As filed with the Securities and Exchange Commission on September 28, 1999
Registration Statement No. 333-86895
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
AMENDMENT No. 1 TO
FORM S-4
REGISTRATION STATEMENT
NO. 333-86895
UNDER THE SECURITIES ACT OF 1933
---------------------------
JONES APPAREL GROUP, INC.
(Exact name of Registrant as specified in its charter)
JONES APPAREL GROUP HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
JONES APPAREL GROUP USA, INC.
(Exact name of registrant as specified in its charter)
NINE WEST GROUP INC.
(Exact names of registrant as specified in its charter)
---------------------------
Pennsylvania 6179 06-0935166
(State or other jurisdiction (Primary standard (I.R.S. Employer
of incorporation industrial classification Identification No.)
or organization) code number)
Delaware 6179 51-0384507
(State or other jurisdiction (Primary standard (I.R.S. Employer
of incorporation industrial classification Identification No.)
or organization) code number)
Pennsylvania 2330 23-2978516
(State or other jurisdiction (Primary standard (I.R.S. Employer
of incorporation industrial classification Identification No.)
or organization) code number)
Delaware 3140 06-1093855
(State or other jurisdiction (Primary standard (I.R.S. Employer
of incorporation industrial classification Identification No.)
or organization) code number)
---------------------------
250 Rittenhouse Circle
Bristol, PA 19007
(215) 785-4000
(Address, including zip code, and telephone number,
including area code, of Registrant's
principal executive offices)
---------------------------
Ira M. Dansky, Esq.
Jones Apparel Group, Inc.
1411 Broadway
New York, NY 10018
(212) 536-9526
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------------
Copy to:
Philip J. Boeckman, Esq.
Cravath, Swaine & Moore
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
---------------------------
Approximate date of commencement of proposed sale to public: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box.|_|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. |_|
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the SEC, acting pursuant to said Section 8(a), may
determine.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 28, 1999
PROSPECTUS
---------------------------
$400,000,000
Jones Apparel Group, Inc.
Jones Apparel Group Holdings, Inc.
Jones Apparel Group USA, Inc.
Nine West Group Inc.
Offer to Exchange
7.50% Senior Notes due 2004 and 7.875% Senior Notes due 2006 for any and all
outstanding 7.50% Senior Notes due 2004 and 7.875% Senior Notes due 2006
---------------------------
Summary of the Exchange Offer
This Prospectus (and accompanying Letter of Transmittal) relates to our
proposed offer to exchange up to $400,000,000 aggregate principal amount of
new 7.50% Senior Notes due 2004 (the "2004 Notes") and 7.875% Senior Notes due
2006 (the "2006 Notes" and, together with the 2004 Notes, the "Exchange
Notes"), which will be freely transferable, for any and all outstanding 7.50%
Senior Notes due 2004 and 7.875% Senior Notes due 2006 issued in a private
offering on June 15, 1999 (collectively, the "Restricted Notes"), which have
certain transfer restrictions.
* The Exchange Offer expires at 5:00 p.m., New York City time, on [ ],
1999, unless extended.
* The terms of the Exchange Notes are substantially identical to the
terms of the Restricted Notes, except that the Exchange Notes will
be freely transferable and issued free of any covenants regarding
exchange and registration rights.
* All Restricted Notes which are validly tendered and not validly
withdrawn will be exchanged.
* Tenders of Restricted Notes may be withdrawn at any time prior to
expiration of the Exchange Offer.
* We will not receive any proceeds from the Exchange Offer.
* The exchange of Restricted Notes for Exchange Notes should not be a
taxable event for United States Federal income tax purposes.
* Holders of Restricted Notes do not have any appraisal or dissenters'
rights in connection with the Exchange Offer. Restricted Notes not
exchanged in the Exchange Offer will remain outstanding and be
entitled to the benefits of the Indenture (defined below), but
except under certain circumstances will have no further exchange or
registration rights under the Exchange and Registration Rights
Agreement.
* Our "affiliates" (within the meaning of the Securities Act of 1933,
as amended) may not participate in the Exchange Offer.
* All broker-dealers must comply with the registration and prospectus
delivery requirements of the Securities Act. See "Plan of
Distribution" beginning on page 33.
* We do not intend to apply for listing of the Exchange Notes on any
securities exchange or to arrange for them to be quoted on any
quotation system.
---------------------------
Please see "Risk Factors" beginning on page 5 for a discussion of certain
factors you should consider in connection with the Exchange Offer .
---------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the Exchange Notes or determined if
this Prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
We may amend or supplement this Prospectus from time to time by filing
amendments or supplements as required. You should read this entire Prospectus
(and accompanying Letter of Transmittal and related documents) and any
amendments or supplements carefully before making your investment decision.
---------------------------
Our principal executive offices are located at
250 Rittenhouse Circle, Bristol, Pennsylvania 19007.
Our telephone number is (215) 785-4000.
The date of this Prospectus is [ ], 1999 .
TABLE OF CONTENTS
Page
Where You Can Find More Information.................................... 3
The Company............................................................ 4
Forward-Looking Statements............................................. 5
Risk Factors........................................................... 5
Ratios of Earnings to Fixed Charges.................................... 10
Exchange Offer......................................................... 11
Description of Notes................................................... 20
Certain United States Federal Income Tax Considerations................ 29
Book-Entry; Delivery and Form.......................................... 30
Plan of Distribution................................................... 33
Legal Matters.......................................................... 34
Experts................................................................ 34
---------------------------
As used in this Prospectus, unless the context requires otherwise,
(1) "JAG" means Jones Apparel Group, Inc., (2) "Jones Holdings" means Jones
Apparel Group Holdings, Inc., (3) "Jones USA" means Jones Apparel Group USA,
Inc., (4) "Nine West" means Nine West Group Inc., (5) "We" means JAG, Jones
Holdings, Jones USA and Nine West, collectively, (6) "Jones" or the "Company"
means JAG and its predecessors and consolidated subsidiaries, (7) "Issuers"
means JAG, Jones, Jones Holdings, Jones USA and Nine West and (8) "Notes"
means both the Restricted Notes and the Exchange Notes. Italicized terms in
this Prospectus indicate trademarks or other protected intellectual property
which Jones owns or licenses.
2
WHERE YOU CAN FIND MORE INFORMATION
In connection with the Exchange Offer, we have filed with the SEC a
Registration Statement under the Securities Act of 1933 (the "Securities
Act"), relating to the Exchange Notes to be issued in the Exchange Offer. As
permitted by SEC rules, this Prospectus omits certain information included in
the Registration Statement. For a more complete understanding of the Exchange
Offer, you should refer to the Registration Statement, including its exhibits.
We also file annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy the Registration
Statement and any other document we file at the SEC's public reference room at
450 Fifth Street, N.W., Washington, D.C. 20549. These documents are also
available at the public reference rooms at the SEC's regional offices in New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330
for further information on the public reference rooms. Our SEC filings are
also available to the public at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you
by referring you to those documents. These incorporated documents contain
important business and financial information about us which is not included in
or delivered with this Prospectus. The information incorporated by reference
is considered to be part of this Prospectus, and later information filed with
the SEC will update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") prior to [ ], 1999, the date the Exchange Offer expires.
* Annual Report on Form 10-K for the year ended December 31,
1998, as amended by Form 10K/A Numbers 1 and 2 dated August 26,
1999 and September 10, 1999;
* Quarterly Reports on Form 10-Q for the quarters ended April 4,
1999 and July 4, 1999; and
* Current Reports on Form 8-K dated January 1, 1999, January 13,
1999, March 2,1999, April 7, 1999 and June 15, 1999.
These filings are available without charge to holders of Restricted
Notes. You may request a copy of these filings by writing or telephoning us at
the following address:
Chief Financial Officer
Jones Apparel Group, Inc.
250 Rittenhouse Circle
Bristol, Pennsylvania 19007
(215) 785-4000
To obtain timely delivery of any copies of filings requested from
us, please write or telephone us no later than [ ] , 1999.
3
THE COMPANY
General
Jones is a leading designer and marketer of better priced women's
sportswear, suits, dresses and jeanswear. Jones has pursued a multi-brand
strategy by marketing its products under several of its nationally known
brands, including Jones New York, Evan-Picone and Rena Rowan, and the licensed
brands Lauren by Ralph Lauren and Ralph by Ralph Lauren. Each label is
differentiated by its own styling and pricing strategy. Jones primarily
contracts for the manufacture of its products through a worldwide network of
quality manufacturers. Jones has capitalized on its nationally known brand
names by entering into 32 licenses for the Jones New York brand name and 14
licenses for the Evan-Picone brand name with select manufacturers of women's
and men's apparel and accessories.
Recent Transactions
Acquisition of Nine West. On June 15, 1999, JAG completed its
acquisition (the "Acquisition") of Nine West, pursuant to an Agreement and
Plan of Merger dated as of March 1, 1999 with Nine West. In the Acquisition,
JAG indirectly purchased all of the shares of Nine West common stock for a
total purchase price of approximately $463.2 million in cash and approximately
17.1 million shares of JAG common stock. In addition, JAG assumed all of Nine
West's outstanding debt, a portion of which has been or will be refinanced.
JAG financed the Acquisition with the proceeds of the Notes and the new Senior
Credit Facilities (defined below).
Nine West is a leading designer, developer, manufacturer and
marketer of women's footwear and accessories. Nine West markets collections of
casual, career and dress footwear and accessories under multiple brand names
which are targeted to various segments of the women's footwear and accessories
markets. Nine West's footwear and accessories are sold to more than 7,000
department, specialty and independent retail stores and through approximately
1,400 of its own retail locations. In addition to its flagship Nine West
label, Nine West's internationally recognized brands include Amalfi,
Bandolino, Calico, cK/Calvin Klein Shoes and Bags (under license), Easy
Spirit, Enzo Angiolini, Evan-Picone (under license), 9 & Co., Pappagallo, Pied
a Terre, Selby and Westies. Nine West's private label division also arranges
for the purchase of footwear by major retailers and other wholesalers for sale
under the customer's own label.
Offering of Restricted Notes. On June 15, 1999, the Issuers issued
$400.0 million aggregate principal amount of the Restricted Notes in a private
offering exempt from the registration requirements of the Securities Act. The
Restricted Notes were issued pursuant to an indenture dated as of June 15,
1999 (the "Indenture") among the Issuers and The Bank of New York, as trustee
(the "Trustee"). The Restricted Notes were issued as unsecured senior
obligations of the Issuers, ranking equally in right of payment with all
existing and future unsecured senior debt of the Issuers and senior in right
of payment to all future subordinated debt of the Issuers.
JAG received net proceeds of approximately $396.4 million from the
issuance of the Restricted Notes. JAG used the net proceeds from the sale of
the Restricted Notes, together with borrowings under the Senior Credit
Facilities, to finance the cash portion of the Acquisition, to refinance
certain existing indebtedness of Nine West, to pay related expenses and for
general corporate purposes, including working capital.
Senior Credit Facilities. Concurrently with the issuance of the
Restricted Notes, the Issuers entered into $1.2 billion aggregate principal
amount of unsecured revolving credit facilities (the "Senior Credit
Facilities") with a syndicate of banks led by First Union National Bank.
4
FORWARD-LOOKING STATEMENTS
This Prospectus includes and incorporates by reference
"forward-looking statements" within the meaning of the Private Securities
Reform Act of 1995. All statements regarding our expected financial position,
business and financing plans are forward-looking statements. The words
"believes", "expects", "plans", "intends" and "anticipates" and similar
expressions identify forward-looking statements. Forward-looking statements
also include representations of our expectations or beliefs concerning future
events that involve risks and uncertainties, including those associated with
the effect of national and regional economic conditions, the overall level of
consumer spending, the performance of our products within the prevailing
retail environment, customer acceptance of both new designs and
newly-introduced product lines, financial difficulties encountered by
customers, the effects of vigorous competition in the markets in which we
operate, and the integration of Nine West, Sun Apparel, Inc. ("Sun"), or other
acquired businesses into the Company's existing operations, the termination or
non-renewal of the licenses with Polo Ralph Lauren Corporation, the Company's
extensive foreign operations and manufacturing, pending litigation and
investigations, the failure of customers or suppliers to achieve Year 2000
compliance, changes in the costs of raw materials, labor and advertising, and
the Company's ability to secure and protect trademarks and other intellectual
property rights. Although we believe that the expectations reflected in such
forward-looking statements are reasonable, such expectations may prove to be
incorrect. Important factors that could cause actual results to differ
materially from such expectations ("cautionary statements") are disclosed in
this Prospectus, in conjunction with the forward-looking statements included
in this Prospectus and under "Risk Factors." All subsequent written and oral
forward-looking statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by the cautionary statements.
RISK FACTORS
You should consider carefully all the information included or
incorporated by reference in this Prospectus and, in particular, should
evaluate the following risks in connection with the Exchange Offer.
We Face Significant Challenges in Integrating Acquired Businesses, Especially
Nine West
On October 2, 1998, we completed our acquisition of Sun, which was
our first significant acquisition of another company. On June 15, 1999, we
completed our acquisition of Nine West, which was our second significant
acquisition of another company. Every acquisition involves certain risks,
including:
* initial reductions in reported operating results;
* diversion of management's attention;
* unanticipated problems or legal liabilities;
* claims by a person that such acquisition violates the terms of
a material agreement; and
* possible reduction in reported earnings due to amortization of
acquired intangible assets.
In addition to these general risks, integrating the organizations
and operations of Jones and Nine West will present significant specific
challenges. Nine West is primarily a footwear designer, marketer and retailer,
while Jones is primarily an apparel designer and marketer. We have little
experience with the footwear industry or with managing a large retail
operation such as Nine West's. We may not be able to retain certain key
personnel from Nine West who may be important in integrating the two
companies. Integrating Jones and Nine West will be complex and time-consuming.
The failure to successfully integrate Nine West and Jones and to successfully
manage the challenges presented by the integration process may prevent us from
achieving the anticipated potential benefits of the acquisition.
Some or all the above items could have a material adverse effect on
us. Nine West or any other company which we might acquire in the future may
not achieve sales and profitability levels that justify our investment.
5
The Apparel, Footwear and Accessories Industries are Highly Competitive
Apparel, footwear and accessories companies face competition on many
fronts, including the following:
* establishing and maintaining favorable brand recognition;
* developing products that appeal to consumers;
* pricing products appropriately;
* providing strong marketing support; and
* obtaining access to retail locations and sufficient floor
space.
There is intense competition in the sectors of the apparel, footwear
and accessories industries in which we and Nine West participate. We compete
with many other manufacturers and retailers, some of which are larger and have
greater resources than we do. Any increased competition could result in
reduced sales or prices, or both, which would have a material adverse effect
on us.
Fashion Trends are Constantly Changing
Customer tastes and fashion trends change rapidly. We may not be
able to anticipate, gauge or respond to such changes in a timely manner. If we
misjudge the market for our products or product groups, we may be faced with a
significant amount of unsold finished goods inventory, which would have a
material adverse effect on us.
