JONES APPAREL GROUP, INC.
JONES APPAREL GROUP HOLDINGS, INC.
JONES APPAREL GROUP USA, INC.
NINE WEST GROUP INC.
$175,000,000 Aggregate Principal Amount of 7.50% Senior Notes due 2004
$225,000,000 Aggregate Principal Amount of 7.875% Senior Notes due 2006
EXCHANGE AND NOTE REGISTRATION RIGHTS AGREEMENT
June 15, 1999
BEAR, STEARNS & CO. INC.
CHASE SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
SALOMON SMITH BARNEY INC.
BANCBOSTON ROBERTSON STEPHENS INC.
BANC OF AMERICA SECURITIES LLC
ING BARING FURMAN SELZ LLC
LAZARD FR RES & CO. LLC
TUCKER ANTHONY CLEARY GULL
BREAN MURRAY & CO., INC.
THE BUCKINGHAM RESEARCH GROUP INCORPORATED
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
Jones Apparel Group, Inc., a Pennsylvania corporation, Jones
Apparel Group USA, Inc., a Pennsylvania corporation, Jones Apparel Group
Holdings, Inc., a Delaware corporation (previously named Jill Acquisition Sub
Inc.), and Nine West Group Inc. (previously named Jack Asset Sub Inc., a
Delaware corporation (collectively, the "Issuers"), as joint and several
obligors, propose to issue and sell to Bear, Stearns & Co. Inc., Chase
Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon
Smith Barney Inc., BancBoston Robertson Stephens Inc., Banc of America
Securities LLC, ING Baring Furman Selz LLC, Lazard Freres & Co. LLC, Tucker
Anthony Cleary
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Gull, Brean Murray & Co., Inc. and The Buckingham Research Group Incorporated
(collectively, the "Initial Purchasers"), upon the terms and subject to the
conditions set forth in a purchase agreement dated June 9, 1999 (the "Purchase
Agreement"), $175,000,000 aggregate principal amount of their 7.50% Senior Notes
due 2004 (the "7.50% Notes"), and $225,000,000 aggregate principal amount of
their 7.875% Senior Notes due 2006 (the "7.875% Notes", and, together with the
7.50% Notes, the "Securities"). Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Issuers jointly and severally agree with the
Initial Purchasers, for the benefit of the holders (including the Initial
Purchasers) of the Securities, the Exchange Securities (as defined herein) and
the Private Exchange Securities (as defined herein) (collectively, the
"Holders"), as follows:
1. Registered Exchange Offer. The Issuers shall (i) prepare
and, not later than 90 days following the date of original issuance of the
Securities (the "Issue Date"), file with the Commission a registration statement
(the "Exchange Offer Registration Statement") on an appropriate form under the
Securities Act with respect to a proposed offer to the Holders of the Securities
(the "Registered Exchange Offer") to issue and deliver to such Holders, in
exchange for the Securities, a like aggregate principal amount of debt
securities of the Issuers (the "Exchange Securities"), that are identical in
all material respects to the Securities, except that the liquidated damages
provisions and the transfer restrictions relating to the Securities will be
eliminated, (ii) use their reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the Securities Act no later
than 180 days after the Issue Date and the Registered Exchange Offer to be
consummated no later than 210 days after the Issue Date and (iii) keep the
Exchange Offer Registration Statement effective for not less than 30 days (or
longer, if required by applicable law) after the date on which notice of the
Registered Exchange Offer is mailed to the Holders (such period being called the
"Exchange Offer Registration Period"). The Exchange Securities will be issued
under the Indenture or an indenture (the "Exchange Securities Indenture") among
the Issuers and the Trustee or such other bank or trust company that is
reasonably satisfactory to the Initial Purchasers, as trustee (the "Exchange
Securities Trustee"), such indenture to be identical in all material respects to
the Indenture, except for the liquidated damages provisions and the transfer
restrictions relating to the Securities (as described above).
Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuers shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for Exchange Securities (assuming that such
Holder (a) is not an affiliate of any of the
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Issuers (within the meaning of the Securities Act) or an Exchanging Dealer (as
defined herein) not complying with the requirements of the next sentence, (b) is
not an Initial Purchaser holding Securities that have, or that are reasonably
likely to have, the status of an unsold allotment in an initial distribution,
(c) acquires the Exchange Securities in the ordinary course of such Holder's
business and (d) has no arrangements or understandings with any person to
participate in the distribution of the Exchange Securities) and to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions under
the securities laws of the several states of the United States. The Issuers,
the Initial Purchasers and each Exchanging Dealer (as defined below) acknowledge
that, pursuant to current interpretations by the Commission's staff of Section 5
of the Securities Act, and in the absence of an applicable exemption therefrom,
each Holder (which may include the Initial Purchasers) that is a broker-dealer
electing to exchange Securities, acquired for its own account as a result of
market-making activities or other trading activities, for Exchange Securities
(an "Exchanging Dealer"), may be deemed to be an "underwriter" within the
meaning of the Securities Act and must therefore, deliver a prospectus
containing substantially the information set forth in Annex A hereto on the
cover, in Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer.
