: Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
Kohl's Corporation (the "Company") is offering,
upon and subject to the terms and conditions set forth
in the Prospectus dated ,
1999 (as the same may be amended or supplemented from
time to time, the "Prospectus") and the enclosed Letter
of Transmittal (the "Letter of Transmittal"), to
exchange (the "Exchange Offer") its 7 1/4% Debentures
due June 1, 2029 which have been registered under the
Securities Act of 1933 (the "New Debentures") for its
outstanding 7 1/4% Debentures due June 1, 2029 (the
"Old Debentures"). The Exchange Offer is being made in
order to satisfy certain obligations of the Company
contained in the Registration Rights Agreement dated
June 1, 1999 by and between the Company and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated, BNY Capital Markets, Inc.
and Banc One Capital Markets, Inc.
We are requesting that you contact your clients
for whom you hold Old Debentures registered in your
name or in the name of your nominee regarding the
Exchange Offer. For your information and for
forwarding to your clients for whom you hold Old
Debentures registered in your name or in the name of
your nominee, or who hold Old Debentures registered in
their own names, we are enclosing the following
documents:
1. Prospectus dated , 1999;
2. The Letter of Transmittal for your use and
for the information of your clients;
3. A Notice of Guaranteed Delivery to be used to
accept the Exchange Offer if time will not
permit all required documents to reach the
Exchange Agent (as defined below) prior to
the Expiration Date (as defined below) or if
the procedures for book-entry transfer cannot
be completed on a timely basis;
4. A form of letter which may be sent to your
clients for whose account you hold Old
Debentures registered in your name or the
name of your nominee, with space provided for
obtaining such clients' instructions with
regard to the Exchange Offer;
5. Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9;
and
6. Return envelopes addressed to The Bank of New
York, the Exchange Agent (the "Exchange
Agent") for the Old Debentures.
Your prompt action is requested. The Exchange
Offer will expire at 5:00 p.m., New York City time, on
, 1999, unless extended by the Company
(the "Expiration Date"). Old Debentures tendered
pursuant to
<PAGE>
the Exchange Offer may be withdrawn,
subject to the procedures described in the Prospectus,
at any time prior to 5:00 p.m. New York City time, on
the Expiration Date.
To participate in the Exchange Offer, a duly
executed and properly completed Letter of Transmittal
(or facsimile thereof), with any required signature
guarantees and any other required documents, should be
sent to the Exchange Agent, all in accordance with the
instructions set forth in the Letter of Transmittal and
the Prospectus.
If holders of Old Debentures wish to tender but
time will not permit all required documents to reach
the Exchange Agent prior to the Expiration Date or to
comply with the book-entry transfer procedures on a
timely basis, a tender may be effected by following the
guaranteed delivery procedures described in the
Prospectus under "The Exchange Offer-Guaranteed
Delivery Procedures."
The Company will, upon request, reimburse brokers,
dealers, commercial banks and trust companies for
reasonable and necessary costs and expenses incurred by
them in forwarding the Prospectus and the related
documents to the beneficial owners of Old Debentures
held by them as nominee or in a fiduciary capacity.
The Company will pay or cause to be paid all transfer
taxes applicable to the exchange of Old Debentures
pursuant to the Exchange Offer, except as set forth in
Instruction 9 of the Letter of Transmittal.
Any inquiries you may have with respect to the
Exchange Offer, or requests for additional copies of
the enclosed materials, should be directed to the
Exchange Agent, at its address and telephone number set
forth on the front of the Letter of Transmittal.
Very truly yours,
KOHL'S CORPORATION
NOTHING HEREIN OR IN TO ENCLOSED DOCUMENTS SHALL
CONSTITUTE YOU OR ANY PERSON AS AN AGENT OF THE COMPANY
OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER
PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON
BEHALF OF EITHER OF THEM WITH RESPECT TO THE EXCHANGE
OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN THE
PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
Exhibit 99.3
KOHL'S CORPORATION
Offer for all Outstanding
7 1/4% Debentures due June 1, 2029
in Exchange for
7 1/4% Debentures due June 1, 2029
Which Have Been Registered Under
the Securities Act of 1933
THE EXCHANGE OFFER WILL EXPIRE 5:00 P.M., NEW YORK CITY
TIME, ON JULY , 1999, UNLESS EXTENDED (THE
"EXPIRATION DATE''). TENDERED OLD DEBENTURES MAY BE WITHDRAWN
AT ANY TIME PRIOR TO 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION
DATE.