The Apparel, Footwear and Accessories Industries are Highly Cyclical
Negative economic trends over which we have no control that depress
the level of consumer spending could have a material adverse effect on us.
Purchases of apparel, footwear and related goods often decline during
recessionary periods when disposable income is low. In such an environment, we
may increase the number of promotional sales, which would further adversely
affect our profitability.
The Concentration of Our Customers Could Adversely Affect Our Business
Our ten largest customers, principally department stores, accounted
for approximately 62% of sales in 1998. While no single customer accounted for
more than 10% of our net sales, certain of our customers are under common
ownership. Department stores owned by the following entities accounted for the
following percentages of Jones' 1998 sales:
Jones
Federated Department Stores, Inc....................................... 16%
May Department Store Company........................................... 16%
Remainder of ten largest customers..................................... 30%
We believe that purchasing decisions are generally made
independently by individual department stores within a commonly controlled
group. There has been a trend, however, toward more centralized purchasing
decisions. As such decisions become more centralized, the risk to us of such
concentration increases. The loss of any of our largest customers, or the
bankruptcy or material financial difficulty of any customer or any of the
companies listed above, could have a material adverse effect on us. We do not
have long-term contracts with any of our customers, and sales to customers
generally occur on an order-by-order basis. As a result, customers can
terminate their relationships with us at any time or under certain
circumstances cancel or delay orders.
6
Significant Portions of Our Sales and Profits Depend on Our License Agreements
with Polo Ralph Lauren Corporation
The termination or non-renewal of our exclusive licenses to
manufacture and market clothing under the Lauren by Ralph Lauren and Polo
Jeans Company trademarks in the United States and elsewhere would have a
material adverse effect on us. Our Lauren by Ralph Lauren line and Polo Jeans
Company business represent significant portions of our sales and profits. We
sell products bearing those trademarks under exclusive licenses from
affiliates of Polo Ralph Lauren Corporation. In addition, we have introduced
for Fall 1999 a line of sportswear directed to younger women under the
trademark Ralph by Ralph Lauren, under an additional exclusive license from
Polo Ralph Lauren.
The Lauren by Ralph Lauren license expires on December 31, 2001,
subject to our right to renew through December 31, 2006, if sales of that
product line for the year 2000 exceed a specified level. Although such sales
in 1997 and 1998 exceeded the renewal minimum, our sales are made
season-to-season, with customers having no obligation to buy products beyond
what they have already ordered for a particular season. The initial term of
the Polo Jeans Company license expires on December 31, 2000 and may be renewed
by us in five-year increments for up to 30 additional years, if certain
minimum sales levels in certain years are met. Although Polo Jeans Company
sales in 1997 and 1998 exceeded the renewal minimum which would be required in
1999 to extend the term of the license through December 31, 2005, Polo Jeans
Company sales are made season-to-season, with customers having no obligation
to buy products beyond what they have already ordered. In addition, renewal of
the Polo Jeans Company license after 2010 requires a one-time payment by us of
$25 million or, at our option, a transfer of a 20% interest in our Polo Jeans
Company business to Polo Ralph Lauren (with no fees required for subsequent
renewals). Polo Ralph Lauren also has an option, exercisable on or before June
1, 2010, to purchase our Polo Jeans Company business from us at the end of
2010 for a purchase price, payable in cash, equal to 80% of the then fair
value of the business as a going concern, assuming the continuation of the
Polo Jeans Company license through December 31, 2030. In addition to the
provisions described above, the licenses contain provisions common to
trademark licenses which could result in termination of a license, such as
failure to meet payment or advertising obligations.
The Extent of Our Foreign Operations and Manufacturing May Adversely Affect
Our Domestic Business
In 1998, approximately 75% of our products were manufactured outside
North America, primarily in Asia, while the remainder were manufactured in the
United States and Mexico. Nearly all of Nine West's products were manufactured
outside of North America in 1998 as well. The following may adversely affect
foreign operations:
* political instability in countries where contractors and
suppliers are located;
* imposition of regulations and quotas relating to imports;
* imposition of duties, taxes and other charges on imports;
* significant fluctuation of the value of the dollar against
foreign currencies; and
* restrictions on the transfer of funds to or from foreign
countries.
As a result of our substantial foreign operations, our domestic
business is subject to the following risks:
* quotas imposed by bilateral textile agreements between the
United States and certain foreign countries;
* reduced manufacturing flexibility because of geographic
distance between us and our foreign manufacturers, increasing
the risk that we may have to mark down unsold inventory as a
result of misjudging the market for a foreign-made product; and
* violations by foreign contractors of labor and wage standards
and resulting adverse publicity.
In January 1999, 23 unidentified Asian garment workers filed a
purported class-action lawsuit against 22 garment manufacturers with factories
located in Saipan (part of the U.S. Commonwealth of the Northern Mariana
Islands). The lawsuit, filed in federal court in Saipan, alleges violations of
federal labor statutes and other laws. We were named in two companion lawsuits
filed in the United States in connection with the Saipan claims. At this early
stage, we are not in a position to evaluate the likelihood of an unfavorable
outcome.
7
Fluctuations in the Price, Availability and Quality of Raw Materials Could Cause
Delay and Increase Costs
Fluctuations in the price, availability and quality of the fabrics
or other raw materials used by us in our manufactured apparel could have a
material adverse effect on our cost of sales or our ability to meet our
customers' demands. We mainly use cotton twill, wool, denim, and synthetic and
blended fabrics. The prices for such fabrics depend largely on the market
prices for the raw materials used to produce them, particularly cotton. The
price and availability of such raw materials and, in turn, the fabrics used in
our apparel may fluctuate significantly, depending on many factors, including
crop yields and weather patterns. We generally enter into denim purchase order
contracts at specified prices for three to six months at a time. Higher cotton
prices would directly affect our costs and could affect our earnings. We may
not be able to pass all or a portion of such higher prices on to our
customers.
Our Reliance on Independent Manufacturers Could Cause Delay and Damage
Customer Relationships
We rely upon independent third parties for the manufacture of many
of our products. A manufacturer's failure to ship products to us in a timely
manner or to meet the required quality standards could cause us to miss the
delivery date requirements of our customers for those items. The failure to
make timely deliveries may drive customers to cancel orders, refuse to accept
deliveries or demand reduced prices, any of which could have a material
adverse effect on our business. We do not have long-term written agreements
with any of our third party manufacturers. As a result, any of these
manufacturers may unilaterally terminate their relationships with us at any
time.
Antitrust Investigation and Litigation Against Nine West May Result in Damages
The Federal Trade Commission and attorneys general from several
states are conducting an inquiry with respect to Nine West's resale pricing
policies to determine whether Nine West violated antitrust laws by agreeing
with others to set minimum prices at which retailers sell products marketed by
Nine West. Nine West also faces an action in U.S. District Court in New York
in which more than 25 putative class action suits alleging antitrust
violations by Nine West were consolidated. Similar suits have been filed in
state courts and in federal court in Pennsylvania. If any of the class action
suits is determined adversely, or if the FTC or state governments successfully
pursue antitrust action, Nine West could be liable for significant damages.
We Depend on Key Personnel to Manage Our Business
Our success depends upon the personal efforts and abilities of
Sidney Kimmel (Chairman), Jackwyn Nemerov (President), Irwin Samelman
(Executive Vice President, Marketing), Eric A. Rothfeld (President of Sun),
Mindy Grossman (President and Chief Executive Officer of Sun's Polo Jeans
Company Division) and, with respect to Nine West, Mark J. Schwartz, who was
named Chairman and Chief Executive Officer of Nine West upon completion of the
acquisition. We do not have employment agreements with Mr. Kimmel, Ms.
Nemerov, Mr. Samelman or Mr. Schwartz. If any of these individuals become
unable or unwilling to continue in their present positions, our business and
financial results could be materially adversely affected.
Our Year 2000 Compliance Initiative May Not Succeed
Certain functions in various types of technology used by us are
designed to use only two digits to identify a year. These programs may fail or
create erroneous results on or after January 1, 2000, if not corrected. We
have assessed and are updating our own systems to insure that they are Year
2000 compliant. We anticipate substantial completion of this process by
October 1999. We may not be able, however, to complete these plans in time.
Additionally, vendors, customers and other third parties with which we do
business may not make their systems Year 2000 compliant. Our business and
results of operations could suffer if we or such third parties fail to make
necessary technological adjustments.
Consequences of a Failure to Exchange Restricted Notes
The Issuers issued the Restricted Notes in a private offering exempt
from the registration requirements of the Securities Act. Therefore, holders
of Restricted Notes may not offer, sell or otherwise transfer their Restricted
Notes except in compliance with the registration requirements of the
Securities Act and applicable state securities laws or pursuant to exceptions
from, or in transactions not subject to, registration requirements. Holders of
Restricted Notes who do not exchange their Restricted Notes for Exchange Notes
in the Exchange Offer will continue to be subject to these transfer
restrictions after the completion of the Exchange Offer. See "The Exchange
Offer--Consequences of a Failure to Exchange Restricted Notes."
8
In addition, after completion of the Exchange Offer, holders of
Restricted Notes who do not tender their Restricted Notes in the Exchange
Offer will no longer be entitled to any exchange or registration rights under
the Exchange and Registration Rights Agreement, except under limited
circumstances.
To the extent that Restricted Notes are tendered and accepted in the
Exchange Offer, the liquidity of the trading market for untendered Restricted
Notes could be adversely affected.
Absence of a Public Market
Although holders of Exchange Notes (who are not our "affiliates"
within the meaning of the Securities Act) may resell or otherwise transfer
their Exchange Notes without compliance with the registration requirements of
the Securities Act, there is no existing market for the Exchange Notes, and
there can be no assurance as to the liquidity of any markets that may develop
for the Exchange Notes, the ability of holders of Exchange Notes to sell their
Exchange Notes or the prices at which holders would be able to sell their
Exchange Notes. Future trading prices of the Exchange Notes will depend on
many factors, including, among other things, prevailing interest rates, Jones'
operating results and the market for similar securities.
The initial purchasers in the private offering have advised us that
they intend to make a market in the Exchange Notes after the Exchange Offer.
However, they are not obligated to do so, and any market making may be
discontinued at any time without notice. In addition, such market making
activity may be limited during the Exchange Offer.
We do not intend to apply for listing of the Exchange Notes on any
securities exchange or to arrange for them to be quoted on any quotation
system.
Accordingly, an active trading market for the Exchange Notes may not
develop, either before, during or after the completion of the Exchange Offer.
The absence of an active trading market may have an adverse effect on the
market price and liquidity of the Exchange Notes.
Exchange Offer Procedures
Each holder of Restricted Notes wishing to accept the Exchange Offer
must deliver the Letter of Transmittal, together with the Restricted Notes to
be exchanged and any other required documentation, to the Exchange Agent, or
effect a tender of Restricted Notes by book-entry transfer into the Exchange
Agent's account, in each case in compliance with the instructions provided in
"The Exchange Offer" section of this Prospectus and in the Letter of
Transmittal.
The method of delivery of Restricted Notes and the Letter of
Transmittal and all other required documentation is at the election and risk
of the holders of Restricted Notes. Although we intend to notify tendering
holders of any defects or irregularities with respect to their tenders of
Restricted Notes, none of the Company, the Exchange Agent or any other person
shall be under any duty to give notification of defects or irregularities with
respect to tenders of Restricted Notes, nor shall any of them incur any
liability for failure to give that notification. Tenders of Restricted Notes
will not be deemed to have been made until those irregularities have been
cured or waived.
9
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the unaudited consolidated ratios of
earnings to fixed charges for Jones on a historical basis:
Pro Forma
for the Pro Forma
Six Months Six Months for the
Ended Ended Year Ended Year Ended December 31,
July 4, July 4, December 31,
1999 1999 1998 1998 1997 1996 1995 1994
Ratio of Earnings
to Fixed Charges... 2.5x 4.5x 1.9x 12.6x 18.1x 14.4x 14.8x 18.7x
The pro forma ratios illustrate the estimated effect of the Nine West
and Sun acquisitions (the "Acquisitions") and related financings as if they had
occurred at January 1, 1998. The pro forma financial data do not purport to
represent what the financial position and operating results of JAG would
actually have been if the Acquisitions and related financings had occurred on
such dates and do not give effect to costs of integrating Nine West or Sun
following the Acquisitions.
We computed these ratios by dividing fixed charges into the sum of
earnings (after certain adjustments) and fixed charges. Earnings used in
computing the ratio of earnings to fixed charges consist of income before income
taxes and fixed charges excluding capitalized interest. Fixed charges consist of
interest expensed and capitalized, amortization of debt expense and that portion
of rental expense representative of interest.
10
EXCHANGE OFFER
Purpose of the Exchange Offer
We initially sold the Restricted Notes in a private offering on June
15, 1999 to Bear, Stearns & Co. Inc., Chase Securities Inc., Merrill Lynch,
Pierce Fenner & Smith Incorporated, Salomon Smith Barney Inc., BancBoston
Robertson Stephens Inc. , Banc of America Securities LLC, ING Baring Furman Selz
LLC, Lazard Freres & Co. LLC, Tucker Anthony Cleary Gull, Brean Murray & Co.,
Inc. and The Buckingham Research Group Incorporated (collectively, the "Initial
Purchasers") pursuant to a Purchase Agreement dated June 9, 1999 between the
Issuers and the Initial Purchasers. The Initial Purchasers subsequently resold
the Restricted Notes to qualified institutional buyers in reliance on, and
subject to the restrictions imposed under, Rule 144A under the Securities Act
and outside the United States in accordance with the provisions of Regulation S
under the Securities Act.
In connection with the private offering of the Restricted Notes, the
Issuers and the Initial Purchasers entered into an Exchange and Registration
Rights Agreement dated June 15, 1999, in which the Issuers agreed, among other
things:
* to file with the SEC on or before September 13, 1999, a
registration statement relating to an exchange offer for the
Restricted Notes (the "Exchange Offer Registration Statement");
* to use their reasonable best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the
Securities Act on or before December 12, 1999;
* upon the effectiveness of the Exchange Offer Registration
Statement, to offer the holders of the Restricted Notes the
opportunity to exchange their Restricted Notes in the Exchange
Offer for a like principal amount of Exchange Notes;
* to keep the Exchange Offer open for at least 30 days (or longer,
if required by applicable law) after notice of the Exchange Offer
is mailed to holders of Restricted Notes; and
* to use its reasonable best efforts to complete the Exchange Offer
on or before January 10, 2000.
We also agreed, under certain circumstances:
* to use our reasonable best efforts to file a shelf registration
statement relating to the offer and sale of the Restricted Notes
by the holders of the Restricted Notes (a "Shelf Registration
Statement");
* to use our reasonable best efforts to cause the Shelf
Registration Statement to be declared effective; and
* to use our reasonable best efforts to keep the Shelf Registration
Statement effective until June 15, 2001 or until the Restricted
Notes covered by the Shelf Registration Statement have been sold
or until those Restricted Notes become eligible for resale
without volume restrictions pursuant to Rule 144 under the
Securities Act.