If, prior to the consummation of the Registered Exchange Offer,
any Holder holds any Securities acquired by it that have, or that are reasonably
likely to be determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Registered
Exchange Offer, the Issuers shall, upon the request of any such Holder,
simultaneously with the delivery of the Exchange Securities in the Registered
Exchange Offer, issue and deliver to any such Holder, in exchange for the
Securities held by such Holder (the "Private Exchange"), a like aggregate
principal amount of debt securities of the Issuers (the "Private Exchange
Securities") that are identical in all material respects to the Exchange
Securities, except for the transfer restrictions relating to such Private
Exchange Securities. The Private Exchange Securities will be issued under the
same indenture as the Exchange Securities, and the Issuers shall use their
reasonable best efforts to cause the Private Exchange Securities to bear the
same CUSIP number as the Exchange Securities.
In connection with the Registered Exchange Offer, the Issuers
shall:
(a) 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;
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(b) keep the Registered Exchange Offer open for not less than 30
days (or longer, if required by applicable law) after the date on which notice
of the Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York;
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York City time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer or any Private Exchange, as the case may be, the Issuers shall:
(a) accept for exchange all Securities validly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange (it being understood that all questions as to validity, form,
eligibility (including time of receipt) and acceptance of Securities tendered
for exchange shall be determined by the Issuers in their sole discretion, which
determination shall be final and binding);
(b) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as the
case may be, promptly to authenticate and deliver to each Holder, Exchange
Securities or Private Exchange Securities, as the case may be, equal in
principal amount to the Securities of such Holder so accepted for exchange.
The Issuers shall use their reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be used by
all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided that (i) in the case where
such prospectus and any amendment or supplement thereto must be delivered by an
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Exchanging Dealers have sold all Exchange Securities held by them and
(ii) the Issuers shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with any resale of
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any Exchange Securities for a period of not less than 90 days after the
consummation of the Registered Exchange Offer.
The Indenture or the Exchange Securities Indenture, as the case
may be, shall provide that the Securities, the Exchange Securities and the
Private Exchange Securities shall vote and consent together on all matters as
one class and that none of the Securities, the Exchange Securities or the
Private Exchange Securities will have the right to vote or consent as a separate
class on any matter.
Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last interest payment date on which interest was paid on
the Securities surrendered in exchange therefor or, if no interest has been paid
on the Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall
be required to represent to the Issuers that at the time of the consummation of
the Registered Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act and (iii) such Holder is not an affiliate of any of the
Issuers or, if it is such an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable.
Notwithstanding any other provisions hereof, the Issuers will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (ii) any Exchange Offer 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 Exchange Offer Registration
Statement, and any supplement to such prospectus, does not, as of the
consummation of the Registered Exchange Offer, 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 under which they were
made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Issuers are not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof, or (ii) any Securities validly tendered pursuant to the Registered
Exchange Offer are not exchanged for Exchange Securities within 210 days after
the Issue Date, or (iii) any Initial Purchaser
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so requests with respect to Securities or Private Exchange Securities not
eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and held by it following the consummation of the Registered Exchange
Offer, or (iv) any applicable law or interpretations do not permit any Holder to
participate in the Registered Exchange Offer, or (v) any Holder that
participates in the Registered Exchange Offer does not receive freely
transferable Exchange Securities in exchange for tendered Securities, other than
by reason of such Holder being an Affiliate of any of the Issuers (it being
understood that, for purposes of this Section 2, the requirement that an
Exchanging Dealer deliver a prospectus in connection with sales of Exchange
Securities acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of marketmaking activities or other trading activities
shall not result in such Exchange Securities being not "freely tradeable"), or
(vi) the Issuers so elect, then the following provisions shall apply:
(a) The Issuers shall use their reasonable best efforts to file
as promptly as practicable (but in no event more than 90 days after so required
or requested pursuant to this Section 2) with the Commission, and thereafter
shall use their reasonable best efforts to cause to be declared effective, a
shelf registration statement on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Securities (as defined
below) by the Holders thereof from time to time in accordance with the methods
of distribution set forth in such registration statement (hereafter, a "Shelf
Registration Statement" and, together with any Exchange Offer Registration
Statement, a "Registration Statement"); provided, however, that, with respect to
Exchange Securities or Private Exchange Securities received by an Initial
Purchaser in exchange for Securities constituting any portion of an unsold
allotment, the Issuers may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Regulation SK
Items 507 and/or 508, as applicable, in satisfaction of their obligations under
this paragraph (a) with respect thereto, 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.
(b) The Issuers shall use their reasonable best efforts to keep
the Shelf Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be used by Holders of Transfer Restricted
Securities for a period ending on the earlier of (i) two years from the Issue
Date or such shorter period that will terminate when all the Transfer Restricted
Securities covered by the Shelf Registration Statement have been sold pursuant
thereto and (ii) the date on which the Securities become eligible for resale
without volume restrictions pursuant to Rule 144 under the Securities Act (in
any such case, such period being called the "Shelf Registration Period"). The
Issuers shall be deemed not to have used their reasonable best efforts to keep
the Shelf Registration Statement effective during the requisite period if they
voluntarily take any action that would result in Holders of Transfer Restricted
Securities covered thereby not being able
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to offer and sell such Transfer Restricted Securities during that period, unless
(i) such action is required by applicable law or (ii) such action is taken by
the Issuers in good faith and for valid business reasons (not including
avoidance of the Issuers' obligation hereunder), including the acquisition or
divestiture of assets and other material transactions involving the Issuers, so
long as the Issuers promptly thereafter comply with the requirements of Section
4(j) hereof, if applicable.