To Our Clients:
Enclosed for your consideration is a Prospectus,
dated , 1999 (as the same may be
amended or supplemented from time to time, the
"Prospectus"), and the related Letter of Transmittal
(the "Letter of Transmittal"), relating to the offer
(the "Exchange Offer") of Kohl's Corporation (the
"Company"), to exchange its 7 1/4% Debentures due June
1, 2029 which have been registered under the Securities
Act of 1933 (the "New Debentures") for its outstanding
7 1/4% Debentures due June 1, 2029 (the "Old
Debentures"), upon the terms and subject to the
conditions described in the Prospectus and the Letter
of Transmittal. The Exchange Offer is being made in
order to satisfy certain obligations of the Company
contained in the Registration Rights Agreement dated
June 1, 1999, by and between the Company and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated, BNY Capital Markets, Inc.
and Banc One Capital Markets, Inc.
Holders of Old Debentures who cannot deliver all
required documents to the Exchange Agent on or prior to
the Expiration Date (as defined below), or who cannot
complete the procedures for book-entry transfer on a
timely basis, must follow the guaranteed delivery
procedures described in the Prospectus under "The
Exchange Offer- Guaranteed Delivery Procedures."
This material is being forwarded to you as the
beneficial owner of the Old Debentures carried by us in
your account but not registered in your name. A tender
of such Old Debentures may only be made by us as the
holder of record and pursuant to your instructions.
Accordingly, we request instructions as to whether
you wish us to tender on your behalf the Old Debentures
held by us for your account pursuant to the terms and
conditions set forth in the enclosed Prospectus and
Letter of Transmittal.
Your instructions should be forwarded to us as
promptly as possible in order to permit us to tender
the Old Debentures on your behalf in accordance with
the provisions of the Exchange Offer. The Exchange
Offer will expire at 5:00 p.m., New York City time, on
, 1999, unless extended by the Company. Any Old
Debentures tendered pursuant to the Exchange Offer may
be withdrawn at any time before 5:00 p.m., New York
City time, on the Expiration Date.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Old
Debentures.
2. The Exchange Offer is subject to certain
conditions set forth in the Prospectus in the
section captioned "The Exchange
Offer-Conditions to the Exchange Offer.''
<PAGE>
3. Any transfer taxes incident to the transfer
of Old Debentures from the holder to the
Company will be paid by the Company, except
as otherwise provided in Instruction 9 of the
Letter of Transmittal.
4. The Exchange Offer expires at 5:00 p.m., New
York City time, on
, 1999, unless extended by the Company.
If you wish to have us tender your Old Debentures,
please so instruct us by completing, executing and
returning to us the instruction form on the back of
this letter. The Letter of Transmittal is furnished to
you for informational purposes only and may not be used
directly by you to tender Old Debentures held by us and
registered in our name for your account or benefit.
<PAGE>
INSTRUCTIONS WITH RESPECT TO
THE EXCHANGE OFFER
The undersigned acknowledges receipt of your
letter and the enclosed material referred to therein
relating to the Exchange Offer made by Kohl's
Corporation with respect to its Old Debentures.
This will instruct you to tender the Old
Debentures held by you for the account of the
undersigned, upon and subject to the terms and
conditions set forth in the Prospectus and the related
Letter of Transmittal.
Please tender the Old Debentures held by you for
my account as indicated below:
Aggregate Principal Amount
of Old Debentures
__________________________________
7 1/4% Debentures due June 1, 2029
[] Please do not tender any Old Debentures
held by you for my account.
Dated: __________________________, 1999
_____________________________________
Signature(s)
_____________________________________
_____________________________________
_____________________________________
_____________________________________
Please print name(s) here
_____________________________________
_____________________________________
_____________________________________
Address(es)
____________________________________
Area Code and Telephone Number
___________________________________________
Tax Identification or Social Security No(s).