The Exchange Offer being made by this Prospectus is intended to
satisfy your exchange and registration rights under the Exchange and
Registration Rights Agreement. If we fail to fulfill those registration and
exchange obligations, you, as a holder of outstanding Restricted Notes, are
entitled to receive additional interest, at a rate of 0.25% per year, determined
daily, as liquidated damages for that default.
For a more complete understanding of your exchange and registration
rights, you should refer to the Exchange and Registration Rights Agreement,
which is included as Exhibit 4.1 to the Registration Statement that relates to
this Prospectus.
Effect of the Exchange Offer
Based on certain no-action letters issued by the staff of the SEC to
third parties in unrelated transactions, we believe that you may offer for
resale, resell or otherwise transfer any Exchange Notes issued to you in the
11
Exchange Offer in exchange for Restricted Notes without compliance with the
registration and prospectus delivery requirements of the Securities Act, if:
* you are acquiring the Exchange Notes issued in the Exchange Offer
in the ordinary course of your business;
* you are not participating, do not intend to participate and have
no arrangement or understanding with any person to participate,
in a distribution of the Exchange Notes;
* you are not our "affiliate" (as defined in Rule 405 under the
Securities Act); and
* you are not an Initial Purchaser who acquired Restricted Notes
directly from the Issuers in the initial offering to resell
pursuant to Rule 144A, Regulation S or any other available
exemption under the Securities Act.
If you are an "affiliate" or an Initial Purchaser or if you have any
arrangement or understanding with any person to participate in a distribution of
the Exchange Notes:
* you will not be able to rely on the interpretations of the staff
of the SEC, in connection with any offer for resale, resale or
other transfer of Exchange Notes; and
* you must comply with the registration and prospectus delivery
requirements of the Securities Act, or have an exemption
available to you, in connection with any offer for resale, resale
or other transfer of the Exchange Notes.
In addition, we are not making this Exchange Offer to, nor will we
accept surrenders of Restricted Notes from, holders of Restricted Notes in any
state in which this Exchange Offer would not comply with the applicable
securities laws or "blue sky" laws of such state.
Use of Proceeds
We will not receive any cash proceeds from the issuance of the
Exchange Notes. As consideration for the Exchange Notes, we will receive in
exchange an equivalent principal amount of outstanding Restricted Notes, the
terms of which are substantially identical to the terms of the Exchange Notes,
except that the Exchange Notes will be freely transferable and issued free of
any covenants regarding exchange and registration rights.
We will retire and cancel the Restricted Notes surrendered in exchange
for the Exchange Notes. Accordingly, the issuance of the Exchange Notes under
the Exchange Offer will not result in any change in our outstanding aggregate
indebtedness.
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth in this
Prospectus and in the accompanying Letter of Transmittal, we will accept all
Restricted Notes validly tendered and not withdrawn prior to 5:00 p.m., New York
City time, on the Expiration Date (defined below in "--Expiration Date;
Extensions; Amendments"). After authentication of the Exchange Notes by the
Trustee or an authenticating agent, we will issue and deliver $1,000 principal
amount of Exchange Notes in exchange for each $1,000 principal amount of
outstanding Restricted Notes accepted in the Exchange Offer. Holders may tender
some or all of their Restricted Notes pursuant to the Exchange Offer in
denominations of $1,000 and integral multiples thereof.
By tendering Restricted Notes in exchange for Exchange Notes and by
executing the Letter of Transmittal, each holder of Restricted Notes will
represent to us that, among other things:
* any Exchange Notes to be received by it will be acquired in the
ordinary course of its business;
* it has no arrangement or understanding with any person to
participate in the distribution of the Exchange Notes; and
* it is not our "affiliate" (as defined in Rule 405 under the
Securities Act), or, if it is an affiliate, that it will comply
with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable.
12
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Restricted Notes, where such Restricted Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of those Exchange Notes. See "Plan of Distribution."
The form and terms of the Exchange Notes are identical in all material
respects to the form and terms of the outstanding Restricted Notes, except that
* the offering of the Exchange Notes has been registered under the
Securities Act;
* the Exchange Notes will not be subject to transfer restrictions;
and
* the Exchange Notes will be issued free of any covenants regarding
exchange and registration rights.
The Exchange Notes will be issued under and entitled to the benefits
of the Indenture that governs the Restricted Notes.
As of the date of this Prospectus, $400.0 million aggregate principal
amount of the Restricted Notes is outstanding. In connection with the issuance
of the Restricted Notes, we arranged for the Restricted Notes to be issued and
transferable in book-entry form through the facilities of The Depository Trust
Company ("DTC"), acting as a depositary. The Exchange Notes will also be
issuable and transferable in book-entry form through DTC.
This Prospectus, together with the accompanying Letter of Transmittal,
is initially being sent to all registered holders of Restricted Notes at the
close of business on [ ], 1999. The Exchange Offer is not conditioned upon any
minimum aggregate principal amount of Restricted Notes being tendered. However,
the Exchange Offer is subject to certain customary conditions which may be
waived by us, and to the terms and provisions of the Exchange and Registration
Rights Agreement. See "--Conditions to the Exchange Offer."
We will be deemed to have accepted validly tendered Restricted Notes
when, as and if we have given oral or written notice of acceptance to the
Exchange Agent. See "--Exchange Agent." The Exchange Agent will act as agent for
the tendering holders of Restricted Notes for the purpose of receiving Exchange
Notes from us and delivering Exchange Notes to those holders.
If any tendered Restricted Notes are not accepted for exchange because
of an invalid tender or the occurrence of certain other events described in this
Prospectus, certificates for those unaccepted Restricted Notes will be returned,
at our expense, to the tendering holder as promptly as practicable after the
Expiration Date.
Holders who tender Restricted Notes in the Exchange Offer will not be
required to pay brokerage commissions or fees or, subject to the instructions in
the Letter of Transmittal, transfer taxes with respect to the exchange of
Restricted Notes pursuant to the Exchange Offer. We will pay all charges and
expenses, other than certain applicable taxes, in connection with the Exchange
Offer. See "--Solicitation of Tenders, Fees and Expenses."
Expiration Date; Extensions; Amendments
The term "Expiration Date" means 5:00 p.m., New York City time, on [
], 1999, unless we, in our sole discretion, extend the Exchange Offer, in which
case the term "Expiration Date" means the latest date to which the Exchange
Offer is extended. We may extend the Exchange Offer at any time and from time to
time by giving oral or written notice to the Exchange Agent and by timely public
announcement.
We expressly reserve the right, in our sole discretion, to amend the
terms of the Exchange Offer in any manner. Without limiting the generality of
that reservation of rights, if any of the conditions described in this
Prospectus under "--Termination" occur and are not waived by us (if permitted to
be waived by us), we expressly reserve the right, in our sole discretion, by
giving oral or written notice to the Exchange Agent, to:
* delay acceptance of, or refuse to accept, any Restricted Notes
not previously accepted;
* extend the Exchange Offer; or
* terminate the Exchange Offer.
Any such delay in acceptance, extension, termination or amendment will be
followed as promptly as practicable by our oral or written notice to the
registered holders of the Restricted Notes. If we amend the Exchange Offer in
a manner which we determine to constitute a material change, we will promptly
disclose that amendment in a manner
13
reasonably calculated to inform the holders of that amendment and we will
extend the Exchange Offer to the extent required by law.
Without limiting the manner in which we may choose to make public
announcements of any delay in acceptance, extension, termination or amendment of
the Exchange Offer, we have no obligation to publish, advise, or otherwise
communicate those public announcements, other than by making a timely press
release for that purpose.
Interest on the Exchange Notes
Interest on the Exchange Notes will accrue from the last interest
payment date on which interest was paid on the Restricted Notes surrendered in
exchange therefor or, if no interest has been paid on the Restricted Notes, from
June 15, 1999. The Exchange Notes will bear interest at an annual rate of 7.50%
for the 2004 Notes and 7.875% for the 2006 Notes. Interest on the Exchange Notes
will be payable semi-annually on June 15 and December 15 of each year, beginning
on December 15, 1999.
Procedures for Tendering
Each holder of Restricted Notes wishing to accept the Exchange Offer
must complete, sign and date the Letter of Transmittal, or a facsimile of the
Letter of Transmittal, in accordance with the instructions contained in this
Prospectus and in the Letter of Transmittal, and mail or otherwise deliver such
Letter of Transmittal, or such facsimile, together with the Restricted Notes to
be exchanged and any other required documentation, to The First National Bank of
Chicago, as Exchange Agent, at the address set forth under "--Exchange Agent" in
this Prospectus and in the Letter of Transmittal or effect a tender of
Restricted Notes pursuant to the procedures for book-entry transfer as provided
for under "--Book-Entry Transfer" in this Prospectus and in the Letter of
Transmittal.
By tendering Restricted Notes in exchange for Exchange Notes and by
executing the Letter of Transmittal, each holder of Restricted Notes will
represent to us that, among other things:
* any Exchange Notes to be received by it will be acquired in the
ordinary course of its business;
* it has no arrangement or understanding with any person to
participate in the distribution of the Exchange Notes; and
* it is not our "affiliate" (as defined in Rule 405 under the
Securities Act), or, if it is an affiliate, that it will comply
with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable.
Any financial institution that is a participant in DTC's system may
make book-entry delivery of the Restricted Notes by causing DTC to transfer the
Restricted Notes into the Exchange Agent's account in accordance with DTC's
procedure for such transfer. Although delivery of Restricted Notes may be
effected through book-entry transfer into the Exchange Agent's account at DTC,
the Letter of Transmittal (or a facsimile of the Letter of Transmittal), with
any required signature guarantees and any other required documents, must, in any
case, be transmitted to and received by the Exchange Agent at its address set
forth herein under "--Exchange Agent" prior to 5:00 p.m., New York City time, on
the Expiration Date.
Delivery of documents to DTC in accordance with DTC's procedures does
NOT constitute delivery to the Exchange Agent.
Only a holder of Restricted Notes may tender its Restricted Notes in
the Exchange Offer. To tender in the Exchange Offer, a holder must complete,
sign and date the Letter of Transmittal or a facsimile of the Letter of
Transmittal, have the signatures guaranteed if required by the Letter of
Transmittal, and mail or otherwise deliver the Letter of Transmittal or the
facsimile, together with the Restricted Notes (unless the tender is being
effected pursuant to the procedure for book-entry transfer) and other required
documents, to the Exchange Agent, prior to 5:00 p.m., New York City time, on the
Expiration Date.
The tender by a holder of Restricted Notes will constitute an
agreement between that holder, the Exchange Agent and us in accordance with the
terms and subject to the conditions set forth in this Prospectus and in the
Letter of Transmittal. If less than all of the Restricted Notes held by a holder
of Restricted Notes are tendered, the holder should fill in the amount of
Restricted Notes being tendered in the appropriate box in the Letter of
Transmittal. The entire amount of Restricted Notes delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated.
14
In the case of a broker-dealer that receives Exchange Notes for its
own account in exchange for Restricted Notes that were acquired by it as a
result of market-making or other trading activities, the Letter of Transmittal
will also include an acknowledgment that the broker-dealer will deliver a copy
of this Prospectus in connection with the resale by it of Exchange Notes
received pursuant to the Exchange Offer; however, by so acknowledging and by
delivering a Prospectus, the broker-dealer will not be deemed to admit that it
is an "underwriter" (within the meaning of the Securities Act). See "Plan of
Distribution."
The method of delivery of Restricted Notes and the Letter of
Transmittal and all other required documents to the Exchange Agent is at the
election and risk of the holders of Restricted Notes. Instead of delivery by
mail, we recommend that holders of Restricted Notes use an overnight or hand
delivery service. In all cases, you should allow sufficient time to ensure
delivery to the Exchange Agent prior to the Expiration Date. No Letter of
Transmittal or Restricted Notes should be sent to us.
Any beneficial owner whose Restricted Notes are registered in the name
of a broker, dealer, commercial bank, trust company or other nominee and who
wishes to tender Restricted Notes in the Exchange Offer should contact the
registered holder promptly and instruct the registered holder to tender on the
beneficial owner's behalf. If the beneficial owner wishes to tender on its own
behalf, the beneficial owner must, prior to completing and executing the Letter
of Transmittal and delivering its Restricted Notes, either make appropriate
arrangements to register ownership of the Restricted Notes in the beneficial
owner's own name or obtain a properly completed bond power from the registered
holder of the Restricted Notes. This transfer of record ownership may take
considerable time.
Signatures on a Letter of Transmittal or a notice of withdrawal, as
the case may be, must be guaranteed by a member firm of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.,
a commercial bank or trust company having an office or correspondent in the
United States or an "eligible guarantor institution" within the meaning of Rule
17Ad-15 under the Exchange Act (each, an "Eligible Institution"), unless the
Restricted Notes tendered in connection with the Letter of Transmittal are
tendered:
* by a registered holder who has not completed the box entitled
"Special Registration Instructions" or the box entitled "Special
Delivery Instructions" on the Letter of Transmittal; or
* for the account of an Eligible Institution.
If the Letter of Transmittal is signed by a person other than the registered
holder listed in the Letter of Transmittal, those Restricted Notes must be
endorsed or accompanied by appropriate bond powers which authorize that person
to tender the Restricted Notes on behalf of the registered holder of the
Restricted Notes, in either case signed as the name of the registered holder
or holders appears on the Restricted Notes. If the Letter of Transmittal or
any Restricted Notes or bond powers are signed or endorsed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers or
corporations or others acting in a fiduciary or representative capacity, those
persons should so indicate when signing, and unless waived by us, submit
evidence satisfactory to us of their authority to so act with the Letter of
Transmittal.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of the tendered Restricted Notes will be
determined by us in our sole discretion, which determination will be final and
binding. We reserve the absolute right to reject any and all Restricted Notes
not properly tendered or any Restricted Notes our acceptance of which would, in
the opinion of our counsel, be unlawful. We also reserve the absolute right to
waive any irregularities or conditions of tender as to particular Restricted
Notes. Our interpretation of the terms and conditions of the Exchange Offer
(including the instructions in the Letter of Transmittal) will be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Restricted Notes must be cured within such time as we
shall determine. Although we intend to notify tendering holders of defects or
irregularities with respect to tenders of Restricted Notes, none of us, the
Exchange Agent or any other person shall be under any duty to give notification
of defects or irregularities with respect to tenders of Restricted Notes, nor
will any of us or them incur any liability for failure to give that
notification. Tenders of Restricted Notes will not be deemed to have been made
until those irregularities have been cured or waived. Any Restricted Notes
received by the Exchange Agent that we determine are not properly tendered or
the tender of which is otherwise rejected by us and as to which the defects or
irregularities have not been cured or waived by us will be returned by the
Exchange Agent to the tendering holder unless otherwise provided in the Letter
of Transmittal, as soon as practicable following the Expiration Date.
15
In addition, we reserve the right in our sole discretion:
* to purchase or make offers for any Restricted Notes that remain
outstanding after the Expiration Date;
* to terminate the Exchange Offer, as set forth in "
--Termination"; and
* to the extent permitted by applicable law, to purchase Restricted
Notes in the open market, in privately negotiated transactions or
otherwise.