(c) Notwithstanding any other provisions hereof, the Issuers
will ensure that (i) any Shelf Registration Statement and any amendment thereto
and any prospectus forming part thereof and any supplement thereto complies in
all material respects with the Securities Act and the rules and regulations of
the Commission thereunder, (ii) any Shelf Registration Statement and any
amendment thereto (in either case, other than with respect to information
included therein in reliance upon or in conformity with written information
furnished to the Issuers by or on behalf of any Holder specifically for use
therein (the "Holders' Information")) does not 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 (in either case, other than with respect to Holders' Information),
does not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3. Liquidated Damages. (a) The parties hereto agree that the
Holders of Transfer Restricted Securities will suffer damages if the Issuers
fail to fulfill their obligations under Section 1 or Section 2, as applicable,
and that it would not be feasible to ascertain the extent of such damages.
Accordingly, if (i) the applicable Registration Statement is not filed with the
Commission on or prior to 90 days after the Issue Date, (ii) the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
is not declared effective within 180 days after the Issue Date (or in the case
of a Shelf Registration Statement required to be filed in response to a change
in law or the applicable interpretations of Commission's staff, if later, within
90 days after publication of the change in law or interpretation), (iii) the
Registered Exchange Offer is not consummated on or prior to 210 days after the
Issue Date, or (iv) the Shelf Registration Statement is filed and declared
effective within 180 days after the Issue Date (or in the case of a Shelf
Registration Statement required to be filed in response to a change in law or
the applicable interpretations of Commission's staff, if later, within 90 days
after publication of the change in law or interpretation) but shall thereafter
cease to be effective (at any time that the Issuers are obligated to maintain
the effectiveness thereof) without being succeeded within 90 days by an
additional Registration Statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"), the Issuers
will be obligated to pay liquidated damages to each Holder of
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Transfer Restricted Securities, during the period of one or more such
Registration Defaults, at a rate of 0.25% per annum, determined daily, on the
principal amount of the Securities constituting Transfer Restricted Securities
held by such holder until (i) the applicable Registration Statement is filed,
(ii) the Exchange Offer Registration Statement is declared effective and the
Registered Exchange Offer is consummated, (iii) the Shelf Registration Statement
is declared effective or (iv) the Shelf Registration Statement again becomes
effective, as the case may be. Following the cure of all Registration Defaults,
the accrual of liquidated damages will cease. As used herein, the term
"Transfer Restricted Securities" means (i) each Security until the date on which
such Security has been exchanged for a freely transferable Exchange Security in
the Registered Exchange Offer, (ii) each Security or Private Exchange Security
until the date on which it has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement or (iii)
each Security or Private Exchange Security until the date on which it is
distributed to the public pursuant to Rule 144 under the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act. Notwithstanding
anything to the contrary in this Section 3(a), none of the Issuers shall be
required to pay liquidated damages to a Holder of Transfer Restricted Securities
if such Holder failed to comply with its obligations to make the representations
set forth in the second to last paragraph of Section 1 or failed to provide the
information required to be provided by it, if any, pursuant to Section 4(n).
(b) The Issuers shall notify the Trustee and the Paying Agent
under the Indenture promptly upon the happening of each and every Registration
Default. The Issuers shall pay the liquidated damages due on the Transfer
Restricted Securities by depositing with the Paying Agent (which may not be any
of the Issuers for these purposes), in trust, for the benefit of the Holders
thereof, prior to 10:00 a.m., New York City time, on the next interest payment
date specified by the Indenture and the Securities, sums sufficient to pay the
liquidated damages then due. The liquidated damages due shall be payable on
each interest payment date specified by the Indenture and the Securities to the
record holder entitled to receive the interest payment to be made on such date.
Each obligation to pay liquidated damages shall be deemed to accrue from and
including the date of the applicable Registration Default.
(c) The parties hereto agree that the liquidated damages
provided for in this Section 3 constitute a reasonable estimate of and are
intended to constitute the sole and exclusive remedy for damages that will be
suffered by Holders of Transfer Restricted Securities by reason of the failure
of (i) the Shelf Registration Statement or the Exchange Offer Registration
Statement to be filed, (ii) the Shelf Registration Statement to remain effective
or (iii) the Exchange Offer Registration Statement to be declared effective and
the Registered Exchange Offer to be consummated, in each case to the extent
required by this Agreement.