None of the Old Debentures held by us for your
account will be tendered unless we receive written
instructions from you to do so. Unless a specific
contrary instruction is given in the space provided,
your signature(s) hereon shall constitute an
instruction to us to tender all the Old Debentures held
by us for your account.
Exhibit 99.4
NOTICE OF GUARANTEED DELIVERY
for
KOHL'S CORPORATION
This Notice of Guaranteed Delivery, or one
substantially equivalent to this form, must be used to
accept the Exchange Offer (as defined below) of Kohl's
Corporation (the "Company") made pursuant to the
Prospectus, dated , 1999 (as the same
may be amended or supplemented from time to time, the
"Prospectus"), and the related Letter of Transmittal
(the "Letter of Transmittal") If the Letter of
Transmittal and all other required documents cannot be
delivered or transmitted by facsimile transmission,
mail or hand delivery to The Bank of New York (the
"Exchange Agent'') on or prior to 5:00 p.m. New York
City time, on the Expiration Date (as defined in the
Prospectus) or the procedures for delivery by
book-entry transfer cannot be completed on a timely
basis. See "The Exchange Offer-Guaranteed Delivery
Procedures" section in the Prospectus. The term "Old
Debentures" means the Company's outstanding 7 1/4%
Debentures due June 1, 2029.
THE EXCHANGE OFFER WILL EXPIRE 5:00 P.M., NEW YORK CITY
TIME, ON JULY , 1999, UNLESS EXTENDED (THE
"EXPIRATION DATE''). TENDERED OLD NOTES MAY BE DRAWN
AT ANY TIME
Deliver to: The Bank of New York, Exchange Agent:
By Registered or Certified Mail: By Overnight Courier or Hand:
The Bank of New York The Bank of New York
101 Barclay Street 101 Barclay Street
Floor 7-E Corporate Trust Services Window
New York, NY 10286 Ground Level
Attention: Reorganization Department New York, NY 10286
Attention: Reorganization
Department
Facsimile:
(212) 815-6339
Confirm Telephone for Eligible Institutions:
(212) 815-5920
DELIVERY OF IS NOTICE OF GUARANTEED DELIVERY TO AN
ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION
OF THIS NOTICE OF GUARANTEED DELIVERY VIA FACSIMILE TO
A NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT
CONSTITUTE A VALID 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 a
"Medallion Signature Guarantor" under the instructions
thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the
Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tenders to the Company,
upon the terms and conditions set forth in the
Prospectus and the Letter of Transmittal (which
together constitute the "Exchange Offer"), receipt of
which are hereby acknowledged, the aggregate principal
amount of Old Debentures set forth below pursuant to
the guaranteed delivery procedure described in ``The
Exchange Offer-Guaranteed Delivery Procedures" section
in the Prospectus and the Letter of Transmittal.
<PAGE>
Principal Amount of Old Debentures Signature(s)________________________
Tendered $_____________________ ____________________________________
Certificate Nos. Please Print the Following Information
(if available)________________
Name(s) of Registered Holders________
Total Aggregate Principal Amount _____________________________________
Represented by Old Debentures _____________________________________
Certificate(s)________________
Address______________________________
If Old Debentures will be tendered by _____________________________________
book-entry transfer, provide the _____________________________________
following information:
Area Code and Telephone Number(s)
DTC Account Number______________ _____________________________________
Dated:________________ , 1999
GUARANTEE
(Not to be Used for Signature Guarantee)
The undersigned, a firm or entity identified in
Rule 17Ad-15 under the Securities Exchange Act of 1934,
as amended, as an "eligible guarantor institution,"
hereby guarantees to deliver to the Exchange Agent, at
its address set forth above, either the Old Debentures
tendered hereby in proper form for transfer, or
confirmation of the book-entry transfer of such Old
Debentures pursuant to the procedures for book-entry
transfer set forth in the Prospectus, in either case
together with a properly completed and duly executed
Letter of Transmittal (or facsimile thereof), with any
required signature guarantees, and any other documents
required by the Letter of Transmittal within four
business days after the date of execution of this
Notice of Guaranteed Delivery.
Name of Firm____________________________ ______________________________
(Authorized Signature)
Address_________________________________ Name__________________________
________________________________________
Date__________________________
Zip Code
Area Code and
Telephone number____________________