The terms of any such purchases or offers may differ from the terms of the
Exchange Offer.
Book-Entry Transfer
The Exchange Agent will make a request promptly after the date of this
Prospectus to establish accounts with respect to the Restricted Notes at DTC to
facilitate the Exchange Offer. If those accounts are established, any financial
institution that is a participant in DTC's system may make book-entry delivery
of Restricted Notes by causing DTC to transfer those Restricted Notes into the
Exchange Agent's account with respect to the Restricted Notes in accordance with
DTC's Automated Tender Offer Program procedures for that transfer. However, the
exchange for the Restricted Notes so tendered will only be made after a timely
confirmation of a book-entry transfer of those Restricted Notes into the
Exchange Agent's account, and timely receipt by the Exchange Agent of an Agent's
Message and any other documents required by the Letter of Transmittal.
The term "Agent's Message" means a message, transmitted by DTC and
received by the Exchange Agent and forming part of the confirmation of a
book-entry transfer, which states that DTC has received an express
acknowledgment from a participant tendering Restricted Notes and that
participant has received the Letter of Transmittal and agrees to be bound by the
terms of the Letter of Transmittal, and we may enforce that agreement against
the participant.
Although delivery of Restricted Notes may be effected through DTC into
the Exchange Agent's account at DTC, an appropriate Letter of Transmittal
properly completed and duly executed with any required signature guarantee and
all other required documents must in each case be transmitted to and received or
confirmed by the Exchange Agent at its address set forth under "--Exchange
Agent" in this Prospectus or in the Letter of Transmittal on or prior to the
Expiration Date, or, if the guaranteed delivery procedures described below are
complied with, within the time period provided under those procedures. Delivery
of documents to DTC without proper confirmation or compliance does not
constitute delivery to the Exchange Agent.
Guaranteed Delivery Procedures
Holders who wish to tender their Restricted Notes and (1) whose
Restricted Notes are not immediately available, or (2) who cannot deliver their
Restricted Notes, the Letter of Transmittal or any other required documents to
the Exchange Agent prior to the Expiration Date, or (3) who cannot complete the
procedure for book-entry transfer on a timely basis, may effect a tender if:
* the tender is made through an Eligible Institution;
* prior to the Expiration Date, the Exchange Agent receives from an
Eligible Institution a properly completed and duly executed
Notice of Guaranteed Delivery (by facsimile transmittal, mail or
hand delivery) setting forth the name and address of the holder,
the certificate number or numbers of that holder's Restricted
Notes and the principal amount of the Restricted Notes tendered,
stating that the tender is being made thereby, and guaranteeing
that, within three business days after the Expiration Date, the
Letter of Transmittal (or facsimile thereof), together with the
certificate(s) representing the Restricted Notes to be tendered
in proper form for transfer (or confirmation of a book-entry
transfer into the Exchange Agent's account at DTC of Restricted
Notes delivered electronically) and any other documents required
by the Letter of Transmittal, will be deposited by the Eligible
Institution with the Exchange Agent; and
* a properly completed and executed Letter of Transmittal (or
facsimile thereof), together with the certificate(s) representing
all tendered Restricted Notes in proper form for transfer (or
confirmation of a book-entry transfer into the Exchange Agent's
account at DTC of Restricted Notes delivered electronically) and
all other documents required by the Letter of Transmittal are
received by the Exchange Agent within three business days after
the Expiration Date.
16
Upon request to the Exchange Agent, a Notice of Guaranteed Delivery
will be sent to holders who wish to tender their Restricted Notes according to
the guaranteed delivery procedures set forth above.
Withdrawal of Tenders
Except as otherwise provided herein, tenders of Restricted Notes may
be withdrawn at any time prior to 5:00 p.m., New York City time, on the
Expiration Date.
For a withdrawal to be effective, a written or facsimile transmission
notice of withdrawal must be received by the Exchange Agent at its address set
forth under "--Exchange Agent" in this Prospectus prior to 5:00 p.m., New York
City time, on the Expiration Date.
Any notice of withdrawal must:
* specify the name of the person having deposited the Restricted
Notes to be withdrawn (the "Depositor");
* identify the Restricted Notes to be withdrawn (including the
certificate number or numbers and principal amount of those
Restricted Notes or, in the case of Restricted Notes transferred
by book-entry transfer, the name and number of the account at DTC
to be credited);
* be signed by the Depositor in the same manner as the original
signature on the Letter of Transmittal by which those Restricted
Notes were tendered (including any required signature guarantee)
or be accompanied by documents of transfer sufficient to permit
the registrar to register the transfer of those Restricted Notes
into the name of the Depositor withdrawing the tender; and
* specify the name in which any of the Restricted Notes are to be
registered, if different from that of the Depositor.
All questions as to the validity, form and eligibility (including time
of receipt) of the withdrawal notices will be determined by us in our sole
discretion and our determination will be final and binding on all parties. Any
Restricted Notes so withdrawn will be deemed not to have been validly tendered
for purposes of the Exchange Offer, and no Exchange Notes will be issued with
respect to them unless the Restricted Notes so withdrawn are validly retendered.
Any Restricted Notes that have been tendered but are not accepted for exchange
will be returned to the holder thereof without cost to that holder as soon as
practicable after withdrawal, rejection of tender or termination of the Exchange
Offer. Properly withdrawn Restricted Notes may be retendered by following one of
the procedures described above under "--Procedures for Tendering" at any time
prior to the Expiration Date.
Conditions to the Exchange Offer
Notwithstanding any other term of the Exchange Offer, we will not be
required to accept for exchange, or to exchange Exchange Notes for, any
Restricted Notes, and may terminate or amend the Exchange Offer before the
acceptance of the Restricted Notes if, in our judgment, any of the following
conditions has occurred or exists or has not been satisfied:
* the Exchange Offer, or the making of any exchange by a holder of
Restricted Notes, violates applicable interpretations of the SEC
staff;
* any action or proceeding is instituted or threatened in any court
or by or before any governmental agency or body with respect to
the Exchange Offer; or
* there has been adopted or enacted any law, statute, rule or
regulation that can reasonably be expected to impair our ability
to proceed with the Exchange Offer.
If we determine that we may terminate the Exchange Offer for any of
the reasons set forth above, we may (1) refuse to accept any Restricted Notes
and return any Restricted Notes that have been tendered to the tendering
holders, (2) extend the Exchange Offer and retain all Restricted Notes tendered
prior to the Expiration Date of the Exchange Offer, subject to the rights of the
holders of the tendered Restricted Notes to withdraw their Restricted Notes, or
(3) waive the termination event with respect to the Exchange Offer and accept
the properly tendered Restricted Notes that have not been withdrawn. If we
determine that a waiver constitutes a material change in the Exchange Offer, we
will promptly disclose that change in a manner reasonably calculated to inform
the holders of that change and we will extend the Exchange Offer to the extent
required by law.
17
The foregoing conditions are for our sole benefit and we may assert
any condition regardless of the circumstances giving rise to that condition or
may waive the condition in whole or in part at any time and from time to time in
our sole discretion. Our failure at any time to exercise any of the foregoing
rights will not be deemed a waiver of any right and each right will be deemed an
ongoing right which may be asserted at any time and from time to time.
Exchange Agent
The First National Bank of Chicago has been appointed as Exchange
Agent for the Exchange Offer. In such capacity, the Exchange Agent has no
fiduciary duties and will be acting solely on the basis of our directions.
Requests for assistance and requests for additional copies of this Prospectus or
of the Letter of Transmittal should be directed to the Exchange Agent addressed
as follows:
By Mail, Overnight Delivery Bank One Trust Company, NA
or Hand Delivery: 153 West 51st Street
5th Floor, Suite 4015
New York, New York 10019
Attention: Corporate Trust
Administration
Facsimile Transmission: (212) 373-1383
Attention: Corporate Trust
Administration
Information or Confirmation by
Telephone: (212) 373-1339
Delivery to an address or facsimile other than those listed above will
not constitute a valid delivery.
Solicitation of Tenders; Fees and Expenses
We will bear all expenses of soliciting tenders pursuant to the
Exchange Offer. The principal solicitation pursuant to the Exchange Offer is
being made by mail. Additional solicitations may be made by officers and regular
employees of the Company and its affiliates in person or by telegraph, telephone
or facsimile transmission.
We have not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers or other
persons soliciting acceptances of the Exchange Offer. We will, however, pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
the Exchange Agent for its reasonable out-of-pocket costs and expenses and will
indemnify the Exchange Agent for all losses and claims incurred by it as a
result of the Exchange Offer. We may also pay brokerage houses and other
custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding copies of this Prospectus, Letters of Transmittal
and related documents to the beneficial owners of the Restricted Notes and in
handling or forwarding tenders for exchange.
We will pay all expenses incurred in connection with the Exchange
Offer, including fees and expenses of the Exchange Agent and Trustee, accounting
and legal fees (including the expense of one counsel to the holders of the
Restricted Notes) and printing costs.
We will pay any transfer taxes applicable to the exchange of
Restricted Notes pursuant to the Exchange Offer. If, however, a transfer tax is
imposed for any reason other than the exchange of Restricted Notes pursuant to
the Exchange Offer, then the amount of those transfer taxes (whether imposed on
the registered holder thereof or any other person) will be payable by the
tendering holder. For example, the tendering holder will pay transfer taxes if:
* certificates representing Exchange Notes for principal amounts
not tendered or accepted for exchange are to be delivered to, or
are to be registered or issued in the name of, any person other
than the registered holder of the Restricted Notes tendered; or
* tendered Restricted Notes are registered in the name of any
person other than the person signing the Letter of Transmittal.
If satisfactory evidence of payment of the taxes or exemption from the payment
at taxes is not submitted with the Letter of Transmittal, we will bill the
amount of the transfer taxes directly to the tendering holder.
18
Accounting Treatment
The Exchange Notes will be recorded at the same carrying value as the
Restricted Notes, as reflected in our accounting records on the date of the
exchange. Accordingly, we will not recognize any gain or loss for accounting
purposes as a result of the consummation of the Exchange Offer. We will amortize
the expense of the Exchange Offer over the term of the Exchange Notes.
Consequences of a Failure to Exchange Restricted Notes
As a result of the making of, and upon acceptance for exchange of all
validly tendered Restricted Notes pursuant to the terms of, this Exchange Offer,
we will have fulfilled various covenants contained in the Exchange and
Registration Rights Agreement. Holders of Restricted Notes who do not tender
their Restricted Notes in the Exchange Offer will continue to hold their
Restricted Notes and will be entitled to all the rights, and subject to the
limitations applicable thereto, under the Indenture and the Exchange and
Registration Rights Agreement, except for any rights under the Exchange and
Registration Rights Agreement that by their terms terminate or cease to have
further effect as a result of the consummation of this Exchange Offer.
All untendered Restricted Notes will continue to be subject to the
restrictions on transfer set forth in the Indenture. Accordingly, after the
completion of the Exchange Offer, you will only be able to offer for sale, sell
or otherwise transfer untendered Restricted Notes as follows:
* to us;
* pursuant to a registration statement that has been declared
effective under the Securities Act;
* for so long as the Restricted Notes are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person you
reasonably believe is a qualified institutional buyer ("QIB")
within the meaning of Rule 144A, that purchases for its own
account or for the account of a QIB to whom notice is given that
the transfer is being made in reliance on the exemption from the
registration requirements of the Securities Act provided by Rule
144A;
* pursuant to offers and sales that occur outside the United States
to foreign persons in transactions complying with the provisions
of Regulation S under the Securities Act;
* to an "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act that is an institutional
investor (an "Institutional Accredited Investor") purchasing for
its own account or for the account of an Institutional Accredited
Investor, in each case in a minimum principal amount of the
Restricted Notes of $250,000; or
* pursuant to any other available exemption from the registration
requirements of the Securities Act.
To the extent that Restricted Notes are tendered and accepted in the
Exchange Offer, the liquidity of the trading market for untendered Restricted
Notes could be adversely affected.
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DESCRIPTION OF NOTES
General
The Restricted Notes were issued and the Exchange Notes will be
issued, as separate series, under the Indenture among the Issuers and the
Trustee. The term "Notes" as used in this "Description of Notes" refers to all
notes issued or to be issued under the Indenture and includes the Restricted
Notes and the Exchange Notes. Capitalized terms used and not otherwise defined
have the meanings set forth under "--Certain Definitions".
The following summary of certain provisions of the Indenture and the
Notes does not purport to be complete and is subject to, and is qualified in its
entirety by reference to, all the provisions of the Indenture, including the
definitions of certain terms in the Indenture and those terms made a part of the
Indenture by the TIA. For a more complete understanding of the terms of the
Notes, you should refer to the Indenture, which is included as Exhibit 4.2 to
the Registration Statement that relates to this Prospectus.
The Notes will be unsecured senior obligations of the Issuers, ranking
equally in right of payment to each other, and with all existing and future
senior debt of the Issuers and senior in right of payment to all future
subordinated debt of the Issuers.
Principal of, premium, if any, and interest on the Notes will be
payable, at the office or agency of Jones in the Borough of Manhattan, The City
of New York (which initially shall be the corporate trust office of the Trustee,
at 101 Barclay Street, 7th Floor, New York, New York 10286), except that, at the
option of Jones, payment of interest may be made by check mailed to the
registered holders of the Notes at their registered addresses.
The Notes may be exchanged or transferred at the office or agency of
Jones in the City of Chicago, which initially shall be the corporate trust
administration office of the Exchange Agent, at One First National Plaza, Suite
0216, Chicago, Illinois 60670-0216.
The Notes will be issued only in fully registered form, without
coupons, in denominations of $1,000 and any integral multiple of $1,000. The
registered holder of a Note will be treated as the owner of that Note for all
purposes. No service charge will be made for any registration of transfer or
exchange of Notes, but Jones may require payment of a sum sufficient to cover
any transfer tax or other similar governmental charge payable in connection with
any transfer or exchange. See "Exchange Offer --Solicitation of Tenders; Fees
and Expenses".
Terms of the Notes
The Notes will have the following terms:
Principal Amount Interest Rate Maturity Date
2004 Notes........... $175,000,000 7.50% June 15, 2004
2006 Notes........... $225,000,000 7.875% June 15, 2006
Each Note will bear interest from June 15, 1999, or from the most
recent date to which interest has been paid or provided for, payable
semiannually to holders of record at the close of business on June 1 or December
1 immediately preceding the interest payment date on June 15 and December 15 of
each year, commencing December 15, 1999. Interest will be computed on the basis
of a 360-day year consisting of twelve 30-day months. Jones USA is expected to
be the primary payor on the Notes.
Exchange and Registration Rights
The terms of the Exchange Notes are substantially identical to the
terms of the Restricted Notes, except that the Exchange Notes will be freely
transferable and issued free of any covenants regarding exchange and
registration rights. Restricted Notes not exchanged in the Exchange Offer will
remain outstanding and be entitled to the benefits of the Indenture, but, except
under certain circumstances, will have no further exchange or registration
rights under the Exchange and Registration Rights Agreement.