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4. Registration Procedures. In connection with any
Registration Statement, the following provisions shall apply:
(a) The Issuers shall (i) furnish to each Initial Purchaser,
prior to the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and shall use their reasonable best efforts to
reflect in each such document, when so filed with the Commission, such comments
as any Initial Purchaser may reasonably propose; (ii) include the information
set forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange
Offer Procedures" section and the "Purpose of the Exchange Offer" section and in
Annex C hereto in the "Plan of Distribution" section of the prospectus forming a
part of the Exchange Offer Registration Statement, and include the information
set forth in Annex D hereto in the Letter of Transmittal delivered pursuant to
the Registered Exchange Offer; and (iii) if requested by any Initial Purchaser,
include the information required by Item 507 or 508 of Regulation S-K, as
applicable, in the prospectus forming a part of the Exchange Offer Registration
Statement.
(b) The Issuers shall advise each Initial Purchaser, each
Exchanging Dealer which has provided in writing to any of the Issuers a
telephone or facsimile number and address for notice (in the case of clauses
(iii), (iv) and (v) only) and, in the case of a Shelf Registration Statement,
the Holders of the securities covered thereby and, if requested by any such
person, confirm such advice in writing (which advice pursuant to clauses
(iii)-(v) hereof shall be accompanied by an instruction to suspend the use of
the prospectus until the requisite changes have been made):
(i) when any Registration Statement and any amendment
thereto has been filed with the Commission and when such Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to any Registration Statement or the prospectus included therein or
for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the initiation of
any proceedings for that purpose;
(iv) of the receipt by any of the Issuers of any
notification with respect to the suspension of the qualification of the
Securities, the Exchange Securities or the Private Exchange Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
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(v) of the happening of any event that requires the
making of any changes in any Registration Statement or the prospectus included
therein in order that such document does not 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 (in the case of the prospectus included
therein, in the light of the circumstances under which they were made) not
misleading.
(c) The Issuers will make every reasonable effort to obtain the
withdrawal at the earliest possible time of any order suspending the
effectiveness of any Registration Statement.
(d) The Issuers will furnish to each Holder of Transfer
Restricted Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one conformed copy of such Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules and, if any such Holder so requests in
writing, all exhibits thereto (including those, if any, incorporated by
reference).
(e) The Issuers will, during the Shelf Registration Period,
promptly deliver to each Holder of Transfer Restricted Securities included
within the coverage of any Shelf Registration Statement, without charge, as many
copies of the prospectus (including each preliminary prospectus) included in
such Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Issuers consent to the use of such
prospectus or any amendment or supplement thereto by each of the selling Holders
of Transfer Restricted Securities in connection with the offer and sale of the
Transfer Restricted Securities covered by such prospectus or any amendment or
supplement thereto.
(f) The Issuers will furnish to each Initial Purchaser and each
Exchanging Dealer and to any other Holder who so requests in writing, without
charge, at least one conformed copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules and, if any Initial Purchaser or Exchanging Dealer or any such Holder
so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(g) The Issuers will, during the Exchange Offer Registration
Period or the Shelf Registration Period, as applicable, promptly deliver to each
Initial Purchaser, each Exchanging Dealer and such other persons that are
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the Exchange
Offer Registration Statement or the Shelf Registration Statement and any
amendment or supplement thereto as such Initial Purchaser, Exchanging Dealer or
other persons may reasonably request; and the Issuers
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consent to the use of such prospectus or any amendment or supplement thereto by
any such Initial Purchaser, Exchanging Dealer or other persons, as applicable,
as aforesaid.
(h) Prior to the effective date of any Registration Statement,
the Issuers will use their reasonable best efforts to register or qualify, or
cooperate with the Holders of Securities, Exchange Securities or Private
Exchange Securities included therein and their respective counsel in connection
with the registration or qualification of, such Securities, Exchange Securities
or Private Exchange Securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Holder reasonably requests in writing
and do any and all other acts or things necessary or advisable to enable the
offer and sale in such jurisdictions of the Securities, Exchange Securities or
Private Exchange Securities covered by such Registration Statement; provided
that none of the Issuers will be required to qualify generally to do business in
any jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(i) Subject to the provisions of the Indenture or the Exchange
Securities Indenture, as the case may be, and applicable law, the Issuers will
cooperate with the Holders of Securities, Exchange Securities or Private
Exchange Securities to facilitate the timely preparation and delivery of
certificates representing Securities, Exchange Securities or Private Exchange
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
the Holders thereof may request in writing prior to sales of Securities,
Exchange Securities or Private Exchange Securities pursuant to such Registration
Statement.
(j) If any event contemplated by Section 4(b)(iii) through (v)
occurs during the period for which the Issuers are required to maintain an
effective Registration Statement, the Issuers will promptly prepare and file
with the Commission a post-effective amendment to the Registration Statement or
a supplement to the related prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Securities, Exchange
Securities or Private Exchange Securities from a Holder, the prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(k) Not later than the effective date of the applicable
Registration Statement, the Issuers will provide a CUSIP number for the
Securities, the Exchange Securities and the Private Exchange Securities, as the
case may be, and provide the applicable trustee with printed certificates for
the Securities, the Exchange Securities or the Private Exchange Securities, as
the case may be, in a form eligible for deposit with The Depository Trust
Company.