Optional Redemption
The Notes will be redeemable as a whole or in part, at the option of
the Issuers at any time or from time to time, at a redemption price equal to the
greater of (1) 100% of their principal amount or (2) the sum of the present
values of the Remaining Scheduled Payments (as defined below) discounted, on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
a rate equal to the sum of the Treasury Rate (as defined below) and 25 basis
points.
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In the case of each of clause (1) and (2), accrued interest will be
payable to the redemption rate.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes. "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by Jones.
"Comparable Treasury Price" means, with respect to any redemption
date, (1) the average of the Reference Treasury Dealer Quotations for such
redemption date after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Bear, Stearns & Co. Inc.,
Chase Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Salomon Smith Barney Inc., BancBoston Robertson Stephens, Inc. and Banc of
America Securities LLC and their respective successors. If any of the foregoing
shall cease to be a primary U.S. Government securities dealer (a "Primary
Treasury Dealer"), we shall substitute another nationally recognized investment
banking firm that is a Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to each Note to be
redeemed, the remaining scheduled payments of principal of and interest on such
Note that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with respect
to such Note, the amount of the next succeeding scheduled interest payment on
such Note will be reduced by the amount of interest accrued on such Note to such
redemption date.
Holders of Notes to be redeemed will receive notice thereof by
first-class mail at least 30 and not more than 60 days prior to the date fixed
for redemption. In the case of any partial redemption, selection of the Notes
for redemption will be made by the Trustee on a pro rata basis, by lot or by
such other method as the Trustee in its sole discretion shall deem to be fair
and appropriate, although no Note of $1,000 in original principal amount or less
will be redeemed in part. If any Note is to be redeemed in part only, the notice
of redemption relating to such Note shall state the portion of the principal
amount thereof to be redeemed. A new Note of the same series in principal amount
equal to the unredeemed portion thereof will be issued in the name of the holder
thereof upon cancelation of the original Note. On and after the redemption date,
interest will cease to accrue on Notes or portions thereof called for redemption
so long as the Issuers have deposited with the paying agent funds sufficient to
pay the principal of, premium (if any), plus accrued and unpaid interest, if
applicable, and liquidated damages (if any) on, the Notes to be redeemed.
Certain Covenants
The Indenture contains covenants including, among others, the
following:
Restrictions on Liens. Except as provided below under "-Exempted
Debt," the Issuers will not, and will not permit any Restricted Subsidiary to,
create or suffer to exist any mortgage, lien, pledge, charge, security interest
or encumbrance (a "Lien" or "Liens") to secure any Indebtedness of any Issuer or
Restricted Subsidiary on any Principal Property of any Issuer or Restricted
Subsidiary, without making, or causing such Restricted Subsidiary to make,
effective provision to secure all of the Notes offered hereunder and then
outstanding by such Lien, equally and ratably with any and all other such
Indebtedness thereby secured, so long as such other Indebtedness is so secured,
except that the foregoing restrictions shall not apply to:
(1) Liens on property of a Person existing at the time such
Person is merged into or consolidated with any Issuer or Restricted
Subsidiary or at the time of sale, lease or other disposition of the
properties of such Person (or a division thereof) as an entirety or
substantially as an entirety to any Issuer or Restricted Subsidiary;
21
(2) Liens on property of a Person existing at the time such
Person becomes a Restricted Subsidiary or existing on property prior
to the acquisition thereof by any Issuer or Restricted Subsidiary;
(3) Liens securing Indebtedness between a Restricted
Subsidiary and an Issuer or between Restricted Subsidiaries or
Issuers;
(4) Liens on any property created, assumed or otherwise
brought into existence in contemplation of the sale or other
disposition of the underlying property, whether directly or
indirectly, by way of share disposition or otherwise, provided that
the applicable Issuer or Restricted Subsidiary must have disposed of
such property within 180 days after the creation of such Liens, and
any Indebtedness secured by such Liens shall be without recourse to
any Issuer or Restricted Subsidiary;
(5) Liens in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State
thereof, or in favor of any country, or any political subdivision
thereof, to secure partial, progress, advance or other payments, or
performance of any other similar obligations, including, without
limitation, Liens to secure pollution control bonds or industrial
revenue or other similar types of bonds;
(6) Liens imposed by law, such as carriers', warehousemen's
and mechanics' Liens and other similar Liens arising in the ordinary
course of business which secure obligations not more than 60 days
past due or are being contested in good faith and by appropriate
proceedings;
(7) Liens incurred in the ordinary course of business to
secure performance of obligations with respect to statutory or
regulatory requirements, performance or return-of-money bonds, surety
bonds or other obligations of a like nature, in each case which are
not incurred in connection with the borrowing of money, the obtaining
of advances or credit or the payment of the deferred purchase price
of property and which do not in the aggregate impair in any material
respect the use of property in the operation of the business of the
Issuers and their respective Subsidiaries taken as a whole;
(8) Liens incurred to secure appeal bonds and judgment and
attachment Liens, in each case in connection with litigation or legal
proceedings which are being contested in good faith by appropriate
proceedings so long as reserves have been established to the extent
required by generally accepted accounting principles as in effect at
such time;
(9) pledges or deposit under workmen's compensation laws,
unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for
the payment of Indebtedness) or leases to which any Issuer or
Restricted Subsidiary is a party, or deposits to secure public or
statutory obligations of any Issuer or Restricted Subsidiary or
deposits for the payment of rent, in each case incurred in the
ordinary course of business;
(10) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character;
(11) Liens granted to any bank or other institution on the
payments to be made to such institution by an Issuer or Subsidiary of
an Issuer pursuant to any interest rate swap or similar agreement or
foreign currency hedge, exchange or similar agreement designed to
provide protection against fluctuations in interest rates and
currency exchange rates, respectively, provided that such agreements
are entered into in, or are incidental to, the ordinary course of
business;
(12) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set off or
similar rights and remedies, in each case as to deposit accounts or
other funds maintained with a creditor depository institution,
provided that such deposit account is not (A) a dedicated cash
collateral account and is not subject to restrictions against access
by the applicable Issuer or Restricted Subsidiary in excess of those
set forth by regulations promulgated by the Federal Reserve Board,
and (B) intended by such Issuer or Restricted Subsidiary to provide
collateral to the depository institution;
(13) Liens arising from Uniform Commercial Code financing
statements regarding leases;
(14) the giving, simultaneously with or within 180 days
after the latest of the date of the Indenture, or the acquisition,
construction, improvement, development or expansion of such property,
of a purchase money Lien on property acquired, constructed, improved,
developed or expanded after the date
22
of the Indenture, or the acquisition, construction, improvement,
development or expansion after the date of the Indenture, of property
subject to any Lien which is limited to such property;
(15) the giving of a Lien on real property which is the sole
security for Indebtedness incurred within two years after the latest
of the date of the Indenture, or the acquisition, construction,
improvement, development or expansion of the property, provided that
the holder of such Indebtedness is entitled to enforce its payment
only by resorting to such security;
(16) Liens arising by the terms of letters of credit entered
into in the ordinary course of business to secure reimbursement
obligations thereunder;
(17) Liens existing on the date of the Indenture;
(18) Liens for taxes, assessments and other governmental
charges or levies not yet due or as to which the period of grace, if
any, related thereto has not expired or which are being contested in
good faith and by appropriate proceedings if adequate reserves are
maintained to the extent required by generally accepted accounting
principles; and
(19) extension, renewal, replacement or refunding of any
Lien existing on the date of the Indenture or referred to in clauses
(1) to (11) and (14) to (15) and (17), provided that the principal
amount of Indebtedness secured thereby and not otherwise authorized
by clauses (1) to (11) and (14) to (15) and (17) shall not exceed the
principal amount of Indebtedness, plus any premium or fee payable in
connection with any such extension, renewal, replacement or
refunding, so secured at the time of such extension, renewal,
replacement or refunding.
Restrictions on Sale and Leaseback Transactions. Except as provided
below under "-Exempted Debt," the Issuers will not, and will not permit any
Restricted Subsidiary to, after the date hereof, enter into any arrangement with
any Person providing for the leasing by any such Issuer or Restricted Subsidiary
of any Principal Property now owned or hereafter acquired which has been or is
to be sold or transferred by such Issuer or Restricted Subsidiary to such Person
with the intention of taking back a lease of such Principal Property (a "Sale
and Leaseback Transaction"), unless the net proceeds of such sale or transfer
have been determined by the Board of Directors to be at least equal to the fair
market value of such Principal Property or asset at the time of such sale and
transfer and either (1) such Issuer or Restricted Subsidiary applies or causes
to be applied an amount equal to the net proceeds of such sale or transfer,
within 180 days of receipt thereof, to the retirement or prepayment (other than
any mandatory retirement or prepayment, except mandatory retirements or
prepayments required as a result of such Sale and Leaseback Transaction) of
Funded Debt of any Issuer or Restricted Subsidiary that is senior to or pari
passu with the Notes or to the purchase, construction or development of property
or assets to be used in the ordinary course of business, or (2) such Issuer or
Restricted Subsidiary would, on the effective date of such sale or transfer, be
entitled, pursuant to the Indenture, to issue, assume or guarantee Indebtedness
secured by a Lien upon such Principal Property at least equal in amount to the
Attributable Debt in respect of such Sale and Leaseback Transaction without
equally and ratably securing the Notes. The foregoing restriction will not apply
to any Sale and Leaseback Transaction (1) between an Issuer and a Restricted
Subsidiary or between Restricted Subsidiaries or Issuers, provided that the
lessor shall be an Issuer or Wholly Owned Restricted Subsidiary, (2) which has a
lease of less than three years in length, (3) entered into within 180 days after
the later of the purchase, construction or development of such Principal
Property or asset or the commencement of operation of such Principal Property,
or (4) involving Jones' distribution warehouse at South Hill, Virginia.
Exempted Debt. Notwithstanding the restrictions in the Indenture on
(1) Liens and (2) Sale and Leaseback Transactions, any Issuer or Restricted
Subsidiary may, in addition to amounts permitted under such restrictions, create
Indebtedness secured by Liens, or enter into Sale and Leaseback Transactions,
provided that, at the time of such transactions and after giving effect thereto,
the aggregate outstanding amount of all such Indebtedness secured by Liens plus
Attributable Debt resulting from such Sale and Leaseback Transactions does not
exceed 20% of Consolidated Stockholders' Equity.
Corporate Existence. Each Issuer will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, material rights (charter and statutory) and material franchises;
provided, however, that such Issuer shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation of such rights and franchises is no longer desirable in the conduct
of the business of the Issuers and Restricted Subsidiaries considered as a
whole.
No Special Protection in the Event of a Highly Leveraged Transaction.
The terms of the Notes will not afford the holders special protection in the
event of a highly leveraged transaction.
23
Merger and Consolidation
The Indenture provides that none of the Issuers will consolidate with
or merge with or into, or convey, transfer or lease all or substantially all its
assets to, any Person (other than a merger of a Wholly Owned Restricted
Subsidiary into an Issuer or another Wholly Owned Restricted Subsidiary or a
merger of one Issuer into another), unless:
(1) the resulting, surviving or transferee Person (the
"Successor Company" ) will be a corporation organized and existing
under the laws of the United States of America, any State thereof or
the District of Columbia and the Successor Company (if not such
Issuer) will expressly assume, by a supplemental Indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of such Issuer under the Notes and the Indenture;
(2) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the
Successor Company, any other Issuer or any Restricted Subsidiary as a
result of such transaction as having been incurred by the Successor
Company or such Issuer or Restricted Subsidiary at the time of such
transaction), no Event of Default shall have occurred and be
continuing;
(3) such Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental
Indenture (if any) comply with the Indenture; and
(4) if, as a result of any such consolidation, merger or
transfer, Principal Property of such Issuer would become subject to a
Lien which would not be permitted by the Indenture, such Issuer or
the Successor Company, as the case may be, shall take such steps as
shall be necessary effectively to secure the Notes equally and
ratably with (or prior to) all Indebtedness secured thereby.
The Indenture provides that the Successor Company will succeed to, and
be substituted for, and may exercise every right and power of, the applicable
Issuer under the Indenture, but the predecessor Issuer in the case of a lease of
all or substantially all its assets will not be released from the obligation to
pay the principal of and interest on the Notes.
Defaults
An Event of Default with respect to any series of Notes is defined in
the Indenture as:
(1) a default in any payment of interest or liquidated
damages on any Note of that series when due and payable, continued
for 30 days,
(2) a default in the payment of principal of or any premium
on any Note of that series when due and payable at maturity, upon
declaration or otherwise,
(3) the failure by any Issuer to comply with its obligations
under the covenant described under "--Merger and Consolidation"
above,
(4) the failure by any Issuer to comply for 30 days after
notice with any of its obligations under the covenants described
under "--Certain Covenants" above,
(5) the failure by any Issuer to comply for 60 days after
notice with its other covenants or agreements contained in the Notes
or the Indenture,
(6) a default under any Indebtedness by any Issuer or
Restricted Subsidiary (other than the Notes), whether such
Indebtedness now exists or shall hereafter be created, which default
shall have resulted in Indebtedness in excess of $25.0 million or its
foreign currency equivalent becoming due and payable prior to the
date on which it would otherwise have become due and payable, without
such Indebtedness having been discharged or such acceleration having
been rescinded or annulled within 30 days after notice (the "cross
acceleration provision"),
(7) the rendering of any judgment or decree for the payment
of money in excess of $25.0 million or its foreign currency
equivalent against an Issuer or Restricted Subsidiary if (A) an
enforcement proceeding thereon is commenced by any creditor or (B)
such judgment or decree remains outstanding for a period of 60 days
following such judgment and is not discharged, waived or stayed (the
"judgment default provision"),
24
(8) the guarantee or co-obligation of any Additional Obligor
shall cease to be in full force and effect (except as contemplated by
the terms thereof) or any Additional Obligor or Person acting by or
on behalf of such Additional Obligor shall deny or disaffirm its
obligations under the Indenture or any such guarantee or
co-obligation, or
(9) certain events of bankruptcy, insolvency or
reorganization of an Issuer or Restricted Subsidiary (the "bankruptcy
provisions").
A default under one series of Notes will not necessarily be a default
under another series. The foregoing will constitute Events of Default whatever
the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
However, a default with respect to Notes of any series under clause
(4), (5) or (6) will not constitute an Event of Default until the Trustee or the
holders of at least 25% in principal amount of the outstanding Notes of that
series notify the Issuers of the default and the Issuers do not cure such
default within the time specified in clause (4), (5) or (6) hereof after receipt
of such notice.
If an Event of Default with respect to Notes of any series (other than
an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of an Issuer) occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the outstanding Notes of that
series by notice to the Issuers may declare the principal of and accrued but
unpaid interest on all the Notes of that series to be due and payable. Upon such
a declaration, such principal and interest will be due and payable immediately.
If an Event of Default relating to certain events of bankruptcy, insolvency or
reorganization of an Issuer occurs, the principal of and interest on all the
Notes will become immediately due and payable without any declaration or other
act on the part of the Trustee or any holders. Under certain circumstances, the
holders of a majority in principal amount of the outstanding Notes of any series
may rescind any such acceleration with respect to such series.
Subject to the provisions of the Indenture relating to the duties of
the Trustee, in case an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the holders unless such holders
have offered to the Trustee indemnity or security satisfactory to it against any
loss, liability or expense. Except to enforce the right to receive payment of
principal, premium (if any) or interest when due, no holder may pursue any
remedy with respect to the Indenture or the Notes of any series unless
(1) such holder has previously given the Trustee notice that
an Event of Default for that series is continuing,
(2) holders of at least 25% in principal amount of the
outstanding Notes of that series have requested the Trustee in
writing to pursue the remedy,
(3) such holders have offered the Trustee reasonable
security or indemnity against any loss, liability or expense,
(4) the Trustee has not complied with such request within 60
days after the receipt of the request and the offer of security or
indemnity and
(5) the holders of a majority in principal amount of the
outstanding Notes of that series have not given the Trustee a
direction inconsistent with such request within such 60-day period.
Subject to certain restrictions, the holders of a majority in principal amount
of the outstanding Notes of each series will be given the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee
with respect to Notes of such series. The Trustee, however, may refuse to
follow any direction that conflicts with law or the Indenture or that the
Trustee determines is unduly prejudicial to the rights of any other holder or
that would involve the Trustee in personal liability. Prior to taking any
action under the Indenture, the Trustee will be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action.
The Indenture provides that if a Default with respect to Notes of any
series occurs and is continuing and is known to the Trustee, the Trustee must
mail to each holder of Notes of that series notice of the Default within 90 days
after it occurs. Except in the case of a Default in the payment of principal of,
premium (if any) or interest on any Note of any series (including payments
pursuant to the redemption provisions of such Note), the Trustee may withhold
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding notice is
25
in the interests of the noteholders of such series. In addition, Jones will be
required to deliver to the Trustee, within 120 days after the end of each
fiscal year, a certificate indicating whether the signers thereof know of any
Default that occurred during the previous year.
Amendments and Waivers
Subject to certain exceptions, the Indenture or the Notes may be
amended with the written consent of the holders of a majority in principal
amount of the Notes then outstanding of each series affected by such amendment
and any past default or compliance with any provisions may be waived with the
consent of the holders of a majority in principal amount of the Notes then
outstanding of each series affected by such waiver. However, without the consent
of each holder of an outstanding Note affected, no amendment may, among other
things,
(1) reduce the amount of Notes whose holders must consent to an
amendment,
(2) reduce the rate of or extend the time for payment of interest
or any liquidated damages on any Note,
(3) reduce the principal of or extend the stated maturity of any
Note,
(4) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed as described under
"-Optional Redemption" above,
(5) make any Note payable in money other than that stated in the
Note,
(6) impair the right of any holder to receive payment of
principal of, and interest or any liquidated damages on, such holder's
Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such holder's Notes,
(7) make any change in the amendment provisions which require
each holder's consent or in the waiver provisions, or
(8) make any change in any guarantee or co-obligation of any
Additional Obligor that would adversely affect the holders.
Without the consent of any holder, the Issuers and the Trustee may
amend the Indenture to cure any ambiguity, omission, defect or inconsistency, to
provide for the assumption by a successor corporation of the obligations of the
Issuers under the Indenture, to provide for uncertificated Notes in addition to
or in place of certificated Notes (provided that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code, or in a
manner such that the uncertificated Notes are described in Section 163(f)(2)(B)
of the Code), to secure the Notes, to add guarantees or co-obligors with respect
to the Notes, to add to the covenants of the Issuers for the benefit of the
noteholders or to surrender any right or power conferred upon the Issuers, to
make any change that does not adversely affect the rights of any holder, subject
to the provisions of the Indenture, to provide for the issuance of the Exchange
Notes or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA.
The Senior Credit Facilities contain a covenant which, following a
default or event of default under the Senior Credit Facilities, prohibits the
Issuers from making material amendments to debt instruments, including the
Indenture for the Notes, without the consent of a majority of the lenders under
the Senior Credit Facilities.
The consent of noteholders is not necessary under the Indenture to
approve the particular form of any proposed amendment. It will be sufficient if
such consent approves the substance of the proposed amendment.
After an amendment under the Indenture becomes effective, the Issuers
will be required to mail to noteholders a notice briefly describing such
amendment. However, the failure to give such notice to all noteholders, or any
defect therein, will not impair or affect the validity of the amendment.
Transfer and Exchange
A noteholder will be able to transfer or exchange Notes of any series
for other Notes of the same series, the same total principal amount and the same
terms but in different authorized denominations in accordance with the
Indenture. Upon any transfer or exchange, the Registrar and the Trustee may
require a noteholder, among other things, to furnish appropriate endorsements
and transfer documents and the Issuers may require a noteholder to pay any taxes
required by law or permitted by the Indenture. The Issuers will not be required
to
26
transfer or exchange any Note selected for redemption or to transfer or
exchange any Note for a period of 15 days prior to a selection of Notes to be
redeemed. The Notes will be issued in registered form and the registered
holder of a Note will be treated as the owner of such Note for all purposes.
Defeasance
The Indenture provides that the Issuers at any time may terminate all
their obligations under any series of the Notes and the Indenture ("legal
defeasance"), except for certain obligations, including those respecting the
defeasance trust and obligations to register the transfer or exchange of the
Notes, to replace mutilated, destroyed, lost or stolen Notes and to maintain a
registrar and paying agent in respect of the Notes. In addition, the Indenture
providse that the Issuers at any time may terminate their obligations under the
covenants described under "Certain Covenants," the cross acceleration provision,
the bankruptcy provisions with respect to Restricted Subsidiaries and the
judgment default provision described under "- Defaults" above and the
limitations contained in clauses (3) and (4) under "- Merger and Consolidation"
above ("covenant defeasance").
The Issuers may exercise their legal defeasance option notwithstanding
their prior exercise of their covenant defeasance option. If the Issuers
exercise their legal defeasance option with respect to any series, payment of
the Notes of that series may not be accelerated because of an Event of Default
with respect thereto. If the Issuers exercise their covenant defeasance option,
payment of the Notes may not be accelerated because of an Event of Default
specified in clause (4), (6) or clause (7) (with respect only to Restricted
Subsidiaries) under "Defaults" above or because of the failure of the Issuers to
comply with clause (3) or (4) under "- Merger and Consolidation" above.
In order to exercise either defeasance option with respect to any
series, the Issuers must irrevocably deposit in trust (the "defeasance trust")
with the Trustee money or U.S. Government Obligations for the payment of
principal, premium (if any) and interest on the Notes of that series to
redemption or maturity, as the case may be, and must comply with certain other
conditions, including delivery to the Trustee of an Opinion of Counsel to the
effect that holders of the Notes of that series will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit and
defeasance and will be subject to Federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred (and, in the case of legal defeasance
only, such Opinion of Counsel must be based on a ruling of the Internal Revenue
Service or a change in applicable Federal income tax law).
Concerning the Trustee
The Bank of New York is the Trustee under the Indenture and has been
appointed by the Issuers as Registrar and Paying Agent with regard to the Notes.
Governing Law
The Indenture provides that it and the Notes will be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to applicable principles of conflicts of law to the extent that the
application of the law of another jurisdiction would be required thereby.
Certain Definitions
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at the time of determination, the present value (discounted at the actual
rate of interest of such transaction) of the obligation of the lessee for net
rental payments during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). The term "net rental
payments" under any lease for any period shall mean the sum of the rental and
other payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges required
to be paid by such lessee thereunder or any amounts required to be paid by such
lessee thereunder contingent upon the amount of sales, maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges. In the case of
any lease which is terminable by the lessee upon the payment of a penalty, such
net amount shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated without payment of such penalty.
"Board of Directors" means the Board of Directors of the applicable
Issuer or any committee thereof duly authorized to act on behalf of the Board of
Directors of such Issuer.
27
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any preferred
stock, but excluding any debt securities convertible into such equity.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consolidated Net Tangible Assets" means, as of any date of
determination, the total amount of assets of the Issuers and their respective
Subsidiaries (less applicable reserves and other properly deductible items)
after deducting (1) all current liabilities (excluding the amount of those which
are by their terms extendable or renewable at the option of the obligor to a
date more than 12 months after the date as of which the amount is being
determined and excluding all intercompany items between an Issuer and any of its
wholly owned Subsidiaries or between Issuers or wholly owned Subsidiaries of
Issuers) and (2) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangible assets, all as determined on
a consolidated basis in accordance with generally accepted accounting
principles.
"Consolidated Stockholders' Equity" means consolidated stockholders'
equity of the Issuers and their respective Subsidiaries as determined in
accordance with generally accepted accounting principles and reflected on the
Issuers' most recent balance sheet.
"Funded Debt" means Indebtedness, whether incurred, assumed or
guaranteed, maturing by its terms more than one year from the date of creation
thereof or which is extendable or renewable at the sole option of the obligor in
such manner that it may become payable more than one year from the date of
creation thereof; provided, however, that Funded Debt shall not include
obligations created pursuant to leases, or any Indebtedness or portion thereof
maturing by its terms within one year from the time of any computation of the
amount of outstanding Funded Debt unless such Indebtedness shall be extendable
or renewable at the sole option of the obligor in such manner that it may become
payable more than one year from such time, or any Indebtedness for the payment
or redemption of which money in the necessary amount shall have been deposited
in trust either at or before the maturity or redemption date thereof.
"Indebtedness" of a Person means indebtedness for borrowed money and
all indebtedness under purchase money mortgages or other purchase money liens or
conditional sales or similar title retention agreements (but excluding trade
accounts payable in the ordinary course of business) in each case where such
indebtedness has been created, incurred, assumed or guaranteed by such Person or
where such Person is otherwise liable therefore and indebtedness for borrowed
money secured by any Lien upon property owned by such Person even though such
Person has not assumed or become liable for the payment of such indebtedness;
provided that if the obligation so secured has not been assumed in full by such
Person or is otherwise not such Person's legal liability in full, the amount of
such obligation for the purposes of this definition shall be limited to the
lesser of the amount of such obligation secured by such Lien or the fair market
value of the property securing such Lien.
"Legal Holiday" means a Saturday, Sunday or other day on which banking
institutions in New York State are authorized or required by law to close.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the applicable Issuer.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the applicable Issuer or the
Trustee.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Principal" of a note means the principal of the note plus the
premium, if any, payable on the note which is due or overdue or is to become due
at the relevant time.
"Principal Property" means any property owned or leased by any Issuer
or Restricted Subsidiary, the net book value of which exceeds one percent of
Consolidated Net Tangible Assets of the Issuers and their respective
Subsidiaries.
28
"Restricted Subsidiary" means, at any time, any Subsidiary of an
Issuer which would be a "Significant Subsidiary" at such time, as such term is
defined in Regulation S-X promulgated by the SEC, as in effect on the date of
the Indenture.
"SEC" means the Securities and Exchange Commission.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date of the Indenture.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Wholly Owned Restricted Subsidiary" means a Restricted Subsidiary,
100% of the outstanding Capital Stock of which (other than Capital Stock
constituting directors' qualifying shares or interests held by directors or
shares or interests required to be held by foreign nationals, in each case to
the extent mandated by applicable law) is directly or indirectly owned by an
Issuer or by one or more Wholly Owned Restricted Subsidiaries.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of certain United States Federal
income tax consequences of the Exchange Offer to holders of Restricted Notes,
but does not purport to be a complete analysis of all potential tax effects. The
discussion set forth below is based upon currently existing provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), existing and proposed
Treasury regulations promulgated thereunder and current administrative rulings
and judicial decisions, all of which are subject to change, possibly on a
retroactive basis. This summary does not discuss all aspects of United States
Federal income taxation that may be relevant to certain types of holders subject
to special treatment under the United States Federal income tax laws such as
tax-exempt organizations, dealers in securities, financial institutions and life
insurance companies. This summary applies only to a holder that acquired
Restricted Notes at original issue for cash and holds Restricted Notes as a
capital asset as defined in section 1221 of the Code. This summary also does not
discuss any aspect of state, local or foreign taxation. Holders of Restricted
Notes considering the Exchange Offer should consult their own tax advisors
concerning the United States Federal income tax consequences in light of their
particular situations as well as any consequences arising under the laws of any
other taxing jurisdiction.
An exchange of Restricted Notes for Exchange Notes pursuant to the
Exchange Offer should not be treated as a taxable exchange or other taxable
event for United States Federal income tax purposes. Accordingly, there should
be no United States Federal income tax consequences to holders of Restricted
Notes who exchange Restricted Notes for Exchange Notes in the Exchange Offer,
and any such holder should have the same adjusted tax basis and holding period
in the Exchange Notes as it had in the Restricted Notes immediately before the
exchange.
THE FOREGOING DISCUSSION OF CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSIDERATIONS DOES NOT CONSIDER THE FACTS AND CIRCUMSTANCES OF ANY PARTICULAR
HOLDER'S SITUATION OR STATUS. ACCORDINGLY, EACH HOLDER OF RESTRICTED NOTES
SHOULD CONSULT ITS OWN TAX ADVISOR WITH RESPECT TO THE TAX CONSEQUENCES OF THE
EXCHANGE OFFER TO IT, INCLUDING THOSE UNDER THE STATE, FOREIGN AND OTHER TAX
LAWS.
29
BOOK-ENTRY; DELIVERY AND FORM
The Global Notes
The certificates representing the Restricted Notes were issued, and
the certificates representing the Exchange Notes will be issued, in fully
registered form, without coupons. The Restricted Notes are represented by global
certificates in definitive, fully registered form without interest coupons in
the aggregate amount of $400.0 million (collectively, the "Initial Global
Notes"). Except as described under "Certificated Exchange Notes", the Exchange
Notes initially will be represented by one or more permanent global certificates
in definitive, fully registered form (collectively, the "Global Notes") and (i)
will be deposited with, or on behalf of, DTC, and registered in the name of Cede
& Co., as DTC's nominee or (ii) will remain in the custody of the Trustee
pursuant to a FAST Balance Certificate Agreement between DTC and the Trustee or
(iii) will be deposited with, or on behalf of, a custodian of DTC for credit to
the respective accounts of the purchasers (or to such accounts as they may
direct) at Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System ("Euroclear"), or Cedel Bank, societe anonyme
("Cedel"). If any holder of Restricted Notes whose interest in the Restricted
Notes is represented by the Initial Global Notes fails to tender in the Exchange
Offer, we may issue and deliver to that holder a separate certificate
representing that holder's Restricted Notes in registered form without interest
coupons.
Certain Book-Entry Procedures for the Global Notes
The descriptions of the operations and procedures of DTC, Euroclear
and Cedel set forth below are provided solely as a matter of convenience. These
operations and procedures are solely within the control of the respective
settlement systems and are subject to change by them from time to time. The
Issuers do not take any responsibility for these operations or procedures, and
investors are urged to contact the relevant system or its participants directly
to discuss these matters.