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(l) The Issuers shall use their reasonable best efforts to
comply with all applicable rules and regulations of the Commission to the extent
and so long as they are applicable to the applicable Registration Statement,
Registered Exchange Offer or the shelf registration described in the Shelf
Registration Statement and will make generally available to their security
holders as soon as practicable after the effective date of the applicable
Registration Statement an earning statement satisfying the provisions of Section
11(a) of the Securities Act; provided that in no event shall such earning
statement be delivered later than 45 days after the end of a 12-month period (or
90 days, if such period is a fiscal year) beginning with the first month of the
first fiscal quarter of Jones Apparel Group, Inc. commencing after the effective
date of the applicable Registration Statement, which statement shall cover such
12-month period.
(m) The Issuers will cause the Indenture or the Exchange
Securities Indenture, as the case may be, to be qualified under the Trust
Indenture Act as required by applicable law in a timely manner.
(n) The Issuers may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration Statement to
furnish to the Issuers such information concerning the Holder and the
distribution of such Transfer Restricted Securities as the Issuers may from time
to time reasonably require for inclusion in such Shelf Registration Statement,
and the Issuers may exclude from such registration the Transfer Restricted
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder
of Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Issuers pursuant to Section 4(b)(iii) through (v), such Holder
will discontinue disposition of such Transfer Restricted Securities until such
Holder's receipt of copies of the supplemental or amended prospectus
contemplated by Section 4(j) or until advised in writing (the "Advice") by the
Issuers that the use of the applicable prospectus may be resumed. If the
Issuers shall give any notice under Section 4(b)(iii) through (v) during the
period that the Issuers are required to maintain an effective Registration
Statement (the "Effectiveness Period"), such Effectiveness Period shall be
extended by the number of days during such period from and including the date of
the giving of such notice to and including the date when each seller of Transfer
Restricted Securities covered by such Registration Statement shall have received
(x) the copies of the supplemental or amended prospectus contemplated by Section
4(j) (if an amended or supplemental prospectus is required) or (y) the Advice
(if no amended or supplemental prospectus is required).
(p) In the case of a Shelf Registration Statement, the Issuers
shall enter into such customary agreements (including, if requested, an
underwriting agreement in
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customary form) and take all such other action, if any, as Holders of a majority
in aggregate principal amount of the Securities, Exchange Securities and Private
Exchange Securities being sold or the managing underwriters (if any) shall
reasonably request in order to facilitate any disposition of Securities,
Exchange Securities or Private Exchange Securities pursuant to such Shelf
Registration Statement.
(q) In the case of a Shelf Registration Statement, the Issuers
shall as may reasonably be requested by any Holder (i) make reasonably available
for inspection by a representative of, and Special Counsel (as defined below)
acting for, Holders of a majority in aggregate principal amount of the
Securities, Exchange Securities and Private Exchange Securities being sold and
any underwriter participating in any disposition of Securities, Exchange
Securities or Private Exchange Securities pursuant to such Shelf Registration
Statement, all relevant financial and other records, pertinent corporate
documents and properties of the Issuers and their respective subsidiaries and
(ii) use their reasonable best efforts to have their officers, directors,
employees, accountants and counsel supply all relevant information reasonably
requested by such representative, Special Counsel or any such underwriter (an
"Inspector") in connection with such Shelf Registration Statement; provided,
however, that each such person shall first agree in writing if requested by the
Issuers that any information that is designated in writing by the Issuers, in
good faith, as confidential at the time of delivery of such information shall be
kept confidential by the Holders or any Inspector, unless such disclosure is
required by law or by court or administrative order, or to assert any defenses
available under the state and federal securities laws, including without
limitation, "due diligence" defenses, or such information becomes available to
the public generally other than as a result of a disclosure or failure to
safeguard such information by such Holder or Inspector or to such person from a
source other than the Issuers and such source is not known, after due inquiry,
by such person to be bound by any obligation of confidentiality.
(r) In the case of a Shelf Registration Statement, the Issuers
shall, if requested by Holders of a majority in aggregate principal amount of
the Securities, Exchange Securities and Private Exchange Securities being sold,
their Special Counsel or the managing underwriters (if any) in connection with
such Shelf Registration Statement, use their reasonable best efforts to cause
(i) their counsel to deliver an opinion relating to the Shelf Registration
Statement and the Securities, Exchange Securities or Private Exchange
Securities, as applicable, in customary form, (ii) their respective officers to
execute and deliver all customary documents and certificates requested by
Holders of a majority in aggregate principal amount of the Securities, Exchange
Securities and Private Exchange Securities being sold, their Special Counsel or
the managing underwriters (if any) and (iii) their respective independent public
accountants to provide a comfort letter or letters in customary form, subject to
receipt of appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
14
5. Registration Expenses. The Issuers will bear all expenses
incurred in connection with the performance of their obligations under Sections
1, 2, 3 and 4 and the Issuers will reimburse the Initial Purchasers and the
Holders for the reasonable fees and disbursements of one firm of attorneys (in
addition to any local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Securities, the Exchange Securities and the Private
Exchange Securities to be sold pursuant to each Registration Statement (the
"Special Counsel") acting for the Initial Purchasers or Holders in connection
therewith.