DTC has advised the Issuers that it is (i) a limited purpose trust
company organized under the laws of the State of New York, (ii) a "banking
organization" within the meaning of the New York Banking Law, (iii) a member of
the Federal Reserve System, (iv) a "clearing corporation" within the meaning of
the Uniform Commercial Code, as amended, and (v) a "clearing agency" registered
pursuant to Section 17A of the Exchange Act. DTC was created to hold securities
for its participants (collectively, the "Participants") and facilitates the
clearance and settlement of securities transactions between Participants through
electronic book-entry changes to the accounts of its Participants, thereby
eliminating the need for physical transfer and delivery of certificates. DTC's
Participants include securities brokers and dealers (including the Initial
Purchasers), banks and trust companies, clearing corporations and certain other
organizations. Indirect access to DTC's system is also available to other
entities such as banks, brokers, dealers and trust companies (collectively, the
"Indirect Participants") that clear through or maintain a custodial relationship
with a Participant, either directly or indirectly. Investors who are not
Participants may beneficially own securities held by or on behalf of DTC only
through Participants or Indirect Participants.
Upon deposit of each Global Note, DTC credited the accounts of
Participants designated by the Initial Purchasers with an interest in each
Global Note. The Issuers expect that pursuant to procedures established by DTC,
ownership of the Exchange Notes will be shown on, and the transfer of ownership
will be effected only through, records maintained by DTC (with respect to the
interests of Participants) and the records of Participants and the Indirect
Participants (with respect to the interests of persons other than Participants).
The laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of the securities in definitive form.
Accordingly, the ability to transfer interests in the Exchange Notes represented
by a Global Note to those persons may be limited. In addition, because DTC can
act only on behalf of its Participants, who in turn act on behalf of persons who
hold interests through Participants, the ability of a person having an interest
in the Exchange Notes represented by a Global Note to pledge or transfer that
interest to persons or entities that do not participate in DTC's system, or to
otherwise take actions in respect of that interest, may be affected by the lack
of a physical definitive security in respect of that interest.
So long as DTC or its nominee is the registered owner of a Global
Note, DTC or the nominee, as the case may be, will be considered the sole owner
or holder of the Exchange Notes represented by the Global Note for all purposes
under the Indenture. Except as provided below, owners of beneficial interests in
a Global Note will not be entitled to have Exchange Notes represented by that
Global Note registered in their names, will not receive or be entitled to
receive physical delivery of Certificated Notes, and will not be considered the
owners or holders of Certificated Notes under the Indenture for any purpose,
including giving any direction, instruction or approval to the Trustee.
Accordingly, each holder owning a beneficial interest in a Global Note must rely
on the procedures of DTC and, if that holder is not a Participant or an Indirect
Participant, on the procedures of the Participant through which that holder owns
its interest, to exercise any rights of a holder of Exchange Notes under the
Indenture or that Global Note. The Issuers understand that under existing
industry practice, in the event that the Issuers request any
30
action of holders of Exchange Notes, or a holder that is an owner of a
beneficial interest in a Global Note desires to take any action that DTC, as
the holder of that Global Note, is entitled to take, DTC would authorize the
Participants to take the action and the Participants would authorize holders
owning through those Participants to take the action or would otherwise act
upon the instruction of those holders. Neither the Issuers nor the Trustee
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of Exchange Notes by DTC, or for
maintaining, supervising or reviewing any records of DTC relating to the
Exchange Notes.
Payments with respect to the principal of, and premium, if any,
liquidated damages, if any, and interest on, any Exchange Notes represented by a
Global Note registered in the name of DTC or its nominee on the applicable
record date will be payable by the Trustee to or at the direction of DTC or its
nominee in its capacity as the registered holder of the Global Note representing
the Exchange Notes under the Indenture. Under the terms of the Indenture, Jones
and the Trustee may treat the persons in whose names the Exchange Notes,
including the Global Notes, are registered as the owners of the Exchange Notes
for the purpose of receiving payment on the Exchange Notes and for any and all
other purposes whatsoever. Accordingly, neither the Issuers nor the Trustee has
or will have any responsibility or liability for the payment of those amounts to
owners of beneficial interests in a Global Note (including principal, premium,
if any, liquidated damages, if any, and interest). Payments by the Participants
and the Indirect Participants to the owners of beneficial interests in a Global
Note will be governed by standing instructions and customary industry practice
and will be the responsibility of the Participants or the Indirect Participants
and DTC.
Transfers between Participants in DTC will be effected in accordance
with DTC's procedures, and will be settled in same-day funds. Transfers between
participants in Euroclear or Cedel will be effected in the ordinary way in
accordance with their respective rules and operating procedures.
Cross-market transfers of Exchange Notes between the Participants in
DTC, on the one hand, and Euroclear or Cedel participants, on the other hand,
will be effected through DTC in accordance with DTC's rules on behalf of
Euroclear or Cedel, as the case may be, by its respective depositary. However,
those cross-market transactions will require delivery of instructions to
Euroclear or Cedel, as the case may be, by the counterparty in that system in
accordance with the rules and procedures and within the established deadlines
(Brussels time) of that system. Euroclear or Cedel, as the case may be, will, if
the transaction meets its settlement requirements, deliver instructions to its
respective depositary to take action to effect final settlement on its behalf by
delivering or receiving interests in the relevant Global Notes in DTC, and
making or receiving payment in accordance with normal procedures for same-day
funds settlement applicable to DTC. Euroclear participants and Cedel
participants may not deliver instructions directly to the depositaries for
Euroclear or Cedel.
Because of time zone differences, the securities account of a
Euroclear or Cedel participant purchasing an interest in a Global Note from a
Participant in DTC will be credited, and any such crediting will be reported to
the relevant Euroclear or Cedel participant, during the securities settlement
processing day (which must be a business day for Euroclear and Cedel)
immediately following the settlement date of DTC. Cash received in Euroclear or
Cedel as a result of sales of interest in a Global Security by or thorough a
Euroclear or Cedel participant to a Participant in DTC will be received with
value on the settlement date of DTC but will be available in the relevant
Euroclear or Cedel cash account only as of the business day for Euroclear or
Cedel following DTC's settlement date.
Although DTC, Euroclear and Cedel have agreed to the foregoing
procedures to facilitate transfers of interests in the Global Notes among
participants in DTC, Euroclear and Cedel, they are under no obligation to
perform or to continue to perform those procedures, and those procedures may be
discontinued at any time. Neither the Issuers nor the Trustee will have any
responsibility for the performance by DTC, Euroclear or Cedel or their
respective participants or indirect participants of their respective obligations
under the rules and procedures governing their operations.
Certificated Exchange Notes
If (i) the Issuers notify the Trustee in writing that DTC is no longer
willing or able to act as a depositary or DTC ceases to be registered as a
clearing agency under the Exchange Act and a successor depositary is not
appointed within 90 days of that notice or cessation, (ii) the Issuers, at their
option, notify the Trustee in writing that they elect to cause the issuance of
Exchange Notes in definitive form under the Indenture or (iii) certain other
events as provided in the Indenture occur, then, upon surrender by DTC of the
Global Notes, Certificated Notes will be issued to each person that DTC
identifies as the beneficial owner of the Exchange Notes represented by the
Global Notes. Upon any issuance of this kind, the Trustee is required to
register those Certificated Notes in the name of that person or persons (or
their nominee) and cause the Certificated Notes to be delivered.
31
Neither the Issuers nor the Trustee shall be liable for any delay by
DTC or any Participant or Indirect Participant in identifying the beneficial
owners of the Exchange Notes and each such person may conclusively rely on, and
shall be protected in relying on, instructions from DTC for all purposes
(including with respect to the registration and delivery, and the respective
principal amounts, of the Exchange Notes to be issued).
32
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account in
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of those Exchange Notes. This Prospectus, as it may
be amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Notes received in exchange for the
Restricted Notes where such Notes were acquired as a result of market-making
activities or other trading activities. We have agreed that, starting on the
date of this Prospectus and ending on the close of business on the earlier to
occur of (i) the date on which all Exchange Notes held by broker-dealers
eligible to use the Prospectus to satisfy their prospectus delivery obligations
under the Securities Act have been sold and (ii) the date 180 days after the
completion of the Exchange Offer, we will make this Prospectus, as amended or
supplemented, available to any broker-dealer that requests such documents in the
Letter of Transmittal for use in connection with any such resale. In addition,
until [ ], 1999, all dealers effecting transactions in the Exchange Notes may be
required to deliver a prospectus.
We will not receive any proceeds from any sale of Exchange Notes by
broker-dealers. Exchange Notes received by broker-dealers for their own account
in the Exchange Offer may be sold from time to time in one or more transactions
in the over-the-counter market, in negotiated transactions, through the writing
of options on the Exchange Notes or a combination of those methods of resale, at
market prices prevailing at the time of resale, at prices related to prevailing
market prices or at negotiated prices. Any resale of this kind may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from the broker-dealer or
the purchasers of the Exchange Notes. Any broker-dealer that resells Exchange
Notes that were received by it for its own account in the Exchange Offer and any
broker or dealer that participates in a distribution of these Exchange Notes may
be deemed to be an "underwriter" within the meaning of the Securities Act and
any profit on the resale of Exchange Notes and any commission or concessions
received by any persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that it
will deliver and by delivering a Prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
33
LEGAL MATTERS
Ira M. Dansky, Esq., General Counsel of Jones, has passed upon the
validity of the Exchange Notes offered by this Prospectus. With respect to
certain matters concerning Pennsylvania and Delaware law, he has relied on
Mesirov Gelman Jaffe Cramer & Jamieson, LLP, Philadelphia, Pennsylvania. Mr.
Dansky owns 8,226 shares of Jones' common stock and holds options entitling him
to purchase an additional 128,226 shares.
EXPERTS
The consolidated financial statements and financial statement schedule
of Jones incorporated by reference in this Prospectus have been audited by BDO
Seidman, LLP, independent certified public accountants, to the extent and for
the periods set forth in their reports incorporated herein by reference, and are
incorporated herein in reliance upon such reports given upon the authority of
said firm as experts in accounting and auditing.
The consolidated financial statements of Nine West as of January 31,
1998 and February 1, 1997 and for the 52 weeks ended January 31, 1998 and
February 1, 1997 and the 53 weeks ended February 3, 1996 appearing in Jones'
Current Report on Form 8-K dated April 7, 1999, have been audited by Deloitte &
Touche LLP, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of said firm as experts in accounting and auditing.
34
========================================== ==================================
We have not authorized any dealer,
salesperson or other person to give any
information or to make any representations
not contained in this Prospectus in
connection with the Exchange Offer made by $400,000,000
this Prospectus and you must not rely on
any such information or representations as
having been authorized by us. Neither the Jones Apparel Group, Inc.
delivery of this Prospectus nor any sale Jones Apparel Group Holdings, Inc.
made hereunder will, under any circumstances, Jones Apparel Group USA, Inc.
create any implication that there has been no Nine West Group Inc.
change in our affairs since the date as of
which information is given in this Prospectus.
This Prospectus is not an offer to sell these
securities and it is not soliciting an offer
to buy these securities in any state where
the offer or sale is not permitted.
-------------------------
Offer to Exchange
7.50% Senior Notes due 2004
7.875% Senior Notes due 2006
Dealer Prospectus Delivery Obligation
Until [ ], 1999, all broker dealers
that effect transactions in the Exchange
Notes, whether or not participating in the
Exchange Offer, may be required to deliver
a Prospectus. This is in addition to the
obligation of broker-dealers to deliver a
Prospectus when acting as underwriters and
with respect to any unsold allotments or
subscriptions.
---------------------------
PROSPECTUS
---------------------------
[ ], 1999
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Pennsylvania Business Corporation Law of 1988 (the
"Pennsylvania Business Corporation Law"), Section 8.1 of the By-laws of Jones
Apparel Group, Inc. and Section 7.1 of the By-laws of Jones Apparel Group USA,
Inc. provide that a director shall not be personally liable for monetary damages
for any action taken or failed to be taken, other than as expressly provided in
the Pennsylvania Business Corporation Law. Furthermore, such By-laws provide
that the applicable corporation shall indemnify each officer and director to the
full extent permitted by the Pennsylvania Business Corporation Law, and shall
pay and advance expenses for any matters covered by such indemnification.
Section 1741 of the Pennsylvania Business Corporation Law provides
that a corporation shall have the power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that he or she is or was a representative of the corporation,
or is or was serving at the request of the corporation as a representative of
another domestic or foreign corporation for profit or not-for-profit,
partnership, joint venture, trust judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with the
action or proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The termination of any action
or proceeding by judgment, order, settlement or conviction or upon a plea of
nolo contendere or its equivalent shall not of itself create a presumption that
the person did not act in good faith and in a manner that he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal proceeding, had reasonable cause to believe that
his or her conduct was unlawful.
Section 1742 of the Pennsylvania Business Corporation Law provides
that a corporation shall have the power to indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed action by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he or she is or was a representative of the
corporation or is or was serving at the request of the corporation as a
representative of another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection with the defense or settlement of the action if he or she
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interest of the corporation. Indemnification shall not
be made under Section 1742 in respect of any claim, issue or matter as to which
the person has been adjudged to be liable to the corporation unless and only to
the extent that the court of common pleas of the judicial district embracing the
county in which the registered office of the corporation is located or the court
in which the action was brought determines upon application, that, despite the
adjudication of liability but in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for the expenses that the
court of common pleas or other court deems proper.
The Certificate of Incorporation of Jones Apparel Group Holdings,
Inc., a Delaware corporation ("Jones Holdings") and the Certificate of
Incorporation of Nine West Group Inc., a Delaware corporation ("Nine West"),
provides that no director of Jones Holdings or Nine West shall be personally
liable to Jones Holdings, Nine West or their stockholders for monetary damages
for breach of a fiduciary duty other than as expressly provided in Section
102(b)(7) of the General Corporation Law of Delaware (the "DGCL"), which
eliminates liability except (1) for any breach of the director's duty of loyalty
to Jones Holdings, Nine West or their stockholders, (2) for acts or omissions
not in good faith or which involve intentional misconduct or knowing violation
of law, (3) under Section 174 of the DGCL or (4) for any transaction from which
the director derives an improper personal benefit. Furthermore, the Certificate
of Incorporation and By-laws of Jones Holdings and Nine West each provide that
Jones Holdings and Nine West shall indemnify their officers, directors,
employees and agents to the full extent permitted by the DGCL, and shall pay and
advance expenses for any matters covered by such indemnification.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he or she is or was a
director, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or their enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
cause to believe that his or her conduct was unlawful.
II - 1
Subsection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification may be made in respect any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
or suit was brought shall determine that despite the adjudication of liability
such person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
Section 145 of the DGCL further provides that (1) to the extent a
director, officer, employee or agent of a corporation has been successful in the
defense of any action, suit or proceeding referred to in subsections (a) and (b)
or in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith; (2) indemnification or
advancement of expenses provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and (3) the corporation shall have the power to purchase and maintain insurance
on behalf of a director, officer, employee or agent of the corporation against
any liability asserted against him or her or incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT NO. DESCRIPTION
3.1 Certificate of Incorporation of Jones Apparel Group
Holdings, Inc. (filed as Exhibit 3.1 to the Company's
Registration Statement on Form S-4 (File No. 333-68587)
filed with the SEC on January 25, 1999)*
3.2 By-laws of Jones Apparel Group Holdings, Inc. (filed as
Exhibit 3.2 to the Company's Registration Statement on Form
S-4 (File No. 333-68587) filed with the SEC on January 25,
1999)*
3.3 Articles of Incorporation of Jones Apparel Group USA, Inc.
(filed as Exhibit 3.3 to the Company's Registration
Statement on Form S-4 (File No. 333-68587) filed with the
SEC on January 25, 1999)*
3.4 By-laws of Jones Apparel Group USA, Inc. (filed as Exhibit
3.4 to the Company's Registration Statement on Form S-4
(File No. 333-68587) filed with the SEC on January 25,
1999)*
3.5 Amended and Restated Articles of Incorporation of Jones
Apparel Group, Inc. (filed as Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1998)*
3.6 By-laws of Jones Apparel Group, Inc. (filed as Exhibit 3.3
to the Company's Registration Statement on Form S-1 (File
No. 39742) filed with the Commission on April 3, 1991*
3.7 Certificate of Incorporation of Nine West Group Inc.
(formerly known as Jack Asset Sub Inc.)**
3.8 By-laws of Nine West Group Inc. (formerly known as Jack
Asset Sub Inc.)**
3.9 Change of corporate name from Jack Asset Sub Inc. to Nine
West Group Inc**
4.1 Exchange and Note Registration Rights Agreement dated June
15, 1999 among Jones Apparel Group, Inc., Jones Apparel
Group Holdings, Inc., Jones Apparel Group USA, Inc., Nine
West Group Inc. and Chase Securities Inc., Merrill Lynch,
Pierce Fenner & Smith Incorporated, Bear, Stearns & Co,
Inc., Salomon Smith Barney Inc., BancBoston Robertson
Stephens Inc., Banc of America Securities LLC, ING Baring
Furman Selz LLC, Lazard Freres & Co. LLC, Tucker Anthony
Cleary Gull, Brean Murray & Co., Inc. and The Buckingham
Research Group Incorporated (filed as Exhibit 4.5 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended July 4, 1999)*
II-2
4.2 Senior Note Indenture dated as of June 15, 1999 among Jones
Apparel Group, Inc., Jones Apparel Group Holdings, Inc.,
Jones Apparel Group USA, Inc., Nine West Group Inc. and The
Bank of New York, as trustee (filed as Exhibit 4.6 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended July 4, 1999)*
4.3 Form of 7.50% Exchange Note due 2004 (included in Exhibit
4.2)
4.4 Formof 7.875% Exchange Note due 2006 (included in Exhibit
4.2)
5.1 Form of opinion of Ira M. Dansky, Esq.**
5.2 Form of opinion of Mesirov Gelman Jaffe Cramer & Jamieson,
LLP**
10.1 Agreement and Plan of Reorganization dated as of January 1,
1999, among Jones Apparel Group, Inc., Jones Apparel Group
Holdings, Inc. and Jones Apparel Group USA, Inc. (filed as
Exhibit 10.1 to the Company's Registration Statement on Form
S-4 (File No. 333-68587) filed with the SEC on January 25,
1999)*
10.2 Master Joinder Agreement, dated as of January 1, 1999, to
the Credit Agreements referred to therein, entered into by
and among Jones Apparel Group, Inc., Jones Apparel Group,
USA, Inc., Jones Apparel Group Holdings, Inc., as Credit
Parties, and First Union National Bank, as Administrative
Agent on behalf of the Lenders (filed as Exhibit 10.2 to the
Company's Registration Statement on Form S-4 (File No.
333-68587) filed with the SEC on January 25, 1999)*
10.3 Agreement and Plan of Merger dated as of March 1, 1999, by
and among Jones Apparel Group, Inc., Jill Acquisition Sub
Inc. and Nine West Group Inc. (filed as Exhibit 2.1 to the
Company's Current Report on Form 8-K filed with the SEC on
March 2, 1999)*
10.4 Second Amended and Restated 364-Day Credit Agreement dated
as of June 15, 1999 among Jones Apparel Group USA, Inc. and
the Additional Obligors referred to therein, the Lenders
referred to therein, and First Union National Bank, as
Administrative Agent (filed as Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended July 4,
1999)*
10.5 Five-Year Credit Agreement dated as of June 15, 1999 among
Jones Apparel Group USA, Inc. and the Additional Obligors
referred to therein, the Lenders referred to therein, and
First Union National Bank, as Administrative Agent (filed as
Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q
for the quarter ended July 4, 1999)*
12.1 Computation of Ratios of Earnings to Fixed Charges**
21.1 List of Subsidiaries**
23.1 Consent of BDO Seidman, LLP**
23.2 Consent of Deloitte & Touche LLP**
23.3 Consent of Ira M. Dansky, Esq. (included in opinion filed as
Exhibit 5.1)
23.4 Consent of Mesirov Gelman Jaffe Cramer & Jamieson, LLP
(included in opinion filed as Exhibit 5.2)
24.1 Power of Attorney (included in signature page)
25.1 Form T-1 Statement of Eligibility of Trustee**
99.1 Form of Letter of Transmittal**
99.2 Form of Notice of Guaranteed Delivery**
*Incorporated by reference.
**Previously Filed.
II-3
ITEM 22. UNDERTAKINGS.
(a) Each undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the maximum aggregate offering
price may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) under the Securities Act, if in the aggregate,
the changes in volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or 15(d) of
the Exchange Act of 1934 the (the "Exchange Act") and incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) Each undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, each
Registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) Each undersigned Registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the prospectus
pursuant to Items 4, 10(b), 11 or 13 of this Form, within one business day of
receipt of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the Registration Statement
through the date of responding to request.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, each of the
Registrants has duly caused this Registration Statement to be signed on its
behalf by the undersigned thereunto duly authorized, in the City of New York,
State of New York, on September 28, 1999.
JONES APPAREL GROUP, INC., Registrant
by *
_________________________________
Wesley R. Card
Chief Financial Officer
JONES APPAREL GROUP HOLDINGS, INC., Registrant
by /s/ Ira M. Dansky
_________________________________
Ira M. Dansky
President
JONES APPAREL GROUP USA, INC., Registrant
by *
_________________________________
Wesley R. Card
Chief Financial Officer
NINE WEST GROUP INC., Registrant
by *
_________________________________
Mark J. Schwartz
Chairman and Chief Executive Officer
II-5
SIGNATURES
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the date indicated.
SIGNATURE TITLE DATE
JONES APPAREL GROUP, INC.
*
- --------------------- Chairman and Director September 28, 1999
Sidney Kimmel (Principal Executive Officer)
*
- --------------------- President and Director September 28, 1999
Jackwyn Nemerov
* Chief Financial Officer September 28, 1999
- --------------------- (Principal Financial
Wesley R. Card Officer)
* Vice President and September 28, 1999
- --------------------- Corporate Controller
Patrick M. Farrell (Principal Accounting Officer)
* Executive Vice President, September 28, 1999
- --------------------- Marketing, and
Irwin Samelman Director
*
- --------------------- Director September 28, 1999
Eric A. Rothfeld
* Director September 28, 1999
- ---------------------
Mark J. Schwartz
II-6
SIGNATURE TITLE DATE
JONES APPAREL GROUP
HOLDINGS, INC.
/s/ Ira M. Dansky President and Treasurer September 28, 1999
- --------------------- and Director
Ira M. Dansky (Principal Executive Officer)
* Vice President/Finance September 28, 1999
- --------------------- and Assistant Secretary
Joseph T. Donnalley (Principal Financial Officer
and Principal Accounting
Officer)
* Vice President and September 28, 1999
- --------------------- Secretary and Director
Norman Shuman
JONES APPAREL GROUP
USA, INC.
* Chairman and Director September 28, 1999
- --------------------- (Principal Executive Officer)
Sidney Kimmel
* President and Director September 28, 1999
- ---------------------
Jackwyn Nemerov
* Chief Financial Officer September 28, 1999
- --------------------- (Principal Financial Officer)
Wesley R. Card
* Vice President and September 28, 1999
- --------------------- Corporate Controller
Patrick M. Farrell (Principal Accounting Officer)
* Executive Vice President, September 28, 1999
- --------------------- Marketing, and
Irwin Samelman Director
NINE WEST GROUP INC.
* Chairman and Chief Executive September 28, 1999
- --------------------- Officer and Director
Mark J. Schwartz (Principal Executive Officer)
* Senior Vice President--Finance September 28, 1999
- --------------------- and Assistant Secretary
Jeffrey K. Howald (Principal Financial Officer
and Principal Accounting
Officer)
* Director September 28, 1999
- ---------------------
Sidney Kimmel
* Director September 28, 1999
- ---------------------
Jackwyn Nemerov
* Director September 28, 1999
- ---------------------
Wesley R. Card
* Director September 28, 1999
- ---------------------
Irwin Samelman
II-7
Ira M. Dansky, by signing his name below, signs this
document on behalf of each of the above-named persons specified by an asterisk
(*), pursuant to a power of attorney duly executed by such persons, filed with
the Securities and Exchange Commission in the Registrant's Statement on
September 10, 1999.
/s/ Ira M. Dansky
Ira M. Dansky
Attorney-in-fact
II-8
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
3.1 Certificate of Incorporation of Jones Apparel Group
Holdings, Inc. (filed as Exhibit 3.1 to the Company's
Registration Statement on Form S-4 (File No. 333-68587)
filed with the SEC on January 25, 1999)*
3.2 By-laws of Jones Apparel Group Holdings, Inc. (filed as
Exhibit 3.2 to the Company's Registration Statement on Form
S-4 (File No. 333-68587) filed with the SEC on January 25,
1999)*
3.3 Articles of Incorporation of Jones Apparel Group USA, Inc.
(filed as Exhibit 3.3 to the Company's Registration
Statement on Form S-4 (File No. 333-68587) filed with the
SEC on January 25, 1999)*
3.4 By-laws of Jones Apparel Group USA, Inc. (filed as Exhibit
3.4 to the Company's Registration Statement on Form S-4
(File No. 333-68587) filed with the SEC on January 25,
1999)*
3.5 Amended and Restated Articles of Incorporation of Jones
Apparel Group, Inc. (filed as Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1998)*
3.6 By-laws of Jones Apparel Group, Inc. (filed as Exhibit 3.3
to the Company's Registration Statement on Form S-1 (File
No. 39742) filed with the Commission on April 3, 1991*
3.7 Certificate of Incorporation of Nine West Group Inc.
(formerly known as Jack Asset Sub Inc.)**
3.8 By-laws of Nine West Group Inc. (formerly known as Jack
Asset Sub Inc.)**
3.9 Change of corporate name from Jack Asset Sub Inc. to Nine
West Group Inc.**
4.1 Exchange and Note Registration Rights Agreement dated June
15, 1999 among Jones Apparel Group, Inc., Jones Apparel
Group Holdings, Inc., Jones Apparel Group USA, Inc., Nine
West Group Inc. and Chase Securities Inc., Merrill Lynch,
Pierce Fenner & Smith Incorporated, Bear, Stearns & Co,
Inc., Salomon Smith Barney Inc., BancBoston Robertson
Stephens Inc., Banc of America Securities LLC, ING Baring
Furman Selz LLC, Lazard Freres & Co. LLC, Tucker Anthony
Cleary Gull, Brean Murray & Co., Inc. and The Buckingham
Research Group Incorporated (filed as Exhibit 4.5 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended July 4, 1999)*
4.2 Senior Note Indenture dated as of June 15, 1999 among Jones
Apparel Group, Inc., Jones Apparel Group Holdings, Inc.,
Jones Apparel Group USA, Inc., Nine West Group Inc. and The
Bank of New York, as trustee (filed as Exhibit 4.6 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended July 4, 1999)*
4.3 Form of 7.50% Exchange Note due 2004 (included in Exhibit
4.2)
4.4 Formof 7.875% Exchange Note due 2006 (included in Exhibit
4.2)
5.1 Form of opinion of Ira M. Dansky, Esq.**
5.2 Form of opinion of Mesirov Gelman Jaffe Cramer & Jamieson,
LLP**
10.1 Agreement and Plan of Reorganization dated as of January 1,
1999, among Jones Apparel Group, Inc., Jones Apparel Group
Holdings, Inc. and Jones Apparel Group USA, Inc. (filed as
Exhibit 10.1 to the Company's Registration Statement on Form
S-4 (File No. 333-68587) filed with the SEC on January 25,
1999)*
10.2 Master Joinder Agreement, dated as of January 1, 1999, to
the Credit Agreements referred to therein, entered into by
and among Jones Apparel Group, Inc., Jones Apparel Group,
II-9
USA, Inc., Jones Apparel Group Holdings, Inc., as Credit
Parties, and First Union National Bank, as Administrative
Agent on behalf of the Lenders (filed as Exhibit 10.2 to the
Company's Registration Statement on Form S-4 (File No.
333-68587) filed with the SEC on January 25, 1999)*
10.3 Agreement and Plan of Merger dated as of March 1, 1999, by
and among Jones Apparel Group, Inc., Jill Acquisition Sub
Inc. and Nine West Group Inc. (filed as Exhibit 2.1 to the
Company's Current Report on Form 8-K filed with the SEC on
March 2, 1999)*
10.4 Second Amended and Restated 364-Day Credit Agreement dated
as of June 15, 1999 among Jones Apparel Group USA, Inc. and
the Additional Obligors referred to therein, the Lenders
referred to therein, and First Union National Bank, as
Administrative Agent (filed as Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended July 4,
1999)*
10.5 Five-Year Credit Agreement dated as of June 15, 1999 among
Jones Apparel Group USA, Inc. and the Additional Obligors
referred to therein, the Lenders referred to therein, and
First Union National Bank, as Administrative Agent (filed as
Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q
for the quarter ended July 4, 1999)*
12.1 Computation of Ratios of Earnings to Fixed Charges**
21.1 List of Subsidiaries**
23.1 Consent of BDO Seidman, LLP**
23.2 Consent of Deloitte & Touche LLP**
23.3 Consent of Ira M. Dansky, Esq. (included in opinion filed as
Exhibit 5.1)
23.4 Consent of Mesirov Gelman Jaffe Cramer & Jamieson, LLP
(included in opinion filed as Exhibit 5.2)
24.1 Power of Attorney (included in signature page)
25.1 Form T-1 Statement of Eligibility of Trustee**
99.1 Form of Letter of Transmittal**
99.2 Form of Notice of Guaranteed Delivery**
*Incorporated by reference.
**Previously Filed.
II-10