6. Indemnification. (a) Each of the Issuers, jointly and
severally, shall indemnify and hold harmless each Holder (including any such
Initial Purchaser or Exchanging Dealer), each of their respective affiliates,
each Person, if any, who controls any of such parties within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and each of their
respective directors, officers, partners, employees, representatives and agents,
to the fullest extent lawful as follows:
(i) from and against any and all loss, liability, claim, damage
and expense whatsoever, joint or several, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement, any prospectus contained therein or any
amendment or supplement thereto pursuant to which the offer and sale of
the Securities, Exchange Securities or Private Exchange Securities were
registered under the Securities Act including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(ii) from and against any and all loss, liability, claim, damage
and expense whatsoever, joint or several, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any court or governmental agency or body,
whether commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, if and only if such settlement is effected with
the prior written consent of the Issuers; and
(iii) without duplication, from and against any and all expenses
whatsoever (including reasonable fees and disbursements of counsel chosen
by such Initial Purchaser, Holder or Exchanging Dealer (except to the
extent otherwise expressly provided in Section 6(c) hereof)), as
incurred, reasonably incurred in investigating, preparing for or
defending against any litigation, or any investigation or proceeding by
any court or governmental agency or body, whether commenced or
threatened, and any amount paid in settlement thereof, or any other claim
whatsoever based upon any such untrue statement or omission, or
15
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) of this Section
6(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission (i) made in reliance upon and
in conformity with information furnished to the Issuers by or on behalf of such
Initial Purchaser, Holder or Exchanging Dealer in writing expressly for use in
the Registration Statement, any prospectus contained therein, or any amendment
or supplement thereto or (ii) contained in any preliminary prospectus or any
prospectus if such Initial Purchaser, Holder or Exchanging Dealer failed to send
or deliver a copy of the final prospectus where such delivery is required by the
Securities Act and such final prospectus (as so amended or supplemented) would
have corrected such untrue statement or omission and the delivery thereof would
have eliminated such losses, claims, damages or liabilities. Any amounts
advanced by the Issuers to an indemnified party pursuant to this Section 6(a) as
a result of such losses shall be returned to the Issuers if it shall be finally
judicially determined by such a court in a judgment not subject to appeal or
final review that such indemnified party was not entitled to indemnification by
the Issuers.
(b) Each Holder (including any such Initial Purchaser or
Exchanging Dealer), by its acceptance of its Securities, Exchange Securities or
Private Exchange Securities, as the case may be, agrees, severally and not
jointly, to indemnify and hold harmless each Issuer and each of their respective
directors, officers (including each of the officers of the Issuers who signed
the Registration Statement), employees, representatives and agents, and each
Person, if any, who controls any of the Issuers within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, from and against any and all loss,
liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 6(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Issuers by or on behalf of such Holder expressly
for use in the Registration Statement (or any amendment thereto) or any such
prospectus (or any amendment or supplement thereto); provided, however, that, in
the case of a Shelf Registration Statement, no such Holder shall be liable for
any claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Securities, Exchange Securities or Private Exchange
Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers properly
served on such indemnified party (but failure to notify an indemnifying party
shall not relieve such
16
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have other than on account of this indemnity
agreement). An indemnifying party may participate, at its own expense, in the
defense of any such action. If an indemnifying party so elects within a
reasonable time after receipt of such notice, such indemnifying party, jointly
with any other indemnifying party, may assume the defense of such action with
counsel chosen by it and reasonably satisfactory to the indemnified parties
defendant in such action; provided, however, that if any such indemnified party
reasonably determines, upon written advice of counsel, that there may be legal
defenses available to any indemnified party which are different from or in
addition to those available to any indemnifying party or that representation of
such indemnifying party and any indemnified party by the same counsel would
present a conflict of interest, then such indemnifying party or parties shall
not so be entitled to assume such defense. If an indemnifying party is not so
entitled to assume the defense of such action, counsel for such indemnifying
party shall be entitled to conduct the defense of such indemnifying party and
counsel for each indemnified party or parties shall be entitled to conduct the
defense of such indemnified party or parties. If an indemnifying party assumes
the defense of an action in accordance with and as permitted by the provisions
of this Section 6(c), such indemnifying party shall not be liable for any fees
and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. No
indemnifying party shall, without the prior written consent of the indemnified
parties, which consent shall not be unreasonably withheld, settle or compromise
or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6, unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Notwithstanding any payment or payments made by any Issuer
hereunder, each Issuer hereby expressly waives subrogation to, and agrees that
it shall not be entitled to be subrogated to, any of the rights of any
indemnified party against any of the Issuers or any other right of offset held
by any indemnified party for the payment of any amounts owed to any indemnified
party pursuant to this Section 6; provided, however, that if any of the
foregoing provisions of this paragraph are held to be contrary to applicable law
or unenforceable by a court of competent jurisdiction, each of the Issuers
hereby expressly agrees that any right of subrogation or contribution that such
17
Issuer may have as a result of such applicable law or unenforceability, as the
case may be, shall be subordinate in right of payment to the payment in full in
cash of all amounts owed to any indemnified party pursuant to this Section 6.
(e) If the indemnification provided for in this Section 6 is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Issuers from the offering and
sale of the Securities, on the one hand, and a Holder with respect to the sale
by such Holder of Securities, Exchange Securities or Private Exchange
Securities, on the other, or (ii) if the allocation provided by clause (i) 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 which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Issuers, on the one hand,
and a Holder, on the other, with respect to such offering and such sale shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Securities (before deducting expenses) received by or on behalf of the
Issuers as set forth in the table on the cover of the Offering Memorandum, on
the one hand, bear to the total proceeds received by such Holder with respect to
its sale of Securities, Exchange Securities or Private Exchange Securities, on
the other.
The relative fault of the Issuers on the one hand and the Holders
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Issuers or by the Holders, and the respective parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Issuers and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 6(e). The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 6(e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing for or defending against any litigation, or
18
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6(e), an
indemnifying party that is a Holder of Securities, Exchange Securities or
Private Exchange Securities shall not be required to contribute any amount in
excess of the amount by which the total price at which the Securities, Exchange
Securities or Private Exchange Securities sold by such indemnifying party to any
purchaser exceeds the amount of any damages which such indemnifying party has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6(e), each person, if any, who
controls any Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such Initial Purchaser, and each director of any Issuer and each officer of any
Issuer who signed the Registration Statement and each person, if any, who
controls any Issuer within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act shall have the same rights to contribution as such Issuer.
7. Rules 144 and 144A. The Issuers shall use their reasonable
best efforts to file the reports required to be filed by them under the
Securities Act and the Exchange Act in a timely manner and, if at any time the
Issuers are not required to file such reports, they will, upon the written
request of any Holder of Transfer Restricted Securities, make publicly available
other information so long as necessary to permit sales of such Holder's
securities pursuant to Rules 144 and 144A. The Issuers covenant that they will
take such further action as any Holder of Transfer Restricted Securities may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Transfer Restricted Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A (including, without limitation, the requirements of Rule 144A(d)(4)). Upon
the written request of any Holder of Transfer Restricted Securities, the Issuers
shall deliver to such Holder a written statement as to whether they have
complied with such requirements. Notwithstanding the foregoing, nothing in this
Section 8 shall be deemed to require the Issuers to register any of their
securities pursuant to the Exchange Act.
19
8. Underwritten Registrations. If any of the Transfer
Restricted Securities covered by any Shelf Registration Statement are to be sold
in an underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities included in such offering, subject to the consent of the Issuers
(which shall not be unreasonably withheld or delayed), and such Holders shall be
responsible for all underwriting commissions and discounts in connection
therewith.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Miscellaneous. (a) Amendments and Waivers. The provisions
of this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Issuers have obtained the written consent of Holders of a majority in aggregate
principal amount of the Securities, the Exchange Securities and the Private
Exchange Securities, taken as a single class. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders whose Securities, Exchange
Securities or Private Exchange Securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Securities, the Exchange Securities and the Private
Exchange Securities being sold by such Holders pursuant to such Registration
Statement.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by
such Holder to the Issuers in accordance with the provisions of this
Section 10(b), which address initially is, with respect to each Holder,
the address of such Holder maintained by the Registrar under the
Indenture, with a copy in like manner to, Bear, Stearns & Co. Inc., Chase
Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Salomon Smith Barney Inc., BancBoston Robertson Stephens Inc. and Banc of
America Securities LLC;
20
(2) if to an Initial Purchaser, initially at its address
set forth in the Purchase Agreement; and
(3) if to any of the Issuers, initially at its address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; one business day
after being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding
upon the Issuers and their respective successors and assigns.
(d) Counterparts. This Agreement may be executed in any number
of counterparts (which may be delivered in original form or by telecopier) 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.
(e) Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(h) Remedies. In the event of a breach by any Issuer or Holder
of any of its obligations under this Agreement, each Holder or the Issuers, as
the case may be, in addition to being entitled to exercise all rights granted by
law, including recovery of damages (other than the recovery of damages for a
breach by any Issuer of its obligations under Sections 1 or 2 hereof for which
liquidated damages have been paid pursuant to Section 3 hereof), will be
entitled to specific performance of their rights under this Agreement. The
Issuers and each Holder agree that monetary damages would not be adequate
compensation for any loss incurred by reason by it of a breach of any of the
provisions of this Agreement and hereby further agree that, in the event of any
action for
21
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(i) No Inconsistent Agreements. Each of the Issuers represents,
warrants and agrees for the period commencing on the date hereof and ending on
the date on which there are no Transfer Restricted Securities outstanding that
(i) it has not entered into, shall not, on or after the date of this Agreement,
enter into any agreement that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof,
(ii) it has not previously entered into any agreement which remains in effect
granting any registration rights with respect to any of its debt securities to
any person and (iii) without limiting the generality of the foregoing, without
the written consent of the Holders of a majority in aggregate principal amount
of the then outstanding Transfer Restricted Securities, it shall not grant to
any person the right to request the Issuers to register any debt securities of
the Issuers under the Securities Act unless the rights so granted are not in
conflict or inconsistent with the provisions of this Agreement.
(j) No Piggyback on Registrations. None of the Issuers or any
of their security holders (other than the Holders of Transfer Restricted
Securities in such capacity) shall have the right to include any securities of
the Issuers in any Shelf Registration or Registered Exchange Offer other than
Transfer Restricted Securities.
(k) Severability. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
[Rest of page intentionally left blank]
Please confirm that the foregoing correctly sets forth the
agreement among the Issuers and the Initial Purchasers.
Very truly yours,
JONES APPAREL GROUP, INC.
By: _________________________
Name: ____________________
Title: ___________________
JONES APPAREL GROUP USA, INC.
By: _________________________
Name: ____________________
Title: ___________________
JONES APPAREL GROUP HOLDINGS, INC.
By: _________________________
Name: ____________________
Title: ___________________
NINE WEST GROUP INC.
By: _________________________
Name: ____________________
Title: ___________________
Accepted in New York, New York:
BEAR, STEARNS & CO. INC.
By:_________________________
Name: _____________________
Title: ____________________
Address for notices pursuant to Section 9(c):
245 Park Avenue
New York, New York 10167
Attention:
CHASE SECURITIES INC.
By:_________________________
Joel Glasky
Managing Director
Address for notices pursuant to Section 9(c):
1 Chase Manhattan Plaza, 26th Floor
New York, New York 10081
Attention: Legal Department
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By:_________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
World Financial Center
North Tower
New York, New York 10281
Attention: Mary Beth Henson,
Managing Director
SALOMON SMITH BARNEY INC.
By:_________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
388 Greenwich Street, 33rd Floor
New York, NY 10013
Attention: Investment Banking
BANCBOSTON ROBERTSON STEPHENS INC.
By:_________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
100 Federal Street
Boston, MA 02110
Attention:
BANC OF AMERICA SECURITIES LLC
By:_________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
100 N. Tryon Street
Charlotte, NC 28255
Attention:
ING BARING FURMAN SELZ LLC
By:_________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
55 East 52nd Street
35th Floor
New York, NY 10055
Attention:
LAZARD FR RES & CO. LLC
By:_________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
30 Rockefeller Plaza, 60th Floor
New York, NY 10020
Attention: Syndicate Department
TUCKER ANTHONY CLEARLY GULL
By:_________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
200 Liberty Street
One World Financial Center
New York, NY 10281
Attention:
BREAN MURRAY & CO., INC.
By:_________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
570 Lexington Avenue
New York, NY 10022
Attention:
THE BUCKINGHAM RESEARCH GROUP INCORPORATED
By:_________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
630 Third Avenue
New York, NY 10017
Attention: Syndicate Department
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that 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. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Issuers have
agreed that, starting on the date hereof and ending on the close of business on
the earlier to occur of (i) the date on which all Exchange Securities held by
broker-dealers eligible to use the Prospectus to satisfy their prospectus
delivery obligations under the Securities Act have been sold and (ii) the date
180 days after the consummation of the Registered Exchange Offer (the
"Expiration Date"), it will make this Prospectus available to any broker-dealer
for use in connection with any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired as a
result of market-making activities or other trading activities. The Issuers
have agreed that, starting on the date hereof and ending on the close of
business on the earlier to occur of (i) the date on which all Exchange
Securities held by broker-dealers eligible to use the Prospectus to satisfy
their prospectus delivery obligations under the Securities Act have been sold
and (ii) the date 180 days after the consummation of the Registered Exchange
Offer (the "Expiration Date"), it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until [ ] 199[ ], all dealers effecting
transactions in the Exchange Securities may be required to deliver a prospectus.
None of the Issuers will receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Registered Exchange Offer
may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Securities 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 at 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-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Registered Exchange Offer and any broker or dealer
that participates in a distribution of such Exchange Securities may be deemed to
be an "underwriter" within the meaning of the Securities Act and any profit on
any such resale of Exchange Securities and any commission 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.
For a period starting on the date hereof and ending on the close of
business on the earlier to occur of (i) the date on which all Exchange
Securities held by broker-dealers eligible to use the Prospectus to satisfy
their prospectus delivery obligations under the Securities Act have been sold
and (ii) the Expiration Date, the Issuers will promptly send additional copies
of this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Issuers have agreed to pay all expenses incident to the Registered Exchange
Offer (including the expenses of one counsel for the Holders of the Securities)
other than commissions or concessions of any broker-dealers and will indemnify
the Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned
represents that it is (i) acquiring the Exchange Securities in the ordinary
course of its business, (ii) has no arrangement or understanding with any
person, nor does it intend to engage in, a distribution (as that term is
interpreted by the Securities and Exchange Commission) of Exchange Securities
and (iii) it is not an affiliate (as that term is interpreted by the Securities
and Exchange Commission) of any of the Issuers. If the undersigned is a
broker-dealer that will receive Exchange Securities for its own account in
exchange for Securities that were acquired as a result of market-making
activities or other trading activities, it acknowledges that it will deliver a
prospectus in connection with any resale of such Exchange Securities; however,
by so acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.